When the special session of Congress began, Senator Wilson, Chairman of
the Committee on Military Affairs, introduced a joint resolution to
declare these and other acts of the President "legal and valid to the
same intent and with the same effect as if they had been issued and
done under the previous express authority and direction of the Congress
of the United States." The clause of the Constitution which says that
the privilege of the writ of _habeas corpus_ shall not be suspended
unless when, in cases of rebellion or invasion, the public safety may
require it, does not say in what mode, or by what authority, it may be
suspended.
Straightway there were differences of opinion as to the lodgment of the
power to suspend, whether it was in the executive or in the legislative
branch of the Government. Other differences cropped up as to the
phraseology of the Wilson Resolution and its legal intendment. It might
be construed as an affirmance by Congress that the President's act
suspending the writ was lawful at the time when he did it, or, on the
other hand, that it became lawful only after Congress had so voted, and
hence was unlawful before. These diversities of opinion were very
tenaciously held by different members of the Senate and House, of equal
standing in the legal profession. The result was that Wilson's joint
resolution was debated at great length, but did not pass. Instead of it
an amendment was added to one of the military bills declaring that all
acts, proclamations, and orders of the President after the 4th of March,
1861, respecting the army and navy, should stand approved and legalized
as if they had had the previous express authority of Congress; and the
bill was passed as amended. This was understood to be a mere makeshift
for the time being.
The general question was again brought to the attention of Congress by
Trumbull, December 12, 1861, when he introduced in the Senate the
following resolution:
Resolved, that the Secretary of State be directed to inform the
Senate whether, in the loyal states of the Union, any person or
persons have been arrested by orders from him or his
department; and if so, under what law said arrests have been
made and said persons imprisoned.
Public-domain text, read in full here on John Shaqi.
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