courts might consider the President's suspension an exercise of unfounded authority it would be, in his opinion, unwise to attempt to smother up the unconstitutionality by passing an act whose constitutionality would be questionable.26 He did not confine himself to destructive criticism. His remarks were in fact prefaced by the introduction of a bill (Senate No. 457) embodying his views." The bill was referred to the Committee on the Judiciary and on Sumner's motion was ordered to be printed.28

Collamer's words made such an impression upon the Judiciary Committee that it reported a bill, substantially the same as his,29 January 15, 1863, as a substitute for Stevens's Bill No. 591, which had lain dormant in the pigeon-holes of the committee ever since its reference early in December.30 The first section of the substitute provided for the transfer of suits begun in a State court for trespasses or wrongs done or committed under the authority or color of authority of the PresiIdent to the United States Circuit Court. The second section provided that, even if judgment should be given against the defendant or respondent, yet, should it appear to the court that the defendant or respondent had reasonable or probable cause for doing what he did, or had acted in good faith, no execution should issue or further proceeding be had until after the adjournment of the then next ensuing session of Congress. The third section authorized the carrying of a case in which final judgment had been rendered by the Circuit Court to the Supreme Court, and the fourth fixed a period beyond which suits could not be brought.31

In recommending the measure which his committee had reported Trumbull took pains to point out that it did not reflect upon the legitimacy of Presidential suspension: "I will that this bill does not depend at all upon the power of the President to suspend the writ of habeas corpus. Whether he has the power or not, this bill would be necessary

say

.

20 Globe, 3d S. 37th Cong. pp. 247-248.

"January 9, 1863. Substance of bill is given, ibid. pp. 248-249.

Ibid. p. 249.

"Ibid. pp. 321, 535, 539, 541.

301bid. p. 321.

Text, ibid. p. 529.

and it would be just as necessary if he had the power to suspend it as it would be if he had not; because the suspension of the writ of habeas corpus does not of itself justify the arrest of anybody. . So, if the writ of habeas corpus was suspended by act of Congress with the concurrence of the President, both acting together, there would be the same necessity for this act to protect the officers, in case, acting from probable cause and in good faith, they had wrongfully made arrests."

1732

The discussion of the Judiciary Committee's substitute for Stevens's bill was animated, but it was begun and ended on the same day, January 27, 1863. The substitute underwent a variety of amendments, of which one offered by Cowan is noteworthy. It provided that the judge might interfere before judgment had been rendered, that is, that whenever in the course of the trial it was discovered that there was probable cause for making the arrest, the judge should charge the jury to that effect and tell it that that was a defence to the action and no judgment should ever be rendered.33 Another and most important amendment was added at the instance of Sherman, to the effect that political prisoners arrested in peaceful States should have a hearing before the courts within thirty days, provided they were not persons subject to the articles of war. The bill, as amended, was passed as a substitute for Stevens's bill by the handsome and almost suspicious majority of 33 to 7.35 Its title was changed to the colorless "An

34

32Globe, 3d S. 37th Cong. p. 534. Trumbull's explanation does not seem conclusive. The Democrats, in this session, harped much upon the argument that suspension does not of itself authorize extraordinary arrest. Collamer, the father of the bill recommended by Trumbull, held the opposite view. In introducing Senate Bill No. 457, he said: "What did the Executive need to do for these periods of extremity? What was wanted? It was this: that he might, if the privilege of that writ was suspended, arrest people who had not committed crimes, and hold them to prevent their committing crimes that would put the nation in jeopardy. If he was only to arrest those people who had committed crimes, he could do that without having the writ of habeas corpus suspended at all." Ibid. p. 247. Cf. his statement on the substitute bill, ibid. p. 550.

33Ibid. p. 554. This amendment became section 2 of the substitute. 34 Ibid.

35Ibid. Text of the bill is given below, pp. 271-274.

act to regulate judicial proceedings in certain cases therein mentioned."36

The emasculation of the title of the Senate's substitute, and the absence from it of anything corresponding to that clause of the Indemnity Bill which invested the President with authority to suspend, are not to be taken as evidence that the Senate was agreed that the question of the legitimacy of Presidential suspension was an idle one. That question was still to be dealt with by the Senate in the pending House Bill No. 362.37 For the Senate's bill, just passed, was particularly concerned with those responsible for extraordinary arrests, while Bill No. 362 was devoted almost exclusively to the political prisoners themselves. The passage of the Senate's substitute for Stevens's bill did not interrupt proceedings upon the latter measure.

The debate upon House Bill No. 362, which had been taken up by the Senate December 10, 1862, did not become brisk until February. Up to that time it had been conducted in a leisurely fashion through set speeches made at irregular intervals, and presenting the customary arguments.38 It was Trumbull-the man above all who is responsible for the Habeas Corpus Act of 1863-who gave life to the debate, February 19, by offering a substitute amendment to the bill. Trumbull's amendment was largely a recast of the bill, the third section alone undergoing grave alteration. The order of the sections was also changed, the third section of the House bill becoming the first section of the substitute.39 Thus the first section of the substitute dealt with the suspension of the privilege of the writ, while the second and third

38 Globe, 3d S. 37th Cong. p. 554. Vallandigham had tried on the day of the passage of Stevens's bill "to indemnify the president and other persons" by the House to have the title reflect more obviously upon the legitimacy of Presidential suspension by the addition of the words "and to empower the President to suspend the privilege of the writ of habeas corpus throughout the United States." He failed, of course. Ibid. pp. 20-21.

37 It was really involved in Sherman's eleventh-hour amendment, but the point can best be considered in the last chapter of this essay.

38 Field's elaboration of the argument that unless the President can suspend the virtue of suspension is lost, is very clever. Ibid. pp. 218-219.

Text of the substitute amendment, ibid. pp. 1090-1091. For Trumbull's categorical statement of the changes he has made, see ibid. p. 1092.

sections provided for the liberation of political prisoners under conditions.

The first section of the substitute is the one with which this essay has particularly to do. It provided "That, during the present rebellion, the President of the United States, whenever in his judgment the public safety may require it, is authorized to suspend, by proclamation, the privilege[s] of the writ of habeas corpus, in all cases of political offences, throughout the United States, or any part thereof...

There are important differences between this section and the third section of the House bill. Trumbull, in explaining the differences, summed them up thus: "The House bill limited the suspension until Congress should meet. The substitute I propose authorizes the suspension wherever the President, by proclamation, shall declare the writ suspended, so long as the proclamation continues in force and the rebellion. exists." Another important difference he did not allude to. It is fundamental.

940

.

to suspend

is au

What is the meaning of the words "Be it enacted That, during the present rebellion, the President. thorized to suspend ?" The phrasing differs from the outspoken "And be it further enacted, That . . . the President shall be, and is hereby invested wth authority to declare the suspension " of House Bill No. 591 and from the corresponding "And be it further enacted, That it is, and shall be lawful for the President of House Bill No. 362. Trumbull, who wrote the clause, said that it meant Congressional authorization: "The substitute I propose authorizes the suspension ;" and that the section might be so interpreted everyone who expressed his views on the point agreed.42 And yet, if Trumbull meant the bill to authorize suspension, why did he couch the clause in such unusual language-be it enacted that the President is authorized to suspend? Doolittle-not Trumbull-was the

40 Globe, 3d S. 37th Cong. p. 1092.

41 Ibid.

."41

42 See ibid. pp. 1093, 1094, 1158, 1183, 1187, 1204. 1205 for statements of Carlile, Bayard, Powell, Richardson, Howard, Saulsbury and Collamer, respectively.

first to draw attention to the significance of the phraseology: "Mr. President, the exposition given by my honorable friend from Illinois of this bill is very complete, although there is one suggestion that escaped him which I beg leave to occupy the attention of the Senate long enough to present. It is this: the first section of his substitute is so drawn that it does not assume of itself that the Congress of the United States clothes the Executive with power to suspend the writ. It does not assume to determine whether his authority to suspend the writ in cases of invasion or insurrection is derived from the act of Congress which we now pass, or is derived from the Constitution. It does not assume to say

9943

that 'the President is hereby authorized to do it; and therefore those persons who conscientiously maintain that under the Constitution the President is clothed with power without any legislation of Congress, can vote for this section upon the ground that this section is merely declaratory of a power which inheres in him under the Constitution itself; and those who maintain that it is to be derived from an act of Congress can sustain this section upon the ground that it is an enacting clause which gives him the power.' Trumbull himself conceded the "double" interpretation: "If ever there was an occasion to suspend the writ of habeas corpus in case of rebellion, surely that occasion exists now; and I am for giving that authority, for settling this mooted question, for it exists somewhere, either in the Executive or Congress, one or the other; and those of us who believe that Congress possesses the power can vote for the bill granting it; and those who believe the Executive has it, it seems to me, cannot object to the declaratory act at any rate." Bayard spoke somewhat sharply of the "avowal of the design to pass a law for the purpose of leaving it so ambiguous that men of different minds. may unite in its passage,' "45 but although the avowal was new, still the chief difference between this clause of the bill and the corresponding clauses of its predecessors was not the ambiguity, but the cleverness, the perfection, so to say, of the

43 Globe, 3d S. 37th Cong. p. 1092. See also pp. 1093, 1194. Ibid. p. 1186.

45 Ibid. p. 1094.