ambiguity. The designed and confessed ambiguity of the clause is indubitable, and it is impossible to maintain that those who voted for the bill thereby condemned Presidential suspension as illegitimate.** . Trumbull's conviction that the "mooted question" should be settled was shared by partisans of Presidential suspension. Howard, for example, who ultimately voted for the bill, said emphatically: "But, sir, if I vote for any measure purporting to give to the President of the United States a modified authority to suspend . . . I shall do so, as the lawyers say, protestando. I shall do it under a protest that the President of the United States, upon a fair construction of the Constitution, is already vested by the instrument with full authority to suspend. I am anxious to avoid, if we can avoid, the setting of a precedent which shall in the future look even to a divesting of the power of the Executive of this important authority. Still, I may, as I have observed, be induced to yield my opinions for the purpose of conciliation and harmony, and to vote for some measure that may be thought to quiet alarm, however unfounded the alarm may be."47 Doolittle's amplification of this last thought is admirable: "Mr. President, my opinion is this: whether the power is derived from the Constitution or derived from the act of Congress to suspend the writ, it is the best policy to have it declared by Congress that the power exists either under the Constitution or under the act of Congress. . We know very well that the people of the United States are so familiar with these terms, 'be it enacted,' which are used in the passage of laws by their representatives, whom they have chosen, who speak their own voice, who legislate for them, who declare the popular will, which, as our ancestors maintained, is to them the voice of God, that they submit to an enactment, 46 This was asserted by Bayard and Saulsbury, for example. Globe, 3d S. 37th Cong. pp. 1094, 1204. 47 Ibid. p. 1187. Cf. George Bancroft's interesting idea of the value of such a precedent, in his letter to Lincoln, February, 1863: "For one, though I think your position perfectly safe without it, I hope Congress will pass some bill, alike for your protection in the present case and for our security, should the nation ever suffer itself to elect a ticket like that of Breckinridge and Lane." Nicolay and Hay, vol. VIII, p. 36, footnote. passed by their representatives, commencing 'be it enacted,' as the Israelites of old would submit to a 'thus saith the Lord.' But, sir, when a thing is assumed to be done by the order of any one individual, the Secretary of War or the President, their jealousy of despotic power exercised by an individual is such, that although he may be acting within his clear constitutional power, the people, perhaps, are less likely to acquiesce in an order of the War Department or an order of the President than they are to acquiesce in an enactment of Congress."48 49 The propositions embodied in the last two sections of Trumbull's substitute bill were not looked upon with unmixed favor by the majority of the Republicans. There was a feeling that political prisoners might secure their liberation too quickly for the good of the country. February 23, when the passage of the bill seemed imminent, Collamer intervened and made a strong and determined attack upon the second and third sections: "The first section authorizes the President to suspend the habeas corpus: [A little later he employed this phraseology: "You authorize or declare, if you choose to use that word, that the President has the power to suspend the habeas corpus"]; which, I take it, if it means anything, means that he may hold persons in prison, in arrest, without being interfered with by any attempt of the courts to set them at liberty. . . After thus authorizing him to suspend the habeas corpus, the second section goes on to provide that the persons who are arrested and imprisoned shall be brought before the courts, and, if not indicted, discharged. The third section provides that they may be brought before a judge at any time after twenty days. . . This seems to imply that nobody is to be arrested unless they are persons guilty of some crime for which they can be indicted. It seems to me that the second and third sections are utterly inconsistent with the first. The first section authorizes the sus 48 Globe, 3d S. 37th Cong. p. 1092. . 49 This was expressed by Wilson, January 9, 1863, apropos of House Bill No. 362: "I do not know that I have any anxiety to try these prisoners and I want them tried in the manner in which the Government sees fit to do it." Ibid. p. 204. pension of habeas corpus, so that the courts and judges cannot relieve the man; the second and third sections provide that they shall relieve the man."50 The mantle worn by Howe on a similar occasion in the second session seems now to have rested on Collamer's shoulders.51 Trumbull used all his skill of argument and persuasion to meet this attack, pointed out that no one could be liberated except on conditions, and asked Collamer if he wanted the writ suspended forever.52 Collamer pushed the attack home, and his motion to strike out the last two sections would have succeeded had not the Democrats and Unionists rallied to the assistance of Trumbull. The motion failed by the close vote of 18 to 20. Sixteen of the 18 were Republicans; the other two, Wall and Willey, subsequently voted against the bill. Only nine of the 20 were Republicans.53 The substitute bill, fortified by a number of minor amendments,54 was finally passed, February 23, 1863, by a practically party vote of 24 to 13, Hicks, usually an Administration man, being the only non-Republican to vote for it and Lane of Indiana the only Republican to vote against it." The title of the bill was amended to read, "An act to provide for suspending the privilege of the writ of habeas corpus, for the discharge of State prisoners and others, and to authorize taking bail in certain cases.' 1956 The bill-House Bill No. 362 as amended by the Senate-was returned to the House February 24. It did not, however, become the subject of direct action in the House, but was considered only so far as it was em 57 50 Globe, 3d S. 37th Cong. pp. 1205-1206. See above, p. 243. 52 Globe, 3d S. 37th Cong. pp. 1206-1207. 53 Ibid. p. 1207. The chief change in the first section was the elision of "by proclamation." See text of bill as passed, below, pp. 274-277. 55 YEAS-Anthony, Chandler, Clark, Doolittle, Fessenden, Foot, Foster, Grimes, Harlan, Harris, Hicks, Howe, King, Lane of Kansas, Morrill, Pomeroy, Sumner, Ten Eyck, Trumbull, Wade, Wilkinson, Wilmot, and Wilson of Massachusetts. NAYS Carlile, Henderson, Kennedy, Lane of Indiana, Latham, Powell, Rice, Richardson, Saulsbury, Turpie, Wall, Willey, and Wilson of Missouri. Ibid. p. 1208. 56 Ibid. bodied in a Committee of Conference bill framed to reconcile the conflicting views of the two chambers upon House Bill No. 591. The Senate's substitute for Stevens's House Bill No. 591 had been announced to the House January 28, 1863-the day after its passage by the Senate-and was taken from the Speaker's table February 12.58 It received a brief and characteristic greeting from Stevens: "I hope that we shall nonconcur and refer the matter to a committee of conference."" The measure was debated from time to time in a rambling discussion in which the Democrats did most of the talking and thrashed the old wheatless straw. Stevens closed the debate, February 19, by asking the House to non-concur. The House non-concurred, 114 to 35, and appointed its committee members. They were Stevens, Bingham and Pendleton. The Senate members of the committee were Trumbull, Collamer and Willey. All save Willey had been prominent in habeas corpus debates. 60 63 The report of the Committee of Conference was presented to the House February 27.62 After considerable wrangling it was agreed that Saturday evening, February 28, should be given over to general debate and that the vote should be taken Monday, March 2.83 The opportunity to make "campaign" speeches was so tempting that the evening of February 28 passed without any discussion of the bill. March 2, about one o'clock P. M., the report of the Committee of Conference was agreed to, 99 to 44. The fight was obviously left for the Senate. 64 Immediately after the reading of the House message announcing the acceptance of the report of the committee Trumbull submitted the report to the Senate.65 He explained, not without a trace of disingenuousness, the make-up of the 58 Globe, 3d S. 37th Cong. pp. 572, 916. 59 Ibid. p. 916. eo Ibid. p. 1107. Ibid. p. 1119. Ibid. p. 1354. 63 Ibid. p. 1359. Ibid. p. 1479. 65 Ibid. p. 1435. བ ། Conference bill.66 "I will state," he said, in his introductory remarks, "for the information of the Senate, that the report embraces nothing but the subject matter of the bill which passed the House of Representatives [Bill No. 591], and the amendments which passed the Senate." A comparison of texts shows that the Conference measure was practically a fusion of the Senate's substitutes for House bills 362 and 591.68 Sections one, two and three of the Conference billthe Habeas Corpus Act of March 3, 1863-are almost an exact copy of the three sections of the former, and in the order named; sections five, six and seven are identical with sections one, three and four of the latter. Section four of the Conference bill differs in phraseology from section two of the Senate's substitute for 591 but its practical effect is much the same. The report of the Committee of Conference was received by the opposition senators with marked signs of disapproval. They resorted to confessed filibusterism to prevent its acceptance. By this means they delayed action until close to five o'clock A. M. of the last night of the session, and it was only by virtue of what under the circumstances may be called legitimate jockeying-to which the presiding officer, Senator Pomeroy, lent naïve aid—that the majority secured the concurrence of the Senate in the report.70 The next morning the opposition senators protested against the tactics used against them and desired to have an opportunity to move to reconsider the vote. Doolittle suggested that the vote on the motion to send to the House for the report should be considered a test one, and therefore asked the yeas and navs.71 Globe, 3d S. 37th Cong. pp. 1436-1437. 67 Ibid. p. 1436. See Appendices, below. nays 33. The only change in the first section is the omission of a tautological "or." 70 Globe, 3d S. 37th Cong. pp. 1460-1477. The tactics employed were clever. After considerable maneuvering around motions of various kinds, Fessenden called for the yeas and nays on a motion to adjourn. The vote was yeas 4, Immediately the presiding officer said: "The question is on concurring in the report of the committee of conference. Those in favor of concurring in the report will say 'aye,' those opposed 'no.' The ayes have it. It is a vote. The report is concurred in." Then Trumbull: "I move that the Senate now proceed to the consideration of House bill No. 599."-Protests. Ibid. p. 1477. 71 Ibid. pp. 1489-1494. |