But the Senator from Kentucky tells us that the original defect in the notice by the President is of such a character that it cannot be cured by any subsequent ratification; and he proceeds to present what he will excuse me if I call imaginary cases, which I think could hardly occur, and are widely different from that under consideration. I express no opinion on the cases he does present,—as, for instance, if the President, during the recess of Congress, should undertake to involve the country in war. Let that case take care of itself, when it arises for judgment. The case before us is more simple, and is one with regard to which there are no private rights or interests. It is a domestic question between Congress and the President. He has given the notice. As regards the Government of Great Britain, that notice, I cannot doubt, is perfectly valid. That Government will never call it in question. For our own security, and that our precedents may conform to just principles, we now propose by formal Act of Congress to throw over this notice of the President the shield of Congressional sanction; and the question is, Can this be done? Can Congress, by an act of ratification, impart to the original notice of the President that power and character which, without subsequent ratification, it would not have? On that point I content myself with reading the authoritative words of the Supreme Court of the United States in the decisions known as the Prize Cases. There the Court express themselves as follows.
“Without admitting that such an act was necessary under the circumstances, it is plain, that, if the President had in any manner assumed powers which it was necessary should have the authority or sanction of Congress, that, on the well-known principle of law, ‘Omnis ratihabitio retrotrahitur et mandato æquiparatur,’ this ratification has operated to perfectly cure the defect. In the case of Brown v. United States, (8 Cranch, 131, 132, 133,) Mr. Justice Story treats of this subject, and cites numerous authorities, to which we may refer, to prove this position, and concludes: ‘I am perfectly satisfied that no subject can legally commit hostilities or capture property of an enemy, when, either expressly or constructively, the sovereign has prohibited it. But suppose he does, I would ask if the sovereign may not ratify his proceedings, and thus, by a retroactive operation, give validity to them?’”[46]
All now proposed is that Congress shall ratify the notice to the British Government, and by retroactive operation give validity to it.
…
Mr. President, if this concerned private rights,—if, according to the language of the Senator from Kentucky, there were any question of meum and tuum,—there might be force in his argument. But no private rights are involved, and there are no private individuals affected in any way by the proposed ratification of the notice already given. Therefore I put out of view that suggestion. It is, then, simply a question of power on the part of Congress, with no question of private rights.
I conclude that Congress has the power, and I put my conclusion on two distinct grounds. The first is the reason of the case, its common sense; for without this power I can imagine difficulties or embarrassments in the administration of government. I say the power must exist in Congress of ratifying, if it sees fit, certain executive acts. The second ground is judicial authority. The Supreme Court of the United States, after careful consideration in recent cases which the country knows received the amplest attention and were most fully argued, has affirmed the power of Congress to ratify an executive act which without such ratification might otherwise be invalid. But I do not content myself with referring to that single decision, recent and authoritative as it is; I recall attention also to that earlier decision which is adduced in the Prize Cases, the case of Brown v. The United States, which is well known to all lawyers as one of the best-reasoned judgments in our books, and in that case you will find the same power attributed to Congress.
Therefore, on grounds of reason and of authority, I am not permitted to doubt that Congress may exercise this power.
The resolution was adopted without a division, and communicated to Mr. Adams in a despatch of Mr. Seward, under date of February 13, 1865.[47]