276 



COXGKESS, U. S. 



marshal had levied upon property and collect- 

 ed the fine assessed ; the owner of the proper- 

 ty replevied the property thus taken, which was 

 distrained for the fine ; and the whole case came 

 to the Supreme Court of the United States. 

 The entire question was brought before the 

 court, and a great variety of points was start- 

 ed. The constitutionality of such a law was 

 contested. The court, however, sustained the 

 levying of a fine by a court martial in that 

 case. They said it was a constitutional law, 

 notwithstanding the provision of the Constitu- 

 tion which I have read." 



Mr. Carlile, of Virginia, in reply, said : " The 

 clauses in the Constitution authorizing the 

 President to call forth the militia, and to pro- 

 vide for their organizing and disciplining, have 

 been cited as authority for the power sought to 

 be exercised by this bill ; and the distinguished 

 senator from Vermont, for whose learning and 

 intellectual ability I have the highest respect, 

 contented himself this morning, by way of sus- 

 taining the provision, by citing two precedents, 

 decisions which he says have been made by the 

 Supreme Court, the proper tribunal to settle 

 constitutional questions. I desire to invite his 

 attention to an authority which I know will be 

 respected by him. It is none other than Chief- 

 Justice Story, who wrote his Commentaries 

 long after the decisions to which the senator 

 from Vermont has referred, and who it must 

 be presumed was perfectly familiar with those 

 decisions, which authority directly controverts 

 the position attempted to be established by the 

 precedents cited, and denies the power claimed 

 by the friends of this bill. It is a remarkable 

 fact that in the discussions of this subject by 

 Chief- Justice Story, he refers to the debates in 

 the Convention which formed the Federal Con- 

 stitution, and shows by reference to those de- 

 bates that one of the objections urged to the 

 clauses as they now stand in the Constitution, 

 providing for calling forth the militia and or- 

 ganizing and disciplining and governing them 

 when in the service of the United States, was 

 that it might be construed to confer the very 

 power which is now sought to be exercised by 

 the fourth section of this bill. I repeat, Mr. 

 President, and I desire to call the attention of 

 senators to this important fact, that one of the 

 reasons urged in the Federal Convention against 

 the adoption of the clauses of the Constitution 

 which are relied upon as conferring authority 

 for this provision which is now moved to be 

 stricken out, was, that it might be construed as 

 a warrant for the exercise of the very power 

 sought to be ingrafted into this bill. 2 El- 

 liot's Debates, pages 287, 288, and 294, shows 

 the fact that I have stated ; and Justice Story, 

 in commenting upon it, says : 



The right of governing them [the militia] 

 fined to the single case of their being in the ;i 



_ was con- 



le single case of their being in the actual ser- 

 vice of the United States, in some of the cases pointed 

 out in the Constitution. It was then, and then only, 

 that they could be subjected by the General Govern- 

 ment to martial law. 



" This fourth section proposes to subject the 

 men who may be drafted under the provisions 

 of this bill to martial law, to bring them under 

 the rules and articles of war, to deprive them 

 of their constitutional right of being tried for 

 criminal offences by presentments and an in- 

 dictment before a jury of their peers before 

 they have been mustered into the service, or 

 before they have entered the service of the 

 United States. Such a power, Justice Story 

 says, in the passage which I have quoted, is not 

 conferred by the Constitution or warranted by 

 that instrument. (Story's Commentaries on the 

 Constitution, volume 3, page 85, section 1202.) 

 I will read it again : 



The right of governing them was confined to the 

 single case of their being in the actual service of the 

 United States, in some of the cases pointed out in the 

 Constitution. It was then, and then only, that they 

 could be subjected by the General Government to mar- 

 tial law. 



"We know that this right of calling the 

 militia into the service of the United States, 

 out of their States, was resisted by Connecti- 

 cut and Massachusetts ; and Justice Story, in 

 his Commentaries, refers to that resistance : 



In Connecticut and Massachusetts it was held that 

 the Governors of the States, to whom orders were ad- 

 dressed by the President to call forth the militia on 

 account of danger of invasion, were entitled to judge for 

 themselves whether the exigency has arisen ; and were 

 not bound by the opinion or orders of the President. 



" Again, Justice Story says in the same vol- 

 ume, page 93, section 1208 : 



There is a clear distinction between calling forth the 

 militia and their being in actual service. These are 

 not contemporaneous acts, nor necessarily identical in 

 their constitutional bearings. The President is not 

 commander-in-chief of the militia except when in ac- 

 tual service, and not when they are merely ordered in- 

 to service. They are subjected to martial law only 

 when in actual service, and not merely when called 

 forth, before they have obeyed the call. 



" Now, Mr. President, upon the constitution- 

 al question, it seems to me the authority which 

 I have read, laid down by Justice Story, in his 

 Commentaries on the Constitution, should be 

 sufficient, and is a sufficient answer to the con- 

 stitutional argument made by the senator from 

 Massachusetts, and the precedent cited by my 

 distinguished friend from Vermont. 



"We cannot shut our ^yes to the fact 

 whether it be true or false, the fact exists 

 there is a prevailing opinion and impression in 

 the country that this war is not being waged 

 for the maintenance of the Constitution and 

 the restoration of the Union as it was. So long 

 as that sentiment exists, your efforts will be 

 more "or less paralyzed, and all your bills and 

 all your authority will, if in the opinion of the 

 people they are the exercise of unconstitutional, 

 arbitrary power, be resisted by them. That 

 impression will prevail in my opinion, if we 

 look to force, and force alone, not only to sup- 

 press the rebellion, but to fill up our armies, 

 and to strengthen the arm of this Government. 

 Sir, force is one of the means to be used against 



