170 



CONGRESS, UNITED STATES. 



lawyer's mind. I have one of them here be- 

 fore me now, introduced into the House of 

 Representatives by a colleague of my own from 

 the State of Ohio, a bill which assumes that 

 Congress has as much power in a State over 

 the criminal law of the State, as much power 

 to punish crimes in a State as it has within the 

 District of Columbia, or in any of the forts or 

 arsenals of the United States ; a bill which as- 

 serts for Congress just as absolute jurisdiction 

 over every crime and offence, from the highest 

 to the lowest, from murder to libel, from rob- 

 bery to assault and battery, and the power to 

 punish those crimes when committed in a State, 

 as fully as Congress can punish them when com- 

 mitted within the District of Columbia. And 

 now, when it is proposed that Congress shall 

 assume this power, the entire jurisdiction over 

 crimes and offences committed within a State ; 

 when this stride, that no mortal man ever be- 

 fore thought of, is advocated here, it is pro- 

 posed that the Judiciary Committee in hot 

 haste shall report some such bill, and that 

 within the few remaining days of this session ! 

 Why, sir, it is simply madness, I would almost 

 say, if I did not see that it is proposed by sane 

 men. 



" Now, Mr. President, I wish to say some- 

 thing further on this question. The constitu- 

 tional question involved is as to the power of 

 Congress to go into a State and punish offences, 

 not against the laws of the United States, which 

 Congress has any right to pass, but merely to 

 punish ordinary murder, ordinary assault and 

 battery, ordinary crimes, such as are punisha- 

 ble by the State law. Wherever that question 

 shall come, if there is any respect left for the 

 Constitution, if there is any respect left for the 

 decisions of your Supreme Court, I will show 

 you by the decisions of the Supreme Court of 

 the United States, as well as by the plain text 

 of the Constitution, that you have no such 

 power at all. No question was ever more sol- 

 emnly decided than was this very question in 

 an opinion delivered by John Marshall himself, 

 that you have no such power. That was un- 

 der the Constitution before the fourteenth 

 amendment was adopted, it is true ; but will 

 anybody tell me where lie can find in this four- 

 teenth amendment any power to invade the 

 States, and take the entire punishment of 

 crime, the entire jurisdiction of crimes com- 

 mitted within a State, into the hands of Con- 

 gress? I do hope, that at least the lawyers 

 of this body, whose education and habits ought 

 to give them some reverence for law, some re- 

 spect for precedent, some regard for the Con- 

 stitution, will pause and consider before they 

 are driven to such a pretension as this. 



"I know it has been said that 'hard cases 

 make shipwreck of principle.' It is an old 

 maxim of the lawyer; and hard cases or sup- 

 posed emergencies too often make shipwreck 

 of constitutions. I know, that under a great 

 clamor of excitement Congress may be induced 

 to exercise powers that, in its sober moments, 



and without excitement, it would shrink with 

 horror from attempting to exercise. We have 

 seen too much of that in the past history of 

 the country; but I do hope that the time has 

 not come when, for the purpose of curing one 

 evil, the very law-making body of the Gov- 

 ernment, each member of which is sworn 

 to support the Constitution, will commit the 

 far greater evil of overthrowing that instru- 

 ment ! 



" This is the state of this case. Here, sir, 

 is a law, a law which has been in force now 

 nearly a year, with Republicans everywhere in 

 these States to execute that law, everywhere 

 having power to execute it, the judges of your 

 own appointment, the jurors selected by your 

 own marshals, and they the appointees of the 

 President of the United States, with every pow- 

 er with which Government can clothe a judi- 

 ciary ; and now we are told that we must have 

 some more law of the same kind. Mr. Presi- 

 dent, if we can have no better law of the same 

 kind than the bills which have been presented 

 to us, I hold that the less of that law we have 

 the better. 



" The provision in the Constitution, in regard 

 to the President putting down insurrection 

 when called upon by the Executive or the Legis- 

 lature of a State, relates to insurrection against 

 the State ; but that does not limit the power 

 of the President to put down insurrections in 

 the country. There is the power to put down 

 insurrections against the Government of the 

 United States ; and although the act of 1795, 

 Congress not anticipating such a case, failed to 

 provide for it, yet, by the act of 1862, you did 

 provide for it, and gave the power to the Presi- 

 dent to call out the militia whenever the neces- 

 sity existed to put down insurrections against 

 the Government of the United States. Then 

 you have the judicial power which I have shown 

 you, and you have the executive power, the 

 President clothed with power under your act 

 to even call out the militia to put down insur- 

 rection against the Government of the United 

 States. 



" My object in making these remarks is to 

 show that this is not a subject that is to be 

 decided in a day, unless your Judiciary Com- 

 mittee, instead of being a committee of law- 

 yers, instead of being a committee to find out 

 what the law and the Constitution is, and ad- 

 vise the Senate, is to be a mere scrivener, to 

 put into the form of law what party, what 

 clamor may demand. Then you may command 

 them to report to-day or to-morrow, but if they 

 are to be lawyers, if they are to exercise the 

 learning that they are supposed to possess, and 

 the brains which they are supposed to have, 

 if they are conscientious men, you must give 

 them time to do it, that they may report that 

 which they can defend when reported, and 

 which the Senate can adopt without bringing 

 shame and confusion upon the face of every 

 man here who claims to be a lawyer." 



While the resolution was under considera- 



