190 



CONGRESS, UNITED STATES. 



finds in substance its warrant in the inter- 

 pretation of the Constitution as furnished by 

 th Supreme Court of the United States in the 

 case ex, parte Milligan (4 "Wallace, 127). 

 will read a single sentence, and reading that I 

 will have shown the House that this section 

 describes the ver y state of things in substance, 

 in which state of things the Supreme Court 

 were of the opinion that the privileges of the 

 writ of habeas corpus may be suspended and 

 martial law declared. Let me read : 



It follows from what has been said 



" And this is the opinion of Judge Davis, a 

 man not now accused of being unduly radical, 

 and who is threatened with the nomination for 

 the President of the United States by the 

 Democratic party 



It follows from what has been said on this subject 

 that there are occasions when partial rule can be 

 properly applied. If, in foreign invasion or civil war, 

 the courts are actually closed, and it is impossible to 

 administer criminal justice according to law, then, 

 on the theatre of active military operations, where 

 war really prevails, there is a necessity to furnish a 

 substitute for the civil authority thus overthrown, to 

 preserve the safety of the army and society; and, as 

 no power is left but the military, it is allowed to 

 govern by martial rule until the laws can have their 

 free course. As necessity creates the rule, so it 

 limits its duration ; for, it this government is con- 

 tinued after the courts are reinstated, it is a gross 

 usurpation of power. Martial rule can never exist 

 where the courts are open, , and in the proper and 

 unobstructed exercise of their jurisdiction. It is also 

 confined to the locality of actual war." 



Mr. Kerr, of Indiana, said : " First, I will 

 reply to two or three of the points suggested 

 by the gentleman who has just spoken (Mr. 

 Shellabarger). Some of his assumptions of 

 law, in my judgment, are quite as extraor- 

 dinary in their character as are the provis- 

 ions of this bill, and they are to me, with 

 my ideas of constitutional law, quite as un- 

 tenable and unjust. It was assumed by that 

 learned gentleman, in the outset of his re- 

 marks, that there should be applied by us, in 

 the construction of this bill, a rule of the utmost 

 liberality ; why, he has not informed us. This 

 is a criminal law in most of its purposes. It 

 should therefore be strictly construed. It is 

 against the rights of the States of this Union. 

 It should therefore be strictly construed. It 

 is against personal liberty as guarded by the 

 States of this Union. It should therefore be 

 strictly construed. Upon every principle of 

 constitutional construction, I say its novel, 

 remarkable, and alarming provisions should be 

 most strictly and rigidly scrutinized. Nothing 

 should be assumed, but gentlemen should ap- 

 proach the consideration of this bill under the 

 solemn oaths which we have all taken, with a 

 determination that its every section, line, and 

 purpose should find clear warrant in the Con- 

 stitution itself. 



" Another point suggested by the gentleman 

 from Ohio (Mr. Shellabarger), by way of apol- 

 ogy for the strange and startling nature of 

 some of the propositions in this bill, is, that the 



States of this Union have been held by the 

 Supreme Court of the United States to have 

 power to punish counterfeiting of the coin of 

 the United States, and that Congress possesses 

 the same power, but that it is not expressly 

 given to either, but is derived by both from 

 implication and construction. And then, with 

 an air of triumph, he inquires, 'Where does 

 either obtain that power in terms any more 

 clear than that which authorizes this bill ? ' I 

 am no more surprised at that inquiry, coming 

 from the learned gentleman, than I am that he 

 could at all conceive and pen such provisions 

 as are contained in this measure. In their 

 chief features they are pioneers, and have no 

 precedents in our country, except in actual and 

 fierce war. Many of them even there find no 

 parallel. They strike to the very heart of free 

 institutions and self-government. But I an- 

 swer his question by reading from the Con- 

 stitution itself. I may ask, why it is that he, 

 with his conceded professional standing and 

 learning, should have overlooked this impor- 

 tant constitutional warrant ? Article one, sec- 

 tion eight, clauses five and six, says : 



Congress shall have power to coin money, regulate 

 the value thereof, and of foreign coin, and fix the 

 standard of weights and measures; to provide for 

 the punishment of counterfeiting the securities and 

 current coin of the United States." 



Mr. Shellabarger: "What I said in regard 

 to that clause was that there was nowhere in 

 the clause a provision authorizing the United 

 States to punish the uttering, and yet by im- 

 plication the United States have been held to 

 be able to define and punish the uttering 

 well as the counterfeiting." 



Mr. Kerr: "The gentleman undertakes to 

 modify his statement by narrowing very much 

 his declaration. His own language stands and 

 will answer for the truth of what I have said. 

 And now I say to him, upon his amended 

 declaration of his position, that the power in 

 Congress to punish any crimes against the coin 

 of the United States is express in the Constitu- 

 tion, and is so held by courts and comment 

 tors. It is not derived from implication ; bi 

 it is an inquiry no way important here, because 

 his assumptions touching this bill derive no 

 support from it. 



" But the gentleman stated also that there 

 are but three provisions in the Constitution of 

 the United States whicli refer to the personal 

 rights of the citizens of this country ; and he 

 named those three." 



Mr. Shellabarger : "What I said was that 

 there were but three provisions where the 

 Constitution of the United States, as between 

 the States and persons in the States, protects 

 the rights of persons." 



Mr. Kerr : "I ask the attention of every 

 gentleman on this floor to the first eleven 

 amendments of the Constitution of the United 

 States, and I say that in them, as against the 

 United States and the States and all the world, 

 the Constitution guarantees to the people cer- 



