CONGRESS, UNITED STATES. 



201 



the discretion of the President, ' and employed 

 in the service of the United States, shall for 

 the time being be subject to the same Rules 

 and Articles of War as the troops of the 

 United States,' and liable, therefore, to trial, 

 and punishment, and execution, even to death, 

 by military commission, or court-martial. 

 ' Whenever in the judgment of the President 

 it is necessary,' says this act, approved by 

 Washington, and never challenged until these 

 controversies arose in these latter days, to 

 which I have referred, by any patriot any- 

 where in the nation, all the arms-bearing pop- 

 ulation of the United States, at the discretion 

 of the President, might be called and coerced 

 into the service of the nation, and neither 

 Jiabeas corpus nor any other civil process 

 known either to the State tribunals of justice, 

 or to the national civil tribunals of justice, 

 could interfere in the premises. 



" In support of what I have just said I refer 

 in passing to the ruling made in 12 Wheaton, 

 page 19, by the Supreme Court of the United 

 States, in the case of Martin vs. Mott, in which 

 it was decided that the President is the exclu- 

 sive and final judge whether the exigency con- 

 templated by the law has arisen ; a decision the 

 legal soundness of which has never to this day 

 been authoritatively questioned. 



" What becomes, sir, in the light of this early 

 legislation, this contemporaneous exposition of 

 the Constitution, of that outcry of the gentle- 

 man from New York (Mr. Wood) about discre- 

 tion confided to the President being usurpa- 

 tion ? I can well understand the significance 

 of an unlimited discretion in a monarchy, 

 where, by the constitution of the state, the 

 king can do no wrong, and no man may chal- 

 lenge his decree, which awes a prostrate and 

 defenceless people into submission. But I do 

 not understand what significance is to be at- 

 tached to this clamor of the gentleman from 

 New York about discretion being vested in a 

 President of the United States by the people's 

 laws, when the President is but the servant 

 of the people, created by the breath of their 

 power." 



Mr. Wood: "You would make him their 

 master." 



Mr. Bingham: "Oh, the gentleman thinks 

 that the people are not capable of being their 

 own masters, that the servant may be greater 

 than his lord 1 The significance of the gentle- 

 man's last remark, if there is any possible 

 significance in it (and I say this with all re- 

 spect), is that the system of civil polity known 

 as the Constitution of the United States is a 

 failure, that the people are incapable of self- 

 government. The gentleman, I perceive, in- 

 clines to absolute power in a single hand ! Dis- 

 cretionary power in a President is dangerous 

 to the people who intrust it to him as their 

 mere servant ! The people cannot all assemble 

 at the Capitol. The people cannot in person 

 exercise the powers by them expressly dele- 

 gated to their agents. If their agents abuse 



the trust, the people are not without remedy. 

 They can bring to trial and judgment either 

 a recusant President or a recusant Congress. 

 'Discretion dangerous to the people! ' 



"Why, sir, the gentleman strikes at the 

 essential features of your Constitution. The 

 largest discretion under the Constitution of 

 the United States is vested in a Congress, con- 

 sisting of a Senate and House of Representa- 

 tives, in which body the honorable gentleman 

 himself holds a distinguished place. Consider 

 the discretion which is vested in Congress. If 

 any thing is to be proved by the gentleman's 

 outcry, if indeed discretionary power is danger- 

 ous to the public liberty, the people, enlight- 

 ened by the gentleman, should reform their 

 Constitution and strip Congress of all discre- 

 tionary power. That Congress is left to exercise 

 all its great powers at discretion is undoubted. 

 The Congress of the United States, under the 

 Constitution, is invested with power to deter- 

 mine, in their discretion, the issues of life and 

 death to the people of the republic. 



"By the Constitution of the country you 

 have the discretion, when, in your judgment 

 it is needful and proper, to declare war. In 

 pursuance of the exercise of that power you 

 have the other great power to pass your con- 

 scription act, when, in your judgment, you 

 deem it needful ; to drag from his home 

 every man capable of bearing arms in the 

 republic, to subject him to the perils of the 

 march or the greater perils of the battle, and 

 also to the despotism, as the gentleman calls 

 it, of martial or military law. After you have 

 declared war, after you have summoned the 

 whole able-bodied population of the country 

 to the field, you have granted to you expressly 

 the further power to provide by law to turn 

 out of their homes the wives and children 

 whom your citizens may have left behind, and 

 quarter your soldiers upon the hearthstone. 

 Who trembles at the magnitude of this power? 



" The people are equal to the task of redress- 

 ing all wrongs which may be inflicted upon 

 them either by President or by Congress. If 

 the President violate the discretionary powers 

 vested in him, the people by their Representa- 

 tives summon him to the bar of the Senate to 

 answer for high crimes and misdemeanors, and 

 on conviction not only depose him from his 

 great office, but make him as one dead among 

 living men, by pronouncing their irrevocable 

 decree, from which there is no pardon on this 

 side of the grave, that never again shall he 

 hold office of trust, honor, or profit, in the 

 United States. 



" As for the members of this House, if they 

 be false to their trust they must answer every 

 second year at the bar of public opinion, and 

 an offended, betrayed, and outraged people, 

 having the power, know how to make such 

 betrayers of their rights and their interests 

 powerless for all the future. The gentleman 

 cannot trust discretionary power to the Presi- 

 dent ! The people grant discretionary power 



