CONGRESS, UNITED STATES. 



219 



to oppose force to force, as is done in every 

 city and county in the country every day, 

 when the occasion for it occurs, under State 

 laws and under national laws, as the Senator 

 from California himself says he demanded to 

 have done, in his own State, on one occasion, 

 by the troops of the United States. When 

 force is to be opposed to the quiet progress of 

 the law, the arm of the nation is to resist force 

 with force, is to gather up the oifender and 

 turn him over to the court of justice for trial. 

 That is all there is to it. "We are not attempt- 

 ing to overturn the judiciary ; we are attempt- 

 ing to uphold it. We are not attempting to 

 overthrow the Constitution ; we are attempting 

 to uphold it. We are not attempting to inter- 

 fere with the liberty of the people, unless the 

 liberty to commit crime is the liberty of the peo- 

 ple ; we are attempting to protect and uphold it. 



" The fourth section troubles some of my 

 honorable friends very much indeed. It is said, 

 in the first place, that it is unconstitutional, 

 because it authorizes the President, in certain 

 cases named, to suspend the writ of habeas 

 corpus. I feel very clear that it is constitu- 

 tional in that respect. The Supreme Court 

 of the United States have decided, contrary 

 to what my friend from Ohio (Mr. Thurman) 

 had supposed, that the Congress of the United 

 States may delegate to the President the power 

 to determine when an exigency occurs which 

 shall call for the execution of some statute. 

 They do delegate powers constantly ; not legis- 

 lative powers, but powers to act in a contin- 

 gency which the Legislature prescribes, or pro- 

 vides for, or defines in advance. That was the 

 case under the embargo laws. The President 

 has no power to lay embargoes or to relieve 

 embargoes; he has no power to make war; 

 and yet, under the embargo laws, with uni- 

 versal acceptance in the case that was referred 

 to and shown to gentlemen the other day, the 

 Supreme Court of the United States unani- 

 mously decided that it was competent for Con- 

 gress to vest in the President the discretion to 

 determine in what contingency he should, in 

 effect, repeal the embargoes, and in what con- 

 tingency he could revive them again. So in 

 12 Wheaton is a case (Martin vs. Malt) which, 

 perhaps, I ought to refer to for a moment. 

 On the subject of exercising the military power 

 in calling forth the militia, which is, in the 

 language of the Constitution, confided to Con- 

 gress in the provision authorizing it to provide 

 for suppressing insurrections and repelling in- 

 vasions, on the very point upon which we are 

 now speaking, the Supreme Court of the Unit- 

 ed States unanimously decided that this power 

 could be rightfully vested in the Executive. It 

 Bays: 



Is the President the sole and exclusive judge 

 whether the exigency has arisen, or is it to be con- 

 sidered as an open question, upon which every offi- 

 cer to whom the orders of the President are addressed 

 may decide for himself, and equally open to be con- 

 tested by every militiaman who shall refuse to obey 

 the orders of the President ? We are all of opinion 



that the authority to decide whether the exigency has 

 arisen belongs exclusively to the President, and that 

 his decision is conclusive upon all other persons. 

 We think that this construction necessarily results 

 from the nature of the power itself. 



" And, again, which is perhaps a better au- 

 thority with my learned friends on the other 

 side, here is the opinion of a Democratic At- 

 torney-General, given to a Democratic Presi- 

 dent, on the subject of lending military assist- 

 ance to the Governor of California, on a cer- 

 tain occasion. Mr. Cushing, the Attorney-Gen- 

 eral, informed the President that 



It is the function of the President of the United 

 States, indubitably, to decide, in his discretion, what 

 facts existing constitute the case of insurrection 

 contemplated by the statutes and by the Constitu- 

 tion. 



" And he cites, to support that, the decision 

 I have just read, and the case of Luther vs. 

 Borden, the Rhode Island rebellion case, which 

 also affirms it. So that we have not only the 

 practice of the Government since its founda- 

 tion, not only the action of its Executive de- 

 partments, but two solemn decisions of that 

 tribunal of final resort which is to determine 

 such questions, that the power to determine 

 what facts constitute an insurrection when 

 powers are vested in the President, what facts 

 constitute a rebellion, what exigency shall jus- 

 tify him in suspending the laws as to embar- 

 goes, in the nature of things belongs to, or 

 certainly may by law be vested in, that de- 

 partment which gentlemen now seem to have 

 forgotten, but which the Constitution has 

 created for the protection and exercise of the 

 power of the people the President of the 

 United States. 



"Therefore, there is no good ground to 

 maintain that this provision of this bill, which 

 authorizes the President of the United States 

 to suspend the writ of habeas corpus in the 

 case of a rebellion, is open to any question as 

 to its constitutionality ; and let me suggest to 

 my honorable friend from Ohio that the case 

 of Bollman and Swartwout, which he referred 

 to yesterday, does not decide or intimate that 

 the President may not be clothed with that 

 power. It only declares that it belongs to 

 Congress to withdraw from the Supreme Court 

 of the United States, if it chooses, the juris- 

 diction to hear a writ of habeas corpus, as in 

 some cases has been done since that time. And 

 Judge Story, whose commentaries the Senator 

 read yesterday, instead of stating that Con- 

 gress has not the power to delegate that au- 

 thority to the President, speaks of Congress 

 ' authorizing ' the suspension of the writ of 

 habeas corpus, using that term." 



Mr. Bayard, of Delaware, said : " We are 

 all cognizant of the honorable Senator's ca- 



n'ty both to ask and answer questions. He 

 ere discussing a question of this gravity, 

 nothing less than whether the Congress of the 

 United States has the power to delegate its 

 high judgment and discretion, reposed in it for 

 the benefit of the people of this country, to be 



