210 



CONGEESS, UNITED STATES. 



red? When a court has discretionary 

 power there is no appeal from the exercise of 

 its judgment. So here. There is a discretion 

 after the evidence is produced. 



" Mr. President, does the public safety, the 

 very existence of one of the States or of the 

 Government, require the interposition of the 

 authority of Congress for the suspension of 

 this great writ of right, so dear to every Amer- 

 ican heart, and the exercise of this dangerous 

 power ? It is called by the English commen- 

 tators a bulwark of liberty. What sort of lib- 

 erty is that which can be taken from an indi- 

 vidual by the ipse dixit of one man ? Is the 

 habeas corpus, when it can be suspended at 

 any time, a bulwark of American liberty? 

 What security has the citizen for his liberty or 

 freedom from incarceration, when Congress 

 may invest the President at any moment, in a 

 time of profound peace and quiet, when there 

 is no tumult and no combination to overturn 

 or to resist the laws, with the power to sus- 

 pend this great writ ? What security is there 

 for personal liberty when such a power is 

 placed in the hands of any man? Why, sir, 

 Congress could not exercise the power now, 

 constitutionally, itself, and if it cannot exer- 

 cise the power itself, how can it transfer the 

 authority to another ? 



The bill was reported to the Senate without 

 amendment. 



Mr. Carpenter, of Wisconsin, said: "Mr. 

 President, if I were ambitious to make a 

 speech on this question, I should select some 

 occasion other than this. In these little hours 

 of the gray morning, when half the Senators 

 are home and three-fourths of the other half 

 are fast asleep, and the galleries are empty 

 and everybody weary, I certainly shall not 

 enter on any philippic against Democracy, 

 upon any discussion of the general political 

 questions of the day, or, indeed, upon any 

 pretence make a speech on any subject what- 

 ever. Nevertheless, I intend to vote for this 

 bill, and it is a mere matter of justice to my- 

 self and my constituents that I should state 

 and place upon the record in language as dry 

 as a stick the reasons which induce me to cast 

 that vote. The Constitution provides that" 



The United States shall guarantee to every State 

 in this Union a republican form of government, and 

 shall protect each of them against invasion, and, on 

 application of the Legislature, or of the Executive 

 (when the Legislature cannot be convened), against 

 domestic violence, 



"Congress, in 1795, "while Washington was 

 yet President, and he approved the act, passed 

 an act the first section of which is as follows : " 



That whenever the United States shall be invaded, 

 or be in imminent danger of invasion from any for- 

 eign nation or Indian tribe, it shall be lawful for the 

 I 'resident of the United States to call forth such 

 number of the militia of the State, or States, most 

 convenient to the place of danger, or scene of action, 

 as he may judge necessary to repel such invasion, 

 and to issue his orders, ibr that purpose, to such 

 officer or officers of the militia as he shall think 

 proper. And in case of an insurrection in any State 



against the government thereof; it shall be lawful 

 for the President of the United States, on applica- 

 tion of the Legislature of such State, or of the Execu- 

 tive (when the Legislature cannot be convened), 

 to call forth such number of the militia of any other 

 State or States as may be applied for, as he may 

 judge sufficient to suppress such insurrection. 



" That act is a construction placed by the 

 very framers of the Constitution upon the 

 provision of the Constitution which I have 

 read. The power given by the Constitution 

 is not given in terms to the legislative depart- 

 ment nor the executive department. It is 

 conferred upon the Government of the United 

 States in general, and the last clause in the 

 section which declares the power of Congress, 

 authorizes Congress to pass all laws which 

 shall be needful and proper to carry into exe- 

 cution the powers which this Constitution 

 confers upon this Government. In execution 

 of this Constitution, Congress passed that law 

 vesting this discretion in the President to call 

 out the militia for the purposes specified in 

 this act. That is the construction of the very 

 framers of the Constitution. Now, the other 

 section is : " 



The privilege of the writ of habeas corpus shall not 

 ]>e suspended, unless when in cases of rebellion or 

 invasion the public safety may require it. 



" The writ of habeas corpus shall not be sus- 

 pended, etc., by whom? Not by Congress, 

 not by the President, but, by plain implication, 

 by the Government of the United States. The 

 power is conferred in general upon the Gov- 

 ernment to suspend this writ in the cases men- 

 tioned in this section. How is that power to 

 be executed ? Certainly under and in pursu- 

 ance of law. Congress may sit here the year 

 round and judge of all these emergencies, and 

 suspend the writ upon each day when the 

 emergency happens to be in full force ; or it 

 may, following the precedent of the act of 

 1795, confer this power upon the President to 

 suspend the writ when the contingency speci- 

 fied in this section shall happen. In one case 

 as in the other the power is delegated by 

 Congress, and it is clearly within that power 

 which is given to Congress to make all laws 

 needful and proper for the execution of every 

 power conferred upon the General Govern- 

 ment. Now, the act before us which we are 

 continuing is this I will ask the Secretary to 

 read the fourth section of the act of 1871." 



The Chief Clerk read the fourth section of 

 the act of April 20, 1871, as follows: 



SEC. 4. That whenever in any State or part of a 

 State the unlawful combinations named in the pre- 

 ceding section of this act shall be organized and 

 armed, and so numerous and powerful as to be able, 

 by violence, to either overthrow or set at defiance 

 the constituted authorities of such State, and of the 

 United States within such State, or when the consti- 

 tuted authorities are in complicity with, or shall con- 

 nive at the unlawful purposes of such powerful and 

 armed combinations; and whenever, oy reason of 

 either or all of the causes aforesaid, the conviction of 

 such offenders and the preservation of the public safe- 

 ty shall become in such district impracticable, in every 

 such case such combinations shall be deemed a re- 



