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CONGRESS, UNITED STATES. 



which, not Congress, but the President is to 

 be the judge. There is where our difference 

 is. And now he cites the act of 1795 as proof 

 of the fact that the President may be invested 

 with a power which primarily rests in the 

 legislative department of the Government. 

 But that is an entire mistake. The act of 1795 

 did not provide for the suspension of the writ 

 of habeas corpus at all. What did it provide? 

 Let me refer to the first and second sections 

 of that act : " 



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 lor the 

 President 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 ^faction 

 as he may judge necessary to repel such invasion, 

 and to issue his orders for that purpose to such officer 

 or officers of the militia as he shall think proper. 



"That is not the exercise of the power 

 under the guarantee clause, but it is the exer- 

 cise of another power in the Constitution, the 

 power to call forth the militia: " 



The Congress shall have power to provide for call- 

 ing forth the militia to execute the laws of the Union, 

 suppress insurrections, and repel invasions. 



"That is one of the powers of Congress 

 under section eight of the first article. 



"Now, what is that power? It is not a 

 power, as in the case of the suspension of the 

 writ of habeas corpus, to decide when the pub- 

 lic safety requires the suspension of the writ. 

 It is not expressed in such words as require 

 Congress to decide whether the casus has 

 arisen or not ; but it is a power to provide 

 to provide how? to provide by law in anti- 

 cipation of such a case ; and therefore under 

 that Congress might well enough provide for 

 a calling forth the militia. It is a curious 

 thing : so jealous were our fathers of the rights 

 of the States that the Constitution did not 

 give Congress the power to call forth the mili- 

 tia as a matter of course, but only the right to 

 call them when it was necessary, as this clause 

 specifies, to execute the laws of the Union, 

 suppress insurrection, and repel invasion. But 

 there is the power to provide for calling them 

 forth whenever it may be necessary. It is 

 necessary to execute the laws of the Union all 

 the time whether Congress is in session or is 

 not. It is necessary to provide to suppress 

 insurrection at all times whether Congress is 

 in session or not. It is necessary to provide 

 for repelling invasion at all times whether 

 Congress is in session or not. But it is not 

 necessary to provide for the suspension of the 

 writ of habeas corpus at all times whether 

 Congress is in session or not; and so jealous 

 were our forefathers of that that they did not 

 say that Congress should have power to pro- 

 vide for the suspension of the writ of habeas 

 corpus in case of insurrection or invasion. 

 There is no such language as that, that Con- 

 gress shall have power to provide for the sus- 

 pension of the writ of habeas corpus; but the 

 words are mandatory, and negative, and pro- 



hibitory that the privilege of the writ shall 

 not be suspended unless when in cases of re- 

 bellion or invasion the public safety shall 

 require it. It is a very different thing from a 

 provision that Congress may provide for call- 

 ing forth the militia to execute the laws of 

 the Union which must be executed all the 

 time, or to suppress insurrections which must 

 be suppressed whenever they occur, or to re- 

 pel invasions which must be repelled when- 

 ever they happen. 



" So much for that. Now we come to the 

 next clause:" 



And in case of insurrection in any State against 

 the government thereof, it shall be lawful for the 

 President of the United States, on application of the 

 Legislature of such State, or of the Executive (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 suffi- 

 cient to suppress such insurrection. 



"We have seen that that relates to insur- 

 rection, and comes under the same clause of 

 the Constitution, ' to provide for calling forth 

 the militia to execute the laws of the Union, 

 suppress insurrections, and repel invasions;' 

 and that refers not only to insurrection taken 

 in connection with another clause of the Con- 

 stitution to suppress insurrections against the 

 General Government, but also insurrections 

 against a State, but with this difference : that 

 in regard to insurrection against a State there 

 is no power (and this very act is drawn upon 

 that theory) to call forth the militia where 

 the insurrection is simply against the author- 

 ity of a State and not against the Federal Gov- 

 ernment, unless the State shall require it. 

 Let us turn, therefore, to the guarantee clause 

 of the Constitution : " 



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 tbe Legislature, or of the Executive 

 (when the Legislature cannot be convened), against 

 domestic violence. 



'"The United States shall guarantee,' it 

 4 shall protect each of them against invasion.' " 



Mr. Carpenter: "Whether Congress is in 

 session or not? " 



Mr. Thurman: "Yes, whether Congress is 

 in session or not, and in that case whether the 

 State applies for it or not ; but, so far as insur- 

 rection against the State is concerned, it is 

 only to act in case the Legislature when in 

 session, or the Executive when the Legisla- 

 ture cannot be convened, shall apply to the 

 Government of the United States. This pro- 

 vision of the Constitution makes the applica- 

 tion by the Legislature of a State or by the 

 Executive of a State conclusive evidence of 

 the fact that there is such an insurrection. 



" But, Mr. President, I was speaking of this 

 clause : " 



The privilege of the writ of habeas corpus shall not 

 be suspended, unless when in cases 01 rebellion or 

 invasion tbe public safety may require it. 



"We admit that the power to suspend is a 



