CONGRESS, UNITED STATES. 



it ihall be Uwful for him to employ for the Mm* 

 purpose* Mich put of the Und or naval foroea of the 

 United State* at hall be judmd neoeasary, having 

 int observed all the prerequisite of the law in that 



" What ore those prerequisites of the law be- 

 fore he may call forth the militia ? They are, 

 that he shall make proclamutioi. to the insur- 

 gent* to disperse, before he can do it at all 

 under the act of 1795 to which this act of 1807 

 is an amendment. Why, air. this act has 

 nothing to do with a case like this. The Con- 

 stitution says that Congress shall have power 

 to provide by law for cal.ing forth the militia 

 to suppress insurrection. That is a power 

 granted to Congress, and in the exerc; 

 that power it has provided by law in what 

 oases the militia may be called forth, and those 

 re cases in which the Legislature of a ^ 

 if in session, or the Executive of the State when 

 Legislature is not in session, shall repre- 

 sent to the President that the insurrection 

 cannot be put down by State authority, and 

 therefore invokes the aid of the Federal < lov- 

 ornmcnt to put it down. The language of the 

 Constitution is that Congress shall have \> 

 to provide for culling forth tho militia." 



: r: Vo." 



Mr. Thiirmun: " Yen, it is." 

 Mr. Carpenter: "The Constitution says 

 that the United States shall guarantee to every 

 State a republican form of government, nml 

 m against invasion, and, when eall,-,i 

 upon in a certain way, against domestic vio- 

 It does not say the President shall do 

 it ; it does not say Congress shall do it." 

 Mr. Thurman : "I will turn to the pro- 

 D of the Constitution. It it that Congress 

 shall have power to provide for calling forth 

 the militia." 



Mr. r : " It is not a power given 



to Congress. It is a general power conferred 

 on the United States. 7 ' 



Mr. Thurman: "No matter upon whom it 

 Is oonf<-nvd. I say it is conferred upon Con- 

 grass, but no matter whether it in conferred 

 upon the Government at large. But hero is 

 the provision as I said : 



The Conxreu ihall have power to provide for 

 IHng forth the militia to execute the laws of 

 Union, iUppreM iiuurreotioM, and repel inva- 



"That is paragraph fifteen of section eight 

 of the first article of the Constitution. Th- 

 Congress U to have power to do that. You 

 will observe it only says, ' provide for Collins 

 forth the militia,' and a question was i 

 whether, under that power Driven to Congress, 

 the regular Army or the Navy might he i 

 Congress saw fit to deride that .|iicstion in 

 favor of the employment of the Army and tho 

 Navy, and therefore provided for it by this act 

 of 1807, that wherever it should be lawful to 

 rail forth tho militia, it rninht be lawful to uso 

 th regular Army or the Navy of the United 

 States. That U the act of IMff ; hut they can 

 only be used in tho same cases in which it is 



ealli 



UN 



lawful to call forth the militia; that is, to 

 execute the laws of the Tailed States, sup- 

 press insurrections, and repel invasions. That 

 is a power that belongs to Congress, and Con- 

 gress has provided for its exercise by several 

 statutes that are upon our statute-hook, hut 

 u. in, of which reach such a case as this. 



So much for tho statute cited by the Sen- 

 ator from Indiana. Now, a word with respect 

 to the argument of my friend from Wisconsin. 

 He says that the enforcement act of March, 

 1*711 believe that is the act he referred 

 to-" 



Mr. Carpenter : " I think it is." 

 Mr. Thurman : " That the enforcement act 

 of 1870 or 1871 (for there were two of those 

 acts) gives jurisdiction to the Federal courts 

 to do certain things in regard to elections, and 

 that it provides that a man's vote shall not be 

 lost because he was improperly excluded from 

 the right to vote, hut that his vote shall bo 

 counted, and that here was a question whether 

 or not men had not been improperly excluded 

 from tho right to vote, anil therefore, whether 

 their votes should not be counted, and that 

 that was u qiu-Mion which might he drawn 

 within the jurisdiction of a Federal court. I 

 grant that there are provisions in that act to 

 that effect. I objected to them at the tirao 

 tho act was undbr* consideration. I hell. 

 them to ho unconstitutional then under any of 

 the amendments of tho Constitution, as well 

 as the original Constitution. I believe so this 

 day. Kut I call the attention of my friend to 

 the point that that very act itself excluded 

 from tho jurisdiction of the court any question 

 about the election of members of a Si 

 lature and members of Congress. That very 

 net itself did not permit that question to bo 

 tried in the court of the Knifed States, and 

 therefore it is that I say that when a Federal 

 judge undertakes to decide what is the Legis- 

 lature of a State, whether he undertakes to do 

 it directly by saying that A B or C I) or K F 

 is a member of that Legislature, or whether 

 he undertakes to do it indirectly, in either caso 

 he acts without jurisdiction and in direct 

 violation of tho act of Congress under which 

 it is claimed he has the power to act." 



Mr. M,,rtoii: " If the Senator will allow me, 

 for I do not wish to reply to him at length, 

 I will say a word about this net." 

 Mr. Thurman ; " Which act? " 

 Mr. Morton: "The act of 1870." 

 Mr. Thurman: "I am perfectly willing to 

 give way for a moment, but before I do that 

 let me call the attention of the Senator from 

 Indiana to what these acts of Congress arc. 

 I read from the noted Pascal : 



By the flint act of ronjrreiw to nccvire thin pnaran. 



i.runrv us, i;nr,. ] Statute* at Larfrc, 494). it 

 is pp,vi,|,-,| (Imt in oo of iimirrection in any State 

 UL'aiiiHt the government thereof it shall he lawful I'-T 

 the President of the I'nitod States, on apj> 

 the Legislature of such State, or of tho Executive 

 w hi>n -lire cannot ho convened, to call 



forth such number of tho militia of any State or 



