CONGRESS, UNITED STATES. 



193 



debate to arise or any such question to come 

 np in the Senate to-day. I repeat, in answer 

 to my friend from Wisconsin, all I have to say 

 is that by your own act, the enforcement act 

 of 1871, if you say it is constitutional, but 

 which with great respect for yon I do not be- 

 lieve is constitutional at all, you vested certain 

 jurisdiction in the Federal courts, and you ex- 

 pressly exempted from that jurisdiction the 

 case of members of a State Legislature ; and 

 yet this judge in New Orleans by his decree 

 and his action there has inaugurated a Legisla- 

 ture in that State, without official returns of 

 their election, confessedly without votes cast 

 which elected them, and that government is 

 said to be the government of one of the States 

 of this Union. In other words, one man there, 

 whose court you can abolish to-morrow if you 

 see fit to do it, has undertaken to set up by 

 his own sovereign will and power just such a 

 government as he sees fit to inaugurate in that 

 State." 



Mr. Carpenter: "I am not keen enough to 

 know precisely what is the point in dispute 

 between that Senator and myself in regard to 

 these two provisions of the Constitution ; but 

 I know there is a serious difficulty between 

 us from the zeal and warmth with which he 

 encountered what I said on the subject. With- 

 out attempting to answer his argument on that 

 point, which I certainly did not understand, 

 and do not now, I will simply content myself 

 with restating the provisions of the Constitu- 

 tion to which I referred. I understood him to 

 be referring to the provision of the Constitu- 

 tion which guarantees a State against domestic 

 violence, and to say that the provision was 

 that Congress might legislate to call out the 

 militia for such purpose ; and that I stated to 

 be a mistake." 



Mr. Thurman : " I was not referring to that 

 provision at all." 



Mr. Carpenter: "Well, I understood that. 

 At all events that provision of the Constitution 

 is in these words: 



The United States shall guarantee to every State 

 in this Union a republican form of government, and 

 hall 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. 



" It is not there referred either to Congress or 

 the President, nor are the means indicated by 

 which it is to be done. It is simply laid as a 

 general duty upon the United States to protect 

 a State, when its interference is called for, 

 against domestic violence. Whether it is to 

 do it by the Army or by the militia, or by whnt 

 other mean^, is not at all referred to. Con- 

 gress of course has power to legislate on this 

 subject, because the Constitution laying this 

 general duty upon the Government, the last 

 clause of the legislative article empowering 

 Congress to pass all laws needful and proper 

 to carry into execution all the powers con- 

 ferred upon the General Government, the case 



VOl. XIII. 13 A 



is complete. But the section to which the 

 Senator did refer, I submit to him, does not 

 refer to that case at all. Here, in the first 

 place, in the legislative article, Congress has 

 power to raise armies and provide a Navy, etc. 

 Then comes an additional provision : 



To provide for calling forth the militia to execute 

 the laws of the Union, suppress insurrections, and 

 repel invasions. 



" Insurrections against whom, and invasions 

 of what ? The United States ; to suppress an 

 insurrection in the District of Columbia, to 

 suppress an insurrection in unorganized terri- 

 tory beyond the Mississippi, anywhere subject 

 to our jurisdiction. When it has swollen to 

 such dimensions that the Army and all the 

 means in the power of the President are un- 

 equal to meet it, Congress may provide for 

 calling forth the militia. That has no refer- 

 ence whatever to the domestic violence against 

 a State, which is provided for in a different 

 place and under different circumstances. 



" I do not know that there is any thing in this 

 statement that the Senator controverted, and 

 I did not understand at the time how his view 

 of the subject differed from mine, but I saw 

 they were very different, from the warmth 

 with which he encountered what I said." 



Mr. Conkling, of New York, said : " The Sen- 

 ator from Ohio says there was a mistake on a 

 jurisdictioual question and he proposes to re- 

 bel on that against the court; he proposes not 

 only rebellion for himself, but that even the 

 parties and privies in the suit shall refuse to 

 abide by it. Who were the parties to this 

 bill? Who were the persons upon whom the 

 decree is to act ? Who is the officer to execute 

 the mandates of the court ? The officer is the 

 marshal with his subordinates, and the parties 

 to the suits and their privies are the persons 

 whom the Senator refers to when he talks 

 about upsetting one government and erecting 

 another. The argument of the Senator from 

 Ohio comes to this : the decree or interlocu- 

 tory order of a Circuit Court of the United 

 States is not to be respected even by the min- 

 isterial officers of that court and not to be 

 binding upon the parties and privies to the 

 suit, because, he says, the judge has made a 

 mistake upon a jnrisdictional question, not 

 arising fundamentally, not as if he had taken 

 jurisdiction of a case not cognizable in the 

 courts of the United States, bnt upon a jnris- 

 dictional question of secondary character aris- 

 ing incidentally in the progress of a case of 

 which confessedly he had rightful jurisdiction." 



Mr. Thurman : " This is really a very simple 

 question when you come to examine it proper- 

 ly. I shall not go into any discussion about 

 political parties and their respect for courts at 

 all ; but, when the Senator from New York 

 says that I propose to rebel against the decision 

 of courts, and to tell the parties and privies to 

 a suit to pay no respect to them, he quite mis- 

 understood me in one respect, for I said not 

 one word about the parties or privies to the 



