194 



CONGRESS, UNITED STATES. 



rait ; bat when the question comes up, what 

 i* the Sute government in a State, then I nay 

 to that Senator that neither Congress nor the 

 President of the United States is bound in tho 

 slightest degree by that decision ; and I say 

 that upon the authority of the highest judicial 

 tribunal in this country. 



' It would be a pretty state of things indeed 

 if either the President or Congress were bound 

 in bis or their determination of what is tho 

 lawful government in a State by any such de- 

 cision as that. So far from that, the Supreme 

 Court of the United States, in Luther e*. 

 Borden, expressly held that that was a polit- 

 ical question, and that the court could not de- 

 ei ! it except simply by finding what was the 

 decision of the political department of the Gov- 

 ernment. So far from the political department 

 of tho Government being bound by the deci- 

 sion of the judicial department on the question 

 of what is the lawful government in a State, 

 the Supremo Court has said solemnly that tho 

 judicial department is bound by the action of 

 the political department, and whether it thinks 

 it right or wron? is bound to obey it. 



"Therefore, Mr. President, there is no rebel- 

 ling against the decision of this court at all. 

 Suppose that we should find that Judge Diirell 

 is wrong, and that the government that he re- 

 fuses to recognize, and that ho enjoins by his 

 decree, is the lawful government of the State 

 of Louisiana, are we bound by his decision? 

 What lawyer will pretend for a moment that 

 wo are bound by itf So far from it, the 

 moment that we speak he is bound to obey 

 oar decision and recognize that government 

 which we recognize. 



" But suppose Congress has not spoken, as 

 was the fact in the case of Rhode Island, what 

 then is the status of tho oaso ? Then the Pres- 

 ident has in the first place to act if a case 

 arises for his action, and he has to decide in tho 

 first place until Congress has spoken. When 

 he is called upon in the manner provided by 

 law he must necessarily decide, and his deci- 

 sion is higher than that of even the Supremo 

 Court of the United States itself until Confess 

 has spoken. How was it in the case of Rhode 

 Island I In tho cine of Rhode Island, Presi- 

 dent Tyler was called upon by a certain body 

 calling itself the Legislature of Rhode Island, 

 and a certain person calling himself the Gov- 

 ernor of Rhode Island, and that compelled him 

 to decide whether that Legislature and that 

 'Governor were the lawful Legislature and Gov- 

 ernor of Rhode Island, or whether the Dorr 

 Legislature was the proper Legislature and 

 I) irr the proper Governor. Congress had not 

 spoksn upon the subject 



Here WM the President called upon in pur- 

 suance of this very act of 1795 to call forth thy 

 militia to suppress that rebellion against tho 

 ' BUU government Ho was compelled to de- 

 < cide in the first inntance which was the State 

 government. If Congress had decided the 

 question, the President would have been bound 



by that decision ; but Congress not having de- 

 : it, the President had to decide it, and he 

 did decide it, and decided in favor of tin- char- 

 ter government ; and, when tho question came 

 before the Supreme Court of the United States, 

 that decision of President Tyler was held by 

 that court to be binding upon the court, and 

 they could not reverse it They held that the 

 derision by the political department bound the 

 court" 



Mr. Carpenter: " Nobody questions that." 



Mr. T bur man: "Very well. Now, what was 

 tho case before President Grant? I admit if 

 there were two governments in Louisiana, 

 and one or both of them had called upon Pres- 

 ident Grant under this act of 1795, repn 

 ing that there was insurrection in that State, 

 or domestic violence that could not be put 

 down by State authority, in tho absence of 

 any decision by Congress as to which one of 

 the two governments was the lawful govern- 

 ment of the State, President Grant would have 

 been bound to decide that question, and ho 

 would liavo been bound to decide it by his 

 own opinion. Ho was no more bound by 

 Durell's opinion than the President of France 

 or the Queen of England would be. Tho idea 

 that this great power with which the President 

 ia invested, necessarily, in the first instance, 

 before Congress has spoken, of determining 

 which is t lie lawful government in a State, can 

 bo taken out of his hands on the ground that ho 

 is to execute the decree of some inferior court, 

 is monstrous; no such thing can be maintained 

 at all. On the contrary, his decision would be 

 binding even upon tho Supreme Court of tho 

 United States, as President Tyler's wa*." 



Mr. Carpenter : " Will my friend permit me 

 to interrupt him for one moment? " 



Mr. Thurman: "Certainly." 



Mr. Carpenter : " Do I understand him to 

 maintain that, if, upon the mere question of 

 whether A or B was duly elected Governor 

 of tho State of Louisiana, that question were 

 to bo heard and tried in a court of justice and 

 final judgment passed upon it in favor of A, 

 and ho was thereupon inaugurated, the Presi- 

 dent would be justified in determining that tho 

 court was wrong and that B was the Governor, 

 and overthrow A and establish B ? " 



Mr. Thurman : " I do not undertake to say 

 that, in a case in which a court has competent 

 jurisdiction to try the conflicting titles of A 

 and B to an office, the President would not be 

 bound by tho decision of a court having com- 

 petent juri~dictinn to decide that question as a 

 more question between A and 13 as to the right 

 to that particular office." 



Mr. Conkling: "What does the Senator 

 mean by 'competent jurisdiction?'" 



Mr. Thurman: "I mean this: we have 

 law in the State of Ohio, and I presume yon 

 have in the State of New York, which nuthnr- 

 izos a contest of elections, ami provides tho 

 tribunal to try it. In Ohio tho Senate is the 

 tribunal to decide a contested election of Gov- 



