CONGRESS, UNITED STATES. 



.pa, than the merging of the powers of 

 . v.ss with those ol the Cliiuf Magistrate as 

 ! u in : In - ruM. 



1 ti.<>-u submit, Mr. President, that proteo- 

 . m domestic violence' under the fourth 

 ii ul' tin- fourth article appeals to the arm, 

 ;' the nation in an emergency, and 

 is an appeal to tin- President, because the ex- 

 e power is vested in him and it is execu- 

 tive power tliut is required ; and because he is 

 OommAnder-in-Chief of the Army and Navy, 

 he i.i bound to see the laws faithfully executed ; 

 mid bemuse it is the United States and not 

 ' that guarantees against dotnoHtiu 

 violence, Congress cannot take that power from 

 the I'r.-Mclont. Itishis. Congress may regulate 

 it, may say he shall or shall not use the militia, 

 he shall or shall not use the Army or the Navy ; 

 it may take from him all means of performing 

 his constitutional duty, but when he has the 

 means he must perform it. 



" I do not dispute that Congress may also 

 execute this guarantee. There is, under the 

 :itution, a mixture as well as a division of 

 powers. The President acts legislatively when 

 he approves or vetoes a bill ; the Senate acts 

 judicially in impeachments ; the House of Rep- 

 resentatives acts as an inquest in its presenta- 

 tion of an impeachment ; and the Senate shares 

 the executive power in the matter of appoint- 

 ments and treaties; but the President in his 

 sphere is as independent of Congress as Con- 

 gress is of him. lie may nominate, and with 

 the advice of the Senate appoint, to office ; he 

 may convene Congress, and under certain cir- 

 cumstances may adjourn it ; he may receive 

 public ministers; he may make treaties, sub- 

 ject to ratification by the Senate; he must see 

 to it that the laws are executed, and he must 

 fulfill the guarantees of the Constitution when 

 that duty appropriately belongs to him. 



" These powers cannot be taken from him. 



" Congress has sometimes attempted to en- 

 croach upon these powers. It tried to limit 

 the pardoning power, but the Supreme Court 

 sustained the President. In the case known 

 as Ex. parte Garland, found in 4 Wallace, 380, 

 the court says : 



Congress can neither limit the effect of Aw pardon, 

 nor exclude from its exercise any class of offenders. 

 The benign prerogative of mercy ctumot be fettered 

 by any legislative restriction. 



"And again in 13 Wallace, 128, in a case 

 arising under what is known as Drake's amend- 

 ment, the court holds a similar doctrine. The 

 House of Representatives, in 1796, attempted 

 to limit the President's power to make treaties, 

 and by a resolution declared that where a 

 treaty depended for the execution of any of its 

 stipulations on an act of Congress, it was the 

 right of the House to deliberate on the expedi- 

 ency or inexpediency of carrying such treaty 

 into effect. The case in question was a treaty 

 with Great Britain. 



"Washington, in a message of March 80, 

 1706, denies such power; and Kent (volume i., 



page 280) says : ' The House of Representatives 

 is not above (he law, and has no dispensing 

 power. The argument in favor of the conclu- 

 sive efficacy of every treaty made by the Presi- 

 dent and Senate is so clear and palpable as to 

 carry conviction throughout the community.' 

 We most be careful, if we intend to preserve 

 this Government, how the legislative branch, 

 which is by far the most powerful, encroaches 

 ou the executive or on the judiciary. 



" Governor Kellogg was right in making his 

 application for aid to rest on the Constitution 

 rather than upon any statute. 



" Hut I submit that it is perfectly clear that 

 the President was by statute also authorized 

 to afford this protection. The statute of 1705 

 authorizes the President to use the militia in 

 case of an insurrection in any State against the 

 government thereof on the application of the 

 Governor or Legislature. 



" The act of 1807 substitutes the Army for 

 the militia, and goes further than the act of 

 1795, and authorizes the President to use the 

 Army not only in cases of ' insurrection, 1 but 

 in cases of ' obstruction of the laws either of 

 the United States or of any individual State.' 

 This certainly was a case of obstruction of the 

 laws of an individual State. I have that con- 

 fidence in the legal judgment of the Senator 

 from Wisconsin, that I am induced to believe 

 that he will agree with me that the statute of 

 1807 applies directly to this case. 



" Now let me consider the second proposi- 

 tion, namely, that the United States is not au- 

 thorized to order a new election in Louisiana. 

 The Constitution provides that the United 

 States shall guarantee to each State govern- 

 ment peace, tranquillity, freedom from an- 

 archy, and disorder ; second, its guarantee is 

 that each State shall have a government in 

 form republican ; that it shall not be in its 

 framework an aristocracy, where authority 

 is vested in a privileged order ; that it shall 

 not be a democracy, where the people in per- 

 son exercise the sovereign power ; the govern- 

 ment shall not be a despotism, where the ab- 

 solute power is exercised by a man or men 

 without constitutional restraint ; but that the 

 government shall be in form republican, where 

 the supreme power is intrusted to representa- 

 tives elected by the people. 



u The Constitution, says and whether right 

 or wrong we are controlled by it, and it is be- 

 yond all argument that we are only to guar- 

 antee a republican form of government with 

 order and tranquillity ; and when we insist that 

 full and accurate significance shall be given to 

 the word ' form ' as it occurs in this provision 

 of the Constitution, we are not sticking in the 

 bark, we are not superficial, but we are poing 

 to the very root of the matter. We are claim- 

 ing that the Federal Government only has to 

 do with the form, leaving the substance, the 

 administration of the form of government, to 

 the people of the States. Those who would 

 ignore this word 'form' from the restricted 



