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cedure shall be adopted in Maryland, which I do not believe to be sanctioned by the Constitution, but at variance with the plain principles of the Constitution, and with the essential rights of republican liberty.

The suspension of the privilege of the habeas corpus by executive authority is a violation of the principles of public freedom which have been consecrated for centuries. These principles were dear to our Anglo-Saxon forefathers before the the period of Magna Charta. From the days of Magna Charta, which, seeking to restore ancient rights, provided that no freeman should be taken or imprisoned without the lawful judgment of his peers, or the law of the land, down to the declaration of our independence, that principle has been dear to the freemen of England and America. From Magna Charta, about the year 1200, down to the revolution of 1668, there was a constant struggle between the people and the Crown for the preservation of this privilege, the only one which guaranties personal freedom anywhere-the freedom from being arrested and imprisoned, except by lawful process. Without this guarantee, no Government can be called free; no people can feel that sense of security which is indispensable to true liberty; and all the boast of constitutional barriers to despotism are utterly idle and vain.

I will not undertake to describe the struggles between the people and the monarch throughout that long period. We know that the power of arbitrary imprisonment was an enormous engine of oppression, and was most tyrannously used. The Commons of England resisted it in all its phases; and at last, even in the time of the despotic Stuarts, succeeded in restraining the executive authority and snatching from it this pretended power to arrest upon the King's command without process of law.

In the time of Charles I, the Petition of Right, accepted and signed by the King when the people of England were led by an assembly of statesmen, declared these arbitrary imprisonments to be illegal, and thus secured, as was supposed, a return to the great rule of Magna Charta.

We know, too, sir, how royal power, with judicial minions depending upon its pleasure, contrived to avoid, evade, or delay the operation of that rule. De Lolme tells us that the case of an obscure individual in the reign of Charles II led to another successful struggle between the Commons and the Crown. One Jenks, a plain citizen, was charged with uttering mutinous language at a meeting in Guildhall, where he had moved a petition to the King for a new Parliament. For this he was illegally committed by order of the privy council, and detained for two months. This violation of Anglo-Saxon right stimulated that noble struggle of the people which resulted, in the thirty-first year of Charles II, in the passage of the habeas corpus act, which defined the right of the citizen to judicial relief from illegal imprisonment, made the duty of the judge imperative, and imposed a heavy pecuniary penalty upon him for denying it. This act only sought to secure the rights of the citizen which honest judges, even before the judicial tenure was made independent of royal authority, had affirmed. It was in the reign of Henry VI that an English judge, when asked if it was not lawful for one to arrest a party upon the command of the King, said "No; if I were to arrest a man even in the presence of the King and by his command, nothing could save me from the action of false imprisonment which the party would have against

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Then, sir, the declaration of rights and the bill of rights, in the time of William III, consecrated this principle; and the independence of the judiciary made it impregnable; and from that day to this, never has there been in England a suspension of the privilege of habeas corpus, except by the voice of Parliament, whose omnipotence compasses everything done by legislative authority.

There have been many occasions when it has been deemed necessary in Great Britain to suspend the privilege of the habeas corpus. It was suspended during the time of William III, and of Anne, a period of great intrigue, when the validity of the settlement of the Crown, at the revolution, was vehemently disputed; during the reign of the Georges, when the Scotts' rebellion of 1715 and 1745 took place; during a portion of the stormy periods of the French revolution; in Ire

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land during the great rebellion of 1798; and upon the occasion of the great riots which followed the peace of 1815; and its last suspension, I believe, was in Ireland in 1848, during what was called Smith O'Brien's rebellion.

It is well to observe how the English nation, attached as they are to the form of monarchy, but great and glorious in maintaining their freedom against executive authority at all times and against all odds, have preserved that principle; and when Parliament has suspended the privilege of habeas corpus, how carefully the law has been guarded. In passing laws for this purpose they have always limited the time during which the parties arrested for highly treasonable practices, or suspicion of them, may be detained without bail or mainprize; and in the bill passed in 1848, during the last Irish rebellion, they went further, and required that such detentions must be of persons taken on warrants signed by the Lord Lieutenant of Ireland, or by six counselors of the privy council, or their chief secretary. They require, further, as a guard for the liberty of the subject, that a copy of the warrant thus to be issued shall be transmitted to the clerk of the Crown for Dublin, and filed by him in the office of the pleas of the Crown in and for the city of Dublin. They do not intrust to inferior military officers, even in times of rebellion, this discretion, so liable to abuse, for they know and acknowledge that if this inestimable privilege is liable to be suspended by the will of one individual, it is subject, of course, to the caprice, the passion, the malignity, and foily of the party, whosoever he may be. How much more is it liable to these influences-unjust, unholy, and infamous-when it may be exercised by a subordinate officer, no one knows who, for an indefinite period, and without any public evidence of the order under which the odious arrest and imprisonment may be effected, as seems to be the case with us in this land of republican freedom and written Constitution, ordained for the purpose, among others, of securing the blessings of liberty to the people of the United States and their posterity.

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pended in certain limited cases, was to be suspended only by legislative authority. The Constitution, when it declares that the privilege of the writ of habeas corpus shall not be suspended except when in cases of rebellion or invasion the public safety may require it, does not describe the sort of writ which is meant, because it was well known that every intelligent freeman understood only that one writ of habeas corpus, which was intended for the protection of the personal liberty of the subject or citizen. The Attorney General, in an opinion which I see he has given to the President, asks the question, which one of the many writs of habeas corpus it was? as if any intelligent man, as if he himself, ever doubted which it was. Who supposed that the privilege alluded to in the Constitution meant the habeas corpus ad respondendum, or the habeas corpus ad testificandum, or any of the others, which are not worth a button now, being superseded by other processes? Whoever dreamed, what lawyer, what commentator, what intelligent politician, what statesman, ever dreamed that any other habeas corpus was intended by that clause of the Constitution, than the habeas corpus ad subjiciendum, which is the only remedy for freemen against tyranny and oppression, let it come from individuals out of power or individuals in power?

Our fathers, in the amendments to the Constitution, guarded against the very possibility of any abuse of this sort, as they supposed, when they declared, in the fifth amendment to the articles of the Constitution, that no man should be deprived of his liberty without due process of law. When they put into the Constitution the provision in regard to the habeas corpus, they did so with the full knowledge of what it was in England at the time when our sturdy ancestors settled in America, and what it was in all the States of the Union when the Constitution was made. They knew that it was the great bulwark of personal liberty there and here-the right of rights, as the Senator from Kentucky properly called it. A writ of right it is, and a right of rights it is, and without it we have no rights; and its violation by executive authority is just as much to be tolerated as a violation of any other constitutional principle, no matter how vital and how sacred it may be, if anything can be considered more sacred to freemen than personal liberty.

operation. It left that to Congress; and Congress very properly, with a full understanding of the

Sir, in my own State of Maryland, where this privilege has been suspended, I cannot, in most instances, trace the order of arrest to any act of the President, or of General Scott, or of General Banks, or of any superior officer. I have, in some cases, where the parties were men of peculiar Besides, sir, the Constitution, while it recogposition, traced it to General Banks, or his pred- nizes the right of every freeman in the United ecessor; but in general we cannot trace it. States to the writ of habeas corpus for relief against major of New York militia, in one case, whose imprisonment, for deprivation of personal liberty name I do not remember, and probably shall never by any restraint upon it, does not provide the hear again; some person even of less authority-machinery by which that writ shall be carried into a captain of militia, in one instance, from some other State-has arrested a party; and these arrests have been made, not upon any lawful assign-subject, at its first session, I believe, passed the able cause; not by any warrant for which the party may be held thereafter responsible; not by the ordinary superior military authority, nor upon any suggestion that authorized the suspicion that the party was guilty of practices treasonable in their nature or dangerous to the Government, but, as I believe most firmly, upon intimations conveyed by base and unprincipled men, who, to gratify private malignity and personal or political hostility, have rendered persons far more respectable than themselves, and quite as loyal too, the victims of this tyrannous oppression. What is tyranny, sir, if we may not thus designate injustice practiced upon men, whether communities or individuals, by illegal and irresponsible authority? That is the very highest and the very worst tyranny, in my judgment; and it is that for which I object to the suspension of the habeas corpus by executive authority at this time.

Mr. President, we thought when we were adopting our Declaration of Independence, that we were preserving all the principles of Anglo-Saxon liberty. It was because of the violation of those principles that we entered into the controversy with our mother country. One of the causes of complaint against George III in the Declaration of Independence was, that he had affected to render the military independent of and superior to the civil authority; and when we adopted the Constitution of the United States, it was no new thing with us to declare that the privilege of the writ of habeas corpus should not be suspended, except when in cases of rebellion or invasion the public safety should require it; and it was not a new thing with us that that privilege, thus authorized to be sus

habeas corpus act, by which jurisdiction was given to the courts of the United States, on that subject; and the Supreme Court of the United States have said that we must look to the common law for the construction of it. The right is therefore both a constitutional one and a statutory one. Shall I be told that a statutory right can be taken away except by a statute? Who has the right to take away, either permanently or temporarily, the authority of the courts upon that subject? It is legislative in its character, and it must be by legislation that it shall be repealed, and by legislation that it shall be suspended, if at all. Suspension of a law is but a temporary repeal of it. It is therefore legislative in its character, and cannot be referred to the power of the Executive, without confounding these powers of government, which it was our special object to keep separate and distinct. It was a legislative power in England. Why is it to be pretended that it is an executive one in republican America? It is beyond the power of the Crown under a monarchy; and became so after long and arduous struggles of the people. Why should it at once elude the legis lative authority here, and settle down into the hands of our Executive, without a word in the Constitution to indicate such a departure from the best examples of liberty set us by our English forefathers? You will find, upon referring to the Constitution, that the provision is found in the first article, which relates to the powers of Congress; and in that section of it which puts prohibitions upon Congress. I have heard it said that there are other things than prohibitions upon the Congress in that ninth section of the first

article; but whoever looks at it carefully will see that such is not the fact; that they are all prohibitions upon Congress; and that it is not possible to imply, from the fact that some of them look to other branches of the Government than Congress, that therefore this may be assumed to be an executive power.

There are eight clauses in this ninth section of the first article. The first relates to the prohibition upon Congress as to the migration or importation of certain persons prior to the year 1808. The second is the clause in question, which we are now considering. The third relates to bills of attainder. Of course, only Congress could pass a bill of attainder; and the prohibition against passing a bill of attainder is a prohibition upon Congress alone. The fourth relates to capitation or other direct taxes. The fifth to duties upon articles exported from any State. The sixth declares that no preference shall be given, by any regulation of commerce or revenue, to the ports of one State over those of another. All these are prohibitions upon the power of Congress. The seventh, it is said, however, is not a prohibition upon the power of Congress. This provides that

"No money shall be drawn from the Treasury but in consequence of appropriations made by law; and a regular statement and account of the receipts and expenditures of all public money shall be published from time to time."

The latter part of this, clearly, is an injunction on Congress; the first part of it would be an injunction on the Executive as well as on Congress. In regard to this, we must remember that this clause, which is said not to be a prohibition upon the powers of Congress, was not in the original draft of the Constitution; it was brought in by the subsequent report of a committee, very late in the session of the convention. The whole clause was inserted in this ninth section, to which, indeed, it is appropriate; for it contains an injunction upon Congress to make annual publications of the receipts and expenditures; and it does, in effect, prohibit their allowing the purse to go into the unfettered control of the Executive, but requires them to direct, by appropriations, the purposes to which the public treasure, of which they are the guardians, shall be applied. The last clause of this section, the eighth, is, undoubtedly, a prohibition upon Congress. "No title of nobility shall be granted by the United States," &c. Unless it be contended that our President has royal prerogatives, and is like the King of England, the fountain of honor, this prohibition cannot be supposed to be intended to be on him; and the permission in the last part of the clause is expressly to Congress to consent to the acceptance, by an officer of the United States, of any present, emolument, &c., from any king or State.

These are the whole of the eight clauses in that ninth section of the first article, and all relate to the power of Congress; so that, while it is legislative in its character, and cannot be anything else than legislative-it cannot be executive, for the simple duty of the Executive is to see that the laws are executed, not to make them, nor to repeal them, nor to suspend them. While, therefore, it is legislative in its character-legislative as to the place in which it is put by the Constitution, it is also legislative for another reason, which may be inferred from the Constitution. The second article of the Constitution describes the office of the President of the United States, gives his executive powers and his duties; and not one word do we see there of any authority to him to suspend the privilege of this writ, nor anything from which, by the most strained and forced construction, it can possibly be implied. So that, if we are to find any authority for the suspension, by mere executive power, of a constitutional provision enforced by legislative enactment, we must look to some higher law than the statutes of Congress or the Constitution of the United States.

I find, sir, in the letter addressed by the Attorney General of the United States to the President, that there is a great deal said about coördinate branches of the Government, and the unity and activity of the Executive, and about the power which the President may, under an act of Congress, exercise in the use of the force which the law puts at his command for public purposes; and we are gravely told that the President may use the Army of the United States to eject intruders-squatters-from the public lands; as if

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well may you justify the President for breaking into the Treasury and taking from it all the millions and the very last dollar in it, not in pursuance of appropriations made by law, but without appropriations, and in the face of appropriations made for other purposes, that he may apply it as he thinks needful; as well may you do that, under the plea of necessity, as justify the suspension of the habeas corpus under this plea. I incline to think that the necessity in this latter case would often be much stronger than it would be in regard to the suspension of the personal right of the citizen. Indeed, sir, the greatest danger is to be apprehended from infractions of the law which seem to be sanctioned by good motives. It is not easy in other cases to make breaches in the Con

there were any analogy between that case and
this; the one being the case of power given under
a statute of Congress, the Legislature conferring
the power upon the President expressly, not in
violation of any principle of the Constitution, but
in subordination to it; and the other a case in
which they have conferred no such power, and
where they cannot confer any such power. For I
not only hold that the suspension of the constitu-
tional and legal provisions in regard to the habeas
corpus is not executive in its character, and can-
not be exercised by the President, but that Con-
gress itself cannot make the exercise of that power
of suspension legal by any one else. It is their
own power. It is intrusted to them exclusively
as one of their legislative functions, and they can
no more assign it than they can assign any legis-stitution, but this may be tolerated when pur-
lative authority with which they are invested.
The legislative powers of this Government must
be exercised by Congress, in whom alone the
Constitution reposes them. Then we are told
that the President's constitutional oath is to "pre-
serve, protect, and defend the Constitution of the
United States," and that this "implies the power
to perform" what he thus solemnly undertakes
to do; that as it is his duty to put down insur-
rection, he may, at his discretion, use all the
means of force which the Constitution and the
statutes place at his command, and that the man-
ner in which he shall use these means depends
solely upon his own discretion. And from these
premises the Attorney General assumes-I can-
not say argues the opinion that the President
may, in a rebellion like the present, suspend the
privilege of persons arrested by his order, upon the
suspicion which he entertains that they are spies,
emissaries, or accomplices of those in arms against
the Government, and thus suspend the constitu-
tional provision, the enactment of Congress, and
the judicial authority conferred thereby. This
doctrine would have been all-sufficient for Charles I
or Charles II, and the Commons of England would
have had no cause for exultation when the petition
of right was signed, or the habeas corpus act passed,
which, under this opinion, would have been worth
only so much blank paper as they were enrolled
on. It assumes that all provisions of the Con-
stitution are inferior to that which imposes upon
him the oath of office, and that the power implied
from that oath overrides all other powers and pro-
visions with which it may come in conflict; and
so this great zeal for the preservation of the Con-
stitution makes it a thing of wax, to be twisted
and molded at the discretion of the Executive,
instead of an inexorable fundamental law of the
land, beyond the reach of President or Congress,
and only to be altered by the people in prescribed
form and mode. I regret to be obliged to say all
this, because I have always had great respect for
not only the private but the professional character
of the Attorney General.

Equally unfounded in law or fact is the allegation that the suspension of this constitutional privilege by the President was necessary.

I know that never before in the history of this country has it been deemed necessary to suspend the habeas corpus even by Congress; that though upon a message of Mr. Jefferson to Congress, during the alleged treasonable conspiracy of Aaron Burr, the Senate did pass such a bill, (in secret session, I think,) it was rejected overwhelmingly by the House of Representatives-the vote being 113 to 19. I know, too, that Mr. Jefferson, that great apostle of liberty, whom so many gentlemen here profess to revere as the founder of the political creed in which they place the most implicit confidence and faith, declared himself, at the very time of the formation of the Constitution, as opposed to any suspension whatsoever, even by legislative authority, of the privilege of the writ of habeas corpus; declared himself in favor of its eternal and unremitting force; and, sir, I very much incline to think he was right. I doubt very much whether the good to be effected by its suspension, in any condition of things in which the country can be placed, will be at all commensurate with the evil undoubtedly sure to follow from such suspension. If necessity, which is an odious plea, known for hundreds of years as "the tyrant's plea"-a plea by which you may overthrow all constitutional provisions-if that plea is efficient here; if that is a justification for a violation of one provision of the Constitution, it is equally a justification for any and all violations of it. As

poses of corruption and oppression are not supposed to be intended, when a solemn duty only is supposed to prompt a little largeness of construction, some straining of the Constitution for a purpose of high patriotic duty, which disguises the danger of the example. But breaches in the Constitution once made, others are more easy; and soon its enemies, with the worst purposes, rush in to its destruction. As to the necessity in fact, or rather as to the danger to the country of permitting to go at large those persons who have been arrested by order of various military men under the alleged authority of the President-I know many of these cases, and can confidently say that many of the persons arrested are wholly without any general personal influence for good or for evil; and that they will derive any political importance which they may acquire solely from the blunders by which they have been made into political martyrs. Many of them covet political influence no more than they do the restraints upon their liberty. They wonder at the baseness of the unknown informer and the folly of the zealous agent of the Executive; but are not the less indignant at the disregard of law and constitutional privilege which leaves them without the time-honored remedy for the wrong they suffer in the deprivation of their liberty.

So too, sir, these domiciliary visits, which are equally in violation of a provision of the Constitution, are sought to be justified by necessity. Now, let us see where these things are done. Nowhere, so far as I am informed, except in the State of Maryland, unless there be some exceptions in the State of Missouri. I believe there have been some in that State. I recollect to have seen one or two cases of a suspension of the habeas corpus there; but chiefly it has been exercised in Maryland, a loyal State-a State proved in its loyalty; a State whose remarkable quiet now, under all illegal and oppressive practices, is the best proof she could give of her loyalty and her submissiveness. Indeed whatever of disloyalty there may be in the State of Maryland to the Union grows out of these very abuses-the suspension of the habeas corpus by executive authority, and these unnecessary, sometimes absurd, and always irritating domiciliary visits and searches, which yield no public benefit whatever, and tend only to irritation, oppression, and mischief.

It was but the other day that some officer of volunteers-I do not know who-marched some three hundred of his men from a point in one of the counties in Maryland to another, a little village, where there are about the same number of residents, of every description. This little village found itself invested by three hundred armed men early in the morning. There was a double object: to search for arms, which were not to be found; to search houses where there were no arms; and to arrest one party, perhaps two, one of whom was arrested and carried to a military camp out of the county. Well, sir, two houses were particularly designated as proper to be searched. One of them was the house of a gentleman of the bar of distinguished ability and high cultivation; and though I believe he is an extreme southern man for that region of Maryland, he nevertheless holds this doctrine-that there can be no greater absurdity possible, in the State of Maryland, than to think of getting up an organization in opposition to the power of this Government, and in violation of its constitutional authority. He has strong southern sympathies; that is about the amount of it. His house was searched from top to bottom by a detective police officer, who happened to be one of these three hundred men marched to that point.

They found nothing, simply because there was no conspiracy, no gathering of arms for rebellious purposes, no intention on his part to engage in any secret organization against the Government. Nevertheless, he felt this searching of his house to be an injustice, an affront, and an oppression. The other was the case of an old gentleman of over eighty years of age, who is now and always has been, the strongest Union man of the county. He was lying at the time on a sick bed, from which his family fear he may never rise. The ladies met the officer at the door, and felt very much disposed to resist, if it had been in their power; but finally, when told that his object was to search for arms, answered promptly: "There are two guns here; one is a bird gun. "That I do not want," said the officer. "Then there is another gun here-a drilling gun.' "Ah! that is what I want." Very well," answered one of the ladies; "I pledge you my honor I will bring it to you in two or three minutes; but do not come into the house, for Heaven's sake." It so happened that a company of little boys of eight, ten, or twelve years, were playing the military, and drilling with wooden guns; and one of these poor little wooden guns was the trophy which the lady brought to the officer, very much to his mortification. I believe he did not care about receiving it, though she insisted upon his taking it.

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Presiden knew nothing of it; the Secretary of War knew nothing of it; General Scott knew. nothing of it; and I think I may say without any impropriety, was exceedingly sorry to hear that such an act had been committed. It could not be traced to any officer of superior authority. General Banks knew nothing of it; and finally he was released by the Secretary of War upon representation of the facts to him. But while this and similar proceedings have been in progress, while these imprisonments have been suffered, irritation has been springing up, friends have been dissatisfied, and the people have asked themselves, is this the paternal Government that we have a right to expect will protect us, or is it one that looks upon us as aliens, as conquered foes surrendered at discretion, as rebellious subjects who have been reduced to a condition of obedience and yassalage? I say this, sir, not so much for the Senate as in the hope that it may some way or other reach the ears of those in power, and teach them the propriety and the prudence of stopping these irritating, vexatious, illegal, and unconstitutional proceedings.

Sir, in my opinion there is, in the State of Maryland, at this time, not the slightest probability of any further emeute. No man regrets more than I do the riot of the 19th of April. I unhesitatingly admit that it was illegal; it was in every respect wrong; quite as prejudicial to the State of Maryland as it was injurious to the Government of the United States. No man rejoiced more when the organization which followed it was dissipated. But I do not think that the disturbances of that day-the attack of the rioters upon the Massachusetts soldiers and the subsequent proceedings

There are two cases. Who can suppose that any honest, loyal citizen, had given information against these two gentlemen? Is it not palpable that it was owing to the malicious, wanton, and wicked interference of some base mischief-maker, that the military were dragged some twenty miles, and marched back the same distance, for the purpose of searching these two houses, and looking-can, without the grossest outrage, be made the into a little village armory, where they did not get a solitary gun, I believe?

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pretext for a series of aggressions upon the constitutional rights of the people throughout the State. There was a single, unorganized popular tumult on the 19th of April. Senators will recollect that the mob on that occasion were not organized into an armed force. They were armed with paving stones and brickbats. Those are not the weapons used by conspirators who are organized for the deliberate purpose of overthrowing a government. As for the few pistols that appeared there, they will be found in all tumultuous assemblages that grow into riot. And the after proceed

Sir, these things have been repeated elsewhere. In my own neighborhood, three or four hundred men, who had gone over in a steamboat from Annapolis to one of the country districts, marched into the town of Easton, and on their way, meeting two gentlemen standing at a gate, arrested them, and said: "you must come and march with ""Why?" They chose to give no answer, except to say, that they understood there are secessionists in the town, and if they chose to fire upon them, these gentlemen should be in the frontings by the authorities, however much their prorank-take the fire first; and thus, two men, of whom they knew nothing, and who, unquestionably, were not concerned in any treasonable act, were thus wantonly arrested and marched from their residence to the town, to be contemptuously dismissed. An armory, belonging to the State, was searched and the arms taken. There were some arms, I suppose not more than two or three hundred guns in all, many of which were of little value, being old, and having been there from time immemorial, with some cannon. Two of these belonged to the commissioners of the county, and had been purchased in the year 1832, just after a memorable event in Virginia, and were intended for the defense of the county against internal foes.

Sir, these are but a few of the instances that have occurred. I have known houses to be broken open, wardrobes and bureaus to be rudely searched, and young men to be arrested, because they talked saucily. They were not more mutinous, I presume, than poor Jenks, whom the privy council put in prison for talking mutinously at Guildhall, when he wanted to have a petition presented to the King. These young men, without public influence, without that position which gives control of society, without the ability to command the services of a single man in any organization against the Government, are seized and taken away from their business, one from his farm, another from his store, and carried off to Fort McHenry, or some other military station, and lodged there, without warrant in form of law, or upon affidavit, without even a decent ground of suspicion that they were affiliated with secessionists in arms, or had any intention to associate with them, and when, indeed, they were further from violating their duty to the Constitution and the law than the men who thus ruthlessly violated both.

In the first case I mentioned, one gentleman was captured, taken prisoner, and carried to Cockeysville, and there remained for some days; and when inquiry was made by his friends, nobody knew by whose orders he was taken. The

priety may be doubted, had at least one effect: that of reducing, by the military organization that followed, the tumultuary elements of the State into such a condition that they could be controlled, which, without that military organization, I very much fear would not have been the case, and then the evil might have been much more serious to the Government, the people of Baltimore, and the State of Maryland. Be that as it may, I do not defend that proceeding or palliate it; but I do say that however much gentlemen may condemn that emeute in Baltimore, it was punished severely on the spot; for the blood which flowed then was more that of the people of Maryland engaged in the tumult than those against whom they illegally directed the riot. The resentment which was felt in the North was natural, but it did not justify the threat of razing the city to the ground, nor does it justify any other proceedings than legal ones for the prosecution of those concerned in it. It must be remembered, too, that the President himself was satisfied that the authorities of Baltimore had acted with perfect loyalty, and that the popular excitement there was an unfortunate occurrence, unforeseen by the authorities, and which they could not control, though the mayor, the marshal of police, and others, risked their lives in the effort to control it, and to protect the soldiery

from the attack.

Now, sir, here are the police commissioners of the city who have been imprisoned for a month, and during the session of the grand jury which have been finding bills of indictment against persons suspected of treasonable practices. They have found a number of bills (I do not remember how many) for treason, but they have found no bill against these gentlemen; nor have we heard, from any source whatever, any intimation of any specific conduct of theirs which could be declared to be illegal. On the contrary, the only intimation upon which I understand their arrest to have been founded, is that contained in the proclamation of General Banks on the 1st of July, in which he says they were supposed to entertain some pur

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pose not known to the Government, but believed to be detrimental to its peace and security. I think that is the language. I know I am right in regard to the other words-"some purpose not known to the Government." I understand that General Banks admitted that there was no charge affecting the integrity of these gentlemen; that they had been arrested rather with a view to prospective events than for anything then done by them. And yet, sir, not only are these gentlemen still suffering illegal confinement, but I see by the papers of the morning that they are now being transported from the State of Maryland to some northern fortress, where they are to be deprived of the sympathy and service of their friends, torn from the partial association of their families hitherto permitted, and doomed to imprisonment among strangers, where kindred and friends can no longer cheer and sustain them. Why is this? What prospective event makes this necessary? It is most unusual, extraordinary, and I think oppressive. Partisans of the Administration in Maryland may defend it; but no one else, however earnest and ardent in his attachment to the constitutional union of the States, can be otherwise than indignant.

Now, sir, this police organization is a part of the State system. With as much authority might this Government undertake to suppress the State Legislature itself, and put its members in military jails. As well might they suppress the whole organization of the different departments of the government of the State of Maryland. The State is prostrate this moment at the foot of the executive power of the United States, and that for no reason that I can perceive, except the fact of the emeute of the 19th of April. Certainly no conduct on the part of the State of Maryland since then has caused any apprehension or surmise, that such a state of things prevails there as would justify the violation of the Constitution and the suspension of the writ of habeas corpus, and the other oppressions which I have described.

Mr. President, there are other things to which I should desire to allude at this time, but, as the Senate perceive, I am laboring under difficulties which make it very arduous for me to make any remarks at all. Nothing but a deep sense of the duty which I owe to my constituents, and the knowledge that it was expected of me that I should say something on this subject, has induced me to trouble the Senate at this time. I shall, of course, not vote for the joint resolution; and the more, because I believe that, if these things which have been done by the Executive are legal, there is no necessity for Congress to undertake to validate or ratify them; and, if they were illegal and unconstitutional, no power of this Congress can give them any authority whatsoever. Congress may pass indemnity bills; they may indemnify their officers who violate the law by paying all expenses which may be incurred; but they cannot make an illegal and unconstitutional thing legal by a declaration that it is so. That is impossible. The doctrine I hold, as to the suspension of the habeas corpus, is sustained by the highest judicial authority-by Chief Justice Marshall, Justice Iredell of the Supreme Court, Judge Story, and by the present pure and able Chief Justice. It has never been questioned by any known jurist of eminent character, unless there be one exception in a northern State; and it has been the received doctrine from the origin of the Government to the present day.

Mr. McDOUGALL. Mr. President

Mr. FESSENDEN. I move that the further consideration of this joint resolution be postponed, with a view to take up the tariff bill.

Mr. McDOUGALL. I addressed the Chair first, I believe.

Mr. FESSENDEN. I was recognized by the Chair.

Mr. MCDOUGALL. I want the floor on this question.

Mr. FESSENDEN. It is important to pass the tariff bill this morning; we almost passed it last night.

Mr. MCDOUGALL. I do not want to interfere with the course of business. The motion to postpone was agreed to.

THE TARIFF BILL.

The Senate resumed the consideration of the bill (H. R. No. 54) to provide increased revenue

from imports, to pay interest on the public debt, and for other purposes, the question being upon its passage.

Mr. SIMMONS. I wish to get the unanimous consent of the Senate to make one or two verbal amendments in the bill. In the second section I want to strike out the word "herein," and insert "in this section." There will be no objection, I presume.

The PRESIDING OFFICER, (Mr. KING in the chair.) If there be no objection, that amendment will be considered as agreed to. The Chair hears no objection, and the amendment is adopted.

Mr. SIMMONS. In the second section of the income tax portion of the bill, after the words "United States," in the fifth line, I want to insert, "and in the District of Columbia." That happened to be left out in the provision for assess

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Mr. GRIMES. I wish to understand the exact position of the bill, whether or not the question now before the Senate is on the adoption of the amendment proposed by the Senator from Rhode Island in relation to the income tax, or whether the question is upon the final passage of the whole bill, including the tariff and the income tax bill.

The PRESIDENT pro tempore. The question is on the final passage of the bill as amended, on which the yeas and nays have been ordered.

The question being taken by yeas and nays, resulted-yeas 22, nays 18; as follows:

YEAS-Messrs. Anthony, Baker, Clark, Collamer, Cowan, Dixon, Doolittle, Fessenden, Foot, Foster, Howe, King, Lane of Indiana, McDougall, Morrill, Pomeroy, Simmons, Summer, Ten Eyck, Wilkinson, Wilmot, and Wil

son-22.

NAYS-Messrs. Bayard, Breckinridge, Bright, Browning, Carlile, Grimes, Harlan, Harris, Johnson of Tennessee, Johnson of Missouri, Kennedy, Latham, Pearce, Polk, Powell, Rice, Saulsbury, and Trumbull—18.

So the bill was passed.

MESSAGE FROM THE HOUSE.

A message from the House of Representatives, by Mr. ETHERIDGE, its Clerk, announced that the House had passed a bill (H. R. No. 71) to provide additional revenues for defraying the expenses of Government and maintaining the public credit, by the assessment and collection of a direct tax and internal duties.

The message further announced that the House had passed a resolution directing the President of the Senate and the Speaker of the House of Representatives to close the present session of Congress by adjourning their respective Houses on Friday, the 2d day of August, at twelve o'clock, noon, in which the concurrence of the Senate was requested.

The message further announced that the House had agreed to the report of the committee of conference on the disagreeing votes of the two Houses on the bill (S. No. 20) authorizing the appointment of an Assistant Secretary of the Navy, and fixing the salary of the same, and for other purposes.

The message further announced that the House had agreed to the report of the committee of conference on the disagreeing votes of the two Houses on the bill (S. No. 31) to increase the medical corps of the Navy, and for other purposes.

ENROLLED BILLS SIGNED.

The message further announced that the Speaker had signed the following enrolled bills; which thereupon received the signature of the President pro tempore:

A bill (S. No. 24) authorizing the Secretary of War to reimburse volunteers for expenses incurred in employing regimental and other bands, and for other purposes;

A bill (H. R. No. 45) to define and punish certain conspiracies; and

A bill (H. R. No. 81) making an appropriation for the purchase of arms for the volunteer and regular troops of the United States.

HOUSE BILL REFERRED.

The bill (H. R. No. 71) to provide additional revenues for defraying the expenses of Government, and maintaining the public credit, by the assessment and collection of a direct tax and internal duties, was read twice by its title, and re

ferred to the Committee on Finance, and ordered to be printed.

ORDER OF BUSINESS.

The PRESIDENT pro tempore. The joint resolution which was under consideration, and passed over informally, is now before the Senate."

Mr. TRUMBULL. I believe it was postponed. I move that all other business be postponed, and that the Senate proceed to the consideration of Senate bill No. 33.

Mr. WILSON. I hope we shall take the vote upon the joint resolution, and have it disposed of, that it may be got out of the way. I understand the Senator from California desires to speak upon it. If that be the case, I will not press it now. I hope to-morrow, however, that we shall have

a vote.

Mr. McDOUGALL. I do not propose to detain the Senate long. I do not wish to make what is called a set speech, but to state my opinions briefly.

The PRESIDENT pro tempore. The Chair is informed that the joint resolution was passed over informally with a view to take up the tariff bill, which has now been disposed of; and therefore it now comes up again for consideration; but the Senator from Illinois moves to postpone this and all prior orders, with a view to proceed to the consideration of the bill (S. No. 33) to suppress insurrection and sedition, and for other purposes. Mr. BAYARD. Yesterday the report of the Committee on the Judiciary, asking to be discharged from the memorial of the City Council of Baltimore, was before the Senate; and I offered, resolutions, in lieu of the report of the committee on their resolution to be discharged. All I desire is a vote upon them. I thought them reasonable in themselves. They were postponed then until to-day. I hope that the honorable Senator from Illinois will suffer me to take the vote on this before he calls up a bill which will give rise to a good deal of discussion. I only desire a vote on them.

The PRESIDENT pro tempore. The question is on the motion of the Senator from Illinois.

Mr. TRUMBULL. The bill, the consideration of which I have asked, is somewhat germane to those very matters to which the Senator from Delaware alludes. There may be some discussion upon it, which may be applicable also to these proceedings in Baltimore, and I would prefer that the bill should come up for action rather than that we should spend our time upon resolutions which lead to no practical legislation.

The PRESIDENT pro tempore. The question is on the motion of the Senator from Illinois, to take up the bill indicated by him.

The motion was agreed to.

SUPPRESSION OF INSURRECTION.

The Senate, as in Committee of the Whole, accordingly proceeded to consider the bill (S. No. 33) to suppress insurrection and sedition, and for other purposes.

The PRESIDENT pro tempore. The bill and the amendment of the Committee on the Judiciary will be read.

Mr. TRUMBULL. I imagine that it will be unnecessary to read both the bill and amendment. The amendment is a substitute for the bill, and is the text of the original bill, with some verbal alterations, and perhaps one section stricken out that was in the original bill. It will be, substantially, reading the same thing twice over to read both; and unless some Senator desires it, I suggest that the substitute recommended by the committee be read, instead of the original bill.

The PRESIDENT pro tempore. That course will be taken, if no objection be made.

Mr. BAYARD. I only got hold of the bill yesterday, and I should prefer not to have it brought up to-day; but I believe the substitute and the bill are essentially the same, with the exception of an additional section added to the substi tute.

Mr. TRUMBULL. And the omission of one section. The twelfth section of the original bill is omitted in the substitute, and another section added to it.

Mr. BAYARD. At least the substitute ought to be read. I do not care about the original bill being read. They are both essentially the same.

The PRESIDENT pro tempore. The substi

tute alone will be read, unless the reading of the original bill is demanded.

The Secretary read the amendment reported by the Committee on the Judiciary, to strike out all the bill after the enacting clause, and insert the following substitute:

That the Commanding General of the Army of the United States, the commanders of the several military departments and military districts within the military jurisdiction specially assigned to them, shall have power within their several commands, and within States, Territories, or districts of country which may have been, or shall hereafter be, declared by the President of the United States to be in a state of insurrection, or in actual rebellion against the Government of the United States, to declare, by proclamation, the territory so designated by the President as aforesaid within their respective commands, or any part thereof, to be in a state of insurrection and war, which proclamation shall be extensively published within the districts to which it

relates.

SEC. 2. And be it further enacted, That after the publica. tion of said proclamation as aforesaid, the said commander shall make and publish such police rules and regulations, conforming as nearly as may be to previously existing laws and regulations, as he may deem necessary to suppress said. rebellion and restore order, and to protect the lives and property of all the loyal citizens within said districts; and all the civil authorities within said district shall be bound to carry said rules and regulations into effect.

SEC. 3. And be it further enacted, That if, from any cause whatever, the said civil authorities fail to execute the said rules and regulations, the said military commander shall cause them to be executed and enforced by the military forces under his command.

SEC. 4. And be it further enacted, That from and after the publication of the proclamation heretofore mentioned, the operation of the writ of habeas corpus shall be so far suspended that no military officer shall be compelled to return the body of any person or persons detained by him by military authority; but upon the certificate, under oath, by the officer having charge of any one so detained, that such person is detained by him as a prisoner under military authority, further proceedings, under the writ of habeas corpus, shall be dismissed by the judge or court having issued the said writ.

SEC 5. And be it further enacted, That all persons who, after the publication of said proclamation, shall be found in arms against the United States, or otherwise aiding and abetting their enemies or opposers, within any district of country to which it relates, and shall be taken by the forces of the United States, shall be either detained as prisoners for trial on the charge of treason or sedition, or other crimes and offenses, which they may have committed whilst resisting the authority of the United States; or may, according to the circumstances of the case, be at once placed before a court-martial, to be dealt with according to the rules of war in respect to unorganized and lawless armed bands not recognized as regular troops, or may be discharged on parol not to serve against the United States, nor to aid and abet their enemies or opposers.

SEC. 6. And be it further enacted, That no sentence of death pronounced by a court-martial upon any person or persons taken in arms as aforesaid, shail be executed before it has been submitted to the commander of the military department within which the conviction has taken place, or to the Commanding General of the Army of the United States, who shall either approve of said judgment of the court-martial or commute the sentence, or may discharge or pardon the person so sentenced.

SEC. 7. And be it further enacted, That all prisoners dismissed on parol, if retaken in arms, or found aiding and abetting the enemies and opposers of the Government, shall be placed before a court-martial, and if identified and convicted by competent testimony, shall be ordered to suffer death, or such other punishment as said court may direct; the said sentence to be submitted to the said Cominanding General or commander of the department as aforesaid.

SEC. 8. And be it further enacted, That any military commander aforesaid, in any district declared to be in a state of insurrection and war, may cause any person suspected of disloyalty to the Government of the United States to be brought before him, and may administer, or cause to be administered, to such person an oath of allegiance, as follows: "I do solemnly swear (or affirm) that I will support, protect, and defend the Constitution and Government of the United States against all enemies, whether domestic or foreign, and that I will bear true faith and loyalty to the same, any ordinance or resolution of any State convention or Legislature to the contrary notwithstanding; and further, tha I do this with a full determination and pledge, without any mental reservation or evasion whatever: so help me God." And on their refusal to take such oath, they shall be detained as prisoners until the restoration of quiet and peace in the locality where such arrests may have been made. And any person having taken said oath who shall afterwards be taken in arms against the Government, or found aiding and abetting its enemies and opposers, shall be subject to the same punishment prescribed for those who violate their parol, as provided in the seventh section of this

act.

SEC. 9. And be it further enacted, That all arms, accouterments, horses, or movable effects whatever, taken from armed men resisting the authority of the Government, or taken from men aiding and abetting the enemies or opposers of the Government, shall, in time of insurrection and rebellion, as aforesaid, be treated and held in the same manner as property taken in war from foreign enemics. SEC. 10. And be it further enacted, That whenever, in the opinion of the Commanding General, or the commander of any military department or military district, the necessity for declaring a state of insurrection and war to exist within their respective commands shall have ceased, such declaration shall be publicly recalled, and all the powers and authorities vested by this act in inilitary commanders and authorities shall likewise cease.

SEC. 11. And be it further enacted, That all felonies, petit larcenics, assaults and batteries, not provided for in

THE OFFICIAL PROCEEDINGS OF CONGRESS, PUBLISHED BY JOHN C. RIVES, WASHINGTON, D. C.

THIRTY-SEVENTH CONGRESS, 1ST SESSION.

the "Act for establishing rules and articles for the government of the armies of the United States," approved April 10, 1806, which may be committed by any officer, soldier, sutler, retainer to the camp, washerwoman, or other person employed in or about the columns, detachments, guards, barracks, quarters, camps, or forts occupied by the troops of the United States, upon the person or property of any other officer, soldier, sutler, retainer to the camp, washerwoman, or other person employed in or about the Army as aforesaid, which offenses, or any of them, if committed within the United States in time of peace, would be cognizable before the ordinary courts of law, shall, if committed beyond the jurisdiction of the United States, or in any part of a State or Territory of the United States in a state of insurrection or rebellion against the same, be tried and punishable by a general court-martial: Provided, That no sentence rendered by such court shall be executed that is not known to the criminal jurisprudence of at least some one of the United States.

Mr. TRUMBULL. I desire to make some verbal alterations in the substitute before we proceed with the debate upon the question. In section seven, line five, I ask that the words "by competent testimony," and also the words "be ordered to," be stricken out; so that it shall read "and if identified and convicted, shall suffer death." Another verbal alteration is necessary in the fifteenth line of the eighth section. The words now are in the plural number, when what precedes is in the singular. The word "their," after" he," should be stricken out, and "his" inserted in its place; and the word "they" should be stricken out, and "he" inserted. The word "a" should be inserted before "prisoners," in the sixteenth line; and the word "prisoners" should be made to read "prisoner." In the seventeenth line, the letter "s" should be stricken out; so that the

word "arrests" will be "arrest." These amendments merely put the section in the singular number, as the oath is provided for in the singular.

The PRESIDING OFFICER, (Mr. FOSTER in the chair.) Unless objection be made, these alterations will be considered as agreed to, without taking the vote.

Mr. POLK. I did not hear the first alteration. I should be glad to have it reported.

The SECRETARY. It is proposed, in section seven, line five, to strike out the words "by competent testimony," and also the words "be ordered

to.

Mr. POLK. Unless it be the privilege of the Senator to amend the bill in that way, I cannot give my consent to that amendment.

Mr. TRUMBULL. I have no objection to allowing the words which I have moved to strike out remain in the bill; but I thought it read better without them. I supposed, of course, that the party must be convicted on competent testimony. If the Senator from Missouri thinks it better to have those words in, I have no sort of objection to allowing them to remain. I suppose, as a matter of course, that when a party is tried and convicted, it must be on competent testimony. I think the sentence would read better by leaving out the words, and that is the only reason why I proposed the amendment. In regard to striking out the other words, "be ordered to," I only moved the amendment because it is an awkward expression to say " be ordered to suffer death." However, if the Senator from Missouri likes that phraseology, I have no objection.

Mr. POLK. I prefer that the words "by competent testimony"should remain; for it looks like some regard to evidence in a bill which is certainly one of the most extraordinary I have ever known proposed in a deliberative body acting under a written constitution.

Mr. TRUMBULL. Does the Senator object to the proposed alteration?

Mr. POLK. I prefer that the words should remain in the bill.

Mr. TRUMBULL. Do you object to striking out the words "be ordered to?"

Mr. POLK. I do not care about that. Mr. TRUMBULL. Then I move to strike out the words "be ordered to."

The amendment was agreed to.

Mr. TRUMBULL. As this bill, in my judgment, is a very important one, and perhaps the most important of any action which Congress may

WEDNESDAY, JULY 31, 1861.

take at its present session, I will, if I can get the attention of the Senate for a few moments, explain what the object of this bill is. I wish to premise by saying that I am as much for standing by the Constitution of the country, and for putting down this rebellion in a constitutional and legal way, as any gentleman here. I will not yield to the Senator from Kentucky, [Mr. BRECKINRIDGE,] or any other Senator, in my veneration for the Constitution of the United States. I will not wink at its violation. I believe that that instrument was intended by its framers to be perpetual. I believe it contains all the power necessary to suppress even this gigantic rebellion; and the object of this bill is to confer the necessary power on the military authorities, in cases of insurrection and rebellion, to suppress them, and to regulate, as far as practicable, by law the exercise of those powers. down rebellion in a constitutional and legal manThe object of the bill is to provide for putting

ner.

The present insurrection broke out during the recess of Congress, and the President was compelled to provide as best he could for the preservation of the Government until Congress should meet. It was the duty of the President-sworn to take care that the laws be faithfully executed— to use all his constitutional powers to preserve the Constitution and the Government from overthrow; and in doing this, I admit-and the Senators who have denounced the President for the acts which he has done may have the full benefit of the admission-that the Executive has been

compelled to do, and has done, acts for which it may be difficult to find, in the strict letter of the law, the authority; but, sir, that I am ready to had not assembled; but after Congress convenes, justify. This was necessary when Congress clothed with the power to grant whatever authority may be necessary to crush rebellion, I say we shall be derelict in our duty if we leave our positions here without having regulated by law the action of the Executive. There can be no excuse for the Executive, when Congress meets, in exercising questionable authority, and we should not ask him to do it; but we should use the high powers vested in us to clothe the Executive with all the authority which may be necessary to preserve the Government. That is what is intended by this bill.

Let me be distinctly understood on that point. I justify the President in the exercise of the authority which he has used upon the great principle (as was said the other day by my colleague) of self-defense. Here was a rebellion aiming at the overthrow of the Government; a blow was about to be struck at the very heart and life of the Republic; and unless warded off, it would have destroyed the Government. Under such circumstances, I justify and sustain the Government in doing whatever was necessary to preserve it till Congress could be assembled. When we do assemble, there is a duty incumbent upon us; and it is, in my judgment, to provide by law for the putting down of this rebellion.

99 66

By reference to the Constitution, it will be found that various powers are conferred on Congress. I will read some of them, for it is under these grants of power that I claim the authority for the bill which is now under consideration. The Constitution provides that "Congress shall have power" "to declare war, "" to make rules concerning captures on land and water," to "raise and support armies,"" to make rules for the government and regulation of the land and naval forces, to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions;" and it further declares that Congress shall have authority "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof." It also provides that the privilege of the writ of habeas corpus may be suspended in cases of rebellion or invasion, whenever the public safety requires it.

NEW SERIES.....No. 22.

Under these various grants of power I derive the authority for the bill in question. When authority is given to declare war, and when authority is given to call forth the militia to enforce the laws of the Union and to put down insurrection, all the incidents necessary to the successful prosecution of the war to accomplish the ends for which it is declared, all the incidents necessary to the suppression of the rebellion to put down which your militia is called forth, necessarily follow. You will observe the language of the Constitution is not that Congress may declare war against foreign nations, nor is it necessary that Congress should, in so many words, proclaim a declaration of war; it is enough if Congress does that which recognizes the existence of hostilities, and then all the incidents follow connected with the declaration of war. When the Constitution gives authority to call forth the militia for the purpose of enforcing the laws of the Union, it is not a meaningless authority; it does not mean that the militia is called forth for a mere display; but they are called forth to accomplish the object for which the Constitution authorizes them to be called out; and that object is to put down the rebellion-to enforce the laws of the Union; and whatever authority it may be necessary to exercise to accomplish that object, I say your militia and your Army may lawfully exercise. If it be necessary to suspend the writ of habeas corpus, if it be necessary to ravage the country and plunder towns, if it be necessary to slay persons, to search houses, to do anything that men in time of war may do, then that authority is given in the Constitution. And when the war begins, when the Army is called forth to the field, it is not to wait for the operation of the courts; your habeas corpus cannot interfere with it. It is the exercise of the military power-the great power which is placed under the control of Congress, and authorized to be called out to put down rebellion. When the Constitution authorized the calling out of the troops to put down rebellion, did it not mean that you should put it down by force? Did it mean anything else? And all the powers necessary to accomplish this object necessarily follow from this one grant of power. You will find, by reference to the works upon international law, that it is laid down by all writers that whenever an insurrection assumes such formidable proportions as to be recognized by the Government, and whenever the civil authority is unable to put it down and the military is called out, then all the incidents which, according to the laws of nations, may be done by an army, follow your Army called out for that purpose.

The Supreme Court of the United States has decided this very question; and as much of the reasoning of the court is applicable, as I think, to the condition of things now in the country, I will, if the Senate will bear with me, read two or three pages of the decision of the Supreme Court of the United States, delivered in the case of Luther vs. Borden and others, in 1849, reported in 7 Howard. The reasoning of the court here, it seems to me, is conclusive, so far as we need judicial authority; but I do not think it would be necessary. I think the Constitution itself is plain, and that whatever is inconsistent with the putting down of this rebellion, according to the mode of civilized warfare, is overridden by the grant of power to the Government to call forth its forces to put it down. In this case, in the opinion of the court, the Chief Justice says:

"The fourth section of the fourth article of the Constitution of the United States provides that the United States shall guaranty to every State in the Union a republican form of government, and shall protect each of them against invasion; and on the application of the Legislature, or of the Executive, (when the Legislature cannot be convened,) against domestic violence.

"Under this article of the Constitution it rests with Congress to decide what government is the established one in a State; for as the United States guaranty to each State a republican government, Congress must necessarily decide what government is established in the State before it can determine whether it is republican or not. And when the Senators and Representatives of a State are admitted into the councils of the Union, the authority of the government under which they are appointed, as well as its republican

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