Mr. DAVIS of Kentucky addressed the Senate in opposition to the resolution. [His remarks published in the appendix.] March 2, 1866. The Senate resumed the consideration of the following resolution of the HoRep: Resolved by the HoRep, (the$enate concurring.) That in orderto close itation upon a questionwhich seems likely to distur the actiop of the Government, aswell as to quiet the uncertainty which is agitating the minds of the people of the 11 Stateswhich have been declaredto be in insurrection. no Senator or Representativeshall be admittedinto either branch of Congressfrom any of said States until Congress shall have declared such State entitled to such representation. Mr. DAVIS. Mr. President, it is not my purpose to make an elaborate speech upon the pending question, or one that I have matured with any degree of consideration; merely to make a few points in a desultory manner. I do not propose to occupy a great portion of the time otpthe Senate, and I expect to conclude my remarks in such time as will afford the Senfrom Massachusetts, or any other gentleman who wishes to address the Senate upon this question, ample opportunity to do so. I have heard complaints in the course of this and other debates recently, of executive acts, and of the exercise of executive power, from sources that I was hardly prepared for. The gentlemen who make these complaints have been for the last 4 or 5 years upholding and defending such executive acts and powers. I presume that the explanation of these complaints at this time is, that executive power as not been exercised so as to promote the party and personal objects of those who make such complaints, otherwise we should never have heard them. The mode in which the present POTUS has intervened in the reorganization of State governments in the late rebellious States has been a subject of their animadversion, and I presume that the real grievance is, that the Executive did not proceed to an extent to satisfy certain radical gentlemen. If, for example, the President, in addition to exerting his moral power, or even his official power to induce telate rebellious States to abolish slavery by their new constitutions, to ratify the amendment of the Constitution abolishing slavery throughout the U.S., and to repudiate their rebel debt, had advanced one other step, and had imposed on those States as another and indis pensable condition upon which the would receive his assent to be restored to their proper relations in the Union, that they should concede to negroes the right of suffrage, I doubt not we would have hea no complaint whatever from that quarter of the interference of the Executive in the matter of the reconstruction of those State governments. I presume there is no gentleman in this Chamber who is supportin the proposition now under debate who would not concede that if all the States lately in insurrection had elected Sens&Reps, of whatever position in relation to the rebellion, and had also sent up their several constitutions with provisions securing to their negro and white populations equal suffrage, he would without objection have advocated the admission of such Sens&Reps. I have no doubt that to all the radical members of both Houses negro suffrage would have been the “open sesame” for all congressional representation for each State whose constitution guarantied it. Mr. President, in this matter of the admission of the Representatives of the southern States I am not a partisan. I am contending for a great constitutional principle. If the party to which I once belonged, or any party to which I might belong, were to occupy the position of the majorit of the Senate in relation to that subject, an were now opposing the admission of Senators from the southern States, I would make war upon that position and all its supporters, because I regard the exclusion of the southern States from representation in the 2 Houses of Congress as revolutionary, as subversive of the most important principle of our Government. I regard)“ practically as a dissolution of the Union by the 2 Houses of Congress; and as earnestly and zealously as I opposed a dissolution of the Union by the secession of the southern States, soI would stand in opposition toa dissolution of the Union, either permanently or temporarily in the form of the exclusion of the Sens&Reps of the 11 southern States from their seats in Congress. Mr. President, we have a mixed form of government, partly national, partly Federal, and art] State. Our form of ovemmentis fashionc by the Constitution. Every wer vested in the Government, and the distribution of all powers among the different Depts and officers, are provided for in the Constitution. It is further a fundamental principle of our Government that it was created by the States acting as separate sovereignties. As the honorable Senfrom Maryland [Mr. Jonssou] said yesterday, when the States in 1787 eutere upon the work of forming this Government, each State was sovereign and independent, as much so as any nation in the world. These separate sovereignties then proceeded to organize a common Government by each ceding to it the same portion of their separate sovereignty and political powers, and retaining all the residue except what was enumerated in the deed of cession, the Constitution. All litical sovereignty and powers were thus divided between the States and the U.S. I hold these to be truisms in our system: 1. Every political power, ever particle of sovereignty that was not delegate by the constitution to the General Government, and that is not prohibited by the Constitution to be exercise by the States, still belongs to the States respectively. 2. All the powers of.the General Government are distributed among 3 Depts the legislative, the executive, and the judicial. 8. Neither Dept has oneiota more of power than is vested in it by the Constitution. 4. Congress is clothed with the whole legislative, the President with the whole executive, and the courts with the judicial powenvof the Government. I hold that neither Dept of the Government can exercise one article more of power than is organised by the Constitution and is vested by its words in that particular Dept. I proound this general principle, that the General Government can exercise no powers but what are conferred n on it by the constitution; that if it collective y or by any of its Depts or officers attempts to gras any other powers, it is usurpation, and whol y unauthorized and void. Laying down these general principles, I shall proceed to make some remarks relating more particularly to the subject matter under consideration. When the Constitution was formed it was well understood what were the States of the U.S. Every independent sovereignty that was then in existence and united under the old Articles of Confederation was a State. Delegates from all of them, except RhdIsland, convened at Philadelphia fer the purpose of forming a more eflicient Government. y what authority was that Convention elected and didit proceed to frame a now Government? There was no power under the old Articles of Confederation to call such an assembly for such a purpose. It was appointed and organized without any authority or warrant except that of each State in sending its own delegates. It, however, was urged on by the law of The old system of government had sonesciegsnsailty. failed as to prove to the satisfaction of all the men of that day that it was who“ insufficient to answer the exigencies of the U.S. as a Government. They, therefore, the great men of the country, those who had carried it through the Revolution and who had established our liberty and our independence, saw that all the fruits of their long war and of the irgreat sacrifices would be lost unless there was a more eflicient form of government made for all the States. Therefore, exoficio, they wrote letters to the different States, urging upon theleading men of each to have delegates elected to meet in general convention for the purpose of forming a more eflicient common GoVernment. That Convention met and deliberated. It framed a written instrument that afterwards appeared with the impress of each State as constitutin for them a common Government. It was si no by Washington as the President of that on vention, and the Convention recommended it to the people of the U.S. for their adoption. The Articles of Confederation conferred upon the Congress very limited and only advisory powers. It neither established nor authorized any courts. Its resolves were not laws, but mere recommendations to the States; they had no sanctions, no machinery to give them effect; they had no operation on individuals, but spoke through the State governments, and by them came to be habitually disregarded. The Articles ofContederation did not organize a Government, but formed merely a league for independent States; the proposed Constitution provided for a common Government for the states. was recommended by the Convention to be adopted by the people of each State as a separate sovereignty, to have no obligation upon any State until acce ted and ratified by it, and noneupon those which might ratify it unless it was accepted by at least nine. It was submitted to the people of the States acting by their sovereign conventions, and was ratified by all, and in this way it was stamped by the highest authority. But it was with a full understanding thatit was simply a preposition of a plan of government, by wise and patriotic men, and it was recominen ed to the different States; and it was adopted by them, acting by their conventions, and thus received its 1st authority. But the conventions of Virginia, NewYork, Massachusetts, NCarolina, and other States, at the same time recommended numerous amendments, that were generally publicly debated; and if it had not been manifest that the most important would be adopted, the proposed Constitution would have been rejected). The most essential of those suggested amendments were adopted, and are the chief bulwarks ofAmerican liberty. In this scheme of government we find this clause: “ New States may be admitted by congress into this Union;” and that is all the provision of the Constitution in relation to the subject of new States. It has been said in the course of this discussion, d truly, that when a State is once in the U ion it is always in the Union. That position is true; and why is it true? Because there is no mode provided or contemplated in the Constitution by which a State of the Union can ever get out of it. The original 13 States became permanent members of the Union when they adopted the Constitution and entered into the Union by becoming parties to the Government. That is their destiny until it is changed by revolution, and noforce, no power short of successful revolution, can ever change the position of those States as members of the Union, or disrupt a single State of the Union from it. As Vermont, Kentucky, Tennessee, Ohio, and all the subsequent new States were admitted into the Union, they became members of the U.S. upon precisely the same permanent law and condition; they were all States of the Union in perpetuity and allthe time; and to be sometimes out and then in in without revolution was a legal impossibility. What is done when a State is admitted into the Union? What is then required by the constitution? She simply presents herself with a government of a republican form, and the question is submitted to Congress whether she shall be received as a new State into the Union or not. An act of Congress for that purpose is framed and passed; and so soon as that acthas passed and her Sens&Reps are admitted to their seats, the work is consummated. Nothing more is to be done. She may change her constitution in time of war or peace as often as she may please, and her change of constitution does not affect her position as a member of the Union so long as she adheres to a RFG; and even though she should change her government so as not to reserve a republican form, that change wouldpnot affect her position in the Union. She would continue dejure one of the U.S. How would Congress take cognizance in the matterofa State having adopted a government not republican in form? It would simply declare the antirepublican features to be void and ine perative; the residue would remain in full force and effect, the State being all the time in the Union and possessed of all her constitutional rights and powers. Mr. President, most of the old States have changed their constitutions at some time or other. The State of NewYork formed her 1st constitution in 1777. She had no mode prescribed in that constitution by which it should be amended or altered, yet it was amended twice by conventions of the people. In 1821 she met in general convention and formed another constitution, and in that constitution she provided a mode for its amendment; that mode required time and had some complexity; and in 1846 the State of NewYork determined to change her constitution again and disre garding the forms of the proceeding required by it, she called summarily a sovereign convention of her people, which proceeded to form a new constitution, and repudiated the one of 1821. This action of the convention was ratified and confirmed by her people. When the constitutions of 1821 and 1846 were framed, they both went quietly into operation, and the position of NewYork as one of our constellation of States was in no way perturbed, and Congress took no notice whatever of her having changed her constitutions. Their submission to Congress for its approval, or any rehabilitation otthat State as one of the U.S., was not dreamed of by anyone. On the contrary, being a State in the Union, and having a RFG in 1787, when the Constitution of the U.S. was adopted, she changed it from time to time, and continued her relations with the Federal government without any question. There was no congressional action whtever when NewYork or any other State changed its constitution. So long as the State government was preserved in a republican form, and the proper relations of the State with the U.S. were not disturbed, their governmenteould not interfere; and its whole power of interference would be simply to reform what the State might improp erlly do in the premises. conclude, then, that the attempt of the rebel States to get out of the Union by secession, or by unsuccessful arms, has left them members of the Union as though they had never made such an attempt, and that their abortive efforts cannot be effectuated by Congress, or by the entire Government of the U.S.: that their entire power and duty is to hold all the States in the positionof states in the Union, and where their proper relations are broken simply to restore, preserve, and perpetuate t iem. Mr. President, Congress is expressly clothed with authority by the Constitution to call out the militia to suppress insurrections. I ask gentlemen whether there is any difference between an insurrection by the authority or the countenance of a State government and an insurrection without such authority; or, if you please. in defiance of it. Here, for example is the great State of NewYork; she now has more than 4 million people. Suppose there was an insurrection in that State against the State government, and the U.S. government moved to suppress it, and the State government adhered to the Union and took part against the insurgents, and, with such assist ance, the General Government suppressed the insurrection; every man engaged in the insurrection against the State government and the U.S. Government would be guilty of treason. But I ask the difference in principle, in constitutional revision, in punishment, or for any other lega consequences, between rebels who had thus reared the standard of revolt independently and in defiance of the State government, and of those rebels who have the sanction and all the cooperation and aid which their State governments can give them. The States cannot commit treason or any other crime against. the U.S., and consequently there is no punishments or forfeitures cclared against States, no modes to try or punish States. Crimes can be perpetrated, according to our system and laws, only by individuals, natural persons, and it is only individu als and natural persons that can be punished. Theindividuals, natural persons, who make war against the U.S., or who adhere to their enemies, giving them aid and comfort, commit treason and are subject to its punishment, whether they act under or in deance of the State authorities; their crime, their punish ment, and all the legal consequences are precisely the same whether the insurgents wt in obedience to or against the State authorities. The governments of 11 States arrayed themselves in favor of the late insurrection. But in Missouri, Kentucky, and Maryland, the Stategovernments adhered to the U.S., although many of the people of each of those States entered into the rebel armies; while in the revolted States many of their citizens were faithful to the U.S. The whole law which governed the rebellion having no application whatever to States, all the States as political organizations continued unaffected by it; but all individual persons who embarked in the rebellion became equally subject to the law of treason, without any regard to the course of the State governments of which they were citizens. Mr. President, these hasty remarks lead me to the conclusion that these States as State: were not in the rebellion at all. It was an impossibility for the State governments to assume that position; they could not take upon themselves that delinquency. They could not give the form and relationship of State governments to the rebellion at all. They could in no way modify the character of the rebellion or of the rebels by connecting the State government with it. It remained as it would have been if there had been no effort to enlist the State governments in the rebellion, simply the crime of individuals. JeffersonDavis would not be responsible as the president of the confederate States, nor would any of the Governors of the confederate States be responsible as Governers of their respective States. Their delin quency, their crime, their responsibility and punishment, the denunciation by the Constitution and the law of their acts, are against them as individuals, and notas officials either of the confederate governmentor of the State governments of the confederate States. If this position be true, where is the pretext for assuming now that an act of Congress is necessary to the readmission of the rebel States into the Union? They have never been out of it legally. In contemplation of the constitution and law they have never been out of it. They were no more out of it in the midst of the rebellion when the wher of battla seemed most iiiipromising to the U.S. than they are now. They are out of it as much now as they were then. They were not out of the Union at either time; they were a portion of the U.S. whose people were in a revolt and rebellion against the Government of the U.S., and that was all. But the honorable Senfrom Maine ox claims, shall these men assume a position of hostility to the General Government, and will you allow those who were engaged in this hostile conflict against their own Government to come back and take seats on the floor of the 2 Houses of Congress? He assumes that the laws of conquest apply to the rebels as they do between independent States internationally. No sir. The onorable Senfrom Maryland stated that position truly in his speech some days ago. This insurrection was not a “war” in the sense in which that term is used in our Constitution and in the sense in which it is used by the laws of nations. congress is authorized by the Constitution to declare war. To declare war against whom? Not against a State. All the contemporary expositors held, and the Supreme Court have again and again decided, that congress cannot declare war against a State, and a State cannot declare war against the General Government any more than the General Government can declare war against a State. That sort of relation between the States and the U.S. isimpossible. It cannot exist under our system. It resolves itself, then, simply into this, that a portion, if you lease a larger portion, of the people of certain States arrayed themselves individually against the U.S. Government and resisted its authority by force of arms. They are simply guilty of insurrection. They committed a domestic offense. Theyare guilty of the crime of treason. While theyhave arms in their hands and are in the shock of battle they may be shot down as public enemies, because the Constitution permits the militia to be called out for the purpose of suppressing insurrection; and while military resistance exists anywhere, that term in the Constitution and its necessary significance permit them to be pursued with arms in the hands of the pursuers and a resortto all the means, forces, and usages of civilized warfare, while the resistance i continued. but no longer. But, Mr. President, as the Senfrom Maryland said, it is not a war power, it is a plolice power. There may be a riot in the U.S. in resistance to its authority; there may be sedition in the U.S. in the resistance of the execution of its laws and authority. There may be aninsurrection. They are all crimes and offenses of the same class, of different deces; and the highest grade of offense which our Constitution recognizes is that of an insurrection. It is a domestic offense. It is a simple resistance by persons who were bound to obey the laws, to their execution, and they are to be put down by the great police power of the nation, not by war technically. International belli rent rights do not apply to the rebels or the U.S. Government. There is no conquest or rights of conquest; there is no subjuation or for eit nre further than it is declare by law and enforced by the judgment of the civil courts. Obedience to law and punishment of individ equalsfor crimes committed are the only legitimate ends to be effected by the Government. Most of the people of the southern States became insurgents. That was a state of things which the Constitution contemplated might exist, and for which it made provision, and what provision did. it make? Congress shall have power " To providefor calling forththe militiato execute the laws of the Union. Suppress insurrections andro Del invasions.” Now, shall we havea Government of. delefited powers? The instrument by which all the power that this Government possesses wag mowed is the Constitution. l have read this clause of the Constitution to show what power congress has over the matter of insurrection, and it is simply the power tosiippress it. Has Congress any more or additional power than to suppress the insurrection? If it has any other power, from whence is it derived and where is the language of the Constitution that confers it? Here is all the power with which Congress is clothed over the subject of the late oranyotherinsurrection. The Presidentdirects the military power of the nation so far as that wer is in commission. It is the duty of the resident to see that the laws be faithfully executed; and it is his function to apply all the forces which the laws have placed in his hands to this end. In addition to that there is that special provision in the 15th para graph of the 8th section of the 1st article of the Constitution which declares that Congress shall have powerTo provide for enllingforth the militia toexecute the lawsof the Union. Suppress insurrections, andre pel invaswus.“ Will any gentleman the lline what other power Congress has over the subject of insurrection than what is imparted in the words which I have read? What other act in relation to that matter has Congress the right to do? Congress is authorized to call forth the whole militia of the country if it be necessary to suppress any insurrection. That is all the power that Congress has over this subject of insurrection. If it is not, and Congress has other power, I again ask for the provision of the Constitution which authorizes any other or additional act in relation to insurrection to be performed either by Congress or the President. Whenever the insurrection is suppressed, the work of both congress and the Presidentis fully and completely performed, and all governmental power over the subject is exhausted. I will now prove from the Constitution, the laws of Congress, and the decisions of the Supreme Court, that the power to determine when any portion of the country is in a state of insurrection belongs to the President exclusively; that he as the Commander in Chief of the armies and navies of the U.S. has a right to control and direct all the Military power, land and naval, for the suppression of the rebellion, and that he has the exclusive right to decide for himself and for the government and for the people when the insurrection has been suppressed; that Congress has no cognizance whatever over these points. I here assume to you, Mr. President, and to such gentlemen as are present, that Congress has passed organic laws to carry this clause of the constitution into operation, to wit, to suppress insurrection and to enforce the execution of the laws; that by those laws in their form and letter, as recognized and passed upon by the Supreme Court itself, Congress vested in the President the exclusive power to decide when the country was invade, when any portion of the country was in a state of insurrection, and when there was domestic violence in a State; that congress has no power, since the passage of those sws, to decide those questions at all, but that their decision rests exclusively with the POTUS without any intermeddling by conress. I will read that clause of the constitution again, and in connection with it a portion of the laws of Congress that have been passed to carry it into operation. Congress shall have po"wer H To call forth the militia to execute the laws of the Upion. suppressinsurrections and repel invasions. The 1st law to give effect to that clause was passed in May, 1792, and the 2nd section of it provides: "That whenever the laws 9f the U.S shall be opposed or the executionthereofobstructed. in any State by combinationstoo powerfulto besup rossedby the ordinary courseo judicial rooeedings, or by the ppwers vestedin the arsha by this act. thesomebeingnotified to. the IOSUIOHoIf. the U.S. by an associate Justice or the district judge, it shall hclawful for the presidentef the U.S. to call forth the militia of such State to suppress such combinations and to causethe laws to be uly executed." Thislaw was passed before the whisky insurrection of Pennsylvania. It will be observed that before the President could act so as to call forth the militia to enforce the exceution of the laws of Congress, the state of resistance to their execution there must be certified to the President by the judge of the district court. congress became satisfied that this mode was too ilatory, and consequently in 1795it passed a supplementary law, authorizing the President himself to take notice of such state of case as it provided for, without the intervention of the judge. I will read the 2nd section of that act: “SEC. 2. And be Abife: That whenever the laws of the U.S shall beopposed, or the execution thereof obstructed.in any State by combinations too powerful to bo suppressod by the ordinary gourso of Jucicial proceedings.orby the powers vested in the marshalsb this act.it shall be awful for the POTUSs to call forththo militia of such State or of any other State or States as may be necessary to suppress such combinations and to enuse t helaws to be duly executed, and the use of the militia so to be called forth maybe continued.if necessary. until the ox matron of 30 days attor the commencement of the next session of Congress." U.S. Statutes at Lurgpe., 424. Itwill be seen that the President is made the organ by this latter act of Congress, for the purpose of determining when the country is in a state of insurrection, and when the exigencies of the Government require the ini litia to be called out to enforce t ie execution of the law. These laws have been before the Supreme Court for their construction, in the case of Luther vs. Borden, 7 Howard. I will read several extracts from the opinion of the court rendered by Chief Justice Taney. On the points of the existence of the State government, what it was, and who were its incum bents, the opinion says: "But the courts uniformly heldthat that inquiry proposedto be made belonged to the pelitical ower and not the Judicial; that it rested waih the political powerto decide whether the charter governrnent had condisp aced or not: and when that decisionwin madothe judicial Dept would be bound to take notice of t asthe in amountlaw of the State. mth out the a d of ora evidenceor the examination of Witnesses that according to the laws nnd institutions of RhdIsland rio such government had been recognized by the political power: and that the charter governmentwas the lawful and established government of the Stateduring the period in contest; and that thosewho were in arms againstit were insur 30118 and liable to punishment.” 7Howard. 39. Page 42: sti"tTuhtieonfooufrtthhes U.S. opnrrothvr da artsicle of the Cori that the U.S shall guarantyto every State in this Union a RFG and shall protect each of them against invasion: and on application of the Legislature orof the Executive.(whentho Loc illature cannot e.convened.)against domestic vio lepee. Under this articleof the Constitution it restl with Congressto determine what government is the established one in a State. F r as the U.S. Guaranty to each State a RFG. Congress must neccssari y decidewhat government is established in the State beforc it ean determine whether it is republipanor not. And when the Sens&Reps of aStateup admitted into the councils of thoUniou. the authority of the government under which th are appointed. aswell as its republican character.is recognized by the proper constitutional authority. And its decisionis binding on everyother dept of government and con] not he questionedin nindicial tribunal." In the same case (7 Howard, 42) the court said: “So too, as relates to the clausein the above mentioned article of the Constitution, provrdingfor cases of domestic violence. It restedWith Congress.too to determine upon the moans proper to beadopted to fulfill this guarantee. They might. if they had deemedit most advisable to do so, have placed it in the power of a court to decidewhenthe contingency had happened which re aired the Federal Governmentto interfere. But congress thought otherwise and no doubt wisely; and by the neto February 28. 1795.provided that in case of an insurrection in any State against the government therccf, it shall be lawful for the POTUS on application of the Legislature of such State, crof the executive, (when the Legislature cannot be convened.)to call forth such number of the militia of another State or States as may be applied for. as he may ml Judge sufficient to suppress such insurrection. " Again, on page 43: "By this act. the power of deciding whether the exigency had arisen upon which the Government of the U.S. is bound to interfere is given to the President. he is to act upon the application of theLegislatureor of the Executive and consequently he mustdeterminewhat body of menconstitutethe Legislature and who is the Governorbefore he can act. The fact that both parties claiui the government cannotalter the case, for both cannot be entitled to it. If there is an armed conflict like the one of which we are speaking, it is a case of domestic violence and one of the parties must be in insurrection against the lawful government. And the President must of necessitydecidewhich is the government and which party is unlawfully arrayed againstit. before he can perform the duty imposed upon him by the act of Congress." On page 44: “ In the case of foreign nations. the Government acknowledged by the President is always acknowledged by the courts of justice. And thistprinciplo has been applied by the act of Congress to c sovereign States of the Union.". Here is the principle that is at the ith of the proposition that is now pending be are the Senate. I read from page 44: "It is said that this power in the President is dangerous to liberty. am may be abused. All power may be abusedif placed in unworthy hands But it would be ilifficult. we think. to point to any other bandsin which this power would be more safe and at the same time equally of lcutual. At all events.it is conferrednoon him by the Constitution and laws of the U.S and must therefore be respected and enforcedin its judicial tribunals. “A question very similar to this arosein the case of Martin on. Mott. 12 Wheaten, JIil. The 1st. lnusoof the 1st section of the act of February 28. of which we have been speaking authorizes the Presidentto call out the militia to repel invasion. this the 2nd clause in the samesection which authorizes the call tosu press an insurrection against a State government. he pewer given to the resi doennlyt is such and is the same Withthis difference that it cannot be exercisedby him in the latter case. except upon the application of the Legislature or"the Executive of the State. by the case above mentioned arose out of acall made the President, by virtue of the power conferred by the 1st clause; and the court said that when ever a statute gives a discretionar power to any personto be exercisedby him upon is own opinion of certain facts.it is a sound rule of constructionthat the statute constitutes him the sole and exclusive judge of the existense of those facts. The grounds ppon which that opinion is maintainedare set forth intho report.andare, we think conclusive. The same principle applies to the casenow before the court." I Will now read a short extract from that opinion in Wheaten, rendered by Mr. Justice Story: “If we look at the languaie of the act of 1795, every conclusion drawn from t 0nature of the power itself is strongl fortified. The words are, when pver the U.S shall be invaded or be in imminent dangerof invasion. km. it shall belawful forthp President, &c., tocall forthsuch number of the militia. &c. as he mayJudge necessaryto repel such invasion. The power itself is confided to the Exteuctuiotinv.eotfhethe Union. to him who is.by the ConstiCommander in Chicf of the militia when called into the actual service of the U.S. whoseduty it is to takc care that the laws befaithfully executed. and whose responsibility for an honestdischargeof his official obligations is secured by the highest sanctions. He is necessarily constituted tbeJudge of the existence of the exigency in the 1st instance, and is boundto act accordingto his belief of the facts. Ithe does soach and decides to call forth the militia. his orders for this purpose are in strict conformity with the provisions of the law and it would seemto follow asa necessary congequenco, thateveryactdoneby a subordinate officer in obedience to such orders, is equally justitiable. The law contemplates that under sue circumstances.orders shall be given to carry the powerinto cfiect: and iteannot thereforebea correct inforence that anv other person has a Just right to disobey them. The law does not proVidefor any appeal from the judgment of the President or for any right in subordinate officers to review his decision and in effect defeatit. Whenevera statutegivesa discre tuipoonnarhy is powerto any person.to be exercised by him own opinions of certain facts. it is a sound rule of construction that the statute constituteshim the sole and exclusivejudge of the existence of those facts. And in the presentesscweareall ofopinieu that such is the true construction of the act of 17%. It is no answer that such a powermay be abused.for there is no power which is not susceptibleof abuse. The remedy forthis, aswell as for all other official miscopduct.if it should occur.is to be found in the Constitution itself." Here is a compend of the whole matter. The 15th paragraph of section 8 of article one of the Constitution provides that Congress shall have power? “To make all laws which shall be necessary and proper l for carrying into execution the foregoing] powers and all other powersvestedby this Constitution in the Government of the U.S or in any Dept or officer thereof." This general clause gives to Congress an indefinite power to pass all laws which shall be necessary to execute its enumerated powers, l among which is one to provide “for calling forth i the militia to execute the laws of the Union, 1. suppress insurrections, and repel invasions.” i This act of 1795, and the act ofJuly, 1861, are made under this general power vested by that clause of the Constitution in Congress. congress is authorized to invoke all subsidiary powers necessary to carry the express powers given to it into operation. Among those express powers is one to call out the militia to suppress insurrection, to repel invasion, to put down domestic disorders in a State, and to enforce the due execution of the laws of congress where they are resisted by combinations too poWerful for the marshal with his ordinary posse comitatus to overrule. Then Congress in the exercise of this general power passed a law with this section: “That whenever the laws of the U.S shall be opposed or the execution thereof obstructed.in any State by combinations too powerful to be suppressed by the ordinary course of judicial proceedings or by the powersvestedin the marshalsby this act.it shall belawful for the POTUS to call forth the militia of such State or of Stateor States. As maybenecessaryto suppresssuch combinationsand to causethe laws to e uly executed.” What states of case do this clause of the Constitution and this section of the act of 1795 provide for? The Constitution contemplated that a State might be disturbed by a domestic insurrection; that the U.S. might be invaded; that there might be insurrection against the Government of the U.S., and that the execution of its laws might be resisted by combinations too powerful to be put down by the marshal and his 0880 comitatus. It therefore expressly declare that Congress should have power to act whenever the country was in either of those conditions. Congress was given power to pass such laws as should be necessary and proper for rectifying the disturbed condition of the country. Congress has so legislated in reference to the very case of this insurrection. Here has been a resistance in the southern States to the due execution of the laws of Congress. That resistance has been headed by combinations too powerful to be put down by the marshal and his posse comitatus. conress, by its act of 1705, the 2nd section of which I have just read, provides that to cor rect such a disorder as that the President shall not be required to wait for the certificate of the judge of the U.S. court, but be himself. upon his own information, upon his own volition, shall decide when the country is in such a state of case as to require him to call out the militia for the purpose of enforcing the due execution of the law and putting down the insurrection. What has the Supreme Court in the cases of Luther vs. Borden, and Martin vs. Mott decided in relation to these questions? lhat Congress has expressly veste in the President the power to order out the militia to meet such demands of the Government and the country. The Supreme Court has proceeded to consider and to expound this law in the 2 cases from which I have just read; and it has decided explicitly that the sole and exclusive power over the whole subject is given by the law of congress into the hands of the President. It is for the President to decide when the laws are resisted by such a combination. The court holds that it is his sole and exclusive function to decide that point. The court further decides, that when the President has determined that such a state of case exists, he has the exclusive power to call out the militia forces of the States to the extent authorized by law into the service of the U.S. for the purpose of enforcing the due execution of the law. If he has the right to do this, as Coinmander in Cliief he I has the right to conduct the military operations to put down this resistance to the execution of the law. He has not only the right to say when this state of case has arisen, but he necessarily has the right to decide how long it continues and when it terminates. Let we illustrate this by the example of the whisky insurrection in the State of Pennsyl vania. That was 8h insurrection, a resistance by an armed mass of people to the due execution of the law. That exigciice gave rise to the passage of the act of 1795. The Supreme Court in passion upon that act say expressly that the President, if that set had been in existence at the time of the whisky insurrection, would have had the sole and the exclusive right to decide the fact. whether the laws were resisted by such a combination or not, and that if he ctermined that they were so resisted, he would have had the right to call out the militia of the State, and as much of the militia of the adjoining States, within the limits of the law, according to his discretion, for the purpose of enforcing the execution of the law. Congress was necessarily excluded from all right to act in the case. Now, sir, let us apply these principles to the case of the southern States in which the people rose in resistance to the execution of the laws of the U.S. Whose office, whose duty was it to decide when they thus resisted the execution of the laws of the U.S.? It was the function of the POTUS The law of 1795 authorized him to do so, required him to make that decision, and commanded him to call out the militia for the due execution of the laws of Congress. The Supreme Court in both the cases from which have read decided that Congress by the passage of the act of 1705 vested the President with the sole and exclusive power to determine that poiuthimself, and that his decision cannot be appealed from; that it is final, conclusive, and exclusive. The court said in terms that the President had the exclusive right to decide that question. Ifhe has a right when the country is in a state of insurrection to order out the militia, he has necessarily a right to decide when the military power has suppressed it. He orders the militia into the service of the U.S.; he orders them and the U.S. Army also to march upon an expedition to put down the obstructions to the execution of the law. Everybody embraced by that order must obe it. The Supreme Court has decided that this order of his is dominant; that it controlsand commands the courts as well as all military and civil officers. It has been decided that he himself in virtue of this clause of the Constitution making him Commanderin Cliief, and the act of Congress, is clothed with the sole and exclusive power to decide that question of insurrection and to suppress it by force of arms. The further question whether the President has the power to decide when insurrection is put down, I admit is not expressly deter mined by the Supreme Court, nor is there any opinion upon that point suggested, but that is a sequence necessary of the principle which it did sustain. When it decided thaty the act of 1795 gives to the President the sole and exclusive right to determine when the country is invade; when a State has such a domestic disturbance in it as requires the President, upon the application of the Governor or the Legislature of that State, to intervene with the military power of the U.S. for the purpose of utting down the disorder; when they decid that the act of 1795 authorized the President himself, without the intervention of a districtjud e or of any other officer, civil or military, to determine that the laws of Corr gross are resisted ins. State by a combination too powerful to be put down by the marshal and his one comitatus; and that be having adjudge that to be the state of the case, orders the militia and the military power to march to the scene of invasion or resistance or disturb ance, their position that he had the discretion ary and sole power to determine the existence of the facts which required his intervention necessarily involved the principle that he was to decide when the force which his duty required to be interposed should also be withdrawn. What is the reason of the thing? Why is be authorized by the law of Congress to order out the militia or military force? It is to sweep away the obstruction to the due exc cution of the laws. When that is removed all is accomplished which the Constitution or the law or reason permits to be done. The normal state of things is restored; obedience from refractory citizens to the law and their submission to its due execution are brought about. Then, of course, the continuance of the application of military power is to cease. Would it not be absurd to so that the President has the right under the constitution and the law, as decided by the Supreme Court in these 2 cases, to precipitate the military power upon a refractory population for the simple purpose of enforcing the due execution of the aw, and when that has been achieved and the law is no longer resisted in its execution, but is peacefully and quietly submitted to by the insurgents, that the President has not the power to say that the cause for the interposition of the military power had ceased and to recall that power? Mr. President, Iwill now make this point: here is the law of Congress vesting the powers on which I have been remarking, in the President; lf Congress were to attempt itself to execute those powers without a repeal of the law, or were to pass a law vesting them in some other officer than the President, and that officer or Congress were to resist forcibly the President in the execution of such powers, that resistance would be treasonable. No power can rightfully interfere with the President in the execution of those laws, and if it be made he would properly remove it by the application of the necessary force. Mr. President, each House of Congress is by the Constitution made the judge of the returns, elections, and qualifications of its own members. The State Legislatures elect Senators to Congress and the Senate is made by the constitution the judge of the elections, returns, and qualifications 0t its members. In the exercise of this power I admit the Senate may inquire into the fact of an election by a State Legislature; but when they have reached that point they cannot proceed beyond it and inquireinto the regularity of the organization of the Legislature. Has the Senate the right to inquire and decide whether the members of a Legislature have been elected? No, sir. When the Senate, in the matter of judging of the election otits members, reaches the fact the choice has been made by the body acting as the State Legislature it can proceed no further, but must recognize and admit as a Senator the person chosen by that body, if be present the proper return. To inquire into the loyalty of the different members of the Legislature, and such matters, would carry the Senate into an unknown and shoreless sea, and far beyond the safe and constitutional power of the Senate. But, sir, in conclusion, I will state another pomt. Gentlemen in the majority dash alon ere as though they had the Government an the world in a sling. They do not occupy anything like as strong a position as they imagine. I here announce thatin ten days from this time the members of this Senate who are in favor of the admission of the southern Senators and the POTUS could legally and constitutionally place every one of those Senators in his seat; and it is a lain and demonstrable constitutional proiosition. The President is required by the constitution to communicate with Congress, and from time to time give it information of the state of the Union and recommend such measures as he shall deem necessary and expedient. Have gentlemen reflected what power is imported in those few short words? The Supreme Court has settled the principle that where the President is called upon to sustain the government of a State, by suppressing domestic violence, he necessarily has the power himself to ascertain and deter mine which is the regular government, where there are 2 in conflict. Apply that principle to the present case. Here is a provision in the Constitution which requires the President to communicate to the 2 Houses of Congress information as to the state of the Union and to recommend to them such measures as he shall deem proper and expedient. What does this necessarily impose upon him? He has to as certain what men compose the 2 Houses of Congress. It is his right, it is his constitutional function, to ascertain who constitute the 2 Houses of Congress. The members of the senate who are in favor of the admission of the southern Senators could get into a conclave with those southern Senators any day, and they would constitute a majority of the Senate. The POTUS has the constitutional option, it is his function, it is his power, it is his right, and I would advise him to exercise it, to ascertain, where there are 2 different bodies of men both claiming to be the Senate, which is the true Senate. If the southern members and those who are for admitting them to their seats constitute a majority of the whole Senate, the President has a right, and by the Eternal he ought to exercise that right forthwith, tomorrow, or any day, to reoOgnize the Opposition in this body and the southern members, the majority of the whole body, as the true Senate. And then what would become of you gentlemen? Oh, if the lion of the Her mitage, and that great statesman, the sage of Ashland, were here in the seat of power, how soon would they settle this question! They would say to, and they would inspire those to whom they spoke, “ You southern men are kept out of your seats by violence, by revolution, a ninst the Constitution, against right; the nion is dissolved, the Government is brought to an end by keeping the Senators from 11 States out of their seats when the Constitution expressly states that every State shall have 2 Senators.” These States have submitted. Has not the insurrection been suppressed? What else is to be done? Was it not suppressed ten months ago? Have not rebel armies surrendered? Are not their whole population disarmed? At the bidding of the President have the not put in their constitutions a clause abolising sla very in their respective States? Have they not ado ted the amendment to the Constitution of the U.S. abolishing slavery throughout the U.S.? Have they not inaddition repudiated the rebel national debt, if I may use the term? What other evidences of submission could theygive? What man notdemented by passion, orinterest, or some other worse influence could deny for a single moment that this insurrection is suppressed? It is suppressed. Was there ever an insurrection more effectually suppressed? Christopher Colum bus is not more dead than the late rebellion is dead. What other evidence can these people ive of their loyalty, of their obedience to the constitution and laws? What terms are they to submit to? What other conditions do you wish to impose upon them? The Senfrom Illinois says nobody wants to keep them out. They want to get in, and why in the name of reason, then, are they not allowed to come in? There is no difficulty at all if that be the true sentiment here; but it is not the true sentiment. We all know that it is not the true sentiment. They are to be treated as a conquered, subjugated, and enslaved enemy. That is not the sense of the Constitution. It is not the spirit in which insurrections are to be put down under its authority. When a domestic enemy, if you please, to our Government and country submits and gives all ev idence of submission; notpretexts, not feigned submission, but deep, honest, and abiding as the allant people of the South have; when they have surrendered every soldier they had in the field and have no longer a bayonet or lance to oppose the authority of the U.S.; when they have submitted to be disarmed, and there are not arms enough for a battalion in the southern States; when they are accepting 1st one humiliating condition so geste by the President, and then another, an then another, and are asking all the time for a restoration to their proper relations to the Government of the U.S., why are they stillrefused? They are loyal. They are more loyal than those who keep them out of their rights. I would sooner trust them today as the true and devoted friends of our country and Government than the men who trample upon the Constitution still further to oppress them. You cannot keep them out always, Senators. The time will come when there will be a recoil and a terrible recoil. This country is becoming impatient, indignant, and outraged by this paltering with the liberties of the southern people and with the fundamental principles of our Constitution. Whenever the $f88l ent chooses to grasp the remedy it is at his hand.