Cheraw gazette. [volume] (Cheraw, S.C.) 1835-1838, 1836-08-02
LAW lSTELLIGENCE.
The u. States er rcla:. 4. G. Ceycr, Us.

Motion for prohibition to the Narhal to
restrain him from proceeding under an
execution issued for fine arising under
the Act of Congress Of 2Sth February,
1895, entirlcd an Act to provide for calling
forth the Militia to execute the laws of the
Union, suppress Instructions and rrpcl IN
yaSionS.
The Relator has suggested many
grounds, which are strong, and may be
ten;,ble; but, as some of them relate en-
clusivelv to his case, and will not settle the
questions which may be made i'll a number
of other cases, l have thought it better TO
decide ii Oh ground which will embrace
all the cases.
The Constitution Of the Clitcd States,
in cnumcrating the powers Of Congress. III
in the S,h section of the 1St Article, de-
clareS-
"That Congress shall have power 10
provide for calling forth the Militia to exc
cute the laws oithc Union, suppress mSur-
rections and repel invasions." This is the
only authority which Congress possess for
calling forth the Militia Of the respective
States, and this authority must be exercised
in strict conformity with the above provl-
sion Of the Constitution. In pursuance OF
this Section Of the Constitution, Congress,
on 2sh February, 1895, passed an Act to
provide for calling forth the Militia to exc
cute the laws of the Union, suppress insur-
rcc.ions and repcl invasionS. The first
section of that Act declares
And in case of an Instruction in any
State, against the Government thereof, It
shall be lawful for the President cfthe Uni
ted States, on appicat on of,he Legislature
of such State, or the Executive, when the
Legislature cannot be convened, to cal
forth such number of the Militia of any
other State or States, as may be applied for,
or as he may Judge sufficient 10 suppress
such insurrcction. A like provision is made
by the Act for calling forth the Militia, in
case ofthe invasion ofa State, or ali oppo-
sition to the laws of the United States.
1t then evidently appears that the only
three cases in which the Militia can ba call
ed forth by the President of the United
States, are, an invasion ofa State, an lnSur-
rectiou in State, or an opposition IN any
State to the laws of the United States.
It is known to us all, that an insurrcc:ion
ofthe Indians in Florida made it the duty
of the President of the United States to call
forth from South. Carolina, AN adjacent
State such portion of the Militia as he
thought necessary to suppress the iuSarrec-
ton which had taken place there. This
call upon Carolina was legitimate ono
it was in accordance with the Constitution,
and promptly and patriotically obeyed.
Was the Relator one Of those drafted
from the Militia, or called forth to suppress
the iusurrection in Florida! 1t is not pre-.
tended that he was: 1t is admitted that he
was summoned, not TO 60 to Florida to
suppress the insurrcction there, but to gar.
rison Forts in the harborof Charleston. 1t
then becomes necessary to enquire, wheth-
or he, as Militia man, was called forth
under the Constitution of the United States,
or the Act passed in conformity thereto, to
perform any the du.ies required by that
Act.
Were the laws of the United States op-
posed in Carolina? No. Then was it
unnecessary for the United States to garri-
son Fort Moultrie with Militia. Was the
State of South. Carolina invaded? This is
not pretended. Then was it unnecessary to
garrison Fort Moultrie with Militia. Was
there any insurrection in Carolina? There
was not. Then, repeat, it was uuneccs-
sary to call forth the Militia to garrison
Fort Moultric.
II, then, there was no opposition TO the
United Safes in Carolina-if the State
was neither Invaded or in im,ninent danger
of invasion, is it palpable that obedience to
the summons served on the Relator to gar
rison Fort Moultric, in South. Carolina
cannot be enforced, conS;itutionally, by any
of the sanctions imposed by the Act Of
February, 1895, already recitcd. If the
President of the United States has the
power to call forth the Militia to garrison
the Forts of State, which is not invaded,
or threatened with invasion, in which there
is no insurrection, or opposition TO the
laws of the United States, then has he the
power to call forth the Militia of South-Car-
DINA TO garrison the Forts in New. York or
Massachusetts,, where no insurrcction, in
vasion or opposition to the laws of the
United States exist. But, it is due TO the
President of the United States, to say, that
ne gave no orders TO garrison Fort Mou!-
trie with Militia. Sworn, as | am, to sup
port the Constitution of the United States,
am bound TO decide, that neither the Con-
s:itution nor the Act OF 1895, required any
such service as the Relator has been called
on to perform. This case has been very
ably argued by Mr.. Thompson, for the Re-
lator, and the District Attorney, for tho