The States and Union. [volume] (Ashland, Ohio) 1868-1872, 1871-05-03

scribes the sole occasion on which the
National Government may interfere
with the function OF maintaining do
mestic quiet which nominally belongs
to the States. We remark, in passing,
that it is only by giving full and afr
native force to another and similar
parenthetical and conditional clause
that Congress acquires the right to
suspend the writ of habeas corpus un-
der any circumstances. Congress has
utterly ignored this necessary limita-
ton, has treated the constitutional
provision as though it did not exist.
and as though the article read, 1.-THE
United States shall protect each of the
States against domestic violence. y
There could be no palmer departure
from the fundamental principles of the
organic law, no clearer violation of its
~prohibitory clauses.
The fourth section Of the statute is
evidently based upon the clause of the
Constitution relating to the suspension
of the writ of habeas corpus. AS
there is no pretense of an invasion,
Congress has undertaken to define a
rebellion Rebellion is a word we'll
known to all writers upon public law
it has a well ascertained and precise
meaning, and describes a positive fact
and not a theory or supposition. Con-
gress, however, has now declared that
several different circumstances Or con-
ditions, not united, but each separate
", shall constitute q rebellion-name-
" %, when any one. of the "insur-
rections: domestic violence, combina
lions or conspiracies,,' all already men
TONED shall be So powerful as to be
able to Set at defiance the authority OF
the State or of, the United State; or
(2) whenever the authorities of the
State shall be in completely With, or
shall connive at, the purposes of such
combinations, and the public safety in
such State shall thereby become i'm
practicable. In each of these alterna-
lives, the continuation, violence or
conspiracy shall be deemed a rebel
lion against the United States, and
the President may suspend the privi-
Flege of the writ of habeas corpus -
The Constitution Uses the word rebel
lion in the sense recognized by all jur-
lists. Congress can moi change this
meaning. because it can not change a
| fact it can not make that a rebellion
which is not a rebellion. Rebellion is
war-war no longer ~incipient. but ac-
tual /; it is a condition in which all
civil administration is suspended or
o~verthrown, and the nation must, for
the time and in the district infected,
employ its military arm alone to over
come the insurgent enemies OF the
Government. It should be remember
ed that Congress can not inaugurate a
civil war. That state of hostilities
must be commenced by the rebels. and
must have developed itself into a war,
before the peculiar military powers
conferred by the Constitution become
operative But>this statute contem-
| plates no such state of active hostili-
ties, 1t makes, among other altorna
tives, domestic violence. unlawful COM
binations or c~opspiracies, with the
purpose Of which the State authori-
ties are in completely or at which they
shall connive, a rebellion against the
United States. No war is described
here, nor even any resistance to the
national authority as such, becsuse
the combinations, violence, and con-
s~piracies spoken Of are to be in oppo-
sition to state laws alone. 1t needs
no further analysis of tt is section to
show that it a not be sustained by
the constitutional provision which de-
clares under what circumstances the
writ of habeas corpus may be sus-
pended. Congress can not by any
mere array Of words make that exist
which.doessnot exist in fact.
It-has. been asserted that these sew
eral provisions were copied from an
early statute, passed in 1875, author
izing the President to call out the mil
itia in certain cases, and that the Su-
preme Court has decided, in a Ease
arising under it, that the President
possesses an unlimited and final dis
cration over the whole matter Of en-
ploying the military force Nothing
could be more untrue. The statute
or 1895 was carefully drawn, so as
to comply with the very letter of the
Constitution. 1t simply declares that
"whenever the United States shall be
invaded, it shall be lawful for tue
President to call out the militia" etc.;
also, Gin case of an instruction in
any State against the Government
thereof, it shall be lawful for the
President, on application of the Leg
islature of such State, or of the Exec
utive when the Legislature a not be
convened, to call out the militia" etc.;
also, whenever the laws of the U
s. shall be opposed or the execution
thereof obstructed by combinations too
powerful to be suppressed by the or
binary course of judicial proceedings,
it shall be lawful for the President to
call out the militia" etc. All this was
plain, accurate and in exact conformi-
ty with the organic law. The case
referred to was Martin VS.. Mott (12
Whcaton'sR r., 49,. The President,
during. the war ot41812, having called
out certain portions of the militia,
a person subject to the call refused, to
appear. Being tried by a court mar
tial and fined, he brought an action
against the officer who-colleeted the
fne, alleging that there was no necessi-
ty for the Presidents action. The
Supreme Court decided that, under
the statute, the President alone could
determine whether a call of the mill,
tia was necessary, and that his discre-
ton over this particular subject was
absolute and final. The. statute did
not assume TO define an invasion nor
an instruction, nor did it confer upon
the President any such function
much less did it authorize him t. de-