Year: 1868

Houston VA Moore the case to which tho gente-


citizen Of being ordered to rendezvous


in pursuance Of the direction OF the President and


order TsSnf e could


syysnis M un Therefore, though the dscson Is not re-


saying that In the dissenting opinion Of Nj. Chief


Justice Story, he declared that II person summoned


20 s ~ s Sae oS S e IN @


except by jury. That Is on page o. 5tn Wheaton,


The fourth section Of the sc. Of 1875 makes the .


sSsi ssass sasss


pTessn.msn Of Indictment q grand escsp
actual service. ~ - n


In short, there is not dissenting opinion any
where from the doctrine that trial OF civilians for
an sS on Il n
accusation BY grand jury. That binds the United
States and all Its departments conjoined. For let it
States means all the departments, and not sne Con-
gress s not the government any more than this court
any law make II Il were to sit for years. ana
be excited BY as much heat and passion as possible,
subject single citizen not In the military SERVICE
previous condition to trial Of any sort except by
jury OF his peers. That being so, the whole scheme
q the Reconstruction acts fan to the gro2nd Here
martial and military trials and enforced by military
arrests Congress has not chosen to intervene ex-
men with epaulettes its sherirs are soldiers with
6ayonets and i!s scanola is the green sward, with


Here, II the court please, as have said before,
think this argument ought to end For the question
Is whether McCardle being citizen Of Mississippi,
Mississippi be regarded as State or not-can be
subjected to military trial which involves his i'm
prisonment or his life, no matter under what pre-
tence or for what end, under the authority of the
government of the United States.


But now proceed to the second step IN this frst


Is to ay that the sa woSS
tify this act, being true-is the preamble truef Ia
there no legal State government In Mississippis or
rather was there not on the I'd OF March, 1887 And
was there not ut that time, adequate protection
for life apd property Now, deny that the pream
BILE s true In constitutional sense. OF course, am
not going into any question Of veracity into any
question of fact except what the court judicially
know Two facts are stated and should be separately
ernment In Mississippi; and second that there Is no
adequate protection for life or property. There may
Ss & a 50
questions may be most conveniently considered
separately.


Was there State government on the I'd OF March,
1857? Antecedent to that the question whether the
declaration OF Congress Is conclusive To test this
let me suppose case. Suppose Congress were TO-
morrow to pass an act with this observation-disclosures
there is no legal State government in the State OF
Massachusetts, 1t shall, therefore be made military
district and subject to the military authority OF the
United States and the district commander shall have
power to do what is provided in this act. Would you
accept thaG as absolute verty9 Yes, says one OF
the counsel; 1t would be an abuse OF power; but
Congress were to enact IL you could not contradict IT,
Is that Is IL true that under this government of
ours, 1t is possible for Congress to declare that
State in this Unon the State u Massachusetts has not
legal government and therefore can be subjected TO
military power9 deny 1t altogether What authority
has Congress to declare whether or not State has
legal or illegal gOvernmentY am not now discuss
ing the question whether 1t is or not republican.
say that the government of Mississippi not repubi
can but they say 1t is not legal. Now, ask where
has Congress the power to declare whether or
not q State has a legal governnent2 Take my
State and where has Congress the power to say she
has not legal governments What do You mean by
'segals' Legal, according to what law?-federal
law or State law 9-militafy law or civil laws For
legat means according to some law. Mr.. Justice
Nelson knows that the constitution OF New York
has been changed several times, he himself being
member of two OF the constitutional conventions
that made those changes and he VIII remember that
takeh on the question whether the convention to
frame the present constitution was constitutl0nally
called, and they decided it was not because the con-
venti0n was not called in the mode provided ny the
former constitution OF 1921.


Now, ask my friends, any OF them, has Congress
the power to declare that my state has not legal
gress has no more power to come into New
York and tell Us that we have framed constitution
contrary to our previous constitution than to de-
clare that the first government Of New York was,
q void government. And If they sheuld presume to
an answer which VIII be quite Sufficient. Let Inc
tell them that New York chooses TO frame her gov
ernment in her own way and VIII after :, u a. sie
be anti-republican In FORM and unt tLat quesuOn
arises the Congress OF the United States can have
nothing to do with us any more than we have 10 do
with them. The authority to declare thing IL the
authority to decide 1t. Congress has no power to
decide that the government OF New York Is not legal
except in the case OF its being not republican. There
fore say there is authority IN Congress TO declare
that the existing government OF any state Is not
legal. Consequently the declaration has no force.


Still less has Congress any right to decide whether or
not there is adequate protection to life or property
In the State OF New York. Congress has no power to
n there be not adequate protection, and
1t cannot decide anything III regard TO
1t.


OF no constitutional force though entitled to great
respect because coming from one of the departments
of the government-eaving that aside, as not au-
thorltative ask you to consider whether not the
government of Mississippi was legal governments
on the I'd Of March, 1857 The original act declares
that there is legal State government In Mississippi
but it provides in the third section that the military
commander may allow the local civil tribunals to
take effect. There IL government then, as matter
OF fact. "And all interference, under color OF State
authority with the exercise of military authority
under this act shall be null and vod. There IL some
State authority then. And in another section IT Is
provided that the citizens may have provisional gov
ernments only until they shall be entitled to repre-
sentation There is, then, provisional government.


So OF the supplementary act OF July 49, 1861 which
Is still more explicit. The irst section OF that act
speaks of "the governments then existing In the
rebel States OF Virginia, North Carolina, &c as not
legal State governments" They are existing gov
ernmens, be 1t understood. There Is no doubt about
THAT Inev were Ue JuCO governments Ol LAc reDel
States The state Of Mississippi had at the time a
De JtctO government which was exercising all the
functions OF government Here are It's statutes, and
here are its reports This (holding up the volune Is
but one OF the two volumes OF the reports oil the
highest court OF Mississippi during the time OF the
rebellion excepting the time when 1t was taken by
the federal army, and that forbade the courts TO
assemble. And In this last volume Is decision upon
the question whether or not they had legal govern
ment that s to say whether the government adopted


under the provisional governor was legal state


government. Now, II, according to the doctrine OF


the decision In the case Of Luther VS.. Borden, you


are to follow the decisions OF tile highest court IN the
State as 10 the legality Of their own government,


then the decision of the highest court IN Mississippi
is conclusive upon the action of this court.


Let me for q moment consider the case OF Luther
Vs. Borden, about when SO much has been said, To
show that, 80 far from afiording any authority


against US, 1t is an authority In our favor In the
| first place, as to martial law: What martial law In
that was esabiiseds by authority OF the State
OF Rhode Island. Under the charter Of Charles III.


the government had no limitation whatever; 1t could
exercise its powers In legislative, executive and


judicial capacity untrammelled and that has nc
more application to the question whether Congress
/ al, ,iSh fnanf nth