Year: 1868

s: ;1s
.insd and ey 6ess orderly return rom The rs ana blood


.aon. s nDon sss uaon sas
has essn - sgnslly manifested 70 the world.


haTe not said enough to show that the legislative
uerartment OF the government well as the execu-
rve has recognized nrst the State OF Mississippi as
being in the Union secondly, has recognized gov.
eminent - there existing; and thirdly, has recog-
nized the war as ended, and peace order TRANQUIL.
iity ana civil authority as existing throughout the
landf -


This is my answer If the court please to the propo
stions brought forward by the learned counsel and
elaoorately argued; and hope that have given


There yet remains another point not In the brief
nor 90 md u IN any written paper, but very much
urged IN the argument and constantly referred to in
puolic DEBATE, and that Is necessity These military
governments OF the South they say are legal because
they are necessary The usual phrase is, .sThis gov
has right to contest IT, and NV Whatever ever Congress de-
termines as necessary to this national life is right
ana therefore the , Executive and this court are to
OFF There is no federal necessity. The federal
courts are open the federal laws are executed the
no interference with any commissioner or oficer of
the United States anywhere In the country. There
Is no ~ S Of federal M kind for
What, then Is the necessity "Why," they say,
'they are unrepentant rebels" Is that the reason
why the military government Is theres II you are to
walt until you get repentant rebes-or should per-
haps, rather say, II you wait until you make rebels
he anH ~ swH5e orc you w nave n 20 wat
that Is the most remarkable and has the least force
I'VE will not allow the Southern States to govern
themselves, because II we do the government will
fan into the hands Of unrepentant rebels" WE'LL
what is that to you, they obey the laws-if they
them to love your Is that what You are aiming atf
OF course, 1t should be the desire OF all governments
and the aim OF all to make the people love as well as
obey; but 70 give that as an argument for military
government established is an extraordinary one.
"Well, them" they say, 1--WE wust protect the loyal
ment, which is the only one adequate to the end,
shall be kept up.n To that answer, first the Gene
raj OF your armies the person upon whom this extra
ordinary power has been thrown, certified himself
that that there was order throughout the South so
far as he could observe. But are there not other
tary coercionf The Union men Of the South, have
been told are IN the majority and have ever been in
the majority IN the South and i Is the minority that
ernment OF the United States necessary to sus-
tain the majority against the mnortyf A majority,
secession was carried by q minority OF the white
people against the majority and that the majority
answer then, to this objection. Necessity for mis-.
government Is the staple reason given by tyranny all
M the world over. It was the reason given by Philip
the Second for governing the Netherlands by the
Duke OF Alva It was the reason given for the mis-
government OF Italy by Austria; It was the reason


| win here venture to call attention to an argu-
ment put forth with great force and ability by
learned gentleman, now deceased, Mr.. Loring who
nad the honor, think, OF suggesting this mode OF
dealing with the South, and who has attempted to
justify 1t In pamphlet which have now before me
and from which win read one paragraph. Hesays:-


The power to upon State in rebellion for the
preservation Of the Union constitutional power neces
Y that % @
ercsed for other end nor beyond the justly


y the holding Of the territory Of as conquered or
rights Of civil S may Ss 81 as
20 @ dhiorce @ oneaence to ne constitution and laws
and revolt. '''''N'''''


That is the argument in the best form in which tt
can be stated. Now take leave to say that this Is
full Of fallacies. In the first place. there is no power
to wage war against State for the preservation OF
The power to wage war Is to overcome resistance to
the execution OF the federal laws and the federal
constitution, and that is all. You cannot wage war
against State for the abstract proposition that you
wish to preserve the Union The Union takes care of
itself when you execute its aws and you execute its
laws when you overcome resistance, and that Is the
only end for which you can wage war. And then,
furthermore, what right have you TO wage war
against the danger Of future like disobedience and
to the test.


see future event, by the little cloud that was to
darken finally the whole horizon, that war was
coming, would 1t have been constitutional exercise
OF power in the general government to wage war
upon the South9 Have we ever had q President


iii Can you send armies into any State of this Union
for the purpose Of guarding against the danger Of
future rebellion, and carry on war; You may have


renehen your That s9ua can ao and nd
ought to do; but you cannot wage war. II you can
then we have no guarantee for 1t rests forever in the
discretion OF Congress to order army to make war
upon State whenever IL may determine that there
Is danger OF something being done which ought not
A short time since proposition was mace to take
into the hands OF the federal government the whole
State OF Maryland and the whole State Of Kentucky
upon the ground that they were disloyal in heart
after all: that they did not mean really to be loyal
and that there was danger that hereafter they would
give aid and countenance TO new rebellion.
deny most explicitly that this limited government OF
ours has power TO wage war against State upon
against the government. We are limited to our con-
stitutoua duties and our constitutional rights which
are to enact laws as authorized by the federal const
Justice and the executive arm.


These military governments OF the South are said
TO be only temporary How do we know thatY Is
1t constitutional to do thing q temporary expe-
dent which Congress may continue as long as it
peasesY The conditions annexing 10 this first re-
construction act contemplated that the military
power should remain in the South until the amend
ment proposed shall have been ratified by three
fourths OF the States. The argument Of danger Is
an argument Of very little force on either side II
could refer TO 1t think could show that this court
tion Of military power dangerous to our liberty
What have we seen, and what do we now see 2
We have ,s,o, seen , the Chief Justice Of this
be lowered, taking his place in Circuit Court
In North Carolina, announcing to the bar that 1t is





sit where this process can be employed by military
power. And yet we have seen the execution Of this
process forbidden by military officers. OF course II
the Chief Justice had ever taken his again upon
that bench he would have punished the offenders as
they deserved. we have seen in a printed document
submitted to Congress, the testimony OF the Secre-
tay OF War that he believes the decision Of this court
in the Milligan case was wrong; that II was not
founded in law, though 1t was the unanimous
decision OF this COURT and maintaining still the right


e establish military commissions In loyal States We
have seen an act pass through house OF Congress
yNh nsf In ha urrF<l <lx<
unlimited control over all these eleven States; and
we have seen, too, introduced into the House an
amendment to an appropriation bill, proposing to
make your hall place TO be guarded by soldiers I
Here Is the proposition, which win read:-"Provi-
ded that from and after the close OF the current fiscal
year the police and protection of the Capitol building
and grounds shall be under the direction OF the en-.
gneer department Of the army, and the Secretary OF
War snail detail Tor that service from the garrison at
Washington such number OF non-commissoned OFF,
GERS and privaies not exceeding forty, as may be
deemed necessary for the purpose by the Chief En-
gineer; and soldiers when employed, shall have
an extra allowance OF twenty-five cents per day for
prvates and thirty cents per day for non
commissioned officers" II we go on as we