Year: 1868

tatlon IN asserting Let rs put the strongest case
were In Mississippi to-day inciting and inaugurating
anarchy and opposing the reconstruction OF the State


could NJ g SS
Congress could pass an act Of this tenor whereas
there Is no state government In Mississippi ana ~
\ ts totally disorganized and whereas the contin-
lance OF this Union depends upon the reconstruSc-
that Jefferson Davis be attanted and tnat
the marsnal be directed to take him Iortnwnn ai,
nnS fm ese - %
nay, defy any lawyer to assert that Congress mas
the power to pass such an act why not @ tSse
| own experience and from the history Of the world
vthat power h liable to be abused and that In the
i excitement OF party In the storm OF war, the clvl
Department OF the government, Congress or the ex-
ecufve department, might be tempted to use means
safeguard and have declared that under no circum-
stances and for no end, however desirable shall any
ss YOU Know You know that this constitution Was
adopted in the different States with the greatest
dnicuty; that fears were expressed over and
over again OF the abuse OF power by Congress
that at the very first session Congress recommended
amendments which had been suggested by Mas
were adopted. Those, eleven In number, are
nothing but prohibitions upon the exercise Of
would have been unnecessary, because Con-
gress could pass no act for any but per-
NJ Msa s snd tSo, What are r. these One
any capital or other infamous crime, except upon
Indictment by grand jury; and no man shall he
Those prohibitions strike at the root Of these statutes
and 1t Is Of no consequence In that regard whether
the preamble be true or false.


Thus far have refraned from referring to the
Miligan case decided by this court more than year
ago. might have saved myself labor by citing 1t in
Inc beginning But have thought 1t might be well
to state the argument anew and then fortfy myself
Dy the Judgments Judgment which has given the
which will stand forever as one Of the bulWarks Of
constitutional freedom.


were decided applicable to this. One was that the
court would take Judicial notice that where the courts
are open there Is peace in Judgment Of law. An
were made "fcr state of war as well as
o state Of peace. and are equally binding upon
circumstancesn-a sentence which deserves to be
written in letters Of gold and placed in the chambers
OF justice as some Of the sentences OF Magma Charta
are written in the judicial halls Of England. third
was that civilian could not De subjected to military
trial. Now, with the utmost respect for the learned
that the argument for the exercise of military power
was exhausted in the Milllgan case; all that was
br0ached yesterday brought before the court in
that case the history of martial law in England and
France was brought before the court and the court
disposed OF 1t IN the Judgment OF which have al-
ready spoken. 1t Is ide-it s presunptuous-toc come
into the court and reargue that matter, anything
more could be said. The discussion and the case Is
closed in this tribunal


Before proceed from this part OF my argument to
the next, which Is to attack the premises upon which
this military legislation is founded will make short
DEPRESSION to consider the objections which have been
urged BY the learned counsel who last addressed the
court against the jurisdiction OF the Circuit Court.
These objections are very BRIEF and can be very
briefly answered. In fact, they have been answered.
as think, In the opinion pronounced by the Chief
in which he said with reference to the Circuit Courts
in Ills own emphatic language, that 1t was impossible
to widen their Jurisdiction.


MY learned friend made mistake In saying that
the legislation OF March 1867, upon habeas corpus
being in addition to previous acts does not apply to
any case Wnere the power to issue the writ was pre-





argument of the learned counsel because McCardle
is restrained by federal authority although in viola
tiOn OF the constitution, you cannot release him
writ OF habeas corpus. This Is u SaQ,utLr. Nc
Cardle claims that he ls restrained In contravention
OF the constitution OF the country. But, says the
counsel his was military offence, and military
offence Is not within the act. A military offence
The statute says 'it shall be the duty OF each officer
assigned as aforesaid TO protect all persons in their
rights of person or property; to suppress insur-
cece cse 10 a'qraer e and M to punish ~ or
public peace and criminals; and to this end
he may allow civil tribunals to take jurisdc-
tion OF and try offenders; he shall have power to
organize military commissions or tribunals for that
purpose;'' and, therefore, says my learned friend,
every case which can be brought before military
commission is q military offence. Then all crimes
are military offences. Even though act is not
offence against the penal code OF Mississippi or OF
the United States It can be brought before military
commission and tried as Il military offence. have
great respect for the learned counsel; but really
cannot argue that point. military ofience is one
committed by military man, or an offence which In
some way affects the government of the army.
1t is asserted again-and may as well notice that
here-that McCardle is not accused of an infamous |
crime and that therefore, he Is not within the pro-
that under this law he can be hanged by the military
commission. There is no limit 10 their authority.
melting surrection is under the act Of Congress,
an infamous offence because 1t subjects the
offender to imprisonment in the State prison:
The court are aware that an act was passed
July IL, 1862, by which melting insnrrection Is
made punishable by Imprisonment for period not
exceeding ten years, or by line not exceeding $4,000
Whether, therefore, there be or be not legal State
government in Mississippi, and whether not there
be adequate protection for life and property the pc
ttoner could not be subjected TO military trial. being
a civilian because OF these pr0hbitinos.


But we are told Mississippi Is not a state, and,
therefore, the argument does not apply. Mississippi
not state SHALL discuss that question by and by.
But granting, for the sake Of argument that is not


State 1t Is within the United states. IL IL within
our limits, and the prohibition of the constitution
extends cver every foot OF soil where the nag OF
the country floats, from Massachusetts to Texas.
You may 20 the Western States and Is there your
projections; you may go into the mountain districts
between US and the Pacific, and IL Is there protec-
tion; IN California IL covers you with Its shield you
go norhward toward the pole to far Alaska and It Is
Just as much protection there as here.


In the Of Dred Scott VS.. sanford, 10 Howard
page 40, there is the following emphatic language
OF the Chief Justice delivering the opinion OF the
COURT


citizen be discretionary power under our con-


md form Of ~ as p o. ne
and plainly defined BY the constitution itself And when the
ernmen, eners into possession a the character Impressed
those who created II. IL u with
powers citizen strictly defined and limited by the
s.liuon, from which derives its existence, and by
virtue Of which alone continues 10 exist and act
sovereignty II has OF kind be-
yond and cannot when enters territory OF the United
States OF its character aud discretionary or des
power, which the constitution has denied to It, The
territory being part Of the United States the government
citizen both under the authority Of the
son with their respective rights defined and marked out,
federal exercise power his
property what that instrument coniers
| lawfully deny any right which II has reserved.


Let 1t not be said Of this opinion that the case Of
Dred Scott has been so much censured that Its
authority weakened. This is the Judgment OF the
court delivered by the Chief Justice and concurred
| In by six of his brethren. The two dissenting
| opinions OF Mr. Justice Mclean and Mr. Justice Cur.
| It's similar emphatic language. The opinion OF
Mr. Justice Mclean Is on page 542, as follows:-"No
powers can be exercised which are prohibited In the
constitution or which contrary to Its spirit 50
that whether the object may be the protection OF he
| persons and property OF purchasers OF the public
| lands or Of communities who have been annexed tt


the Union by conquest purchase they are nitatory
| to the establishment OF state governments, and ne