Year: 1868


s :r s. S:l, :y e As right o. me


In later days Hungary Is another instance. There
srnmsnt Of England The estates or the realm de:
two and half years followed carried on by the EN-.
peror Of Austria against Hungary under Kossuth IN
aid OF 100000 men nom Russia. Then came
the claim that Hungary was . conquered nation, and
Is he the Emperor Of Austria he the King Of
Hungary by the conquest; and the question was
whether he was King Of Hungary by the conquest or
King by the constitution, and after many years, and
yield, and the Hungarians are now resting in the
shelter OF their ancient constitution. Therefore say
that the law Of conquest gives no copntenance what
what have already argued that re Congress % had
power.


The next reason given for the military government
forfeited their rights BY the rebellion. That IS the
language. The people Of Mississippi and the State
Of Mississippi have forfeited all their rights That s
to say, they are outlaws. How have they forfeited
their rights Have they forfeited them by the peace
able act OF withdrawing from the United States; the
act to the act OF
ing their allegancef Most certainly not They have
denied the right Of the federal government to keep
them In tue Union But does that result in the loss
OF our rghtf II Is not 30 In the case Of private con-
tracts. One cannot be abs0lved from contract
without the consent Of the other party. Does war
produce these resutsp II war exists, then they are
fevying war against the United States. But levying
war is treason Have they forfeited their rights by
every man in Mississippi were guilty Of treason, not
one could be touched by act Of Congress, except
expressly forbidden from passing an Of attander
There may be In Mississippi million OF peopiei
Congress has not the power to pass an act agalns.
one Of them, declaring that whereas he has been
guilty of treason he may be taken and punished
without conviction. Still less they pass an act
against the whole people. Besides, might add that
treason is a personal crime. The people may be
guilty OF IT. but the State AZ great corporate Dody


The next reason given for governing Mississippi
by military power is belligerent right. They say
they have the right to assume the government Of
answer to that argument Is this:-There can be no
belgerent rights where there are no belligerents;
and they are no belligerents, because the war war y
no bellum That is the first answer. The next is
that during war, fdgrdnte oelI0 1t was not compe-
assume the government Of State which IT occupied
with its forces Let me ask your attention to this
for few What could the Ssy ao5
wage war other wars are waged; they could ravage
and kill; could fight the armies OF their enemies and
subdue them. But could they goyerns That Is to
say, could they take into their own hands
sne s'ays With their
] am not now asking what they could do when
wag but am sappossRS s taas they
that there s not hostile hand raised In the State,
and that they are carrying their hostile operations
power to assume the government Of Mississippi to
themselves. What right has an army OF sovereign,
occupying his own territory when every hostile orce
Is Subdued to take into its own hands the govern
ment Of the country by right paramount to the
antecedent rightS suppose, however, they say
and this Is the way in which the argument is put
suppose that there utter anarchy suppose that In
the state OF Mississippi during the occupation OF 1t
by our armies there s such utter anarchy hat there
am supposing case which does not exist. 1t seems
to me very idle discussion; but my learned friends
have made an argument upon 1t, ana, therefore,
must notice 1t. Therefore ask what can an Occu-
pying army dOf The occupying army may keep the
peace and that is all Is 1t TO force Institutions upon
the country What right has New York, l should


like to know to force its institutions upon Mississippi
under any circumstances whatever War does not
give the right. What dOesp Is IL anarchy Then
the question comes to this Does condition OF
total anarchy in one State give the other States
right 60 in there and construct their government
deny it. am not discussing the right of revOlu-
ton. may admit that the people OF nine-tenths or
threef0urths OF the States may nav the right ny an
act OF revolution, to invade and subdue State, be-
cause there comes in the great right Of revolution, OF
self-preservatiOn which is above all others. But
that not the question The question here is one Of
constitution And deny that in state OF absolute
anarchy the Stvte Of Iowa be forced to take the
institutions OF New YORK sae people 4n h New YORK S
Iowa shall receive her form OF municipal or state
government. 1t Is for Iowa to determine for herself


The fundamental doctrine Of our government Is, that
the people have right to change their own form OF
government as they please. Ihat Is set forth IN



that IL results that no other State has right to
intervene. -
discusson 1t is one that does not enter into this
case at all, and which should not have entered
upon If had had the opinion just read by Mr.. Chef
Justice Nelson, where that most revolutionary gov
ernment of the cOnfederacy Is said to have been
government de tact0, with all Its departments egis-
lative judicial and executive having every part OF
the government in full operation. II that is so then
the states that composed 1t had the same and Missis
sppi was among the rest: They had ae Jacto govern
from the necessity Of assuming the government on
account OF utter anarchy is one that has no ounda
ton whatever. But one of the learned counsel says
these de Jacto governments not governments de
ju,e, because they had not taken the oath Of alle
glance to the United states Let US M iook az that
federal sense, for they had renounced their alle-
glance. They could not send members to Con-
gress. They had Legislatures not acknowledging
fealty to the United States, and for that reason
they could not send Senators, and for similar rea-
son they could not send members to the House Of
Rcpresentatves But is It true that because they
had thrown or their allegiance all their acts OF legis
aon were nulls Look at Mobiles is every act OF the
City Council Of Mobile since the war began nullity
When did the Virginia Legislature resolve not to
take the oath OF allegiance to the United States
How long agof Before the war, believe. Has not
Virginia been legal State government during that
time l askf The obligation to take the oath Is
directory that Is ALL If they do not take the oath
they are none the less governments. Not only would
the consequences follow which have indicated with
regard TO The City Council OF Mobile, but the constitu
ton Of the United States provides that all legislative
and judicial officers should take the oath to support
the constitution. Now, II such s the consequence, as
have indicated there has been no lawful Judge upon
the bench in the South since the war began; and
there has been no judgment which is not nullity
from 1851 to 1864. ls that sOf Is any man In his
senses prepared to assert thats


But the doctrine OF hostile occupation In war has
no application in civil war, for the same reason
that the doctrine OF conquest has no application to
civil war; the greater includes the less. For the
occupation being only for temporary cause, II can
certainly operate no further than when 1t is for
permanent cause.


Let me refer you to a few authorities. One OF
them Is citation from Haeck In his work on inter
national law, page S06, section 29 in which he says


sn the civil war between Cpsar and Pompey the for
mer remited to the city Of Dyrrachium the payment
OF a debt which 1t owed to Caius Flavius, the friend
| Of Decus Brutus. The jurists who have commented
| on this transaction agree that the debt was not
legally discharged; first because In civil war there
| could be- properly speaking, no occupation; and
| second, because II was private and not public
debt.n


| "ln civil war;" says Philmore, "there could be
no occupation


"A civil war; says GrotIus '1s not Of the same
kind concerning which this law OF nations was inst