The New York Herald Newspaper, March 14, 1868, Page 4

THE MeCARDLE CASE. United States Supreme Court. If the court please, if I were ambitious to connest name with @ great event in the constitution al ry of my-country I should desire mo better op-* baa ‘is men ng after the fect which now tread the halls of this pitdl have made their last journey and tlie voices lnow 6 loud are forever silent, But though the part (which the bar bear in this transaction is far inferior yet even they assume a portion of the re- » While the words that are to fall from fyou will stand forever in the jurisprudence of the nd. In approaching the argument of so great a use, it is of the first importance to exclude from it eryvextraneous or disturbing element. We should ‘be liffed, if we can, above all the strifes and passions fof the hour into a serener air, with wider horizon, ‘With the struggle for office, with the rise or fall of pei ‘with the policy of President or Congress, we Within the walls of this \chamber of justice we look only to the law 1d to the constitution, But that does not revent our taking care that the independence of the neh and of the bar is not menaced; or, if that hap- an “that the menace be repelled. I say this the the because one of, the counsel saw fit to say that thap that which this case’afforda, ere transacted will remain in the memory ito you bro ve nothing to do. it was the duty of counsel to admonish the court. \Admonition of what? Of impeachment, because you \difer'from Congress upon a constitutional question; f packing the court at some future time; of enact- Qng that two-thirds or three-fourths of the whole Shall be necessary to decide a case; ar excluding the ‘Pourt from their chamber? Admonition from whom? (We know that the President has none to give; he disclaims it. We know the counsel are deputed by the Secretary ef War. Is it admonition from the Becretary of War? If Idid not know that my wor- thy friend the Secretary of War is barricaded in his jown office, from which he dare hardly issue, I showld ‘hink this more serious. Admonition from Congress? i have the highest respect for the members who exe- ‘eute the function of legislation for this country; but they yare representatives, all of them, of States or people; and when I reftect that from the great States ‘of New York, New Jersey, Pennsylvania and ‘ohio, and from California, they represent but 9 min- rity of the people, the admonition comes with less rce than it might otherwise have. But as a pen- ‘Gant to'this admonition we are told that this court is not @ co-ordinate department, of the government. fot “a co-ordinate department of the ‘ gov- ernment? Is there any department — ¢o-or- inate with Congress? ‘This is the firat time, rtainly, when it has been suggested in this court that the judicial department was not co-ordi- mate with either of the others. And certain I am khat in the great convention where sat the conscript Yathers who made this constitution such an idea wnever entered. ForI find at the beginning in the ‘original plan it was resolved, as the first resolution ‘of the convention, that “It is the opinion of this pomppltes that a national government ought to be established, consisting of a supreme legislative, ex- ecutive and judiciary.” Turning to,the comments of the great founders of'the government, I find in the Federalist,” the forty-eighth number, this remarke- le exposition, written as if with the spirit of pro- hecy :— I shall undertake to show, in the next place, that inless this department is so far connected and lended as to give to each a constitutional control ver the others, the degree of force which the maxim —- as essential to a free gvvernment can never ¢ In practice diy maintained. It is evident that in eference to each other neither of them ought to pos- ess, directly or indirectly, an overruling influence the administration of their respective powers. It ill not be denied that power is of an encroachin; ature, and that it should be effectually restrained tfrom passing beyond the limits assigned. After assigning the powers as they should be, the ext and most dificult task is to provide some pro- ibition against the invasion of the prerogatives of ‘he one by the other. Will it be sufficient to deine ‘he boundaries of each and trust to their forbearance gainst the encroaching spirit of each against the | jother? Experience shows that it is necessary to pro- Wide some adequate protection of the weaker against e invasion of the more powerful. The legislature is everywhere extending its infu. . ‘ence and drawing all its powers into it et fo ng Pp its impetuous } What i8 the question before the court? It is this:— \A citizen of Mississippi, in October, 1867, was rought before a military commission and put upon for writing in a newspaper a criticism of federal fnilitary ocMers and advice to the electors not to Wote, or how to vote, upon certain public questions, He was hotig the army or navy; he was not im- poe with @ military character; and the question for you to decide Is, whether, under our government, citizen, a mere civilian, can be subjected to military rial, under the authority of the federal government, he trial is defended upon the authority of the three acts of Congress usually called the Military Recon- @agetion acts, And the question, therefore, is, twhether these acts are or are not reconcilable with tuo supreme law of this land. If they are, our great forefathers made a charter of government intended | ‘to last for all generations of such a character that jwithin eighty years after its adoption that federal government to which the States—originally sove | reign and independent—surrendered a portion of heir power can take upon itself the government of @ State and govern it by the army alone, That is the question which iy this last resort is brought before the supreme judges of the land. And the principal juuéstion hiiges upon the preamble to the original x the first and third sentences, which I will Ow proceed to re } Whereas no legal State governments or adequate rotection for life or property now eXistin the rebel tates of Virginia, North Carolina, south Carolina, jeorgia, Mississippi, Alabama, Louisiana, Florida, exas ahd Arkansas; and whereas it is necessary hit peace and ood order should be euforced in sald Biates until loyal and republican State governments wean be legally established; therefore, } Be it enacied, &c., That said rebel States shall be ivided into military districts and made subject to ye military authorliy of the United States as hereln- lafter provided, &c. } And after providing for the assignment of an ofM- cer of the army to the command of each district the ect proceeds in the third section thus:— ! ‘That it shall be the duty of each officer assigned as @foresald to protect ail persons in their rights of per- fon and property, to suppress insurrection, disorder jand violence; to punish or cause to be punisied all @isturbers of the public peace and criminals; and to his end he may aliow civil tribunals to take juris- pion of and to try offenders; he shail have power to rganize military commissions or tribunals for that urpose, and all interference under color of State thority with the exercise of military authority inder this act shall be null and void. “Here is the preamble and here is the conclusion. 1 leny both. I deny that the preamble is true in a con- titutional sense, or as @ justification for assuming government of a State; and I deny that if the reamble be true in every one of its parts, it justifies his government for these military statutes. I propose to call attention to these questions in ir reversed order; to this first, whether, if it be that there 1s no local State government in Mis- Pissippi and no adequate protection for life and pro- perty, it be competent for the Congress of the United Pitates to take into its hands the whole government pf the State and carry it on by the military power of David Dadley Field, Eeq., in tho | 4ie is therefore on trial for a capital crime. sachusetts and Virginia, and those am ents were adopted, Those, eleven in number, are nothing but prohibitions upon the exercise of power for a permitted end, as otherwise they would have been unnecessary, becanse Con- gress could er Rent Re aes a ae mitted end, hat are these prohibitions? One of them is that no man shall be subject to trial for fy, capital or other infamous crime, except upon indictment by @ grand jury; and no man! be brought to trial for offence except before a jury. Those prohibitions strike at the root of these statutes, and itis of no consequence in that regard whether the preamble be true or false. ‘Thus far I have refrained from referring to the Milligan cape, decided by this court more than a year ago. I hs fp have saved mel labor by olting It in tho be But I have thought it might be well to state the argument anew, and then fortify myself by the judgment—a judgment which has given the court anew title to the respect of the world, and Which will stand forever as one of the bulwarks of constitutional freedom, What was decided by thatcaae? Three p' ns were decided ppolicabis, to this, One was that the pourt ecmass “A Judicial ee that where the courts peace ment of law. An- that the prohibitio: other, the constitutio. were’ made “for @ state of war as well a8 @ state of , and are peac ually bind: dy rulers and people at all unk and ena circumstances”—a sentence which deserves to be written in letters of gold and placed in the chambers of justice, as some of the sentences of Magna Charta are written in the judicial hails of England. A third was that a civilian could not be subjected to military trial. Now, with the utmost respect for the learned counsel who argued against us yesterday, I must say that the argument for the exercise of military power wes exhausted in the Milligan case; all that was broached yesterday was brought before the court in that case; the history of martial law in England and France was brought before the court, and the court Teady spoken. It ts idle—ti is presumptuous—to come into the court and reargue that matter, as if anything | More could be said. The discussion und the case is | Sere noe fetal ata ‘ efore I proceed from this part of my argument to the next, which is to attack the premises upon which this inilitary legislation is founded, 1 will inake a short digression 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, aud can be very briefly answered. In fact, they have been answered, as 1 think, in the opinion pronounced by the Chief Justice a few days ago, upon the motion to dismiss, in which he said, with relerence to the Circuit Courts, in his own emphatic language, that it was impossible to widen their jurisdiction, bye Jearned friend made a mistake in saying that the legislation of March 2, 1807, upon habeas corpus, being in addition to previous acts, does not apply to any case where the power to issue the writ was pre- viously given. That is to say, according to the argument of the learned counsel, because McCardle is restrained by federal authority, althongh in viola- tion of the constitution, you cannot release him on & writ of habeas corpus. This ts a non sequitur. Mc- Garde claims that he is restrained in contravention of the constitution of the country. But, says the counsel, his was a military offence, and @ military offence is not within the act. A military offence | ‘The statute says, “it shall be the duty of each ofticer assigned as aforesaid to protect all persons in their rights of person or property; 10 suppress insur- rection, disorder and — violence; to punish or cruse to be punished all disturbers of the Po peace and criminals; and to this end @ may allow civil tribunals to take jurisiic- tion of and try oitenders: he shall have power to organize iilitary commissions or tribunals for that purpose;” and, therefore, says ay ere Iriend, every case Which can be brought re & military { commission is a military offence. Then all crimes are military offences. Even though an act is not an offence against the penal code of Missisalpp! the United States, it can be brought before a military commission and tried as a military offence. I havea great respect for the learned counsel; but really I cannot argue that point, A military offence is one coramitted by @ military man, or an offence wiich in some way affects the government of the army. it is asserted again—and I may as well notice that shere—that McCardie is not accused of an infamous crime, and that, therefore, he is not within the pro- | hibition of the amendments. To this I answer, first, tiat under this law he can be hanged by the military commission, There is no limit to their authority, : Secondiy, igen iusurrection is, under the act of Congress, an iniamous offence because it subjects the offender to tmprisonment in the State prison. The court are aware that an act was passed July 17, 1862, by which inciting insurrection is made punishable by imprisonment for a period not exceeding ten years, or by fine not exceeding $10,000, ‘Whetuer, therefore, there be or be not a legal State government in Mississippi, and whether or not there be adequate protection for life aud property, the pe- titioner could not be s@bjected to military trial, being a civilian, because of these prolibitinos. But we ure told Mississippi is not a State, and, therefore, the argument does not apply. Mississippi nota State! 1 siall discuss that question by ‘and b 4 But granting, for the sake of argument, that it ie not @ Stale, it is within the United States, It is within our jimits, and the prohibition of the constitution extends .ver every foot of soil where the fag of | the country floats, from Massachusetts to Texas. You Ko to the Western States, and itis there your protection; you may go tuto the monntain districts elween us aud the Pacific, and lt is there @ protec- Uon; in Caiifornia it covers you with its shield; you go northward toward the pole to far Alaska, and It ts wuniord, 19 Howard, Just as much a protection there as here, In the case of Dred Scott vs. 8 page 449, there is the follow emphatic language of the Chief Justice delivering the opinion of the court:— But the power of Congress over the person or property of a citizen cau never be mere discretionary power under our con- stitution and form of government, The powers of the goveru- ment and the rights and privileges of the eitizen are regulated and plainly dedned by the constitution itself, And when the t becomes a part of the United States the federal gov- ernment enlers into possession in the ebaracter impressed it by those who created it. It enters upon it with its er the citizbn strictly defined and liuited by the con- from which ft derives kts own existence, and by virtue of which alone ft continues to exist and met aaa cov- ernment and sovereignty. It has no power. of any, kind be: it, and it cannot when it enters a territory of the United tates put off ite character aud assume discretionary or des- power, which the constitution has denied to i. ‘The elng apart of the United States the government citizen both enter {t under the authority of the con- stitution, with their respective rights defined and marked out, ‘and the federal government can exercise no power over his Person ot property beyond what that instrament confers, nor lawfully deny any right which it has reserved, Let it not be said of this opinion that the case of Dred Scott bas been so much censured that its authority is 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. tis use similar emphatic nageee. The opinion of Mr. Justice McLean is on page 542, a8 follows:—“‘No powers can be exercised which are prohibited in the constitution or which are contrary to its spirit; so that whether the object may be the protection of the persons and property of purchasers of the public ands or of communities who have been annexed to the Union by conquest or purchase, they are initiatory jeri andt plone? Ifthat authority exists it must be found in to the estabilsument of State governments, and no More power can be claimed or exercised than is the constitution; it cannot be found anywhere else. | necessary to the attainment of theend. This is the Prhis is a limited government. No power can be ex- ercised except that which is granted expressly or by Then, I say, where is the It is ecessary implication. vuthority for this military government? expressed in any one of the phe owers of Congress. or tl cause there is no adequate protection for life or erty? There is none whatever, or ig it implied in any one of the implied, from any one of the pr ‘0 under any circum: itself the government of a © it by the military power, for the re node of government is expressly pre constitution. Congress cai never, in the exercise of ranted powers, or for the purpose Wject, no matter how good or « a ibited means. This is so elementary nat periaps right not to spend any time in discussing it. But he argument on the other side was almost entirely tre end is good, and Congress made up in this way; pay Use any means th Immediately fol have just refer visions of granted power, are several prohibitions, 3, for example: Congress shall pass no act of attain: jer, nv ef post fucto law, nor suApel habeas Corpus, except in case of vasion. To tlustrate, suppose there was no legal State Zov: it pleases, ntaining th not eighteen ubdivisions of the eighth section of the first rticle, that which contains an enumeration of Is it implied im any one hem? I ask, where ia the power under these ighteen sub-divisions of the eighth section for Con- 8 to take upon tiself the government of a State, ecause there is no legal State government or be- You cannot find it, ; but if it were rs granted—that ances, could take upon le, it could not govern on that that | Gissent, ited by the ‘The argument is as short as it is con f attaining we le, use a pro- owing the eighth section, to which eighteen sub- nd the writ of insurrection or limitation of all federal powers. Congress has no right to regulate the internal concerns of a State as of a Territory; pees ed in providing for the overnment of @ Territory, to some extent the com- pined powers of the federal and State governments are necessarily exercised.” The opinion of Mr. Justice Curtis, on page 614, re- ferring to the clause about the territory of the country, says:—“If, then, this clause does not con- iain a ‘power to legislate respecting the territory, ‘what are the limits of that power? ‘To this I answer, that in common with all the other legisiative powers of Congress, it finds limits in the express prohibt- tions of Congress not to do certain things; that, in the exercise of legisiative powers, it caunot pass an ez post Jacto law or bill of attainder, and so on in fespect to the other prohibitions contained tn the constitution.” : In the a of Mr. Justice Nelson there is no although he confined himself to a view of the case which did not make it necessary to enter into this discussion. Ihave, therefore, the opinion of every member of that court against the exercise of power upon which the whole La of the defendants rest, Con- gress, though it has the power in Mississippi to do everything that it could do if the country had been ained from Spain yesterday, or from the most unlim- ited government On earth, Congress could not govern it by the army; nay, 1 Will take the case of Alaska, just come from the control of Russia, where there is no constitution, but an autocrat legislating according to his wil! alone, and we have succeeded that gov- there, if there be any vitalit; in the mn, Congress cannot pass a law making the wd of Alaska subject toa milf government, fr at be #o, is there not an end to thi ment? A parallel argument le coutpingd jn the caso of disposed of it in the judgment of which I have al- | Ve and to be,” can for | in pursuance of the ‘of ‘those reasons, an act.of ti tare by otto Governor, 2efualng, fp. Sineed, could in asserting it? uy ‘Cal was the of the State of Pena- Zou can, Buppeee We. eraah of the rebellion | sylvanta. the ie not re- Were in iL 4 and inaugurating evant to this case, I refer to it for 9 Purpose of SET 804 OF) ction of the State, that in the dissent! 0) ‘Mr. Chief $0 that unless jee got out of the | Justice Story, he declared ‘@ person summoned way there pe wo panonanreciion of tee Bente of to the rendezvous could not be considered as in the Misbissippit any lawyer will say that | service ef the United States, he could not be tried Congress could pass an act of this tenor, whereas | except by ajury. That is on page 62, 6th Wheaton:— there is no State in Mississipp!, and it | ‘The fourth section of the act of 1795 makes the militia em- is ; and whereas the contin- gieyedis the tenrien Se United States subject to the rules uance of this Sepends, upon ie Te ed, an Paamiiations of wari include capital punish- Hog of that; erfona bo 0 Jenoia, | Ret cst pect penne ut a a Jo Hero fim ‘forthwith | &presentment or, indi ofa JN except In casos and Qxecute hitvat ‘T suppose a case as strong as you seater ey - miay choose ‘to. put and 1 dely any mee eee 1p. Short, there te nob s dimonting: any- nT lefy any lawyer to assert, that Congress has hea from the doctrine that a fial g vilians for eee ee anact. Why no crime cannot only be by jury; and whereas it is for lous of power, knowing frem thelr | an infamous crime it can be tment oF own lence and from the history of the world | accusation by @ grand jury. That the United j-that power ts liable to be abused, and that in the | siateg and all tta de] ents conjoined. For let it excitement of party, in the storm of war, the civil | ye understood the rnment of the United department of the government, Congress or the ex- means ail the tg, and not ene. Con- ecutive department, might be tempted to use means is not the govermment any more than this court. Mnloh are dangerous to fresco yats enced: is fir the sovernment of the United States cannot by stances and for no end, however desirable, shall any SBisened bs os much heat eit a Lp pa possible, such means be adopted. But that was not enough, | sunject a cltizen ‘not in tye military service, - you know, You know that this constitution was |. however ‘or however low, of whatever race oF jopted in the different States with the greatest ious condition, to a trial ef’any sort except by & dimiculty ; that fears were over and Pty Maina aa Wan eennehame over: OR oe ee oF Done RE COnSTens of the Reconstruction acts fil to'the grognd.. Here amendments which had been 81 by Mas- | Bowiitery eorocnmenh. based UDGRIAORATy COnTS- Bulery and enforced by military @rrests. Congress not chosen to intervene ex- cept by the sword and by the army; its judges are bayonets; and its soidolg ts the green eward, With @ squad has ee it. ni if the court please, as I have said before, I think this ment ought toend, For the question is whether McCardle, being a citfzen of Misslssippl, under the dominion of the United .States—whether Mississinni bo.rogenied as @ State or not—can be subjected to a military trial which involves his im- eepcament or his life, no matter under what pre- nce or for what end, under the authority of the government of the United States. But I now proceed to the second step in this first part of my argument; and I say, suppose he could— that is to say, suppose that the preamble would jus- tify this act, being true—is the preamble true? Is there no legal State rather, was there not on the 2d of Murch, 1867? And ‘Was there, or not, at that time, adequate protection for life agd property? Now, I deny that the pream- ble is true in a constitutional sense. Of course, | am not going into any question of veracity, nor into any question of fact, except what the cours judicially Know. Two facts are stated and should be separately considered:—First, that there ig no legal State gov- ernment in Mississippi; aud second, that there is no Sapte protection tor life or property. There may be.a legal State government which does not ade- quately protect life or property; so that the two be most conveniently considered Be] ‘as there a State government on the 2d of March, 1867? Antecedent to that is the question whether the declaration of Congress is conclusive. To test this | let me suppose a case. Lt) igs Congress ‘were to- | morrow to pass an act with this preamble:—Whercas there ia no jegal State government in the State of Massachusetts, it shall, therefore, be made a military district, and subject to the military Leer peed of the United States, and the district commander shall have Power to do what is provided in this act. Would you | accept thac as absolute verity? Yes, says one of | the counsel; it would be an abuse of power; butif | Congress were to enact it you could not contradict it, Is that so?» Is it true that under this government of ours, it is possible for Oongress to declare that a State in this Union, the State of Massachusetts, has not | a legal government, and therefore canbe subjected to | military power? I deny it altogether. What authority | | has Congress to declare whether or not a State has a legal or illegal government? Iam not now discuss- ing tne question whether it is or not republican, ‘That is not the pretence in this preamble; they do not say that the government of Mississippi is not republi- can; but they say it is not legal. Now, Task where hag Congress the power to declare whether or not @ State has a legal government? Take my State, and where has Congress the power to say she has not a legal government? What.do you mean by “legal? Legal, according to what law ?—federal Jaw or State law ?—umilitaty law or civillaw? 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 a member of two of the constitutional conventions thas made those changes; and he will remember that the opinion of the Supreime Court of the State was takeh on the question whether the convention to frame the present constitution was constitutionally called, and they decided it was not, because the con- vention was not called in the mode provided by the former constitution of 1821, Now, | ask friends, any of them, has i pow the power to declare that iny State has not a legal State government? Everybody will say no. gress has no more power to come into New Fork and tell us that we have framed a constituti contrary to our previous constitution than to clare that the first government of New York was. a yoid government. And if they sheuld presuine to come to New York in that way I think they will get an answer which wili be quite sufictent. Let me tell tiem that New York chooses to frame her gov- ernment in her own way, and will alter it as she leases, subject only to the provision that it shall not Bo anti-tepublican in form; and until that question arises the Congress of the United States can have Rothing to do with us any more than we have to do with them. The authority to declare a thing is the authority to decide it. Congress has ne 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 no authority in Congress to declare that the existing government of be 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 intervene if there be not adequate protection, and consequently it cannot decide anything in regard to it Con- Now, laying aside the declaration of Congress as of no constitutional force, though entitled to great respect because coming from one of the departments of the government—leaving that aside, as not au- thoritative, | ask you to consider whether or not the government of Mississippi was a legal government on the 2d of March, 14677 ‘The original act declares that there is no legal State goverument In Mississippi; but it provides in the third section that the military commander may allow the local civil tribunals to fect. There is @ government, then, a8 matter “And all interference, under color of State rity, With the exercise of military authorily nder this act shall be null and void.” ‘There is some State authority, then, And in another section it is provided tuat the citizens may have provisional gov- ernments only until they shall be entitled to repre- sentation. There is, then, a provisional government. So of thesupplementary act of July 19, 1867, which ig still more explicit. The first section of that act <3 of overnments then existing in the irginia, North Carolina, &c., as not legai State governments.” They are existing gov- ernuments, be it understood, ‘There is no doubt about that. They were de facto governments of the rebel States. The State of Mississippi had at the time a defacto govermucnt, which was exercising ail the functions of government, Heve are ils statutes, and here are its reports. ‘This (holding up the volume) is but one of the two volumes of the reports of the highest court of Mississippi during the time of the rebellion, ting the time when it was taken by the federai an and that forbade the courts to assembie, And in this lasi volume is a decision upon the question whether or not they had a legal govern- Ment; that is to say, whether the government adopted EW YORK HERALD, SATURDAY, vernment in Mississippi? Or | =k 14, ,1868—-TRIPLE SHEET, s the fe ; i pion ae the peopl bp to | of the we Hs elt fT | inn ne angry thy, tne, Ta Af to a case in the last volume on ft where ‘most ive discussion of this | ernment of The estates of the realin de, I refer to it by way of argument. It posed the ‘and a bloody war ia tl wy va. Boyland, o and 4 half years carried on by the Em- Thus it the court I on the Austria Hungary, under Kossuth, in whiohI had marked out for at the com- the Em led to succeed, by the mencement, im considering ‘the preamble of of 200, men from Russia. Then came this military reconstruction act is, true in a constitu. | the claim that Hungary was # conquered nation, and tional sense, and whether, if tt be true, it justifies this | @ he was the Emperor of was the King of act; and I flatter myself that have shown that | H! by the conquest; and the question was Fiether the preemie bo srye. of ak 16, Goce Das whether he was of by the conquest or Justify this in! tion for the government of by the col ‘many years, and ‘Bissi] by wer; and, in the second the le lesson of Sadowa, he was compelled to Pl Othe that is | yield, and are now resting in the not in a constitu sense, Before I | Shelter of thetr ancient constitution. The! — pass op, however, in order to avoid ins the law of conquest gives nb oosntenance wi isapprel me that I keep always a | ever to the idea can take into its hands distinction between the mil! power as master of vernment of MI 1. I need not add to the civil power, or as su! ‘to the civil, Iam | What! have siready tas '§ Congress had arguing ‘against military power as ter, and any such right it could not exercise it by military no} po eed I maintain, and I hope successfully, | Power. that whatever be the truth of the preamble, | _ The next reason given for the military soetepent militafy power, as. the master of the people and of | Of Mississtppi Is that the rebel States and eit poome the cannot be imposed by the government of | forfeited their rights by the rebellion. That is the the United States; that juent Preamble, lengueg. The people of Mississip} the State whether true or not, does net j the statutes, | of ippi have felted all tlt rgnts ‘That is But my learned friends go further and suggest other | t0 88/7, they are outlaws. How have they forfeited reasons, ag they have sup) , for these military rights? Have they forfeited them by the peace- vernments. Now, I ask, in the first is the | able act of withdrawing Irom the United States; citizen permitted te go beyond an act of to | Pe act of secession, if there could be any nd reasons for the act? Soncrens has said in their | 8Uch act? That is to say, by the merp act of renounc- act whereas no legal State governments exist, | ng their allegiance? certainly not, They have and no adequate protection for life or property, | denied the right of the federal vernment to keep therefore be it enacted, &c. Confiaing 7; | them inthe Union. But does that result in the loss that, I say that, standing alone, that preamble | Of our right? It is not ao in the case of private con- does not just that act. But my learned tracts, cannot be absolved from a contract friends have de from that, and say, without the consent of the other . Does war virtually, that the preamble does not state half the | protduce these results? If war exists, then they are case; there are other reasons which the act, | levying war against the United States, But levying ‘Yo these other reasons I must ask your attention. | Wa is treason. Have they forfeited their age by First,g1 will consider some of the reasons given in | feason? Undoubtedly, conyiction, ‘Thougi debates, though not specially urged ee other | Very man in Mississippi were pully of treason, not side. I’ propose, therefore, to consider “he reasons | OB@ Could be touched by an act of ex generally given for the military acts, and then the | UPD conviction; because, as you know, Congress Teasons given by the counsel who have argued the bo ange forb from an act of ro . ASto the reasons generally givel re are | There be in ippi @ million of people: four. First, it is sald that Congress right to | Congress hot the ‘power to pase an act agains guarantee ‘a republican form of ‘government, | 02¢ of them, declaring that whereas he has 2 and to say there 48 no such government in Missia- | guilty of treason he be taken and sippi; second, that by the right of conquest we can vern them a8 we will; third, that as traitors they ave forfeited all thelr rights, and we can, therefore, do with them as we please; fourth, they say we are ror them in the exercise of belligerent rights. Now, each of these, in the order in which I have stated them, I shall ask your attention to, as to the guarantee of a republican government. The claim is made of a Bs a to intervene in sy fi upen the guarantee clause of the constitution. The United States, itis said, are bound to guarantee a republican form of government to every State in the Union, and (pie in the exercise of that power With respect to Mississippi. Let us look at that What does this mean ? A guarantee, in its ordinary sense, means to warrant sumething already exist- ing, the performance of an extiati: contract, the tinuance of an existing state of tl The first treaty made between this government. and France, negotiated by Franklin, provided that the United States should guarantee to France the ton of her West India Isiands, and that France should uarantee to us the possession of our Independence. he guarantee of the constitution here is the guaran- tee ofan ex: form ofrepublican goverament—that 4s to say, of aform of republican government, the saine being now in existeace—and no more justifies the claim to Intervenein the government of a State for any other purpose than for the purpose of creat- ing an emperor. in the appendix to my brief I have printed extracts from the journal of the debates, as given by Mr. Madi- soa in the convention of 1787, in respect to this power. It was at first broached in the convention by Mr. Ran- dolph, who proposed it in this form, “That a repub- lican government and the territory of each State, ex- cept in the inatance of a voluntary junction of gov- ernment and territory, ought to be granted by the United States to each Siate.” Afterwards it was altered:—“That a republican coustitution and its existing laws ought to be guar- anteed to each State by the United States.” And finally it was amended and adopted in the form ia which we have it. In the forty-third number of the Federalist, written by Mr. Hamilton, is his exposi- tion of this power, from which it appears that this clause in tie constitution was introduced for this purpose and no other—to guarantee the States against monarchical or aristocratical innovations. Who would have thought that in eighty years from the time when the constitution was adopted this guar- antce use Would have been a yectent for forcing upon the States the most radical Innovations in the opposite direction? The clause, as adopted by the convention, ratified by the States, and expounded by the authors in the sense in which it was then under- stood, means only that the federal government shull guarantee the States composing the Union against aristocratical and monarchical innovations, Now, in the year 1867 the Congress of the United States seizes upon that clause as their authority for foreing upon the States the most radical innovations in ademocratic direction. Now, 1do not say whether these innovations are good or bad. For my own part, if it rested upon me and I eould constitutionally act, 'I would give every human being equality before the law; but | would not break down the constitution of my country for any innovation whatsoever. The last hope of freedom is in maintaining the written constivution. Other forms -of government, where there are different orders in the State, may be kept up by a balance of power, each struggling to prevent the preponderance of the other, But a republican government in a vast country is an impossibility without a written constitution. An instrument which is not kept inviolate is so far not a constitu- tion. The choice for us, if we are to maintain a united. government in this country, is between a written constitution, sacredly maintained, main- talned inviolate against all attacks ,or a monarchical government. History has taught us nothing if it does not teach us that you cannot maintain @ con- solidated government on this continent but by an emperor or aking; and that no other government can exist that is nota consolidated one, except under @ written constitution. Therefore, whoever main- tains the integrity of this constitution sacred and in- violate against all opposers maintains for himself and his posterity freedom and a cominon country. Next, we are told that we can govern the Southern States by the right of conquest, This right of con- quest is the ground w which the first counsel put it, The right of war is the ground upon which the last placed it. “We have conquered the people,” says the first. “It is well for them to know what is the temper of the North,” he says in conclusion. “They are conquered, and we are the conquerors, and we will give them such @ government as we choose.” Is this argument a sound one? How have we con- quered the Southern States? Inthe sense in which the word conquest is used in this argument we have conquered the rebel armies, thanks be to God, and there is not @ hostile force, there is not a hostile hand raised against us from ocean to ocean. But does that operate to transfer the sovereignty from the con- quered to the conqueror? Is the conquered sovereign displaced, aud the conquering sovereign seated in his place? Mississippi was a sovereign before, in a pialified sense. The United States were sovereign beiore in a qualified sense also, But when the United States overcame the rebel armies did they succeed to the sovereignty of Mississippi? As between bations, in barbarous times, the laws of war justified the reduction to slavery of @ van- quished peopie; but in the progress of civilization, and under the influence of Christianity, these laws have been softened down, and that practice is no longer considered lawful; on the contrary, decisions establishing the public law of the world affirm that the conquest of one nation by another makes no change in the internal relations of the people; that the rights of persons and property are in no degree aitected or interfered with. The only effect is that the conquered sovereignty is displaced and the con- quering sovereignty comes in its stead. But even this effect does not occur in civil war. The law of under the provisional governor was a legal State government. Now, if, according to the doctrine of the decision in the case of Luther vs. Borden, you are to follow the decisions of the highest court in the State as vo the legality of their own government then the decision of the highest court in Mississipp! 4s conclusive upon the action of this court. Let ine for a moment consider the case of Luther va. Borden, about which so much has been said, to show that, so far from affording any authority against us, itis an authority in our favor, Inthe first place, as to martial law: What martial law in that case Was estabitsied? By authority of the State of Rhode Island, Under the charter ef Charles Ll, the government had no limitation whatever; it could exercise its powers in @ legislative, executive and judicial capacity untrammelied, and that case has no more application to the question whether Congress can establish martial jaw than to any other question, ‘This court, by Chief Justice Taney, decided in that case that ‘Tlie question, which of the governments was the legi te one—viz, the charter = ment or the government established by the voluntary convention, had not heretofore been regarded as @ Judicial one in any of the courts; that “the courts of Khode isiand had decided in favor of the validity of the charter government, and the courts of the United States adopted and followed the decisions of the State courts in qrestioms which concern merely the constitution and laws of the State.” Then, as to the Pgh ire of the United States, all that it can decide ts as between two contesting governments, which is the established one, That is Gil that that case settles. Here ts language which 1s so very pertinent to the present inquiry that I will ask your attention to it particularly:—‘’The fourth section of the fourth arti- cle of the constitution,” says Chief Justice Taney, “provides that the United States shall guarantee every State in the Union a republican frm of gov- ernment, and shail protect each of them against in- vasion, and on the pa ge cd of the Legislature or of the Executive (when the Legisiature cannot be convened), against domestic violence. Under this article of the constitution tt rests with Con vo decide what government is the established one in & State.” The Congress is to decide what? Not that the State has not a iegal State government, but to decide which is the established government of the State. It must decide what government is established before it can decide whether it is republican or not. Now, see the argument that is pressed here; if Congress goes on with its reconstruction scheme, and there is set up another government in Mississippi, tt cam de- cide between the new government and. the present one, therefore Congress can set up the new govern ment, Was there ever a claim of power more un- founded? Because you have the right to decide be- tween contesting governments, therefore, when there is only one existing you can set up another to contest with the first and decide between them. That is the whole of the argument. ton, I have already referred to the evidence that have in the tod decisions, and tn the statu Of the exis of @ government in conquest, in short, has no application to a civil war. There, when the sovereign subdues a rebellion he ts restored to his ancient rights, and nothing more. Let us take some illustrations. If a La? in New York is declared to be in insurrection, as it will be recollected was the case, under a law of our State, during the anti-rent excitement, and that county is reduced to submission, does anybody say that the Legislature of the State has @ right to govern that county otherwise than it may govern the other coun- ties of the State? Iam not now discussing whether the er by an amendment of the constitutior couls ¢ that county out of the ordint course municipal and State government, But a Legislature of limited authority, under the constitution, has no such power. ° Now, {tis very true that the rebels,renounced.their allegiance, Tirey repudiated the federal tie; but we, on the contrary, maintained the federal tie. We fought the war on the doctrine that they could not renounce it; that they were still subject to the consti- tution and jaws; and having fought the war upon that theory it does not lie in us to say at the time of the conquest that we take the other position. Look, if you please, at the alarming consequences of adopting a contrary doctrine, Suppose that at the time of Shay’s insurrection in Massachusetts the in- surgents had got the better of tie State government, and the United States had been called in to put down the insurrection, would that justify the United States in assuming the government of Massachusetis? Sup- pose that in the war with Great Britain Misstssippi or any seaboard State should be conquered by Great Britain and afterwards be retaken by the United States forces, is it supposed that we then succeed in the government as @ conqueror of MississippiY Do we not resiore the ancient sovereignty, and govern, as before, by our antecedent Look abroad and see the consequence of an attempt, in a constitutional country, to govern, after the sup- Poe of a rebellion, by the right of conquest. ook at Ireland, where for ages England had as- serted her right to govern by the law of conquest, and the consequence is that the Irish peopie have: nothing but a ne of intensest hate of the English rule and of the English peor le. In the memorable trial of Lord Strafford before the House of Lords, where Pym, the great statesman of that day, was one of the mai rs of the impeach- ment, Strafford claimed a right to govern as he had in Ireland because the people of Ircland were a con- quored people. Let me show you what was the an- swer of Pym to that argument. I read from the re- markable book of Goidwin Smith, just published, “Three English Statesmen—Pym, Cromweli ‘and Pitt.” Here is What he says:— ‘To the charge of arbitrary government tn Ireland Strafford pleaded that the Irish were & conquered nation, They wore & conquered nation, erles Pym. There cannot be & word more pregnant and ‘fruitful In treason than that word in. ‘There are ow nations {nthe world that have quered, and no dont but the couqueror inay give what law he pleases to those wat are conquered; but if the enoceedin ote and agreementa dg not Nmnit aud restrain that right, wha not been con- ie ean be uecure? Bngland hath been conquerely and Wales beth veon oouguered, sud by thie reasou will be in may PI without conviction. Still less can they pass an act against the whole people. Besides, I might add that treason is @ pel crime. The people may be guy of it; but the State, aa a great corporate body, not, and cannot be, ‘The next reason given for governing Mississipp! by military power is belligerent right. They iy hey have the right to assume the government Mississippi by virtue of those his, The first answer to that argument is’ this:—There can be no belligerent rights where there are no belligerents; and they are no belligerents, because the wat is ligere! ended. There are no nts, because there 1s vellum, ‘That is the first answer. The next is, at during war, dello, it was not compe- tent for the government of the United States to assume the government of a State which it occupied with its forces. Let me ask your attention to for afew moments. What could the United States do by virtue of their belligerent rights? They could war as other wars are wi ; they could ravage | and kill; could fight the armies of their enemies and capture cities; could make assauits upon foris and jue them. But could they govern? That is to say, could they take into cir own hands the government of a@ State which ey had succeeded in eccupying with their forces? I am not now Eos what they cout oe "hee waging war; bu am _ suppos! ey have occupied the whole State of Missisaippt, ‘80 that there is not a hostile hand raised in the Siate, and that they are carrying on their hostile operations beyond the State. I deny that thoy had thus the power to assume the Laie of Mississippi to themselves, What right has an army of a sovereign, coups ing his own territory, when every hostile force is subdued, to take into ‘its own hands the govern- ment of the country by a right paramount to the antecedent right? BaD DORR however, they say— and this is the way in which the argument is put— suppose that there 1s utter anarchy; suppose tilat in the state of Mississippi, during the occupation of it by our armies, there 1s such utter anarchy that there } 18 no law, nor a magistrate sitting in the State. I am supposing a case Which does not exist, It seems to me a very idle discussion; but my learned friends have made an argumeut upon it, and, therefore, I must notice it. I therefore ask, what can an occu- pying army do? The occupying army may keep the peace and that is all. Is it to force institutions upon the country? What right has New York, I should like to know, to force its institutions upon under any circumstances whatever? War give the right, What does? Is it anarchy? Then the question comes to this :—Does a condition of total anarchy in one State give the other States a right to go in there and construct their government? Ideny it, Lam not discussing the right of revolu- tion, I may admit that the people of nine-tenths or three-fourths of the States may have the right, by an act of revolution, to invade and subdue @ State, be- seli-preservation, which 13 above all others. that is not the question. The question here is one of constitution. And I deny that in a state of absolute anarohy the Stute of lowa can be forced to take the institutions of New York; the ree of New York cannot go in there and demand that the people of Jowa shall receive her form of municipal or State government. It ts for lowa to determine for herself. ‘The fundamental doctrine of our goverument is, that the people have a right to change their own form of government as they please. ‘Ihat is set forth in almost every one of our State constitutions, and from that it results that no other State has a right to intervene, But, nt I said, this fs, after all, but a speculative discussion; it is one that does not enter into this case at all, and one which I should not have entered upon if { had had the opinion just read by Mr. Chief Justice Nelson, where that most revolutionary gov- ernment of the confederacy is said to have sererehent de facto, With all ite departments, legis- lative, judicial and executive, having every part of the government in full operation. If that is so, then the States that composed it hud the same, and Missis- sippi was among the rest. They had de facto govern. ments, With all their departments, and the argument from the necessity of assuming the government on account of utter anarchy is one that no founda- tion whatever. But one of the learned counsel says these de facto governments were not governments de jure, because they had not taken the oath of alle- giance to the United States, Let us look at that. I admit they were not governments de jure in any federal sense, for they had renounced their alle- giance. They could not send members to Con- ‘ess. They had Legislatures not acknowledging fealty to the United States, and for that reason they could not send Senators, and for a similar rea- son they could not send members to the House of Representatives. But is it true that because they had thrown off their allegiance all their acts of legis- ion were Bull? Look at Mobile; is every act of the City Council of Mobile since the war began @ nullity? When did the Virginia Legisiature resolve not to take the oath of allegiance to the United States? How long ago? Before the war, 1 believe. Has not Virginia been a legal State government during that time, 1 ask? ‘The obiigation to take the oath is directory; that is ail. Ifthey do not take the oath they are none the less governinents. Not only would the consequences follow which I have indicated with regard to the City Council of Mobile, but the constitu- tion of the United States provides that all legislative and judicial officers should take the oath to support the constitation. Now, if such is the consequence, as I 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 nota nullity from 1861 to 1864. Is that so? Is any man in his senses prepared to assert that? But the doctrine of hostile occupation in & war has no application in a civil war, for the same reason that the doctrine of conquest has no application to a civil war; the greater includes the less. For the occupation being only for a temporary cause, it can certainly operate no further than when it is for a permanent cause. Let me refer you to afew authorities. One of them 1s a citation from Haileck in his work on inter- national law, page 806, section 29, in which he says: “In the civil war between Owsar and Pompey the for- mer remitted to the city of Dyrrachium the ment of a debt which it owed to Caius Flavius, the friend of Decius Brutus. The jurists who have commented on this transaction that the debt was not legally discharged; first, because in a civil war there could be, properly Ce no occupation; and ja because it was @ private and not a public ebt. “in a civil war,” says Phillimore, “there could be no occupatio.” “A civil war,” says Grotins, “4s not of the same kind concerning which this law of nations was insti- tuted.” Ina late case in North Carol: where it was attempted to apply her principles of the ‘‘occu- tio vellica” to the sequestration, by acts of the surgent State, of a debt due to a citizen of a loyal State, the court rejected the defence, and said:— “These acts did not effect, even for a moment, the separation of North Carolina from the Union, any more than the action of an individual who commits grave offences against the State by resisting its officers and defying its authority can eee him from the State. Such acts may subject tl to outiawry, but can discharge him from no duty, nor relieve him from igs sibility.” After this opinion of the Chief Justice let me read from the opinion of Mr. Justice Spi ie, in the case of the Amy Warwick (24 Law Rep. :—'An objec- tion to the prize decisions of the District Courts has arisen from an apprehension of radical consequences, It has been supposed that if the government have the rights of a beiligerent, then, r the rebellion is suppressed, it will have the rights of conquest ; that a State and its inhabitants may be Utne ef divested of all political pg and treated as foreign territory acquired by arms. ‘This is an error; agrave and dangerous error. The rights of war exist only while the war continues. Thus, if peace be concinded, a capture made immediately after- wards on the ocean, even where peace could not have been known, is unauthorized, and property so tak prize of war, and must be restored, { 118 of International Law, 619.) Bel- igerent rights cannot be exercised when there are no belligerenta, Titles to property or to political Jurisdiction, acquired during the war by the exercise of belligerent rights, may indeed survive the war. ‘The holder of such ttle may permanently exercise during peace ail the rights Whica apperiain to his title; but they must be rights on!y of proprietorship or ‘sovereignty; they cannot be belligerent. Conquest of a_ foreign country ives abso- ud unlimited sovereign rights. But no nation Kes sich & cOMquest Of 118 own territory. Ifa hostile power, either from without or within & nation, takes possession and builds ab minion over any portion of is terriiory, tion by force of armé expels Or overtirows the one- cause there comes in the great right of parolee ee j ut 3 i aes aii 5 when, in this olviiwan, ne th in de this succeeded in put own Tebellion restor- in soy St it will only have Vintec ite nee authority, restored itself to a condition to exercise its previous sovereign ts under the constituti In a civil war the military power is cailed in only to maintain the tases ercige of its legitimate civil authority. No success o (Stewed the. gee ot any ; depestmnens beyond the preserit yy the orgat w. - That would be not to maintain the constitution, but to subvert Any act of Congress which wonld annul the rights State under the Constitution, and permanently subject the inhabitants to arbi power, would be as utterly umconstitutional and void as the secession cranny 8 with which this atrocious rebellion com- ment 5 Thus, if the court please, have I gone over these four grounds; ange dose what I have to upeR ‘these subjects with a single example from the federal verninent itself. What did that government itself oe i aesenent I pt Or Alt je rebel ca) was at Richmo hough Tebel flag was, within. signe of this Ton ren ved Senators from Virginia in the hall he Senate, and Representatives from Virginia inte the House of Representatives, upon the ground thas as you advanced over the country that country im- mediately reverted to its old condition, and was ea- titled to its civil government and entitled to be represented in Congress. This is the way in whick he! dealt with the coi which you occupied. ou could not hold Alexandria for @ moment but hy bayonet and cannon; but you did hold it, and you Seceitee representatives elected by the people withim your lines. Now, let me pass, if the court please, from the cem- sideration of these four reasons, as they have beem stated in debate, for the eeumaption, by Congress the government of the State of Mississippi, and our attention to the particular reasons given by my jearned triends who have argued on the other But before I do that let me turn aside for a m to answer what I suppose was intended to be an ar- mentum ag hom but which I think o1 in this place. theargument, The dent at the close of the war declared there was ne civil government in the rebel States, and proceeded to reorganize governments. The brief of one of the counsel is much occupied with the correspon: between the President apd Secretary of and the provisional governors, and the steps taken to govern the States provisionally. The answer to that argument is that we have nothing to do with the action of the President on that fone oe and whether the Executive was right or not, and whether he took @ coristitutional view of the case or not #@ makes no difference tous. But a further answer may be this—whether the provisional governments established under the authority of the Executive were legally established or not, they became de Jacte governments and were recogn' by the people and ‘were in possession of all the attributes of sovereign- ty; had legislative, judicial and executive depart ments and were going on as regularly as any States in the Union at the time these Reconstruction acts were ; and therefore it would not advance the argument at all to show that the antecedent provi- sional governments were not warranted by the = stitution, I therefore pass over that argument cause it has no place here. It is enough for us thas the governments of the States . were in operat ‘We know by the reports of the General of our army that order prevailed throughout the South before ow: if te court please, Tee me take up th prape- low, if the court please, let me up the done, sceanoe’ by the coungel on the other re were sx of em :— 1, That Mis: i has no State government which i estt- ted to be Feovgnized by the United States aa a State of eis Union; and that this bas been determined by the political dex wernm Pee That the decisfon so taade te binding and conclusive pew this court, potwithstanding the judges may think the deotulem. erroneous. ‘That it is the undoubted 4 duty of the Unite® Sinton to alt, the loyal people of wflisaept in establtahing « republican State government for that Btate, and that United States te now engaged in the performance of that copethat the grant of power to the United Statesto “guaram tee’ a republican form of government” to the of the Unton, not being restricted by the constitution, as the means which imay be employed to execute the io the wi exclusive judge of what means are pooneanry iy» siven x ri sare Lua ect Ia question, with the not, sapplocieaned: o Togarded as embodying the means ‘dogled Coa- 0 violates‘no provision of cousin That inavmuch as Congress entered upon the prosoow tion of the war ugeingt, the rebel, States, in 1261, this cours te and will be bound judiciaily to recognize war as still exist i til Congress shall declare peace to be res er si conse Yo exorcise any belligerent right Towards bess States, ‘The fifth of these propositions is merely a supposed conclusion from other PTO) itions, and need not be separately considered. e fourth is met by what I have already said about the use of prohibited means to seoure an end, however constitutional and desira- ble that end might be. I have shown that vernment is eee: Therefore, even if irst three and the sixth propositions were all oom- ceded these military reconstruction acts could not be deiended. 'The third proposition has already been sufficit answered. ‘Ihe first two and the sixth alone secon A to deserve particular attention; and even in respect to the sixth, Ihave already shown that belligerem® rights cannot continue to be exercised unless the war can be prolonged by a fiction. The discussion of these three propositions—that is, the first, second and sixth—may be separated into four divisions;— 1, Is Mississippi, in fact and in law, a State of the Union, having regard only to the conditions of re- bellion and war, without reference to the declaration of the legislative and executive departments of the overnment upon the question? In other wt aia the rebellion or the war, or both, put Mississippi, as a State, out of the Union? 2. Is war, infact and in law, still subsisting be- tween the United States on one side and the « State government or people of Mississippi on the other side, without reference to the declaration of the legislative and executive departments of the goverm- ment upon the question? 3. What has m the declaration of the legisia- tive and executive departments upon these twe questions? 4. What is the legal effect of such declaration? First—Did tl rebellion or the war, or both, Mississippi, as % State, out of the Union? ‘Mississipp! was a State of the Union once. When did she cease to be such? Was it when she adopted the ordinance of secession, on. the 9th of Jan 1861, before a shot had been fired + that is to say, the act of renouncing her allegiance alone take her out of the Union? The day after that ordinance was passed was she a State in this Union or was she not? Suppose the Chief Justice had been sitting in a court at Jucksonville, or in the place where it was proper to hoid the court in Mississippi, the day after the se- cession was declared, and a citizen of Massachusetts or of Ohio had sued a person in ean as a cite zen of Mississipp!, in tie Circuit Court of the Unite® Stal would the Judge have been obliged te hold that there was no such person asa citizen of Mississippi? The jurisdiction of the Circuit Court could not be maintained unless one of the parties ip a citizen of a sister State and the other pai cy citizen of Mississippi. Were the judgments of courts in Mississippi no longer judgments to be re cognized in the other States of this Union? Were the judg ‘ments of the other States in the Union no longer to Se recognized in the Circuit Court of Mississippie I do not ask what the people of Mississippi may have thought, but what this coart would have been bound todo. Ofcourse, the statement of the propusition in this form answers it. it is so absurd that nobedy pretends that the act of secessicn carried the State out of the Union. In fact and in law, Mississippi ‘was as truly a State in the Union after secession as before. When did war take the State out of the Union? If war took the State out, then it must be it was virtue of some right of war. I have already coi ered that, and shown, as I think, that neither by by right of belligerents nor of conquest is oo made in the legal relation of the State to Unioa, or to the other States of the Union. But let me take the ment of my learned a his is his proposition:—' and inquire what it is, Mississippi has no State government which Is entitled to be recognized by the United States as @ State im this Union, Was there ever such confusion of ideas? Mississippi is not @ State because she has no State sss which is entitled to be recognized as @ te! Did anybody ever suppose that a State gov- ernmentewas entitled to be recognized as a State? ‘The confusion is between the government and the State. The government is one thing, and the State another. A corporate body may exist under differ ent forms of the governing body. There may be & State in this Union with a disloyal ernment. Governments change; sovere! ‘and ay nastics appear and disappear; but the State remains and is immortal—the State is independent of all these changes. France under the Bourbons is the same France that she was under Napoleon, or when @ re~ public, or under Napoleon Ifl.; and the debts com- tracted by Louis '. were r ized by the repub- lic as well as by the Monarchy. if you can blot out a State then she ceases; but she is not affected by any change whatever in her State government. New York might make thia peaceful revolution a li times, so that she be republican in form, and she would be still the same sovercign State, Next, is war, in law and in fact, still subsisting between the United States on the one side and the Siate and people of Misaisatppl ‘on the other, laying aside the declarations of the Executive and of gress? You yourselves, in the decisions of the prize cases, have given the answer by holding that no war exists When the courts are open. That is to Bay, if the federal courts are open. You know that the federal courts are open throngiout Mississippl, and you know, therefore, that there is no war, Whatever de- clarations nay be made to the contrary. You know that the District Courts are sitting throughout the South; you know that some of your own body alt there; you know that this 1s an appeal from @ Ciroalt Court in Miseissippl. And yet we are told that the United States is at war with Mississippl; that Lad is a stale of war existing which authorizes mai law. But, thirdly, what has been the declaration of the legislative wi executive departments of the govern-