guilty. He is not bound to keep any record or make any report of his proceedings. He may arrest his victims wherever he may find them without warrant, accusation, or proof of probable cause. If he gives them a trial before he inflicts the punishment, he gives it of his grace and mercy, not because he is commanded so to do.

To a casual reader of the bill it might seem that some kind of trial was secured by it to persons accused of crime, but such is not the case. The officer "may allow local civil tribunals to try offenders," but, of course, this does not require that he shall do so. If any state or federal court presumes to exercise its legal jurisdiction by the trial of a malefactor without his special permission, he can break it up and punish the judges and jurors as being themselves malefactors. He can save his friends from justice and despoil his enemies contrary to justice.

It is also provided that "he shall have power to organize military commissions or tribunals;" but this power he is not commanded to exercise. It is merely permissive, and is to be used only "when in his judgment it may be necessary for the trial of offenders." Even if the sentence of a commission were made a prerequisite to the punishment of a party, it would be scarcely the slightest check upon the officer, who has authority to organize it as he pleases, prescribe its mode of proceeding, appoint its members from his own subordinates, and revise all its decisions. Instead of mitigating the harshness of his single rule, such a tribunal would be used much more probably to divide the responsibility of making it more cruel and unjust.

Several provisions dictated by the humanity of congress have been inserted in the bill, apparently to restrain the power of the commanding officer; but it seems to me that they are of no avail for that purpose. The fourth section provides: First. That trials shall not be unnecessarily delayed; but I think that I have shown that the power is given to punish without trial; and, if so, this provision is practically inoperative. Second. Cruel or unusual punishment is not to be inflicted; but who is to decide what is cruel and what is unusual? The words have acquired a legal meaning by long use in the courts. Can it be expected that military officers will understand or follow a rule expressed in language so purely technical and not pertaining in the least degree to their profession? If not, then each officer may define cruelty according to his own temper, and if it is not usual, he will make it usual. Corporal punishment, imprisonment, the gag, the ball and chain, and all the almost insupportable forms of torture invented for military punishment lie within the range of choice. Third. The sentence of a commission is not to be executed without being approved by the commander, if it affects life or liberty, and a sentence of death must be approved by the president. This applies to cases in which there has been a trial and sentence. I take it to be clear under this bill that the military commander may condemn to death without even the form of a trial by a military commission, so

that the life of the condemned may depend upon the will of two men instead of one.

It is plain that the authority here given to the military officer amounts to absolute despotism. But to make it still more unendurable, the bill provides that it may be delegated to as many subordinates as he chooses to appoint, for it declares that "he shall punish or cause to be punished." Such a power has not been wielded by any monarch in England for more than five hundred years. In all that time no people who speak the English language have borne such servitude. It reduces the whole population of the ten states-all persons of every color, sex, and condition, and every stranger within their limits to the most abject and degrading slavery. No master ever had a control so absolute over the slaves as this bill gives to the military officers over both white and colored persons.

It may be answered to this that the officers of the army are too magnanimous, just, and humane to oppress and trample upon a subjugated people. I do not doubt that army officers are as well entitled to this kind of confidence as any other class of men. But the history of the world has been written in vain if it does not teach us that unrestrained authority can never be safely trusted in human hands. It is almost sure to be more or less abused under any circumstances, and it has always resulted in gross tyranny where the rulers who exercise it are strangers to their subjects and come among them as the representatives of a distant power, and more especially when the power that sends them is unfriendly. Governments closely resembling that proposed have been tried in Hungary and Poland, and the sufferings endured by those people aroused the sympathies of the entire world. It was tried in Ireland, and, though tempered at first by principles of English law, it gave birth to cruelties so atrocious that they are never recounted without just indignation. The French convention armed its deputies with this power and sent them to the southern departments of the republic. The massacres, murders, and other atrocities which they committed show what the passions of the ablest men in the most civilized society will tempt them to do when wholly unrestrained by law.

The men of our race in every age have struggled to tie up the hands of their governments and keep them within the law, because their own experience of all mankind taught them that rulers could not be relied on to concede those rights which they were not legally bound to respect. The head of a great empire has sometimes governed it with a mild and paternal sway, but the kindness of an irresponsible deputy never yields what the law does not extort from him. Between such a master and the people subjected to his domination there can be nothing but enmity; he punishes them if they resist his authority, and if they submit to it he hates them for their servility.

I come now to a question which is, if possible, still more important. Have we the power to establish and carry into execution a measure

like this? I answer, certainly not, if we derive our authority from the constitution and if we are bound by the limitations which it imposes.

This proposition is perfectly clear, that no branch of the federal government-executive, legislative, or judicial-can have any just powers except those which it derives through and exercises under the organic law of the Union. Outside of the constitution we have no legal authority more than private citizens, and within it we have only so much as that instrument gives us. This broad principle limits all our functions and applies to all subjects. It protects not only citizens of states which are within the Union, but it shields every human being who comes or is brought under our jurisdiction. We have no right to do in one place more than another that which the constitution says that we shall not do at all. If, therefore, the Southern States were in truth out of the Union, we could not treat their people in a way which the fundamental law forbids.

Some persons assume that the success of our arms in crushing the opposition which was made in some of the states to the execution of the federal laws reduced those states and all their people-the innocent as well as the guilty-to the condition of vassalage and gave us a power over them which the constitution does not bestow or define or limit. No fallacy can be more transparent than this. Our victories subjected the insurgents to legal obedience, not to the yoke of an arbitrary despotism. When an absolute sovereign reduces his rebellious subjects, he may deal with them according to his pleasure, because he had that power before. But when a limited monarch puts down an insurrection, he must still govern according to law. If an insurrection should take place in one of our states against the authority of the state government and end in the overthrow of those who planned it, would that take away the right of all the people of the counties where it was favored by a part or a majority of the population? Could they for such a reason be wholly outlawed and deprived of their representation in the legislature? I have always contended that the government of the United States was sovereign within its constitutional sphere; that it executes its laws, like the states themselves, by applying its coercive powers to individuals directly, and that it could put down insurrection with the same effect as a state and no other. The opposite doctrine is the worst heresy of those who advocated secession, and cannot be agreed to without admitting that heresy to be right.

Invasion, insurrection, rebellion, and domestic violence were antici pated when the government was framed, and the means of repelling and suppressing them were wisely provided for in the constitution; but it was not thought necessary to declare that the states in which they might occur should be expelled from the Union. Rebellions which were invariably suppressed occurred prior to that out of which these questions grow; but the states continued to exist and the Union

remained unbroken. In Massachusetts, in Pennsylvania, in Rhode Island, and in New York, at different periods in our history, violent and armed opposition to the United States was carried on; but the relation of those states with the federal government were not supposed to be interrupted or changed thereby after the rebellious portions of their population were defeated and put down. It is true that in these earlier cases there was no formal expression of a determination to withdraw from the Union, but it is also true that in the Southern States the ordinances of secession were treated by all the friends of the Union as mere nullities, and are now acknowledged to be so by the states themselves. If we admit that they had any force or validity, or that they did in fact take the states in which they were passed out of the Union, we sweep from under our feet all the ground upon which we stand in justifying the use of federal force to maintain the integrity of the government.

This is a bill passed by congress in time of peace. There is not in any one of the states brought under its operation either war or insurrection. The laws of the states and of the federal government are all in undisturbed and harmonious operation. The courts, state and federal, are open and in the full exercise of their authority. Over every state comprised in these five military districts, life, liberty, and property are secured by state laws and federal laws, and the national constitution is everywhere in force and everywhere obeyed. What, then, is the ground on which this bill proceeds? The title of the bill announces that it is intended "for the more efficient government" of these ten states. It is recited by way of preamble that no legal state governments "nor adequate protection for life or property" exists in those states, and that peace and good order should be thus enforced. The first thing which arrests attention upon these recitals, which prepare the way for martial law, is this, that the only foundation upon which martial law can exist under our form of government is not stated or so much as pretended. Actual war, foreign invasion, domestic insurrection—none of these appear; and none of these, in fact, exist. It is not even recited that any sort of war or insurrection is threatened. Let us pause here to consider, upon this question of constitutional law and the power of congress, a recent decision of the supreme court of the United States, in ex parte Milligan.

I will first quote from the opinion of the majority of the court:

"Martial law cannot arise from a threatened invasion. The necessity must be actual and present, the invasion real, such as effectually closes the courts and deposes the civil administration."

We see that martial law comes in only when actual war closes the courts and deposes the civil authority; but this bill, in time of peace, makes martial law operate as though we were in actual war, and

becomes the cause instead of the consequence of the abrogation of civil authority. One more quotation:

"It follows from what has been said on this subject that there are occasions when martial law can be properly applied. If in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theater of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course."

I now quote from the opinion of the minority of the court, delivered by Chief Justice Chase:

"We by no means assert that congress can establish and apply the laws of war where no war has been declared or exists. Where peace exists, the laws of peace must prevail."

This is sufficiently explicit. Peace exists in all the territory to which this bill applies. It asserts a power in congress, in time of peace, to set aside the laws of peace and to substitute the laws of war. The minority concurring with the majority, declares that congress does not possess that power. Again, and, if possible, more emphatically, the Chief Justice, with remarkable clearness and condensation, sums up the whole matter as follows:

"There are under the constitution three kinds of jurisdiction-one to be exercised both in peace and war; another to be exercised in time of foreign war without the boundaries of the United States, or in time of rebellion and civil war within states or districts occupied by rebels treated as belligerents; and a third to be exercised in time of invasion or insurrection within the limits of the United States, or during rebellion within the limits of the states maintaining adhesion to the national government, when the public danger requires its exercise. The first of the three may be called jurisdiction under military law, and is found in acts. of congress prescribing rules and articles of war or otherwise providing for the government of the national forces; the second may be distinguished as military government, superseding as far as may be deemed expedient the local law, and exercised by the military commander under the direction of the president, with the express or implied sanction of congress; while the third may be denominated martial law proper, and is called into action by congress, or temporarily, when the action of congress cannot be invited, and