which, in the last resort, is brought before you, the supreme judges of the land.

There are three of these Military Reconstruction Acts-one passed March 2, 1867; the second, a supplementary Act, passed March 23, 1867; and the third, a further supplementary Act, passed July 19, 1867. The first begins in this manner :

"Whereas no legal State Governments or adequate protection for life or property now exist in the rebel States of Virginia, North Carolina, South Carolina, Georgia, Mississippi, Alabama, Louisiana, Florida, Texas, and Arkansas; and whereas it is necessary that peace and good order should be enforced in said States until loyal and republican State Governments can be legally established: Therefore,

"Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That said rebel States shall be divided into military districts, and made subject to the military authority of the United States as hereinafter provided."

And after providing for the assignment of an officer of the army to the command of each district, the Act proceeds in the third section thus:

"And be it further enacted, That it shall be the duty of each officer assigned as aforesaid, to protect all persons in their rights of person and property; to suppress insurrection, disorder, and violence; to punish, or cause to be punished, all disturbers of the public peace and criminals and to this end he may allow civil tribunals to take jurisdiction of, and to try offenders; he shall have power to organize military commissions or tribunals for that purpose; and all interference, under colour of State authority, with the exercise of military authority under this Act, shall be null and void."

The supplementary Act of March 23, 1867, is not material to the present inquiry.

The first, second, and tenth sections of the supplementary Act of July 19, 1867, are as follows:

"Section 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That it is hereby declared to have been the true intent and meaning of the Act of the second day of March, One thousand eight hundred and sixtyseven, entitled 'An Act to provide for the more efficient government of the rebel States,' and of an Act supplementary thereto, passed on the twenty-third day of March, in the year One thousand eight hundred and sixty-seven, that the governments then existing in the rebel States of Virginia, North Carolina, South Carolina, Georgia, Mississippi,

Alabama, Louisiana, Florida, Texas, and Arkansas were not legal State governments, and that thereafter said governments, if continued, were to be continued subject in all respects to the military commanders of the respective districts, and to the paramount authority of Congress. "Section 2. And be it further enacted, That the commander of any district named in said Act shall have power, subject to the disapproval of the General of the Army of the United States, and to have effect till disapproved, whenever in the opinion of such commander the proper administration of said Act shall require it, to suspend or remove from office, or from the performance of official duties and the exercise of official powers, any officer or person holding, or exercising, or professing to hold or exercise, any civil or military office or duty in such district, under any power, election, appointment, or authority derived from, or granted by, or claimed under, any so-called State or the government thereof, or any municipal or other division thereof; and upon such suspension or removal, such commander, subject to the disapproval of the General as aforesaid, shall have power to provide, from time to time, for the performance of the said duties of such officer or person so suspended or removed, by the detail of some competent officer or soldier of the army, or by the appointment of some other person to perform the same, and to fill vacancies occasioned by death, resignation, or otherwise.

Section 10. And be it further enacted, That no district commander or member of the Board of Registration, or any of the officers or appointees acting under them, shall be bound in his action by any opinion of any civil officer of the United States."

The first and principal question hinges on the preamble to the original Act, and the enactments which I have just quoted.

There is the preamble, and here is the conclusion. I deny both. I deny that the preamble is true in a constitutional sense, or as a justification for assuming the government of a State; and I deny that, if the preamble were true in every one of its parts, it would justify this military government.

The propositions advanced against us are, in short: The preamble is true, and the enactments are justified by the preamble. We dispute both propositions. We say that the preamble is not true; but, if it were, that the conclusion would not follow.

It seems most convenient to reverse the order of the propositions, and to discuss the latter first; for if the conclusion does not follow from the premisses, the Court need hardly trouble itself about them. I shall, however, not only resist the conclusion, but when I have done that, I shall examine and disprove the premisses.

Let me first ask attention to the proposition, that because "no legal State government, or adequate protection for life or property, now exists" in the State of Mississippi, therefore that State can be placed by Congress under absolute and universal martial rule. Where is the authority of the Government of the nation for taking upon itself the government of a State, however disordered and anarchical, and carrying on that government by the soldiery? We know that whatever power is possessed by Congress, or any other department of the Federal Government, is contained in a written Constitution. Within its few pages are comprised, either in express language or by necessary intendment, every power which it is possible for the Federal authorities of any kind to exercise under any circumstances. Show me then, I say, the power to erect this military government. You cannot find it expressed in any one of the eighteen subdivisions of the eighth section of the first Article-that section which contains the enumeration of the powers of Congress. If it is implied in any of them, tell me in which one. I cannot find it.

Turn then to the fourth section of the fourth Article-that which declares that "the United States shall guarantee to every State in the Union a republican form of government, and shall protect each of them against invasion, and, on application of the Legislature, or the Executive (when the Legislature cannot be convened), against domestic violence."

Is a military government here sanctioned? Certainly it is not expressed. Is it implied? Supposing, for the sake of the argument, that the United States, uninvited by its Legislature or Executive, can go into a State for the purpose of repressing disorder or violence, or of overthrowing an existing State government, on the ground that it is not republican, I deny that they can introduce a military government as the means to such an end. To avoid misapprehension, I carefully distinguish between the use of military power in aid of the civil, subordinate to it, and military government. The two systems are opposed to each other. In one case the civil power governs, in the other the military. In one the military power is the servant of the civil, in the other it is the master. My proposition is, that a military government cannot be set up in the United States for any of the purposes mentioned; and

the reason is this-military government is prohibited by the Constitution. Not disputing the proposition that Congress may pass all laws necessary or proper for carrying into effect any of the express powers conferred upon any department of the Government, and that Congress is in general the judge both of the necessity and the means, the proposition is to be taken with this qualification or limitation—that is, that the means must not be such as are prohibited by other parts of the Constitution. A lawful end, an end expressly authorized by the Constitution, cannot be obtained by prohibited means.

This proposition should seem to be beyond dispute. Let us devote a few moments to its examination. The framers of the Government could not foresee all the exigencies which might arise in the future, and therefore, after expressing the great ends for which the Government was formed, and the powers conferred upon it, they meant to leave the choice of the means generally to the discretion of Congress; but fearing that in seasons of excitement and peril measures might be adopted not compatible with civil liberty, or consistent with the rights of the States or of the people, various express prohibitions were inserted in the original instrument, and their number was greatly increased by the subsequent amendments. Thus, in the ninth section of the first Article, the one immediately following the list of granted powers, is a series of prohibitions, seven in number; and among them that relating to the suspension of the privilege of habeas corpus, prohibiting it, "unless when in cases of rebellion or invasion the public safety may require it," and another relating to bills of attainder and ex post facto laws, prohibiting them altogether. Stopping for a moment to consider these clauses of the original instrument, before going into the amendments, we see clearly that, in the choice of means for carrying into execution any of its powers, Congress could not pass an act of attainder, or an ex post facto law, or (except in cases of rebellion or invasion) suspend the privilege of habeas corpus, however great might be the exigency or the peril, and though not only Congress, but the great majority of the country, should think these means the most appropriate, the most sure, and the most speedy for meeting the exigency or avoiding the peril.

Passing then to the amendments, we find eleven articles, every

one of which contains a prohibition of the use of particular means to obtain a permitted end. If the end be not permitted, the prohibition is unnecessary; it is only when the end is lawful, and there is a choice of means, that the prohibition becomes effective. The manifest design was to prohibit the particular means enumerated in the amendments, however desirable might be the end. Among these prohibitions are the following: that Congress cannot abridge the freedom of speech or of the press; cannot infringe the right of the people to keep and bear arms; cannot subject any person not in the military service to answer for infamous crime, but upon the previous action of a grand jury; cannot bring an accused person to trial but by a jury; and cannot deprive any person of life, liberty, or property, without due process of law. Therefore, in the choice of means for obtaining an end, however good, Congress cannot authorize the trial of any person, not impressed with a military character, for any infamous crime whatever, except by means of a grand jury first accusing, and a trial jury afterwards deciding the accusation.

This prohibition is fatal to the military government of civilians wherever, whenever, and under whatever circumstances attempted. Such a government cannot exist without military courts, military arrests, and military trials. The military government set up in Mississippi could not exist a day without them.

Thence it follows, that even if Congress had authority to take upon itself the government of a State, this government could not be a military one; and for this reason, if there were no other, the whole scheme of these military reconstruction statutes fails, and the statutes themselves are unconstitutional and void. If the statutes are void, all acts done under them are illegal.

To illustrate suppose there were no legal State government in Mississippi, and no adequate protection for life or property-that the State were utterly disorganized-could Congress, for those reasons, pass an Act of attainder? Is there any lawyer in this country who will stake his reputation in asserting it? Let us put the strongest possible case. Suppose that Jefferson Davis, the great leader of the rebellion, were in Mississippi to-day, creating anarchy and opposing the reconstruction of the South, so that unless he were got out of the way there could be no reconstruction of