then we have no guaranties, for it will rest forever in the discretion of congress to order an army to make war upon a state, whenever it may determine that there is danger of something being done which ought not to be done.

A short time since, a proposition was made to take into the hands of the federal government the whole state of Maryland and the whole state of Kentucky, upon the ground that their people were disloyal in heart; that they did not mean sincerely to obey, and there was danger that hereafter they would give aid and countenance to a new rebellion. I deny most explicitly that this limited government of ours has power to wage war against a state, upon any suspicion or theory of an intended insurrection against the government. We are limited to our constitutional duties and our constitutional rights, which are to enact laws as authorized by the federal constitution, and to execute those laws by the courts of justice and the executive arm.

Let it not be imagined for a moment that I have the least sympathy with the rebels. As I detested the Rebellion, so do I censure those who rebelled. But, while I censure, I remember that they are still my countrymen, and, remembering also that rights and duties are correlative, as I would exact from them performance of the duties, so I would concede to them the rights, of citizens. To close up the gaping wounds of civil war is the consummate art of statesmanship, and, if history teaches us aright, that end can never be accomplished by proscription. Conciliation is more potent than severity, and forgetfulness than the remembrance of wrongs. These military governments of the South are said to be only temporary. How do we know that? Is it constitutional to do a thing as a temporary expedient which congress may continue as long as it pleases? The conditions annexed to this first reconstruction act contemplated that the military power should remain in the South until the amendment proposed should be ratified by three-fourths of the states. The argument of danger is an argument of very little force on either side. It is not speaking too strongly to say that this court stands now in the very gateway against the usurpation of military power dangerous to our liberty. What have we seen, and what do we now see? We have seen the chief justice of this court, before whose robes all bayonets should be lowered, taking his place in a circuit court in North Carolina, after explaining to a committee of congress that he would not hold his court where it was not supreme over all military as well as civil officers, and receiving assurances of the subor

dination of the military, and, upon appearing, announcing to the bar as a reason why his court had not been held at an earlier day that it was beneath the dignity of a court of the United States to sit where its process might be resisted by military power; and yet we have seen the execution of the process of this very court forbidden by military officers! Of course, if the chief justice had taken his seat again upon that bench, he would have punished the offenders as they deserved. We have seen, in a printed document submitted to congress, the testimony of the secretary of war, asserting his belief that the decision of this court in the Milligan case was erroneous; that it was not founded in law, though it was the unanimous decision of the court; and maintaining still the right to establish military commissions in loyal states. We have seen an act pass through one house of congress which proposes to vest in the general of the army unlimited control over all these eleven states; and we have also seen introduced into the lower house an amendment to an appropriation bill, proposing to make your hall a place to be guarded by soldiers! Here is the proposition, which I will read:

"Provided, that from and after the close of the current fiscal year the police and protection of the capitol building and grounds shall be under the direction of the engineer department of the army, and the secretary of war shall detail for that service from the garrison at Washington such number of noncommissioned officers and privates, not exceeding forty, as may be deemed necessary for the purpose by the chief engineer; and soldiers, when so employed, shall have an extra allowance of twenty-five cents per day for privates, and thirty cents per day for non-commissioned officers."

If we go on as we thus begin, instead of these guardians at your door, you will find soldiers with bayonets, and there will be soldiers with bayonets before the houses of congress. We must resist now! We will not have military government; it is against the constitution, and we stand upon the constitution of our country. We will not have it for an instant, for an instant's voluntary submission to unlawful power is dishonor. An instant may expand into a day, a day into a month, a month may lapse into years, and years into a generation. If we submit for a moment, we forget the lessons of our fathers, and despoil our inheritance. We were threatened by the counsel that, if in New York we did not conform ourselves a little more diligently to what was required of us, we should have the general of the army there. One of them called it "that infernal city of New York." Pardon me if I repel the calumny. My city is misgoverned, I admit; but that misgovernment, be it remembered, comes chiefly from

the premature admission to the suffrage of those not here accustomed to exercise it. Among her people are as much virtue, as much patriotism, as much honor, as exist anywhere. You, sir, when you came to a discredited treasury, know how your hand leaned upon her, and how her merchants came forward with the most lavish offers to sustain this government; how, at the first summons of the president, the flag of the country floated out from window and tower, and her people called with one voice, bidding loyal men to rise everywhere throughout the land. For social culture, for intellectual activity, for the magnificence of her commerce, for the grandeur of her enterprises, and, not least, for her abounding charities, she stands unapproached on this continent, and unapproachable, even by that younger sister of the Pacific, through whose Golden Gate lies the highway to India. New York sits upon her island rock, and there is no American who, returning to his country, sees her spires above the waters, but rejoices in her prosperity, and is proud of her.

But we are told that this is a political question, which is beyond the competency of the courts to determine. A fortnight ago this objection would have come with more force than it comes The experience of a few days has taught many, what was understood by thoughtful observers before, that this court is the great peacemaker, and that nothing but its peaceful interposition can prevent collisions of force. What is a political question? Is it one which affects the policy of parties, or is decided by partisan views? Such a question is the very one that is most likely to lead the legislative department into excesses, which it needs the judicial to correct. If congress were to pass an act of attainder, with a purely political motive, or for a purely political end, does any one suppose that this court is not competent to pronounce it unconstitutional and void? A political question, I apprehend, is one which the political department of the government has exclusive authority to decide. Is it a political question whether McCardle can be imprisoned by military order, and tried by military commission? There are political questions, undoubtedly, that is, questions which the political department of the government has a right to decide, and, being decided there, the courts will follow. But whether or not a man can be imprisoned and tried by a particular tribunal is always a judicial question, which the judges will determine for themselves. This question, however, has received its final answer in the opinion of this court, delivered by Mr. Justice Nelson, upon the bill exhibited by Georgia against the

secretary of war and others; and it would be presumptuous in me to debate now what is there decided so satisfactorily to all friends of constitutional government, and so authoritatively for us all.

Finally, sir, may I not say that I have shown (1) that there is no reason whatever for the proposition that Mississippi is not now a state of the American Union; (2) that not only is she a state of the Union, but her people have the rights of citizens of a state; (3) that whether she be or be not a state, or her people have or have not the rights of citizens of a state, that people cannot be subjected to military government by the congress of the United States; and (4) that therefore the petitioner, McCardle, is entitled to his release from the military commission which presumed to sit in judgment upon him? And when your judgment is pronounced, as I hope and pray it may be, in the petitioner's favor, it will, I trust, be the endeavor of all good men to promote by their counsel and example the acquiescence of the other departments of the government. As it is your right, in the last resort, upon all cases that come before you, to give final interpretation to the constitution, so it is the duty of all citizens to respect and accept your interpretation. There is no need to strain the authority of the government. The constitutional amendment not only abolishes slavery, and makes freedom the rule throughout the country, but it gives congress the power to enforce that article by appropriate legislation, and to see that the freedom of every man, of every race and condition, is maintained.

It was the boast of an English orator and statesman, on a memorable occasion, when he delivered a message from the king to his faithful commons respecting the expedition to Portugal, that "wherever the standard of England is planted, there foreign domination shall not come." If we will firmly maintain the constitution of our fathers, as modified by the great amendment, we shall be able to make it our higher boast that, where the standard of America is planted, there shall be neither foreign domination nor domestic oppression.

WILLIAM M. EVARTS.

[William Maxwell Evarts was born in Boston, Mass., 1818. His father, Jeremiah Evarts, was a well-known philanthropist, who, though bred a lawyer, devoted himself to the cause of Christian missions and the rights of the Indians. He was educated at Yale College, where he was graduated in 1837 in the same class with Morrison R. Waite, Samuel J. Tilden, and Edwards Pierrpont. He studied law at the Harvard Law School, and in the office of Daniel Lord, in New York City, where he was admitted to the bar in 1841. From 1849 to 1853 he was assistant United States district attorney for the southern district of New York. He was chairman of the New York delegation to the Republican national convention of 1860, and placed William H. Seward in nomination for the presidency. In 1861 he was an unsuccessful candidate for the United States senate. He was appointed attorney general by Presiident Johnson. Under the administration of President Hayes, he was secretary of state. In 1881 he was one of the delegates from the United States to the International Monetary Conference at Paris. In 1885 he was elected to the United States senate from New York. After his retirement from the senate, failing eyesight compelled him to abandon professional work, and for several years he was confined to his house by other infirmities. He died February 28, 1901.

William M. Evarts would have had many titles to fame if his supreme eminence as a lawyer had not so far surpassed his other claims to distinction. As an advocate, as an orator, as a statesman, he commanded during his lifetime a large measure of public admiration and respect. Yet his public honors were but the reflection of his professional eminence. Neither by temperament nor by training was he peculiarly qualified for public life. For the adequate display of his great abilities he required the stimulus of a cause in which his duty was clearly defined in accordance with the scientific and orderly limitations of forensic discussion. Within this sphere he stood for many years without a superior, the recognized leader of the American bar, and it may safely be predicted that his most enduring fame will rest upon his professional labors.

It is the common destiny of lawyers to leave to posterity few traces of their labors. Eloquence and learning, devotion to duty,