Mr. RAYMOND. If I understand it, the 1st section of the bill annuls absolutely all those governments now existing, and declares all the laws which they have enacted to be absolutely null and void. This takes effect as soon as the bill becomes a law, and subsequent sections provide that the conventions to be elected under this law may appoint provisional governors and commissioners, who shall administer the jo."until the constitution, to be framed, adopted, and ratified by Congress, shall take effect. But between the date of the passage of this act and the action of the conventions to be elected under it, the governments now existing are abolished and their laws nullified, and no provision whatever is made for any authority in their place. There is to be an interregnum from the date of this act to the appointment of provisional governors by the convention to be elected under it, and for that time the bill of the Gentfrom Ohio makes absolutely no provision whatever. But, as I was saying, it is an absolute necessity that every community should have at all times some government, some law, whatever its origin and whatever its character. The governments now existing in the South are in the actual daily discharge of governmental functions. They are making laws for the government and control of their people. They are providing for the punishment of crime, for the enforcement of contracts, for the transfer of property, for the regulation of civil relations, for the 1,000 transactions of common life. It is urged that these laws are not equal; that they are unjust, inadequate to the protection of the lives, liberties, and property of their people; that those of their people who have been true to the nation during the recent war, and especially those of the negro race, are not protected in their rights. I admit there is ground for this complaint. I believe it to be true that crimes are of daily occurrence in many sections of the southern States which are shocking to humanity, and which call loudly for redress. And it is greatly to the discredit of these governments, it is well calculated to arouse against them the hostility of men who love justice and equal rights everywhere, that they tolerate such outrages and crimes within the territory subject to their jurisdiction. It is proposed by this bill that we shall suspend the habeascorpus and substitute hartial law over all this territory instead of the State governments; in other words, that the authority and direct power of the nation shall The gentleman is take the place of the governments which now exist in the South. I submit, in the 1st place, that this act will not remedy the evil; it will not give the security required, even if it should become a law. It must be remembered that the Federal Government already has full authority to interpose its power for the protection of the people whose lives and liberty are in jeopardy in all the region embraced in the rebellion. The Freedmen's Bureau bill and the civil rights bill passed at the last session, and which are now in force as laws, both authorize the direct interference of the Government of the U.S. for the protection of the civil rights of the people of all that territory against or in default of the local authorities and without distinction of race or color. But it is said these laws are not sufficient because they depend for their execution upon the POTUS, and he is opposed to the principle of those laws, and therefore is lax in their execution. Now without raising any question as to the matter of fact, I submit that martial law, if declared, i subject to exactly the same contingency. POTUS is Commander in Chief of the Army; if martial law should be declared, its execution devolves upon him, and if he will not execute these, what right have we to assume or presume that he will execute that? I do not see, therefore, that we should gain any additional security for those great interests which justly deserve our care by the enactment of martial law. So much, sir, for the practical operation of this section of the bill if it should become a law. But behind all this arises in my mind this objection: that we have not the power under existing circumstances to declare martial law over that territory. The Constitution in the 9th section of the 1st article declares that “The privilege of the writ of habeascorpus shall not be suspended, unless when, in casesof rebellion or invasion, the public safety may require it.” The privilege of habeascorpus is o not susin that section now. It is enjoyed y all the people of that territory. It was suspended during the war, but it has since been restored by direct proclamation of the Executive, authorized by law. If it is to be suspended now, therefore, it must be by an original exercise of power on our part, and if we are to be governed by the Constitution we must confine ourselves to the specific contin gencies which alone, according to the Constitution of the U.S. allow its suspension. Those contingencies are, 1st, that there shall exist a case either of rebellion or invasion, and 2nd ly, that in consequence of that rebellion or invasion the public safety shall require its suspension. ow, there certainly is no invasion in those States, and I think there is no rebellion there, though upon that point different opinions are held, some maintaining that constructively at least and in contemplation of law the state of rebellion still exists. I will not stop to argue that point; but certainly there is no such rebellion existing there at the present moment as endangers the public safety, for that means something more than the safety and rights of individual members of the community; it means the public safety the safety of the nation, of the whole public, or body politic and corpo rate. That certainly is not endangered. That certainly does not require that the privilege of this writ should be suspended. I do not see, therefore, how, if this provision of the Constitution is to control our action here, we can possibly find authority to suspend this writ and declare martial law over that territory, as this bill proposes to do. I think I run no risk in saying that it is absolutely certain that any such law enacted by us would be declared null and void by the SCOTUS upon the 1st case arising under it that should come before that tribunal. I have thus examined the 1st provision of the bill as it now stands. As originally introduced by the honorable member from Pennsylvania, it proposed to give validity to the o p. existing governments, to sanction their laws, until they should be replaced by other governments, to be formed under our authority. That provision was, in my judgment, just and wise, ar better adapted to the necessities of the ease than the amendment offered by the Gentfrom Ohio, [Mr. SPALDING] which he accepted, which encounters, as I have endeavored to show, not only serious objections on the score of policy, but the direct and explicit prohibitions of the Constitution. The bill provides in the next place for the organization of new governments in those States under authority of Congress. It lo. prescribes the of suffrage in the election of elegates, and dictates certain provisions of law which must be embodied in the constitutions they may form before they can even be submitted to Congress for ratification. The learned member from Ohio, [Mr. BINGHAM] in his very able argument submitted to the House a few days since, objected to this as a substantial denial of the right of petition to the people of those States a right which belongs to every citizen within the limits or jurisdiction of the U.S. If they are States within the Union, I think it also in direct conflict with the 2nd section of the 1st article of the Constitution, which expressly gives to the States absolute and exclusive power to fix the qualifications of suffrage within their limits. Whether they are States within the Union or not is a point I shall not argue now. I have given on previous occasions my reasons for believing that they are. But if they are, they can only be so under and by virtue of the Constitution, and I confess my inability to see why, in that case, they do not come under all the provisions of that instrument. Either they are States of the Union, thus clothed with such functions and duties as the Constitution confers upon States of the Union, or they are not States at all, but conquered provinces, subject solely and absolutely to the will of the national authority. One or the other of these positions must be true. I cannot, with all my disposition so to do, perceive the force of the argument by which the Gentfrom Ohio [Mr. BINGHAM] sought to show that they are still States for some purposes but not for others, that they are States for Federal purposes but not for purposes of local government, that they may ratify amendments to the national Constitution, but cannot make laws for their own government. I cannot perceive any basis for such a distinction either in the language or the spirit of the Constitution. This bill treats them as conquered provinces. If they are, we have the right to i. with them as this bill proposes to do. But I have here tofore discussed this point so much at length that I will not again enter upon it at the present time. I have only to say that I have seen no reason to change my original opinion, nothing in any quarter to refute the doctrine laid down by a very learned and distinguished judge of the State of Massachusetts in the decision of a case that came before him: that the war for the suppression of the rebellion could not give the Government the rights of conquest, nor could it authorize us to divest a State of all political privileges and treat it as foreign territory acquired by arms. The same considerations apply with still greater force to the 3rd of the provisions of this bill, which provides that if at any time after readmission any of these States shall abrogate, alter, or change any of the provisions which this bill requires them toingraft upon their constitutions, that State shall thereby and thereupon forfeit its right to representation in Congress. After admission they become States of the Union, and will be, beyond all doubt, upon a footing of perfect equality with all the other States. The national Government cannot have power, in my judgment, thus to infict upon them terms and penalties which it can: not also inflict upon any and all of the other States of the Union. And with this statement of my views upon that point, as my time is too limited for any argument of the question, I leave it. For these reasons, sir, reasons of policy and of authority, I do not think we ought to pass this bill. I do not believe it would be at l effective in securing the objects at which we aim, or that it would conduce in the slightest degree to promote peace and secure equal rights among the people upon whom it is, to take effect. And I cannot help believing that it contains provisions directly at war with specific and peremptory prohibitions of the Constitution. So much for that. But, sir, there is a grayer aspect to this question. I have. i. thus far upon the as sumption that in this whole matter of restoring the States lately in rebellion, as in the war against them, the Constitution is the supreme law. But the opinion is held by some and acted upon, I venture to believe, by many who do not avow it, and who perhaps are not quite tchoensrceisotruicstiothnast athnedy praorheibaitciotinnsg oupf othne iCt onthsatittution have no application to such a case as this. A learned and distinguished jurist of my own State, a gentleman who has filled the high est judicial offices in that State, as well as represented this Government at a foreign Court I refer to Judge Conkling has recently declared that this is no constitutional question at all; that it arises outside the Constitution, and that, to use his own language, we might as well refer to the Koran as the Constitution for the purpose of getting light upon it. On the other hand, the SCOTUS, in a decision recently pronounced, has declared that the Constitution as interpreted by that court is and must be the supreme law alike for rulers and people under all circumstances and at all times, in peace and in war, and that none of its provisions can ever at any time be abrogated, transcended, or suspended during any of the great emergencies of Government. Now, sir, while I cannot assent to the doctrine of the distinguished judge whom I 1st quoted, while I think it incumbent upon us as individual citizens and as members of the Government to regard and respect the Constitution as the absolute rule of our action, I think that the opinion of the Supreme Court is liable to a construction somewhat stronger and more sweeping than the real facts of the case warrant. It seems to assert that the ultimate sovereignty of the nation rests in the Constitution; that there is nothing behind it; that it binds the people in their national and political character as well as in their relations as individual citizens, absolutely and at all times; and that no emergency of Government can permit or sanction any depart ure from its provisions or the exercise of any authority which it does not confer. Now, for all practical purposes in the or dinary movements and operations of government this is well. It is well that high regard and reverence for the Constitution should thus be inculcated, and that all the action of all classes, of rulers and people, should proceed upon that basis. But as an absolute statement of the nature and residence of national sovereignty I cannot accept it. It seems to assert that the ultimate sovereignty of the nation rests in the Constitution; that there is nothing higher, nothing superior to it in authority. But there must be some power somewhere which gives that Constitution its authority. It certainly is not self derived. We are bound to obey its injunctions, not simply because they are there, but because they come to us, through it, from some power which has the right to prescribe them; and that power, whatever it is and wherever it resides, must of necessity be higher than the Constitution itself. Nor can it be maintained that all the authority of the Constitution was conferred, once for all, by the Convention which originally framed and the people who originally adopted it, and that it now simply represents their will and their authority. Sovereignty is something which abides with and is inseparable from that power in which it exists. It cannot die nor can it be suspended. It is ever living and ever present, giving at all times the sanction of its authority to the organs and instruments of its will. The nation itself is that supreme, sovereign power in this country; not the nation as it existed in 1789, but the nation as it exists today. The Constitution exists for the nation, not the nation for the Constitution. It is the nation which gives authority to the Constitution, not the Constitution which gives authority to the nation. The nation is sovereign; the Government is the organ of such portion of its sovereignty as it sees fit to delegate; and the Constitution is the rule of conduct prescribed to the Government by the nation, and by which that authority is to be exercised. Of course, neither the Government nor the rule of its action can be superior in authority to the nation which prescribes them both. It is the nation, therefore, which is sovereign, and the people, either as a political unit or as existing under State organizations I will not now inquire which are the nation. We may, I think, suppose a case in which the doctrine of the Supreme Court just cited, that neither rulers nor the people meaning thereby the nation can under any circumstances or in any emergencies exercise any power not conferred by the Constitution, would not be true. It was the nation which waged the war against the rebellion. Now, suppose that in the midst of the war the Supreme Court had decided that the war was unconstitutional, would the war have stopped? Would the people have abandoned the attempt to vindicate their sovereignty and to preserve their existence as a nation? Ought they to have done s2o They might have chosen to do so; in the exercise of their sovereignty they might have had the right to surrender their national character and take instead of it the character of a league of sovereign, independent States; but they would also have had the right, in the exercise of the same sovereignty, to defend and maintain their existence as a nation by war. Nor is it clear that political depts of the Government would have been overborne and bound by such a decision, for it is the general rule in all constitutional governments that the judicial dept follows the political instead of leading or overruling it. This, moreover, is to be noted: the decisions of courts can only take place after the facts have occurred, after results have been attained. They cannot annul those results. The supreme Court may condemn as unconstitutional the war which saved and established our existence as a nation, but it cannot reverse or an nul that result. It may decide, as it is now deciding, that steps which the Government, acting as the organ and instrument of the national sovereignty, deemed essential to the success of the war, transcended the authority conferred upon it; but the steps were taken and cannot be taken back. Milligan was ar rested, tried by military commission, and convicted of being engaged in a conspiracy to aid the rebellion. The Supreme Court now decides that this trial and conviction were illegal, but they took place nevertheless, and the conspiracy was thus arrested and the rebellion deprived of its aid. Suppose that the court should now make a similar decision in regard to every measure taken by the Government to suppress the rebellion. Suppose it should decide that the proclamation 1st calling for troops, the successive drafts, the suspension of the writ of habeascorpus, were all unconstitutional. They the war successful, and that result cannot be changed, even if every single step by which it was reached should be pronounced in violation of the fundamental law. I have always believed, and do still believe, that the Government had the authority of the Constitution, express orim plied, for all it did in waging war against the rebellion. But if the Supreme Court should decide otherwise, if it should hold that every act done to crush the rebellion was in direct have nevertheless done their work. They made. violation of the Constitution, the fact still remains that the rebellion was crushed; and no decisions, no judgments, no processes can revive and reinstate it in what the court may deem its violated constitutional rights. Without going further into what may be deemed too abstract a discussion for such an occasion, what I have said may show that emergencies may arise in which the rule laid down by the Supreme Court is not absolutely true, in which the sovereignty of the nation may transcend the authority of the Constitution without violating the law of the national life, in which, indeed, that law itself may demand such an appeal from the Constitution to the nation which created and maintains it. such action, I grant, is extraordinary, revolutionary, indeed, in a certain sense, and only to be vindicated by extraordinary emergencies. Yet it has been resorted to in more than one instance in our brief history already. When the apprehensions of the 1st Napo leon that Louisiana would fall into the hands of England led him to instruct his minister here to sell it to the U.S., it was the belief of all the leading statesmen of the day that the Constitution gave our Government no power thus to acquire foreign territory. And Jefferson, who was then President, did not hesitate to express the opinion that, without an amendment of the Constitution, we had no right to make the purchase. But there was no time to act upon amendments, and so pressing did he deem the necessity of the case that Jefferson himself made the purchase, and without hesitation gave effect to every ste necessary to complete what he had pronounce an unconstitutional transaction. By common consent the act received the nation's sanction, and a construction was thus given to the constitution which has never since been questioned. Suppose the Supreme Court had decided that purchase unconstitutional, would Louisiana have been given up? The Supreme Court declared the bill chartering a bank of the U.S. to be constitutional; but President Jackson, claiming the right to administer the Constitution as he understood it, overruled the Supreme Court and vetoed the bill as in violation of the fundamental law; and the nation sustained him in so doing. When President Tyler sent troops across the Rio Grande, and thus involved the U.S. in war with Mexico without the assent or action of conress, so great an authority as the Chancellor declared that he had committed an unconstitutional act for which he deserved impeachment. Suppose the Supreme Court had decided that the war, because of its origin, was unconstitutional, would Texas and California and NewMexico, the fruits of the war, have been surrendered? In all these cases the Supreme Court accepted the facts of history, the acts of the Government which had passed into and become parts of the national history, as the settled law, and the people sanctioned them as an exercise of the sovereignty of the nation, transcending the delegated authority of the Constitution, it is true, but justified by the emergency and sanctioned by the result. If the Supreme Court is wise now, it will thus accept as accomplished and irreversible facts not to be drawn in question the processes and results of our recent War. The instances I have cited show that there is not only in theory but in actual practice a sovereignty : than that of the written Constitution, and that whenever the emergency requires it that sovereignty will assert itself., Indeed, some of the ablest writers on constitutional law maintain that the real constitution of a nation is something wholly distinct from its written, constitution; that it is nothing else than the judgment, the opinion, the will of the nation itself, and that the written constitution is simply an attempt to reduce this will, which is the real constitution, to a fixed and definite form for purposes of law and government. It is important, therefore, that the written constitution should be at all times as nearly as possible the embodiment and expression of the national sentiment, the national will, and this principle is recognized by our Constitution in the provisions made for its own amendment. That written constitution in any country is the best which gives fullest and freest scope to the normal and regular development of the national will and character. “The general opinion of the governed, ” says Burke, “is the vehicle and organ of legislative omnipotence.” In any country where there is life and activity, in this country distinguished above all others for the energy, variety, and incessant activity of its development, there must and will be constant changes in the temper, the necessities, the aspirations of the national mind; and those changes must enter into the structure of the Government, if that Government is to be the organ and instrument of the real sovereignty of the nation. Any constitution that does not yield readil and easily to the development of the nationa life lacks an essential element of stability. It must aid, not retard national growth. It must not be unyielding, inflexible rigidly imposing the restrictions of one era upon the movements, influences, and aspirations of another or it will be overridden and broken by the growth which it seeks to confine. It is idle, and is every day becoming more and more idle, to rely implicitly upon the early fathers and founders of this nation as decisive authorities on the provisions to be embodied in our fundamental law. Not that we are wiser in the general principles of government and law than they were, because we know by actual experience what they could not foresee, namely, the temper, the movements, experiences, per ils and necessities of the times in which we live and for which we have to act. If we had lived in their day we might not have performed their duties and met their responsibilities as well as they did. If they were living now they might be wiser, more patriotic, less under the sway of passion and prejudice, and better able to do our work than we are. But all this is wide of the mark. They lived and labored in their day, and we live and must labor in ours. The years that intervene between 1789 and 1867 measure very inadequately the distance between the political and social necessities of that day and this. And while I have been and still am opposed to rash, hasty, and immature attempts to amend the Constitution, while we should be on our guard against a temptation which will always beset us, namely, toingraft the prejudices, impulses, and even the presentments of the hour upon the fundamental law, it is impossible to doubt that such changes as must always be wrought in the necessities, the convictions, the tone, and the will of the nation by great convulsions, and such as have, beyond. question, been wrought by our recent civilWar, must make their mark upon the Constitution, and work corresponding changes in the scope and distribution of the political power which it confers. And history shows that if this is not done by amending the Constitution in accordance with its own provisions, it will be done by an irregular action of the national will, by action not contemplated by the rule prescribed for the conduct of the Government, and therefore revolutionary in its nature, but not the less certain to occur or less effective in its results on that account.