Mr. NIBLACK. I did not intend to go into that branch of this question, or to be understood as saying that Congress had not in any manner recognized the existence of these State governments. On the contrary, as the gentleman has suggested, I am prepared to affirm upon all suitable occasions that this Congress has indirectly and by collaferal legislation, in the manner suggested by the gentleman, and perhaps in other ways, recognized the existence of these State governments. That matter has been discussed oftentimes in this House and elsewhere. And what I was endeavoring to say, what I desired to be understood as saying, was that Congress had, by no direct legislation upon this subject of reconstruction, either affirmed or denied the validity of these State governments, but has left it a question some what of construction and inference, as to their status by the acts it has passed upon other subjects and not bearing directly upon the subject of the restoration of these States to their for mer relations with the Government. I will come now directly to the consideration of the bill now before the House. As I stated in the outset of my remarks this bill, to my mind at least, io, presents more questions of interest than is presented by any other measure which has E. submitted to this House and to the country since the close of the war. It commences by a preamble which is intended as a declaration of the views of Congress upon the conduct of the executive dept of this Government, both during the administration of Mr. Lincoln and the administration of Mr. JOHNson. It is a statement also of what Congress is asked to ann nounce as the legal effect of the reconstruction policy of both Mr. Lincoln and Mr. JOHNson in regard to the States enumerated. The preamble is as follows: Whereas the pretended State governments of the late socalled confederate States of Virginia, NCarolina, SCarolina, Georgia, Mississippi, Alabama, Louisiana, Florida, Texas, and Arkansas were set without the authority of Congress and with: poruettethnedesdangcotvioenrnmofenthtse people; and whereas said afford no adequate protection for life or property, but countenance and encourage lawlessness and crime; and whereas it is necessarythat peace and good order should be enforced in said socalled States until loyal and repub lTichaenreSfotarete, governments can be legally established: Be it enacted, &c. Now, I concede, Mr. Speaker, that this preamble is no part of the bill; it may be stricken out without affecting in any way its provisions. When a preamble to a bill is adopted, however, it usually becomes an important and sometimes an essential part of it. Now, what is the nature, character, and evident purpose of this preamble? It bases the proposed action of Congress upon the pretense that no proper State governments have been erected within the lately rebellious States; that they have not been sanctioned by the authority of the people. Therefore, because the people have not sanctioned what has been done in the alleged attempt at reconstruction, congress must intervene without reference to what the people wish or desire in those States, and take the whole power of the Government into its own hands. Now if, as there intimated, and as I fully concede, the assent of the people is necessary to the reconstruction of any State or to the establishment of a government within it, then hold it is not the duty of Congress to provide military goverfiment for these people, but to make provision at once by which they may re establish civil government if the present State governments are to be swept away. But this bill does not pretend to do anything of the kind. On the contrary, I think it can be construed in no other light than as an attempt to set up military governments in place of the State governments now there, obliterating all State lines, and not founded in any sense upon the consent of the people. It is founded simply upon what is claimed as the authority of Congress, to do as it pleases with the States lately in rebellion, without reference to any constitutional limitation. This preamble is a reflection upon all that has been done by the executive authority upon the subject of reorganizing those States; and it applies, and I call the attention of the House to the fact, that it applies as well to what was done by Mr. Lincoln in regard to the States of Louisiana, Arkansas, and Virginia, as to what has been done since by Mr. JOHNson in the other 7 States included in this bill. The blow that is intended to be inflicted by this preamble upon the present Executive necessarily reaches back oapplies in a great measure to the acts of his predecessor. I do not pretend to discuss the relative merits of Mr. JOHN son and Mr. Lincoln in those respects. These matters have already been discussed more ably and at greater length than I have the power or the time now to do. The 1st section of this bill is as follows: Be it enacted, doc., That said socalled States shall be divided into military districts and made subject to the military authority of the U.S. as hereinafter prescribed, and for that purpose Virginia shall constitute the 1st district; NCarolina and SCarolina the 2nd district; Georgia, Ala bama, and Florida the 3rd district: Mississippi and Texas Arkanstahse ftihfteh fdoiustrrtihct.district; and Louisiana and Thus it is proposed to establish military governments—for if it amounts to anything it amounts to that—in those ten States, without regard to the old State boundaries or to the present State lines. That, however, is merely a preliminary to what follows. The 2nd section provides — That it Army shall be the duty of the General of the to assign to the command of each of said districts an officer of brigadier general, the Army not below the rank of and to detail a sufficient military force to enable such officerto perform his duties and enforce his authority within the district to which he is assigned. Now, the remarkable feature in this section is that instead of declaring that the POTUS shall do these things, as is usual in all similar legislation, so far as any previous legislation has ever been similar to this, it is provided that the General of the Army shall exercise this power—not the President, not the War Dept, but the General of the Army. Now, while I have as much confidence in the military capacity of the General of the Army of the U.S. as any member of this House, yet under the Constitution he is but a subordinate officer to the President. The President, by virtue of the Constitution, is the commander in Chief of the Army and Navy of the U.S.; and if this bill should become a law he could still, notwithstanding its provisions, prescribe to GenlGrant the duties which he shall or shall not perform in regard to this as all other military measures. I take it, therefore, that if this bill should pass in its present form it could have no legal effect in tying up the hands of the President. All that you can make of it is simply a personal reflection upon the President, attempting to confer upon the General of the Army authority which constitutionally belongs to the President. This provision, therefore, can have no other effect than to illustrate the animus of the bill or of those who reported it. The 3rd section provides — That it shall be the duty of each officerassigned as aforesaid to protect all persons in their rights of person and property, to suppressinsurrection, disorder, and violence, and to punish, or causeto be punished all disturbers of the fopence and criminals, and to this end he may allow civil tribunals to take juris diction of and to try offenders, or, when in his judgment it may be necessaryfor the trial of offenders, he shall have power to organize military commissiers or tribunals for that purpose, anything in the co stitution and laws of the socalled States to the co trary notwithstanding: and all legislative or judicial proceedings, or processes to prevent or control the proceedingsof said military tribunals, and all intertheereenxceerebiysesaid pretended State governments with of military authority under this act, shal be void and of noeffect. This, Mr. Speaker, o: the great and important question for the consideration of this House; in other words, it is the important and controlling section of the bill. As was properly remarked yesterday by the Gentfrom Ohio, [Mr. SHELLABARGER, 1 the military power of this Government in all matters pertaining to its civil administration is but the police force of the Government. It is but an auxiliary of the civil power when called upon in the execution and enforcement of the laws. In order, therefore, that the military may exercise any proper authority in . the socalled rebellious there must be some civil government, some civil authority, in aid of which the mili. tary shall act. The bill declares that the “rights of persons and property” shall be enforced and protected by the military authority; but it does not define what are the “rights of persons and property.” of the people in those districts of country. It does not pretend to define what those rights are or any civil rights pertaining to the people of the section of country to which it applies. If the pretended State goveronments of which the bill speaks are not legal governments and have no power to enact laws, then of course all of the pretended laws of these pretended States defining the rights of citizens, defining the rights of person and property, are void and of no effect. There are no State laws, then, to execute by the aid of the military within these socalled States. If there are no State laws, then I submit, Mr. there are no laws of Congress applicable to the emergency. It amounts simply to this: that there are no laws now in force, either State or national, pertaining to the local administration of this district of country known as the lately rebellious States which the military can be called upon to aid in executing. If the military authority in the district, therefore, has any power at all, or attempts to exercise any power, it must in some way define by military power what the rights of the people shall be, and then proceed to protect the people in those rights so defined by i. military thus surrendering all power, executive, legislative, and judicial, to the military. The Gentfrom Ohio [Mr. SHELLABAR GER) tells us this is to be followed by some legislation defining the rights of these people. In all candor and in all fairness, Mr. Speaker, we are commsencing at the wrong end of the difficulty if Congress must legislate on the subject at all. The 1st great duty, it seems to me, is to either define, or cause or allow to be defined, the civil rights of the people interested in this measure by proper and competent legislative authority. Then, if the civil power shall be unable to execute the laws for the protection of those rights, it will be time enough to invoke the aid of the military in the work of preserving law and order. This 3rd section which I am considering, in defining the duties of the officer to be placed in command of the military district, provided for in the 1st section, provides that among other things “he may.civil tribunals to take jurisdiction of and try offenders.” What civil tribunals? Does it mean the State courts? If so, then it must mean that the military commander shall recognize the validity of the laws of these States or not, in his discretion. Was ever such a power conferred on a military officer in any country claiming to be free? Sir, it devolves upon this officer the decision of a question which Congress seems not to have had the courage sofar to decide. Congress has heretofore in this contest about reconstruction claimed that the decision of everything pertaining to the lately rebellious States belongs to it; yet in this section one of the great and controlling questions pertaining to these States is referred to the decision of a military officer to be designated by the General of the Army. This surely must have been an oversight on the part of those who reported this bill. furIttheirs adlesofinipnrgovitdheed diuntietshisotfhitrhde seocfftiicoenr, iinn command of a iii. that — When in his:it may be necessaryfor the trial of offenders, he shall have power to organize ilitary commissionsor tribunals for that purpose. Now, Mr. Speaker, I did hope, in view of the late decision of the SCOTUS in the case of exparte Milligan and others, and in view of the plain reading of the Constitution, this matter of military commissions had been set at rest. In that case, as we all know, it was decided that military tribNuanvayls cannot try persons not in the Army or or the militia in actual service for civil offenses, and that it is not competent for congress to confer this power on such tribunals. Even the dissenting judges who delivered opinions in that case do not claim for Congress the power to confer on military tribunals such unlimited and undefined jurisdiction as the secItion in question contemplates. know it is claimed that this decision relates only to the people of what is known as the loyal States; but, sir, if it is worth anything it applies in times of peace at least to all the States and to the people of all the States. The Constitution of the U.S. applies to men in the lately rebellious States as well as in the loyal States.