Mr. SHANKLIN of Kentucky addressed the House for an hour. [His remarks will be published in the Appendix] Speech entitled Government of Insurrectionary States. February 8, 1867. The House having under consideration the bill (H.R.No. 1143)to provide for the more effectual government of the insurrectionary States Mr. SHANKLIN said: Mr. SpeakER: I do not know whether my present state of health will enable me to express my views fully to the House upon the measure now before it for consideration. I will endeavor, however, as briefly and succinctly as I can to present some of the views and opinions which fentertain in relation to this subject. Several gentlemen who have preceded me in this discussion have most earnestly stated that this is a measure of as much interest and of as much importance to the American people as any measure which has ever been presented to this Congress or to any deliberative body ever assembled in this country. Permit me to say, that in my opinion it is a measure which, if carried out to the full extent of the powers which are attempted to be conferred by it, is fraught with as much danger to free and republican institutions, to the liberties and rights of the citizens of the States over which it is in tended to operate, as any measure ever presented for the consideration of any deliberative body under a RFG. It is proposed by this bill to establish a military government over ten States of this Union, containing a population of perhaps 8 million or more citizens. It is proposed to strike down and set aside the State governments which have been established in those States for the protection of the citizen. If the power intended to be conferred by this bill upon this military government is carried out that will be its effect and legitimate consequence. What are the reasons presented and urged with so much earnestness and zeal for the passage of a measure of this character? The preamble, I presume, states the main reason and round upon which the friends of this measure intend to base it. The preamble of any act should contain statements true in point of fact when it pretends to give the reasons upon which the act is based. I wish to call the attention of the House to the statements contained in this preamble. Let us test those statements by the facts as exhibited in the history of those States and the governments in existence there, and let us see whether those statements are true or untrue. If they are true, perhaps they might furnish some apology for this measure, but certainly no sufficient justification. If they are untrue, then it has no foundation upon which to stand, and consequently should and must fall. The preamble contains this recital: Whereas the pretended State governments of the ICaateroslion ac, alled confederateStates of Virginia, North SCarolina, Georgia, Mississippi, Ala bama, Louisiana, Florida, Texas, and Arkansas were set up without the authority of Congressand without the sanction of the people. Here it is gravely asserted that the “pretended State governments” of those States recently in rebellion were set up without the authority and sanction of the people. Is this statement true? Were those governments set up without authority and without the consent of the people over whom those governments were intended to operate. 4 of the States in which this military government is intended to be established were States perfectly organized and in operation, with all the machinery of government, long before the Federal government was organized by our fathers: In 4 of those States—Virginia, NCarolina, SCarolina, and Georgia—those govern. ments were in successful operation, fully organized by the authority of the people of those States before the Federal Government was formed, and they aided and assisted in the formation of that Government. These governments were established by the people who inhabited those States, and no authority from Congress was necessary or could have been given. Have those governments, from the time of their organization down to the present time, been destroyed and set aside? }: they have, by whom has it been done? By what act of legal or constitutional authority have those State governments been destroyed and set aside? Gentlemen say that these State governments have been dee'stroyed and set aside by the rebellion. Did the Government of the U.S. wage a war against the confederacy for the purpose of overthrowing and destroying the State governments existing within the socalled confederacy? Was it the object of the Federal Government to overthrow and destroy those State governments? Were those State governments destroyed by the Federal Government? Was there any design upon the part of the Federal Government to Wo.verthrow and destroy those State Who has ever proclaimed it? hat measure has ever been taken to effect an object and purpose of that sort? But upon the contrary, it was declared upon every occasion and in every possible way by each and all of the coordinate branches of the Federal government, that its object and purpose was to defend and maintain both the State and federal Government unimpaired and unchanged, and maintain their connection and union under the Constitution. Did the citizens of those States, or anyone of those States, when they passed their ordinances of secession, when they attempted to destroy their connection with the Federal government, attempt to destroy those State governments? Was it their purpose or design to overthrow the State governments? No, sir; they did no act to interfere with or destroy those State governments, except to pass their ordinances of secession and accomplish what was constitutionally impossible—break their connection with the Federal Government and throw off their allegiance as citizens. Have they done any act that tends in any degree to destroy those State governments? They have not. During the whole period of this rebellion the State governments formed prior to the rebellion were maintained in all their parts, perfectly organized, with all their working machinery as State governments. All they did or attempted to do was to sever the connection of those States from the Federal Government and to connect themselves by league with the confederate government. These States, every one of them, at the time this rebellion was suppressed, at the time the rebels laid down their arms, were in complete operation, and not overthrown or destroyed in any sense of the word. And when the government of the U.S. took possession of those States they found them organized, with all the machinery of State governments in operation. There was some amendment made to conform them to the altered state of things brought about by the war, but there was no overthrow or destruction of those State governments. Even after the surrender of the rebel army and up to this time those State governments have never been disorganized or destroyed. Their functions may have been suspended, but they were never destroyed. The legislative branch of the Federal Government is some times suspended during the recess of Congress and does any gentleman contend the foderai Government is destroyed because the legislative branch of that Government was suspended for a period? The war did suspend the operations of the Federal Government in those States, but it did not overthrow and destroy those governments. Then with what truth can it be alleged that.were pretended “governments set up without the sanction of the people?” And the same preamble further states: Said pretended governments afford no adequate protection for life or encourage property, but countenanceand lawlessnessand crime. Is that true in point of fact? Do those State governments encourage lawlessness and crime? Where is the proof of that important fact? I do not believe there is any proof that either one of those States has or does now encourage lawlessness and crime. Mr. Speaker, I call for the proof, if there is any, that these State governments attempted to be set aside by this bill have been encouraging lawlessness and crime? Has any State government ever been formed or any governments of any kind with sufficient wisdom and power to prevent the commission of crime or disturbances? No doubt there have been examples of disorder and crime in those States now attempted to be overthrown. What State in the Union has been able to prevent the commission of crime by its own citizens and others within its borders? Go to NewEngland, where they claim to be the most holy of the holy, and you will find crimes commit. ted day after day; and if any individual would take the pains to keep an account of the com: mission of crimes in those States, as is done in the States lately in rebellion, perhaps it might be found to be nearly or quite equal to the crimes and violations of law committed in those States whose governments you attempt to set aside. Crimes have been committed there, but we have no committee treasuring up every instance of crime. Mr. Speaker, it is not to be expected a people engaged for 4 years in a most terrible and disastrous war should at the termination of that war return at once to the pursuits of peaceful life. That.". have no doubt by the effects of this war been to some extent demoralized, or a portion of their people have become demoralized by the effects of the war. The camp followers of the armies that have been disbanded have been the fruitful sources of crime in those States. The men who followed the Army for the purposes of plunder and robbery still linger within the borders of those States, and they are the principal perpetrators of crime in those States. Mr. Speaker, we are told that those States are encouraging lawlessness and crime. Where is the proof? Where is the evidence? The Gentfrom Maine [Mr. PIKE] confined his whole argument to a detail of crimes which have been committed within the borders of the States recently in the rebellion. What does it prove? It proves merely there were individ uals there, as in every community, who have committed crimes. Is there any evidence that those Governments encouraged them 7. If there is no proof, the allegation in the preamble must fall, and we are left to conjecture the reason and purposes of its insertion. Mr. Speaker, there is one great fundamental principle which is the corner stone of republican government, and which seems to have been overlooked or forgotten in this bill, as well as in many other bills of like kind, and that is that the sovereign power is inherent in the people. It must emanate from them and from no other source. In this our republican Government differs from the Governments of monarchical Europe. There the doctrine is that the sovereign power is in the King. He holds that power except so far as he surrenders it to some other branch of the Government. Now, sir, what is this sovereign power inherent in the people? It is to form a government for themselves. Does this bill recognize that great fundamental principle? Is any gentleman who is sustaining this measure here a citizen of either one of these States in which it is proposed to W. establish military government? right, then, I ask, has a citizen of one State to set up a government for another State? What power or authority has the General government to form a State government? The General Government has the right, and it is its duty, to guaranty to every State a RFG; but that grant in the Constitution does not confer upon congress the right to form a republican government for a State. The people of a State alone have the right to form their State government, and it is for Congress to determine after that government is formed whether it is republican in form or not. That is the extent of the power of the General Government. If the people form a government which the Congress shall deter mine is not republican in form, what would be the effect of it? The government so formed would be a nullity, and the whole subject would be referred back to the people, who would be required to form another, and so on from time to time until they formed a government which was republican in form. When they have done that, then, according to the principles of the Constitution, they would be entitled to a connection with the Government of the U.S. if within the limits of her jurisdiction and possessed of sufficient population. But I will hasten on to consider some of the provisions of this bill. It contains very extraor inary provisions, conferring extraordinary powers upon the military governments to be established over these ten States. They are to be divided into 5 districts, each one of which is to have a military commander over it not below the grade of brigadier general. It provides — That said socalled States shall be divided into military districts and inade subject to the military authority of the U.S. as hereinafter provided. Military chieftains or perhaps despots are to be placed in each one of the districts. The 3rd section defines what the powers of these military governors shall be, and while it does not in direct terms attempt to set aside the State governments, yet, if it is carried out, if all the powers attempted to be conferred upon the military governments are carried into full effect, the result will be to utterly destroy and abolish these State governments which are now existing for the protection of the people of those States, and put them absolutely and unconditionally under the control of military despots, despots not responsible to the people of those States. If there is go any responsibility anywhere it is to the Congress of the U.S., which claims to exercise all the sove reign power of these governments without regard to the other coordinate branches. The 3rd section provides “that it shall be the duty of each officer assigned as aforesaid to all persons in their rights of person and property.” It covers the whole ground of protection of person and property. How are you going to protect these citizens by military authority ini. right of property? You must have a remedy to enforce that right, and that must be determined by the military commander of the district. There is no code of laws writ ten or tinwritten belonging to a military government. The discretion, the will, the caprice, or the passion of the military commander con. stitutes the code of laws by which he governs the community. But this bill goes further. It not only gives the absolute and unconditional control over the rights of property and person, but it declares — 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, and to punish, or cause to be punished. all disturbers of the public peaceand criminals, and to this endhe may allow civil tribunals to take jurisdiction 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 commis: Fions or tribunals for that purpose, anything in the constitutionand laws of the socalled States to the contrary notwithstanding. Sir, if you were to add “anything in the constitution and laws of the U.S and the decisions of the Supreme Court made under the Constitution to the contrary notwithstanding” it would be complete and perfect, and there would be no difficulty in understanding the objects and design of this measure. I would inquire what power any Government can exercise that is not conferred upon these military authorities? You give to them absolute, unrestricted control over the rights of person and of property. You strike down all civil governments. Ah! but there is a clause in this bill which says the military commander may, if he sees proper, confide to the civil courts the trial of offenses against the laws. By the permission of those military commanders the courts may try—not that they shall try; not that they shall have jurisdiction of cases of that government—but with the consent of the military commander alone they may try offenses against the laws. Where, I ask you, is the power left to these State governments to protect either the life, liberty, or property of the citizen? They are made perfectly subservient to this military authority; and any upstart with brass buttons and shoulder straps, with or without brains or heart may control the courts of law; and the doctrines and maxims of our government are subverted. I have always been taught that the military is subordinate to the civil authority; but by the provisions of this bill the civil power is made subordinate to the military power, and that, too, in a time of profound and perfect peace. When there is no rebellion, no war, and no prospect of war the military is made the supreme government in these ten States when this bill shall be carried into effect. At the end of the 3rd section of this bill you will find the following: And all legislative or judicial proceedings or processes to prevent or control the proceedings of said military tribunals, and all interference by said pretended State governmentswith the exerciseof mili.authority under this act, shall be void and of no For fear there might be some misunderstanding of the powers intended to be conferred upon these military authorities it is declared that all interference by the legislative, executive, or judicial authorities in those States shall be null and void. I would like to know if it is the purpose of those who drafted this bill and of the committee who reported it to strike down the Federal courts as well as the State courts there? No exemption is made for the Federal courts. All courts within the borders of those States, according to the liberal meaning of this act, are denied the right to try anybody unless by the permission of the military commanders; and the very next section of the bill shows that it was the intention not only to destroy and annihilate the State courts, but to overthrow and overturn the Federal courts which are now in existence in those States. The 4th section provides — That courts and judicial officers of the U.S shall not issue writs of habeascorpus in be half of persons in military custody, unless, some commissionedofficer on duty in the district wherein the person is detained shall indorse upon said petition a statementcertifying, upon honor, that he has knowledge or information as to the cause and circumstances of the alleged detention, and that he believes the same to be wrongful; and further, that he believes that the indorsed petition is preferred in good faith, and in furtherance of justice, and not to inder or delay the punishment of crime. A lieutenant, perhaps, is by this bill set up over a Federal judge, who cannot exercise that highest right and power of the judiciary which was intended for the protection of the citizen, unless he 1st obtains the permission of the lieutenant or any other military officer who may be in command there. The action of the Federal judge is made subservient to the will and pleasure of these subordinate military officers. The Constitution of the U.S. provides that the privilege of the writ of habeascorpus shall not be suspended unless in case of invasion, or insurrection, when the public safety may require it. Yet here there is an effort by this bill to suspend the privilege of the writ of habeascorpus when there is no danger, when there is no insurrection, no in vasion, when the public safety does not require it; directly overriding that great principle which our fathers ingrafted in the Constitution for the purpose of protecting the citizen against wrong and oppression. Now, I will ask gentlemen, as they have been repeatedly asked before, where do you get the power and the authority to pass a measure of this character?. Do you find it in the Consti.tution of the U.S.? That question has been repeated again and again, and there has yet been no response to it. You not only have no authority within the clauses of the constitution, but you have no shadow of authority there. And this military power and authority which you are now seeking to establish in each of these ten States is attempted to be organized in violation of every principle and feature of the Constitution intended for the protection of the citizen. I. will read some of those provisions. The 1st to which I will call attention is the following, in section 2 and article 3 of the Constitution: “The trial of all crimes, except in cases of impeach ment, shall be by jury; and such trial shall be held in the State where the said crimes shall have been committed; but when not committed within any State the trial shall be at such place or places as the Congressmay by law have directed.” Here is a provision of your fundamental law which declares that all trials shall be by jury, Have you provided in this bill for a trial by jury? You have not. You have denied the trial by jury, coming directly in conflict with that great principle of your Constitution which was intended for the protection of the citizen against oppression..In the 5th amendment of the Constitutio n it is provided that — “No person shall be held to answerfor a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service, in time of war orodanger; nor shall any person be subject for the same offenseto be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witnessagainst himself; nor be deprived of life, liberty, or property without due process of law.” Have you provided in this bill for the trial of offenders by or under the presentment or indictment of a grand jury? You provide for the organization; if the commander may think proper, of a military commission for the trial of offenders, not under indictment, but under some sort of proceeding, I suppose, that may be prescribed by the commanding general of the district. You utterly deny the protection which the Constitution here attempts to throw around the citizen. You violate it in spirit and in letter. You violate that instrument from which alone you derive your power to legislate at all; you violate one of the most sacred and fundamental principles of that constitution which is intended for the protection of the citizen when accused of crime—a trial by jury. It is further provided in the 6th amendment of the Constitution that — “In all criminal prosecutionsthe accusedshall enjoy theright to a speedy and public trial by an impartial jury of the State and district, wherein the crime shall have been committed, which, district shall have been previously ascertained by law, and to be informed of the nature and cause ofsation; the accu to be him; confronted with the witnesses against to have compulsory processfor obtaining witnessesin his favor; and to have the assistance of counsel for his defense.” Have you in this bill any provision for a trial of this kind? You are proposing not only to try men who may be in the Army and in the military service of the country, but you are proposing to try civilians; and yet you propose to try them, convict them, and punish them without an opportunity of being heard by themselves or counsel, if the military commander should think proper to deny such a hearing. The party who may be accused of crime will not under this bill. be guarantied the right “to be informed of the nature and cause of the acousation.” There is no provision for providing him “with compulsory process for obtaining witnesses in his favor.” What manifest injustice A man may be tried bFy a d.rum head court martial, no man being to appear in his defense—nay, he imself not being permitted to appear before that august court, a military commission, and defend himself, but convened for his murder. while he inclines upon a bed of straw in his prison. There is to be no appeal from the decision of this court. There is to be no trial by jury. There is to be no relief by the writ of Rabeascorpus. The accused stands helpless and pow erless before that august body, a military commission. This is in direct violation of one of the recent decisions of the SCOTUS; and I will ask the Clerk to read a short extract from the opinion of that court in the case of exparte Milligan and others. No graver question was ever considered by this nor one which more nearly concernsthe rights of the whole people; for it is the birthright of every American citizen, when charged with crime, to be tried and punished according to law. The power of punishment is alone through the meanswhich the ws have provided for that purpose; and if they are ineffectual there is an immunity from punishment, no matter how great an offender the individual may be or how much his crimes may have shocked the senseof justice of the country or derangedits safety. By the protection of the law human rights are secured; withdraw that protection, and they are at mercy of wicked rulers or the clamor of an excittheed people. “Time has proved the discernment of ourancestors, for even theseprovisions, (referring to the provisions of the Constitution designed to protect the personal liberties of the people,) expressed in such plain English words that it would seem theingenuity of man could not evadothem, arenow, after the lao;e of more than 70 years, sought to beavoided. Those great and good men foresaw that troublous times would arise when rulers and people would become restive under restraint, and seek by sharp and decisivo meas: ures to accomplishendsdoemedjust and proper; and that the principles of constitutional liberty would be n peril unless established by irrepealable law. The history of the world had taught them that what was done in the past might be attempted in the future. The Constitution of the U.S. is a law for rulers and people equally in war and in Fo and covers with the shield of its protection all classesof Pnen at all times and under all circumstances. No doctrine involving morepernicious consequenceswas ever invented by the with of man than that any of provisions can be suspended during any its of the great exige'scies of Government. such a doctrine leads directly to anarchy or despotism: but the theory of necessityon which it is based is false, for the Government within the Constitution has all the powers ranted to it which are necessary to preserveits exstence, as has beenoproved by the result of the great effort to throw off its just authority.” Sir, that court decides that not even in time of war can you try a citizen by a military commission; that the Constitution is as valid and effective and binding in time of war as in time of peace. It was intended to shield and protect the right of the citizen, and you cannot depart from it. That court decided there is ample power within the limits of the Constitution for the Government of the U.S. to protect itself from assaults from within and with out, but that it must confine itself to }. the limits by the Constitution. That court have decided that these military commissions have no judicial power under our Government either in time of peace or in time of war unless So far as the persons in the Army are concerned, yet this bill, in the face of that authority, the supreme law of the land, attempts to create a military court with powers superior to the SCOTUS, supe. rior to the executive dept, superior to everything except this Congress. Now, Mr. Speaker, I have presented the power which is attempted to be conferred upon this court and this Government, and I have alluded to the constitutional provision which prohibits the exercise of this power by that tribunal. I wish the members of this House had lived for a few months under a military government as I have lived for 2 or 3 years. If you can find a human being of ordinary sensibilities, who has lived under a military government and prefers it, I would like to see him. I lived under a military government, a military despotism, for 2 years. saw the best citizens in the Commonwealth in which I live dragged from their homes and families, without charges of legal offense, and confined in loathsome military dungeons and prisons, without access to them by their friends, a few favorite counselors and lawyers, who hung around the military headquarters, being the only ones who were allowed to approach the unhappy victim. If any of the men who were arrested could raise a few 100 or a few 1,000 dollars and slip it into the hands of those vampires calling themselves lawyers, he was immediately released without charge of crime or trial; but if he refused to contribute to the amount of his ability, then he was left to drag out a miserable existence in the military prison. The commander of the dept of Kentucky in 1864 had his headquarters in the district I have the honor to represent, and I am credibly informed he issued an order to the provost marshals just before the November election to arrest ten or 12 of the wealth iest and most influential citizens in their several counties and to send them to his headquarters. The provost marshals made arrests accordingly, and they sent the wealthy and influential citizens to the headquarters of the dept commander, and they were confined in the military prison. Why the arrest of wealthy and influential citizens? If they did not have the money themselves to take , Out of prison their friends would supply it. I have been told on fo authority that some men were compelled to pay as high as $5,000 to be released. This same military chieftain established trade regulations and appointed a board of trade composed of traders, who of course would not suffer any man to have a permit to come into competition with them. These men realized by extortions 1000s and 1000s of dollars, and while they exult in the abundance of their wealth they live under the condemnation and curses of all just men. These are some outlines of the characteristics of military governments. We may have a better set of military men now. I hope to God it is so. No man who ever lived under a military government wants to see it restored; and I am satisfied if this House could have lived for a few months under military government, and seen the operations of that sort of despot ism, this bill would not be passed. But it is said this is intended for the rebels, against whom the hatred of the socalled loyal men seems to grow greater every day, and which may grow until the last vestige of liberty shall be overthrown. Do you suppose, Mr. Speaker, you can enslave 8 million people in this Government and maintain the liberties of the balance? If you enslave any bortion of our people you will endanger the iberties of all, and the free institutions erected by our fathers for their descendants, and the oppressed of all nations. Let us pause in our mad career, and bind up the bleeding wounds that have been inflicted by this most unnatural and unnecessary civilWar. Let us forgive as we would ask to be forgiven, and that brave and noble people that now lie pleading at our feet will rise up to shed re nown upon this mighty nation in the future as they fo. done in the past. How transient, how uncertain are all human events! You may be in the plenitude of power today and you may be ousted tomorrow. And I hope to God if you do not cease these outrages upon the people of the country, such as you propose here, such as are attempting to be inflicted by your Freedmen's Bureau and your civil rights bills, that the time will not belong before that army which the Gentfrom . [Mr. INsersoll] seemed to think could not be raised, an army armed with ballots and not with bayonets, will march to the polls and hurl the advocates of this and its kindred measures out of their places and fill them with men who appreciate more highly and justly the rights of citizens and of free men, with statesmen whose minds can grasp our whole country and its rights and its wants, and whose hearts are in sympathy with the noble, the brave, and the just, whether they live in the sunny South or the ice bound regions of the North. Government of Insurrectionary States.