as pretended. Actual war, foreign invasion, domestic
insurrection--none of these appear; and none of these, in fact, exist.
It is not even recited that any sort of war or insurrection is
threatened. Let us pause here to consider, upon this question of
constitutional law and the power of Congress, a recent decision of
the Supreme Court of the United States in _ex parte_ Milligan.

I will first quote from the opinion of the majority of the court:

Martial law can not arise from a threatened invasion. The necessity
must be actual and present, the invasion real, such as effectually
closes the courts and deposes the civil administration.

We see that martial law comes in only when actual war closes the courts
and deposes the civil authority; but this bill, in time of peace, makes
martial law operate as though we were in actual war, and becomes the
_cause_ instead of the _consequence_ of the abrogation of civil
authority. One more quotation:

It follows from what has been said on this subject that there are
occasions when martial law can be properly applied. If in foreign
invasion or civil war the courts are actually closed, and it is
impossible to administer criminal justice according to law, _then_, on
the theater of active military operations, where war really prevails,
there is a necessity to furnish a substitute for the civil authority
thus overthrown, to preserve the safety of the army and society; and as
no power is left but the military, it is allowed to govern by martial
rule until the laws can have their free course.

I now quote from the opinion of the minority of the court, delivered by
Chief Justice Chase:

We by no means assert that Congress can establish and apply the laws of
war where no war has been declared or exists. Where peace exists, the
laws of peace must prevail.

This is sufficiently explicit. Peace exists in all the territory to
which this bill applies. It asserts a power in Congress, in time of
peace, to set aside the laws of peace and to substitute the laws of war.
The minority, concurring with the majority, declares that Congress does
not possess that power. Again, and, if possible, more emphatically, the
Chief Justice, with remarkable clearness and condensation, sums up the
whole matter as follows:

There are under the Constitution three kinds of military
jurisdiction--one to be exercised both in peace and war; another to be
exercised in time of