The conduct of at least one of our military magistrates seems to have been a counterpart to that of these “bashaws” of Cromwell; and there is no argument against that early military despotism which may not be urged against any attempt to revive it in our day.  Some of the acts of Governor Stanley in North Carolina are in themselves an argument against the whole system.

It is clear that these military magistrates are without any direct sanction in the Constitution or in existing laws.  They are not even “major-generals,” or other military officers, charged with the duty of enforcing martial law; but they are special creations of the Secretary of War, acting under the President, and charged with universal powers.  As governors within the limits of a State, they obviously assume the extinction of the old State governments for which they are substituted; and the President, in appointing them, assumes a power over these States kindred to his acknowledged power over Territories of the Union; but, in appointing governors for Territories, he acts in pursuance of the Constitution and laws, by and with the advice and consent of the Senate.

That the President should assume the vacation of the State governments is of itself no argument against the creation of military governors; for it is simply the assumption of an unquestionable fact.  But if it be true that the State governments have ceased to exist, then the way is prepared for the establishment of provisional governments by Congress.  In short, if a new government is to be supplied, it should be supplied by Congress rather than by the President, and it should be according to established law rather than according to the mere will of any functionary, to the end that ours may be a government of laws and not of men.

There is no argument for military governors which is not equally strong for Congressional governments, while the latter have in their favor two controlling considerations:  first, that they proceed from the civil rather than the military power; and, secondly, that they are created by law.  Therefore, in considering whether Congressional governments should be constituted, I begin the discussion by assuming everything in their favor which is already accorded to the other system.  I should not do this, if the system of military dictators were not now recognized, so that the question is sharply presented, which of the two to choose.  Even if provisional governments by Congress are not constitutional, it does not follow that military governments, without the sanction of Congress, can be constitutional.  But, on the other hand, I cannot doubt, that, if military governments are constitutional, then, surely, the provisional governments by Congress must be so also.  In truth, there can be no opening for military governments which is not also an opening for Congressional governments, with this great advantage for the latter, that they are in harmony with our institutions, which favor the civil rather than the military power.