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,