Entered according to Act of Congress, in the year 1863, by TICKNOR AND FIELDS, in the Clerk's Office of the District Court of the District of Massachusetts. OUR DOMESTIC RELATIONS: Or, Houw to Treat the Rebel States. B3Y HION. CIEALMRLES SiJMNREIIE. AT this moment our Domestic Rela- tion with which I began is opened here, tions all hinge upon one question: How Therefore to this aspect of it I ask your to treat the Rebel States? No patriot first attention. citizen doubts the triumph of our arms in the suppression of the Rebellion. EarCONGRESSIONAL GOvERNMENT VS. ly or late, this triumph is inevitable. MILITAIl~ GOVERNMENT. It may be by a sudden collapse of the bloody imposture, or it may be by a FouR military governors have been alslower and more gradual surrender. For ready appointed: one for Tennessee, one ourselves, we are prepared for either al- for South Carolina, one for North Caroternative, and shall not be disappointed, lina, and the other for Louisiana. So far if we are constrained to wait yet a little as is known, the appointment of each longer. But when the day of triumph was by a simple letter fiom the Secretary comes, political duties will take the place of War. But if this can be done in four of military. The victory won by our sol- States, where is the limit? It may be diers must be assured by wise counsels, so done in every Rebel State, and if not in that its hard- earned fruits may not be every other State of the Union, it will be lost. simply because the existence of a valid The relations of the States to the Na- State government excludes the exercise tional Government must be carefully con- of this extraordinary power. But assumsidered, - not too boldly, not too timidly, ing, that, as our arms prevail, it will be - in order to see in what way, or by what done in every Rebel State, we shall then process, the transition from Rebel forms have eleven military governors, all demay be most surely accomplished. If I riving their authority from one source, do not greatly err, it will be found that ruling a population amounting to upwards the powers of Congress, which have thus of nine millions. And this imperatorial far been so effective in raising armies and dominion, indefinite in extent, will also in supplying moneys, will be important, be indefinite in duration; for if, under if not essential, in fixing the conditions the Constitution and laws, it be propof perpetual peace. But there is one er to constitute such governors, it is point on which there can be no question. clear that they may be continued withThe dogma and delusion of State Rights, out regard to time, - for years, if you which did so much for the Rebellion, must please, as well as for weeks, - and the not be allowed to neutralize all that our whole region which they are called to arms have gained. sway will be a military empire, with all Already, in a remarkable instance, the powers, executive, legislative, and even President has treated the pretension of judicial, derived from one man in WashState Rights with proper indifference. ington. Talk of the " one-man power." Quietly and without much discussion, he Here it is with a vengeance. Talk of has constituted military governments in military rule. Here it is, in the name the Rebel States, with governors nomi- of a republic. nated by himself, - all of which testifies The bare statement of this case may put against the old pretension. Strange will us on our guard. We may well hesitate it be, if this extraordinary power, amply to organize a single State under a military conceded to the President, is denied to government, when we see where such a Congress. Practically the whole ques- step will lead. If you approve one, you 508 Our Domestic Relations. [October, must approve all, and the National Gov- ter the execution of the King and the ernment may crystallize into a military establishment of the Commonwealth, the despotism. Protector conceived the idea of parcelling In appointing military governors of the kingdom into military districts, of States, we follow an approved example which there were eleven, —being prein certain cases beyond the jurisdiction cisely the number which it is now proof our Constitution, as in California and posed, under the favor of success, to esMexico after their conquest and before tablish among us. Of this system a great peace. It is evident that in these cases authority, Mr. Hallam, in his " Constithere was no constraint from the Consti- tutional History of England," speaks tution, and we were perfectly free to act thus: - according to the assumed exigency. It "To govern according to law may may be proper to set up military govern- sometimes be an usurper's wish, but can ors for a conquered country beyond our seldom be in his power. The Protector civil jurisdiction, and yet it maybe ques- abandoned all thought of it. Dividing tionable if we should undertake to set the kingdom into districts, he placed at up such governors in States which we the head of each a major-general, as a all claim to be within our civil jurisdic- sort of military magistrate, responsible for tion. At all events, the two cases are the subjection of his prefecture. These different, so that it is not easy to argue were eleven in number, men bitterly hosfriom one to the other. tile to the Royalist party, and insolent toIn Jefferson's Inaugural Address, where wards all civil authority." * he develops what he calls " the essen- Carlyle, in his " Life of Cromwell," tial principles of our government, and gives the following glimpse of this miliconsequently those which ought to shape tary government: - its administration," he mentions "' the su- "The beginning of a universal scheme premacy of the civil over the military au- of major-generals: the Lord-Protector thority " as one of these " essential prin- and his Council of State having well conciples," and then says: — sidered and found it the feasiblest, -' if 1" These should be the creed of our po- not good, yet best.'' It is an arbitrary litical faith, - the text of civil instruction, government,' murmur many. Yes, ar- the touchstone by which to try the ser- bitrary, but beneficial. These are powers vices of those we trust; and should we unknocwn to the English Constitution, 1 wander from them in moments of error or believe; but they are very necessary for alarm, let us hasten to retrace our steps, the Puritan English nation at this time." t and to regain the road which alone leads Perhaps no better words could be to peace, liberty, and safety." found in explanation of the Cromwcellian In undertaking to create military gov- policy adopted by our President. ernors of States, we reverse the policy of A contemporary Royalist, Colonel Ludthe republic, as solemnly declared by low, whose " Memoirs" add to our auJefferson, and subject the civil to the thentic history of those interesting times, military authority. If this has been done, characterizes these military magistrates;n patriotic ardor, without due considera- as so many' bashaws." Here are some tion, in a moment of error or alarm, it of his words: - only remains, that, according to Jeffer- "The major-generals carried things son, we should "hasten to retrace our with unheard-of insolence in their sevstel:, and to regain the road which alone eral precincts, decimating to extremity leads to peace, liberty, and safety." whom they pleased, and interrupting There is nothing new under the sun, ~There is nothing new under the sun, Constitutional History of England, Vol. II. and the military governors whom we are p. 340. beginning to appoint find a prototype in t Carlyle's Life of Cromwell, Part IX. Vol. the Protectorate of Oliver Cromwell. Af- II. p. 168. 1863.] Our Domestic Relations. 509 the proceedings at law upon petitions ernors within the limits of a State, they of those who pretended themselves ag- obviously assume the extinction of the grieved, threatening such as would not old State governments for which they yield a manly submission to their orders are substituted; and the President, in with transportation to Jamaica or some appointing them, assumes a power over other plantation in the West Indies." * these States kindred to his acknowledged Again, says the same contemporary power over Territories of the Union; but, writer:- in appointing governors for Territories, he "There were sometimes bitter reflec- acts in pursuance of the Constitution and tions cast upon the proceedings of the laws, by and with the advice and consent major-generals by the lawyers and coun- of the Senate. try-gentlemen, who accused them to have That the President should assume the done many things oppressive to the peo- vacation of the State governments is of pie, in interrupting the course of the law, itself no argument against the creation and threatening such as would not sub- of military governors; for it is simply mit to their arbitrary orders with trans- the assumption of an unquestionable fact. portation beyond the seas." t But if it be true that the State governAt last, even Cromwell, at the height ments have ceased to exist, then the way of his power, found it necessary to aban- is prepared for the establishment of prodon the policy of military governors. He visional governments by Congress. In authorized his son-in-law, Mr. Claypole, short, if a new government is to be supto announce in Parliament, " that he plied, it should be supplied by Congress had formerly thought it necessary, in re- rather than by the President, and it spect to the condition in which the na- should be according to established law tion had been, that the major-generals rather than according to the mere will should be intrusted with the authority of any functionary, to the end that ours which they had exercised; but in the may be a government of laws and not present state of affairs he conceived it of men. inconsistent with the laws of England There is no argument for military govand liberties of the people to continue ernors which is not equally strong for their power any longer.": Congressional governments, while the latThe conduct of at least one of our mil- ter have in their favor two controlling itary magistrates seems to have been a considerations: first, that they proceed counterpart to that of these "bashaws" from the civil rather than the military of Cromwell; and there is no argu- power; and, secondly, that they are crement against that early military despot- ated by law. Therefore, in considerism which may not be urged against any ing whether Congressional governments attempt to revive it in our day. Some should be constituted, I begin the disof the acts of Governor Stanley in North cussion by assuming everything in their Carolina are in themselves an argument favor which is already accorded to the against the whole system. other system. I should not do this, if It is clear that these military magls- the system of military dictators were not trates are without any direct sanction now recognized, so that the question is in the Constitution or in existing laws. sharply presented, which of the two to They are not even " major-generals," or choose. Even if provisional governments other military officers, charged with the by Congress are not constitutional, it duty of enforcing martial law; but they does not follow that military governare special creations of the Secretary of ments, without the sanction of Congress, War, acting under the President, and can be constitutional. But, on the othcharged with universal powers. As gov- er hand, I cannot doubt, that, if milita* Luc'.ow's Memoirs, p. 559. ry governments are constitutional, then, t Ibid. p. 580. t Ibid. p. 582. surely, the provisional governments by 510 Our Domestic Relations. [October, Congress must be so also. In truth, to New York; nor does Congress think there can be no opening for military of establishing a provisional government governments which is not also an opening in that State. It is only with regard to for Congressional governments, with this the Rebel States that this question arises. great advantage for the latter, that they The occasion, then, for the exercise of are in harmony with our institutions, this extraordinary power is found in the which favor the civil rather than the Rebellion. Without the Rebellion, there military power. would be no talk of any governor, whethIn thus declaring an unhesitating pref- er military or Congressional. crence for Congressional governments, I am obviously sustained by reason. But there is positive authority on this iden-TATE RIGHTS. tical question. I refer to the recorded AND here it becomes important to conopinion of Chancellor Kent, as follows:- sider the operation of the Rebellion in "Though the Constitution vests the opening the way to this question. To executive power in the President, and this end we must understand the reladeclares him Commander-in-Chief of the tions between the States and the Naarmy and navy of the United States, tional Government, under the Constituthese powers must necessarily be subordi- tion of the United States. As I approach nate to the legislative power in Congress. this question of singular delicacy, let me It would appear to me to be the policy say on the threshold, that for all those or true construction of this simple and rights of the States which are consistent general grant of power to the President, with the peace, security, and permanence not to suffer it to interfere with those of the Union, according to the objects specific powers of Congress which are grandly announced in the Preamble of more safely deposited in the legislative the Constitution, I am the strenuous addepartment, and that the powers thus as- vocate, at all times and places. Never sumed by the President do not belong to through any word or act of mine shall him, but to Congress." * those rights be impaired; nor shall any Such is the weighty testimony of this of those other rights be called in question illustrious master with regard to the as- by which the States are held in harmosumption of power by the President, in nious relations as well with each other as 1847, over the Mexican ports in our pos- with the Union. But while thus strenusession. It will be found in the latest edi- ous for all that justly belongs to the States, tion of his "'Commentaries " published I cannot concede to them immunities induring the author's life. Of course, it is consistent with that Constitution which is equally applicable to the recent assump- the supreme law of the land; nor can I tions within our own territory. His judg- admit the impeccability of States. ment is clear in favor of Congressional From a period even anterior to the Fedgovernments. eral Constitution there has been a perOf course, in ordinary times, and un- verse pretension of State Rights, which der ordinary circumstances, neither sys- has perpetually interfered with the unitem of government would be valid. A ty of our government. Throughout the State, in the full enjoyment of its rights, Revolution this pretension was a check would spurn a military governor or a upon the powers of Congress, whether Congressional governor. It would insist in respect to its armies or its finances; that its governor should be neither mili- so that it was too often constrained to tary nor Congressional, but such as its own content itself with the language of adpeople chose to elect; and nobody would vice or persuasion rather than of comquestion this right. The President does mand. By the Declaration of Independnot think of sending a military governor ence it was solemnly declared that " these * Rent's Commentaries, Vol. I. p. 292, note b. United Colonies are, and of right ought 0 0c 1863.] Our Domestic Relations. 511 to be, free and independent States, and soon became apparent. As early as Dethat, as such, they have full powers to levy cember, 1782, a committee of Congress war, to contract alliances, to establish made an elaborate report on the refusal commerce, and to do all other acts which of Rhode Island, one of the States, to independent States may of right do." confer certain powers on Congress with Thus by this original charter the early regard to revenue and commerce. In colonies were changed into independent April, 1783, an address of Congress to States, under whose protection the liber- the States was put forth, appealing to their ties of the country were placed. justice and plighted faith, and representEarly steps were taken to supply the ing the consequence of a failure on their deficiencies of this government, which part to sustain the Government and prowas effective only through the generous vide for its wants. In April, 1784, a simpatriotism of the people. In July, 1778, ilar appeal was made to what were called two years after the Declaration, Articles " the several States," whose legislatures of Confederation were framed, but they were recommended to vest'" the United were not completely ratified by all the States in Congress assembled" with cerStates till March, 1781. The character tain powers. In July, 1785, a committee of this new government, which assumed of Congress made another elaborate rethe- style of " The United States of Amer- port on the reason Why the States should ica," will appear in the title of these Ar- confer upon Congress powers therein ticles, which was as follows: —" Articles enumerated, in the course of which it of Confederation and Perpetual Union was urged, that, " unless the States act between the States of New Hampshire, together, there is no plan of policy into Massachusetts Bay, Rhode Island and which they can separately enter, which Providence Plantations, Connecticut, they will not be separately interested to New York, New Jersey, Pennsylvania, defeat, and, of course, all their measures Delaware, Maryland, Virginia, North must prove vain and abortive." In FebCarolina, South Carolina, and Georgia." ruary and March, 1786, there were two By the second article it was declared, other reports of committees of Congress, that " each State retains its sovereignty, exhibiting the failure of the States to comfreedom, and independence, and every ply with the requisitions of Congress, and power, jurisdiction, and right which is the necessity for a complete accession of not by this Confederation expressly dele- all the States to the revenue system. In gated to the United States in Congress October, 1786, there was still another reassembled." By the third article it was port, most earnestly renewing the former further declared, that " the said States appeals to the States. Nothing could be hereby severally enter into a Jirm league more urgent. of friendship with each other, for their As early as July, 1782, even before common defence, the security of their lib- the first report to Congress, resolutions erties, and their mutual and general wel- were adopted by the State of New York, fare." By another article, a "commit- declaring " that the situation of these tee of the States, or any nine of them," States is in a peculiar manner critical," was authorized in the recess to execute and " that the radical source of most of the powers of Congress. The govern- our embarrassments is the want of sufiment thus constituted was a compact be- cient power in Congress to effectuate that tween sovereign States,- or, according ready and perfect cooperation of the difto its precise language, "a firm league ferent States on which their immediate of friendship" between these States, ad- safety and future happiness depend." ministered, in the recess of Congress, by Finally, in September, 1786, at Annapa "committee of the States." Thus did olis, commissioners from several States, State Rights triumph. after declaring " the situation of the UnitBut its imbecility from this pretension ed States delicate and critical, calling for 512 Our Domestic Relations. [October an exertion of the united virtue and wis- UNION, -in which is involved our prosdom of all the members of the Confedera- perity, safety, perhaps our national excy," recommended the meeting of a Con- istence. vention "' to devise such further provision " GEORGE WASHINGTON." as shall appear necessary to render the Constitution of the Federal Government The Constitution was duly transmitted adequate to the exigencies of the Union." by Congress to the several legislatures, In pursuance of this recommendation, the by which it was submitted to conventions Congress of the Confederation proposed of delegates " chosen in each State by a Convention " for the purpose of revis- the people thereof," who ratified the in, the Articles of Confederation and same. Afterwards, Congress, by resoluPerpetual Union between the United tion, dated September 13, 1788, setting States of America, and reporting such forth that the Convention had reported alterations and amendments of the said "a Constitution for thie people of the Articles of Confederation as the repre- United States," which had been duly sentatives met in such Convention shall ratified, proceeded to authorize the nejudge proper and necessary to render cessary elections under the new governthem adequate to the preservation and ment. support of the Union." The Constitution, it will be seen, was In pursuance of the call, delegates to framed in order to remove the difficulties the proposed Convention were duly ap- arising from State Rights. So paramount pointed by the legislatures of the several was this purpose, that, according to the States, and the Convention assembled at letter of Washington, it was kept steadiPhiladelphia in May, 1787. The present ly in view in all the deliberations of the Constitution was the well-ripened fruit Convention, which did not hesitate to of their deliberations. In transmitting it declare the consolidation of our Union to Congress, General Washington, who as essential to our prosperity, safety, and was the President of the Convention, in a perhaps our national existence. letter bearing date September 17, 1787, The unity of the government was exmade use of this instructive language:- pressed in the term " Constitution," instead of "Articles of Confederation be" It is obviously impracticable in the tween the States," and in the idea of "' a Federal Government of these States to more perfect union," instead of a " league secure all rights of independent sover- of friendship." It was also announced eignty to each, and yet provide for the emphatically in the Preamble:interest and safety of all. Individuals " We, the people of the United States, entering into society must give up a share in order to form a more perfect union, of liberty to preserve the rest. The mag- establish justice, insure domestic trannitude of the sacrifice must depend as quillity, provide for the common defence, well on situation and circumstance as on promote the general welfare, and secure the object to be obtained. It is at all the blessings of liberty to ourselves and times difficult to draw with precision the our posterity, do ordain and establish line between those rights which must be this Constitution for the United States surrendered and those which may be re- of America." served; and on the present occasion this Not " we, the States," but " we, the difficulty will be increased by a difference people of the United States." Such is among the several States as to their situ- the beginning and origin of our Constiation, extent, habits, and particular in- tution. Here is no compact or league terests. In all our deliberations we kept between States, involving the recognisteadily in view that which appears to us tion of State rights; but a government the greatest interest of every true Amer- ordained and established by the people of ican, —THE CONSOLIDATION OF OUR the United States for themselves and their 1863.] Our Domestic Relations. 513 posterity. This government is not es- people,' instead of the States of Ameritablished by the States, nor is it establish- ca." * ed for the States; but it is established by In the same convention another patrithe people, for themselves and their pos- otic opponent of the Constitution, George terity. It is true, that, in the organiza- Mason, following Patrick Henry, said: — tion of the government, the existence of " Whether the Constitution is good or the States is recognized, and the origi- bad, the present clause clearly discovers nal name of "United States" is pre- that it is a National Government, and no served; but the sovereignty of the States longer a Confederation." t is absorbed in that more perfect union But against all this opposition, and in which was then established. There is the face of this exposure, the Constitubut one sovereignty recognized, and this tion was adopted, in the name cf the peois the sovereignty of the United States. ple of the United States. Much, indeed, To the several States is left that special was left to the States; but it was no local control which is essential to the longer in their name that the governconvenience and business of life, while ment was organized, while the miserable to the United States, as a Plural Unit, pretension of State "sovereignty" was is allotted that commanding sovereign- discarded. Even in the discussions of the ty which embraces and holds the whole Federal Convention Mr. Madison spoke country within its perpetual and irre- thus plainly: - versible jurisdiction. " Some contend that States are soyThis obvious character of the Consti- ereign, when, in fact, they are only potution did not pass unobserved at the litical societies. The States never postime of its adoption. Indeed, the Con- sessed the essential rights of sovereignstitution was most strenuously opposed ty. These were always vested in Conon the ground that the States were ab- gress." sorbed in the Nation. Patrick Henry Grave words, especially when we conprotested against consolidated power. In sider the position of their author. They the debates of the Virginia Convention were substantially echoed by Elbridge he exclaimed: - Gerry of Massachusetts, afterwards Vice"And here I would make this inquiry President, who said:of those worthy characters who compos- " It appears to me that the States neved a part of the late Federal Convention. er were independent. They had only I am sure they were fully impressed with corporate rights." the necessity of forming a great consoli- Better words still fell from Mr. Wilson dated government, instead of a confed- of Pennsylvania, known afterwards as a eration. That this is a consolidated gov- learned judge of the Supreme Court, and ernment is demonstrably clear; and the also for his Lectures on Law:danger of such a government is to my "Will a regard to State rights justify mind very striking. I have the highest the sacrifice of the rights of men? If veneration for those gentlemen; but, we proceed on any other foundation than Sir, give me leave to demand, What the last, our building will neither be solid right had they to say,' We, the people'? or lasting." Who authorized them to speak the lan- The argument was unanswerable then. guage of'We, the people,' instead of It is unanswerable now. Do not elevate' IVe, the States'?" * the sovereignty of the States against the And again, at another stage of the de- Constitution of the United States. It is bate, the same patriotic opponent of the hardly less odious than the early pretenConstitution declared succinctly: — sion of sovereign power against Magna "The question turns, Sir, on that poor Charta, according to the memorable words little thing, the expression,'We, the * Elliott's Debates, Vol. III. p. 44. * Elliott's Debates, Vol. III. p. 22. t Ibid. p. 29. VOL. XII. 34 514 Our Domestic Relations. [October, of Lord Coke, as recorded by Rush- curing for limited times to authors and worth: — inventors the exclusive right to their re"Sovereign power is no Parliamentary spective writings and discoveries; define word. In my opinion, it weakens Magna and punish piracies and felonies commitCharta and all our statutes; for they are ted on the high seas, and offences against absolute without any saving of sover- the law of nations; declare war; grant eign power. And shall we now add it, letters of marque and reprisal; make we shall weaken the foundation of law, rules concerning captures on land and and then the building must needs fall. water; raise and support armies; proTake we heed what we yield unto. Mag- vide and maintain a navy; make rules na Charta is such a fellow that he will for the government and regulation of have no sovereign." * the land and naval forces; provide for But the Constitution is our Magna calling forth the militia to execute the Charta, which can bear no sovereign but laws of the Union, suppress insurrecitself, as you will see at once, if you will tions, and repel invasions; provide for consider its character. And this prac- organizing, arming, and disciplining the tical truth was recognized at its forma- militia, and for governing such part of tion, as may be seen in the writings of our them as may be employed in the service Rushworth, - I refer to Nathan Dane, of the United States, reserving to the who was a member of Congress under States respectively the appointment of the Confederation. He tells us plain- officers and the authority of training the ly, that the terms " sovereign States," militia according to the discipline pre" State sovereignty," " State rights," scribed by Congress; and make all laws "rights of States," are not " constitu- necessary and proper for carrying into tional expressions." execution the foregoing powers and all other powers vested in the Government of the United States. POWERS OF CONGRESS. Such are the ample and diversified IN the exercise of its sovereignty Con- powers of Congress, embracing all those gress is intrusted with large and peculiar powers which enter into sovereignty. powers. Take notice of them, and you With the concession of these to the will see how little of " sovereignty " is left United States there seems to be little to the States. Their simple enumeration left for the several States. In the powis.an argument against the pretension of er to I" declare war" and to "' raise and State Rights. Congress may lay and col- support armies," Congress possesses an lect taxes, duties, imposts, and excises, exclusive power, in itself immense and to pay the debts and provide for the com- infinite, over persons and property in the mon defence and general welfare of the several States, while by the power to United States. It may borrow money on " regulate commerce " it may put limits the credit of the United States; regu- round about the business of the several late commerce with foreign nations, and States. And even in the case of the among the several States, and with the militia, which is the original military orIndian tribes; establish a uniform rule ganization of the people, nothing is left of naturalization, and uniform laws on to the States except "the appointment the subject of bankruptcy, throughout the of the officers," and the authority to train United States; coin money, regulate the it " according to the discipline prescribvalue thereof, and fix the standard of ed by Congress." It is thus that these weights and measures; establish post- great agencies are all intrusted to the offices and post-roads; promote the prog- United States, while tlhe several States ress of science and the useful arts by se- are subordinated to their exercise. * Rushworth's Historical Collections, Vol. I. Constantly, and in everything, we bep. 609. hold the constitutional subordination of 1863.] Our Domestic Relations. 515 the States. But there are other provis- zens of each State shall be entitled to ions by which the States are expressly all privileges and immunities of citizens deprived of important powers. For in- in the several States." As Congress has stance: "No State shall enter into any the exclusive power to establish "an unitreaty, alliance, or confederation; coin form rule of naturalization," it may, unmoney; emit bills of credit; make any- der these words of the Constitution, sething but gold and silver coin a tender cure for its newly entitled citizens "all in payment of debts." Or, if the Statgs privileges and immunities of citizens in may exercise certain powers, it is only ) the several States," in defiance of State with the consent of Congress. For in- Rights. 2. "New States may be adstance: " No State shall, without the con- mitted by the Congress into this Union." sent of Congress, lay any duty of ton- According to these words, the States nage, keep troops or ships of war in time cannot even determine their associates, of peace, enter into any agreement or but are dependent in this respect upon compact with another State or with a for- the will of Congress. 3. But not conei(gn power." Eere is a magistral power tent with taking from the States these accorded to Congress, utterly inconsist- important powers of sovereignty, it is solent with the pretensions of State Rights. emnly declared that the Constitution, and Then, again: "No State shall, without the laws of the United States made in the consent of the Congress, lay any im- pursuance thereof, and all treaties unposts or duties on imports or exports, ex- der the authority of the United States, cept what may be absolutely. necessary "SHALL BE THE SUPREME LAW OF for executing its inspection laws; and the THE LAND, anything in the Constitution net produce of all duties and imposts laid or laws of any State to the contrary notby any State on imports or exports shall withstanding." Thus are State Rights be for the use of the treasury of the Unit- again subordinated to the National Coned States; and all such laws shall be sub- stitution, which is erected into the parject to the revision and control of the Con- amount authority. 4. But this is done gress." Here, again, is a similar magis- again by another provision, which detral power accorded to Congress, and, as dares that " the members of the several if still further to deprive the States of State legislatures, and all executive and their much vaunted sovereignty, the laws judicial officers of the several States, shall which they make with the consent of Con- be bound by oath or affirmation to supgress are expressly declared to be subject port this Constitution"; so that not only "to the revision and control of the Con- State laws are subordinated to the Nagress." But there is another instance tional Constitution, but the makers of still. According to the Constitution, State laws, and all other State officers, " Full faith and credit shall be given in are constrained to declare their alleeach State to the public acts, records, giance to this Constitution, thus placing and judicial proceedings of every other the State, alike through its acts and its State": but here mark the controlling agents, in complete subordination to the power of Congress, which is authorized sovereignty of the United States. 5. But to " prescribe the manner in which such this sovereignty is further proclaimed in acts, records, and proceedings shall be the solemn injunction, that " the United proved, and the effect thereof." States shall guarantee to every State in this Union a republican form of government, and shall protect each of them SUPREMACY OF ThE NATIONAL against invasion." Here are duties of GOVERNMr.~T. guaranty and protection imposed upon BUT there are five other provisions of the United States, by which their posithe Constitution by which its supremacy tion is fixed as the supreme power. There is positively established. 1. "'The citi- can be no such guaranty without the 516 Our Domestic Relations. [October, implied right to examine and consider even at that early day, to commence an the governments of the several States; opposition to its ratification, in the name and there can be no such protection with- of State Rights. Shortly afterwards apout a similar right to examine and con- peared the famous resolutions of Virginia sider the condition of the several States: and those of Kentucky, usually known as thus subjecting them to the rightful super- the " Resolutions of'98," declaring that vision and superintendence of the Nation- the National Government was founded on al Government. a compact between the States, and claimThus, whether we regard the large* ing for the States the right to sit in judgpowers vested( in Congress, the powers ment on the National Government, and denied to the States absolutely, the pow- to interpose, if they thought fit; all this, ers denied to the States without the as you will see, in the name of State consent of Congress, or those other pro- Rights. This pretension on the part of visions which accord supremacy to the the States increased, till, at last, on the United States, we shall find the preten- mild proposition to attach a prospective sion of State sovereignty without founda- prohibition of Slavery as a condition to tion, except in the imagination of its par- the admission of Missouri into the Union tisans. Before the Constitution such sov- as a new State, the opposition raged ereignty may have existed; it was de- furiously, even to the extent of menaclared in the Articles of Confederation; cing the existence of the Union; and but since then it has ceased to exist. It this, too, was done in the name of State has disappeared and been lost in the su- Rights. Ten years later, the pretension premacy of the National Government, so took the familiar form of Nullification, that it can no longer be recognized. Per- insisting that our government was only a verse men, insisting that it still existed, compact of States, any one of which was and weak men, mistaking the shadow of free to annul an act of Congress at its former power for the reality, have made own pleasure; and all this in the name arrogant claims in its behalf. When the of State Rights. For a succession of Constitution was proclaimed, and George years afterwards, at the presentation of Washington took his oath to support it petitions against Slavery,- petitions for as President, our career as a Nation be- the recognition of Hayti, - at the quesgan, with all the unity of a nation. The tion of Texas, - at the Wilmot Proviso, States remained as living parts of the - at the admission of California as a Free body, important to the national strength, State, - at the discussion of the Comproand essential to those currents which mises of 1850, - at the Kansas Quesmaintain national life, but plainly subor- tion, - the Union was menaced; and aldinate to the United States, which then ways in the name of State Rights. The and there stood forth a Nation, one and menace was constant, and it sometimes indivisible. showed itself on small as well as great occasions, but always in the name of State Rights. When it was supposed that MISCHIEFS IN THE NAME OF STATE Fremont was about to be chosen PresRIGHTS. ident, the menace became louder, and BUT the new government had hardly mingling with it was the hoarse mutter been inaugurated before it was disturb- of war; and all this audacity was in the ed by the pestilent pretension of State name of State Rights. PRights, which, indeed, has never ceased But in the autumn of 1860, on the to disturb it since. Discontent with the election of Mr. Lincoln, the case became treaty between the United States and much worse. Scarcely was the result of Great Britain, negotiated by that purest this election known by telegraph before patriot, John Jay, under instructions from the country was startled by other intelliTWashington, in 1794, aroused Virginia, gence, to the effect that certain States 1863.] Our Domestic Relations. 517 at the South were about to put in execu- President then interfered promptly and tion the long-pending threat of Secession, loyally, it cannot be doubted that this of course in the name of State Rights. whole intolerable crime might have been First came South Carolina, which, by an trampled out forever. And now, when ordinance adopted in a State convention, it is proposed that Congress shall organize undertook to repeal the original act by governments in these States, which are which the Constitution was adopted in this absolutely without loyal governments, State, and to declare that the State had we are met by the objection founded on ceased to be one of the States of the State Rights. The same disastrous voice Union. At the same time a Declaration which from the beginning of our history of Independence was put forth by this has sounded in our ears still makes itState, which proceeded to organize itself self heard; but, alas! it is now on the as an independent community. This ex- lips of our friends. Of course, just in ample was followed successively by other proportion as it prevails will it be imposStates, which, by formal acts of Secession, sible to establish the Constitution again undertook to dissolve their relations with throughout the Rebel States. State the Union, always, be it understood, in Rights are madly triumphant, if, first, the name of State Rights. A new Con- in their name Rebel governments can federation was formed by these States, be organized, and then, again, in their with a new Constitution, and Jefferson name Congressional governments to disDavis at its head; and the same oaths of place the Rebel governments can be loyalty by which the local functionaries resisted. If they can be employed, first of all these States had been bound to the to sever the States from the Union, and Union were now transferred to this new then to prevent the Union from extendConfederation, - of course, in utter vio- ing its power over them, State Rights lation of the Constitution of the United are at once a sword and buckler to the States, but always in the name of State Rebellion. It was through the imbeciliRights. The ordinances of Secession ty of Mr. Buchanan that the States were were next maintained by war, which, allowed to use the sword. God forbid beginning with the assault upon Fort that now, through any similar imbecility Sumter, convulsed the whole country, of Congress, they shall be allowed to till, at last, all the States of the new Con- use the buckler! federation are in open rebellion, which the Government of the United States is now exerting its energies, mustering its SHALL CONGRESS ASSUME JURISDICc'..D TION OF THE REBEL STATES? forces, and taxing its people to suppress. The original claim, in the name of State AND now, in this discussion, we are Rights, has swollen to all the proportions brought to the practical question which of an unparalleled war, which, in the is destined to occupy so much of public name of State Rights, now menaces the attention. It is proposed to bring the national life. action of Congress to bear directly upon But the pretensions in the name of the Rebel States. This may be by State Rights are not all told. While the the establishment of provisional governordinances of Secession were maturing, ments under the authority of Congress, and before they were yet consummated, or simply by making the admission or Mr. Buchanan, who was then President, recognition of the States depend upon declined to interfere, on the ground that the action of Congress. The essential what had been done was done by States, feature of this proposition is, that Conand that it was contrary to the theory of gress shall assume jurisdiction of the our government " to coerce a State." Rebel States. A bill authorizing proThus was the pretension of State Rights visional governments in these States made the apology for imbecility. Had this was introduced into the Senate by Mr. 518 Our Domestic Relations. [October, Harris of the State of New York, and traitors, but totally unchanged, and ready was afterwards reported from the Judi- to be quickened into life by returning ciary Committee of that body; but it was loyalty. Such, I believe, is a candid left with the unfinished business, when statement of the pretension for State the late Congress expired on the fourth Rights against Congressional governof March. The opposition to this propo- ments, which, it is argued, cannot be sition, so far as I understand it, assumes substituted for the State governments. two forms: first, that these States are In order to prove that the Rebel always to be regarded as States, with States continue precisely as before, we State rights, and therefore cannot be are reminded that Andrew Johnson congoverned by Congress; and, secondly, tinued to occupy his seat in the Senate that, if any government is to be estab- after Tennessee had adopted its Act of lished over them, it must be simply a Secession and embarked in rebellion, military government, with a military and that his presence testified to the fact governor, appointed by the President, that Rebel Tennessee was still a State as is the case with Tennessee and North of the Union. No such conclusion is Carolina. But State rights are as much authorized by the incident in question. disturbed by a military government as There are two principles of Parliamenby a Congressional government. The tary law long ago fixed: first, that the local government is as much set aside power once conferred by an election to in one case as in the other. If the Pres- Parliament is irrevocable, so that it is ident, within State limits, can proceed not'affected by any subsequent change to organize a military government to in the constituency; and, secondly, that exercise all the powers of the State, a member, when once chosen, is a memsurely Congress can proceed to organ- ber for the whole kingdom, becoming ize a civil government within the same thereby, according to the words of an limits for the same purpose; nor can any early author, not merely knight or burpretension of State Rights be effective gess of the county or borough which against Congress more than against the elected him, but knight or burgess of President. Indeed, the power belongs England.* If these two principles are to Congress by a higher title than it be- not entirely inapplicable to our political longs to the President: first, because a system, then the seat of Andrew Johncivil government is more in harmony son was not in any respect affected by with our institutions, and, wherever pos- the subsequent madness of his State, sible, is required; and, secondly, because nor can the legality of his seat be any there are provisions of the Constitution argument for his State. under which this power is clearly derived. We are also reminded that during Assuming, then, that the pretension the last session of Congress two Senof State Rights is as valid against one ators from Virginia represented that form of government as against the other, State in the Senate; and the argument and still further assuming, that, in the is pressed, that no such representation case of military governments, this pre- would be valid, if the State government tension is practically overruled by the of Virginia was vacated. This is a misPresident at least, we are brought again take. Two things are established by to consider the efficacy of this pretension the presence of these Senators in the when advanced against Congressional National Senate: first, that the old State governments. government of Virginia is extinct, and, It is argued that the Acts of Secession secondly, that a new government has are all inoperative and void, and that been set up in its place. It was my fortherefore the States continue precisely tune to listen to one of these Senators as before, with their local constitutions, while he earnestly denounced the idea laws, and institutions in the hands of * See Cushing, Parliamentary Law, p. 284. 1863.] Our Domestic Relations. 519 that a State government might disap- bating society; and yet, considering the pear. I could not but think that he part it has already played in this discusstrangely forgot the principle to which sion, I shall be pardoned for a brief alluhe owed his seat in the Senate, - as sion to it. men sometimes forget a benefactor. There are well-known words which It is true, beyond question, that the ask and answer the question, " What conActs of Secession are all inoperative and stitutes a State.? " But the scholarly poet void against the Constitution of the Unit- was not thinking of a " State" of the ed States. Though matured in succes- American Union. Indeed, this term is sive conventions, sanctioned in various various in its use. Sometimes it stands forms, and maintained ever since by for civil society itself. Sometimes it is the bloody war, these acts — no matter by general name for a political community, what name they may be called - are all not unlike " nation" or " country," - as equally impotent to withdraw an acre of where our fathers, in the Resolution of Interritory or a single inhabitant from the dependence, which preceded the Declarightful jurisdiction of the United States. ration, spoke of " the State of Great BritBut while thus impotent against the Unit- ain." Sometimes it stands for the goved States, it does not follow that they ernment, - as when Louis XIV., at the were equally impotent in the work of height of his power, exclaimed, " The self-destruction. Clearly, the Rebels, by State, it is I "; or when Sir Christopher utmost efforts, could not impair the Na- Hatton, in the famous farce of " The tional. jurisdiction; but it remains to be Critic," ejaculates, - seen if their enmity did not act back with fatal rebound upon those very State " Oh, pIrdon me,if my conjecture's rash, But I surmise the State Rights in behalf of which they commen- Some danger apprehends." ced their treason. Among us the term is most known as the technical name for one of the political STATE SUICIDE. societies which compose our Union. Of IT is sometimes said that the States course, when used in the latter restricted themselves committed suicide, so that as sense, it must not be confounded with the States they ceased to exist, leaving their same term when used in a different and whole jurisdiction open to the occupation broader sense. But it is obvious that of the United States under the Constitu- some persons attribute to the one sometion. This assumption is founded on the thing of the qualities which can belong fact, that, whatever may be the existing only to the other. Nobody has suggestgovernments in these States, they are in ed, I presume, that any " State" of our no respect constitutional, and since the Union has, through rebellion, ceased to State itself is known by the government, exist as a civil society, or even as a politwith which its life is intertwined, it must ical community. It is only as a State of cease to exist constitutionally when its the Union, armed with State rights, or at government no longer exists constitution- least as a local government, which annually. Perhaps, however, it would be bet- ally renews itself, as the snake its skin, ter to avoid the whole question of the life that it can be called in question. But or death of the State, and to content it is vain to challenge for the technical ourselves with an inquiry into the con- "State," or for the annual government, dition of its government. It is not easy that immortality which belongs to civil to say what constitutes that entity which society. The one is an artificial body, we call a State; nor is the discussion the other is a natural body; and while much advanced by any theory with re- the first, overwhelmed by insurrection or gard to it. To my mind it seems a topic war, may change or die, the latter can fit for the old schoolmen or a modern de- change or die only with the extinction 520 Our Domestic Relations. [October, of the community itself, whatever may took to modulate out of the harmonies of be its name or its form. the Constitution into their bloody discords. It is because of confusion in the use Without stopping further for these diof this term that there has been so much versions, I content myself with the testiconfusion in the political controversies mony of Edmund Burke, who, in a strikwhere it has been employed. But no- ing passage, which seems to have been where has this confusion led to greater written for us, portrays the extinction of absurdity than in the pretension which a political community; but I quote his has been recently made in the name of eloquent words rather for suggestion than State Rights, - as if it were reasonable for authority:to attribute to a technical " State " of the " In a state of rude Nature there is no Union that immortality which belongs to such thing as a people. A number of men civil society. in themselves have no collective capacity. From approved authorities it appears The idea of people is the idea of a corpothat a " State," even in a broader signifi- ration. It is wholly artificial, and made, cation, may lose its life. Mr. Phillimore, like all other legal fictions, by common in his recent work on International Law, agreement. What the particular nature says: —" A State, like an individual, may of that agreement was is collected from die," and among the various ways, he the form into which the particular society says, "by its submission and the dona- has been cast. Any other is not their tion of itself to another country." * But covenant. When men, therefore, break in the case of our Rebel States there has up the original compact or agreement been a plain submission and donation of which gives its corporate form and capathemselves, - effective, at least, to break city to a State, they are no longer a peothe continuity of government, if not to ple; they have no longer a corporate exdestroy that immortality which has been istence; they have no longer a legal coclaimed. Nor can it make any differ- active force to bind within, nor a claim ence, in breaking this continuity, that to be recognized abroad. They are a the submission and donation, constituting number of vague, loose individuals, and a species of attornment, were to enemies nothing more. With them all is to begin at home rather than to enemies abroad, again. Alas! they little know how many - to Jefferson Davis rather than to Louis a weary step is to be taken before they Napoleon. The thread is snapped in one can form themselves into a mass which case as much as in the other. has a true politic personality." * But a change of form in the actual If that great master of eloquence could government may be equally effective. be heard, who can doubt that he would Cicero speaks of a change so complete as blast our Rebel States, as senseless com" to leave no image of a State behind." munities who have sacrificed that corpoBut this is precisely what has been done rate existence which makes them living, throughout the whole Rebel region: there component members of our Union of is no image of a constitutional State left States? behind. Another authority, Aristotle, whose words are always weighty, says,.n~ O STATE FORFEITURE. that, the form of the State being changed, the State is no longer the same, as the BUT again it is sometimes said, that the harmony is not the same when we mod- States, by their flagrant treason, have ulate out of the Dorian mood into the forfeited their rights as States, so as to Phrygian. But if ever an unlucky peo- be civilly dead. It is a patent and indisple modulated out of one mood into an- putable fact, that this gigantic treason other, it was cur Rebels, wLen they under- was inaugurated with all the forms of * Phillimore's International Law, Vol. I. * Burke's Appeal from the New to the Old p. 147. [T'71is. 1863.1 Our Domestic Relations. 521 law known to the States; that it was car- stitute theory for fact. On this important ried forward not only by individuals, but question I discard all theory, whether it also by States, so far as States can per- be of State suicide or State forfeiture or petrate treason; that the States pre- State abdication, on the one side, or of tended to withdraw bodily in their corpo- State rights, immortal and unimpeacharate capacities; — that the Rebellion, as ble, on the other side. Such discussions it showed itself, was by States as well as are only endless mazes in which a whole in States; that it was by the govern- senate may be lost. And in discarding all ments of States as well as by the people theory, I discard also the question of de of' States; and that, to the common ob- jure, - whether, for instance, the Rebel server, the crime was consummated by States, while the Rebellion is flagrant, are the several corporations as well as by the de jure States of the Union, with all the individuals of whom they were composed. rights of States. It is enough, that, for From this fact, obvious to all, it is ar- the time being, and in the absence of a gued, that, since, according to Blackstone, loyal government, they can take no part " a traitor hath abandoned his connection and perform no function in the Union, with society, and hath no longer any so that they cannot be recognized by the right to the advantages which before be- National Government. The reason is longed to him purely as a member of the plain. There are in these States no locommunity," by the same principle the cal functionaries bound by constitutional traitor State is no longer to be regarded oaths, so that, in fact, there are no conas a member of the Union. But it is not stitutional functionaries; and since the necessary, on the present occasion, to in- State government is necessarily compossist on the application of any such princi- ed of such functionaries, there can be no ple to States. State government. Thus, for instance, in South Carolina, Pickens and his assoSTATE ABDICATION. ciates may call themselves the governor and legislature, and in Virginia, Letcher AGAIN it is said, that the States by their and his associates may call themselves treason and rebellion, levying war upon governor and legislature; but we cannot the National Government, have abdicated recognize them as such. Therefore to all their places in the Union; and here the pretensions in behalf of State governargument is upheld by the historic ex- ments in the Rebel States I oppose the ample of England, at the Revolution of simple FACT, that for the time being no 1688, when, on the flight of James II. and such governments exist. The broad spathe abandonment of his kingly duties, ces once occupied by those governments the two Houses of Parliament voted, that are now abandoned and vacated. the monarch, "having violated the funda- That patriot Senator, Andrew Johnmental laws, and having withdrawn him- son,- faithful among the faithless, the self out of the kingdom, had abdicated the Abdiel of the South, - began his attempt government, and that the throne had to reorganize Tennessee by an Address, thereby become vacant." * But it is not as early as the 18th of March, 1862, in necessary for us to rely on any allegation which he made use of these words: - of abdication, applicable as it may be. "' I find most, if not all, of the offices, both State and Federal, vacated, either by actual abandonment, or by the action RIGHTFUL GOVERNMENT IN THE REB3of the incumbents in attempting to subEL STATES VACATED. ordinate theirfunctions to a power in hosIT only remains that we should see tility to the fundamental law of the things as they are, and not seek to sub- State and subversive of her national al* Macaulay's History of England, Vol. II. legiance." p. 623. In employing the word " vacated," Mr. 522 Our Domestic Relations. [October, Johnson hit upon the very term which, representation; but the argument for in the famous resolution of 1688, was State Rights assumes that all these rights held to be most effective in dethroning may be lodged in voters as few in numKing James. After declaring that he ber as ever controlled a rotten borough had abdicated the government, it was of England. added, "that the throne had thereby be- Pray, admitting that an insignificant come vacant," on which Macaulay happi- minority is to organize the new governly remarks: - ment, how shall it be done? and by " The word abdication conciliated pol- whom shall it be set in motion? In putiticians of a more timid school. To the ting these questions I open the difficulreal statesman the simple important clause ties. As the original government has was that which declared the throne vacant; ceased to exist, and there are none who and if that clause could be carried, he can be its legal successors, so as to adcared little by what preamble it might minister the requisite oaths, it is not easy be introduced." * to see how the new government can be And the same simple principle is now set in motion without a resort to some in issue. It is enough that the Rebel revolutionary proceeding, instituted eiStates be declared vacated, as in fact ther by the citizens or by the military they are, by all local government which power, - unless Congress, in the exercise we are bound to recognize, so that the of its plenary powers, should undertake way is open to the exercise of a rightful to organize the new jurisdiction. jurisdiction. But every revolutionary proceeding is to be avoided. It will be within the recollection of all familiar with our history. TRANSITION TO RIGIH-TFUL GOVIERN- that our fathers, while regulatin the sepIMENT. aration of the Colonies from the parent AND here the question occurs, How country, were careful that all should be shall this rightful jurisdiction be estab- done according to the forms of law, so lished in the vacated States? Some there that the thread of legality should conare, so impassioned for State rights, and tinue unbroken. To this end the Conso anxious for forms even at the expense tinental Congress interfered by a superof substance, that they insist upon the in- vising direction. But the Tory argustant restoration of the old State govern- ment in that day denied the power of' ments in all their parts, through the Congress as earnestly as it denies this agency of loyal citizens, who mean- power now. Mr. Duane, of the Contiwhile must be protected in this work of nental Congress, made himself the mouthrestoration. But, assuming that all this piece of this denial:is practicable, as it clearly is not, it at- " Congress ought not to determine a tributes to the loyal citizens of a Rebel point of this sort about instituting govState, however few in numbers, - it may ernment. What is it to Congress how be an insignificant minority,- a power justice is administered? You have no clearly inconsistent with the received right to pass the resolution, any more principle of popular government, that than Parliament has. HIow does it apthe majority must rule. The seven vot- pear that no favorable answer is likely ers of Old Sarum were allowed to return to be given to our petitions?" * two members of Parliament, because this In spite of this argument, the Congress place, - once a Roman fort, and after- of that day undertook, by formal resoluwards a sheepwalk, - many generations tions, to indicate the process by which before, at the early casting of the House the new governments should be constitutof Commons, had been entitled to this ed.t * Macaulay's History of England, Vol. II. * John Adams's Works, Vol. IIT. p. 490. p. 624. t Ibid. Vol. III. pp. 17, 19, 45, 46. 1863.] Our Domestic Relations. 523 If we seek, for our guidance, the princi- - "When, in the course of human events, ple which entered into this proceeding of it becomes necessary to ascertain the will the Continental Congress, we shall find it of the people on a new exigency, or a in the idea, that nothing must be left to il- new state of things, or of opinion, the legal or informal action, but that all must legislative power provides for that ascerbe done according to rules of constitution tainment by an ordinary act of legislaand law previously ordained. Perhaps tion. this principle has never been more dis- "What do I contend for? I say that tinctly or powerfully enunciated than by the will of the people must prevail, when Mr. Webster, in his speech against the it is ascertained; but there must be some Dorr Constitution in Rhode Island. Ac- legal and authentic mode of ascertaining cording to him, this principle is a funda- that will; and then the people may make mental part of what he calls our Ameri- what government they please. can system, requiring that the right of "All that is necessary here is, that the sulTrage shail be prescribed by previous will of the people should be ascertained law, including its qualifications, the time by some regular rule of proceeding, preand place of its exercise, and the man- scribed by previous law.. ner of its exercise; and then again, that "But the law and the Constitution, the the results are to be certified to the cen- whole system of American institutions, tral power by some certain rule, by some do not contemplate a case in which a reknown public officers, in some clear and sort will be necessary to proceedings alidefinite form, to the end that two things unde, or outside of the lasu and the Conmay be done: first, that every man en- stitution, for the purpose of amending the titled to vote may vote; secondly, that frame of government." * his vote may be sent forward and counted, and so he may exercise his part of sovereignty, in common with his fellowcitizens. Such, according to Mr. Web- BUT, happily, we are not constrained to ster, are the minute forms which must be any such revolutionary proceeding. The followed, if we would impart to the result new governments can all be organized the crowning character of law. And here by Congress, which is the natural guarare other positive words from him on this dian of people without any immediate important point: — government, and within the jurisdiction "We are not to take the will of the of the Constitution of the United States. people from public meetings, nor from Indeed, with the State governments altumultuous assemblies, by which the tim- ready vacated by rebellion, the Constiid are terrified, the prudent are alarmed, tution becomes, for the time, the supreme and by which society is disturbed. These and only law, binding alike on President are not American modes of signifying and Congress, so that neither can establish the will of the people, and they never any law or institution incompatible with were.. it. And the whole Rebel region, deprived "Is it not obvious enough, that men of all local government, lapses under the cannot get together and count themselves, exclusive jurisdiction of Congress, preand say they are so many hundreds and cisely as any other territory; or, in other so many thousands, and judge of their words, the lifting of the local governown qualifications, and call themselves ments leaves the whole vast region withthe people, and set up a government? out any other government than Congress, Why, another set of men, forty miles off, unless the President should undertake to on the same day, with the same propri- govern it by military power. Startling' ety, with as good qualifications, and in as this proposition may seem, especially as large numbers, may meet and set up * Webster's Works, Vol. VI. pp. 225, 226, another government. 227, 228, 231. 524 Our Domestic Relations. [October, to all who believe that'" there is a divin- First. From the necessity of the case, ity that doth hedge" a State, hardly less ex necessitate rei, Congress must have than a king, it will appear, on careful jurisdiction over every portion of the consideration, to be as well founded in United States where there is no other the Constitution as it is simple and natu- government;. and since in the present ral, while it affords an easy and consti- case there is no other government, the tutional solution to our present embar- whole region falls within the jurisdicrassments. tion of Congress. This jurisdiction is I have no theory to maintain, but only incident, if you please, to that guarthe truth; and in presenting this argu- dianship and eminent domain which bement for Congressional government, I long to the United States with regard simply follow teachings which I cannot to all its territory and the people therecontrol. The wisdom of Socrates, in the of, and it comes into activity when the words of Plato, has aptly described these local government ceases to exist. It can teachings, when he says: — be questioned only in the name of the " These things are secured and bound, local government; but since this governeven if the expression be somewhat too ment has disappeared in the Rebel States, rude, with iron and adamant; and un- the jurisdiction of Congress is uninterless you or some one more vigorous than rupted there. The whole broad Rebel you can break them, it is impossible region is tabula rasa, or " a clean slate," for any one speaking otherwise than I where Congress, under the Constitution now speak to speak well; since, for my of the United States, may write the part, I have always the same thing to laws. In adopting this principle, I folsay, that I know not how these things low the authority of the Supreme Court are, but that out of all with whom I have of the United States in determining the ever discoursed, as now, not one is able to jurisdiction of Congress over the Territosay otherwise and to maintain himself." * ries. Here are the words of Chief-Justice Show me that I am wrong,- that this Marshall: - conclusion is not founded in the Consti- " Perhaps the power of governing a tution, and is not sustained by reason,- territory belonging to the United States, and I shall at once renounce it; for, in the which has not, by becoming a State, acpresent condition of affairs, there can be quired the means of self-government, no pride of opinion which must not fall may result necessarily from thefacts that at once before the sacred demands of it is not wit7in the jurisdiction of anzy parcountry. Not as a partisan, not as an ticular State and is within the power and advocate, do I make this appeal; but sim- jurisdiction of the United States. The ply as a citizen, who seeks, in all sincer- right to govern may be the natural conity, to offer his contribution to the estab- sequence of the right to acquire territolishment of that policy by which Union ry." and Peace may be restored. If the right to govern may be the natural consequence of the right to acquire territory, surely, and by much stronger THREE SOURCES OF CONGRESSIONAL reason, this right must be the natural consequence of the sovereignty of the IF we look at the origin of this power United States wherever there is no local in Congress, we shall find that it comes government. from three distinct fountains, any one of Secondly. This jurisdiction may also which is ample to supply it. Three fbun- be derived from the Rights of TTar, which tains, generous and hospitable, will be surely are not less abundant for Congress found in the Constitution ready for this than for the President. If the Presioccasion. * American Insurance Company v. Carter, * The Gorgias of Plato. 1 Peters, p. 542. 1863.] Our Domestic Relations. 525 dent, disregarding the pretension of State war. And this conclusion from the obRights, can appoint military governors servation of the ingenious publicist has within the Rebel States, to serve a tern- been practically adopted by the Supreme porary purpose, who can doubt that Con- Court of the United States in those gress can exercise a similar jurisdic- recent cases where this tribunal, after tion? That of the President is derived the most learned argument, followed by from the war-powers; but these are not the most careful consideration, adjudged, sealed to Congress. If it be asked where that, since the Act of Congress of July in the Constitution such powers are be- 13th, 1861, the National Government has stowed upon Congress, I reply, that they been waging " a territorial civil war," will be found precisely where the Presi- in which all property afloat belonging to dent now finds his powers. But it is a resident of the belligerent territory is clear that the powers to " declare war," liable to capture and condemnation as to " suppress insurrections," and to " sup- lawful prize. But surely, if the National port armies," are all ample for this pur- Government may stamp upon all resipose. It is Congress that conquers; and dents in this belligerent territory the charthe same authority that conquers must acter of foreign enemies, so as to subject govern. Nor is this authority derived their ships and cargoes to the penalties from any strained construction; but it of confiscation, it may perform the mildsprings from the very heart of the Con- er service of making all needful rules and stitution. It is among those powers, la- regulations for the government of this tent in peace, which war and insurrec- territory under the Constitution, so long tion call into being, but which are as as may be requisite for the sake of peace intrinsically constitutional as any other and order; and since the object of war power. is'" indemnity for the past and security Even if not conceded to the President, for the future," it may do everything nethese powers must be conceded to Con- cessary to make these effectual. But it gress. Would you know their extent? will not be enough to crush the Rebellion. They will be found in the authoritative Its terrible root must be exterminated, texts of Public Law, -in the works of so that it may no more flaunt in bloord. Grotius, Vattel, and Wheaton. They Thirdly. But there is another source are the powers conceded by civilized so- for this jurisdiction which is common alike ciety to nations at war, known as the to Congress and the President. It will Rights of War, at once multitudinous be found in the constitutional provision, and minute, vast and various. It would that " the United States shall guarantee be strange, if Congress could organize to every State in this Union a republican armies and navies to conquer, and could form of government, and shall protect not also organize governments to pro- each of them against invasion." Here, tect. be it observed, are words of guaranty De Tocqueville, who saw our institu- and an obligation of protection. In the tions with so keen an eye, remarked, that, original concession to the United States since, in spite of all political fictions, of this twofold power there was an open the preponderating power resided in the recognition of the ultimate responsibility State governments, and not in the Na- and duty of the National Government, tional Government, a civil war here conferring jurisdiction above allpretend" would be nothing but a foreign war in ed State rights; and now the occasion disguise." * Of course the natural con- has come for the exercise of this twofold sequence would be to give the National power thus solemnly conceded. The Government in such a civil war all the words of twofold power and correspondrights which it would have in a foreign ing obligation are plain and beyond ques* Democracy in America, Vol. II. ch. 25, tion. If there be any ambiguity, it is onp. 343. ly as to what constitutes a republican form 526 Our Domestic Relations. [October, of government. But for the present this Whatever shows itself dangerous to a requestion does not arise. It is enough publican form of government must be rethat a wicked rebellion has undertaken moved without delay or hesitation; and to detach certain States from the Union, if the evil be Slavery, our action will be and to take them beyond the protection bolder when it is known that the danand sovereignty of the United States, ger was foreseen. with the menace of seeking foreign alli- In reviewing these three sources of ance and support, even at the cost of power, I know not which is most comevery distinctive institution. It is well plete. Either'would be ample alone; but known that Mr. Madison anticipated this the three together are three times amprecise danger from Slavery, and upheld ple. Thus, out of this triple fountain, this precise grant of power in order to or, if you please, by this triple cord, do counteract this danger. His words, which I vindicate the power of Congress over will be found in a yet unpublished docu- the vacated Rebel States. ment, produced by Mr. Collamer in the But there are yet other words of the Senate, seem prophetic. Constitution which cannot be forgotten: Among the defects which he remarked "New States may be admitted by the in the old Confederation was what he Congress into this' Union." Assuming called " want of guaranty to the States that the Rebel States are no longer de of their constitutions and laws against in- facto States of this Union, but that the ternal violence." In showing why this territory occupied by them is within the guaranty was needed, he says, that, " ac- jurisdiction of Congress, then theselwords cording to republican theory, right and become completely applicable. It will power, being both vested in the majority, be for Congress, in such way as it shall are held to be synonymous; according to think best, to regulate the return of these fact and experience, a minority may, in States to the Union, whether in time or an appeal to force, be an overmatch for manner. No special form is prescribed. the majority "; and he then adds, in words But the vital act must proceed from Conof wonderful prescience, " where Slavery gress. And here again is another testiexists the republican theory becomes still mony to that Congressional power which, more fallacious." This was written in under the Constitution, will restore the April, 1787, before the meeting of the Republic. Convention that formed the National Constitution. But here we have the oriUNANSWERABLE REASONS FOR CONgin of the very clause in question. The GRESSIONTAL GOVERNMENTS. danger which this statesman foresaw is now upon us. When a State fails to main- AGAINST this power I have heard no tain a republican government with offi- argument which can be called an argucers sworn according to the requirements ment. There are objections founded of the Constitution, it ceases to be a con- chiefly in the baneful pretension of State stitutional State. The very case contem- Rights; but these objections are animatplated by the Constitution has arrived, ed by prejudice rather than reason. Asand the National Government is invest- suming the impeccability of the States, ed with plenary powers, whether of peace and openly declaring that States, like or war. There is nothing in the store- kings, can do no wrong, while, like kings, house of peace, and there is nothing in they wear the " round and top of soverthe arsenal of war, which it may not em- eignty," politicians treat them with most ploy in the maintenance of this solemn mistaken forbearance and tenderness, as guaranty, and in the extension of that if these Rebel corporations could be danprotection against invasion to which it dled into loyalty. At every suggestion is pledged. But this extraordinary pow- of rigor State Rights are invoked, and er carries with it a corresponding duty. we are vehemently told not to destroy 1863.] Our Domestic Relations. 527 the States, when all that Congress pro- even without any Proclamation of the poses is simply to recognize the actual President, Slavery had ceased to have a condition of the States and to undertake legal and constitutional existence in evtheir temporary government, by provid- ery Rebel State. ing for the condition of political syncope But even if we hesitate to accept this into which they have fallen, and, during important conclusion, which treats Slathis interval, to substitute its own consti- very within the Rebel States as already tutional powers for the unconstitutional dead in law and Constitution, it cannot powers of the Rebellion. Of course, be doubted, that, by the extension of the therefore, Congress will blot no star from Congressional jurisdiction over the Rebel the flag, nor will it obliterate any State States, many difficulties will be removed. liabilities. But it will seek, according to Holding every acre of soil and every inits duty, in the best way, to maintain the habitant of these States within its jurisgreat and real sovereignty of the Union, diction, Congress can easily do, by propby upholding the flag unsullied, and by er legislation, whatever may be needful enforcing everywhere within its jurisdic- within Rebel limits in order to assure tion the supreme law of the Constitution. freedom and to save society. The soil At the close of an argument already may be divided among patriot soldiers, too long drawn out, I shall not stop to poor-whites, and freedmen. But above array the considerations of reason and all things, the inhabitants may be saved expediency in behalf of this jurisdic- from harm. Those citizens in the Rebel tion; nor shall I dwell on the inevita- States, who, throughout the darkness of ble influence that it must exercise over the Rebellion, have kept their faith, will Slavery, which is the motive of the Re- be protected, and the freedmen will be bellion. To my mind nothing can be rescued from hands that threaten to cast clearer, as a proposition of constitution- them back into Slavery. al law, than that everywhere within the But this jurisdiction, which is so comexclusive jurisdiction of the National pletely practical, is grandly conservative Government Slavery is impossible. The also: Had it been early recognized that argument is as brief as it is unanswer- Slavery depends exclusively upon the loable. Slavery is so odious that it can ex- cal government, and that it falls with that ist only by virtue of positive law, plain government, who can doubt that every and unequivocal; but no such words can Rebel movement would have been checkbe found in the Constitution. Therefore ed? Tennessee and Virginia would nevSlavery is impossible within the exclusive er have stirred; Maryland and Kentucky jurisdiction of the National Government. would never have thought of stirring. For many years I have had this convic- There would have been no talk of neutraltion, and have constantly maintained it. ity between the Constitution and the ReI am glad to believe that it is implied, if bellion, and every Border State would not expressed, in the Chicago Platform. have been fixed in its loyalty. Let it be MIr. Chase, among our public men, is established in advance, as an inseparable known to accept it sincerely. Thus incident to every Act of Secession, that it Slavery in the Territories is unconstitu- is not only impotent against the Constitutional; but if the Rebel territory falls tion of the United States, but that, on its under the exclusive jurisdiction of the occurrence, both soil and inhabitants will National Government, then Slavery will lapse beneath the jurisdiction of Congress, be impossible there. In a legal and con- and no State will ever again pretend to stitutional sense, it will die at once. The secede. The word "territory," accordair will be too pure for a slave. I can- ing to an old and quaint etymology, is said not doubt that this great triumph has to come from terreo, to terrify, because been already won. The moment that it was a bulwark against the enemy. A the States fell, Slavery fell also; so that, scholiast tells us, " Territorium est quic 528 Our Domestic Relations. [October, quid hostis terrendi causa constitutum," State Rights. Newspapers have taken up "A territory is something constituted in and repeated the revolting strain. That order to terrify the enemy." But I know is to say, no matter what may be done of no way in which our Rebel enemy for Emancipation, whether by Proclamawould have been more terrified than by tion of the President, or by Congress being told that his course would inevi- even, the State, on resuming its place in tably precipitate him into a territorial the Union, will, in the exercise of its sovcondition. Let this principle be adopted ereign power, reenslave every colored now, and it will contribute essentially to person within its jurisdiction; and this that consolidation of the Union which is the menace from Delaware, and even was so near the heart of Washington. from regenerated Western Virginia! I The necessity of this principle is appar- am obliged to Senators for their frankent as a restraint upon the lawless vin- ness. If I needed any additional motive dictiveness and inhumanity of the Rebel for the urgency with which I assert the, States, whether against Union men or power of Congress, I should find it in against freedmen. Union men in Vir- the pretensions thus savagely proclaimed. ginia already tremble at the thought of In the name of Heaven, let us spare no being delivered over to a State govern- effort to save the country from this shame, ment wielded by original Rebels pre- and an oppressed people from this additendilag to be patriots. But the freed- tional outrage! men, who have only recently gained their "Once free, always free." This is a birthright, are justified in a keener anx- rule of law, and an instinct of humanity. iety, lest it should be lost as soon as won. It is a self-evident axiom, which only tyMr. Saulsbury, a Senator from Delaware, rants and slave-traders have denied. The with most instructive frankness, has an- brutal pretension thus flamingly advannounced, in public debate, what the re- ced, to reenslave those who have been set stored State governments will do. As- free, puts us all on our guard. There suming that the local governments will must be no chance or loop-hole for such be preserved, he predicts that in 1870 an intolerable, Heaven-defying iniquity. there will be more slaves in the United Alas! there have been crimes in human States than there were in 1860, and then history; but I know of none blacker than unfolds the reason as follows, — all of this. There have been acts of baseness; which will be found in the " Congres- but I know of none more utterly vile. sional Globe ":- - Against the possibility of such a sacrifice " By your acts you attempt to free the we must take a bond which cannot be set slaves. You will not have them among aside, - and this can be found only in you. You leave them where they are. the powers of Congress. Then what is to be the result? - I pre- Congress has already done much. Besume that local State governments will sides its noble Act of Emancipation, it be preserved. If they are, if the people has provided that every person guilty of have a right to make their own laws, and treason, or of inciting or assisting the Reto govern themselves, they will not only bellion, " shall be disqualified to hold any reinslave every person that you attempt office under the United States." And by to set free, but they will re6nslave the another act, it has provided that every whole race." person elected or appointed to any office Nor has the horrid menace of rein- of honor or profit under the Government slavement proceeded from the Senator of the United States shall, before enterfrom Delaware alone. It has been utter- ing upon its duties, take an oath " that ed even by Mr. Willey, the mild Senator he has not voluntarily borne arms against from Virginia, speaking in the name of the United States, or given aid, counteThirty-Seventh Congress, Second Session, nance, counsel, or encouragement to per2d May, 1862, Part III. p. 1923. sons engaged in armed hostility thereto,