“There were sometimes bitter reflections cast upon the
proceedings of the major-generals by the lawyers and country
gentlemen, who accused them to have done many things oppressive
to the people, in interrupting the course of the law, _and
threatening such as would not submit to their arbitrary orders
with transportation beyond the seas_.”[180]
At last, even Cromwell, at the height of his power, found it necessary
to abandon the policy of military governors. He authorized his
son-in-law, Mr. Claypole, to announce in Parliament, “that he had
formerly thought it necessary, in respect to the condition in which
the nation had been, that the major-generals should be intrusted with
the authority which they had exercised; but, in the present state of
affairs, he conceived it inconsistent with the laws of England and
liberties of the people to continue their power any longer.”[181]
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 Stanly in North Carolina are in themselves an argument against
the whole system.
It is clear that these military magistrates are without direct
sanction in the Constitution or existing laws. They are not even
“major-generals,” or other military officers, charged with the duty
of enforcing martial law, but 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
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 by assuming everything in
their favor that 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 unconstitutional, 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.
Thus declaring deliberate preference for Congressional governments, I
am sustained by obvious reason. But there is positive authority on this
identical question. I refer to the recorded opinion of Chancellor Kent.
“Though the Constitution vests the executive power in
the President, and declares him to be commander-in-chief
of the army and navy of the United States, _these powers
must necessarily be subordinate to the legislative power in
Congress_. It would appear to me to be the policy or true
construction of this simple and general grant of executive
power to the President, not to suffer it to interfere with
those specific powers of Congress which are more safely
deposited in the legislative department, and that _the powers
thus assumed by the President do not belong to him, but to
Congress_.”[182]
Such is the weighty testimony of this esteemed master on the assumption
of power by the President, in 1847, over Mexican ports in our
possession. It is found in the latest edition of his “Commentaries”
that enjoyed the supervision of the author. Of course, it is equally
applicable to the recent assumptions within our own territory. His
judgment is clear in favor of Congressional governments.
In ordinary times, and under ordinary circumstances, neither system of
government would be valid. A State in the full enjoyment of its rights
would spurn a military governor or a Congressional governor. It would
insist that its governor should be neither military nor Congressional,
but such as its own people chose to elect; and nobody would question
this right. The President does not think of sending a military governor
to New York; nor does Congress think of establishing a provisional
government in that State. It is only with regard to the Rebel States
that this question arises. The occasion, then, for the exercise of
this extraordinary power is found in the Rebellion. Without the
Rebellion there would be no talk of any governor, whether military or
Congressional.
* * * * *
Here it becomes important to consider the operation of the Rebellion
in opening the way to this question. To this end we must understand
the relations between the States and the National Government, under
the Constitution of the United States. As I approach this question
of singular delicacy, let me say on the threshold, that for all those
rights of the States which are consistent with the peace, security, and
permanence of the Union, according to the objects grandly announced in
the Preamble of the Constitution, I am the strenuous advocate at all
times and places. Never, through any word or act of mine, shall those
rights be impaired; nor shall any of those other rights be called in
question by which the States are held in harmonious relations as well
with each other as with the Union. But, while thus strenuous for all
that justly belongs to the States, I cannot concede to them immunities
inconsistent with that Constitution which is the supreme law of the
land; nor can I admit the impeccability of a State.
From a period even anterior to the National Constitution, there has
been a perverse pretension of State Rights, which has perpetually
interfered with the unity of our Government. Throughout the Revolution
this pretension was a check upon the powers of Congress, whether in
respect to armies or finances, so that it was too often constrained to
content itself with the language of advice or persuasion rather than of
command. By the Declaration of Independence it was solemnly declared
that “these United Colonies are, and of right ought to be, free and
independent _States_” and that, as such, “they have full power to levy
war, conclude peace, contract alliances, establish commerce, and to do
all other acts and things which independent _States_ may of right do.”
Thus, by this original charter, the early Colonies were changed into
independent States, under whose protection the liberties of the country
were placed.
Early steps were taken to supply the deficiencies of this government,
which was effective only through the generous patriotism of the
people. In July, 1778, two years after the Declaration, Articles of
Confederation were ratified by nine States, but the assent of all was
not obtained till March, 1781. The character of this new government,
which assumed the style of “The United States of America,” appears
in the title of these Articles, which was as follows: “Articles
of Confederation and Perpetual Union _between the States_ of New
Hampshire, Massachusetts Bay, Rhode-Island and Providence Plantations,
Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland,
Virginia, North Carolina, South Carolina, and Georgia.” By the second
article it was declared that “_each State retains its sovereignty_,
freedom, and independence, and every power, jurisdiction, and right
which is not by this Confederation expressly delegated to the United
States in Congress assembled.” By the third article it was further
declared that “the said _States_ hereby severally enter into _a firm
league_ of friendship with each other, for their common defence, the
security of their liberties, and their mutual and general welfare.” By
another article, a “committee of the _States_, or any nine of them,”
was authorized, in the recess, to execute the powers of Congress. The
government thus constituted was a compact between _sovereign States_,
or, according to its precise language, “a firm league of friendship”
between these _States_, administered, in the recess of Congress, by a
“committee of _the States_.” Thus did State Rights triumph.
But the imbecility of the Confederation, from this pretension, soon
became apparent. As early as December, 1782, a committee of Congress
made an elaborate report on the refusal of Rhode Island, one of the
States, to confer certain powers on Congress with regard to revenue
and commerce. In April, 1783, an Address of Congress to _the States_
was put forth, appealing to their justice and plighted faith, and
representing the consequence of failure on their part to sustain the
Government and provide for its wants. In April, 1784, a similar appeal
was made to what were called “the several States,” whose Legislatures
were recommended to vest “the United States in Congress assembled”
with certain powers. In July, 1785, a committee of Congress made
another elaborate report on the reason why the States should confer
upon Congress powers therein enumerated, in the course of which it
was urged, that, “unless _the States_ act together, there is no plan
of policy into which they can separately enter which they will not be
separately interested to defeat, and of course all their measures must
prove vain and abortive.” In February and March, 1786, there were three
other reports of committees of Congress, exhibiting the failure of _the
States_ to comply with the requisitions of Congress, and the necessity
for a complete accession of _all the States_ to the revenue system. In
October, 1786, there was still another report, most earnestly renewing
the former appeals to _the States_. Nothing could be more urgent.
As early as July, 1782, even before the first report to Congress,
resolutions were adopted by the State of New York, declaring “that the
situation of _these States_ is in a peculiar manner critical,” and
that “the radical source of most of our embarrassments is _the want
of sufficient power in Congress_ to effectuate that ready and perfect
coöperation of _the different States_ on which their immediate safety
and future happiness depend.”[183] Finally, in September, 1786, at
Annapolis, commissioners from several States, after declaring “the
situation of the United States delicate and critical, calling for an
exertion of the united virtue and wisdom of all the members of the
Confederacy,” recommended the meeting of a Convention “to devise such
further provisions as shall appear to them necessary to render the
Constitution of the Federal Government adequate to the exigencies of
the Union.” In accord with this recommendation, the Congress of the
Confederation proposed a Convention “for the sole and express purpose
of revising the Articles of Confederation, and reporting to Congress
and the several Legislatures such alterations and provisions therein as
shall, when agreed to in Congress and confirmed by the States, render
the Federal Constitution adequate to the exigencies of government and
the preservation of the Union.”
In pursuance of the call, delegates to the proposed Convention
were duly appointed by the Legislatures of the several States, and
the Convention assembled at Philadelphia in May, 1787. The present
Constitution was the well-ripened fruit of their deliberations. In
transmitting it to Congress, General Washington, who was the President
of the Convention, in a letter, bearing date September 17, 1787, uses
this instructive language:--
“It is obviously impracticable, in the Federal Government of
_these States, to secure all rights of independent sovereignty
to each_, and yet provide for the interest and safety of all.
Individuals entering into society must give up a share of
liberty to preserve the rest. The magnitude of the sacrifice
must depend as well on situation and circumstance as on the
object to be obtained. It is at all times difficult to draw
with precision the line between those rights which must be
surrendered and those which may be reserved; and on the present
occasion this difficulty was increased by a difference _among
the several States_ as to their situation, extent, habits,
and particular interests. In all our deliberations on this
subject, we kept steadily in our view that which appears to us
the greatest interest of every true American, THE CONSOLIDATION
OF OUR UNION, in which is involved our prosperity, felicity,
safety, perhaps our national existence.”
These famous words were in harmony with the constant sentiments of
Washington. Here is additional evidence, from a letter to John Jay,
during the summer of 1786:--
“We have errors to correct. We have probably had too good
an opinion of human nature, in forming our Confederation.
Experience has taught us that men will not adopt and carry
into execution measures the best calculated for their own
good, _without the intervention of a coercive power_. I do not
conceive we can exist long as a nation without having lodged
somewhere a power which will pervade the whole Union _in as
energetic a manner as the authority of the State governments
extends over the several States_.”