“I hold it for a fundamental point, that an individual
independence of the States is utterly irreconcilable with the
idea of an aggregate sovereignty.”[190]
Better words still fell from Mr. Wilson, of Pennsylvania, known
afterwards as a learned judge of the Supreme Court, and also for his
“Lectures on Law”:--
“Will a regard to State Rights justify the sacrifice of the
rights of men? If we proceed on any other foundation than the
last, our building will neither be solid nor lasting.”[191]
The argument was unanswerable then. It is unanswerable now. You cannot
elevate the sovereignty of the States over the Constitution of the
United States. It would be even more odious than the early pretension
of sovereign power over Magna Charta, according to the memorable words
of Lord Coke, as recorded by Rushworth:--
“Sovereign power is no Parliamentary word. In my opinion,
it weakens Magna Charta and all our statutes; for they are
absolute, without any saving of sovereign power; and shall
we now add it, we shall weaken the foundation of law, and
then the building must needs fall. Take we heed what we yield
unto. _Magna Charta is such a fellow that he will have no
sovereign._”[192]
But the Constitution is our Magna Charta, which can bear no sovereign
but itself, as you will see at once, if you consider its character. And
this practical truth was recognized at its formation, as may be seen in
the writings of our Rushworth: I refer to Nathan Dane, who was a member
of Congress under the Confederation. He tells us plainly, that the
terms “sovereign States,” “State sovereignty,” “State rights,” “rights
of States,” are “not constitutional expressions.”[193]
* * * * *
In the exercise of its sovereignty, Congress is intrusted with large
and peculiar powers. Take notice of them, and you will see how little
of “sovereignty” is left to the States. Their simple enumeration is
an argument against this pretension. Congress may “lay and collect
taxes, duties, imposts, and excises, to pay the debts and _provide for
the common defence and general welfare of the United States_”; it may
“borrow money on the credit of the United States”; “regulate commerce
with foreign nations, and _among the several States_, and with the
Indian tribes”; “establish an uniform rule of naturalization, and
uniform laws on the subject of bankruptcies, _throughout the United
States_”; “coin money, regulate the value thereof, and of foreign
coin, and fix the standard of weights and measures”; “provide for the
punishment of counterfeiting the securities and current coin of the
United States”; “establish post-offices and post-roads”; “promote the
progress of science and useful arts, by securing for limited times to
authors and inventors the exclusive right to their respective writings
and discoveries”; “constitute tribunals inferior to the Supreme
Court”; “define and punish piracies and felonies committed on the high
seas, and offences against the Law of Nations”; “declare war, grant
letters of marque and reprisal, and make rules concerning captures on
land and water”; “raise and support armies”; “provide and maintain a
navy”; “make rules for the government and regulation of the land and
naval forces”; “provide for calling forth the militia to execute _the
laws of the Union_, suppress insurrections, and repel invasions”;
“provide for organizing, arming, and disciplining the militia, and for
governing such part of them as may be employed in the service of the
United States, reserving to the States respectively the appointment
of the officers, and the authority of training the militia _according
to the discipline prescribed by Congress_”; “exercise exclusive
legislation, in all cases whatsoever, over the seat of the government
of the United States, and like authority over all places purchased by
the consent of the Legislature of the State in which the same shall be,
for the erection of forts, magazines, arsenals, dock-yards, and other
needful buildings”; and “make all laws which shall be necessary and
proper for carrying into execution the foregoing powers, and all other
powers vested by this Constitution in the Government of the United
States, or in any department or officer thereof.”
Such are the ample and diversified powers of Congress, embracing all
those agencies which enter into sovereignty. With this concession to
the United States, there seems to be little for the several States. In
the power to “declare war” and to “raise and support armies” Congress
possesses an exclusive power, in itself immense and infinite, over
persons and property in the several States, while, by the power to
“regulate commerce,” it may put limits round about the business of the
several States; and even in the case of the militia, which is the
original military organization of the people, nothing is left to the
States except “the appointment of the officers,” and the authority to
train it “according to the discipline _prescribed by Congress_.” Thus
these great functions are all intrusted to the United States, while the
several States are subordinated to their exercise.
Constantly, and in everything, we behold the constitutional
subordination of the States. But there are other provisions by which
the States are expressly deprived of important powers. For instance:
“No State shall enter into any treaty, alliance, or confederation;
coin money; emit bills of credit; make anything but gold and silver
coin a tender in payment of debts.” Or, if the States may exercise
certain powers, it is only with the consent of Congress. For instance:
“No State shall, _without the consent of Congress_, lay any duty of
tonnage, keep troops or ships of war in time of peace, enter into any
agreement or compact with another State or with a foreign power.” Here
is a magistral power accorded to Congress utterly inconsistent with
the pretensions of State Rights. Then again: “No State shall, _without
the consent of the Congress_, lay any imposts or duties on imports or
exports, except what may be absolutely necessary for executing its
inspection laws; and the net produce of all duties and imposts laid by
any State on imports or exports shall be for the use of the treasury of
the United States; _and all such laws shall be subject to the revision
and control of the Congress_.” Here, again, is a similar magistral
power accorded to Congress; and as if still further to deprive the
States of their much vaunted sovereignty, the laws which they make with
the consent of Congress are expressly declared to be subject “to the
revision and control of the Congress.” There is still another instance.
According to the Constitution, “Full faith and credit shall be given
in each State to the public acts, records, and judicial proceedings of
every other State”; but here mark the controlling power of Congress,
which is authorized to “prescribe the manner in which such acts,
records, and proceedings shall be proved, and the effect thereof.”
There are five other provisions of the Constitution by which its
supremacy is positively established. (1.) “The citizens of each State
shall be entitled to all privileges and immunities of citizens in the
several States.” As Congress has the exclusive power to establish “an
uniform rule of naturalization,” it may, under these words of the
Constitution, secure for its newly entitled citizens “all privileges
and immunities of citizens in the several States,” in defiance of
State Rights. (2.) “New States may be admitted _by the Congress_
into this Union.” According to these words, the States cannot even
determine their associates, but are dependent in this respect upon the
will of Congress. (3.) Not content with taking from the States these
important functions of sovereignty, it is solemnly declared that the
Constitution, and the laws of the United States made in pursuance
thereof, and all treaties under the authority of the United States,
“SHALL BE THE SUPREME LAW OF THE LAND,--_anything in the Constitution
or laws of any State to the contrary notwithstanding_.” Thus are
State Rights again subordinated to the National Constitution, which
is erected into the paramount authority. (4.) This is done again by
another provision, which declares that “_the members of the several
State Legislatures_, and all executive and judicial officers both of
the United States and of _the several States_, shall be bound by oath
or affirmation to support this Constitution”; so that not only State
laws are subordinated to the National Constitution, but the makers of
State laws and all other State officers are constrained to declare
allegiance to this Constitution, thus placing the State, alike through
its acts and its agents, in complete subordination to the sovereignty
of the United States. (5.) This sovereignty is further proclaimed
in the solemn injunction, that “the United States shall guaranty to
every State in this Union a republican form of government, and shall
protect each of them against invasion.” Here are duties of guaranty and
protection imposed upon the United States, by which their position is
fixed as the supreme power. There can be no such guaranty without the
implied right to examine and consider the governments of the several
States, and there can be no such protection without a similar right to
examine and consider the condition of the several States, subjecting
them to the rightful supervision and superintendence of the National
Government.
Thus, whether we regard the large powers vested in Congress, the
powers denied to the States absolutely, the powers denied to the
States without the consent of Congress, or those other provisions
which accord supremacy to the United States, we find the pretension of
State sovereignty without foundation, except in the imagination of its
partisans. Before the Constitution such sovereignty may have existed;
it was declared in the Articles of Confederation; but since then it
has ceased. It has disappeared and been lost in the supremacy of the
National Government, so that it can no longer be recognized. Perverse
men, insisting that it still existed, and weak men, mistaking the
shadow of former power for the reality, have made arrogant claims in
its behalf. When the Constitution was proclaimed, and George Washington
took his oath to support it as President, our career as a nation began,
with all the unity of a nation. The States remained as living parts of
the body, important to the national strength, and essential to those
currents which maintain national life, but plainly subordinate to the
United States, which then and there stood forth a nation, one and
indivisible.
* * * * *
The new Government had hardly been inaugurated before it was disturbed
by the pestilent pretension of State Rights, which has never ceased to
disturb it since. Discontent with the treaty between the United States
and Great Britain, negotiated by that purest patriot, John Jay, under
instructions from Washington, in 1794, led Virginia, even at that
early day, to commence an opposition to its ratification, _in the name
of State Rights_. Shortly afterwards appeared the famous resolutions
of Virginia and of Kentucky, usually known as the “Resolutions of
’98,” declaring that the National Government was founded on compact
between the States, and claiming for the States the right to sit
in judgment on the National Government, and to interpose, if they
thought fit: all this, as you will see, _in the name of State Rights_.
This pretension increased, till, at last, on the mild proposition to
attach a prospective prohibition of Slavery as a condition to the
admission of Missouri into the Union as a new State, the opposition
raged furiously, even to the extent of menacing the existence of the
Union; and this, too, was done _in the name of State Rights_. Ten
years later the pretension took the famous form of Nullification,
insisting that the National Government was only a compact of States,
any one of which was free to annul an Act of Congress at its own
pleasure; and all this _in the name of State Rights_. For a succession
of years afterwards,--at the presentation of petitions against Slavery,
petitions for the recognition of Hayti, at the question of Texas, at
the Wilmot Proviso, at the admission of California as a Free State, at
the discussion of the Compromises of 1850, at the Kansas Question,--the
Union was menaced; and always _in the name of State Rights_. The
menace was constant; and it sometimes showed itself on small as well
as great occasions, but always _in the name of State Rights_. When it
was supposed that Fremont was about to be chosen President the menace
became louder, and mingling with it was the hoarse mutter of war; and
all this audacity was _in the name of State Rights_.
But in the autumn of 1860, on the election of Abraham Lincoln, the
case became much worse. Scarcely was the result known by telegraph,
before the country was startled by other intelligence, to the effect
that certain States at the South were about to put in execution the
long pending threat of Secession, of course _in the name of State
Rights_. First came South Carolina, which, by Ordinance adopted in a
State Convention, undertook to repeal the original Act by which the
Constitution was adopted in this State, and to declare that South
Carolina had ceased to be one of the States of the Union. At the
same time a Declaration of Independence was put forth by the State,
which proceeded to organize as an independent community. This example
was followed successively by other States, which, by formal Acts of
Secession, undertook to dissolve relations with the Union, always,
be it understood, _in the name of State Rights_. A new Confederation
was formed by these States, with a new Constitution, and Jefferson
Davis at its head; and the same oaths of loyalty by which the local
functionaries of all these States had been bound to the Union were now
transferred to this new Confederation, of course in utter violation
of the Constitution of the United States, but always _in the name of
State Rights_. The Ordinances of Secession were next maintained by
war, which, beginning with the assault upon Fort Sumter, convulsed the
whole country, till, at last, all the States of the new Confederation
were in open rebellion, which the Government of the United States is
now exerting its energies, mustering its forces, and taxing its people
to suppress. The original claim, _in the name of State Rights_, has
swollen to all the proportions of an unparalleled war, which, _in the
name of State Rights_, now menaces the national life.
The pretensions in the name of State Rights are not all told. While
the Ordinances of Secession were maturing, and before they were
yet consummated, Mr. Buchanan, who was then President, declined to
interfere, on the ground that what had been done was by States, and
that it was contrary to the theory of our Government “to coerce a
State,” thus making the pretension of State Rights the apology for
imbecility. Had the President then interfered promptly and loyally,
it cannot be doubted that this whole intolerable crime might have
been trampled out forever. And now, when it is proposed that Congress
shall organize governments in these States, which are absolutely
without loyal governments, we are met by the objection founded on State
Rights. The same disastrous voice which from the beginning of our
history has sounded in our ears still makes itself heard; but, alas!
it is now on the lips of friends. Just in proportion as it prevails,
it is impossible to establish the Constitution again throughout the
Rebel States. State Rights are fully triumphant, if, first, in their
name Rebel governments can be organized, and then again in their name
Congressional governments to replace the Rebel governments can be
resisted. If they can be employed, first to sever the States from the
Union, and then to prevent the Union from extending its power over
them, State Rights are at once sword and buckler to the Rebellion. It
was through the imbecility of Mr. Buchanan that the States were allowed
to use the sword: God forbid that now, through any similar imbecility
of Congress, they shall be allowed to use the buckler!
* * * * *
And here we are brought to the practical question destined to occupy
so much of public attention. It is proposed to bring the action of
Congress to bear directly upon the Rebel States. This may be by the
establishment of provisional governments under authority of Congress,
or simply by making the admission or recognition of the States depend
upon the action of Congress. The essential feature of the proposition
is, _that Congress shall assume jurisdiction of the Rebel States_. A
bill authorizing provisional governments in these States was introduced
into the Senate by Mr. Harris, of the State of New York, and was
afterwards reported from the Judiciary Committee of that body; but
it was left with unfinished business, when the late Congress expired
on the fourth of March. The opposition to this proposition, so far
as I understand it, assumes two forms: first, that these States are
always to be regarded as States, with much vaunted State Rights, and
therefore cannot be governed by Congress; and, secondly, that, if any
government is to be established over them, it must be simply a military
government, with a military governor appointed by the President, as
is the case with Tennessee and North Carolina. But State Rights are
as much disturbed by a military government as by a Congressional
government. The local government is as much set aside in one case as
in the other. If the President, within State limits, can proceed to
organize a military government to exercise all the powers of the State,
surely Congress can proceed to organize a civil government within the
same limits for the same purpose; nor can any pretension of State
Rights be effective against Congress more than against President.
Indeed, the power belongs to Congress by a higher title than it belongs
to President: first, because a civil government is more in harmony with
our institutions, and, wherever possible, is required; and, secondly,
because there are provisions of the Constitution under which this power
is clearly derived.
Assuming, then, that the pretension of State Rights is as valid
against one form of government as against the other, and still further
assuming, that, in the case of military governments, this pretension
is practically overruled by the President at least, we are brought
again to consider its efficacy when advanced against Congressional
governments.
It is argued, that the Acts of Secession are all inoperative and void,
and therefore the States continue precisely as before, with their local
constitutions, laws, and institutions in the hands of traitors, but
totally unchanged, and ready to be quickened into life by returning
loyalty. Such, I believe, is a candid statement of the pretension for
State Rights against Congressional governments, which, it is argued,
cannot be substituted for the State governments.
To prove that the Rebel States continue precisely as before, we are
reminded that Andrew Johnson continued to occupy his seat in the
Senate after Tennessee had adopted its Act of Secession and embarked
in rebellion, and that his presence testified to the fact that rebel
Tennessee was still a State of the Union. No such conclusion is
authorized by this incident. There are two principles of Parliamentary
Law long ago fixed: first, that the power once conferred by an election
to Parliament is _irrevocable_, so that it is not affected by any
subsequent change in the constituency; and, secondly, that a member,
when once chosen, is _a member for the whole kingdom_, becoming
thereby, according to the words of an early author, not merely knight,
citizen, or burgess of the county, city, or borough which elected
him, but knight, citizen, or burgess of England.[194] If these two
principles are not entirely inapplicable to our political system, then
the seat of Andrew Johnson was not in any respect affected by the
subsequent madness of his State, nor can the legality of his seat be
any argument for his State.
We are also reminded, that, during the last session of Congress, two
Senators from Virginia represented that State in the Senate, and
the argument is pressed that no such representation would be valid,
if the State government of Virginia was vacated. This is a mistake.
Two things are established by the presence of these Senators in the
National Senate: first, that the old State government of Virginia is
extinct; and, secondly, that a new government has been set up in its
place. It was my fortune to hear one of these Senators, while earnestly
denouncing the idea that a State government could disappear. I could
not but think that he strangely forgot the principle to which he owed
his seat in the Senate, as men sometimes forget a benefactor.
It is true beyond question that the Acts of Secession are all
inoperative and void against the Constitution of the United States.
Though matured in successive conventions, sanctioned in various forms,
and maintained ever since by bloody war, these Acts, no matter by what
name they may be called, are all equally impotent to withdraw an acre
of territory or a single inhabitant from the rightful jurisdiction
of the nation. But while thus impotent against the United States,
it does not follow that they were equally impotent in the work of
self-destruction. Clearly, the Rebels, by utmost effort, could not
impair the national jurisdiction; but it remains to be seen if their
enmity did not act back with fatal rebound upon those very State Rights
in behalf of which they commenced their treason.
* * * * *
It is sometimes said that the States themselves committed _suicide_, so
that, as States, they ceased to exist, leaving their whole jurisdiction
open to the occupation of the United States under the Constitution.
This assumption is founded on the fact, that, whatever the existing
governments in these States, they are in no respect constitutional;
and since the State itself is known by the government with which its
life is intertwined, it must cease to exist constitutionally when its
government no longer exists constitutionally. It were better, perhaps,
to avoid the whole question of life or death in the State, and content
ourselves with inquiry into the condition of its government. It is
not easy to say what constitutes that entity we call a State; nor is
the discussion much advanced by any theory. To my mind it seems a
topic fit for the old schoolmen or a modern debating society; and yet,
considering the part it has already played, I shall be pardoned for a
brief allusion to it.
There are well-known words which ask and answer the question, “What
constitutes a _State_?” But the scholarly poet[195] was not thinking
of a “State” of the American Union. Indeed, this term is various in
use. Sometimes it stands for civil society itself. Sometimes it is
the general name for a political community, not unlike “nation” or
“country,”--as when our fathers, in the Resolution of Independence
which preceded the Declaration, spoke of “the _State_ of Great
Britain.” Sometimes it stands for the government,--as when Louis the
Fourteenth, at the height of his power, exclaimed, “The _State_, it
is I,”--or when Sir Christopher Hatton, in the famous farce of “The
Critic,” ejaculated,--
“I cannot but surmise,--forgive, my friend,
If the conjecture’s rash,--I cannot but
Surmise _the State_ some danger apprehends.”[196]
Among us the term is most known as the technical name for one of the
political societies composing our Union. When used in this restricted
sense, it must not be confounded with the same term when used in
a different and broader sense. But it is obvious that some persons
attribute to the one something of the qualities which can belong only
to the other. Nobody has suggested, I presume, that any “State” of our
Union has, through rebellion, ceased to exist as a _civil society_, or
even as a _political community_. It is only as a _State of the Union_,
armed with State Rights, or at least as a _local government_, annually
renewing itself, as the snake its skin, that it can be called in
question. But it is vain to challenge for the technical “State,” or for
the annual government, that immortality which belongs to civil society.
The one is an artificial body, the other is a natural body; and while
the former, overwhelmed by insurrection or war, may change or die, the
latter can change or die only with the extinction of the community
itself, whatever its name or its form.
It is because of confusion in the use of this term that there has been
so much confusion in the political controversies where it has been
employed. But nowhere has this confusion led to greater absurdity than
in the pretension recently made in the name of State Rights,--as if
it were reasonable to claim for a technical “State” of the Union that
immortality belonging to civil society.
From approved authorities it appears that a “State,” even in a broader
signification, may lose its life. Dr. Phillimore, in his recent work
on International Law, says: “A State, like an individual, may die,”
and among the various ways, he says, “by its submission, and the
donation of itself, as it were, to another country.”[197] But in
the case of our Rebel States there has been a plain submission and
donation of themselves, _effective, at least, to break the continuity
of government_, if not to destroy that immortality which is claimed.
Nor can it make any difference, in breaking this continuity, that the
submission and donation, constituting a species of attornment, are to
enemies at home rather than to enemies abroad,--to Jefferson Davis
rather than to Louis Napoleon. The thread is snapped in one case as
much as in the other.
But _change of form_ in the actual government may be equally effective.
Cicero speaks of change so complete as “to leave no image of a State
behind.” This is precisely what has been done throughout the whole
Rebel region: no image of a _constitutional_ State is left behind.
Another authority, Aristotle, whose words are always weighty, says,
that, _the form of the State being changed, the State is no longer
the same_, as the harmony is not the same when we modulate out of the
Dorian mood into the Phrygian. But, if ever an unlucky people modulated
out of one mood into another, it was our Rebels, when they undertook
to modulate out of the harmonies of the Constitution into their bloody
discords.
Without stopping further for these diversions, I content myself with
the testimony of Edmund Burke, who, in a striking passage, which seems
to have been written for us, portrays the extinction of a political
community; but I quote his eloquent words rather for suggestion than
authority.
“In a state of rude Nature there is no such thing as a
people. A number of men in themselves have no collective
capacity. The idea of a people is the idea of a corporation.
It is wholly artificial, and made, like all other legal
fictions, by common agreement. What the particular nature of
that agreement was is collected from the form into which the
particular society has been cast. Any other is not _their_
covenant. _When men, therefore, break up the original compact
or agreement which gives its corporate form and capacity to
a state, they are no longer a people, they have no longer a
corporate existence_, they have no longer a legal coactive
force to bind within, nor a claim to be recognized abroad.
They are a number of vague, loose individuals, and nothing
more. With them all is to begin again. Alas! they little
know how many a weary step is to be taken before they
can form themselves into a mass which has a true politic
personality.”[198]
If that great master of eloquence could be heard, who can doubt that
he would stamp our Rebel States as senseless communities who have
sacrificed that corporate existence which makes them living, component
members of our Union of States?
* * * * *
Again, it is sometimes said that the States, by flagrant treason,
have _forfeited_ their rights as States, so as to be civilly dead.
It is a patent and indisputable fact, that this gigantic treason was
inaugurated with all the forms of law known to the States; that it
was carried forward not only by individuals, but also by States, so
far as States can perpetrate treason; that the States pretended to
withdraw bodily, in their corporate capacities; that the Rebellion, as
it showed itself, was _by_ States, as well as _in_ States; that it was
by the governments of States, as well as by the people of States; and
that, to the common observer, the crime was consummated by the several
corporations, as well as by the individuals of whom they were composed.
From this fact, obvious to all, it is argued, that, since, according
to Blackstone, a traitor “hath abandoned his connections with society,
and hath no longer any right to those advantages which before belonged
to him purely as a member of the community,”[199] by the same principle
the traitor State is no longer to be regarded as a member of the Union.
But it is not necessary, on the present occasion, to insist on the
application of any such principle to States.
* * * * *
Again, it is said that the States by their treason and rebellion,
levying war upon the National Government, have _abdicated_ their places
in the Union; and here the argument is upheld by the historic example
of England at the Revolution of 1688, when, on the flight of James and
the abandonment of his kingly duties, the two Houses of Parliament
voted, that the monarch, “having violated the fundamental laws, and
having withdrawn himself out of this kingdom, _has abdicated the
government_, and that the throne is thereby vacant.”[200] But it is not
necessary for us to rely on any allegation of abdication, applicable as
it may be.
* * * * *
It only remains that we should see things as they are, and not seek
to substitute theory for fact. On this important question I discard
all theory, whether of State suicide, or State forfeiture, or State
abdication, on the one side, or of State Rights, immortal and
unimpeachable, on the other side. Such discussions are only endless
mazes, in which a whole Senate may be lost. And discarding all
theory, I discard also the jural question, whether, for instance,
the Rebel States, while the Rebellion is flagrant, are _de jure_
States of the Union, with all the rights of States. It is enough,
that, for the time being, _and in the absence of a loyal government_,
they can take no part and perform no function in the Union, _so that
they cannot be recognized by the National Government_. The reason
is plain. Since there are in these States no local functionaries
bound by constitutional oaths, there are, in fact, no constitutional
functionaries; and as the State Government is necessarily composed
of such functionaries, there can be no State Government. Thus, for
instance, in South Carolina, Pickens and his associates may call
themselves Governor and Legislature, and in Virginia Letcher and his
associates may call themselves Governor and Legislature; but we cannot
recognize them as such. Therefore to all pretensions in behalf of State
governments in the Rebel States I oppose the simple FACT, that, for the
time being, no such governments exist. The broad spaces once occupied
by those governments are now abandoned and vacated.
That loyal Senator, Andrew Johnson,--faithful among the faithless, the
Abdiel of the South,--began his attempt to reorganize Tennessee by an
address, as early as the 18th of March, 1862, in which he made use of
these words:--
“I find most, if not all, of the offices, both State and
Federal, _vacated, either by actual abandonment or by the
action of the incumbents, in attempting to subordinate their
functions_ to a power in hostility to the fundamental law of
the State and subversive of her national allegiance.”[201]
In employing the word “vacated” Mr. Johnson hit upon the very term
which, in the famous Resolution of 1688, was held most effective in
dethroning King James. After declaring that he had abdicated the
government, it was added, “that the throne is thereby _vacant_”; on
which Macaulay happily remarks:--
“The word _abdication_ conciliated politicians of a more timid
school.… To the real statesman the simple important clause was
that _which declared the throne vacant_; and if that clause
could be carried, he cared little by what preamble it might be
introduced.”[202]
The same simple principle is now in issue. It is enough that the Rebel
States be declared _vacated_, as _in fact_ they are, by all local
government which we are bound to recognize: so that the way is open to
the exercise of a rightful jurisdiction.
* * * * *
Here the question occurs, How shall this rightful jurisdiction be
established in the vacated State? Some there are, so impassioned
for State Rights, and so anxious for forms, even at the expense of
substance, that they insist upon the instant restoration of the
old State governments in all their parts, through the agency of
loyal citizens, who, meanwhile, must be protected in this work of
restoration. But, assuming that all this is practicable, as it clearly
is not, it attributes to the loyal citizens of a Rebel State, however
few in numbers,--it may be an insignificant minority,--a power clearly
inconsistent with the received principle of popular government, that
the majority must rule. The thirteen voters of Old Sarum were allowed
to return two members of Parliament, because this place,--once a Roman
fort, and afterwards a sheep-walk,--many generations before, at the
early constitution of the House of Commons, had been entitled to
this representation; but the argument for State Rights assumes that
all these rights may be lodged in voters as few in number as ever
controlled a rotten borough of England.
Pray, admitting that an insignificant minority is to organize the
new government, how shall it be done, and by whom shall it be set in
motion? In putting these questions, I open the difficulties. As the
original government has ceased to exist, and there are none who can be
its legal successors so as to administer the requisite oaths, it is not
easy to see how the new government can be set in motion, without resort
to some revolutionary proceeding, instituted either by the citizens or
by the military power,--unless Congress, in the exercise of its plenary
authority, should undertake to organize the new jurisdiction.
But every revolutionary proceeding is to be avoided. It is within the
recollection of all familiar with our history, that our fathers, while
regulating the separation of the Colonies from the parent country, were
careful that all should be done according to forms of law, so that
_the thread of legality_ should continue unbroken. To this end the
Continental Congress interfered by supervising direction. But the Tory
argument denied the power of Congress then as earnestly as now. Mr.
Duane, of the Continental Congress, made himself its mouthpiece.
“_Congress ought not to determine a point of this sort, about
instituting government._ What is it to Congress how justice is
administered? You have no right to pass the resolution, any
more than Parliament has. How does it appear that no favorable
answer is likely to be given to our petitions?”[203]
In spite of this argument, the Congress of that day undertook,
by formal resolutions, to indicate the process by which the new
governments should be constituted.[204]
If we seek for the principle which entered into this proceeding of the
Continental Congress, we find it in the idea that nothing can be left
to illegal or informal action, but that all must be done according
to rules of constitution and law previously ordained. Perhaps this
principle has never been more distinctly or powerfully enunciated than
by Mr. Webster, in his speech against the Dorr Constitution in Rhode
Island. According to him, this principle is a fundamental part of what
he calls our American system, under which the right of suffrage is
prescribed by _previous law_, including its qualifications, the time
and place of its exercise, and the manner of its exercise; and then,
again, the results are certified to the central power by some certain
rule, _by some known public officers_, in some clear and definite form,
thus accomplishing two things: first, that every man entitled to vote
may vote; secondly, that his vote may be sent forward and counted, so
that practically he may exercise his part of sovereignty in common with
his fellow-citizens. Such, according to Mr. Webster, are minute forms
which must be followed, if we would impart to the result the crowning
character of law. And here are other positive words from him on this
important point.
“We are not to take the will of the people from public
meetings, nor from tumultuous assemblies, by which the timid
are terrified, the prudent are alarmed, and by which society is
disturbed. These are not American modes of signifying the will
of the people, and they never were.”
“Is it not obvious enough, that men cannot get together and
count themselves, and say they are so many hundreds and so
many thousands, and judge of their own qualifications, and
call themselves the people, and set up a government? _Why,
another set of men, forty miles off, on the same day, with the
same propriety, with as good qualifications, and in as large
numbers, may meet and set up another government._”
“When, in the course of events, it becomes necessary to
ascertain the will of the people on a new exigency or a new
state of things or of opinion, _the legislative power provides
for that ascertainment by an ordinary act of legislation_.”
“What do I contend for? I say that the will of the people must
prevail, when it is ascertained; but there must be _some legal
and authentic mode of ascertaining that will_, and then the
people may make what government they please.”
“All that is necessary here is, that the will of the people
should be ascertained by some regular rule of proceeding,
_prescribed by previous law_.”
“But the law and the Constitution, the whole system of American
institutions, do not contemplate a case in which a resort will
be necessary to proceedings _aliunde_, or _outside of the law
and the Constitution_, for the purpose of amending the frame of
government.”[205]
Happily, we are not constrained to any such revolutionary proceeding.
The new governments can all be organized by Congress, which is the
natural guardian of the people, without any immediate government, and
within the jurisdiction of the National Constitution. Indeed, with
the State governments already _vacated_ by Rebellion, the Constitution
becomes, for the time, the supreme and only law, binding alike on
President and Congress, so that neither can establish any law or
institution incompatible with it; and the whole Rebel region, deprived
of all local government, lapses under the exclusive jurisdiction of
Congress, precisely as any other territory,--or, in other words, the
negation of the local government leaves the whole vast region without
any other government than Congress, unless the President should
undertake to govern it by military power. Startling as this proposition
may seem, especially to all who believe that there is a “divinity doth
hedge” a State hardly less than a king, it will appear, on careful
consideration, to be as well founded in the Constitution as it is
simple and natural, while it affords easy and constitutional solution
to all present embarrassments.
I have no theory to maintain, but only the truth; and in presenting
this argument for Congressional government I simply follow teachings
which I cannot control. The wisdom of Socrates, in the words of Plato,
has aptly described these teachings, when he says,--
“These things, as I affirm, are held and bound (though it is
somewhat rude to say so) in reasons of iron and adamant, as
would really appear to be the case,--so that, unless you, or
some one stronger than you, can break them, it is not possible
that any one who says otherwise than as I now say can speak
correctly; for my statement is always the same,--that I know
not how these things are, but that of all the persons with
whom I have ever conversed, as now with you, no one who says
otherwise can avoid being ridiculous.”[206]
Show me that I am wrong, that this conclusion is not founded in the
Constitution, and is not sustained by reason, and I shall at once
renounce it; for, in the present condition of affairs, there can be
no pride of opinion which must not fall at once before the sacred
demands of country. Not as partisan, not as advocate, do I make this
appeal, but simply as citizen, seeking, in all sincerity, to offer my
contribution to the establishment of that policy by which Union and
Peace may be restored.
* * * * *
Looking at the origin of this power in Congress, we find that it comes
from three distinct fountains, any one of which is ample to supply it.
Three fountains, generous and hospitable, are found in the Constitution
ready for this occasion.
_First._ From the necessity of the case, _ex necessitate rei_, Congress
must have jurisdiction over every portion of the United States _where
there is no other government_; and since in the present case there is
no other government, the whole region falls within the jurisdiction
of Congress. This jurisdiction is incident, if you please, to that
guardianship and eminent domain belonging to the United States over all
its territory and the people thereof, and springing into activity when
the local government ceases. It can be questioned only in the name of
the local government; but since this government has disappeared in the
Rebel States, the jurisdiction of Congress is uninterrupted there. The
whole broad Rebel region is _tabula rasa_, or “a clean slate,” where
Congress, under the Constitution of the United States, may write the
laws. In adopting this principle, I follow the authority of the Supreme
Court of the United States in determining the jurisdiction of Congress
over the Territories. Here are the words of Chief-Justice Marshall:--
“Perhaps the power of governing a Territory belonging to the
United States, which has not, by becoming a State, acquired
the means of self-government, _may result necessarily from the
facts that it is not within the jurisdiction of any particular
State_, and is within the power and jurisdiction of the United
States. The right to govern may be the inevitable consequence
of the right to acquire territory.”[207]
If the right to govern may be the inevitable consequence of the right
to acquire territory, surely, and by much stronger reason, this right
must be the inevitable consequence of the sovereignty of the United
States, wherever there is no local government.
_Secondly._ The jurisdiction may also be derived from the _Rights
of War_, which surely are not less abundant for Congress than for
President. If the President, disregarding the pretension of State
Rights, can appoint military governors within the Rebel States to serve
a temporary purpose, who can doubt that Congress can exercise a similar
jurisdiction? That of the President is derived from the war powers;
but these are not sealed to Congress. If it be asked, where in the
Constitution such powers are bestowed upon Congress, I reply, that they
are found precisely where the President now finds his powers. But it is
clear that the powers to “declare war,” to “suppress insurrections,”
and to “support armies” are all ample for this purpose. It is Congress
that conquers, and the same authority that conquers must govern. Nor
is this authority derived from any strained construction; it springs
from the very heart of the Constitution. It is among those powers,
latent in peace, which war and insurrection call into being, but as
intrinsically constitutional as any other power.
Even if not conceded to the President, these powers must be conceded
to Congress. Would you know their extent? They are found in the
authoritative texts of Public Law,--in the works of Grotius, Vattel,
and Wheaton. They are the powers conceded by civilized society to
nations at war, known as Rights of War,--at once multitudinous and
minute, vast and various. It would be strange, if Congress could
organize armies and navies to conquer, and could not also organize
governments to protect.
De Tocqueville, who saw our institutions with so keen an eye, remarked,
that, since, in spite of all political fictions, the preponderating
power resided in the States and not in the nation, a civil war here
would be “nothing but foreign war in disguise.”[208] Of course the
natural consequence would be to give the nation, in such a civil war,
all the rights it would have in a foreign war. And this conclusion from
the observation of the ingenious publicist has been practically adopted
by the Supreme Court of the United States, in those recent cases where
this tribunal, after most learned argument, followed by most careful
consideration, adjudged, that, since the Act of Congress of July 13,
1861, the nation has been waging “a _territorial_ civil war,” in which
all property afloat, belonging to a resident of the _belligerent
territory_, is liable to capture and condemnation as lawful prize. But,
surely, if the nation may stamp upon all residents in this _belligerent
territory_ the character of foreign enemies, so as to subject ships
and cargoes to the penalties of confiscation, it may perform the milder
service of making all needful rules and regulations for the government
of this territory under the Constitution, so long as requisite for the
sake of peace and order; and since the object of war is “indemnity for
the past and security for the future,” it may do everything necessary
to make these effectual. But it will not be enough to crush the
Rebellion; its terrible root must be exterminated, so that it may no
more flourish in blood.
_Thirdly._ There is another source for this jurisdiction common alike
to Congress and the President. It is found in the constitutional
provision, that “the United States shall guaranty to every State in
this Union a republican form of government, and shall protect each of
them against invasion.” Here, be it observed, are words of guaranty
and an obligation of protection. In the original concession to the
United States of this twofold power there was open recognition of
the ultimate responsibility and duty of the National Government,
_conferring jurisdiction above all pretended State Rights_; and now the
occasion has come for the exercise of this twofold power thus solemnly
conceded. The words of twofold power and corresponding obligation are
plain, and beyond question. If there be any ambiguity, it is only in
what constitutes a republican form of government. But for the present
this question does not arise. It is enough that a wicked rebellion
has undertaken to detach certain States from the Union, and to take
them beyond its protection and sovereignty, with the menace of seeking
foreign alliance and support, even at the cost of every distinctive
institution. It is well known that _Mr. Madison anticipated this
precise danger from Slavery, and upheld this precise grant of power in
order to counteract the danger_. His words, which will be found in a
yet unpublished document produced by Mr. Collamer in the Senate, seem
prophetic.
Among the defects he remarked in the old Confederation was what he
called “want of guaranty to the States of their constitutions and laws
_against internal violence_.” In showing why this guaranty was needed,
he says, that, “according to republican theory, right and power, being
both vested in the majority, are held to be synonymous; according to
fact and experience, a minority may, in an appeal to force, be an
overmatch for the majority”; and he then adds, in words of wonderful
prescience, “_Where Slavery exists, the republican theory becomes still
more fallacious_.”[209] This was written in April, 1787, before the
meeting of the Convention that formed the National Constitution. Here
is the origin of the very clause in question. The danger which this
statesman foresaw is now upon us. When a State fails to maintain a
republican government, _with officers sworn according to requirement
of the Constitution_, it ceases to be a constitutional State. The very
case contemplated by the Constitution has arrived, and the National
Government is invested with plenary powers, whether of peace or war.
There is nothing in the storehouse of peace, and there is nothing in
the arsenal of war, it may not employ in the maintenance of this solemn
guaranty, and in the extension of that protection against invasion
to which it is pledged. But this extraordinary power carries with it
corresponding duty. Whatever shows itself dangerous to a republican
form of government must be removed without delay or hesitation; and if
the evil be Slavery, our action will be bolder when it is known that
the danger was foreseen.
In reviewing these three sources of power, I know not which is most
complete. Either is ample alone; but the three together are three times
ample. Thus out of this triple fountain, or, if you please, by this
triple cord, do I educe the power of Congress over the vacated States.
* * * * *
There are yet other words of the Constitution which cannot be
forgotten. “New States may be admitted by the Congress into this
Union.” Assuming that the Rebel States are no longer _de facto_ States
of this Union, but that the territory occupied by them is within
the jurisdiction of Congress, then these words become completely
applicable. It is for Congress, in such way as it shall think best,
to regulate their return to the Union, whether in time or manner.
No special form is prescribed. But the vital act must proceed from
Congress. Here again is another testimony to that Congressional power,
which, under the Constitution, will restore the Republic.
* * * * *
Against this power I have heard nothing which can be called argument.
There are objections, originating chiefly in the baneful pretension
of State Rights; but these objections are animated by prejudice
rather than reason. Assuming the impeccability of a State, and openly
declaring that States, like kings, can do no wrong, while, like kings,
they wear “the round and top of sovereignty,” politicians treat them
with most mistaken forbearance and tenderness, as if these Rebel
corporations could be dandled into loyalty. At every suggestion of
rigor, State Rights are invoked; and we are vehemently told not to
destroy the States, when all that Congress proposes is simply to
recognize the actual condition of the States, and undertake their
temporary government by providing for the condition of political
syncope into which they have fallen, and during this interval
substitute its own constitutional powers for the unconstitutional
powers of the Rebellion. Congress will blot no star from the flag,
nor will it obliterate any State liabilities; but it will seek,
according to its duty, in the best way, to maintain the great and real
sovereignty of the Union, by upholding the flag unsullied, and by
enforcing everywhere within its jurisdiction the supreme law of the
Constitution.
At the close of an argument already too long drawn out, I shall not
stop to array the considerations of reason and expediency in behalf
of this jurisdiction; nor shall I dwell on the inevitable influence
it must exercise over Slavery, which is the motive of the Rebellion.
To my mind nothing can be clearer, as a proposition of Constitutional
Law, than that everywhere within the exclusive jurisdiction of the
National Government Slavery is impossible. The argument is as brief
as it is unanswerable. Slavery is so odious that it can exist only by
virtue of positive law, plain and unequivocal; but no such words can
be found in the Constitution; therefore Slavery is impossible within
the exclusive jurisdiction of the National Government. For many years
I have had this conviction, and have constantly maintained it. I am
glad to believe that it is implied, if not expressed, in the Chicago
Platform. Mr. Chase, among our public men, is known to accept it
sincerely. Thus Slavery in the Territories is unconstitutional; but
if the Rebel territory falls under the exclusive jurisdiction of the
National Government, then Slavery becomes impossible there. In a legal
and constitutional sense, it must die at once. The air is too pure
for a slave. I cannot doubt that this great triumph has been already
won. The moment that the States fell, Slavery fell also; so that, even
without any proclamation of the President, Slavery ceased to have legal
and constitutional existence in every Rebel State.
Even if we hesitate to accept this important conclusion, which
treats Slavery within the Rebel States as already dead in law
and Constitution, it cannot be doubted that by the extension of
Congressional jurisdiction, as now proposed, many difficulties will be
removed. Holding every acre of soil and every inhabitant within its
jurisdiction, Congress can easily do whatever is needful within Rebel
limits to assure freedom and save society. The soil may be divided
among patriot soldiers, poor whites, and freedmen; but above all things
the inhabitants may be saved from harm. Those citizens in the Rebel
States who throughout the darkness of the Rebellion have kept their
faith will be protected, and the freedmen rescued from hands that
threaten to cast them back into Slavery.
This jurisdiction, which is so completely practical, is grandly
conservative also. Had it been early recognized that Slavery depends
exclusively upon the local government, and falls with that government,
who can doubt that every Rebel movement would have been checked?
Tennessee and Virginia would never have stirred; Maryland and Kentucky
would never have thought of stirring; there would have been no talk
of neutrality between the Constitution and the Rebellion; and every
Border State would have been fixed in loyalty. Let it be established
in advance, as an inseparable incident to every Act of Secession,
that it is not only impotent against the National Constitution, but
that, on its occurrence, both soil and inhabitants lapse beneath the
jurisdiction of Congress, and no State will ever again pretend to
secede. The word “territory,” according to old and quaint etymology,
is said to come from _terreo_, to terrify, because it was a bulwark
against the enemy: _Territorium est quidquid hostis terrendi causâ
constitutum est_,[210]--“A territory is anything established for the
purpose of terrifying an enemy”; but I know of no way in which our
Rebel enemy would have been more terrified than by being told that
his course would inevitably precipitate his State into a territorial
condition. Let this principle be adopted, and it will contribute
essentially to that consolidation of the Union which was so near the
heart of Washington.
The necessity of this principle is apparent as a restraint upon the
lawless vindictiveness and inhumanity of the Rebel States, whether
against Union men or against freedmen. Union men in Virginia already
tremble at the thought of being delivered over to a State government
wielded by original Rebels pretending to be patriots; but the freedmen,
who have only recently gained their birthright, are justified in keener
anxiety, lest it should be lost as soon as won. Mr. Saulsbury, a
Senator from Delaware, with most instructive frankness, has announced
in public debate what the restored State governments will do. Assuming
that the local governments will be preserved, he predicts that in 1870
there will be more slaves in the United States than there were in 1860,
and then unfolds the reason as follows, all of which will be found in
the “Congressional Globe.”
“By your Acts you attempt to free the slaves. You will not have
them among you. You leave them where they are. Then what is
to be the result? I presume that local State governments will
be preserved. If they are, if the people have a right to make
their own laws and to govern themselves, they will not only
reënslave every person that you attempt to set free, but they
will reënslave the whole race.”[211]
Nor has the horrid menace of reënslavement proceeded from the Senator
from Delaware alone. It has been uttered even by Mr. Willey, the mild
Senator from Virginia, speaking in the name of State Rights. Newspapers
have taken up and repeated the revolting strain. That is to say, no
matter what may be done for Emancipation, whether by proclamation of
the President, or by Congress even, the State, resuming its place in
the Union, will, in the exercise of its sovereign power, reënslave
every colored person within its jurisdiction; and this is the menace
from Delaware, and even from regenerated Western Virginia! I am obliged
to Senators for their frankness. If additional motive were needed
for the urgency with which I assert the power of Congress, it would
be found in the pretensions thus savagely proclaimed. In the name of
Heaven, let us spare no effort to save the country from such shame, and
an oppressed people from the additional outrage.
As I quote Mr. Willey, I desire his precise words should be understood,
that the country may see the necessity of Congressional action. In
opposing Emancipation in the District of Columbia, he depicted the
unhappy fate of the freedman.
“Suppose they are emancipated, what then? Are they freemen in
fact? Will they have the rights of freemen? Sir, such an idea
is utterly fallacious. It will practically amount to nothing.
You cannot enact the slave into a freeman by bill in Congress.
A charter of his liberty may be engrossed, enrolled, and passed
into a law, with all the formalities of legislation, _and still
he must remain virtually a slave_.”[212]
Pursuing this same strain in a later debate on the Confiscation Bill,
which provided for Emancipation in certain cases, the Senator said:--
“Sir, what will be the necessary and inevitable result of this
policy, if it be carried into effect? It will be that Virginia,
by this increase of the free negro population under the
operation of this bill, will be driven not only to reënslave
those who may be manumitted under the operation of the present
bill, but also to reënslave the sixty thousand free negroes
already there.… Sir, the evil will be unendurable, and the
result will be the reënslavement of the slaves thus manumitted,
as well as those already free in our State.”[213]
I quote these words with extreme pain. Their author is not known as a
fanatic of Slavery. Therefore do they reveal the terrible peril against
which Congress must provide.
“Once free, always free.” This is a rule of law and an instinct
of humanity. It is a self-evident axiom, which only tyrants and
slave-traders have denied. The brutal pretension thus flamingly
advanced already puts us all on our guard. There must be no chance or
loophole for such intolerable, Heaven-defying iniquity. Alas! there
have been crimes in human history, but I know of none blacker than
this. There have been acts of baseness, but I know of none more utterly
vile. Against the possibility of such a sacrifice we must take a bond
which cannot be set aside; and this can be found only in the powers of
Congress.
Congress has already done much. Besides its noble Act of Emancipation,
it has provided that every person guilty of treason, or of inciting
or assisting the Rebellion, shall be “disqualified to hold any office
under the United States”[214]; and by another Act it has provided,
that every person, elected or appointed to any office of honor or
profit under the Government of the United States, shall, before
entering upon its duties, _take and subscribe an oath or affirmation_
that he has “never voluntarily borne arms against the United States
since he has been a citizen thereof,” or “voluntarily given aid,
countenance, counsel, or encouragement to persons engaged in armed
hostility thereto,” or “sought, or accepted, or attempted to exercise
the functions of any office whatever, under any authority or pretended
authority in hostility to the United States.”[215] This oath is a bar
against return to _national office_ of any taking part with the Rebels.
It shuts out in advance the whole criminal company. But these same
persons, rejected by the National Government, are left free to hold
office in the States; and here is another motive to further action by
Congress. The oath is well as far as it goes; more must be done in the
same spirit.
But enough. The case is clear. Behold the Rebel States in arms
against that paternal government to which, as the supreme condition
of constitutional existence, they owe duty and love; and behold all
legitimate powers, executive, legislative, and judicial, in these
States, abandoned and vacated. _It only remains that Congress should
enter and assume the proper jurisdiction._ If we are not ready to
exclaim with Burke, speaking of revolutionary France, “It is but an
empty space on the political map,” we may at least adopt the response
hurled back by Mirabeau, that this empty space is a volcano red with
flames and overflowing with lava-floods. But whether we deal with it as
“empty space” or as “volcano,” the jurisdiction, civil and military,
centres in Congress, to be employed for the happiness, welfare, and
renown of the American people,--changing Slavery into Freedom, and
present Chaos into a Cosmos of perpetual beauty and power.