And now, in this discussion, we are brought to the practical question
which is 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 the
authority of Congress, or simply by making the admission or recognition
of the States depend upon the action of Congress. The essential feature
of this 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 the 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 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 the President. Indeed, the power
belongs to Congress by a higher title than it belongs to the 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 the efficacy of this pretension when advanced against
Congressional governments.
It is argued that the Acts of Secession are all inoperative and void,
and that 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.
In order 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 the incident in question. 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 or burgess of the county or borough which elected him, but knight
or burgess of England.[18] 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 listen to one of these Senators while he earnestly
denounced the idea that a State government might 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
United States. 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 efforts, 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.