And here the question occurs, How shall this rightful jurisdiction be
established in the vacated States? 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 seven voters of Old Sarum were allowed to return
two members of Parliament, because this place,--once a Roman fort, and
afterwards a sheepwalk,--many generations before, at the early casting
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 a resort to some
revolutionary proceeding, instituted either by the citizens or by the
military power,--unless Congress, in the exercise of its plenary powers,
should undertake to organize the new jurisdiction.
But every revolutionary proceeding is to be avoided. It will be 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 the forms of law, so
that the thread of _legality_ should continue unbroken. To this end the
Continental Congress interfered by a supervising direction. But the Tory
argument in that day denied the power of Congress as earnestly as it
denies this power now. Mr. Duane, of the Continental Congress, made
himself the mouthpiece of this denial:--
"_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?"[23]
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.[24]
If we seek, for our guidance, the principle which entered into this
proceeding of the Continental Congress, we shall find it in the idea,
that nothing must 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, requiring that
the right of suffrage shall be prescribed by _previous law_, including
its qualifications, the time and place of its exercise, and the manner
of its exercise; and then again, that the results are to be certified to
the central power by some certain rule, _by some known public officers_,
in some clear and definite form, to the end that two things may be done:
first, that every man entitled to vote may vote; secondly, that his vote
may he sent forward and counted, and so he may exercise his part of
sovereignty, in common with his fellow-citizens. Such, according to Mr.
Webster, are the 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 human 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."[25]