If we loot at the origin of this power in Congress, we shall find that
it comes from three distinct fountains, any one of which is ample to
supply it. Three fountains, generous and hospitable, will be 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 which belong to the United States with
regard to all its territory and the people thereof, and it comes into
activity when the local government ceases to exist. 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
natural consequence of the right to acquire territory."[27]
If the right to govern may be the natural consequence of the right to
acquire territory, surely, and by much stronger reason, this right must
be the natural consequence of the sovereignty of the United States
wherever there is no local government.
Secondly. This jurisdiction may also be derived from the _Rights of
War_, which surely are not less abundant for Congress than for the
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
will be 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; but 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 which
are 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 will be 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 the 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 State governments, and not in the National
Government, a civil war here "would be nothing but a foreign war in
disguise."[28] Of course the natural consequence would be to give the
National Government in such a civil war all the rights which 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 the
most learned argument, followed by the most careful consideration,
adjudged, that, since the Act of Congress of July 13th, 1861, the
National Government 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 National Government may stamp upon all residents in this
_belligerent territory_ the character of foreign enemies, so as to
subject their 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
may be 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 flaunt in blood.
Thirdly. But there is another source for this jurisdiction which is
common alike to Congress and the President. It will be found in the
constitutional provision, that "the United States shall guarantee to
every State in tins 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 an 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 as to
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 the protection and sovereignty of the United States, 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 this danger_. His words, which
will be found in a yet unpublished document, produced by Mr. Collamer in
the Senate, seem prophetic.
Among the defects which 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_." This was written in April, 1787, before the meeting
of the Convention that formed the National Constitution. But here we
have 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 the requirements
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, which 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 a 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 would be 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 vindicate the power of Congress over the vacated
Rebel States.
But 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 will be for Congress, in such way as it shall think best, to regulate
the return of these States to the Union, whether in time or manner. No
special form is prescribed. But the vital act must proceed from
Congress. And here again is another testimony to that Congressional
power which, under the Constitution, will restore the Republic.