[451] until the period should arrive when they could claim their rights, as well-ordered communities, to again resume self-government under the aegis of a common protecting Constitution. The three sources of Congressional power during this interval of transition, he makes to consist, first, in the necessity of the case; for where there is no other government within a certain district of our territory, the jurisdiction must lie with Congress; for it is incident to the guardianship of the eminent domain which belongs to the United States wherever its people, or property, or territory exist. Secondly, this jurisdiction is also derived from the Rights of War. The power of the President to appoint Military Governors, was a War Power, and that was a Congressional Power; for among its prerogatives, the Constitution clearly enumerates ‘to declare war,’ ‘suppress insurrections,’ and ‘support armies.’ It is Congress that conquers, and the same authority that conquers, must govern. ‘Would you know,’ inquires Mr. Sumner, ‘the extent of these powers that must be conceded to Congress?’ He gives the following answer:
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.’ Of course the natural consequence would be to give the National Government in such a civil war, all the rights which it would
