Lxiii.
It was therefore enough that the
Southern States were declared vacated, as in fact they were; and the road was open to the exercise of a rightful Federal jurisdiction,
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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
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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.
The last point is found in the Constitutional provision that ‘The
United States shall guarantee to every State in this Union a Republican form of government, and shall protect each of them against invasion.’
In these words, ‘guarantee’ and ‘obligation’ on the part of the
Federal Government, is found the recognition of the original concession it had of a power conferring jurisdiction above all pretended State rights.
And the occasion had come with the war, for the exercise of that twofold power of the national government which had been thus solemnly conceded.
He therefore remarks that—
All that Congress proposes is simply to recognize the actual condition of the States, and to undertake their temporary government, by providing for the condition of political syncope into which they have fallen; and, during this interval, to substitute its own constitutional powers for the unconstitutional powers of the Rebellion.
Of course, therefore, 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
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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.
