“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 inevitable consequence of the right to acquire territory.”[207]
If the right to govern may be the inevitable consequence of the right to acquire territory, surely, and by much stronger reason, this right must be the inevitable consequence of the sovereignty of the United States, wherever there is no local government.
Secondly. The jurisdiction may also be derived from the Rights of War, which surely are not less abundant for Congress than for 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 are 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; 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 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 are 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 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 States and not in the nation, a civil war here would be “nothing but foreign war in disguise.”[208] Of course the natural consequence would be to give the nation, in such a civil war, all the rights 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 most learned argument, followed by most careful consideration, adjudged, that, since the Act of Congress of July 13, 1861, the nation 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 nation may stamp upon all residents in this belligerent territory the character of foreign enemies, so as to subject 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 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 flourish in blood.
Thirdly. There is another source for this jurisdiction common alike to Congress and the President. It is found in the constitutional provision, that “the United States shall guaranty to every State in this 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 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 in 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 its protection and sovereignty, 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 the danger. His words, which will be found in a yet unpublished document produced by Mr. Collamer in the Senate, seem prophetic.
Among the defects 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.”[209] This was written in April, 1787, before the meeting of the Convention that formed the National Constitution. Here is 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 requirement 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, 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 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 is 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 educe the power of Congress over the vacated States.
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 is for Congress, in such way as it shall think best, to regulate their return to the Union, whether in time or manner. No special form is prescribed. But the vital act must proceed from Congress. Here again is another testimony to that Congressional power, which, under the Constitution, will restore the Republic.