In thus declaring an unhesitating preference for Congressional governments, I am obviously sustained by reason. But there is positive authority on this identical question. I refer to the recorded opinion of Chancellor Kent, as follows:—
"Though the Constitution vests the executive power in the President, and declares him Commander-in-Chief of the army and navy of the United States, these powers must necessarily be subordinate to the legislative power in Congress. It would appear to me to be the policy or true construction of this simple and general grant of power to the President, not to suffer it to interfere with those specific powers of Congress which are more safely deposited in the legislative department, and that the powers thus assumed by the President do not belong to him, but to Congress."[13]
Such is the weighty testimony of this illustrious master with regard to the assumption of power by the President, in 1847, over the Mexican ports in our possession. It will be found in the latest edition of his "Commentaries" published during the author's life. Of course, it is equally applicable to the recent assumptions within our own territory. His judgment is clear in favor of Congressional governments.
Of course, in ordinary times, and under ordinary circumstances, neither system of government would be valid. A State, in the full enjoyment of its rights, would spurn a military governor or a Congressional governor. It would insist that its governor should be neither military nor Congressional, but such as its own people chose to elect; and nobody would question this right. The President does not think of sending a military governor to New York; nor does Congress think of establishing a provisional government in that State. It is only with regard to the Rebel States that this question arises. The occasion, then, for the exercise of this extraordinary power is found in the Rebellion. Without the Rebellion, there would be no talk of any governor, whether military or Congressional.
STATE RIGHTS.
And here it becomes important to consider the operation of the Rebellion in opening the way to this question. To this end we must understand the relations between the States and the National Government, under the Constitution of the United States. As I approach this question of singular delicacy, let me say on the threshold, that for all those rights of the States which are consistent with the peace, security, and permanence of the Union, according to the objects grandly announced in the Preamble of the Constitution, I am the strenuous advocate, at all times and places. Never through any word or act of mine shall those rights be impaired; nor shall any of those other rights be called in question by which the States are held in harmonious relations as well with each other as with the Union. But while thus strenuous for all that justly belongs to the States, I cannot concede to them immunities inconsistent with that Constitution which is the supreme law of the land; nor can I admit the impeccability of States.
From a period even anterior to the Federal Constitution there has been a perverse pretension of State Rights, which has perpetually interfered with the unity of our government. Throughout the Revolution this pretension was a check upon the powers of Congress, whether in respect to its armies or its finances; so that it was too often constrained to content itself with the language of advice or persuasion rather than of command. By the Declaration of Independence it was solemnly declared that "these United Colonies are, and of right ought to be, free and independent States, and that, as such, they have full powers to levy war, to contract alliances, to establish commerce, and to do all other acts which independent States may of right do." Thus by this original charter the early colonies were changed into independent States, under whose protection the liberties of the country were placed.
Early steps were taken to supply the deficiencies of this government, which was effective only through the generous patriotism of the people. In July, 1778, two years after the Declaration, Articles of Confederation were framed, but they were not completely ratified by all the States till March, 1781. The character of this new government, which assumed the style of "The United States of America," will appear in the title of these Articles, which was as follows:—"Articles of Confederation and Perpetual Union between the States of New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia." By the second article it was declared, that "each State retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right which is not by this Confederation expressly delegated to the United States in Congress assembled." By the third article it was further declared, that "the said States hereby severally enter into a firm league of friendship with each other, for their common defence, the security of their liberties, and their mutual and general welfare." By another article, a "committee of the States, or any nine of them," was authorized in the recess to execute the powers of Congress. The government thus constituted was a compact between sovereign States,—or, according to its precise language, "a firm league of friendship" between these States, administered, in the recess of Congress, by a "committee of the States." Thus did State Rights triumph.
But its imbecility from this pretension soon became apparent. As early as December, 1782, a committee of Congress made an elaborate report on the refusal of Rhode Island, one of the States, to confer certain powers on Congress with regard to revenue and commerce. In April, 1783, an address of Congress to the States was put forth, appealing to their justice and plighted faith, and representing the consequence of a failure on their part to sustain the Government and provide for its wants. In April, 1784, a similar appeal was made to what were called "the several States," whose legislatures were recommended to vest "the United States in Congress assembled" with certain powers. In July, 1785, a committee of Congress made another elaborate report on the reason why the States should confer upon Congress powers therein enumerated, in the course of which it was urged, that, "unless the States act together, there is no plan of policy into which they can separately enter, which they will not be separately interested to defeat, and, of course, all their measures must prove vain and abortive." In February and March, 1786, there were two other reports of committees of Congress, exhibiting the failure of the States to comply with the requisitions of Congress, and the necessity for a complete accession of all the States to the revenue system. In October, 1786, there was still another report, most earnestly renewing the former appeals to the States. Nothing could be more urgent.
As early as July, 1782, even before the first report to Congress, resolutions were adopted by the State of New York, declaring "that the situation of these States is in a peculiar manner critical," and "that the radical source of most of our embarrassments is the want of sufficient power in Congress to effectuate that ready and perfect cooperation of the different States on which their immediate safety and future happiness depend." Finally, in September, 1786, at Annapolis, commissioners from several States, after declaring "the situation of the United States delicate and critical, calling for an exertion of the united virtue and wisdom of all the members of the Confederacy," recommended the meeting of a Convention "to devise such further provision as shall appear necessary to render the Constitution of the Federal Government adequate to the exigencies of the Union." In pursuance of this recommendation, the Congress of the Confederation proposed a Convention "for the purpose of revising the Articles of Confederation and Perpetual Union between the United States of America, and reporting such alterations and amendments of the said Articles of Confederation as the representatives met in such Convention shall judge proper and necessary to render them adequate to the preservation and support of the Union."