"These things are secured and bound, even if the expression be somewhat too rude, with iron and adamant; and unless you or some one more vigorous than you can break them, it is impossible for any one speaking otherwise than I now speak to speak well; since, for my part, I have always the same thing to say, that I know not how these things are, but that out of all with whom I have ever discoursed, as now, not one is able to say otherwise and to maintain himself."[26]
Show me that I am wrong,—that this conclusion is not founded in the Constitution, and is not sustained by reason,—and I shall at once renounce it; for, in the present condition of affairs, there can be no pride of opinion which must not fall at once before the sacred demands of country. Not as a partisan, not as an advocate, do I make this appeal; but simply as a citizen, who seeks, in all sincerity, to offer his contribution to the establishment of that policy by which Union and Peace may be restored.
THREE SOURCES OF CONGRESSIONAL POWER.
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.