Thirdly. But there is another source for this jurisdiction which is common alike to Congress and the President. It will be found in the constitutional provision, that "the United States shall guarantee to every State in tins 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 an 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 as to 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 the protection and sovereignty of the United States, 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 this danger. His words, which will be found in a yet unpublished document, produced by Mr. Collamer in the Senate, seem prophetic.
Among the defects which 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." This was written in April, 1787, before the meeting of the Convention that formed the National Constitution. But here we have 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 the requirements 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, which 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 a 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 would be 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 vindicate the power of Congress over the vacated Rebel States.
But 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 will be for Congress, in such way as it shall think best, to regulate the return of these States to the Union, whether in time or manner. No special form is prescribed. But the vital act must proceed from Congress. And here again is another testimony to that Congressional power which, under the Constitution, will restore the Republic.
UNANSWERABLE REASONS FOR CONGRESSIONAL GOVERNMENTS
Against this power I have heard no argument which can be called an argument. There are objections founded chiefly in the baneful pretension of State Rights; but these objections are animated by prejudice rather than reason. Assuming the impeccability of the States, and openly declaring that states, like kings, can do no wrong, while, like kings, they wear the "round and top of sovereignty," politicians treat them with most mistaken forbearance and tenderness, as if these Rebel corporations could be dandled into loyalty. At every suggestion of rigor State Rights are invoked, and we are vehemently told not to destroy the States, when 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 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.
At the close of an argument already too long drawn out, I shall not stop to array the considerations of reason and expediency in behalf of this jurisdiction; nor shall I dwell on the inevitable influence that it must exercise over Slavery, which is the motive of the Rebellion. To my mind nothing can be clearer, as a proposition of constitutional law, than that everywhere within the exclusive jurisdiction of the National Government Slavery is impossible. The argument is as brief as it is unanswerable. Slavery is so odious that it can exist only by virtue of positive law, plain and unequivocal; but no such words can be found in the Constitution. Therefore Slavery is impossible within the exclusive jurisdiction of the National Government. For many years I have had this conviction, and have constantly maintained it. I am glad to believe that it is implied, if not expressed, in the Chicago Platform. Mr. Chase, among our public men, is known to accept it sincerely. Thus Slavery in the Territories is unconstitutional; but if the Rebel territory falls under the exclusive jurisdiction of the National Government, then Slavery will be impossible there. In a legal and constitutional sense, it will die at once. The air will be too pure for a slave. I cannot doubt that this great triumph has been already won. The moment that the States fell, Slavery fell also; so that, even without any Proclamation of the President, Slavery had ceased to have a legal and constitutional existence in every Rebel State.
But even if we hesitate to accept this important conclusion, which treats Slavery within Rebel States as already dead in law and Constitution, it cannot be doubted, that, by the extension of the Congressional jurisdiction over the Rebel States, many difficulties will be removed. Holding every acre of soil and every inhabitant of these states within its jurisdiction, Congress can easily do, by proper legislation, whatever may be needful within Rebel limits in order to assure freedom and to save society. The soil may be divided among patriot soldiers, poor-whites, and freedmen. But above all things, the inhabitants may be saved from harm. Those citizens in the Rebel States, who, throughout the darkness of the Rebellion, have kept there faith, will be protected, and the freedmen will be rescued from the hands that threaten to cast them back into Slavery.
But this jurisdiction, which is so completely practical, is grandly conservative also. Had it been early recognized that Slavery depends exclusively upon the local government, and that it falls with that government, who can doubt that every Rebel movement would have been checked? Tennessee and Virginia would never have stirred; Maryland and Kentucky would never have thought of stirring. There would have been no talk of neutrality between the Constitution and the Rebellion, and every Border State would have been fixed in its loyalty. Let it be established in advance, as an inseparable incident to every Act of Secession, that it is not only impotent against the Constitution of the United States, but that, on its occurrence, both soil and inhabitants will lapse beneath the jurisdiction of Congress, and no State will ever again pretend to secede. The word "territory," according to an old and quaint etymology, is said to come from terreo, to terrify, because it was a bulwark against the enemy. A scholiast tells us, "Territorium est quicquid hostis terrendi causâ constitutum," "A territory is something constituted in order to terrify the enemy." But I know of no way in which our Rebel enemy would have been more terrified than by being told that his course would inevitably precipitate him into a territorial condition. Let this principle be adopted now, and it will contribute essentially to that consolidation of the Union which was so near the heart of Washington.
The necessity of this principle is apparent as a restraint upon the lawless vindictiveness and inhumanity of the Rebel States, whether against Union men or against freedmen. Union men in Virginia already tremble at the thought of being delivered over to a State government wielded by original Rebels pretending to be patriots. But the freedmen, who have only recently gained their birthright, are justified in a keener anxiety, lest it should be lost as soon as won. Mr. Saulsbury, a Senator from Delaware, with most instructive frankness, has announced, in public debate, what the restored State governments will do. Assuming that the local governments will be preserved, he predicts that in 1870 there will be more slaves in the United States than there were in 1860, and then unfolds the reason as follows,—all of which will be found in the "Congressional Globe"[29]:—