'OUR DOMESTIC RELATIONS; OR, HOW TO TREAT THE REBEL STATES.'
In the Atlantic Monthly for October, 1863, is an article with the above caption, in which the author, we think, develops ideas and theories totally at variance with the spirit of our Government, and which, if acted upon, and followed to their legitimate results, tend to subvert that self-government which is the privilege and pride of the American citizen. The result of his reflection is, that the States which, more conveniently than accurately, are termed the rebel States, have practically become Territories, and as such are to be governed by Congress. Is this proposition true? Let us examine—not hastily, not rashly, not vindictively, or in a party spirit—but wisely, magnanimously, and lovingly, and see if there be not a truer conclusion and one more in accordance with the spirit of our republican Constitution.
When the rebel States (?) passed their respective ordinances of secession, what results flowed from the action? The political doctrine that the union of the States is not a mere confederation of separate States, but a consolidation, within the limits of the Constitution, of the different States, otherwise independent, into one nation, is now too well established to remain a subject of debate. We are not, therefore, members of a confederacy, but are a unit—one. It follows, as a matter of course, that no State can withdraw or hide itself from the control of the National Government. The ordinances of secession passed by the rebel States did not, therefore, affect the Federal authority. The broad and just ground taken by President Lincoln in his Inaugural Address was, that the rebel States were still in the Union; and it is, we apprehend, the only tenable ground of right upon which we can carry on the war in which we are now engaged. The Constitution of the United States requires (art. ii. sec. 3) that the President shall 'take care that the laws be faithfully executed.' When the present head of the executive came into office, in March, 1861, he found several of the States, having already seceded on paper, seeking to perfect their treason by 'the armed hand.' Lighthouses had been destroyed, or their beacon fires—the sentinels of the sea—shrouded in darkness, custom houses were given into rebel hands, the revenue cutters were surrendered, and deed followed deed in this dark drama of treason, until it was consummated by firing upon the unarmed Star of the West, while she was performing her errand of mercy, to relieve the hunger and reënforce the exhausted strength of the heroic little garrison of Fort Sumter. The plain and immediate duty of the President was, therefore, to call out the strength of the nation to assist him in 'taking care that the laws be faithfully executed.' And this brings us to the proposition that the Government is not engaged in a war of conquest with another nation, but in enforcing the laws in what is already a part of the Union.
The Constitution (art. ii. sec. 2) makes the President the 'commander-in-chief of the army and navy of the United States, and of the militia of the several States when called into the actual service of the United States.' In the President, and in him alone, supremely, is vested the authority which is to conduct the course of war. Congress has the war-making power, but war once brought into being (if we may be allowed the expression), the manner in which it shall be conducted rests with the executive. It is, of course, to be conducted in accordance with the laws of nations and of civilized warfare. The first step necessary to enable the President to enforce the laws in the seceded States is to put down the military power by which their execution is resisted. That is now being done. By the 'necessity of war,' then, the executive is authorized to take such measures as may be necessary to put down the rebellion; and though no power is given him to appoint Governors over the States in ordinary times, it is given him, indirectly, but as surely as if expressly granted, to be used in times of actual war, by the clause of the Constitution which we have just quoted, making him commander-in-chief of the national military force. Whenever the States, or any of them, cease to be debatable ground—that is, when the military force of the rebellion is put down, the military necessity ceases, and with it the authority of the President to appoint military governors. Nor is there danger of encroaching upon the liberties of the nation; for, as the power attaches to the President, not in his capacity as the civil head of the nation, but as the military commander-in-chief, it ceases the moment military opposition is overcome. The fear of the Atlantic author would seem to be ill grounded, for we cannot believe that any military force could be raised by a despotic executive who might endeavor to place himself in absolute power, and we think there is little danger that the Government may 'crystallize into a military despotism.' Would supplies be granted by Congress; or, if granted, would not the people of a country which has sprung to arms only to defend a free government, be strong enough to resist any single military despot? Let the history of the present rebellion, in which a population of only eight millions, and that in the least defensible States of the Union, has resisted for nearly three years the combined power of all the other States, with a population of more than twenty millions, answer the question. The Atlantic writer admits the propriety of appointing military governors in the cases of Mexico and California before the latter was admitted as a State, but denies it in the cases of the rebel States, because they are States, and therefore (as he says) within the civil jurisdiction. But at the period to which we refer, Congress had jurisdiction over both California and Mexico by the express provision of the Constitution (art. iv. sec. 3), 'the Congress shall have power to dispose of and make all needful rules and regulations concerning the territory or other property belonging to the United States.' If, then, the power of the President be admitted in the two cases referred to, it is even stronger in the cases of the rebel States, where no such power is given to Congress. And further it would seem that the act of admission to the Union would operate rather to take the Territory from under the jurisdiction of Congress, and give the right of government into the hands of the PEOPLE of the new State, even if their State officers did seek to betray them into treason. Our author asserts that 'there is no argument for military governors that is not equally strong for Congressional governments; but we suspect his mistake here, as, in fact, his whole theory comes from his neglect to note that this appointing power attaches to the President, not as the civil head of the nation, but as military commander-in-chief under the necessity of war.
To sum up the argument on this point, it stands thus: Neither Congress nor the President has power under the civil head to institute governments of their own in the rebel States: that power must arise, if at all, under the head of military necessity, and must attach to the commander-in-chief, viz., the President, and ceases the moment that necessity ceases. In the authority quoted from Chancellor Kent by the author of the Atlantic, we find nothing to shake our argument; for, though the power be, as the learned Chancellor says, 'to be exercised subordinate to the legislative powers of Congress,' still it is an executive power, and must be exercised by—must emanate from—the President. The same learned authority, from whose lucid and fascinating pages we enjoyed the first glimmerings of the 'gladsome light of jurisprudence,' says (vol. i. p. 264): 'The command and application of the public force, to execute the law, maintain peace, and resist foreign invasion, are powers so exclusively of an executive nature, and require the exercise of powers so characteristical of this department, that they have always been exclusively appropriated to it in every well-organized government upon earth.' Taking this provision of the Constitution, so interpreted by Chancellor Kent, as vesting the power exclusively in the executive, it only remains to be considered how far it is a necessity of war.
In all the rebel States there is a population, more or less dense, to be protected and governed; but what can a civil authority accomplish when the States are overrun by a military force which has so long defied the power of the army? Advancing as our armies conquer, and fleeing as they are overcome by the rebel hordes, it could accomplish nothing but its own ludicrous history and the fettering of the military power, which so eminently requires one secret and independent will. How little a military force so fettered by civil authorities could accomplish can hardly be fully realized but by those who, like the author, have summered and wintered upon the 'dark and bloody ground' of the rebellion. But, it will be asked, how are the rebel States to be governed when the military power of the rebellion is crushed, and the authority of the executive ceases with the necessity of war? No express power is given by the Constitution to Congress to govern any other territory than the District of Columbia, the dockyards, lighthouses, and lands ceded to the United States for similar purposes, and the territory not included in the several States, but belonging to the United States. Under these three heads is included all the territory over which Congress can claim jurisdiction by direct grant; and, by the Constitution (Amendments, art. x.), 'the powers not delegated to the United States, nor prohibited by it to the States, are reserved to the States respectively or to THE PEOPLE.' Unless, therefore, the rebel States have lapsed into Territories, Congress can have no authority over them, except the general powers which it may exercise over all the States of the Union. The question then arises, and it seems to be purely a legal one—have the rebel States lapsed into Territories?
We have already seen that the doctrine maintained by our Government is, that the rebel States have not, by their ordinances of secession, separated themselves from the Union, but that they are still in the Union. The ordinances of secession are, like any other unconstitutional law, even supposing them to have been the will of the people (of which we will speak hereafter), to be set aside by a competent tribunal, if brought to the test at all. Their paper treason, then (to commit a solecism), amounting only to so much waste of paper and ink, did the overt act of firing upon the flag of the United States operate more effectually to destroy the State identity? If they are incapable of separating themselves from the nation, and if, as is clearly the case, there is no power vested in the General Government to expel them from the Union, from what source does the power or act arise which destroys their identity? The rebel States are either in the Union or out of it. We cannot claim that they are in the Union for the purpose of enforcing submission, and then, when that object is accomplished, turn round and say they are out of it, and must be governed as Territories.
But it is a fixed fact, and history will so record it, that the voice of the people in the rebel States never concurred in the ordinances of secession. In the few cases where they were submitted to the popular vote, force was used to awe that vote into acquiescence; while in most cases they never were submitted to the form of such a vote; and why? Because the leaders in treason dared not trust the voice of the people: they knew too well that it would thunder a rebuke in their ears. They were merely the act of the individuals who were chosen as members of the several Legislatures, and who, in betrayal of their trust, sought to commit the States which they misrepresented to treason. In any one of the States which we have solecistically termed rebel States, we venture to assert that, if fairly and fully taken, the vote of the people at any time during the last five years, and now, would be, by a large majority, in favor of the Union. Wherever our armies have obtained a permanent footing, the people have, almost unanimously, given their expression of attachment to the old flag. Shall, then, the treason of those individuals who, for the time being, held the places of power in the rebel States, be construed to the prejudice of a whole people, who had no part nor lot in the crime, in face of the often declared law that a State cannot commit treason? If we turn to the fact that many, if not most of the citizens of the rebel States, have done treasonable acts under compulsion of those who were the leaders in the rebellion, we are met, at the very threshold, by no less an authority than Sir William Blackstone, who says (Bl. Commentaries, book iv. p. 21): 'Another species of compulsion or necessity is what our law calls duress per minias, or threats and menaces which induce fear of death or other bodily harm, and which take away, for that reason, the guilt of many crimes and misdemeanors, at least before the human tribunal. Therefore, in time of war or rebellion, a man may be justified in doing many treasonable acts by compulsion of the enemy or REBELS, which would admit of no excuse in the time of peace.' The fact that such violent compulsion was and still is used to overawe the Union sentiment of the South is patent. It has been and still is the cry, coming up on every breeze from that bloodstained land, that the leaders of the rebellion seek to crush, by whatever means, those who are
'Faithful among the faithless found.'