Chapter 7

This argument was prepared as a speech on the resolutions of February 11, 1862, entitled “State Rebellion State Suicide, Emancipation and Reconstruction”; but the tardy success of our arms and the press of business caused its postponement, until, during the recess of Congress, it was thought best to print it as an article in theAtlantic Monthly. It was much discussed. Hon. Montgomery Blair, at the time a member of the Cabinet, in a speech at Rockville, Maryland, October 3d, replied to it at length, insisting that it was “the keynote of the revolution,”—“the programme of the movement,”—presenting “the issue on which the Abolition party has resolved to rest its hopes of setting up its domination in this country”; and in opposition to this “programme” he placed “that which is presented by President Lincoln,” alleging that Mr. Sumner had directly arrayed himself against the President on a question of fundamental policy in the conduct of the war. TheNational Intelligencer, at Washington, in an elaborate leader, sustained the position of Mr. Blair.From this time forward, the discussion proceeded in the press, in public meetings, and in Congress, followed by the measures of Reconstruction, including especially the requirement by Congress of the colored suffrage in the reorganization of the Rebels and in their new Constitutions,[175]all of which assumed the power of Congress.

From this time forward, the discussion proceeded in the press, in public meetings, and in Congress, followed by the measures of Reconstruction, including especially the requirement by Congress of the colored suffrage in the reorganization of the Rebels and in their new Constitutions,[175]all of which assumed the power of Congress.

At this moment our domestic relations all hinge upon one question,—How to treat the Rebel States. No patriot citizen doubts the triumph of our arms inthe suppression of the Rebellion. Early or late triumph is inevitable,—perhaps by sudden collapse of the bloody imposture, or perhaps by slower and more gradual surrender. For ourselves, we are prepared for either alternative, and shall not be disappointed, if constrained to wait yet a little longer; but when the day of triumph comes, political duties will take the place of military. The victory won by our soldiers must be assured by wise counsels, so that its hard-earned fruits shall not be lost.

The relations of the States to the National Government must be carefully considered,—not too boldly, not too timidly,—that we may understand in what way or by what processthe transition from Rebel forms may be most surely accomplished. If I do not greatly err, it will be found that the powers of Congress, thus far so effective in raising armies and supplying moneys, will be important, if not essential, in fixing the conditions of perpetual peace. But there is one point on which there can be no question. The dogma and delusion of State Rights, as mischievously interpreted, which did so much for the Rebellion, must not be allowed to neutralize all that our arms have gained.

Already, in a remarkable instance, the President has treated the pretension of State Rights with proper indifference. Quietly and without much discussion, he has constituted military governments in the Rebel States, with governors nominated by himself: all of which testifies against the old delusion. Strange will it be, if this extraordinary power, amply conceded to the President, is denied to Congress. Practically, the whole question is opened here. Therefore to this aspect of it I ask your first attention.

Already four military governors have been appointed: one for Tennessee, one for South Carolina, one for North Carolina, and the other for Louisiana. So far as known, the appointment of each was by simple letter from the Secretary of War. But if this can be done in four States, where is the limit? It may be done in every Rebel State; and if not in every other State of the Union, it will be simply because the existence of a valid State government excludes the exercise of this extraordinary power. Assuming, that, as our arms prevail, it will be done in every Rebel State, we shall then haveelevenmilitary governors, all deriving authority from one source, ruling a population amounting to upwards of nine millions. And this imperatorial dominion, indefinite in extent, will also be indefinite in duration; for, if, under the Constitution and laws, it be proper to constitute such governors, it is clear that they may be continued without regard to time,—for years, if you please, as well as for weeks; and the whole region they are called to sway will be a military empire, with all powers, executive, legislative, and even judicial, derived from one man in Washington. Talk of “the one-man power!” Here it is with a vengeance. Talk of military rule! Here it is, in the name of a republic.

The bare statement of this case may put us on our guard. We may well hesitate to organize a single State under military government, when we see where such step leads. If you approve one, you must approve eleven, and the National Government may crystallize into military despotism.

In appointing military governors of States, we follow an approved example in certain cases beyond the jurisdiction of the National Constitution,—as in Californiaand Mexico, after their conquest, and before peace. It is evident that in these cases there was no constraint from the Constitution, and we were perfectly free to act according to the assumed exigency. It may be proper to set up military governors for a conquered country beyond our civil jurisdiction, and yet it may be questionable if we should undertake to set up such governors in States that we all claim to be within our civil jurisdiction. At all events, the two cases are different, so that it is not easy to argue from one to the other.

In Jefferson’s Inaugural Address, where he develops what he calls “the essential principles of our Government, and consequently those which ought to shape its administration,” he mentions “the supremacy of the civil over the military authority” as one of these “essential principles,” and then says:—

“These should be the creed of our political faith, the text of civil instruction, the touchstone by which to try the services of those we trust; and should we wander from them in moments of error or alarm, let us hasten to retrace our steps, and to regain the road which alone leads to peace, liberty, and safety.”[176]

Undertaking to create military governors of States, we reverse the policy of the Republic, as solemnly declared by Jefferson, and subject the civil to the military authority. If this has been done in patriotic ardor, without due consideration, in a moment of error or alarm, it only remains, that, according to Jefferson, we should “hasten to retrace our steps, and to regain the road which alone leads to peace, liberty, and safety.”

There is nothing new under the sun, and the militarygovernors we are beginning to appoint find a prototype in the Protectorate of Oliver Cromwell. After the execution of the King and the establishment of the Commonwealth, the Protector conceived the idea of parcelling the kingdom into military districts, of which there wereeleven, being precisely the number now proposed, under favor of success, among us. Of this system a great authority, Mr. Hallam, speaks thus:—

“To govern according to law may sometimes be an usurper’s wish, but can seldom be in his power. The Protector abandoned all thought of it. Dividing the kingdom into districts, he placed at the head of each a major-general, asa sort of military magistrate, responsible for the subjection of his prefecture. These wereeleven in number, men bitterly hostile to the royalist party, and insolent towards all civil authority.”[177]

Carlyle, in his Life of Cromwell, gives a glimpse of this military government.

“The beginning of a universal scheme of Major-Generals, the Lord Protector and his Council of State having well considered and found it the feasiblest,—‘if notgood, yet best.’ … ‘It is an arbitrary government,’ murmur many. Yes, arbitrary, but beneficial.These are powers unknown to the English Constitution, I believe; but they are very necessary for the Puritan English nation at this time.”[178]

Perhaps no better words could be found in explanation of the Cromwellian policy adopted by our President.

A contemporary republican, Lieutenant-General Ludlow, whose “Memoirs” add to the authentic history ofthose interesting times, characterizes these military magistrates as so many “bashaws.” Here are some of his words:—

“The major-generals carried things with unheard-of insolence in their several precincts, decimating to extremity whom they pleased, and interrupting the proceedings at law upon petitions of those who pretended themselves aggrieved;threatening such as would not yield a ready submission to their orders with transportation to Jamaica, or some other plantations in the West Indies.”[179]

Again, says the same contemporary writer,—

“There were sometimes bitter reflections cast upon the proceedings of the major-generals by the lawyers and country gentlemen, who accused them to have done many things oppressive to the people, in interrupting the course of the law,and threatening such as would not submit to their arbitrary orders with transportation beyond the seas.”[180]

At last, even Cromwell, at the height of his power, found it necessary to abandon the policy of military governors. He authorized his son-in-law, Mr. Claypole, to announce in Parliament, “that he had formerly thought it necessary, in respect to the condition in which the nation had been, that the major-generals should be intrusted with the authority which they had exercised; but, in the present state of affairs, he conceived it inconsistent with the laws of England and liberties of the people to continue their power any longer.”[181]

The conduct of at least one of our military magistrates seems to have been a counterpart to that of these“bashaws” of Cromwell; and there is no argument against that early military despotism which may not be urged against any attempt to revive it in our day. Some of the acts of Governor Stanly in North Carolina are in themselves an argument against the whole system.

It is clear that these military magistrates are without direct sanction in the Constitution or existing laws. They are not even “major-generals,” or other military officers, charged with the duty of enforcing martial law, but special creations of the Secretary of War, acting under the President, and charged with universal powers. As governors within the limits of a State, they obviously assume the extinction of the old State governments for which they are substituted, and the President, in appointing them, assumes a power over these States kindred to his acknowledged power over Territories of the Union; but, in appointing governors for Territories, he acts in pursuance of the Constitution and laws, by and with the advice and consent of the Senate.

That the President should assume the vacation of the State governments is of itself no argument against the creation of military governors, for it is simply the assumption of an unquestionable fact; but if it be true that the State governments have ceased to exist, then the way is prepared for the establishment of provisional governments by Congress. In short, if a new government is to be supplied, it should be by Congress rather than by the President, and it should be according to established law rather than according to the mere will of any functionary, to the end that ours may be “a government of laws, and not of men.”

There is no argument for military governors which isnot equally strong for Congressional governments, while the latter have in their favor two controlling considerations: first, that they proceed from the civil rather than the military power; and, secondly, that they are created by law. Therefore, in considering whether Congressional governments should be constituted, I begin by assuming everything in their favor that is already accorded to the other system. I should not do this, if the system of military dictators were not now recognized; so that the question is sharply presented, which of the two to choose. Even if provisional governments by Congress are unconstitutional, it does not follow that military governments, without the sanction of Congress, can be constitutional. But, on the other hand, I cannot doubt, that, if military governments are constitutional, then surely the provisional governments by Congress must be so also. In truth, there can be no opening for military governments which is not also an opening for Congressional governments, with this great advantage for the latter, that they are in harmony with our institutions, which favor the civil rather than the military power.

Thus declaring deliberate preference for Congressional governments, I am sustained by obvious reason. But there is positive authority on this identical question. I refer to the recorded opinion of Chancellor Kent.

“Though the Constitution vests the executive power in the President, and declares him to be 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 executive 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 thatthe powers thus assumed by the President do not belong to him, but to Congress.”[182]

Such is the weighty testimony of this esteemed master on the assumption of power by the President, in 1847, over Mexican ports in our possession. It is found in the latest edition of his “Commentaries” that enjoyed the supervision of the author. Of course, it is equally applicable to the recent assumptions within our own territory. His judgment is clear in favor of Congressional governments.

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.

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 thisquestion 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 a State.

From a period even anterior to the National 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 armies or 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 independentStates” and that, as such, “they have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independentStatesmay 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 thegenerous patriotism of the people. In July, 1778, two years after the Declaration, Articles of Confederation were ratified by nine States, but the assent of all was not obtained till March, 1781. The character of this new government, which assumed the style of “The United States of America,” appears in the title of these Articles, which was as follows: “Articles of Confederation and Perpetual Unionbetween the Statesof 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 saidStateshereby severally enter intoa firm leagueof 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 theStates, or any nine of them,” was authorized, in the recess, to execute the powers of Congress. The government thus constituted was a compact betweensovereign States, or, according to its precise language, “a firm league of friendship” between theseStates, administered, in the recess of Congress, by a “committee ofthe States.” Thus did State Rights triumph.

But the imbecility of the Confederation, 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 torevenue and commerce. In April, 1783, an Address of Congress tothe Stateswas put forth, appealing to their justice and plighted faith, and representing the consequence of 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, “unlessthe Statesact 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 three other reports of committees of Congress, exhibiting the failure ofthe Statesto comply with the requisitions of Congress, and the necessity for a complete accession ofall the Statesto the revenue system. In October, 1786, there was still another report, most earnestly renewing the former appeals tothe 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 ofthese Statesis in a peculiar manner critical,” and that “the radical source of most of our embarrassments isthe want of sufficient power in Congressto effectuate that ready and perfect coöperation ofthe different Stateson which their immediate safety and future happiness depend.”[183]Finally, in September, 1786, at Annapolis, commissionersfrom 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 provisions as shall appear to them necessary to render the Constitution of the Federal Government adequate to the exigencies of the Union.” In accord with this recommendation, the Congress of the Confederation proposed a Convention “for the sole and express purpose of revising the Articles of Confederation, and reporting to Congress and the several Legislatures such alterations and provisions therein as shall, when agreed to in Congress and confirmed by the States, render the Federal Constitution adequate to the exigencies of government and the preservation of the Union.”

In pursuance of the call, delegates to the proposed Convention were duly appointed by the Legislatures of the several States, and the Convention assembled at Philadelphia in May, 1787. The present Constitution was the well-ripened fruit of their deliberations. In transmitting it to Congress, General Washington, who was the President of the Convention, in a letter, bearing date September 17, 1787, uses this instructive language:—

“It is obviously impracticable, in the Federal Government ofthese States, to secure all rights of independent sovereignty to each, and yet provide for the interest and safety of all. Individuals entering into society must give up a share of liberty to preserve the rest. The magnitude of the sacrifice must depend as well on situation and circumstance as on the object to be obtained. It is at all times difficult to draw with precision the line between those rights which must be surrendered and those which may be reserved; and on the present occasion this difficulty was increased by a differenceamong the several Statesas to their situation, extent, habits, and particular interests. In all our deliberations on this subject, we kept steadily in our view that which appears to us the greatest interest of every true American,the consolidation of our Union, in which is involved our prosperity, felicity, safety, perhaps our national existence.”

These famous words were in harmony with the constant sentiments of Washington. Here is additional evidence, from a letter to John Jay, during the summer of 1786:—

“We have errors to correct. We have probably had too good an opinion of human nature, in forming our Confederation. Experience has taught us that men will not adopt and carry into execution measures the best calculated for their own good,without the intervention of a coercive power. I do not conceive we can exist long as a nation without having lodged somewhere a power which will pervade the whole Unionin as energetic a manner as the authority of the State governments extends over the several States.”

These are the words of Washington; and he then proceeds:—

“To be fearful of investing Congress, constituted as that body is, with ample authorities for national purposes, appears to me the very climax of popular absurdity and madness.”[184]

The Constitution was duly transmitted by Congress to the several Legislatures, by which it was submitted to Conventions of delegates“chosen in each State by the people thereof,” who ratified the same. Afterwards, Congress, by resolution, dated September 13, 1788, setting forth that the Convention had reported “a Constitutionfor the people of the United States,” which had been duly ratified, proceeded to authorize the necessary elections under the new government.

The Constitution, it will be seen, was framed to remove difficulties arising from State Rights. So paramount was this purpose, that, according to the letter of Washington, it was kept steadily in view in all the deliberations of the Convention, which did not hesitate to declarethe consolidation of our Unionessential to prosperity, felicity, safety, and perhaps national existence.

The unity of the Government was expressed in the term “Constitution,” instead of “Articles of Confederation and Perpetual Union between the States,” and in the idea of “a more perfect union,” instead of “a firm league of friendship.” It was also announced emphatically in the Preamble:—

“We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”

Not “we, the States,” but “we, the people of the United States.” Such is the beginning and origin of our Constitution. Here is no compact or league between States, involving the recognition of State Rights, but a government ordained and established by the people of the United States for themselves and their posterity.This government is not establishedby the States, nor is it establishedfor the States; but it is establishedby the people, for themselves and their posterity. It is true, that, in the organization of the government, the existence of the States is recognized, and the original name of “United States” is preserved; but the sovereignty of the States is absorbed in that more perfect union which was then established. There is but one sovereignty recognized, and this is the sovereignty of the United States. To the several States is left that specific local control which is essential to the convenience and business of life, while to the United States, as Plural Unit, is allotted that commanding sovereignty which embraces and holds the whole country within its perpetual and irreversible jurisdiction.

This obvious character of the Constitution did not pass unobserved at the time of its adoption. Indeed, the Constitution was most strenuously opposed on the ground that the States were absorbed in the Nation. In the debates of the Virginia Convention, Patrick Henry protested against consolidated power.

“And here I would make this inquiry of those worthy characters who composed a part of the late Federal Convention. I am sure they were fully impressed with the necessity of forming a great consolidated Government, instead of a Confederation.That this is a consolidated Government is demonstrable clear; and the danger of such a Government is to my mind very striking. I have the highest veneration for those gentlemen; but, Sir, give me leave to demand, What right had they to say, ‘We, the people’?… Who authorized them to speak the language of ‘We, the people,’ instead of ‘We, the States’?”[185]

And again, at another stage of the debate, the same patriotic opponent of the Constitution declared succinctly,—

“The question turns, Sir, on that poor little thing, the expression, ‘We,the people,’ instead ofthe States, of America.”[186]

In the same Convention, another patriotic opponent of the Constitution, George Mason, following Patrick Henry, said:—

“Whether the Constitution be good or bad, the present clause clearly discovers that it is a National Government, and no longer a Confederation.”[187]

But against all this opposition, and in face of this exposure, the Constitution was adopted, in the name of the people of the United States. Much, indeed, was left to the States; but it was no longer in their name that the government was organized, while the miserable pretension of State “sovereignty” was discarded. Even in the discussions of the National Convention Mr. Madison spoke thus plainly:—

“Some contend that States aresovereign, when, in fact, they are only political societies. The States never possessed the essential rights of sovereignty. These were always vested in Congress.”[188]

Grave words, especially when we consider the position of their author. They were substantially echoed by Elbridge Gerry, of Massachusetts, afterwards Vice-President, who said:—

“It appears to me that the States never were independent. They had only corporate rights.”[189]

On another occasion, Mr. Madison said,—

“I hold it for a fundamental point, that an individual independence of the States is utterly irreconcilable with the idea of an aggregate sovereignty.”[190]

Better words still fell from Mr. Wilson, of Pennsylvania, known afterwards as a learned judge of the Supreme Court, and also for his “Lectures on Law”:—

“Will a regard to State Rights justify the sacrifice of the rights of men? If we proceed on any other foundation than the last, our building will neither be solid nor lasting.”[191]

The argument was unanswerable then. It is unanswerable now. You cannot elevate the sovereignty of the States over the Constitution of the United States. It would be even more odious than the early pretension of sovereign power over Magna Charta, according to the memorable words of Lord Coke, as recorded by Rushworth:—

“Sovereign power is no Parliamentary word. In my opinion, it weakens Magna Charta and all our statutes; for they are absolute, without any saving of sovereign power; and shall we now add it, we shall weaken the foundation of law, and then the building must needs fall. Take we heed what we yield unto.Magna Charta is such a fellow that he will have no sovereign.”[192]

But the Constitution is our Magna Charta, which canbear no sovereign but itself, as you will see at once, if you consider its character. And this practical truth was recognized at its formation, as may be seen in the writings of our Rushworth: I refer to Nathan Dane, who was a member of Congress under the Confederation. He tells us plainly, that the terms “sovereign States,” “State sovereignty,” “State rights,” “rights of States,” are “not constitutional expressions.”[193]

In the exercise of its sovereignty, Congress is intrusted with large and peculiar powers. Take notice of them, and you will see how little of “sovereignty” is left to the States. Their simple enumeration is an argument against this pretension. Congress may “lay and collect taxes, duties, imposts, and excises, to pay the debts andprovide for the common defence and general welfare of the United States”; it may “borrow money on the credit of the United States”; “regulate commerce with foreign nations, andamong the several States, and with the Indian tribes”; “establish an uniform rule of naturalization, and uniform laws on the subject of bankruptcies,throughout the United States”; “coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures”; “provide for the punishment of counterfeiting the securities and current coin of the United States”; “establish post-offices and post-roads”; “promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries”;“constitute tribunals inferior to the Supreme Court”; “define and punish piracies and felonies committed on the high seas, and offences against the Law of Nations”; “declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water”; “raise and support armies”; “provide and maintain a navy”; “make rules for the government and regulation of the land and naval forces”; “provide for calling forth the militia to executethe laws of the Union, suppress insurrections, and repel invasions”; “provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States respectively the appointment of the officers, and the authority of training the militiaaccording to the discipline prescribed by Congress”; “exercise exclusive legislation, in all cases whatsoever, over the seat of the government of the United States, and like authority over all places purchased by the consent of the Legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings”; and “make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof.”

Such are the ample and diversified powers of Congress, embracing all those agencies which enter into sovereignty. With this concession to the United States, there seems to be little for the several States. In the power to “declare war” and to “raise and support armies” Congress possesses an exclusive power, in itself immense and infinite, over persons and property in the several States, while, by the power to “regulate commerce,” it may put limits round about the business of the several States; and even in the case of the militia,which is the original military organization of the people, nothing is left to the States except “the appointment of the officers,” and the authority to train it “according to the disciplineprescribed by Congress.” Thus these great functions are all intrusted to the United States, while the several States are subordinated to their exercise.

Constantly, and in everything, we behold the constitutional subordination of the States. But there are other provisions by which the States are expressly deprived of important powers. For instance: “No State shall enter into any treaty, alliance, or confederation; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts.” Or, if the States may exercise certain powers, it is only with the consent of Congress. For instance: “No State shall,without the consent of Congress, lay any duty of tonnage, keep troops or ships of war in time of peace, enter into any agreement or compact with another State or with a foreign power.” Here is a magistral power accorded to Congress utterly inconsistent with the pretensions of State Rights. Then again: “No State shall,without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws; and the net produce of all duties and imposts laid by any State on imports or exports shall be for the use of the treasury of the United States;and all such laws shall be subject to the revision and control of the Congress.” Here, again, is a similar magistral power accorded to Congress; and as if still further to deprive the States of their much vaunted sovereignty, the laws which they make with the consent of Congress are expressly declared tobe subject “to the revision and control of the Congress.” There is still another instance. According to the Constitution, “Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State”; but here mark the controlling power of Congress, which is authorized to “prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.”

There are five other provisions of the Constitution by which its supremacy is positively established. (1.) “The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.” As Congress has the exclusive power to establish “an uniform rule of naturalization,” it may, under these words of the Constitution, secure for its newly entitled citizens “all privileges and immunities of citizens in the several States,” in defiance of State Rights. (2.) “New States may be admittedby the Congressinto this Union.” According to these words, the States cannot even determine their associates, but are dependent in this respect upon the will of Congress. (3.) Not content with taking from the States these important functions of sovereignty, it is solemnly declared that the Constitution, and the laws of the United States made in pursuance thereof, and all treaties under the authority of the United States, “shall be the supreme law of the land,—anything in the Constitution or laws of any State to the contrary notwithstanding.” Thus are State Rights again subordinated to the National Constitution, which is erected into the paramount authority. (4.) This is done again by another provision, which declares that“the members of the several State Legislatures, and all executive and judicial officers both of the United States and ofthe several States, shall be bound by oath or affirmation to support this Constitution”; so that not only State laws are subordinated to the National Constitution, but the makers of State laws and all other State officers are constrained to declare allegiance to this Constitution, thus placing the State, alike through its acts and its agents, in complete subordination to the sovereignty of the United States. (5.) This sovereignty is further proclaimed in the solemn injunction, 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 are duties of guaranty and protection imposed upon the United States, by which their position is fixed as the supreme power. There can be no such guaranty without the implied right to examine and consider the governments of the several States, and there can be no such protection without a similar right to examine and consider the condition of the several States, subjecting them to the rightful supervision and superintendence of the National Government.

Thus, whether we regard the large powers vested in Congress, the powers denied to the States absolutely, the powers denied to the States without the consent of Congress, or those other provisions which accord supremacy to the United States, we find the pretension of State sovereignty without foundation, except in the imagination of its partisans. Before the Constitution such sovereignty may have existed; it was declared in the Articles of Confederation; but since then it has ceased. It has disappeared and been lost in the supremacy of the National Government, so that it can no longer be recognized. Perverse men, insisting that it still existed,and weak men, mistaking the shadow of former power for the reality, have made arrogant claims in its behalf. When the Constitution was proclaimed, and George Washington took his oath to support it as President, our career as a nation began, with all the unity of a nation. The States remained as living parts of the body, important to the national strength, and essential to those currents which maintain national life, but plainly subordinate to the United States, which then and there stood forth a nation, one and indivisible.

The new Government had hardly been inaugurated before it was disturbed by the pestilent pretension of State Rights, which has never ceased to disturb it since. Discontent with the treaty between the United States and Great Britain, negotiated by that purest patriot, John Jay, under instructions from Washington, in 1794, led Virginia, even at that early day, to commence an opposition to its ratification,in the name of State Rights. Shortly afterwards appeared the famous resolutions of Virginia and of Kentucky, usually known as the “Resolutions of ’98,” declaring that the National Government was founded on compact between the States, and claiming for the States the right to sit in judgment on the National Government, and to interpose, if they thought fit: all this, as you will see,in the name of State Rights. This pretension increased, till, at last, on the mild proposition to attach a prospective prohibition of Slavery as a condition to the admission of Missouri into the Union as a new State, the opposition raged furiously, even to the extent of menacing the existence of the Union; and this, too, was donein the name of State Rights. Ten years later the pretension took the famous formof Nullification, insisting that the National Government was only a compact of States, any one of which was free to annul an Act of Congress at its own pleasure; and all thisin the name of State Rights. For a succession of years afterwards,—at the presentation of petitions against Slavery, petitions for the recognition of Hayti, at the question of Texas, at the Wilmot Proviso, at the admission of California as a Free State, at the discussion of the Compromises of 1850, at the Kansas Question,—the Union was menaced; and alwaysin the name of State Rights. The menace was constant; and it sometimes showed itself on small as well as great occasions, but alwaysin the name of State Rights. When it was supposed that Fremont was about to be chosen President the menace became louder, and mingling with it was the hoarse mutter of war; and all this audacity wasin the name of State Rights.

But in the autumn of 1860, on the election of Abraham Lincoln, the case became much worse. Scarcely was the result known by telegraph, before the country was startled by other intelligence, to the effect that certain States at the South were about to put in execution the long pending threat of Secession, of coursein the name of State Rights. First came South Carolina, which, by Ordinance adopted in a State Convention, undertook to repeal the original Act by which the Constitution was adopted in this State, and to declare that South Carolina had ceased to be one of the States of the Union. At the same time a Declaration of Independence was put forth by the State, which proceeded to organize as an independent community. This example was followed successively by other States, which, by formal Acts of Secession, undertook to dissolve relationswith the Union, always, be it understood,in the name of State Rights. A new Confederation was formed by these States, with a new Constitution, and Jefferson Davis at its head; and the same oaths of loyalty by which the local functionaries of all these States had been bound to the Union were now transferred to this new Confederation, of course in utter violation of the Constitution of the United States, but alwaysin the name of State Rights. The Ordinances of Secession were next maintained by war, which, beginning with the assault upon Fort Sumter, convulsed the whole country, till, at last, all the States of the new Confederation were in open rebellion, which the Government of the United States is now exerting its energies, mustering its forces, and taxing its people to suppress. The original claim,in the name of State Rights, has swollen to all the proportions of an unparalleled war, which,in the name of State Rights, now menaces the national life.

The pretensions in the name of State Rights are not all told. While the Ordinances of Secession were maturing, and before they were yet consummated, Mr. Buchanan, who was then President, declined to interfere, on the ground that what had been done was by States, and that it was contrary to the theory of our Government “to coerce a State,” thus making the pretension of State Rights the apology for imbecility. Had the President then interfered promptly and loyally, it cannot be doubted that this whole intolerable crime might have been trampled out forever. And now, when it is proposed that Congress shall organize governments in these States, which are absolutely without loyal governments, we are met by the objection founded on State Rights. The same disastrous voice which from thebeginning of our history has sounded in our ears still makes itself heard; but, alas! it is now on the lips of friends. Just in proportion as it prevails, it is impossible to establish the Constitution again throughout the Rebel States. State Rights are fully triumphant, if, first, in their name Rebel governments can be organized, and then again in their name Congressional governments to replace the Rebel governments can be resisted. If they can be employed, first to sever the States from the Union, and then to prevent the Union from extending its power over them, State Rights are at once sword and buckler to the Rebellion. It was through the imbecility of Mr. Buchanan that the States were allowed to use the sword: God forbid that now, through any similar imbecility of Congress, they shall be allowed to use the buckler!

And here we are brought to the practical question destined to occupy so much of public attention. It is proposed to bring the action of Congress to bear directly upon the Rebel States. This may be by the establishment of provisional governments under authority of Congress, or simply by making the admission or recognition of the States depend upon the action of Congress. The essential feature of the proposition is,that Congress shall assume jurisdiction of the Rebel States. A bill authorizing provisional governments in these States was introduced into the Senate by Mr. Harris, of the State of New York, and was afterwards reported from the Judiciary Committee of that body; but it was left with unfinished business, when the late Congress expired on the fourth of March. The opposition to this proposition, so far as I understand it, assumes two forms: first, thatthese States are always to be regarded as States, with much vaunted State Rights, and therefore cannot be governed by Congress; and, secondly, that, if any government is to be established over them, it must be simply a military government, with a military governor appointed by the President, as is the case with Tennessee and North Carolina. But State Rights are as much disturbed by a military government as by a Congressional government. The local government is as much set aside in one case as in the other. If the President, within State limits, can proceed to organize a military government to exercise all the powers of the State, surely Congress can proceed to organize a civil government within the same limits for the same purpose; nor can any pretension of State Rights be effective against Congress more than against President. Indeed, the power belongs to Congress by a higher title than it belongs to President: first, because a civil government is more in harmony with our institutions, and, wherever possible, is required; and, secondly, because there are provisions of the Constitution under which this power is clearly derived.

Assuming, then, that the pretension of State Rights is as valid against one form of government as against the other, and still further assuming, that, in the case of military governments, this pretension is practically overruled by the President at least, we are brought again to consider its efficacy when advanced against Congressional governments.

It is argued, that the Acts of Secession are all inoperative and void, and therefore the States continue precisely as before, with their local constitutions, laws, and institutions in the hands of traitors, but totally unchanged, and ready to be quickened into life by returning loyalty.Such, I believe, is a candid statement of the pretension for State Rights against Congressional governments, which, it is argued, cannot be substituted for the State governments.

To prove that the Rebel States continue precisely as before, we are reminded that Andrew Johnson continued to occupy his seat in the Senate after Tennessee had adopted its Act of Secession and embarked in rebellion, and that his presence testified to the fact that rebel Tennessee was still a State of the Union. No such conclusion is authorized by this incident. There are two principles of Parliamentary Law long ago fixed: first, that the power once conferred by an election to Parliament isirrevocable, so that it is not affected by any subsequent change in the constituency; and, secondly, that a member, when once chosen, isa member for the whole kingdom, becoming thereby, according to the words of an early author, not merely knight, citizen, or burgess of the county, city, or borough which elected him, but knight, citizen, or burgess of England.[194]If these two principles are not entirely inapplicable to our political system, then the seat of Andrew Johnson was not in any respect affected by the subsequent madness of his State, nor can the legality of his seat be any argument for his State.

We are also reminded, that, during the last session of Congress, two Senators from Virginia represented that State in the Senate, and the argument is pressed that no such representation would be valid, if the State government of Virginia was vacated. This is a mistake. Two things are established by the presence of these Senatorsin the National Senate: first, that the old State government of Virginia is extinct; and, secondly, that a new government has been set up in its place. It was my fortune to hear one of these Senators, while earnestly denouncing the idea that a State government could disappear. I could not but think that he strangely forgot the principle to which he owed his seat in the Senate, as men sometimes forget a benefactor.

It is true beyond question that the Acts of Secession are all inoperative and void against the Constitution of the United States. Though matured in successive conventions, sanctioned in various forms, and maintained ever since by bloody war, these Acts, no matter by what name they may be called, are all equally impotent to withdraw an acre of territory or a single inhabitant from the rightful jurisdiction of the nation. But while thus impotent against the United States, it does not follow that they were equally impotent in the work of self-destruction. Clearly, the Rebels, by utmost effort, could not impair the national jurisdiction; but it remains to be seen if their enmity did not act back with fatal rebound upon those very State Rights in behalf of which they commenced their treason.

It is sometimes said that the States themselves committedsuicide, so that, as States, they ceased to exist, leaving their whole jurisdiction open to the occupation of the United States under the Constitution. This assumption is founded on the fact, that, whatever the existing governments in these States, they are in no respect constitutional; and since the State itself is known by the government with which its life is intertwined, it must cease to exist constitutionally when itsgovernment no longer exists constitutionally. It were better, perhaps, to avoid the whole question of life or death in the State, and content ourselves with inquiry into the condition of its government. It is not easy to say what constitutes that entity we call a State; nor is the discussion much advanced by any theory. To my mind it seems a topic fit for the old schoolmen or a modern debating society; and yet, considering the part it has already played, I shall be pardoned for a brief allusion to it.

There are well-known words which ask and answer the question, “What constitutes aState?” But the scholarly poet[195]was not thinking of a “State” of the American Union. Indeed, this term is various in use. Sometimes it stands for civil society itself. Sometimes it is the general name for a political community, not unlike “nation” or “country,”—as when our fathers, in the Resolution of Independence which preceded the Declaration, spoke of “theStateof Great Britain.” Sometimes it stands for the government,—as when Louis the Fourteenth, at the height of his power, exclaimed, “TheState, it is I,”—or when Sir Christopher Hatton, in the famous farce of “The Critic,” ejaculated,—

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