Johnson hit upon the very term which, in the famous resolution of 1688, was held to be most effective in dethroning King James. After declaring that he had abdicated the government, it was added, "that the throne had thereby become vacant," on which Macaulay happily remarks: :

"The word abdication conciliated politicians of a more timid school. To the real statesman the simple important clause was that which declared the throne vacant; and if that clause could be carried, he cared little by what preamble it might be introduced." *

And the same simple principle is now in issue. It is enough that the Rebel States be declared vacated, as in fact they are, by all local government which we are bound to recognize, so that the way is open to the exercise of a rightful jurisdiction.

AND here the question occurs, How shall this rightful jurisdiction be established in the vacated States? Some there are, so impassioned for State rights, and so anxious for forms even at the expense of substance, that they insist upon the instant restoration of the old State governments in all their parts, through the agency of loyal citizens, who meanwhile must be protected in this work of restoration. But, assuming that all this is practicable, as it clearly is not, it attributes to the loyal citizens of a Rebel State, however few in numbers, - it may be an insignificant minority, - a power clearly inconsistent with the received principle of popular government, that the majority must rule. The seven voters of Old Sarum were allowed to return two members of Parliament, because this place, once a Roman fort, and afterwards a sheepwalk, many generations before, at the early casting of the House of Commons, had been entitled to this

• Macaulay's History of England, Vol. II. p. 624.

representation; but the argument for State Rights assumes that all these rights may be lodged in voters as few in number as ever controlled a rotten borough of England.

Pray, admitting that an insignificant minority is to organize the new government, how shall it be done? and by whom shall it be set in motion? In putting these questions I open the difficulties. As the original government has ceased to exist, and there are none who can be its legal successors, so as to administer the requisite oaths, it is not easy to see how the new government can be set in motion without a resort to some revolutionary proceeding, instituted either by the citizens or by the military power, - unless Congress, in the exercise of its plenary powers, should undertake to organize the new jurisdiction.

But every revolutionary proceeding is to be avoided. It will be within the recollection of all familiar with our history, that our fathers, while regulating the separation of the Colonies from the parent country, were careful that all should be done according to the forms of law, so that the thread of legality should continue unbroken. To this end the Continental Congress interfered by a supervising direction. But the Tory argument in that day denied the power of Congress as earnestly as it denies this power now. Mr. Duane, of the Continental Congress, made himself the mouthpiece of this denial: :

"Congress ought not to determine a point of this sort about instituting government. What is it to Congress how justice is administered? You have no right to pass the resolution, any more than Parliament has. How does it appear that no favorable answer is likely to be given to our petitions?"

In spite of this argument, the Congress of that day undertook, by formal resolutions, to indicate the process by which the new governments should be constituted.t

* John Adams's Works, Vol. II. p. 490. † Ibid. Vol. III. pp. 17, 19, 45, 46.

If we seek, for our guidance, the principle which entered into this proceeding of the Continental Congress, we shall find it in the idea, that nothing must be left to illegal or informal action, but that all must be done according to rules of constitution and law previously ordained. Perhaps this principle has never been more distinctly or powerfully enunciated than by Mr. Webster, in his speech against the Dorr Constitution in Rhode Island. According to him, this principle is a fundamental part of what he calls our American system, requiring that the right of suffrage shall be prescribed by previous law, including its qualifications, the time and place of its exercise, and the manner of its exercise; and then again, that the results are to be certified to the central power by some certain rule, by some known public officers, in some clear and definite form, to the end that two things may be done: first, that every man entitled to vote may vote; secondly, that his vote may be sent forward and counted, and so he may exercise his part of sovereignty, in common with his fellowcitizens. Such, according to Mr. Webster, are the minute forms which must be followed, if we would impart to the result the crowning character of law. And here are other positive words from him on this important point:

"We are not to take the will of the people from public meetings, nor from tumultuous assemblies, by which the timid are terrified, the prudent are alarmed, and by which society is disturbed. These are not American modes of signifying the will of the people, and they never

were....

"Is it not obvious enough, that men cannot get together and count themselves, and say they are so many hundreds and so many thousands, and judge of their own qualifications, and call themselves the people, and set up a government ? Why, another set of men, forty miles off, on the same day, with the same propriety, with as good qualifications, and in as large numbers, may meet and set up another government.

"When, in the course of human events, it becomes necessary to ascertain the will of the people on a new exigency, or a new state of things, or of opinion, the legislative power provides for that ascertainment by an ordinary act of legislation.

"What do I contend for? I say that the will of the people must prevail, when it is ascertained; but there must be some legal and authentic mode of ascertaining that will; and then the people may make what government they please.

"All that is necessary here is, that the will of the people should be ascertained by some regular rule of proceeding, prescribed by previous law. . . . .

"But the law and the Constitution, the whole system of American institutions, do not contemplate a case in which a resort will be necessary to proceedings aliunde, or outside of the law and the Constitution, for the purpose of amending the frame of government." *

CONGRESS THE TRUE AGENT.

BUT, happily, we are not constrained to any such revolutionary proceeding. The new governments can all be organized by Congress, which is the natural guardian of people without any immediate government, and within the jurisdiction of the Constitution of the United States. Indeed, with the State governments already vacated by rebellion, the Constitution becomes, for the time, the supreme and only law, binding alike on President and Congress, so that neither can establish any law or institution incompatible with it. And the whole Rebel region, deprived of all local government, lapses under the exclusive jurisdiction of Congress, precisely as any other territory; or, in other words, the lifting of the local governments leaves the whole vast region without any other government than Congress, unless the President should undertake to govern it by military power. Startling as this proposition may seem, especially *Webster's Works, Vol. VI. pp. 225, 226, 227, 228, 231.

to all who believe that "there is a divinity that doth hedge" a State, hardly less than a king, it will appear, on careful consideration, to be as well founded in the Constitution as it is simple and natural, while it affords an easy and constitutional solution to our present embar

rassments.

I have no theory to maintain, but only the truth; and in presenting this argument for Congressional government, I simply follow teachings which I cannot control. The wisdom of Socrates, in the words of Plato, has aptly described these teachings, when he says:

"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."

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 look 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.

The Gorgias of Plato.

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."

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 Presi

* American Insurance Company v. Carter, 1 Peters, p. 542.

dent, 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." 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 * Democracy in America, Vol. II. ch. 25,

p. 343.

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.

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 this 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. As-* suming 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