Part 14

“Earl Russell has fallen into several grave errors in the course of his remarks. He has utterly misconceived the whole temper of Mr. Sumner’s speech, when he says that ‘it weighs the difficulties of the English Government in an unequal balance,’ and that it is ‘an epitome of almost all that has been contained by the press of America’ on the subject of the ill-feeling against Great Britain and her neutrality, so generally prevalent among us. The feeling evoked by the belligerent articles of the New York _Herald_ is one of far different character from that produced by Mr. Sumner’s remarks. Lord Russell charges him with injustice to the English people. Had he read the speech to which he professes to reply with more care, there would have been found no ground to sustain such a charge.”

In France the speech of Mr. Sumner was published in an abridged form, under the following title:--

“Les Relations Extérieures des États-Unis. Préface et Traduction abrégée par A. Malespine [of the _Opinion Nationale_]. Paris, 1863.” 31 pp. 8vo.

The eminent historian, Henri Martin, writing in the _Siècle_ on American affairs, alluded to the speech.

“We will not close these considerations without recommending to the readers of the _Siècle_ the eloquent appeal addressed to public opinion by one of the greatest citizens of the United States, Charles Sumner, Chairman of the Committee of Foreign Relations in the American Senate. The French translation of this discourse on the _Foreign Relations of the United States_ has just appeared. He treats here the question of foreign intervention in fact and in right, demonstrates in a victorious manner, according to our opinion, that the South had not the title to be admitted as a belligerent, and considers it impossible that France and England can recognize a political society founded on Slavery. We think to-day the cause gained. Neither the sons of ’89 nor the country of Wilberforce will have this stain on their history.”

These various testimonies at home and abroad, where criticism is not wanting, show that Mr. Sumner did not speak in vain. Evidently he obtained a hearing for the national cause.

OUR DOMESTIC RELATIONS: POWER OF CONGRESS OVER THE REBEL STATES.

ARTICLE IN THE ATLANTIC MONTHLY, OCTOBER, 1863.

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 the _Atlantic 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. The _National 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.

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 in the 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 process _the 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 have _eleven_ military 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 California and 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 military governors 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 were _eleven_, 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, as _a sort of military magistrate_, responsible for the subjection of his prefecture. These were _eleven 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 not _good_, 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 of those 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 is not 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 that _the 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 this question 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 independent _States_” 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 independent _States_ may 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 the generous 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 Union _between the States_ of 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 said _States_ hereby severally enter into _a firm league_ of 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 the _States_, or any nine of them,” was authorized, in the recess, to execute the powers of Congress. The government thus constituted was a compact between _sovereign States_, or, according to its precise language, “a firm league of friendship” between these _States_, administered, in the recess of Congress, by a “committee of _the 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 to revenue and commerce. In April, 1783, an Address of Congress to _the States_ was 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, “unless _the States_ act 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 of _the States_ to comply with the requisitions of Congress, and the necessity for a complete accession of _all the States_ to the revenue system. In October, 1786, there was still another report, most earnestly renewing the former appeals to _the 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 of _these States_ is in a peculiar manner critical,” and that “the radical source of most of our embarrassments is _the want of sufficient power in Congress_ to effectuate that ready and perfect coöperation of _the different States_ on which their immediate safety and future happiness depend.”[183] Finally, in September, 1786, at Annapolis, commissioners from 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.”