Part 17

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, as I affirm, are held and bound (though it is somewhat rude to say so) in reasons of iron and adamant, as would really appear to be the case,--so that, unless you, or some one stronger than you, can break them, it is not possible that any one who says otherwise than as I now say can speak correctly; for my statement is always the same,--that I know not how these things are, but that of all the persons with whom I have ever conversed, as now with you, no one who says otherwise can avoid being ridiculous.”[206]

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 partisan, not as advocate, do I make this appeal, but simply as citizen, seeking, in all sincerity, to offer my contribution to the establishment of that policy by which Union and Peace may be restored.

* * * * *

Looking at the origin of this power in Congress, we find that it comes from three distinct fountains, any one of which is ample to supply it. Three fountains, generous and hospitable, are found in the Constitution ready for this occasion.

_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 belonging to the United States over all its territory and the people thereof, and springing into activity when the local government ceases. 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 inevitable consequence of the right to acquire territory.”[207]

If the right to govern may be the inevitable consequence of the right to acquire territory, surely, and by much stronger reason, this right must be the inevitable consequence of the sovereignty of the United States, wherever there is no local government.

_Secondly._ The jurisdiction may also be derived from the _Rights of War_, which surely are not less abundant for Congress than for President. If the President, 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 are 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; 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 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 are 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 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 States and not in the nation, a civil war here would be “nothing but foreign war in disguise.”[208] Of course the natural consequence would be to give the nation, in such a civil war, all the rights it would have in a foreign 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 most learned argument, followed by most careful consideration, adjudged, that, since the Act of Congress of July 13, 1861, the nation 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 nation may stamp upon all residents in this _belligerent territory_ the character of foreign enemies, so as to subject 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 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 flourish in blood.

_Thirdly._ There is another source for this jurisdiction common alike to Congress and the President. It is found in the constitutional provision, 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, 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 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 in 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 its protection and sovereignty, 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 the danger_. His words, which will be found in a yet unpublished document produced by Mr. Collamer in the Senate, seem prophetic.

Among the defects 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_.”[209] This was written in April, 1787, before the meeting of the Convention that formed the National Constitution. Here is 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 requirement 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, 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 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 is 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 educe the power of Congress over the vacated States.

* * * * *

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 is for Congress, in such way as it shall think best, to regulate their return to the Union, whether in time or manner. No special form is prescribed. But the vital act must proceed from Congress. Here again is another testimony to that Congressional power, which, under the Constitution, will restore the Republic.

* * * * *

Against this power I have heard nothing which can be called argument. There are objections, originating chiefly in the baneful pretension of State Rights; but these objections are animated by prejudice rather than reason. Assuming the impeccability of a State, and openly declaring that States, like kings, can do no wrong, while, like kings, they wear “the round and top of sovereignty,” politicians treat them with most mistaken forbearance and tenderness, as if these Rebel corporations could be dandled into loyalty. At every suggestion of rigor, State Rights are invoked; and we are vehemently told not to destroy the States, when all that Congress proposes is simply to recognize the actual condition of the States, and undertake their temporary government by providing for the condition of political syncope into which they have fallen, and during this interval substitute its own constitutional powers for the unconstitutional powers of the Rebellion. Congress will blot no star from the flag, nor will it obliterate any State liabilities; but it will seek, according to its duty, in the best way, to maintain the great and real sovereignty of the Union, by upholding the flag unsullied, and by enforcing everywhere within its jurisdiction the supreme law of the Constitution.

At the close of an argument already too long drawn out, I shall not stop to array the considerations of reason and expediency in behalf of this jurisdiction; nor shall I dwell on the inevitable influence it must exercise over Slavery, which is the motive of the Rebellion. To my mind nothing can be clearer, as a proposition of Constitutional Law, than that everywhere within the exclusive jurisdiction of the National Government Slavery is impossible. The argument is as brief as it is unanswerable. Slavery is so odious that it can exist only by virtue of positive law, plain and unequivocal; but no such words can be found in the Constitution; therefore Slavery is impossible within the exclusive jurisdiction of the National Government. For many years I have had this conviction, and have constantly maintained it. I am glad to believe that it is implied, if not expressed, in the Chicago Platform. Mr. Chase, among our public men, is known to accept it sincerely. Thus Slavery in the Territories is unconstitutional; but if the Rebel territory falls under the exclusive jurisdiction of the National Government, then Slavery becomes impossible there. In a legal and constitutional sense, it must die at once. The air is too pure for a slave. I cannot doubt that this great triumph has been already won. The moment that the States fell, Slavery fell also; so that, even without any proclamation of the President, Slavery ceased to have legal and constitutional existence in every Rebel State.

Even if we hesitate to accept this important conclusion, which treats Slavery within the Rebel States as already dead in law and Constitution, it cannot be doubted that by the extension of Congressional jurisdiction, as now proposed, many difficulties will be removed. Holding every acre of soil and every inhabitant within its jurisdiction, Congress can easily do whatever is needful within Rebel limits to assure freedom and save society. The soil may be divided among patriot soldiers, poor whites, and freedmen; but above all things the inhabitants may be saved from harm. Those citizens in the Rebel States who throughout the darkness of the Rebellion have kept their faith will be protected, and the freedmen rescued from hands that threaten to cast them back into Slavery.

This jurisdiction, which is so completely practical, is grandly conservative also. Had it been early recognized that Slavery depends exclusively upon the local government, and falls with that government, who can doubt that every Rebel movement would have been checked? Tennessee and Virginia would never have stirred; Maryland and Kentucky would never have thought of stirring; there would have been no talk of neutrality between the Constitution and the Rebellion; and every Border State would have been fixed in loyalty. Let it be established in advance, as an inseparable incident to every Act of Secession, that it is not only impotent against the National Constitution, but that, on its occurrence, both soil and inhabitants lapse beneath the jurisdiction of Congress, and no State will ever again pretend to secede. The word “territory,” according to old and quaint etymology, is said to come from _terreo_, to terrify, because it was a bulwark against the enemy: _Territorium est quidquid hostis terrendi causâ constitutum est_,[210]--“A territory is anything established for the purpose of terrifying an enemy”; but I know of no way in which our Rebel enemy would have been more terrified than by being told that his course would inevitably precipitate his State into a territorial condition. Let this principle be adopted, and it will contribute essentially to that consolidation of the Union which was so near the heart of Washington.

The necessity of this principle is apparent as a restraint upon the lawless vindictiveness and inhumanity of the Rebel States, whether against Union men or against freedmen. Union men in Virginia already tremble at the thought of being delivered over to a State government wielded by original Rebels pretending to be patriots; but the freedmen, who have only recently gained their birthright, are justified in keener anxiety, lest it should be lost as soon as won. Mr. Saulsbury, a Senator from Delaware, with most instructive frankness, has announced in public debate what the restored State governments will do. Assuming that the local governments will be preserved, he predicts that in 1870 there will be more slaves in the United States than there were in 1860, and then unfolds the reason as follows, all of which will be found in the “Congressional Globe.”

“By your Acts you attempt to free the slaves. You will not have them among you. You leave them where they are. Then what is to be the result? I presume that local State governments will be preserved. If they are, if the people have a right to make their own laws and to govern themselves, they will not only reënslave every person that you attempt to set free, but they will reënslave the whole race.”[211]

Nor has the horrid menace of reënslavement proceeded from the Senator from Delaware alone. It has been uttered even by Mr. Willey, the mild Senator from Virginia, speaking in the name of State Rights. Newspapers have taken up and repeated the revolting strain. That is to say, no matter what may be done for Emancipation, whether by proclamation of the President, or by Congress even, the State, resuming its place in the Union, will, in the exercise of its sovereign power, reënslave every colored person within its jurisdiction; and this is the menace from Delaware, and even from regenerated Western Virginia! I am obliged to Senators for their frankness. If additional motive were needed for the urgency with which I assert the power of Congress, it would be found in the pretensions thus savagely proclaimed. In the name of Heaven, let us spare no effort to save the country from such shame, and an oppressed people from the additional outrage.

As I quote Mr. Willey, I desire his precise words should be understood, that the country may see the necessity of Congressional action. In opposing Emancipation in the District of Columbia, he depicted the unhappy fate of the freedman.

“Suppose they are emancipated, what then? Are they freemen in fact? Will they have the rights of freemen? Sir, such an idea is utterly fallacious. It will practically amount to nothing. You cannot enact the slave into a freeman by bill in Congress. A charter of his liberty may be engrossed, enrolled, and passed into a law, with all the formalities of legislation, _and still he must remain virtually a slave_.”[212]

Pursuing this same strain in a later debate on the Confiscation Bill, which provided for Emancipation in certain cases, the Senator said:--

“Sir, what will be the necessary and inevitable result of this policy, if it be carried into effect? It will be that Virginia, by this increase of the free negro population under the operation of this bill, will be driven not only to reënslave those who may be manumitted under the operation of the present bill, but also to reënslave the sixty thousand free negroes already there.… Sir, the evil will be unendurable, and the result will be the reënslavement of the slaves thus manumitted, as well as those already free in our State.”[213]

I quote these words with extreme pain. Their author is not known as a fanatic of Slavery. Therefore do they reveal the terrible peril against which Congress must provide.

“Once free, always free.” This is a rule of law and an instinct of humanity. It is a self-evident axiom, which only tyrants and slave-traders have denied. The brutal pretension thus flamingly advanced already puts us all on our guard. There must be no chance or loophole for such intolerable, Heaven-defying iniquity. Alas! there have been crimes in human history, but I know of none blacker than this. There have been acts of baseness, but I know of none more utterly vile. Against the possibility of such a sacrifice we must take a bond which cannot be set aside; and this can be found only in the powers of Congress.

Congress has already done much. Besides its noble Act of Emancipation, it has provided that every person guilty of treason, or of inciting or assisting the Rebellion, shall be “disqualified to hold any office under the United States”[214]; and by another Act it has provided, that every person, elected or appointed to any office of honor or profit under the Government of the United States, shall, before entering upon its duties, _take and subscribe an oath or affirmation_ that he has “never voluntarily borne arms against the United States since he has been a citizen thereof,” or “voluntarily given aid, countenance, counsel, or encouragement to persons engaged in armed hostility thereto,” or “sought, or accepted, or attempted to exercise the functions of any office whatever, under any authority or pretended authority in hostility to the United States.”[215] This oath is a bar against return to _national office_ of any taking part with the Rebels. It shuts out in advance the whole criminal company. But these same persons, rejected by the National Government, are left free to hold office in the States; and here is another motive to further action by Congress. The oath is well as far as it goes; more must be done in the same spirit.

But enough. The case is clear. Behold the Rebel States in arms against that paternal government to which, as the supreme condition of constitutional existence, they owe duty and love; and behold all legitimate powers, executive, legislative, and judicial, in these States, abandoned and vacated. _It only remains that Congress should enter and assume the proper jurisdiction._ If we are not ready to exclaim with Burke, speaking of revolutionary France, “It is but an empty space on the political map,” we may at least adopt the response hurled back by Mirabeau, that this empty space is a volcano red with flames and overflowing with lava-floods. But whether we deal with it as “empty space” or as “volcano,” the jurisdiction, civil and military, centres in Congress, to be employed for the happiness, welfare, and renown of the American people,--changing Slavery into Freedom, and present Chaos into a Cosmos of perpetual beauty and power.

BENJAMIN FRANKLIN AND JOHN SLIDELL AT PARIS.

ARTICLE IN THE ATLANTIC MONTHLY, NOVEMBER, 1863.

This article appeared originally under the title, “Monograph from an Old Note-Book.” Beyond the curiosity of the discussion was the object, at a critical moment, of contrasting the diplomatic representative of our fathers at Paris and that of Rebel Slavery, with a new appeal to France. It was in the same vein with the recent speech on Our Foreign Relations.[216]

In a famous speech, made in the House of Lords, March 6, 1838, against the Eastern slave-trade, Lord Brougham arrests the current of his eloquence by the following illustrative diversion.

“I have often heard it disputed among critics, which of all quotations was the most appropriate, the most closely applicable to the subject-matter illustrated; _and the palm is generally awarded to that which applied to Dr. Franklin the line in Claudian_,--

‘Eripuit fulmen cœlo, mox sceptra tyrannis’;

yet still there is a difference of opinion, and even that citation, admirably close as it is, has rivals.”[217]

The British orator errs in attributing this remarkable verse to Claudian, misled, perhaps, by reminiscence of like-sounding words by that poet,--

“Rapiat fulmen sceptrumque Typhœus.”[218]

And he errs also in the quotation of the verse itself, which he fails to give with entire accuracy. And this double mistake becomes more noticeable, when it appears in the carefully prepared collection of speeches, revised at leisure, and preserved in permanent volumes.