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'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." 1
The three things here affirmed of a Territory may all be affirmed of a Rebel State.
First. It has not the means of self-government.
Secondly. It is not within the jurisdiction of any particular State.
Thirdly. It is within the power and jurisdiction of the United States.
From these again ensues the necessity of Congressional jurisdiction.
2. It would be unreasonable, if not absurd, for each Chamber to determine the question of representation for itself. Suppose, for instance, the Senate admit claimants from Arkansas, and the House reject them. Then we should witness the anomaly of a State admitted to one Chamber and excluded from the other. This would be semi-admission into the Union. Part would be in, and part out. The Senators and Representatives of the same State would be compelled to separate, as, in Grecian mythology, one of the memorable twins, Castor and Pollux, was translated to Olympus, and the other was left upon earth. The Constitution does not contemplate the repetition of any such fable. Arkansas must stay away, until she can be received in both Houses, and be recognized as a unit, not as a fraction; but no power short of Congress can assure this equal reception in both Houses.
1 American Insurance Company v. Canter, 1 Peters, S. C. R., 542.
3. Authority is in harmony with reason. tion seems to have been anticipated by the opinion of the Supreme Court of the United States, as pronounced by Chief Justice Taney in the case of Luther v. Borden. Here are the words:
"The fourth section of the fourth article of the Constitution of the United States provides that the United States shall guaranty to every State in the Union a republican form of government, and shall protect each of them against invasion, and, on the application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic violence.
"Under this article of the Constitution, it rests with Congress to decide what government is the established one in a State. For, as the United States guaranty to each State a republican government, Congress must necessarily decide what government is established in the State, before it can determine whether it is republican or not. And when the Senators and Representatives of a State are admitted into the councils of the Union, the authority of the government under which they are appointed, as well as its republican character, is recognized by the proper constitutional authority. And its decision is binding on every other department of the government, and could not be questioned in a judicial tribunal." 1
According to these positive words, "it rests with Congress to decide what government is the established one in a State." But Congress can decide only through joint action.
4. The Constitution, also, by positive text, seems to place the question beyond doubt. There are express words, as we have already seen, declaring that "the
17 Howard, R., 42.
United States shall guaranty to every State in the Union a republican form of government." If these words stood alone, the case would be clear; but it becomes clearer still, when we revert to the other clause, by which it is provided that "the Congress shall have power to make all laws which shall be necessary and proper for carrying into execution all powers vested by this Constitution in the Government of the United States." Now, since the guaranty is vested in the Government of the United States, it follows that Congress has, the power for carrying it into execution. In Arkansas a republican government has been overthrown by rebellion. Congress must see that such government is restored; and to this end it has all needful power. Congress, and not the President, must decide when the restoration has taken place.
5. There is also the President's Proclamation, which, by its very terms, necessarily implies the action of Congress. We have, first, the positive declaration that "whether members sent to Congress from any State shall be admitted to seats constitutionally rests exclusively with the respective Houses, and not to any extent with the Executive." But the language of the Proclamation and of the accompanying message plainly assumes that the Rebel States have lost their original character as States of the Union. Thus in one place the President says that "the loyal State governments of several States have for a long time been subverted." But if subverted, they no longer exist. In another place he proposes to "reinaugurate loyal State governments." But a proposition to reinaugurate implies a new start. In another place he proposes to "reëstablish a State. government which shall be republican." But we do
not reëstablish a government continuing to exist. In another place he proposes to "set up" a State government in the mode prescribed. But whatever requires to be set up is evidently down. In another place he considers how to guaranty and protect "a revived State government." But we revive only what is dead, or, at least, faint. There is still another place, where the President evidently looks to the possibility of a change of name, boundary, subdivisions, constitution, and general code of laws in the restored State. These are his identical words: "And it is suggested as not improper, that, in constructing a loyal State government in any State, the name of the State, the boundary, the subdivisions, the constitution, and the general code of laws, as before the Rebellion, be maintained." Thus the President does not insist that even the name and boundary of a State shall be preserved. He contents himself with suggesting that it will not be "improper" to preserve them "in constructing a loyal State government." Of course this suggestion of what is not improper implies necessarily that in his opinion even these great changes are within the discretion of the revived community.
I have called especial attention to the language of the President, because it constantly assumes, in a succession of phrases, that the Rebel States are in an abnormal condition, from which they are to be recovered. or revived; and since such recovery or revival can be consummated only by action of Congress, it is reasonable to infer that such was his expectation. At all events, the Proclamation, by repeated assumptions with regard to the Rebel States, testifies to the necessity of Congressional action.
We have already seen that Andrew Johnson declared. the State of Tennessee "vacated" of all local government which we are bound to respect; and this language obviously harmonizes with that, of the President. But Arkansas was in a similar situation.
Such are some of the arguments for the power of Congress. Others might be adduced; but I have said. enough. The necessity of the case, reason, the authority of the Supreme Court, the Constitution, and the President's Proclamation, each and all, tend to the same conclusion, even without resorting to those war powers which are all within the reach of Congress. Yet if we glance at the latter, we find the power of Congress declared beyond question. There is nothing the President may do as commander-in-chief which Congress may not direct and govern, aceording to the authoritative words 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." 1
And these powers, vast as they are, when called into activity by the exigency of war or rebellion, become as constitutional as if specified precisely in a written
Mr. President, there is a saying of Antiquity applicable to this question: Make haste slowly. Do not fail to make haste; but let your haste be governed by wisdom and prudence. In making haste, do not sacrifice
1 Commentaries on American Law (6th edit.), Vol. I. p. 92, note a.