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Besides, the power of the President to institute this government is only as commander-in-chief of the army. It is therefore military in character. But what proceeds out of this power is, from the nature of the case, provisional or temporary, until it has received the sanction of Congress. To a certain extent, and from the necessity of the hour, military governments may be constituted by the President; but permanent civil governments, with
Such a power
MR. SUMNER. As the Senator from Vermont well suggests,“ to last beyond the war,” with right of representation in Congress and in the Electoral College, cannot be constituted by the President. would be open to infinite abuse, and in the hands of an ambitious President might be employed for selfish purposes. The national safety, in harmony with republican principles, requires that it should be exercised by Congress, which must take the lead in calling the new government into being.
Against these conclusions there can be no argument founded on principle. But it may be said that the admission of Senators from Virginia constitutes a precedent. This is a mistake. The Virginia case is a precedent for nothing, unless it be to make us more careful for the future. It arose at the beginning of the troubles, before the relations of the Rebel States had become fixed by pertinacious war, and was little considered at the time. But, beyond all, it had this peculiarity, - that a large section, geographically, of Virginia, had, in fact, declined to recognize the pretension of secession, and promptly constituted a loyal government
without military intervention, so that practically it had never been part of the Rebel Government. The circumstances were so exceptional, that this case cannot be cited to determine our conduct toward a State which in all its parts, throughout its whole jurisdiction, accepted the pretension of secession, and maintained it by arms. Such a State is, beyond all question, a Rebel State, with no title to a place in Congress or in the Electoral College, until readmitted to its ancient rights by a vote in both Houses of Congress.
The readmission of a Rebel State to representation is not less important than its original admission into the Union. And when it is considered that what is done for one such State will be a precedent for all, its importance is multiplied by the number of Rebel States; and this again is augmented infinitely by the disturbed condition of affairs, and the supreme duty to take every precaution for the restoration of permanent tranquillity. It is not enough, if we comply with certain forms, or constitute a State in name only. Much more must be done, and all this must be placed under fixed and irreversible guaranties. Vain is victory on the battle-field, if these guaranties are not obtained. To make these possible, our armies are now engaged in the deadly shock. That the future at least
secure, the present is given over to blood and slaughter, to graves and epitaphs. And here is the difference between your responsibilities and those of the soldier. The latter sees only the present; but you must see the future also. The soldier meets the enemy face to face; the statesman, by wise precautions, provides that the enemy, once conquered, shall never rise again. Vain is the work of
the soldier, if not consummated and crowned by the wisdom of the statesman.
For years Slavery has been claiming guaranties in States and Territories, and these chambers have echoed to the hoarse, inhuman cry. At last another voice begins to prevail, ascending from basement to cupola, filling chamber and dome with diviner echo: it is the voice of Freedom claiming guaranties. In the absence of any constitutional prohibition of Slavery, it is evident that these guaranties can be obtained only under sanction of Congress in its legislative capacity. And here we are brought again to the question of representation; for as it is clear that representation cannot be conceded, until the guaranties for Freedom have been secured, so it follows, representation can be obtained only under the sanction of Congress in its legislative capacity.
That Congress in its legislative capacity must determine this question is sustained by the necessity of the case, by reason, by authority, and by the President's Proclamation.
1. I have already shown that guaranties for Freedom are a condition precedent to representation ; so that, by the necessity of the case, the latter must be determined by the joint action of both Houses of Congress. Such is one form in which this necessity appears. But there is another.
Congress must have jurisdiction over every portion of the United States where there is no other government ; but there can be no other government in the Rebel States; so that the words of Chief Justice Marshall are as applicable to a State without a loyal State government as they were originally to a Territory ::
“ 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.