THE RIGHT TO GOVERN THE REBELLIOUS STATES. 717

to govern the country, subject, of course, to the control of Congress, until republican State Governments, loyal to the Union, could be reëstablished.

Among the cases decided by the Supreme Court, bearing on this subject, are the following: The case of Fleming vs. Page.* In this case, the United States, being at war with Mexico, conquered and took possession of the State of Tamaulipas, and the court held that it was, for the time being, under the military government of the President. He, by his subordinates, established a Custom House, and collected duties, and these impositions were held valid by the Supreme Court. In the case of Cross vs. Harrison, 16 Howard Rep., 187, San Francisco, in California, having been captured by the United States, the President authorized the military and naval commanders of our forces to form a civil government for the conquered territory, and to impose duties. on imports, etc.

Subsequently, California was ceded by treaty to the United States, and the military authority and government continued. The court held, among other things, that the President might dissolve that authority by withdrawing the army, and that "Congress might have put an end to it." This not having been done, the acts of the military authorities imposing and collecting duties were held valid.

The same principles were applied and sustained in the government of New Mexico.

"Upon the acquisition, in the year 1846, by the arms of the United States, of the Territory of New Mexico, the civil government of this Territory having been overthrown, the officer, General Kearney, holding possession for the United States in virtue of the power of conquest and occupancy, and in obedience to the duty of maintaining the security of the inhabitants in their persons and property, ordained under the sanction and authority of the United States a provisional or temporary government for the acquired Territory. By the substitution of a new supremacy, although the former political relations of the inhabitants were dissolved, their private relations, and their rights

* *

* 9 Howard Rep., 614.

*

arising from contract or usage, remained in full force and unchanged, except as far as they were in their nature and character found to be in conflict with the Constitution and laws of the United States, or with any regulations which the conquering and occupying authority should retain."*

Such is the law of nations as expounded by the Supreme Court of the United States, and sustained by the highest judicial authorities everywhere. In accordance with the

principles sanctioned by these decisions, and the action of the administration of both President Lincoln and his successor, it may be assumed as settled, that the Confederates were public enemies, the Rebel Governments, both State and Confederate, having been overthrown, the United States, in obedience to the duty of maintaining the security of the inhabitants, in their persons and property, and to carry out the obligation to guarantee to each State, a government, republican in form, and to restore them ultimately to the Union, rightfully ordained provisional governments for the rebellious territory.

Much of the confusion, and difference of opinion among the people in regard to the condition or status of the Rebel States, has arisen from the ambiguity of language. Upon the much mooted question whether the Rebel States were in the Union or out of it, during and at the close of the war, there is probably really less difference of opinion among contending parties, than the persons composing those parties suppose.

The land of the eleven seceding States has always constituted a part of the United States, and has never been out of the Union; nothing but successful revolution could take it out. But "a State," within the meaning of the Constitution, as a State entitled to representation in Congress, and to participate in the Electoral Colleges, is the corporation formed by the people, for the purpose of local State Government. Were the eleven seceding State corporations, which made up the Confederacy during the war, States in the Union! Each of them had, as a corporation, withdrawn from the Union, organized a de facio State Government in hostility to the Union, and was to the extent of their ability, carrying

*20 Howard S. C. Rep., 176.

THE RIGHT TO GOVERN REBELLIOUS STATES.

719

on war against it. Were these de facto State Governments at that time States in the Union, and entitled to representation in Congress, and to vote in the Electoral Colleges? All will answer no. So the courts, and every department of the Government have always held.

When these Rebel Governments, State and Confederate, were overthrown, in what way were new, loyal, and republican State Governments to be organized? The State Governments existing before the war, had rebelled, and constituted the State Government de facto during the war, and being now overthrown, there were no State Governments remaining in the territory lately in rebellion. The President, in his proclamations appointing Provisional Governors, after the surrender of Lee and Johnston, says that the rebellion had "deprived the people of these States of all civil government.” When in the spring and early summer of 1865, the de facto Governors of States lately in rebellion, issued proclamations, calling the de facto Legislatures of the States to meet, the military authorities of the United States prohibited such meetings, deposed the Governors and other officers, and appointed others in their place, and required that proceedings to establish civil government should start fresh and new from the loyal people, under the authority and direction of the National Government. Not only this, but the President in his proclamation, declared all acts and proceedings of the political, military, and civil organizations "of the late Confederate and State Governments null and void."*

The right to impose conditions upon the people of the States lately in rebellion, is scarcely questioned by any loyal man; what department of the National Government shall determine what those conditions shall be, is a question about which there is greater difference of opinion. The administration of Andrew Johnson dictated to the seceding States the leading provisions which they were required to incorporate into their new State Constitutions. They were required, among other things, to ratify the Constitutional amendment prohibiting slavery, and to repudiate the rebel debt. Mr. Seward, Secretary of State, wrote to Provisional Governor Perry, of South Carolina, under date of November 6, 1865,

* See Proclamation of May 9, 1865

"The President considers the acceptance by South Carolina of the amendment, (Constitutional amendment abolishing slavery,) as indispensable to a restoration of her relations with the other States of the Union."

The question has assumed very grave importance, whether, under the Constitution, it was the duty of the President, or Congress, to prescribe the terms and conditions upon which the States lately in rebellion might return to the Union. Whatever in this direction was done by Mr. Lincoln, was always done, subject to the approval and sanction of Congress; and his successor, up to a late day in 1865, seems to have proceeded upon the same idea.

The Secretary of State, under direction of the President, on the 12th of September, 1865, wrote to Provisional Governor Marvin, of Florida, "It must be, however, distinctly understood that the restoration, to which your proclamation refers, will be subject to the decision of Congress."

Is the duty of prescribing terms and conditions upon which the lately rebellious people of the seceding States may return to the Union, an Executive, or a Legislative act? Who is to judge whether a people presenting a Constitution, and asking recognition and admission into the Union, have adopted a Constitution republican in form?

This question has been settled by the Supreme Court of the United States, by Congress, and by the people. Whether a State, appearing with her Senators and Members, has a Constitution, republican in form, and whether she shall be admitted, is a question which must be settled by the law-making power-Congress, with the approval of the President, or, by Congress passing a bill, nothwithstanding the objections of the President.

This question was settled by the Supreme Court, in the celebrated Rhode Island case.* This case arose from an attempt made by a part, perhaps a majority, of the people of that State, to set up a new State Government, formed by the voluntary act of the people, without any enabling act either of Congress or the State; and which, in its attempt, met with armed resistance from the existing State Government.

* Luther v. Borden, 7 Howard's R. p. 1.

THE RIGHT TO GOVERN THE REBELLIOUS STATES.'

721

The Supreme Court, after quoting Section 4 of Article IV. of the Constitution, says: "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 guarantee to each State a republican government, Congress must necessarily decide what government is established in a 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, are recognized by the proper constitutional authority, and its decision is binding upon every other department of the Government."

This is in accordance with the uniform practice of the Government in regard to the admission of Territories.

From this brief and imperfect sketch, or outline, of the war powers, claimed and exercised during the rebellion, it is obvious that many of them were novel, and some of them widely conflicting with public opinion formed in the quiet days of peace. President Lincoln assumed the exercise of these great powers cautiously, often reluctantly, unwilling, except under the pressure of supreme necessity, to establish precedents so liable to abuse by more ambitious, unscrupulous, and arbitrary successors.

The action of the Government during the rebellion. established the fact to all, that our republican institutions, while affording the amplest security and protection to the citizen in time of peace, was as powerful and as efficient as a more arbitrary government in time of civil war. That the Commander-in-Chief and the war-making power had control over the resources, the men, material, and money of the Republic, and that our Government was as able and efficient as any to suppress insurrection and cope with civil war.

The world beheld with surprise, and some astonishment, a free Republic, acting in accordance with its organic law as embodied in its written Constitution, contending against more than eight millions of its rebellious subjects; wielding vast armies and navies; controlling and concentrating, wth unsurpassed energy, the immense physical resources of twenty millions.