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, this triumph is inevitable. It may be by a sudden collapse of the bloody imposture, or it may be by a slower and more gradual surrender. For ourselves, we are prepared for either alternative, and shall not be disappointed, if we are 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 may not be lost.

The relations of the States to the National Government must be carefully considered, not too boldly, not too timidly, -in order to see 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, which have thus far been so effective in raising armies and in 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, 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 pretension. Strange will it be, if this extraordinary power, amply conceded to the President, is denied to Congress. Practically the whole ques

tion with which I began is opened here. Therefore to this aspect of it I ask your first attention.

CONGRESSIONAL GOVERNMENT vs.

MILITARY GOVERNMENT.

FOUR military governors have been already appointed: one for Tennessee, one for South Carolina, one for North Carolina, and the other for Louisiana. So far as is known, the appointment of each was by a 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. But assuming, that, as our arms prevail, it will be done in every Rebel State, we shall then have eleven military governors, all deriving their 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 which 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 a military government, when we see where such a step will lead. If you approve one, you

must approve all, and the National Government may crystallize into a military despotism.

In appointing military governors of States, we follow an approved example in certain cases beyond the jurisdiction of our 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 which 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."

In 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 whom we are beginning to appoint find a prototype in the Protectorate of Oliver Cromwell. Af

ter 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 which it is now proposed, under the favor of success, to establish among us. Of this system a great authority, Mr. Hallam, in his "Constitutional History of England," 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." *

Carlyle, in his "Life of Cromwell,” gives the following 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, 1 believe; but they are very necessary for the Puritan English nation at this time.” ↑

Perhaps no better words could be found in explanation of the Cromwellian policy adopted by our President.

A contemporary Royalist, Colonel Ludlow, whose "Memoirs" add to our 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

* Constitutional History of England, Vol. II. p. 340. Carlyle's Life of Cromwell, Part IX. Vol. II. p. 168.

"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." ↑

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." ‡

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 Stanley in North Carolina are in themselves an argument against the whole system.

It is clear that these military magistrates are without any direct sanction in the Constitution or in existing laws. They are not even "major-generals," or other military officers, charged with the duty of enforcing martial law; but they are special creations of the Secretary of War, acting under the President, and charged with universal powers. As govLudlow's Memoirs, p. 559. ↑ Ibid. p. 580.

Ibid. p. 582.

ernors 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 supplied 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 gov. ernors 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 the discussion by assuming everything in their favor which 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 not constitutional, 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

"Though the Constitution vests the executive power in the President, and declares him 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 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."

Such is the weighty testimony of this illustrious master with regard to the assumption of power by the President, in 1847, over the Mexican ports in our possession. It will be found in the latest edition of his "Commentaries" published during the author's life. Of course, it is equally applicable to the recent assumptions within our own territory. His judgment is clear in favor of Congressional governments.

Of course, 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

* Kent's Commentaries, Vol. I. p. 292, note b.

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.

STATE RIGHTS.

AND 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 States.

From a period even anterior to the Federal 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 its armies or its 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