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Mr. Stevens. A candid
examination of the power and proper principles of
reconstruction can be offensive to no one, and may possibly
be profitable by exciting inquiry. One of the suggestions of
the message which we are now considering has special
reference to this. Perhaps it is the principle most
interesting to the people at this time. The President
assumes, what no one doubts, that the late rebel States have
lost their constitutional relations to the Union, and are
incapable of representation in Congress, except by
permission of the Government. It matters but little, with
this admission, whether you call them States out of the
Union, and now conquered territories, or assert that because
the Constitution forbids them to do what they did do, that
they are therefore only dead as to all national and
political action, and will remain so until the Government
shall breathe into them the breath of life anew and permit
them to occupy their former position. In other words, that
they are not out of the Union, but are only dead carcasses
lying within the Union. In either case, it is very plain
that it requires the action of Congress to enable them to
form State government and send representatives to Congress.
Nobody, I believe, pretends that with their old
constitutions and frames of government they can be permitted
to claim their old rights under the Constitution. They have
torn their constitutional States into atoms, and built on
their foundations fabrics of a totally different character.
Dead men cannot raise themselves. Dead states cannot restore
their own existence "as it was." Whose especial
duty is it to do it? In whom does the Constitution place the
power? Not in the judicial branch of Government, for it only
ajudicates and does not prescribe laws. Not in the
Executive, for he only executes and cannot make laws. Not in
the Commander-in-Chief of the armies, for he can only hold
them under military rule until the sovereign legislative
power of the conqueror shall give them law.
"New States may be admitted by the Congress into this Union"
To prove that they are and for four years
have been out of the Union for all legal purposes, and being
conquered, subject to the absolute disposal of Congress, I
will suggest a few ideas and adduce a few authorities. If
the so called "confederate States of America" were an
independent belligerent, and were so acknowledged by the
United States and by Europe, or had assumed and maintained
an attitude which entitled them to be considered and treated
as a belligerent, then, during such time, they were
precisely in the condition of a foreign nation with whom we
were at war; nor need their independence as a nation be
acknowledged by us to produce that effect. In the able
opinion delivered by that accomplised and loyal jurist, Mr.
Justice Grier, in the prize cases, all the law on these
points is collected and clearly stated. (2 Black, page 66)
Speaking of civil wars, and following Vattel, he says:
The idea that the States could not and did not make
war becausee the Constitution forbids it, and that this must
be treated as a war of individuals, is a very injurious and
groundless fallacy. Individuals cannot make war. They may
commit murder, but that is not war. Communities, societies,
States, make war. Phillimore says, (volume 3, page 68:)
"Hence, in organizing this rebellion, they have acted as States claiming to be sovereign over all persons and property within their respective limits, and asserting a right to absolve their citizens from their allegiance to the Federal Government. Several of these States have combined to form a new confederacy, claiming to be acknowledged by the world as a sovereign State. Their right to do so is now being decided by wager of battle. The ports and territory of each of these States are held in hostility to the General Government. It is no loose, unorganized insurrection, having no defined boundary of possession. It has a boundary marked by lines of bayonets, and which can be crossed only by force. South of this line is enemies territory, because it is claimed and held in possession by an organized hostile and belligerent power."
Again, the court say, what I have been astonished that anyone should doubt:
"The proclamation of blockade is itself official and conclusive evidence to the court that a state of war existed."
"The conventions, the treaties, made with a nation are
broken or annulled by a war arising between the contracting
parties." -- Vattel, page 372, Halleck, 373, section 23
At Page 427:
"And when a nation becomes divided into two parties absolutely independent, and no longer acknowledge a common superior, the State is dissolved, and the war between two parties stands on the same ground, in every respect, as a public war between two different nations."
But must the belligerent be acknowledged as an independent
nation, as some contend? That is answered in the case
referred to in 2 Black, as follows:
This doctrine, so clearly established by publicists, and so distinctly stated by Mr. Justice Grier, has been frequently reiterated since by the Supreme Court of the United States. In Mr. Alexander's case (2 Wallace, 419) the present able Chief Justice, delivering the opinion of the court, says:
"We must be governed by the principle of public law so often announced from the bench as applicable to civil and international wars, that all the people of each State or district in insurrection against the United States must be regarded as enemies until by the action of the Legislature and Executive, or otherwise, that relation is thoroughly and permanently changed."