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CHAPTER XXX.

THE CONSTITUTIONAL HISTORY OF THE WAR.

THE WAR POWERS OF THE GOVERNMENT_THE RIGHT TO TREAT

THE CONFEDERATES AS Public ENEMIES—THE HABEAS CORPUS, WHO MAY SUSPEND IT—THE RIGHT TO EMANCIPATE SLAVES IN TIME OF WAR — To ESTALISH MILITARY GOVERNMENTS OVER REBELLIOUS AND BELLIGERENT TERRITORY—THE LEGAL STATUS OF REBELLIOUS STATES—JUDICIAL DECISIONS—May CONDITIONS BE IMPOSED UPON REBELLIOUS STATES, BEFORE BEING PERMITTED TO PARTICIPATE IN THE GOVERNMENT—AND BY WHAT POWER— WHO MUST DETERMINE WHETHER A STATE GOVERNMENT 18 REPUBLICAN IN FORM-WHAT HAS BEEN SETTLED BY THE WAR.

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history of the Constitution during the war. During the rebellion, a great party condensed into a single, short sentence its creed and its policy: The Union as it was, and the Constitution as it is." To this it was replied, the America of

the past is gone forever; a new nation has been born through the agony of the great civil war. The theories and the institution which produced that war, have been overthrown, and their roots are being eradicated. Changes in the construction of the Constitution; in the development of its long dormant and scarcely suspected war powers, and amendments to the Constitution itself, have produced changes which almost amount to a revolution. The attention of the people has been so absorbed by the stirring scenes of the conflict, by the hopes which elated, and the fears which depressed them, that they have scarcely noticed, in the presence of these more stirring events, this revolution.

A revolution as important in its results as the defeat of hostile armies, or the overthrow of armed rebellion. civil wars have, almost always, produced great changes. When they have secured liberty and justice; when they have exalted the sentiment of national honor; and when, in any large degree, they have promoted the public welfare, then the results which they have produced, are more important, more paramount, more permanent, and more worthy of admiration than the most renowned of victories. War, in itself, is but a record of suffering, heightened often, it is true, by the display of the highest virtue and capacity, but chiefly interesting from its results; and as the means to accomplish great ends.

The most valuable lessons in history are derived, not from mere military operations, but from the conflict of the great ideas and principles which underlie all great wars. In the great and sad tragedy of our civil war, crowded, as it has been, with scenes of the most intense interest, nothing is more important than the great political revolution which it has accomplished. The two great ideas which the Union armies represented, were Nationality and Liberty. At the South, it was Slavery and the State. National Unity and Universal Freedom have triumphed; and, with their triumph, there has been a great change of opinion in respect to the war powers of the Goverument under the Constitution, including the powers of the President and Congress, on the subject of rebellion, slavery, treason, and

The history of these changes, the Constitutional history of the war, is worthy of the profound study of all enlightened statesmen aud thinkers, of all who trust in and admire, or who fear the progress of popular government.

It is, doubtless, too early to write this part of the history of the great conflict. The atmosphere is not yet clear of the clouds of the contest, and the billows of contending opinion have not yet entirely subsided. I propose to note some of the changes, and thereby aid those who, in cooler and calmer days, shall make up the record.

Let us go back, and see what was the condition of public opinion, which in our country makes the law, preceding the war, on the subjects suggested, and compare it with the present, and the great changes will be obvious and striking. The best evidence of public opinion upon the construction of the Constitution in regard to slavery, State rights, the

war.

National Government, and the war powers under the Constitution, is to be found in the platforms of the great political parties, in the messages and action of the Executive, and the action of the several departments of the Government, the speeches of leading statesmen, and resolutions of public meetings.

The platform of the Republican party, on which President Lincoln was elected, contained this resolution :

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Resolved, That the maintenance inviolate of the rights of the States; and especially the right of each State to order and control its own domestic institutions according to its own judgment exclusively, is essential to the balance of power on which the perfection and endurance of our political fabric depend, and we denounce the lawless invasion by armed force of the soil of any State or Territory, no matter under what pretext, as among the gravest crimes.”

Democratic resolutions, beginning in 1810, and continuing to 1860, were repetitions of the following:

Resolved, That Congress has no power under the Constitution to interfere with or control the domestic institutions of the several States," etc.

The ancient and long established doctrine of the Democratic party in relation to slavery was expressed in the Cincinnati Platform in 1856, as follows: “ That Congress has no power under the Constitution to interfere with, or control the domestic institutions of the several States, and that all such States are the sole and proper judges of everything appertaining to their affairs not prohibited by the Constitution.”

The Attorney General of the United States, Judge Black, in an official opinion dated November 20, 1860, (being about two weeks after Mr. Lincoln's election, and presented to the Cabinet of President Buchanan,) declares in substance, that war made by Congress upon a seceding State would dissolve the Union, and thus legalize secession. His words are:

“ If it be true that war cannot be declared, nor a system of general hostilities carried on by the central Government against a State, (as he had previously attempted to show,) then it seems to follow that an attempt to do so would be ipso facto an expulsion of such State from the Union; being treated as an alien and an enemy, she would be compelled to act accordingly. And if Congress shall break up the present Union by unconstitutionally putting strife and enmity between different sections of the country, instead of the domestic tranquility which the Constitution was meant to insure, will not all the States be absolved from their 'Federal obligations ? Is any portion of the people' bound to contribute their money or their blood to carry on a contest like that?

President Buchanan, in his Message of December 3, 1860, says:

“ The question fairly stated is : Has the Constitution delegated to Congress the right to coerce a State into submission, which is attempting to withdraw, or has actually withdrawn from the Confederacy? If answered in the affirmative it must be upon the principle that power has been conferred upon Congress to declare or to make war upon a State. After much serious reflection, I have arrived at the conclusion that no such power has been delegated to Congress or to any other department of the Federal Government. Without descending to particulars, it may be safely asserted that the power to make war against a State is at variance with the whole spirit of the Constitution.

Congress possesses many means of preserving it, (the Union,) by conciliation, but the sword was not placed in their hands to preserve it by force."

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It was resolved by Congress in 1861, by a nearly unanimous vote;

" That neither the Federal Government nor the people, or the Governments of the non-slaveholding States have the right to legislate upon or interfere with slavery in any of the slaveholding States of the Union."

On the 14th of January, 1861, Mr. Corwin, Chairman of a Select Committee of thirty-three, reported a series of propositions to the House of Representatives, the first of which was adopted in the form of a Joint Resolution by a vote of 137 to 53, in the House, and was subsequently passed by the Senate, contained the following:

Resolved, That it is the duty of the Federal Government to enforce the Federal laws, protect the Federal property and preserve the Union of these States.

Resolved, That we recognize slavery as now existing in fifteen of the United States by the usages and laws of those States, and we recognize no authority legally or otherwise, outside of a State where it so exists, to interfere with slaves or slavery in such States, in disregard of the rights of their owners or the

peace of society.”

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The following resolutions passed the United States House of Representatives, February 11th, 1861, 116 yeas, 4 nays:

4 Resolved, That neither the Federal Government nor the people, nor Governments of the non-slaveholding States have a purpose or a Constitutional right to legislate upon or interfere with slavery in any of the States of the Union.

" Resolved, That those persons in the North who do not subscribe to the foregoing propositions are too insignificant in numbers and influence to excite the serious attention or alarm of any portion of the people of the Republic; and that the increase of their numbers and influence does not keep pace with the increase of the aggregate population of the Union."

On the 28th of February, 1861, a Joint Resolution was passed, 133 to 65, providing for an amendment of the Constitution, as follows:

“ ART. 12. No amendment shall be made to the Constitution which shall authorize or give to Congress the power to abolish or to interfere within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State.”

Abraham Lincoln, in his Inaugural Address, March 4, 1861, says: “I have no purpose directly or indirectly to interfere with the institution of slavery in the States where it exists. I believe I have no lawful right to do so, and I have no inclination to do so."

President Lincoln again says in his Inaugural Address of March 4th, 1861: “I understand a proposed amendment to the Constitution, which amendment, however, I have not seen, has passed Congress, to the effect that the Federal Gorernment shall never interfere with the domestic institutions of the States including that of persons held to service. To avoid misconstruction of what I have said, I depart from my purpose not to speak of particular amendments so far as to say that,

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