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 SPEECH 
 
 HON. REVERDY JOHNSON, 
 
 OF MARYLAND, 
 
 v> 
 
 ORGANIZATION OF PROVISIONAL GOVERNMENTS WITHIN THE STATES WHOSE PEOPLE WERE 
 LATELY IN REBELLION AGAINST THE UNITED STATES; 
 
 IN THE SENATE OF THE UNITED STATES, JANUARY 11, 1866. 
 
 WASHINGTON: 
 ^6y , PRINTED AT THE CONGRESSIONAL GLOBE OFFICE. 
 
 1866. 
 
EU2 
 
SPEECH. 
 
 The Senate having under consideration the joint 
 resolution (S. R. No. 11) in relation to the organiza- 
 tion of provisional governments within the States 
 whoso people were lately in rebellion against the 
 United States — 
 
 Mr. JOHNSON said : 
 
 Mr. President : In the remarks which I 
 propose to submit to the Senate, it is my 
 purpose to consider almost exclusively the 
 question as to the actual condition of the 
 States in which insurrections have heretofore 
 existed; and I take occasion to do it now be- 
 cause I differ materially from the honorable 
 member from Wisconsin, [Mr. Howe,] who 
 spoke so well yesterday in maintaining an 
 opinion opposite to my own, from a desire 
 that that opinion, supported as it was in a very 
 carefully prepared and very able speech, should 
 not be permitted to go to the country a day 
 without an effort at a reply. I feel no reluc- 
 tance in speaking upon the particular question 
 now because I happen to be a member of the 
 committee of fifteen, because the opinion which 
 I am about to state and to uphold is one which 
 J have entertained from the beginning; not 
 only from the beginning of our recent troubles, 
 but from the earliest period at which I can 
 recollect I had any opinion at all upon the 
 meaning of the Constitution in the particular 
 involved. 
 
 I understand the honorable member from 
 Wisconsin to maintain that the effect of the hos- 
 tilities which we have been carrying on to sup- 
 press the insurrection in certain of the States 
 where it has prevailed for some four years is to 
 extinguish altogether the States as such, and to 
 reduce the territory of which those States were 
 composed at the time when the insurrection 
 broke out to the condition of Territories, and to 
 subject the people of those States to be governed 
 under that clause of the Constitution which gives 
 to Congress the power to govern the Territories, 
 
 or upon the ground that they have been con- 
 quered by the United States, and that the power 
 to govern is to be implied from the.right of con- 
 quest when the conquest is completed. 
 _ Mr. HOWE. If the honorable Senator is 
 simply stating what he understands to be the 
 effect of my argument, I cannot object to it ; but 
 if he understood me to say that the purpose for 
 which we prosecuted this war was to extinguish 
 those States, he misunderstood me. 
 
 Mr. JOHNSON. I have not so stated. 1 
 did not understand the honorable member as 
 saying that the purpose for which the war was 
 prosecuted, but that the result of the prosecu- 
 tion of the war, was to reduce those States to 
 the condition of Territories. It is to that prop- 
 osition 
 
 Mr. HOWE. If the honorable Senator will 
 pardon me for one moment, my position was 
 not that the result of the prosecution of the 
 war was to reduce those States to Territories, 
 but that they assumed the legal character of 
 Territories by reason of their own acts, inde- 
 pendent of the war. They destroyed the State 
 organizations, not we. 
 
 Mr. JOHNSON. I so understood you. 
 
 Mr. HOWE. And the effect of the war was 
 simply to reduce them to obedience to the Uni- 
 ted States, to be governed by such instrumen- 
 talities as the Constitution has provided. 
 
 Mr. JOHNSON. I am sure I have not mis- 
 apprehended the Senator. It would have been 
 very difficult for anybody to misapprehend him, 
 for he was exceedingly lucid in everything he 
 said. It may be possible that I may fail to ex- 
 plain what I understand to have been his prop- 
 ositions, and if I should do so in any part of the 
 remarks which I am about to make, I hope the 
 honorable Senator will set me right. 
 
 Mr. President, I propose first to inquire, what 
 is the effect of the war itself? Is its successful 
 result to reduce the States to the condition of 
 Territories? I shall then inquire, if that is not 
 
its effect, whether that has been produced by any 
 conduct upon the part of the citizens residing 
 within the limits of those States? No member 
 of the Senate, I am sure, is now to learn that 
 there is no power in the Constitution of the Uni- 
 ted States given to Congress, or any other de- 
 partment of the Government, to declare, or to 
 carry on, a war against any State. The power 
 to declare war, devolved upon Congress by the 
 eighth section of the first article, is a power 
 evidently looking to a war between the United 
 States and a foreign nation. The authority, too, 
 to protect the United States, or a State, by arms 
 against invasion is a power given to Congress 
 for protection against foreign invasion. If there 
 could be any doubt, looking to the character of 
 the Government, that such is the limitation of 
 the war power, that doubt would be removed by 
 the fact that there is in another part of the same 
 section a provision which looks to the carrying 
 on of such a contest as the one in which we have 
 just been engaged. The language of that clause 
 of the section succeeding the one which gives 
 to Congress the authority to declare war, to 
 raise and support armies, and to maintain and 
 equip a' navy, is : 
 
 "To provide for calling forth the militia to exe- 
 cute the laws of the United States, suppress insur- 
 rection," &c. 
 
 It was not, therefore, by means of the war 
 power conferred upon Congress by the antece- 
 dent clause, giving to Congress the. authority to 
 declare war and vesting it with the means ade- 
 quate to the end designed, that domestic out- 
 breaks among ourselves were to be suppressed. 
 The Convention looked to two contingencies as 
 likely to happen : first, that we might be involved 
 in war with foreign nations ; secondly, that Ave 
 might be involved in domestic troubles. For 
 the one, they conferred upon Congress the war 
 power, strictly speaking ; and for the other, the 
 authority to suppress insurrections, not by means 
 of the war power, but by means of force. It was 
 a police power given to Congress as such ; not a 
 power under which, by any possible mode in 
 which it could be exercised, any conquest, in the 
 proper sense of that term, was to be achieved ; 
 not a power by which there was to be extin- 
 guished any existing institution in anyone of the 
 States ; and, above all, not a power to destroy a 
 State or States. 
 
 You will remember, Mr. President, and every 
 member of the Senate who is familiar with the 
 proceedings of the Convention will, I have 
 no doubt, remember, that when it was sug- 
 gested that Congress should have the authority 
 to make war against a State, the proposition 
 was repudiated as fatal to the Government by 
 two leaders of that body of mighty men, Ham- 
 ilton and Madison. I have not time to state 
 their reasons, nor to refer to the debates where 
 the)' are to be found. It is sufficient for my pur- 
 pose to say that they both denied that, as far as 
 
 the Convention had proceeded at that time, any 
 such authority was given to Congress, and pro- 
 tested against the propriety of conferring any 
 such power, and it was never conferred. 
 
 The power actually given was a power to 
 preserve, not to destroy; a power to main- 
 tain, not to extinguish ; a power to make the 
 Government what the preamble to the Consti- 
 tution states to be the purpose of its framers, 
 perpetual ; a Government for the security of lib- 
 erty for themselves and their posterity forever. 
 It would have been an extraordinary anomaly, 
 one that would justly have deprived its authors 
 of the reputation that they now hold in the eyes of 
 the civilized world, if, in forming a Government 
 they designed to be perpetual, they had given 
 it a power to destroy itself. The purpose, then, 
 of the war power, strictly speaking, and of the 
 police power conferred upon Congress by that 
 clause in the eighth section of the first article, 
 was to preserve, and not to destroy ; to preserve 
 it if assailed by a foreign foe ; to preserve it if 
 assailed by domestic treason or violence. 
 
 The proposition is so clear that I should not 
 have deemed it necessary to cite authorities for 
 the purpose of proving it, but that perhaps the 
 observations of the honorable member from 
 Wisconsin may induce some of the Senate, or 
 induce the public, to suppose that there is in 
 the Constitution an authority to carry on a war 
 against a State. The question has been before 
 the Supreme Court of the United States in the 
 cases the opinion in which has been very much 
 relied upon as maintaining in part the doctrine 
 for which the honorable member contends ; I 
 mean the prize cases. Mr. Justice Grier, in 
 delivering the opinion of the court in these 
 cases, uses this language : 
 
 "By the Constitution Congress alone has the power 
 to declare a national or foreign war. It cannot de- 
 clare war against a State, or any number of States, 
 by virtue of any clause in the Constitution. The Con- 
 stitution confers on the President the whole executive 
 power. lie is bound to take care that the laws be 
 faithfully executed. He is Commander-in-Chief of 
 the Army and Navy of the United States, and of tho 
 militia of the several States when called into the act- 
 ual service of the United States. He has no power to 
 initiate or declare war either against a foreign nation 
 or a domestic State. But by the acts of Congress of Feb- 
 ruary 28, 1795, and of March 3, 1807, he is authorized 
 to call out the militia and use the military and naval 
 forces of the United States in case of invasion by for- 
 eign nations, and to suppress insurrection against the 
 government of a State or of the United States." 
 
 Here, then, is an express denial of the power, 
 either upon the part of Congress, or upon the 
 part of the Executive, to carry on.a war against 
 a State, under any clause of the Constitution. 
 The language is plain and positive. "It can- 
 not," says the court — that is Congress can- 
 not — " declare war against a State or any num- 
 ber of States, by virtue of any clause in the 
 
5 
 
 Constitution." And the same doctrine is held 
 by the minority in the opinion delivered by Mr. 
 Justice Nelson. He says : 
 
 "The acts of 1795 and 1S07 did not, and oould not, 
 under the Constitution, confer on the President the 
 power of declaringwar against a State of this Union." 
 
 We have, then, the unanimous opinion of the 
 Supreme Court that domestic troubles, insur- 
 rection, a refusal to obey the Constitution or 
 laws of the United States, or to execute the 
 laws, or to interpose obstacles against the exe- 
 cution of the laws, do not authorize Congress 
 to declare war against the State in which such 
 insurrection may exist, is not a condition of 
 things in which the President has any power to 
 carry on a war by virtue of the war power for 
 the purpose of reinstating the authority of the 
 Government, but, on the contrary, is a state of 
 things to be remedied by means of the police 
 power, which Congress may authorize the use 
 of by empowering the President to call out 
 the militia, or use the Army and Navy of 
 the United States to suppress an existing in- 
 surrection when it can be suppressed in no 
 other way. 
 
 It would seem, therefore, to follow that when 
 the insurrection is suppressed, when the contin- 
 gency which requires a resort to the police power 
 is at an end, the continuing use of that power, 
 only conferred to suppress an insurrection, to 
 carry on a war against a State in which there is 
 no insurrection, is a simple absurdity. The 
 design of the authority was to provide exclu- 
 sively for the exigency, to meet which was the 
 declared object of vesting the power in Con- 
 gress to suppress insurrection. If the authority 
 of the Government is set at defiance, if the laws 
 cannot be executed by civil process, it is made 
 the duty of Congress to provide other means by 
 which it can be accomplished. It is their prov- 
 ince, therefore, to put the President in posses- 
 sion of such means. But there is no more right 
 to exert by force the police power after the in- 
 surrection is suppressed than there is to exert 
 it before the insurrection commenced. 
 
 Mr. President, if I am right in this — and I do 
 not think I can be mistaken — and there are no 
 other grounds on which the proposition of the 
 honorable gentleman from Wisconsin might be 
 controverted, it is found to be repudiated by 
 the positive provisions of the Constitution and 
 by the decision of the Supreme Court. 
 
 But it is said that although there was no au- 
 thority to carry on hostilities for the purpose of 
 exterminating the States in which insurrection 
 
 Erevailed, that although that result would not 
 ave been attained by the use of force alone, yet 
 that the conduct of the citizens of those States 
 has attained it, and that the States as such are at 
 an end. At an end how? At an end why? At 
 an end because they decided to secede and 
 attempted it? At an end because we have 
 acquired rights over them by conquest which 
 
 we had not when the rebellion begun? Now a 
 word as to the first ground. 
 
 The States ceased to exist by virtue of the 
 conduct of their own citizens, is the argument. 
 What conduct, and when had it that effect? 
 They passed ordinances of secession. AVere 
 these valid? Had they any legal operation what- 
 ever? Did they take the States whose people 
 had passed such ordinances out of the Union? 
 Did they dissolve the connection to any extent 
 which existed as between those States and the 
 Union by force of the Constitution? If they 
 did, it can only be because the ordinances were 
 valid. The States are out, says the honorable 
 Senator from Wisconsin, because their people 
 determined that they should go out ; they are 
 out, because they were so far disloyal as to de- 
 clare by ordinance that they were out; they are 
 out because they are still disloyal, although the 
 insurrection has been in fact suppressed and the 
 authority of the Government reinstated. Well, 
 if they are, why is that the result ? If the ordi- 
 nances were void, they could not take them out. 
 If the citizens had not a right to be disloyal, 
 their_ disloyalty could not put them out. If, 
 notwithstanding the ordinances, on the clay after 
 they were passed the States were as much in the 
 Union as on the day before they were passed, 
 and if, after the ordinances were adopted and 
 hostilities were being carried on, their citizens 
 had no more right to be disloyal than they had 
 before hostilities commenced, then they are just 
 as much in the Union now as they were before. 
 
 Will any member of the Senate seriously main- 
 tain, or maintain at all, that the ordinance of 
 secession had any validity whatever? If any 
 member does so hold, the war upon our part has 
 been a great crime ; we have been traitors to the 
 obligationsweareunderto the Constitution, and 
 not those who, exercising the right of secession, 
 have separated themselves from us. But if, as 
 we all hold, and now everybody thinks, the Con- 
 stitution confers no right of separation, but im- 
 poses an obligation upon every citizen in every 
 State, no matter what may be his conduct or the 
 conduct of all his fellow-citizens, as absolute as 
 it does upon every citizen in any other State, then 
 the ordinances of secession were simply void, 
 absolutely void, having no more effect to termi- 
 nate the connection between those States and 
 the people of those States and the Government 
 of the Union, than if such ordinances had been 
 passed by any people outside of the limits of the 
 United States ; and my friend from Wisconsin 
 must admit this view to be correct. 
 
 If the ordinances of secession then had no op- 
 eration, but were legal nullities, how is it that 
 separation is effected by the conduct of the indi- 
 vidual citizens ? Is not every man who has been 
 engaged in the insurrection, and who lias at- 
 tempted to maintain it by force of arms, a traitor, 
 if we look merely to the language of the Consti- 
 tution in its definition of treason? Can anybody 
 doubt that ? Whether he may be prosecuted for 
 
treason now, under the circumstances which 
 have occurred since hostilities commenced, is 
 a grave question which I do not propose to dis- 
 cuss or to express an opinion upon at this time. 
 But, regarding only the single fact that he has 
 been a party to the insurrection and has endeav- 
 ored to aid and support it by forceof arms, I 
 apprehend there is not a member of the Senate 
 who will for a moment question the right of the 
 Government to prosecute him for treason, and 
 that that right is not dependent upon the time 
 at which he may have attempted by force of 
 arms to resist the authority of the Government. 
 If done an hour before hostilities terminated by 
 the surrender of the insurgents, he is just as 
 much a traitor, in the eye of the Constitution, 
 looking alone to the fact that he was so engaged, 
 as he was a traitor who, in the origin of the re- 
 bellion, supported it by force of arms. And if 
 this be so, why is it so? Only because he was 
 then, and is still, a citizen of the United States, 
 bound by the Constitution of the United States, 
 under the obligation of the laws of the United 
 States, and because what he has done has been 
 an act violative of the obligations of both, and 
 an act subjecting himself to the consequences 
 of that violation, just as absolutely as my hon- 
 orable friend (if he will permit me to suppose 
 such a thing possible) would be if he, in his 
 State of Wisconsin, was found in arms resisting 
 the rightful authority of the United States. 
 
 Unless I am greatly mistaken this result can- 
 not depend on whether a few or many are in 
 the insurrection. It is insurrection still in the 
 view of the Constitution, and being insurrection 
 attempted to be maintained by force of arms, it 
 is treason, and treason only because, like our- 
 selves who have been here during the whole of 
 the contest, faithful to our allegiance, these err- 
 ing, misguided men were citizens of the Uni- 
 ted States, and responsible to all the obligations 
 imposed upon citizens of the United States by 
 the Constitution and laws passed under its au- 
 thority. 
 
 What would be the consequence of the oppo- 
 site doctrine — I do not mean to say that the 
 honorable member from Wisconsin goes to that 
 extent — but what would be the logical result 
 of the opposite doctrine? The States, accord- 
 ing to that doctrine, are out ; as such they have 
 ceased to exist ; they are not to be recognized 
 by the Constitution at all ; they are as absolutely 
 without the Constitution as States as any of the 
 'unorganized territories of the United States. 
 If this be so, if this is the effect of what has 
 happened, how are you to get them in? The 
 honorable member goes to the length which I am 
 about to state, if I correctly apprehended him, 
 as I certainly endeavored to do. You are, he 
 contends, to get them in again only by subject- 
 ing them first to a territorial government. What 
 does that admit? That they are under no ob- 
 ligation as citizens of a State to obey the Con- 
 stitution and laws of the United States, that 
 
 they are under no obligation to take any part 
 in the election of the Executive, in the election 
 of. Senators, in the election of members of the 
 House of Representatives. What follows from 
 this? Does this enforce the Constitution and 
 laws ? Is this the only manner in which the au : 
 thority of the Government is to be reinstated? 
 The offense of these citizens was a refusal to 
 participate in the councils of the nation. The 
 proposition is that that very refusal has put 
 them in a condition in which they have no right 
 to participate in such councils, and cannot par- 
 ticipate unless we hereafter, at any time when in 
 our judgment we may think proper, give them 
 that right. 
 
 Let us see what is to become in the mean time 
 of our laws in other respects. How is your 
 revenue to be collected by any laws now in force ? 
 If you impose a direct tax, how is that to be 
 apportioned by any law now in force ? The lan- 
 guage of the Constitution is that direct taxes 
 are to be apportioned among the States in a 
 certain proportion. Have you not done it pend- 
 ing the insurrection? You passed an act in 
 1801, from which I am about to read. It was 
 passed on the 5th of August, the rebellion hav- 
 ing commenced in April preceding. I rather 
 think my friend to whom I am replying voted 
 for this law. Certainly I can find nothing in 
 the proceedings of the Senate to show that he 
 or any other Senator opposed it ; he will cor- 
 rect me if I am wrong. When this law -svas 
 passed, the result of the conflict, in the appre- 
 hension of some, was exceedingly doubtful; 
 those of us who were most confident were some- 
 what apprehensive. All the conduct of the 
 States or citizens upon which the honorable 
 member now relies for the purpose of showing 
 that these States ceased to exist and are now 
 Territories, they and their citizens, to be gov- 
 erned accordingly, had then occurred. What 
 is the law passed, 1 believe, by a unanimous 
 vote of this body, and, as far as I know, with 
 like unanimity in the House ? It is entitled ' ' An 
 act to provide increased revenue from imports, 
 to pay interest on the public debt, and for other 
 purposes." Its every section bears upon the 
 question I am discussing, but I have not time 
 to read the whole. I refer particularly to the 
 eighth section, which provides: 
 
 " That a direct tax of $20,000,000 be, and is hereby, 
 annually laid upon the United States, and the same 
 shall be, and is hereby, apportioned to the States, 
 respectively, in manner following." 
 
 And then it proceeds to state the amount 
 apportioned to each State, and among these 
 items are these : 
 
 "To the Stateof Virginia, ninehundred and thirty- 
 seven thousand five hundred and fifty and two third 
 dollars. 
 
 " To the State of North Carolina, five hundred and 
 seventy-six thousand one hundred and ninety-four 
 and two third dollars. 
 
" To the State of South Carolina, three hundred and 
 sixty-three thousand five hundred and seventy and 
 two third dollars. 
 
 "To the State of Georgia, five hundred and eighty- 
 four thousand three hundred and sixty seven and one 
 third dollars. 
 
 " To the State of Alabama, five hundred and twenty- 
 nine thousand three hundred and thirteen and one 
 third dollars, 
 
 "To the State of Mississippi, four hundred and thir- 
 teen thousand eighty-four and two third dollars. 
 
 "To the State of Louisiana, three hundred and 
 eighty-five thousand eight hundred and eighty-six 
 and two third dollars. 
 
 "To the State of Tennessee, six hundred and sixty- 
 nine thousand four hundred and ninety eight dollars. 
 
 "To the State of Arkansas, two hundred and sixty- 
 one thousand eight hundred and eighty-six dollars. 
 
 "To the State of Florida, seventy-seven thousand 
 five hundred and twenty-two and two third dollars. 
 
 "To the State of Texas, three hundred and fifty-five 
 thousand one hundred and six and two third dollars." 
 
 Making an aggregate of between five and six 
 million dollars as the proportions of these States 
 of the 820,000,000 which you proposed to raise 
 by this law. Look to the Constitution of the 
 United, States and you- find that you had no 
 authority to make that apportionment except 
 upon the theory that these States were then 
 States of the Union. The honorable member 
 tells us now that Virginia is out, and that each 
 of the other named States are out, and have no 
 existence. If she and the rest of them do not 
 exist now they had no existence then ; and on 
 the other hand, if they were within the Union 
 then, they are for the same reason within the 
 Union now. After the law passed it was found 
 somewhat difficult to enforce the collection of 
 that portion of the $20, 000, 000 allotted to States 
 actually in rebellion, and Congress deemed it 
 necessary to pass a supplementary act, to which 
 I also invite the attention of the Senate. It is 
 the act of June 7, 1862, entitled "An acl for 
 the collection of direct taxes in insurrectionary 
 districts within the United States, and for other 
 purposes." The first section provides : 
 
 " That when in any State or Territory, or in any 
 portion of any State or Territory, by reason of insur- 
 rection or rebellion, the civil authority of the Govern- 
 ment of the United States is obstructed so that the 
 provisions of the act entitled ' An act to provide in- 
 creased revenue from imports, to pay interest on the 
 public debt, and for other purposes,' approved Au- 
 gust 5, 1861, for assessing, levying, and collecting the 
 direct taxes therein mentioned, cannot be peaceably 
 executed, the said direct taxes, by said act apportioned 
 among the several States and Territories, respectively, 
 shall be apportioned and charged in each State and 
 Territory, or part thereof, wherein the civil author- 
 ity is thus obstructed, upon all the lands and lots of 
 ground situate therein, respectively." 
 
 Tt then provides that each tract of land in 
 those States — not Territories — shall be liable 
 
 for its proportion of the tax. and commission- 
 ers are to be appointed to colled the tax as fast 
 as our armiesmake theirprogress. Just as the 
 insurrection is quelled, whether it be in whole 
 or in part, in any one State, the operation of 
 the law commences through the civil means fur- 
 nished bythe laws ; and in the interim, to guard 
 againstthecontingencythattheremaylc salfe of 
 the lands, which it may be necessary to the Gov- 
 ment to disposeofinorderto realize the tax, the 
 law providesthat the amount of the tax appor- 
 tioned bythe act of 1861 shallbe consideredasa 
 lien upon all the land in these very States, as 
 States, which the honorable member from Wis- 
 consin would have us believe, as no doubt he be- 
 lieves, are now out of the Union, and not States 
 at all. Didhenotvotefortheactofl8G2? Ihave 
 no doubt he did. Was there any member of this 
 body who called in question the right of Con- 
 gress to pass that act ? And yet the act assumes 
 — aud there is no power to pass it except on the 
 correctness of that assumption — that they are 
 still States bound to pay their proportion of the 
 taxes for the support of the Government and 
 to carry on the war, and will be States when 
 the insurrection is suppressed. 
 
 I refer to these two acts, and there are a great 
 many others that I might cite with the same 
 view, for the purpose of proving that, in the 
 view of Congress, and in the view of the honor- 
 able member from Wisconsin himself at the 
 time he gave his assent to these two acts, the 
 States were in and not out of the Union, were 
 living and not dead States, or States that could 
 die. But this fact is further established by the 
 very first act that was passed for the purpose 
 of carrying on the war, the act of July 13, 1861, 
 entitled "An act further to provide for the col- 
 lection of duties on imports, and for other pur- 
 poses." It provides that where the President 
 finds it impossible to collect the revenue from 
 imports in the ports of any of the States in in- 
 surrection, he may do it elsewhere — in some 
 locality in the particular State where the insur- 
 rection does not extend ; or, if the insurrection 
 is commewsurate with the entire State, then he 
 is to collect it on shipboard, or to close the 
 ports of such State, and to subject any foreign 
 vessel attempting to enter such a port, after 
 notice of its having been closed by the Presi- 
 dent under authority of the act, to condemna- 
 tion as prize of war. These provisions are ab- 
 solutely inconsistent with the idea of the hon- 
 orable member from Wisconsin, as I think : but 
 there is something else in that act that is even 
 more inconsistent. What view did Congress 
 take of the character of the insurrection at the 
 time it passed the act of July 13, 1861? The 
 language of the fifth section of that act is : 
 
 " That whenever the President, in pursuance of the • 
 provisions of the second section of the act entitled 
 'An act to provide for calling forth the militia to 
 execute the laws of the Union, suppress insurrections 
 and repul invasions, and to repeal the act now in 
 
force for that purpose,' approved February 28, 1795, 
 shall have called forth the militia to suppress com- 
 binations against the laws of the United States, and 
 to cause the laws to be duly executed, and the insur- 
 gents shall have failed to disperse by the time direct- 
 ed by the President, and when said insurgents claim 
 to act under the authority of any State or States, and 
 such claim is not disclaimed or repudiated by the per- 
 sons exercising the functions of government in such 
 State or States, or in the part or parts thereof in which 
 said combination exists, nor such insurrection sup- 
 pressed by said State or States, then and in such case"— 
 
 That is, the case of an insurrection existing 
 and not suppressed — 
 
 " it may and shall be lawful for the President, by 
 proclamation, to declare that the inhabitants of such 
 State, or any section or part thereof, where such in- 
 surrection exists, are in astate of insurrection against 
 the United States; and thereupon all commercial in- 
 tercourse by and between the same and the citizens 
 thereof and the citizens of the rest of the United 
 States shall cease and be unlawful." 
 
 How long? Till Congress shall legislate? 
 No, Mr. President; but "shall cease and be 
 unlawful so long as such condition of hostility 
 shall continue ;" in other words, as long as the 
 insurrection continues. That ended, the use of 
 the militia and the use of the Army of the Uni- 
 ted States to bring about that end is to termi- 
 nate. 
 
 And what said the President of the United 
 States ? I am not aware that any member of 
 the Senate questioned the legality of any procla- 
 mation issued by President Lincoln on this sub- 
 ject, or questioned either whether he had not 
 gone to the whole extent of the power devolved 
 upon him by the section of the act of 18G1 
 which I have just quoted. And what did he 
 proclaim ? His proclamation of April 15, 18G1, 
 began thus : 
 
 " Whereas the laws of the United States have been 
 for some time past and now are opposed and the ex- 
 ecution thereof obstructed in the States of South Caro- 
 lina, Georgia, Alabama, Florida, Mississippi, Louisi- 
 ana, and Texas, by combinations too powerful to be 
 suppressed by the ordinary course of judicial proceed- 
 ings, or by the powers vested in the marshals by law." 
 
 In his proclamation of April 19, 1861, he 
 recites : 
 
 "Whereas an insurrection against the Government 
 of the United States has broken out in the States of 
 South Carolina, Georgia, Alabama, Florida, Missis- 
 sippi, Louisiana, and Texas, and the laws of the Uni- 
 ted States for the collection of the revenue cannot be 
 effectually executed therein conformable to that pro- 
 vision of the Constitution which requires duties to be 
 uniform throughout the United States; and whereas 
 a combination of persons, engaged in such insurrec- 
 tion, have threatened to grant pretended letters of 
 marque to authorize the bearers thereof to commit 
 assaults on the lives, vessels, and property of good 
 citizens of the country lawfully engaged in commerce 
 
 on the high seas, and in waters of the United States ; 
 and whereas an executive proclamation has been 
 already issued, requiring the persons engaged in these 
 disorderly proceedings to desist therefrom, calling out 
 a militia force for the purpose of repressing the same, 
 and convening Congress in extraordinary session to 
 deliberate and determine thereon: 
 
 "Now, therefore, I, Abraham Lincoln, President of 
 the United States, with a view to the same purposes 
 before mentioned, and to the protection of the public 
 peace, and the lives and property of quiet and orderly 
 citizens pursuing their lawful occupations, until Con- 
 gress shall have assembled and deliberated on the 
 said unlawful proceedings, or until the same shall hav e 
 ceased, have further deemed it advisable to set on 
 foot a blockade of the ports within the States afore- 
 said, in pursuance of the laws of the United States 
 and of the law of nations in such case provided." 
 
 In the proclamation of April 27, 1861, he 
 announces that, by the previous proclamation 
 of the 19th, a blockade of the ports of certain 
 States was ordered to be established, and adds: 
 "And whereas since that date public property of 
 the United States has been seized, the collection of 
 the revenue obstructed, and duly commissioned offi- 
 cers of the United States while engaged in executing 
 the orders of their superiors have been arrested and 
 held in custody as prisoners, or have been impeded 
 in the discharge of their official duties without due 
 legal process by persons claiming to act under author- 
 ities of the States of Virginia and North Carolina: 
 
 "An efficient blockade of tho ports of those State* 
 will also be established." 
 
 In the proclamation of August 12, 1861, he 
 states that a joint committee of both Houses of 
 Congress had requested him to recommend a 
 day of public humiliation, fasting, and prayer, 
 and he proceeds to do so, and to state the ob- 
 jects for which prayer should be offered, namely, 
 "for the reestablishment of law, order, and 
 peace throughout the whole extent of our coun- 
 try." 
 
 You authorize him to invoke, and he invokes 
 the merciful interference of Heaven to make us 
 again what we were before — States united under 
 one form of Government, with the samepowers 
 adequate to make us a nation prosperous and 
 powerful. You tell him to go to Heaven" s 
 throne and implore Heaven's interposition to 
 restore us to the condition in which we were 
 before the rebellion, to pray that "our arms 
 may, be blessed and made effectual for the re- 
 establishment of law, order, and peace through- 
 out the wide extent of our country." No in- 
 vocation to bless only a part of our land and 
 leave the other out of His benediction. 
 
 You tell him to issue a proclamation invok- 
 ing the blessings of God upon the entire coun- 
 try, not for the purpose merely of bringing about 
 individual happiness, but for the purpose of 
 bringing about what existed before under the 
 Constitution of the United States — peace and 
 order, a recognition of the authority of the Gov- 
 
9 
 
 eminent and of the authority of the laws. Yet, 
 according to the theory of the honorable mem- 
 ber from Wisconsin, at that very time the work 
 had been accomplished which the proclamation 
 sought to prevent. The proclamation, pursuing 
 your own authority, prays God to make our 
 arms successful to the end of restoring peace 
 and order everywhere in all the States. The 
 honorable member's theory is that there was a 
 large portion of the country, territorially in- 
 cluding what were eleven States before, which 
 cannot be restored by any blessings on the arms 
 of the United States. Whether they were ever 
 to have the benefit of the Constitution, or when 
 they were to have it, orto what extent they were 
 to have it, according to his theory, is to dejpend 
 upon the discretion of Congress. 
 
 Again, what has the Government done with 
 your knowledge? Have they not, just as we 
 have succeeded in getting the authority of the 
 United States reinstated in the ports of the Uni- 
 ted States, or territorially within the States, ex- 
 tended the revenue laws? Do you not collect 
 duties in New Orleans, in Charleston, in Sa- 
 vannah, in Texas? How do you do this? Under 
 what authority ? Under the authority of ante- 
 cedent laws, which give it only in relation to the 
 ports of States ; and yet, according to the hon- 
 orable member's doctrine, all those ports were 
 not ports of States of this Union at the time when 
 the Executive, with the knowledge of Congress 
 and his individual knowledge, undertook to col- 
 lect duties and to enforce the execution of the 
 impost acts and acts for the collection of in- 
 ternal revenue. What was the subject of the 
 debate this morning? The honorable member 
 from Massachusetts, who, I believe, was the 
 first to broach in the Senate the doctrine that 
 the States were extinct — a doctrine not then re- 
 ceived, as I remember, with unanimous appro- 
 bation by this body as far as any opinion was 
 expressed on the subject — that honorable gen- 
 tleman himself, this morning, finding fault as 
 he thought was his duty, with the manner in 
 which the Secretary of the Treasury was dis- 
 charging his duty of collecting the revenue in the 
 States in which the insurrection did prevail, 
 found no fault with his attempt to collect the 
 revenue. It was only as to the manner of col- 
 lecting ; it was his failure to administer the oath 
 to the assessors whom he has appointed for that 
 purpose. He recognizes, therefore, the duty of 
 the Secretary to collect revenue in South Caro- 
 lina and in Louisiana? Why? Under what laws? 
 Laws passed by you extending the revenue sys- 
 tem to the Territories of the United States, or 
 laws having no force whatever in that particular, 
 except upon the theory that the States, notwith- 
 standing the insurrection, remained and were 
 States of the Union? You are selling lands 
 there now on that theory; I suppose I am 
 guilty of no want of propriety in saying that 
 that subject has been in part before the Com- 
 mittee on the Judiciary. General Sherman, by 
 
 an order passed after he reached Georgia and 
 South Carolina, set apart a large portion of the 
 territory of those two States for the freedmen. 
 By the order, the most valuable portion of South 
 Carolina was embraced — that portion in which 
 the Sea Island cotton is made. There are no 
 such lands there now to be acted on by that 
 order. Why ? Because you have sold them to 
 meet South Carolina's proportion of the direct 
 tax; you have sold them to meet the propor- 
 tion due by the individual citizens of that State 
 to whom they belonged. Where did you get 
 that authority ? Under the antecedent law ; and 
 that law was passed on the theory that the States 
 were still in and could not be got out ; and that 
 law is now being executed upon the theory that 
 they are in, that each State, as well as every 
 individual member of each State, is just as re- 
 sponsible to pay the tax which the Government 
 may from time to time impose, as he or it was 
 before the insurrection commenced. 
 
 But that is not all. The Senate, and I sup- 
 pose my friend from Wisconsin acted with the 
 rest of the Senate in that respect, has confirmed 
 nominations of judges and district attorneys 
 and marshals for these very States. 
 
 Mr. FESSEXDEN. For certain "districts." 
 Mr. JOHNSON. Districts of the States. 
 They are all out according to the theory. 
 
 Mr. FESSENDEN. But the districts may 
 exist. 
 
 Mr. JOHNSON. I know ; but then I sup- 
 pose if you appoint district judges in all the 
 districts which may be within a State it is the 
 same as appointing them for the State itself. 
 Still, you extend the judiciary system of the 
 United States to these States in part or in 
 whole ; that my friend from Maine will of course 
 admit. Under what authority? Under the 
 authority of your antecedent legislation. The 
 Constitution of the United States creates no 
 courts, no marshals, no district attorneys : that 
 is done by legislation ; and you legislated upon 
 the subject of constituting courts and bringing 
 into existence the particular officers and mak- 
 ing it the duty of the Executive to appoint 
 whenever a vacancy from any cause should 
 exist. AVhat right has a district judge in South 
 Carolina — I believe there is but one district 
 in that State— to hold his office? What au- 
 thority had you to confer it? If South Carolina 
 was a Territory, then, as the Supreme Court 
 have decided in the case of Canter m. The 
 American Insurance Company, the judicial sys- 
 tem of the United States did not extend to it. 
 The territorial judges may be appointed for a 
 time. The judicial tenure which the framers 
 of the Constitution were so anxious to make 
 permanent, so as to make the incumbents inde- 
 pendent of legislative or executive control or 
 influence, is not considered as applying to courts 
 that may be created by Congress within the 
 Territories, and the judges of those courts may 
 therefore, it is said, be dismissed at any time. 
 
10 
 
 Such has, in fact, been the practice of the Gov- 
 ernment. They may be appointed for a term 
 of years, and dismissed as any other civil officer 
 of the Government by the Executive. Does 
 my honorable friend from Wisconsin suppose 
 that the judges in those insurrectionary States 
 can be dismissed? Will he for a moment main- 
 tain that their tenure is not an independent 
 one, that they do not hold office during good 
 behavior? I presume not; and if not, why not? 
 Because they constitute a part of the judiciary 
 of the United States as created by the Consti- 
 tution, and are no such part of the judicial sys- 
 tem of -the United States in those States except 
 upon the theory that those States are now States 
 of the Union. 
 
 Further, you have done more than this. You 
 passed an act some two or three years ago cre- 
 ating an additional judicial circuit, making Or- 
 egon and California the tenth circuit of the Uni- 
 ted States. The act of 1802 (I have not time 
 to turn to it) makes it the duty of the judfes 
 of the Supreme Court whenever any chief jus- 
 tice shall thereafter be appointed or any associ- 
 ate justice, to make an allotment of circuits. 
 What has been done (and you are presumed to 
 have known what was done) by the members of 
 the Supreme Court, and who, too, it may be 
 supposed, have some reasonably correct view of 
 the Constitution of the United States ? Here is 
 an order passed by them at their session of De- 
 cember term, 1862: 
 
 "There having been"— 
 says the order — I read from it — 
 "two associate justices of this court appointed since 
 its last session, it is 
 
 " Ordered, That the following allotment be made of 
 the Chief Justice and associate justices of said court 
 among the circuits, agreeably to the act of Congress 
 in such cases made and provided" — 
 
 That is, the act of 1802— 
 " and that such allotment be entered of record, to wit: 
 for the first circuit. Nathan Clifford; for the sec- 
 ond circuit, Samuel Nelson; for the third circuit, 
 Robert C. Grier; for the fourth circuit, Roger B. Ta- 
 ney; for the fifth circuit, James M. Wayne; for the 
 sixth circuit, John Catron; for the seventh circuit, 
 Noah H. Swayne; for the eighth circuit, David Da- 
 vis; for the ninth circuit, Samuel F. Miller; fur the 
 tenth circuit, Stephen J. Field." 
 
 Do you know what States are in these sev- 
 eral circuits? I suppose some of the Senators 
 do not. Bear in mind the exact dimensions 
 of these several circuits. The fourth circuit 
 contains Delaware, Maryland, Virginia, North 
 Carolina, and West Virginia. By that order 
 the then Chief Justice was allotted to that cir- 
 cuit. No two States were then more absolutely 
 in rebellion than Virginia and North Carolina. 
 The fifth circuit consists of South Carolina, 
 Georgia, Alabama, Mississippi, and Florida, 
 every one in a state of insurrection, and to that 
 
 Mr. Justice Wayne was allotted. The sixth cir- 
 cuit consists of Louisiana, Texas, Arkansas, 
 Kentucky, and Tennessee ; all except Ken- 
 tucky at that time in rebellion. To that the 
 late Justice Catron was allotted. 
 
 The late Chief Justice afterward died, and 
 the present chief was appointed. The con- 
 tingency again arose when it was necessary to 
 make a new allotment, and that Chief Justice 
 himself takes part in that allotment. Does he 
 consider these States as at an end? An order 
 passed by the court at the session of Decem- 
 ber, 1865, by which the fourth circuit, consist- 
 ing of Maryland, Virginia, North Carolina, and 
 West Virginia, was allotted to Chief Justice 
 Salmon P. Chase; the fifth circuit, consist- 
 ing of South Carolina, Georgia, Alabama, Mis- 
 sissippi, and Florida, alllatelyin insurrection, 
 was allotted to Mr. Justice Wayne. The sixth 
 circuit is now vacant, no successor having 
 been appointed to Mr. Justice Catron. 
 
 Thus the Senate see that the judges of the 
 Supreme Court by a unanimous order passed 
 in the execution of the statute of 1802, the con- 
 tingency having occurred which rendered it 
 necessary that they should discharge the duty 
 imposed upon them, have thought themselves 
 bound to consider all of these States as still 
 States of the Union, and have, as among them- 
 selves, divided out these States as composing 
 the circuits to which the respective judges are 
 to be allotted. 
 
 Mr. President, it would be fatiguing the Sen- 
 ate, however it may be desirable, perhaps, in 
 order that the country may be informed, to refer 
 to all the proceedings of the Legislature and 
 the Executive and the Judiciary to show that 
 in the opinion of each department these States 
 are considered as existing States, and in the 
 Union as such. All that I further propose to 
 do on this occasion is to call the attention of 
 the Senate to a passage or two in the opinion of 
 the Supreme Court in the prize cases, and to 
 some general remarks as to the authority of the 
 United States to bring about the end which the 
 honorable member supposes has been brought 
 about by the hostilities or in consequence of 
 the hostilities. 
 
 A passage in the opinion of the court in those 
 cases has been over and over again relied upon 
 in this Chamber and elsewhere as maintaining 
 the doctrine that whatever may be accomplished 
 by war in the case of an international war, 
 hasbeen accomplished by means of the hostili- 
 ties which we have been carrying on in these 
 States, and consequently that whatever rights 
 are incident to a state of war, and may be 
 acquired by either of the belligerents in an in- 
 ternational war, are incident to and might be 
 acquired by the United States in the hostilities 
 which the United States has carried on ; and 
 that as one of those rights is to obtain title by 
 conquest that title may be obtained in our case 
 bv the United States as well as if the war had 
 
11 
 
 been an international one. Now, before I take 
 up the case, permit me to change the order in 
 which I pro'pose to consider it, and let me state 
 the proposition so that I may very fairly try 
 conclusions with my friend from Wisconsin. 
 
 Supposing him to maintain the doctrine which 
 [ am about to state, (he does it, as I think, 
 ttee tesarily, as one of the results of his view, if 
 he does not do it in terms.) we have obtained, 
 says the honorable member, as one of the con- 
 sequences of the war, some right that we had 
 not before. What is that? A right to legislate 
 for the people and for the territory within the 
 States that have been in insurrection as people 
 of Territories and as Territories. We have got 
 that how? By the result of the war. What 
 result of the war? Because of the victory 
 which we have achieved over the rebellion. We 
 have won it by force of arms ; we are the con- 
 querors, they are the conquered. We, there- 
 fore, by virtue of the conquest, have a right over 
 the territory of these States which we did not 
 before possess. We have an authority over the 
 citizens of those States which we did not before 
 possess. Conquered ! In the first place we are 
 to consider what authority is there in the Con- 
 stitution of the United States which gives to the 
 General Government — if there shall be enough 
 left of that Government to accomplish it — the 
 right to conquer the States. I have, in a meas- 
 sure anticipated the argument. The authority 
 delegated is an authority not to conquer people 
 or territory, but to conquer in the name of the 
 Constitution and laws of the United States, and 
 thereby, by force of such conquest, to be able 
 to hold them up and declare to the insurgents, 
 " This is your Constitution and your laws, and 
 you are bound by them as you were before you 
 attempted to resist their authority." 
 
 Can anybody doubt that? We went into the 
 conflict to maintain both the Constitution and the 
 laws. What gave rise to the conflict? Whatwas 
 the conflict? Are the States and the people of 
 the States in or out of the Union ? We have tried 
 that question by ordeal of battle. What has 
 been the result ? Have the insurgents succeeded, 
 or have we succeeded ? They wanted to get out 
 of the Union ; we wanted to retain them in the 
 Union. That was the issue between us. We 
 said that, notwithstanding their acts of seces- 
 sion and hostility, they were still States, and 
 their citizens were bound to obey the Constitu- 
 tion and laws of the United States. They said 
 they were not States of the Union, and that 
 their citizens were not bound by the Constitu- 
 tion and laws of the Union. The struggle has 
 been made, the issue has been tried, the verdict 
 has been rendered, and it is in our favor. Suc- 
 cess is ours. Well, success how? Succeeded 
 to what extent? Succeeded in keeping in the 
 Union men who were endeavoring by force of 
 arms to escape from the Union. 
 
 The proposition of the honorable member is 
 that we have succeeded only in part; we have 
 
 put down the insurrection, but we have lost the 
 States to retain which was our.objoct in carry- 
 ing on the conflict. If so, it can be hardly 
 called a victory at all. Preservation was the pur- 
 pose ; preservation was the duty ; the countless 
 lives that have been lost, and the still more 
 countless treasure that has been expended, 
 have served, to be sure, the purpose of putting 
 down forcible resistance to the execution of the 
 Constitution and the laws, but leave the Union 
 a Union only of some twenty-one States instead 
 of thirty-three or thirty-four. The victory, ac- 
 cording to that theory, is but half achieved; 
 the object is but half accomplished. We wanted 
 to bring them where they were when they 
 started. They said they would not return to 
 where they were when they started. We have 
 put it out of their power to taka themselves out 
 of the Union individually, but we have not 
 been able to retain the States. They are hope- 
 lessly, absolutely gone, according to the theory 
 of the honorable member. Can that be so, 
 Mr. President? Is it possible that it can be 
 so? If it be, I am by no means prepared to 
 say that the object accomplished compensates 
 at all for the sacrifices which have been made 
 to accomplish it — a dissevered Union, brought 
 about, not by our consent ; we protested against 
 it ; but if the honorable member is right in hia 
 theory, brought about because we could not 
 prevent it. Practically, he comes to the same 
 conclusion that the former President of the 
 United States came to, as announced in the 
 message which he sent to Congress announcing 
 the existence of the insurrection, that there 
 was no right to secede, but that there was no 
 authority in the Government to prevent it. It 
 makes very little difference whether the want 
 of authority is acknowledged as a want appar- 
 ent in the Constitution, or whether it is main- 
 tained as a fact which cannot be avoided if the 
 insurgents think proper to carry on the war for 
 any length of time — not to be avoided if they 
 pursue a certain course of conduct. Now, Mr. 
 President, what difference in principle does it 
 make as far as concerns the question which I 
 am now discussing, whether there are twenty- 
 one States resolved upon standing by the Gov- 
 ernment and eleven only in hostility against it, 
 or whether there be eleven who stand by it 
 and twenty-one against it, and the eleven suc- 
 ceed? 
 
 Massachusetts and Virginia, perhaps, at one 
 period in the history of the Government, might 
 by uniting their forces have escaped the obli- 
 gations of the Union. The States upon whose 
 shoulders rested for support the arms of Wash- 
 ington, during the revolutionary struggle, were 
 then all-powerful; and one of those States 
 would have been perhaps the most powerful 
 State now in the Union but for the existence of 
 involuntary servitude. I mean Virginia. If the 
 remaining States had thought proper to resist it, 
 those two" States might by their physical power 
 
12 
 
 and patriotism have put down the insurrection ; 
 and,, according to the theory of the honorable 
 member, then the Union, -which our fathers 
 thought consisted of thirteen States, the States 
 that had carried us successfully through the 
 revolutionary struggle, would be reduced to two. 
 What sort of a Congress would you have? Two 
 Senators from Massachusetts and two Senators 
 from Virginia, and a larger number in the other 
 House. Do you think that would be a consti- 
 tutional condition of things? 
 
 Mr. HOWE. What is the clause of the Con- 
 stitution which condemns it? 
 
 Mr. JOHNSON. Condemns what? 
 
 Mr. HOWE. Condemns that state of things 
 in the case supposed. 
 
 Mr. JOHNSON. There is no particular 
 clause condemning it, because, I was about to 
 say, no man in the Convention ever thought that 
 such a proposition would be contended for. 
 
 Mr. HOWE. I presume not. 
 
 Mr. JOHNSON. It is not provided against 
 in express terms, but it is provided against by 
 the whole spirit of the Constitution. The Gov- 
 ernment, formed by the Constitution cannot exist 
 unless the States are represented. The theory 
 of the honorable member would, in the case I 
 have supposed, constitute Virginia and Massa- 
 chusetts despots, armed with the power of doing 
 whatever they might think prober toward the 
 other States or the citizens within those States. 
 
 But again the honorable member says thatcon- 
 quest extinguishes these. States, or that what has 
 been done extinguishes them. Does the hon- 
 orable member recollect what the decision of 
 the Supreme Court was in the case of the Uni- 
 ted States vs. Rice, reported in 4 Wheaton? I 
 have no doubt his memory can easily be re- 
 freshed when I call his attention to the case. 
 The honorable member told us 3 r esterday that 
 he could not imagine a State suspended that 
 could be revived without some congressional 
 legislation. Suspension in such a case, accord- 
 ing to him, is death. The case to which I al- 
 lude presented this question: during the war 
 of 1812, sometime in 1814, the British obtained 
 the undisputed possession of Castine and of the 
 territory of Maine lying on the other side, a 
 territory, I believe, constituting about onethird 
 of that State. From the time they got posses- 
 sion up to the ratification of the treaty of peace 
 of February, 1815, they had undisputed posses- 
 sion; the authority of the United States was 
 gone for a time; the authority of Maine was 
 
 fone for a time. Is that part of the State of 
 laine out of the Union now? I do not think 
 my friend whom I see, one of the Senators from 
 the State of Maine, would admit that. I rather 
 presume that he thinks that Castine is a part of 
 the State of Maine, and he thinks that all the 
 rest of the territory of that State that came into 
 the actual physical possession, by force of arms, 
 of Great Britain in 1814, and remained there 
 until the ratification of peace in 1815, still is a 
 
 part of the State of Maine. But what was it 
 in the interval? Dead, if my friend from Wis- 
 consin is right now as to the effect of State sus- 
 pension; dead, because the authority of the State 
 and the authority of the United States during 
 the whole of that period was suspended. This is 
 not my own word ; it is the word of the Supreme 
 Court itself. The decision arose out of this 
 state of facts : while the port was in the exclu- 
 sive military possession of England a cargo was 
 imported, and England imposed, herself, upon 
 the cargo whatever duties she thought proper 
 to exact. The cargo was landed, the English 
 duty paid. The authority of the United States 
 afterward was reinstated. The collector of the 
 United States insisted upon the importer pay- 
 ing the duty which the cargo would have been 
 liable to under the laws of the United States if 
 Castine had been in the possession of the Uni- 
 ted States at the time of the importation, and 
 he made him give a bond for the payment of 
 such duty. The case was tried, and the Supreme 
 Court by a unanimous decision decided that the 
 bond was void. Now, how came they to decide 
 so? I will read a few sentences from the opin- 
 ion of Mr. Justice Story, in 4 Wheaton, page 
 253. He says: 
 
 " The single question arising On the pleadings in ihis 
 case is, whether goods imported into Castine during 
 its occupation by the enemy are liable to the duties 
 imposed by the revenue laws upon goods imported 
 into the United States. It appears, by the pleadings, 
 that on the 1st day of September, 1814, Castine was 
 captured by the enemy, and remained in his exclu- 
 sive possession, under the command and control of his 
 military and naval forces, until after the ratification 
 of the treaty of peace, in February, 1815. During this 
 period the British Government exercised all civil and 
 military authority over the place, and established a 
 custom-house, and admitted goods to be imported, ac- 
 cording toregulations prescribed by itself.and, among 
 others, admitted the goods upon which duties are now 
 demanded. These goods remained at Castine until 
 after it was evacuated by the enemy ; and upon the 
 reestablishment of the American Government the 
 collector of the customs, claiming aright to American 
 duties on the goods, took the bond in question from 
 the defendant for the security of them. 
 
 " Under these: circumstances, we are all of opinion 
 that the claim for duties cannot be sustained. By the 
 conquestand military 'occupation of Castine the enemy 
 acquired that firm possession which enabled him to 
 exercise the- fullest rights of sovereignty over that • 
 place." 
 
 That is, as long as it continued. Now he 
 goes onto say how long it continued: 
 
 "The sovereignty of the United States over the 
 territory was of course suspended, and the laws of the 
 United States could no longer be rightfully enforced 
 there, or be obligatory upon the inhabitants who re- 
 mained and submitted to the conquerors." 
 
 "The subsequent evacuation by the enemy, and re- 
 
13 
 
 sumption of authority by the United States, did not, 
 and could not, change the character of the previous 
 transaction." 
 
 Did anybody suggest that before the authority 
 of the United States, after the British evacuated 
 Castine, could be reinstated it was necessary 
 for Congress to legislate? Did anybody sug- 
 gest that the suspension of the authority of the 
 United States during the period of the posses- 
 sion of Castine by the enemy operated to put 
 an end to the authority of the United States, 
 and so completely that it could not be reestab- 
 lished except by subsequent legislation? Un- 
 questionably not. The moment the place was 
 abandoned the authority of the United States 
 became reinstated proprio vigore. 
 
 Now, to apply it to tire case under considera- 
 tion, the effect of the occupation of Castine was, 
 according to the language of the court, to suspend 
 the Constitution and laws, and the authority of 
 both, within the limits of that possession. The j 
 possession terminates, and the court say that | 
 upon the termination of that military exclusive 
 possession the authority of the United States 
 is revived at once without any legislation. It 
 never occurred to the court or to anybody else, 
 and my friend will look in vain at the statute- 
 book for the purpose of showing that there was 
 any legislation extending again the revenue 
 laws of the United States to the port of Cas- 
 tine. It revived just as animal life revives in 
 certain cases after temporary suspension. 
 
 Suspension, then, according to the doctrine of 
 the Supreme Court, is not what the honorable 
 member from Wisconsin supposes suspension 
 to be ; it is not death : it is temporary paralysis 
 of which the cure becomes absolute and effect- 
 ual by removing the cause of that temporary 
 paralysis, and that ended, the States stand as 
 they stood before the disease assailed them : 
 they stand perfect, with all the health of living 
 and vital and powerful States, and entitled to 
 
 the benefits of the Constitution and the laws, for 
 the same reason that the people of Castine and 
 that part of the territory of Maine which was 
 held for a time by the armies of England be- 
 came at once by the termination of that posses- 
 sion reinstated in all the rights which belonged 
 to Castine and that part of Maine before its 
 possession by the enemy. 
 
 We hear of the right'of conquest, What is 
 to be conquered ? Only what you have a right 
 to demand. And what have you in such a case 
 as thisa right to demand?- Submission to the 
 authority of the Government, and that you have 
 got. To maintain that, under the authority to 
 enforce by force of arms submission to the au- 
 thority of the Government you can destroy the 
 States, is to say that Government can accom- 
 plish that by arms which it has no right to raise 
 an arm to accomplish. 
 
 There are many other observations, Mr. Pres- 
 ident, with which I might trouble the Senate, 
 and may perhaps do so at some future day and 
 on some other question; but I have said as 
 much and more than I intended when I rose. 
 I conclude, therefore, with saying and with 
 hoping, as I think every patriotic man in the 
 country does hope, that our ancient harmony 
 will be restored; that our ancient .Union of 
 States, as they existed when the insurrection 
 commenced, will be reinstated; that we shall 
 forgive and try to forget the horrors through 
 which we have passed during the last five years : 
 that we shall come together as a band of 
 brothers, and present to the nations of the world 
 a Government in which there is an actual union 
 of obligation and of hearts sufficient to protect 
 us against foreign foes, powerful enough and 
 willing and resolved to guard against all perils 
 to its continuing existence arising from insur- 
 rection at home, and capable of making us one 
 of the freest and most prosperous and most 
 renowned nations upon the face of the earth. 
 
6L2 frfrZ. £10 
 
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LIBRARY OF CONGRESS 
 
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