Year: 1862

ID
public is is TO protect them from violence. When
we guaranty them republican form Of Govern
ment in each State il implies that we have the
exercise of power over them, at least to secure to
the body OF that people the opportunity to have,
not nominal and usurped, but an actual Gov
eminent within the Constitution of the United
States. That is what we owe them.


THE REBEL GOVERNMENT DE FAcro GOVERNMENT,


AND THE PEOPLE COMPELLED TO OBEY IT.


will remark anotl II thing. These men have
established de faetO Government over that peo-
pie If man finds hmselfn de faetO Govern
ment which he cannot resist and has no power to
control, what are tine limits and measures Of his
obligations? 1t requires brave man to say that
he will upon it because he thinks it is a
patton. 1t would be bold man who should say
now, The United States made rebellion against
England, and all the present power you have. ma
tional and State, is itself but usurpation / do
not owe it any obedience. and will not obey It.
How idle it would be for an individual weak
man, to talk in that wayl just so il is with the
/ people in these States. However loyal their
feelings, Government de faetO is over them;
they cannot get away; they have nowhere to go;
/ they have nothing to go with. What would you
have a man there to dor What has this natioh a
right to demand of himl What right have we to
demand of these people loyalty, allegiance. and
obedience to this Government, and to war on the
| OON6rnnent 0t IdCtO WHICH Is eStdDllSneu OVER
them, when we do not relieve them, furnish them
with arms, disperse the armies that are there, or
disaTm the men who are their usurpers, but leave
them in that condition?


! Mr. President, when / look at things in this
| light, it seems to me il is n very que tionable
policy, ana still more questionable ethics, for US
to sit here day after day, before relieving that
people, and while they are thus trodden on,
making laws by which we deelaresthat they have
hoir fboT
ted them, that whatever charters they hold under
laws are gone. to unhouse them, strip them, and
confscate their property, taking advantage of
their absence when they are not represented here,
and have no power to do otherwise. 1t may suit
the notions of equity and right of some, but to
my mind il looks more like taking counsel from
our resentments than from our judgments
But il is sad "Men have actually taken Offices
there under that Government; they have had the
audacity to do that since that Government has
been established over them" / do not profess
to be very highly versed in the ethics of politics,
but l am fond of looking to examples that are
bright and high. AT the time of the rebellion
under Cromwell, which had established Govern
ment de tactO over the people of England, and had
put down the existing Government, application
was made to Chief Justice Hale-a man whose
character stands as high, perhaps, any in the
annals of Christian judges-to take the place of
Chief Justice, he beng opposed to that gentle
man. Justice Hale consulted with n couple of
his friends (bishops,) and after full deliberation
came to this conclusion: "Justice must be ad
ministered; the rights between man and man
must be adjudged upon; somebody must hold
courts; / can consider it no sin to take an Office
under a de factO Government, though il is a usur-
patton" He took il; and that was not ad
judged guilty of treason upon the restoration of
Charles Ill. He continued in position ever after
wards.


In all the troubles between the house of York
and the house of Lancaster, in the wars of the
Roses, when revolutions were constant and fire.
quent, one day of this family upon the
throne, and the next day one of the other, as
early as the period of Henry VII statute was
passed which has abided in England through all
the revolutions afterwards, that no nan should
be adjudged guilty of treason because he was
obedient to the reigning King, no matter if his
usurpation. Such, sir, is the respect paid
by the world, and especially that part of the
world from which we sprung, to a de facto Gov
eminent; and the nations of the earth deal with
them as Governments, no matter what the usurp-
alton.


THE SAFEGUARDS or THE CONSTITUTION.
Mr. President, have already remarked that
in whatever we do we must keep fairly within the
limitations of the Constitution. 1t will not do TO
say that because need to do this thing, be-
cause it is necessary in our judgment, we will
do it for that reason. The limitations and pro-
hibitions of power in the Constitution were put
there on purpose to prevent doing such
things when we wanted 10 do them. They
were not put in to prevent our doing things
never wanted to do. When it provided, for in
stance. that you should not pass any attainder
bill, that you should not take away any mans
property without due process of law, that no man
/ should be punished unless il was on conviction
| by jury, that no man should be twice punished
for the same offense-prohibition OF this kind
are prohibitions to everybody, and they were put
IN to prevent Congress doing such things when
they wanted to do them. They were put in there
on purpose to prevent us doing these things when
we thought they were necessary. They were not
put in to prevent US doing these things when
did not want to do them, and when they were not
necessary at all in our judgment.


| Now, the question is, after we shall have pos
sessed that country by force Of arms Can we do
anything consistently with the provisions of the
| Constitution that will tend to bring back those
| people to their allegiance. If we can, and if we
are clear that our measures will tend to produce
good effect in that way, very well; but if we
can not do il pursuant to and within the proVi-
siOns OF the Constitution, let US not, at this par
ticular period of our trial, acknowledge in the
face of the world that Constitution and insti-
tutiOns are insufficient to sustain US.


THE WAR POWER.


Judge CoLLAMER here combattcd at length, in
legal argument of great power, the proposed
plan of proceeding against the rebels by con6sca-
ting their property by act of Congress. without
jury trial, as a violation of the Constitution
The passage of such law would be an assump-
ton Of power by Congress it does not possess
He says:


If we make laws by our power under the Con
sttution we must regard the prohibitions of the
| Constitution, else we are lawless. And it makes
very little difference to what department of the
Government all this usurpatiOn goes. If it is
true that the Congress of the United States on
an occasion like war Of this kind. take to
itself and exercise all power, regardless of the
prohibitions of the Constitutions; and further,
can make itself Commander Chief of the ar
my and conduct the particulars and details of the
war in all respects, do not know that there was
any usurpation by the House of Commons in the
time of Cromwell. They said they represented
the people, and they took command of the Gen
erals OF the army; they overrode the other de-
partments OF the Government and broke down
the Government itself Suppose choose TO
take control Of the army and all its command,
and of its Commander IN Chief, and direct all its
details please, and send our Committee on
the Conduct OF the War out iTto the camps to
inspect the proceedings of the Generals and di


rect them in their duty, was done under Crom-


well, do not see that il would be anything more
or anything less than a usur7ation and tyranny


and its being in this body. or in these two bodies
constituting the Congress, does not relieve it OF


the difficulty in the least.


IL Is said, however, that we are at war. and that


we have become elevated &c the privileges and


entitled to exercise the rights OF abelligerent


that this power Of confscation is a sort OF war


power over our own citizens that we have a right


to exercise in the capacity of a belligerent.


have given what little reflection my limited pow
ers would allow to this branch of the subject nj