CONGRESS, UNITED STATES. 



283 



organized or recognized war on the part of that 

 community, are all that are requisite to consti- 

 tute its government a hostile government as to 

 us, and its citizens or subjects our enemies. No 

 one will pretend that such a community is in 

 the Union in fact, for that would be to make an 

 admission and in the same breath to contradict 

 it. De facto, such a community, and, if it be 

 bounded by State lines, such a State is as com- 

 pletely out of the Union as is Canada or Mex- 

 ico, from the moment it assumes the attitude 

 of hostility until it is subdued and conquered 

 by our arms, or until it voluntarily lays down 

 its arms, ejects its hostile government, and re- 

 turns in fact to its once friendly sentiments 

 and friendly relations to the Federal Govern- 

 ment. 



" Friendship for the Federal Government, in 

 other words, loyalty, thus becomes the final 

 test in solving the question, "What is a State in 

 the Union ? If a State by its overt acts has 

 shown a want of this friendship, it is no longer 

 in the Union de facto, and cannot be treated as 

 if it were. The Supreme Court, acting upon 

 the soundest principles of public law, have de- 

 cided the waging of war by a State, although 

 acting under an illegitimate and revolutionary 

 government, renders her territory enemy's ter- 

 ritory, and the people there resident enemies 

 of the United States, in the sense of the laws 

 of war. A'nd their decision could not have 

 been different. 



" "Well, then, the State is in fact, though 

 wrongfully, out of the Union out of the 

 Union because its actual, present government 

 is disloyal and treasonable. It is out of the 

 Union in the same sense in which Ireland or 

 Scotland, if actually in arms against the au- 

 thority of the British Parliament, would be out 

 of the United Kingdom ; in the same sense in 

 which Ireland was out of her union with Eng- 

 land when her people, at the instigation of the 

 expelled James II., took up arms against the 

 Prince of Orange, the actual reigning sovereign; 

 in the same sense in which La Vendee was out 

 of the French republic when, following the 

 lead of George Cadoudal and other royalist 

 chiefs, the people of that province took up 

 arms against the then Government of France ; 

 _out of it in the same sense in which an insur- 

 gent county of a State would, during its unsub- 

 dued hostility to the State, be out of the State ; 

 out of it, because unsubdued rebellion makes it 

 for the time being an independent though un- 

 recognized nation on the earth's surface, throw- 

 ing off its allegiance to its paramount Govern- 

 ment, and assuming by the swjrd to assert its 

 separate nationality, 



" But we are at war with the rebel States, 

 and are told by those whose mouths are full of 

 complaints and criticisms as to the mode in 

 which this war is waged, and as to the imputed 

 objects to be obtained by it, that the Govern- 

 ment, so far at least as the rebel States are con- 

 cerned, is under some peculiar constitutional 

 restraint by which its hands are tied ; that we 



are prohibited from 'subjugating' those States; 

 that all we can do, under the Constitution, is to 

 break up the military array of the rebels, dis- 

 perse their armed bands, take away their arms, 

 and do that very indefinite duty, restore order ; 

 that thereupon our task is ended and the rebel 

 States have a constitutional right to come back 

 into the Union and participate in the enactment 

 of Federal laws and the conduct of the Federal 

 Government. And we are menaced both in 

 Congress and out with terrible retributions if 

 we conquer or attempt to conquer, if we subju- 

 gate or attempt to subjugate, the rebel States. 

 It is admitted by these our critics that in an in- 

 ternational war, a war in which the United 

 States are one party belligerent and some other 

 independent Power of the earth is the other, 

 we should have all the rights and powers of other 

 independent nations, and might rightfully con- 

 quer our adversary, subdue our adversary, sub- 

 jugate our adversary ; that is, that we might 

 make a complete conquest of his people and his 

 territory, as complete as that of Great Britain 

 over Canada in 1762, when, as Mr. Bancroft 

 tells us, the conquest of the province by Great 

 Britain was complete ; complete and perfect in 

 all respects as is recognized by the modern code 

 of war. 



" Now, I need not tell the Senate that even 

 under such a complete conquest the usages of 

 war and the laws of nations allow the conqueror 

 only to substitute his political authority for that 

 of the former sovereign, and forbid him to dis- 

 turb the titles of the peaceable and submissive 

 subjects of that sovereign to their property, real 

 or personal, or to inflict any hardship upon them 

 beyond the ordinary war contributions required 

 for the support of the victorious army. The 

 municipal laws of the conquered country re- 

 main unchanged, save in so far as they are in- 

 consistent with the change of sovereignty, and 

 the property of individuals is protected by the 

 conqueror on their submission to his authority. 

 Now, it is lawful to wage such a foreign war 

 for the purpose of effectuating such a complete 

 conquest, and of course lawful to attain it ; law- 

 ful to substitute the authority of the conqueror 

 for that of his adversary ; lawful to substitute 

 the political authority *of the United States for 

 that of a hostile foreign nation in the case of an 

 international war (for otherwise the war cannot 

 be a successful one), and for that of the hostile 

 State in the case of a war between the United 

 States and a State. There is, because there can 

 be, no difference between the two cases; for 

 in each, the former actual hostile government 

 must be supplanted by the Federal Government. 

 In the case of foreign territory no one would or 

 could doubt that it is the exclusive right of that 

 Government to take the place of the former 

 sovereign and to erect its own ensigns of power. 

 In the case of a rebel State subdued by the 

 arms of that Government, is not such State 

 equally at its feet, or rather under the shield of 

 its conquering protection ? Who but that Gov 

 eminent has then the right to give the law? 



