CONGRESS, UNITED STATES. 



173 



Mr. Fc-ssenden : " Using the militia." 



Mr. Johnson : "Well, tho net of 1807, passed 

 antlor that authority, gives tho same pov 

 uso tho army and navy of tho United States 

 that ! ts gave to use tho militia, and 



w- ha\f legislated still more extensively by 

 ; troops for the purpose of putting it 

 down. I maintained in good faith, as I am 

 sure every Senator who knows mo will helieve, 

 that tho authority is to he found exclusively 

 under that clause. I stated that under tho war 

 power (that is, the power conferred upon Con- 

 gress to declare war), there was no authority to 

 Avar airainst a State of tho Union, and I sup- 

 ported that opinion hy referring to a part of 

 the opinion given hy Mr. Justice Grier, speak- 

 ing in behalf of tho majority of tho Supremo 

 Court, in the prize cases as reported in 2 Black, 

 and in the dissenting opinion of Mr. Justice 

 Nelson, in each of which it is stated that there 

 is no clause in the Constitution -which, either 

 by direct terms or by implication, can be con- 

 strued to confer upon Congress the authority 

 to declare war against a State ; and they go on, 

 each of them, to maintain that the power con- 

 ferred upon Congress in regard to the Southern 

 rebellion is the power conferred by that clause 

 of the Constitution which gives them authority 

 to suppress insurrection, and is carried out by 

 tho passage of the acts of 1792 and 1795 ; and 

 yet they say, and say properly, as I think (al- 

 though in relation to that there was a difference 

 of opinion, but only as to the time when that 

 condition of things existed), that an insurrec- 

 tion may be of such an extent as entirely to put 

 a stop practically to tho authority of the Gov- 

 ernment, that it may become a war according 

 to the extent to which it may be carried on by 

 tho insurgents. What did they say it for? 

 "What was the question before the court ? 



"The President had blockaded the Southern 

 ports ; prizes had been made for a violation of 

 the blockade, and the question in each of those 

 prize cases was whether the vessels captured 

 were subject to forfeiture. Tho majority of the 

 court held that, independent of your act of July 

 18, 1861, a state of war existed, out of which 

 grew belligerent rights, and one of the belliger- 

 ent rights is the right of capture for violation 

 of a blockade instituted by one belligerent as 

 against the other belligerent. That is all. Tho 

 minority of the court came to tho same result 

 in relation to captures made after the passage 

 of the act of July 13, 1861. They denied that 

 there was "a war within tho meaning of tho 

 Constitution existing antecedent to that period, 

 because tho whole war power was conferred 

 upon Congress and the President had no right 

 to initiate war ; but when tho war existed under 

 the sanction of Congress it carried with it all 

 the rights which belonged to belligerents, and 

 therefore carried with it the right of the United 

 States to blockade the enemy's ports, that being 

 a belligerent right, and to capture for violation 

 of tho blockade. 



" My friend from Maine says virtually (he did 



not refer to tho decision in terms) that there is 

 no distinction between a civil war and an inter- 

 national war, and with tho clearness which be- 

 longs to all his speeches ho got on pretty well 

 until he came to consider what effect upon that 

 condition of war would bo the operation of our 

 peculiar Government, and ho seemed to be a 

 little puzzled to reconcile his own mind to the 

 conclusion that tho Government of the United 

 States could by war of any kind put an end to 

 a State government. 



"Hut, now, is there not a difltinction ? Is 

 there not some difficulty arising from the fact 

 that tho Government of tho United States is 

 not a Government" over the State at all ? Tho 

 Government of the United States and the gov- 

 ernment of tho State arc equally, as far as tho 

 people of that State are concerned, the govern- 

 ment of the people of that State. They owe 

 allegiance to a certain extent to the Govern- 

 ment of the United States ; they owe allegiance 

 to a much greater extent to the government of 

 the State. The General Government cannot 

 get on without the States. The States are not 

 only a component but an essential part of the 

 General Government. Blot them out, and the 

 Government is at an end ; blot them out, and 

 these seats must be vacated, and the other hall 

 be left desolate. Nobody can deny that. "We 

 could not vote ourselves in permanent session, 

 I suppose. If not, our time expires ; and how 

 are our places to be filled ? If any one State is 

 left, or any two or three States are left, there 

 will be some three or four or five or six Sen- 

 ators. Is that the Government our fathers de- 

 signed ? How is the judicial department of the 

 Government to exercise its functions? It has 

 no courts in these States if they have ceased to 

 be States; if they are Territories, there is an 

 end to the judicial system, so far as those Ter- 

 ritories and the people who are to be found 

 within their limits are concerned. In the case 

 of Canter va. The American Insurance Com- 

 pany (1 Peters), which has been very often be- 

 fore this body, and brought to the attention of 

 the public as demonstrating tho authority of 

 Congress to regulate, even by abolishing, slave- 

 ry in the Territories, this question was decided. 

 The case is pregnant with instruction upon 

 various points in this debate. It arose in this 

 way : a vessel was wrecked upon the coast of 

 Florida, then a Territory, and tho cargo and 

 the vessel, in part, were rescued, and the sal- 

 vors filed a petition in the admiralty court of 

 Florida, a court constituted by the Territorial 

 Legislature of Florida, for the 'sale of the prop- 

 erty to pay them the amount of their salvage, 

 and it was sold. The property came into the 

 hands of the purchaser, and he carried it to 

 South Carolina. Upon the wreck of the vessel 

 the insured abandoned to the underwriter, and 

 tho underwriter, when tho property came into 

 the port at Charleston, sued tho person in 

 whoso possession it was to recover it, and ho 

 defended himself upon the ground that the de- 

 cree under which it was so'-l was a legit iir.ato 



