This is the war power.But, though apparently unlimited, the war power is yet restricted to war purposes, and expires by natural limitation when peace returns;, and peace returns, in a civil war, when the rebels have thrown down their arms and submitted to the national authority, and without any formal declaration.
During the war, or while the rebellion lasts, it can suspend the civil courts, the civil laws, the State constitutions, any thing necessary to the success of the war--and of the necessity the military authorities are the judges; but it cannot abolish, abrogate, or reconstitute them.On the return of peace they revive of themselves in all their vigor.The emancipation proclamation of the President, if it emancipated the slaves in certain States and parts of States, and if those whom it emancipated could not be re-enslaved, did not anywhere abolish slavery, or change the laws authorizing it; and if the Government should be sustained by Congress or by the Supreme Court in counting the disorganized States as States in the Union, the legal status of slavery throughout the Union, with the exception of Maryland, and perhaps Missouri, is what it was before the war.*The Government undoubtedly supposed, in the reconstructions it attempted, that it was acting under the war power; but as reconstruction can never be necessary for war purposes, and as it is in its very nature a work of peace, incapable of being effected by military force, since its validity depends entirely on its being the free action of the territorial people to be reconstructed, the General government had and could have, with regard to it, only its ordinary * This was the case in August, .It may be quite otherwise before these pages see the light.
peace powers.Reconstruction is jure pacis, not jure belli.
Yet such illegal organizations, though they are neither States nor State governments, and incapable of being legalized by any action of the Executive or of Congress, may, nevertheless, be legalized by being indorsed or acquiesced in by the territorial people.They are wrong, as are all usurpations; they are undemocratic, inasmuch as they attempt to give the minority the power to rule the majority; they are dangerous inasmuch as they place the State in the hands of a party that can stand only as supported by the General government, and thus destroy the proper freedom and independence of the State, and open the door to corruption, tend to keep alive rancor and ill feeling, and to retard the period of complete pacification, which might be effected in three months as well as in three years, or twenty years; yet they can become legal, as other governments illegal in their origin become legal, with time and popular acquiescence.
The right way is always the shortest and easiest; but when a government must oftener follow than lead the public, it is not always easy to hit the right way, and still less easy to take it.
