If a section of the people of a stale rebel against the government, the
resulting contest is not a war, in the sense of international law. But as
it may assume the physical character of a war, so it may call into
existence the rights and customs incident to war. Upon this principle the
federal government acquired the rights of war in the contest of
1861-1865.[78] Now the rights of war do not end with military operations;
one of these rights is the right of the victorious party, after an
unconditional surrender, to occupy the territory of the defeated party, to
govern or punish the people as it sees fit. If the United States
government acquired the rights of war, this right was included. The close
of a war is not simultaneous with the cessation of fighting. The surrender
of the southern armies was an important incident in the civil war; it was
not the end. If the federal government had the rights of war before this
incident, it had them after.
The United States government might therefore say to the persons composing
the military power which it had subdued: As the terms of war, you are to
be governed by military government. If the persons against whom this
sentence is assumed to have been pronounced formed the majority of the
population of a state, one result of the sentence would be to suspend
independent state government. The United States government might choose
another punishment. It might say to the lately hostile persons: We forbid
you to participate in the federal government. If the persons so sentenced
form the majority of the population of a state, that state can send no
representatives to Congress while the sentence remains. These sentences
might be imposed permanently or only until such time as the people
sentenced should fulfil certain demands--hold certain conventions, pass
certain laws, adopt certain resolutions in certain ways. The federal
government can thus effect through its war powers what it cannot effect
through any power to interfere directly with a state government. It had no
right to reconstruct the government of Maine in 1865, because Maine had no
body of people over whom the federal government could exercise war powers.
It had the right to reconstruct the government of Georgia, because
nine-tenths of the people of Georgia were lawfully at its mercy as a
conqueror.
Public-domain text, read in full here on John Shaqi.
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