When called upon to state any just grounds for such a measure, the invader has usually replied that he had, ex necessitate rei, the right to establish such a tribunal. Thus said the Commander-in-Chief of the United States, and Congress acquiesced - indeed, leading the way, it had urged the same plea to justify the passage of its confiscation act. The judiciary has observed the silence of acquiescence. Thus the doctrine of necessity - the rule that, in the administration of affairs, both military and civil, the necessity of the case may and does afford ample authority and power to subvert or to suspend the provisions of the Constitution, and to exercise powers and do acts unwarranted by the grants of that instrument - has apparently become incorporated as an unwritten clause of the Constitution of the United States.
What, then, is this necessity? Its definition would require an explanation, from the persons who act under it, of the objects for which, in every instance, they act. Suffice it to say that the political wisdom of mankind has consecrated this truth as a fundamental maxim, that no man can be trusted with exercise of power and be, at the same time, the final judge of the limits within which that power may be exercised. It has fortified this with other maxims, such as, "Necessity is the plea of despotism"; "Necessity knows no law." The fathers of the Constitution of the United States sought to limit every grant of power so exactly that it should observe its bounds as invariably as a planetary body does its orbit. Yet within the first hundred years of its existence all these limits have been disregarded, and the people have silently accepted the plea of necessity.
It must be manifest to every one that there has been a fatal subversion of the Constitution of the United States. In estimating the results of the war, this is one of the most deplorable; because it is self-evident that, when a constitutional Government once oversteps the limits fixed for the exercise of its powers, there is nothing beyond to check its further aggression, no place where it will voluntarily halt until it reaches the subjugation of all who resist the usurpation. This was the sole issue involved in the conflict of the United States Government with the Confederate States; and every other issue, whether pretended or real, partook of its nature, and was subordinate to this one.
Let us repeat an illustration: In strict observance of their inalienable rights, in abundant caution reserved, when they formed the compact or Constitution - whichever the reader pleases to call it - of the United States, the Confederate States sought to withdraw from the Union they had assisted to create, and to form a new and independent one among themselves. Then the Government of the United States broke through all the limits fixed for the exercise of the powers with which it had been endowed, and, to accomplish its own will, assumed, under the plea of necessity, powers unwritten and unknown in the Constitution, that it might thereby proceed to the extremity of subjugation. Thus it will be perceived that the question still lives.
Although the Confederate armies may have left the field, although the citizen soldiers may have retired to the pursuits of peaceful life, although the Confederate States may have renounced their new Union, they have proved their indestructibility by resuming their former places in the old one, where, by the organic law, they could only be admitted as republican, equal, and sovereign States of the Union. And, although the Confederacy as an organization may have ceased to exist as unquestionably as though it had never been formed, the fundamental principles, the eternal truths, uttered when our colonies in 1776 declared their independence, on which the Confederation of 1781 and the Union of 1788 were formed, and which animated and guided in the organization of the Confederacy of 1861, yet live, and will survive, however crushed they may be by despotic force, however deep they may be buried under the debris of crumbling States, however they may be disavowed by the time-serving and the faint-hearted; yet I believe they have the eternity of truth, and that in God's appointed time and place they will prevail.
The contest is not over, the strife is not ended. It has only entered on a new and enlarged arena. The champions of constitutional liberty must spring to the struggle, like the armed men from the seminated dragon's teeth, until the Government of the United States is brought back to its constitutional limits, and the tyrant's plea of "necessity" is bound in chains strong as adamant:
While contemplating the Northern States - with their Federal Constitution gone, ruthlessly destroyed under the tyrant's plea of "necessity," their State sovereignty made a byword, and their people absorbed in an aggregated mass, no longer, as their fathers left them, protected by reserved rights against usurpation - the question naturally arises: On which side was the victory? Let the verdict of mankind decide.