The right referred to is vested in the National Legislature. If technical proof of this be demanded it is to be found in a few brief propositions:
1. The Constitution (section 8) confers on Congress certain essential powers; as to collect taxes, without which no Government can be supported.
2. The Constitution (same section) authorizes Congress to "make all laws that shall be necessary and proper for carrying into execution" these powers.
3. An insurrection extending over eleven of the United States prevents, throughout a considerable portion of the Union, the possibility of carrying into execution the essential powers thus granted to Congress.
4. Because of the resistance offered by the insurrectionary States to these constitutional powers it, becomes the duty of Congress to pass all laws that are necessary and proper, not only, by successfully terminating the war, to enforce these powers in the present but to secure their supremacy in the future; in other words, to insure permanent obedience to the laws, thus averting anarchy.
All this will be concealed; but a question remains, who is to judge what laws are necessary and proper to carry into execution the powers expressly conferred on Congress by the Constitution, and which are thus obstructed and defeated?
Or, to put directly the case in point, if Congress, sharing the deep conviction that has come over the Nation as this contest proceeded, should reach the conclusion that there is no effectual means to secure, throughout the future, peaceful obedience to the laws, except the eradication of slavery, and should act accordingly, is such action constitutional and final? In the selection of the means to effect this constitutional object, is Congress the sole judge of their propriety and necessity? Or is the question as to the fitness of these means a judicial as well as a legislative question?
We must discriminate here. It would undoubtedly be competent for the Supreme Court, if efore it, to decide in any special case whether Congress has the right, under the Constitution to take private property, with just compensation, for public use. That is a judicial question. But when a vast system of claims is to be thus taken for a great political end- when this is done as the only effectual means to preserve the integrity of the Union, or to bring a war to a successful issue or to establish lasting peace, and when the matter to be decided, is whether this taking is the most wise or appropriate means to secure these all-important objects-that is a question of statesmanship, of governmental discretion, of political expediency, and therefore purely legislative. It is not competent for the Supreme Court to sit in judgment on the wisdom of a great measure of national policy.
Whenever the judicial branch of the Government assumes and is permitted to exercise such a power, the Government itself will be in than hands, not of the representatives of the people, elected by the people, but of a few men (at the present ten only), nominated by the President, confirmed by the Senate, and holding their officers for life.
The trust which, by the Constitution, is committed to the personal judgment and discretion of the National Legislature, and for which the members of that legislature are responsible only to their constituents, the people will have been usurped by another branch of the Government to which the Constitution assigns no such trust, grants no such discretion.