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CHAPTER III.

Answer to Senator Sumner's Theory of a

" Tabula rasa in conse quence of the vacancy of the State Offices—The unconstitutionality of the project to disfranchise Individuals or Classes by Act of Congress—The recognition of the Insurgents as Belligerents will not give us the rights of Conquerors over Territory wrested from them-State Rights, not being derived from the Constitution, cannot be forfeited to the General Government- That Government has no power to disturb the balance of our Political System by accepting such a Forfeiture.

The author of " Our Domestic Relations " brushes aside the theories of State forfeiture, State treason, and State abdication, as endless mazes in which a whole Senate may be lost,” and prefers to rest his argument on the fact that the rebel States have now no State officers who have taken the constitutional oaths of office; therefore, he says, their governments are vacated, and there are no officers who are capable of superintending new elections, or of administering oaths of office to such persons as might be selected to fill the vacancies; and from these premises he deduces the conclusion, that "the whole broad rebel region is tabula rasa, or 'a clean slate, whereon Congress, under the Constitution of the United States, inay write the laws.”

I will not stop to consider the question whether, inasmuch as the requirement that an oath of office - to support the Constitution shall be taken by State

officers, is mandatory merely, and not made a condition precedent to the discharge of their official functions, an omission to comply with it authorizes the Federal authorities to treat the offices as vacant, while their functions are discharged by officers de facto, at least until the latter shall be ousted by legal proceedings; nor whether, if the Federal authorities would have such a right, the State officials may not at any future time qualify themselves by taking the oath required. No lawyer will hesitate to say that these are grave questions for the judicial department of the Government, and which it would be rash for executive or legislative authority to dispose of summarily; but it seems to me that there is an obvious answer to the conclusion, drawn from such questionable premises, which cannot fail at once to impress the general reader with its force. For the argument, resting as it does upon the mere fact of the State offices being vacant, and not depending (as indeed it could not depend without judicial convictions) upon the misconduct of the individuals who are de facto filling them, would be equally applicable to any other case where, by accident or from necessity, the terms of all the officers of a State had expired, and no constitutional elections had been held to fill the vacancies

Therefore if it should happen, in the course of a war between our country and a foreign power, that one of the States should be invaded by an enemy, who should hold possession of the invaded territory for a period extending beyond the official terms of legislative and executive officers, superceding the local laws meanwhile by martial power, it would follow, if the argument which I am considering is sound, that upon the restoration of peace the State would present a tabula rasa upon which Congress might write the laws. And by a parity of reasoning, if the invasion should extend so far, and continue so long, that it should be impossible to obtain a quorum in the national Senate, House of Representatives, and the Electoral College, of members duly elected from the different States, the whole Government would be dissolved, the whole nation would become a tabula rasa, and the people of the United States, having ceased to possess any government whatever, further resistance to the invader would become the irregular act of an unorganized community, and therefore no lawful warfare. I am unable to see why the argument of a "tabula rasa," in consequence of vacancies in the public offices, does not lead to both of these conclusions, and many others of equal absurdity, with which I will not take up the time of the reader. The result is instructive, as showing into what quagmires of political doctrine men fall when they are no longer

content “stare super antiquas vias,” to cling to the old established doctrine of the limitation of the powers of the general Government and the inviolable sovereignty of the States.

It has also been said, that even if a State cannot theoretically forfeit any of its constitutional rights, yet that the general Government, after the rebellion is subdued, will be practically left free to accomplish such reforms in its Constitution as may be deemed advisable, because the whole community having committed treason, there will be no citizens, at least not enough to be worth regarding, who can insist upon a strict fulfilment of constitutional obligations; that the constitutional rights will therefore renain in abeyance for the want of the individuals to assert and exercise them; that Congress can provide by law for the exclusion of traitors from the exercise of the elective franchise; and that before the population which has committed no offence against the laws, will increase sufficiently to entitle it to resume the functions of self-government, the institutions of the State may be permanently modelled as may be desired. But a careful consideration of the subject will show that however plausible such a theory may appear, a palpable violation of the Constitution by Congress can alone reduce it to practical operation.

Among the various modes of exercise of legislative power none is more unequivocally condemned

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by the Constitution than that of passing acts of

ttainder, which was, till comparatively recently, he practice of the English Parliament, and the use of which disgraced even our own legislatures during the Revolution. Judge Rawle, in his treatise on the Constitution (p. 119) defines a bill of attainder as one “ by which a person without judicial trial is declared by the legislature to be guilty of some particular crime;" and he adds, that “the definition itself shows the atrocity of the act.” Judge Story, in his treatise, says, that such an exercise of power in a free government would be intolerable; and the most eminent modern jurists and publicists of all nations have condemned it. Accordingly, the Constitution, in its restraints upon the power of Congress, says explicitly—“No bill of attainder shall be passed ;” and it secures the citizen, by two separate and distinct provisions, against any punishment for crime, except upon conviction by a jury of the State where the crime shall be alleged to have been committed. So long as the Constitution is recognized as subsisting, it will therefore be impossible to declare any of the citizens of the southern States guilty of treason by act of the Federal legislature, or in any other way than in pursuance of the sentence of a regular judicial tribunal, and the verdict of a jury taken from the State in which the treason was committed. I doubt not that it will be practicable so to legislate as to procure a jury

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