284

CONDITION OF THE SOUTH.

ers and privileges incident to a State in the Union and deprive themselves of every pretense of right to exercise these powers and enjoy these privileges." A State within the Union has obligations to discharge as a member of the Union. It must submit to federal laws and uphold federal authority. A government, republican in form, must be sustained, under and by which it is connected with the General Government and through which it can discharge its obligations.

It was idle to contend that the people of the South still retained, through all their disloyalty, the perfect and entire right to resume, at will, all their privileges within the Union, and, especially, to participate in its government and control the conduct of its affairs. To admit such a principle, for one moment, would be to declare that treason is always master and loyalty a blunder. No portion of the people of this country whether in a State or a territory, has the right, while remaining on its soil, to withdraw from or to reject the authority of the United States. They must obey its laws as paramount,1 and must enjoy its protection. As the Constitution acts, not upon States, but upon individuals, the people cannot escape its authority, though the States, by popular act, might cease to exist in an organized form and thus dissolve their political relations with the Union.2 That taxation and representation must go together was not true under all circumstances and in every moment of time; for they did not go together in the District of Columbia or the territories. The people of the so-called Confederacy, having no right to throw off

1 Compare with the adoption of the Declaration as to paramount allegiance by Maryland, and Nevada. See pp. 102, 116, ante. 2 Compare President Lincoln's argument for the constitutionality of the act creating the State of West Virginia; see pp. 2834 and note.

66.

THE POLICY OF RESTORATION."

285

national authority, were bound at all times to share the burdens of the general government, otherwise there would be a premium on insurrection. Moreover, having disfranchised themselves by their own acts, they were "compelled to contribute their just proportion of the general burden of taxation, incurred by their wickedness and folly."

What then was necessary to be done before restoring the people of the South to the full enjoyment of all their original privileges? The war, which they had precipitated, "had materially changed their relations to the people of the loyal States." By a Constitutional amendment, slavery had been abolished and a large proportion of the population, mere chattels, had become free men and citizens. Throughout the struggle they had remained loyal and in large numbers had fought on the side of the Union. "It was impossible to abandon them without first securing them their rights as free men and citizens." Clearly, adequate security could be found only in appropriate Constitutional provisions, such as were comprised in the

amendments which the committee submitted. The conclusion of the whole matter was, that Congress should enact such laws as, together with the amendments, would secure civil and political rights to the former slave. Unless he was granted them, the class which embodied "that spirit of oligarchy adverse to republican institutions, which finally inaugurated civil war," would continue in the exclusive possession of political power. "Doubts were entertained whether Congress had power, even under the amended Constitution, to prescribe the qualifications of voters in a State, or to act directly on the subject. It was doubtful whether the States would consent to surrender a power they had always exercised and to which they were attached." As the best method of surmounting this difficulty,

286

FACTS VS. THE PRESIDENT.

it was concluded "that political power should be based, in all the States, exactly in proportion as the right of suffrage should be granted, without distinction of color or race." Leaving the whole question thus with the people of each State, it was believed that the advantages of increased political power would be an inducement to allow all to participate in its exercise.1

The evidence which President Johnson had set before Congress and which accompanied his special message on the appointment of the provisional governors and the progress of restoration of the Southern States to the Union, had failed to convince the Committee on Reconstruction that any insurrectionary State, except Tennessee, had placed itself in a condition to resume its relations with the Union. These lately rebellious States lacked a republican form of government, established by the people. Though the provisional Governors exercised only military authority, and "were simply bridging over the chasm between rebellion and restoration," they had called conventions and assembled legislatures, which, acting under executive direction, had adopted constitutions and ordinances as conditions precedent to the recognition of the States by the President. The inducement to this action was the immediate admission of Senators and Representatives to Congress. But the character of these conventions and legislatures had not inspired belief in the good faith of their members.

Governor Perry, of South Carolina, had dissolved its convention before it had received the direction from Washington that the rebel war debt must be repudiated.

1 The committee prepared a constitutional amendment, to carry out this idea, which failed in the Senate. The joint resolution which finally passed involved the principle of the first amendment in another form.

FACTS VS. THE PRESIDENT.

287

He gave as his reason that the convention was a revolutionary body. The request for pardons for members of these conventions was the principal evidence of their disloyalty. Not one of the amended constitutions had been submitted to the people for ratification.1 The North Carolina ordinance to that effect had not yet been complied with. Clearly no amendments could be considered valid unless adopted by the people. It would follow, therefore, that none of the so-called constitutions were binding upon the people and they would be justified in repudiating them at pleasure.2

The evidence which the President had submitted, that the people of the South were disposed to adopt measures conforming to the new order of affairs, was far from encouraging. The anti-slavery amendments, both to the State constitutions and to the national, were adopted with reluctance, while some States passed them by in silence, or boldly rejected them, the language of all the provisions and ordinances on the subject amounting to nothing more than "an unwilling admission of an unwelcome truth." The ordinance of secession was declared by some States to be "null and void;" by others it was simply "repealed." In no instance was a refutation of the deadly heresy considered worthy of place in the new constitution.

1 On the 2nd of August, 1865, the amended constitution of North Carolina was rejected by 22,543 votes to 18,579; the report of the Joint Committee on Reconstruction was made June 20.

2 The committee here proceeded on the theory that a convention could not promulgate a constitution. Its ideas conformed to practices in the Northern States, but not in the Southern; constitutions there were almost uniformly promulgated. See The Powers of Constitutional Conventions in the case of Wells and Others vs. The Election Commissioners, 75 Pennsylvania State Reports, p. 205; (1873) For the Northern idea and for the Southern, see Sproule vs. Fredericks, 69 Mississippi, p. 898; (1892) See my Constitutional History of the American People, 1776-1850, Vol. II, pp. 176-177 and Index "Constitutional Conventions."

288

CONGRESS VS. THE PRESIDENT.

The President was not now criticised for his part in the conduct of these States. Ordinarily, authority to frame a constitution emanated from Congress and it was submitted to the people for adoption. This mode was pointed out by numerous States as an established usage. But in no case in the South, excepting in Tennessee, had the essential, preliminary steps been taken. The whole course of the reconstruction conventions had been irregular. Therefore, unless all the rules which, since the foundation of the government, had been deemed essential in such cases were disregarded, the Southern States were in no condition to claim representation in Congress. Undoubtedly Congress was competent "to waive all formalities and admit these Confederate States to representation at once, trusting that time and experience would set all things right." But the advisability of such a procedure would depend upon the evidence whether the ordinance and Constitutional provision, which the President had deemed so essential, would be permanently adhered to, and not repudiated by the people of the South after being admitted again to full participation in the Government. The burden of proof here rested upon the South, and it was the evidence now produced on the subject which lay at the foundation of the Fourteenth and Fifteenth Amendments and the acts of Congress immediately relating to them, which, in the aggregate, formulated its policy of reconstruction. What was this evidence?

The war was hardly closed, continued the report, before the people of the South came forward and haughtily claimed as a right "the privilege of participating at once in that government which they had for four years been fighting to overthrow." They had placed in power "leading rebels unrepentent and unpardoned, excluding with contempt those who had manifested an attachment to the