CONGRESSIONAL REPORT ON THE SOUTH.

289

Union, and appointing in many instances those who had rendered themselves most obnoxious." Though the law required an oath which would necessarily exclude all such men from federal offices, they elected, "with very few exceptions as senators and representatives in Congress, men who had actively participated in the rebellion-insulting the law as unconstitutional." It was only necessary "to instance the election to the Senate of Alexander H. Stephens, the late Vice President to the Confederacy, a man, who, against his own declared convictions, had lent all the weight of his knowledge, ability and influence as a most prominent public man, to the cause of the rebellion, and who, unpardoned, with the oath staring him in the face, had the assurance to lay his credentials on the table of the Senate."

His uncontradicted testimony, and that of many others, proved that the pernicious doctrine of secession was not dead; that those who had declared against it had yielded only to necessity, and that, basing their ideas on State sovereignty they would willingly yield to no conditions whatever as preliminary to their resumption of power under a Constitution which they still claimed a right to repudiate. The Southern press abounded with abuse of the institutions and the people of the loyal States. It defended the men who led and the principles which instituted the rebellion. It reviled all loyal Southern men and, by every means in its power, kept alive the fires of hate and discord between the sections. The national flag was openly insulted. The Bureau instituted for the relief and protection of freedmen and refugees was almost universally opposed by the mass of the population, and maintained an existence only under military protection, while, at the same time, the Union men of the South, earnest in its defence, declared "with one voice that without its pro

290 ATTITUDE OF THE SOUTH TOWARD THE NEGRO.

tection the colored people would not be permitted to labor at a fair price and could hardly live in safety." The testimony showed that without the protection of the United States troops, Union men, whether of Northern or Southern origin, would be obliged to abandon their homes.

In many portions of the South the feeling toward emancipated slaves, especially among the uneducated and ignorant, was "one of vindictive and malicious hatred." This deep-seated prejudice against color was assiduously cultivated by the public journals and led to acts of cruelty, oppression and murder which the local authorities took no pains to prevent or punish. There was "no disposition to place the colored race, constituting two-fifths of the population, upon terms of civil equality." The evidence went to prove that the people of the South were unwilling to contribute to the payment of the national debt, or to pay taxes levied by the United States, unless on compulsion; and that there was a prevailing belief that compensation would be made for slaves emancipated and property destroyed during the war. Though there was scarcely any hope, or desire, to renew the attempt at secession, a large number of witnesses, including Alexander H. Stephens, upheld the legal right of secession and the doctrine that the first allegiance of the people is due to the States. This belief prevailed generally "except in some of the northern counties of Alabama and the eastern counties of Tennessee."

Intense hostility to the National Government and an equally intense love of the late Confederacy were exhibited at every attempt of the United States to administer a conciliatory policy toward the South. The bitterness and defiance exhibited under such circumstances "were without a parallel in the history of the world." Confronted with such evidence as this, Congress was forced to con

THE SOUTH NOT ENTITLED TO REPRESENTATION. 291

clude "that the States lately in rebellion were, at the close of the war, disorganized communities without civil government and without constitutions and other forms by virtue of which political relations could legally exist between them and the Federal Government. Congress could not be expected to "recognize as valid the election of representatives from disorganized communities, which, from the very nature of the case, were unable to present their claim to representation under established and recognized rules. For this reason, the so-called Confederate States were not entitled to representation. Before allowing it, Congress should require adequate security for future peace and safety, which could be found only in such changes in the organic law as would secure the civil rights and privileges of all citizens in all parts of the republic; would place representation on an equal basis; would fix a stigma upon treason; would protect the loyal people of the country against future claims for expenses incurred in suppression of rebellion and for manumitted slaves, and by an expressed provision of the Constitution would empower Congress to enforce these provisions by appropriate legislation.1

But nearly all questions have two sides, and the policy which Fessenden and his party associates would carry out toward the South was opposed by three members of the Joint Committee-Reverdy Johnson of Maryland, Rogers of New Jersey and Grider of Kentucky, who submitted a minority report. The Federal Government, they said, was formed out of States and by States possessing

1 Report of the Joint Committee on Reconstruction, pp. VIIXXI. It was signed by Fessenden, Grimes, Harris, Howard, Williams, Stevens, Morrill, Bingham, Conkling and Boutwell. I have followed the report closely and made use of its language. It is the most concise and comprehensive statement of the Congressional policy of reconstruction.

292

THE MINORITY REPORT.

equal rights and powers. Each was originally a separate sovereignty which could not be subjected to the Constitution without its own consent. All the States were admitted on an equal footing. While a citizen might forfeit his rights by committing crime against the United States, a State, in its corporate capacity, could not, because, as such, under the Constitution, it could not commit a crime or be indicted for one. Its citizens, few or many, might be proceeded against under the law and be convicted, but a State remained a State of the Union. It could never withdraw from it or be expelled. "A different principle would subject the Union to dissolution at any moment." The insurrectionary States were in the Union and the constitutional amendment was to be submitted to them as well as to all others.

To consult a State not in the Union on the propriety of adopting a constitutional amendment to the government of the Union, and which must necessarily affect only those States within it, would be an absurdity; and it would be nonsensical and unjust to allow an amendment, which States in the Union might desire, to be defeated by States not in the Union. The very fact, therefore, that the amendment was to be submitted to the Southern States was a concession that they had never ceased to be States of the Union. The idea that the war power of the United States, as such, had been used or could have been used to extinguish the rebellion, was utterly without foundation. "That power was given for a different contingency, -an international conflict." To subdue domestic strife, authority was given to call out the militia. The Government sought, and could only seek, to put an end to the rebellion. That once achieved, the ordinary condition of things was at once restored; therefore, the Southern States were entitled to the full enjoyment of their consti

THE MINORITY REPORT.

293

tutional rights and privileges.1 They had governments completely organized and in successful operation, and no person within their limits questioned their legality or denied their protection. The right of the people of a State to form a government for themselves had never been questioned.

The Constitution imposed but one restriction, that the government adopted should be republican in form; it gave no power to frame a constitution for a State. In the words of the Federalist, "It supposes a pre-existing government of the form that is to be guaranteed." It was not pretended that the existing governments of the Southern States were not of the required form, but only that they had not been legally established; a matter with which Congress had nothing to do. The power to establish or modify a State government belonged exclusively to its people; "when they shall exercise it, how they shall exercise it, what provisions it shall contain, it is their exclusive right to decide, and, when decided, their decision is obligatory upon everybody and is independent of all Congressional control, if such government be republican. Congress may admit new States, but a State once admitted ceases to be within its control and can never again be brought within it."

If the Southern representatives were admitted to the House, the members from the States in which there had been no insurrection would outnumber them by seventy

1 In support of this position there were cited the case of Amy Warbick vs. The United States District Court of Massachusetts. The case of the application for habeas corpus by James Egan and Ex Parte Milligan; 4 Wallace, pp. 2, 120; see also Ex Parte Vallandigham, 1 Wallace, p. 243. Ex Parte Watkins, 3 Peters, 193, and Tarble's case, 13 Wallace, p. 397. Several additional cases are cited in the report.

2 Federalist, No. XLIV.