EXTRA-CONSTITUTIONALISM.

397

among those upon whom the war had fallen with a heavy hand.

It is idle to speak of constitutional standards and positions when discussing those who openly avowed their independence of the Constitution, and who, like Stevens, took malign pleasure in pointing out to their less radical colleagues how these fine-spun theories were as much outside of the Constitution as were their own bold and radical views. Nothing delighted Stevens, the Mephistopheles of the Republican party, more than to add to the confusion of his colleagues by taunting them with their broken-down constitutionism, or to complete the discomfiture of the President's party by winding up a bitter attack on the Executive with the question, where the President found in the Constitution, to which he was constantly alluding, his authority for creating military governments at the South, or for creating any government at all, and where the Constitution authorized him, or any one else, to set the minority above the majority.1 The radical faction boldly maintained that the states were out of the Union; that, when conquered, their terri

1 "Where does he [the President] find anything in the Constitution to warrant that? If he must look there alone for authority, then all these acts are flagrant usurpations, deserving the condemnation of the community. . . . I understand that these proceedings all take place, not under any pretence of legal or constitutional right, but in virtue of the laws of war; and by the laws of nations these laws are just what we choose to make them, so that they are not inconsistent with humanity. I say, then, that we may admit West Virginia as a new state, not by virtue of any provision of the Constitution, but under our absolute power which the laws of war give us in the circumstances in which we are placed. I shall vote for this bill upon that theory, and upon that alone; for I will not stultify myself by supposing that we have any warrant in the Constitution for this proceeding." December 9, 1862: Cong. Globe, 50.

tories and the property of their citizens were subject to confiscation, and that the citizens themselves were subject to punishment at the will of the conqueror ; and they snapped their fingers at a Constitution which all but themselves professed to reverence but never obeyed, and which was upheld by none except the "copperheads."

The defectiveness of the radical view of the situation, judged from the standpoint of the Constitution, is apparent. That the Constitution is a compact irrefragable by anything except successful revolution is the view taken by northern constitutionists. President Lincoln, in his first Inaugural Address, expressed this matter very tersely and clearly when he said that: "The Union is perpetual. . . . It follows from these views that no state, upon its own mere motion, can lawfully get out of the Union; that resolves and ordinances to that effect are legally void; and that acts of violence within any state or states against the authority of the United States are insurrectionary or revolutionary according to circumstances." This notion was not confined to the North; it had been widely entertained throughout the South, but there it was universally held also that no power existed, by which, under the Constitution, the coercion of one state by another, or by the federal government, was permissible. If this view of the irrefragability of the Union be conceded, it follows that the effect given by the radical Republicans in Congress to the maintenance of armed resistance in the seceded states was to grant that secession had accomplished dissolution of the Union. This was going as far as the most radical secessionist himself could go. It was conceding

RADICAL SOPHISMS.

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the very point at issue, and allowing the secessionist to depart in peace. But at this point the radical claimed that the secessionist was a belligerent, and that it was the duty of the federal government to subject the South to its authority. It is difficult to see, if the secessionist could abandon our Constitution and make a new one for himself, and if his act of secession were rendered valid by his successful resistance to our arms, why he should not be allowed to do so in his acknowledged right to "the pursuit of happiness; or what was left to us but to lay down our arms, to gather the fragments of the old Union together, and provide for the future as best we could. Granting this effect of secession, asserted by the radicals, what right had we, in this event, to pursue the secessionist with force of arms? "He was guilty of an act of treason and rebellion," replied Stevens; "all these crimes were committed before the rebels became belligerents." If all these crimes had been committed before the perpetrators became belligerents, then the recognition by the federal government of the perpetrators as belligerents did away with their character as criminals, and rendered punishment after subjection out of the question. If to recognize them as belligerents was to lose authority over the insurgent states, what pretext had the federal government to continue the war, for authority was the very basis of its action; it was waging war against those who, it asserted, owed obedience to its authority, but who were openly denying this authority. "Who ever heard," retorted Thomas, of Massachusetts, "as a matter of public law, that the authority of a government over its rebellious subject was lost until that revolution was successful, was a fact accomplished?"

Thus, like his. brethren whom he had taunted, Stevens found himself in the midst of contradictions, and, like them, he floundered in the attempt to gain a solid footing. The radicals, who had made merry over the confusion of their colleagues who still professed a regard for the Constitution, had in turn to face the fact that throwing the compass and chart overboard was not the most judicious way of making port.

APPENDIX A.

THE following extracts from the credentials of the delegates from the different colonies to the Congress of 1774,1 show how single was the object sought, and how strictly advisory was the character of this body. It will be observed that of governmental powers there were none: the Congress was a mere Council.

New Hampshire. "To devise, consult, and adopt such measures as may have the most likely tendency to extricate the colonies from their present difficulties; to secure and perpetuate their rights, liberties, and privileges, and to restore that peace, harmony, and mutual confidence, which once happily subsisted between the parent country and her colonies."

Massachusetts.

"To consult on the present state of the colonies, and the miseries to which they are, and must be reduced, by the operation of certain acts of Parliament respecting America; and to deliberate and determine upon wise and proper measures to be by them recommended to all colonies, for the recovery and establishment of their just rights and liberties, civil and religious, and the restoration of union and harmony between Great Britain and the colonies, most ardently desired by all good men.'

Rhode Island. "To consult on proper measures to obtain a repeal of the several acts of the British Parliament for levying tax on his Majesty's subjects in America without their consent, and upon proper measures to establish the rights and liberties of the colonies upon a just and solid foundation, agreeably to instructions given by the General Assembly."

1 Journals, I, 2-9.