381 52 py 1 The Southern Question, A VIEW OF THE POLICY AND CONSTITUTIONAL Powers of the President, AS TO THE SOUTHERN STATES. By J. P. BISHOP, OF THE CLEVELAND BAR. CLEVELAND, O. : PRINTED BY FAIRBANKS & COMPANY, 1877. The SoLithern Question. A TIEW OF THE POLICY AND CONSTITUTIONAL Powers of the President, AS TO THE SOUTHERN STATES. By J. P. BISHOP, OF THE CLEVELAND BAR. CLEVELAN,D, O. : PRINTED BY FAIRBANKS & COMPANY, 1877. FIq,s Cbl. [From the Cleveland Herald.] THE SOUTHERN QUESTION. We give in this issue an article by Judge Bishop on the Southern poHcy of President Hayes which is deserving careful attention. The purpose of the Judge was to meet the objections which have been made to that policy by earnest Republicans who have seen in it an abandonment by tne President of the principles of the party which placed him in his present position. The declarations of the Convention which nominated him, the expression of his views contained in the letter of acceptance, and the reiteration of that expression in his In- augural are quoted to show that in adopting his course toward the Southern States the President has violated no promise or pledge given to the Republican party, but on the contrary is carrying out the promises he made and is acting in strict accordance with the principles laid down in the plat- form of the Convention which nominated him. If that platform and his public declar- ations in accepting the nomination and in entering upon the duties of the office to which he was elected were to be anything but empty professions, merely made to de- ceive, there was no other course open to him than that which he has taken. President Hayes can have deceived none but those who expected that on taking office he would de- ceive the public by breaking the promises he had made before his election. Again, Judge Bishop shows that under the circumstances the President could scarcely, without grave impropriety — to use the lightest expression under the ciicum- stances possible— have refused to withdraw the troops from their position of interfer- ence in a contest for the Governorship in the States of South Carolina and Louisiana. The Supreme Court decisions quotea go to show that such interference, in cases representing the features of those in the two States named, finds but doubtful warrant in the Constitution, if not absolutely prohibited by that instrument. The fact that the use of the troops for such a purpose cot only re> ceived no countenance from Congress but was in direct violation of the wishes of the popular branch of that body, furnished an- other justification of the President's course. We believe the opposition to the Presi- dent's Southern policy is rapidly diminish- ing, and should it prove successful in paci- fying the South and increasing its material prosperity without seriously endangering the peace and welfare of any class of its citizens — and that can only be determined by actual experiment — the wisdom of ibe course adopted will be generally admitted. If expectations of a satisfactory outcome of the experiment are disappointed, there will still remain the machinery provic'ed by the Constitutional amendments, and the laws which have been or may be passed under those amendments, for the protection of the oppressed and the punishment of the wrong- doers. THE SOUTHERN QUESTIOiN. A VIEW OF THE POLICY AND CONSTITUTIONAL POWERS OF THE PRESIDENT, AS TO THE SOUTHERN STATES. By J. P. BISHOP. OF the Cleveland bae. To Hon. Stierlock J. Andrews, Hon. Horace Foote, and Hon. Samnel B. Prentiss: With yo"r consent I inscribe to you tbe fol- lowing brief "View" of a great National question. I do thi? for two reasons : First— That distinguished and honored as you are as citizens, lawyers, and jurists, I may be careful to present only the true "view." Second— That if there is error in this "View" it may readily be detected and exposed. J. F. Bishop. Cleveland, May, 1877. During the Presidential conflict which has recently terminated In the inauguratioa ot Rutherford B. Hayes as President of the United States, I had occasion thoroughly to examine the Federal Constitution, and es- pecially those provisions which related to the validity of the election of Presidential Electors, and the manner of transmitting, opening, counting, and declarins the result of the Electoral vote. Since the inaugura- tioa another conflict has arisen, not as to the office, but as to the policy of the Adminis- tration, This conflict has assumed the more serious aspect since it is among those mainly who were active in securing the election of the President whose policy is called in question. The policy thus questioned is called PRESIDENT HAYES' SOUTHERN POLICY. The most conspicuous of those calling this policy in question is Ex-Senator Wade. But many other very distinsruished citizens are more or less emphatic in expressing dis- approval of this policy. Having observed this, I have been desirous of a=!certaining the cause of these complaints and the foundation on which they rest, and the constitutional warrant botli for and against this "Southern policy." Mr. Wade claims to have been grietously deceived by the course of the new Adminis^ tration and as bitterly repentant that he ever was instrumental in favoring or using his influence m the nomination or election of President Hayes. This is the more to be regretted, as generally those arraigning the President are (many of them) citizens of the noblebt impulses and have occupied distin- f;uished and useful positions in their several States and in the National Government. This is most emphatically so with Senator Wade. Now that we flnd ourselves thus situated at the very threshold of the present Admin^' istration, like the pilot and officers of the ship at sea in a storm, when dnven about in its course, before we venture to proceed very far we should take our observations, see to our bearings and soundings. And let us consider at the outset — HAS THE PRESIDENT DEPARTED FROM THE POLICY JIARICED OTTT FOR HIM BY HIS PAR- TY A^D ACCEPTED BY HIM? This can only be ansvsrered by examining the Republican platform adopted on this subject when the nomination was made and the acceptance of it. THE RESOLUTION RELATING TO THIS QUES- TION. "3. The permanent pacification of the Southern section of the Union, and the com- plete protection of all its citizens in the free snjoyment of all their rights is a duty to which the Reiuiblican party stands sacredly pledged. The power to provide for the en- forcement of the piinciples embodied in the recent constitutional amendments is vested by those amendments in the Congress of the United States, and we declare it to be the solemn obligation of the legislative and ex- ecutive departments of the Government to put into immediate and vigorous exercise all their constitutional powers for removing any just causes of discontent on the part of any class, and for securing to every Ameri- can citizen complete liberty and exact equal- ity in the exorcise of all civil, political, and public rights. To this end we imperatively demand a Congress and a Chief Executive whose courage and fidelity to these duties shall not falter until these results are placed beyond dispute or recall." GOVERNOR hates' LETTER OF ACCEPTANCE OP THE NOMINATION. As to the platform as a -whole he says: "The resolutions are in accord with my views and I heartily concur in the principles which they announce." Then, upon the subject of this resolution he expressed his opinions without reserve and most emphatically. I give the part of the letter bearing upon the subject: The letter says: "The condition of the Southern States attracts the attention and commands the sympathy of ihe people oc the whole Union in their progressive recovery from the effects of the war. Their first necessity is an intelligent and honest administration of the Government which will protect all classes of citizens in all their political and private rights. What the South most needs is peace and peace depends upon the supremacy of law. There can be no endur- ing peace if the constitutional rights of any portion of the people are habitually disre- earded. A division of political parties, rest- ing merely upon the distinctions of race, or upon sectional lines, is always unfortunate and may be disastrous. "The welfare of the South, alike with that of every part of the country, depends upon the attractions it can offer to labor, to im- migration, and to capital; but labortrs will not go, and capital will not be ventured where the Constitution and laws are set at defiance, and distraction, apprehension, and alarm take the place of peace-loving and law-abiding social life. All parts of the Constitution are sacred, and must be sacred- ly observed — the jMrU that are new no less than the parts that are old. The moral and material prosperity of the Southern States can be most effectually advanced by a hearty and generous recognition! of the rights of all by all — a recognition without le- serve or exception. With such a recogni^ tion fully accorded, it will be practicable to promote by the influence of all legitimate agencies of the General Government the ef- forts of the people of those States to obtain for themselves the blessings of honest and capable focrt? government. " If elected, I shall consider it not only my duty but it will be my ardent desire to labor for the attainment of this end. Let me assure my countrymen of the Southern States that if I shall be charged with the duty of organizing an administration, it will le one which will re- gard and cherish their truest interests — the interests of the white and colored people both and equally; and which will put forth its best eft'ortsin beha'f of a civil polis cy which will wipe out forever the distinc - tion between the North and South in our common eountry." I have given ail that the letter contains on the suoject under discussion. I will not pause here nor take the time and space to analyze the resolution and the acceptance of it just given, but will presume upon the candor and intelligence of the reader of this article, and leave each one to analyze and compare for himself the "Resolution" and the "Letter." When this is done, a candid judgment can be formed of what Governor Hayes said and what he intended when he wrote and made public his letter of accept" ance. WHAT WAS THE INTENTION OF GOVER- NOR HAYES ON THIS SUBJECT AS EXPRESSED IN THIS LETTER ? Brieflv stated, it was the expressed deter- mination in good faith, and with the exercise of tue powers which his position as Execu- tive of this great Nation should give him, to effect "the permaiievi pacification of the Southern section of the Union and the com- plete protection of all its citizens in the free enjoyment of all their rights," as is ex- pressed in the first lines of Ihe resolution. The great burden of the letter on this point was as to the most sure method and means of accomplishing "■tlie permanent pacification of the Southern section of the Unions No careful reader of the resolution and letter can come to any other conclusion . How could this be done in the most effectual and speedy manner was the leading thought and the great burden on the mind of the writer as he penned the letter. The resolu- tion was emphatic and so is the letter. The resolution declares that Congress, by the recent constitutional amendments, is vest- ed with the power to provide for the enforce- ment of the principles embodied in the "re- cent" amendments, and Congress and tbe Executive are called upon so to act by the exercise ot all their constitutional powers dS to remove any just cause of discontent on the part of any class, and to secure complete liberty and equality to every American citi- zen in the exercise of all civil and political rights. The letter is to the same effect, but at the same time the drift of the letter is so plain "that he that runneth may read" that Gov* 5 ernor Hayes had in view the attainment of this end, not by cultivating the "arts of war," but the "arts of peace," by endeavor- ing to brinff about "an era of good feel «• ing," when the citizens of the different sec- tions and races of this Nation "shall not," for the purpose of contending with each other, "learn war any moie," but "shall beat their swords into ploughshares and their spears into p'uning-books." We see, then, that the Convention in nominating, and Governor Haves in accepting, were in accord. THE INAUGURAL. Has there then been a departure I)y the President since his inauguration from his former professed policy? Was there any indication of such departure in his inaugur- al address? I can only refer to this very briefly. In the introductory part of the address he uses this language: "I wish now, when eve- ry motive for misrepresentation has parsed away, to repeat what was said before the election, trusting that my countrymen will candidly weigh and understand i% and that they will feel assured that the sentiment de- clared in accepting the nomination for tHe Presidency will be the standard of my con- duct in the path before me " And then he proceeds immediately to speak of "the SOUTH." The very same views are expressed as in his "acceptance," only he is, if possible, more emphatic, and discusses the subject more at length. It is evident from the whole tenor of the address that he desired and would aim at promoting and establishing in the South "the inestimable blessing of a wise, honest, aad peaceful selt-government," and he ex- pressed the opinion unqualifiedly that "the evils which affect the Southern States can only be removed or remedied by the united and harmonious efforts of both races actuated by motives of mutual sympa- thy and regard." He spoke ot the need of material jnvsperi- ty which was arrested by tlie war, and says: "But the basis of all prosperity for that as well as for every other part of the country is the improvement of the intellectual and moral condition of the people — universal suffrage should rest upon education. To this end liberal and permanent provision should be made for the support of free schools by the United States." The letter of acceptance and the inaugural, both, are opposed to maintaining Southern State Governments by force, and by the use of the army and navy. If anything is clear this is clear. If aaything is certain, this is certain. No citizen bad a right to expect the contrary. THE CONDITION OF THE SOUTH AT THE IN- AUGURATION OF PRESIDENT HAYES. The new President found the whole South in a state of ferment and excitement un- paralleled since the war. The people had been led to believe that instead of being liberated from the rule they have had since the war, backed by armed force, in some cases, they were now ebout to experience the force of " the iron heel of despotism," and that from this they saw no [)rospeci of escape. This was a false view, but It was difficult to get them to understand it so; though it would not have been difficult if they had read wliat the President haa written and declared, b.oth before and at the time of his accession to the office. THE PRESIDENT MUST BE CONSISTENT WITH HIMSELF. He had already declared against force in the "pacification of the South," at lea^t un-' til an honest effort had been made by "ihe arts of peace" to accomplish this most im- portant object, compared with which other matters were ii significant. Wbatthen was to be expected of Governor Ha_,es on his accession to the Presidency? Surely, as American citizens, having a just regard for the character and iionor of the Nation and its Executive head, nothing less should or could h sustain itself independent of the military b sld there under the command of the President. Under this state of things it was advised by the commission that a union of members otthe Legislature should be formed whose election was undisputed, and thus a foundation would be laid for a State Government whose authority would be unquestionable. A Legislature was so formed and coQstituted, and this Legislature recognized the NichoUs Government, and the other party abandoned it. Nicholls then, as before, demanded the withdrawal of the troops . In this condition of affairs what could be done in either State but withdraw the troops and leave the States of South Carolina and Louisiana to manage their own domestic affairs? The party in power in each State insisted on the withdrawal of the military of the United States, and the President had no con- stitutional or leaial authority to retain them there for the purpose of sustaining the op- posite party in power. There is no doubt a discretion given him to decide the question so as to even make a wrong decision effectual to maintain a party in power till Congress interferes and decides the matter. A corrupt decision even may do this. But it is not to be supposed that an Executive of the United States is capable of doing this, nor of even exercising an extremely doubtful power toward or against a State. THE PRESIDENT HAD NO ALTERNATIVE BUT THE WITHDRAW^AL OP THE TROOPS. This whole subject is under the power and authoritv of Congress. The President has no power or authority in the premises except what Congress confers upon him. Congress may also take away or modify at any time any power it may confer upon the President. Take a little retrospect. As to Louisiana, this controversy had been going on for years. During a portion of that time the Repub- lican party had a majority in both branch- es of Congress; but Congress did not then interfere to legislate and determine the ques- tion of interference. During the late Con- gress a large majority of the House were opposed to this policy in any Southern State, and no appropriation could be obtained for the army but subject to the prohibition that it should not be used in the Southern States. To say the most that can be said in favor of keep'ing the troops in these States, it is certainly extremely doubtful whether the President had any constitutional authority to ^ Interfere by the use of the military power . In such a state of things the only proper course is to subrrlt the matter to Congress, from which he derives his power, and let that authority which is the source of all the power the President has in the premises take the responsibility, the Executive abiding the result. There is no other possible policy which President Hayes could or can adopt and carry out, even if he would THE MEANS OF SUSTAINING THE ARMY are withheld from him; ana if every othe" constitutional and legal means existed to justify keeping the military there to sustain a party in possession of the State Govern- ment, his efforts would be in vain. Aside from this, the President ought not, against the strongly expressed will of the popular branch of Congress, to insist on the military occupation of a State. THE KECONSTRUCTED STATES. It is supposed by many that these States having been in rebellion and reconstructed, tbey are to be treated differently from ottier States in regard to using the army and navy in executing the laws in those States, and "against aomestic violence." But no author~ ity whatever exists in relation to any South- ern State, as to using troops to sustain the Government against "domestic violence," or for any other purpose, .that does not exist as to Ohio or any otlier Western or Northern State, and no disciimination can be made agamst them under the Constitution and laws of the United States. It is the recognized invariable rule of law now held in the Federal Supreme Court that "A State entering into the Union since the adoption of the Constitution forms a Union with ihe other States as complete, as perpetual, and as indissoluble as the Union between the oriainal States." 5 Abb. Nat'l Dig.. 445, sec. 3-" Texas vs. White, 7 Wal- lace, 700. It is further held by the same authority that the States entering into the rebellion were never States out of the tFnion, but their rights were held in abeyance or sus- pended only till reconstructed under the authority of Congress. Texas vs. White, 7 Wallace, 700; White vs. Hart, 13 Wallace, 646. So when they were re admitted to the exercise of their State rights in the Union they stood precisely where they did before their attempted withdrawal or secession. THE RESOLUTION OF THE REPUBLICAN CON- VENTION BEFORE REFERRED TO. This resolution clearly contemplated ac- tion by Congress devising and inaugurating a policy, before it was expected the Presi- dent would or could act upon the subject. This is perfectly apparent from the whole tenor of the resolution, and it moreover de» Clares that "the power to provide for the enforcement of the principles embodied in the recent constitutional amendments is vested by those amendments in Congress," and then Congress and the Executive are called upon to act upon the sub- ject. In all this it is evident that the Convention understood that there was no sufficient legislation on the subject then existing, and the resolution looked fora ward to the election of a Congress that would provide the necessary remedy, and to the election of an Executive that would en-- force the provisions made; and of course there is no sufficient basis on which the President can now act — and as Congress is now constituted there is no present prospect that there will beany legislation on the sub- juct for the President to" carry out. CONCLUSION. 1. Having fully gone over the ground in- tended when I commenced this paper, I be^ lieve every intelligent citizen, on careful reflection, will agree with me, that no one could possibly have been misled by any- thing which was written, said, or done by the President, up to aad including his inau-. guration into office, nor could any one have reasonably anticipated any other action than what has taken place as to the removal of troops. 2. I think I have shown that since the in- auguration, the policy pursued by the pres- ent adminisa-ation in withdrawing the troops from South Carolina and Loui.=iana was, under the circumstinces, the only thing proper to be done, and was the only thing wnich could constitutionally or lawfully have been done. 3. It is perfectly clear that the President had no alternative but the withdrawal of the military forces, as all supplies were refused and would have continued to be refused for the maintenance of the army or any portion of it used in any Southern State for the pur- pose of maintaining order, cr sustaining the authority of any parties claiminar to be the rightful Go^ermient of the State. Having carefully studied and considered the subject discussed, I have arrived at the foregoing conclusions, and now submit the result of my reflections and investigations to the judgment of others, trusting that the contents' of this paper may be siibjected to the severest scrutiny, and to the closest, but ai the same time, candid cv\i\c\im\ trusting also that if the true view is not here taken and (he correct conclusions arrived at on the subject discussed, some one will under- take the discussion and bring out the trite new. ^ONGRES: \5?| 789 629 1 i1 lllli III'!; ii! I'll I i mil 013 789 629 1 pH83