/ 
 
THE RIGHT WAY "'^■'^ 
 
 roK 
 
 3lfst0ring t|e late %i\i\ %iiin 
 
 TO 
 
 THE FEDERAL UNION; 
 
 OB, 
 
 AN AEGUMENT INTENDED TO INDUCE THE PEOPLE 
 
 AND PUBLIC MEN, IN MAKING ELCTIONS AND 
 
 FILLING OFFICES, 
 
 STA.TE -A.ND FEDERAL., 
 
 \ TO BE GOVERNED BY 
 
 THE CONSTITUTION OF THE UNITED STATES. 
 
 " The subject who is truly loyal to the Chief Magistrate, will neither advise 
 nor submit to arbitrary measures."— Junius. 
 
 -< ' 
 
 SEOOISTD EIDITTON" 
 
 By Robert R. Collier, Esq. 
 
 PETERSBUEG: 
 PRINTED BY A. F. CRUTCHFIELD & CO., BAIJ^K ST., 
 
 . 1865. 
 
60728 
 
 KEADER. CONSIDER. 
 
 Listen to a voice 'from East "Virginia, uttering, in time- 
 honored principles, in studied truth and measured terms, the 
 manner in which the States lately in. rebellion should be re- 
 adjusted in their federal relations. The voice is from one 
 who has spent much of his time and money, in every stage 
 of a long life, in seeking, in labors of love, to advance the 
 welfare of his native State. It may be you will listen with 
 less credulity, because the author is not a stranger, and be 
 under the influence of that sentiment ao-es agro recorded that 
 a prophet is not without honor save in his own country. 
 That deters him not from his duty. It shall not be his fault, 
 if you will neglect the truths herein expressed, because they 
 are homely truths. They are expressed with pains-taking 
 concern for e:?^act verity. They look more to the durability 
 of our representative system, than to the immediate advan- 
 tage of any section, even our own, in the passing hour ; except 
 that the passing hour can be best served by what is most likely 
 to secure that durability. The wisdom of ages adorns most 
 of the truths herein expressed. This expression of them, ia 
 intended in support of liberty regulated hy law, which alone 
 can assure social safety and happiness. Neglect of such truths 
 will sting you, reader, in whatever section of our country 
 your lot is cast, or your posterity, with a pungency sharper 
 and deadlier than the serpent's poisonous tooth. It may be 
 that the next generation will find that in this, the observance 
 of principle was not enough valued. Reader, the writer 
 would have you scan his language and rightly interpret it, 
 here and throughout. Then, you va^j see and know it no- 
 where speaks vanity, but fortitude whose weapon is honesty, 
 and aims, the public good. Most in this life he has source of 
 pride in, and indulges it, is that'he is not, nor ever was, gov- 
 erned by that indifference to public affairs, which the selfish 
 hide themselves in and always would have, and often get, 
 others to regard as being moderation or modesty. 
 
INTEODUCTORY OF THE SECOND EDITION. 
 
 Since the issuance of the first edition from the Press, the 
 writer has searclied into the elementary authors, and into the 
 adjudications of the courts, applicable to the doctrines ad- 
 vanced respecting his right way, and he has embodied the 
 results of his labors, in the matters with which this edition 
 is enlarged. lie has found nothing in conflict with, and no 
 little in support of, the way suggested as the best for restor- 
 ing these States to the federal Union. Althouo-h so much 
 prominence is given to that special topic, this edition so en- 
 larged, is published, ?is the first was, less with a view to indi- 
 cate the right way of acting in this yet fearful conjuncture, 
 than to make an effort to reawaken the popular desire to have 
 the public men respect the constitution of the United States, 
 and in each State, the constitution thereof — that is, to kindle 
 afresh, as in the earlier and purer periods of the Eepublic, the 
 sentiment in the popular heart, that the first duty of last im- 
 portance, of every man in office, is to admioister it, in the 
 particular part of the general trust assigned to him, with 
 fidelity to the restraints limiting his authority, just as they 
 are, and not as he or any one may think they ought to be 
 constituted. The written constitution declares the glory of our 
 system. That ascertains and determines the extent to which 
 the individuals trust their liberties to a majority. That also 
 defines the extent to which the States, as such, trust their rights 
 to majorities. If that fixed limit be transgressed, by so much 
 the glory of the system will be under an eclipse. It is upon 
 the republican principle the constitution is constructed, and 
 in so far as the structure fails to conform to that theory of 
 individual rights or States-rights, or there is a departure in 
 administering it, by so much it fails of its professed purpose, 
 and ceases to be worthy to be trusted for the protection of 
 either class of rights, against invasions by majorities. 
 
 That special topic of the right way in the passing condition 
 of afiairs, is handled only with tho wish and belief that the 
 
IV 
 
 work of restoring the States, shall be rightly done, to the end 
 that it will be stable, when it is done. On the more general 
 subject, the writer will remark that, in his judgment, the ob- 
 stacle to the perpetuity and improvement of our system., is the 
 multitude of popular elections. The offices so filled, will be 
 sought after most eagerly, and by men less scrupulous than they 
 should be of means of success. They ought to be lessened. 
 The people who do not seek office, look to the observance of 
 the laws, as their chief good. "When such elections are so 
 multiplied, the remnant of the people, who are not seekers of 
 office, and remain unseduced, is too small to persuade the public 
 men in authority, much less are they able to compel them, to 
 be under the influence, in their offices, of that respect for con- 
 stitutional restraints, which is the highest public virtue in a 
 Eepublic. 
 
 As was remarked or predicted by the sagacious De Tocque- 
 ville, it has already occurred, to wit, *' that when it shall be 
 perceived that the weakness of the federal government, com- 
 promises the existence of the Union, a reaction will take place 
 with a view to increase its strength." That weakness was 
 discovered in the inroads by "" State-sovereignty," of course. 
 That reaction has now been wrought. The danger now is, of 
 a precipitate increase of the federal strength, over-much, so 
 as to over-master the rights reserved by the constitution to 
 the States, which are of valtie, and the preservation of which 
 is essential to save the system from sliding into a monarchy — 
 which may God avert, and continue the triumph Washington 
 won for republican authority over sceptred sway. Can it be 
 that the constitution is to be neglected, until soon the fact will 
 be, as too many lacking fortitude say is already the case, it 
 shall have no influence in the popular elections, or the 
 public councils ? The controlling power of moral obligation, 
 on the men in office, and on the people who put them there, 
 must be augmented in proportion as political liberty is en- 
 larged, or else swift destruction awaits the noble structure our 
 ancestors erected. It is not enough that the outward duties of 
 religion be fulfilled with fervor. A sense of justice, in making 
 as well as in administering the law, and a purpose staid on 
 
morality to obey them, must prevail to raise to reverend^ the 
 inviolability of contracts. Above all else, not only must the 
 truth be perceived, but it must be acted out, that there should 
 be such a separation of Church and State, that it shall 
 be the pride of the clergy to abstain from politics, in the 
 sacred desk. Their own self-denial to exercise the right of 
 suffrage in political elections^ would widen and deepen their 
 religious influence. To win souls to immortality through 
 regeneration, is their high calling, and it affords fully renown 
 enough to fill the mortal career. As emphatically as it is 
 thus suggested that the clergy should take on denial of the 
 suffrage, let it be added that that is all that is meant. Any 
 legislation so to restrain them, should be resisted strenuously. 
 When it is said they should abstain from politics, especially 
 in the sacred desk, all is meant the expression imports. It is 
 not meant only that one branch of politics might be there dis- 
 cussed, and every other branch excluded. All political sub- 
 jects ought to be let alone there. The pulpit should be 
 voiceless on the whole subject. What more than any other 
 subject in the Northern pulpits, in recent years, and in the 
 Southern also, has been discussed to the stirring and keeping 
 strife aglow ? Surely, no other more than abolition, and none 
 other is more clearly a political question belonging to the 
 forum to discuss and the courts of civil law to decide. 
 
 On the topic of the " restored " government of Virginia, 
 which is treated of in an article herein, it is important that 
 the third section of the fourth article of the constitution, be 
 accurately understood. So much of it as applies reads thus : 
 "no new State shall be formed or erected within the jurisdic- 
 tion of any other State ; nor any State be formed by the junc- 
 tion of two or more States, or parts of States, without the 
 consent of the legislatures of the States concerned, as well as 
 of the Congress." That is the punctuation in most, if not all, 
 of the reprints of the constitution, in Virginia — it is exactly the 
 same in the instrument as prefixed in the "Virginia Debates,''^ 
 — but in Story^s commentaries, there is only a comma where 
 the semicolon is above next before the word nor after the word 
 state. If the comma is right, thgn both formations of a new 
 
VI 
 
 State, the one lollhin anotlTer, and tlie other out of parts cf 
 other States, are made subject to " the consent of the legisla- 
 tures of the States concerned ; " but if the semi-colon is right, 
 then the constitution does not recognize in the general gov- 
 ernment the power to admit a new State formed within the 
 jurisdiction of any other State; no, not even though the State 
 by its legislature shall have given its consent ; but positively 
 forbids the erection of a new State within another ; for, plain- 
 ly, the semi-colon disjoins the members of the sentence, so 
 that the qualification on the power subjecting its exercise, 
 when two or more (or parts of) States are concerned, to the 
 consent of their legislatures, is clearly disconnected with the 
 erection of a new State within another State. So disconnected, 
 the first member of the sentence or section, did not intend to 
 subordinate the erection of one State within another, merely 
 to the consent of its legislature, but to interdict it without 
 condition. The earlier prints in the Virginia Debates, in 
 1788, is more likely to be correct than that in Story, whose 
 valuable work is so much later and more latitudinous. More- 
 over, the semi-colon is used in Kicltey's " constitution," which 
 is certified by James Buchanan, Secretary of State, to be " cor- 
 rect in text, letter, and punctuation^ More significant than all 
 these, the sense and context show that the erection of a 
 State within another, was not intended to be subordinated 
 merely to the consent of a legislature. It distinctly defines 
 itself to refer to the plural consent of legislatures, and does 
 not include or contemplate the consent of the legislature of a 
 single State. Then and therefore says the objector, a State 
 cannot be severed by the consent of the legislature, and two 
 or more be made out of it. (But it does not follow that it 
 might not less objectionably be done by a convention.) Just 
 so, it is, as the objector says, that it caniiot be done by the 
 legislature] and what harm is done that it is so? Infinitely 
 less than may ensue, and likely will, if the sense and punctu- 
 ation be set aside, or the constitution be amende J, so that the 
 States, by ordinary legislation, may be subdivided, until they 
 become as numerous as the counties, each entitled to two 
 Senators. 
 
PREFATORY. 
 
 Prompted by love of country, the ^.utlior presents to as 
 many as may be supplied with a copy, tlie thoughts expressed 
 in this little pamphlet. He not only does not intend to invit© 
 but Y/ould earnestly discourage, any popular resistance to any 
 plan for restoring the Union. His is suggested for the public 
 authorities to consider, and, if deemed the best, to accept. The 
 thoughts on which his plan would proceed, are not, as yet, 
 current in the public mind: he aslfs that they be considered 
 well, and, after that, he believes they will become as current 
 as would coin from the mint. These, like most truths that 
 are uncurrent, are not as yet current, only because the public 
 mind is not familiar with them. The people are honest. 
 "What a stimulus that fact ought to be to republican virtue in 
 public men. 
 
 The plan suggested in these pages, is simple and prompt- 
 It is founded, for its manner, on the IV. Sec, I. Art., first 
 clause. Constitution United States ; '-^ and for its principle^ 
 to wit — " the republican form," — on Art. IV., Sec. IV., of the 
 constitution. It is that the government of the Federal Union 
 (and it is as much bound to give us the freedom, as we are to 
 pay it the allegiance) shall authorize the State of Virginia to 
 
 *That IV. Sec, I. Art., is as follows, and it is one of the most im- 
 portant in the Constitution : " The times, places and manner of 
 iiolding elections lx)r Senators and Representatives, shall be pre- 
 scribed iu each State by the Legislature thereof; but the Congress 
 may, at any time, by law, make or alter such regulations, except as 
 to the places of choosing Senators." This authority reposes on the 
 principle that every government ought to contain in itself the 
 means of its own preservation. It is in the Congress, as the chief 
 element of the national authority, anulHmatc power to be exercised 
 to secure the representation from the State, incase of a failure or 
 refusal to make proper regulations for governing the election^'. 
 
9 
 
 ^ 
 
 renew her representation in the Congress of the United States. 
 That would necessarily imply and impart authority to the 
 State to elect a General Assembly, under and according to the 
 provisions of the constitution of the State, as they were before 
 the " rebellioni" All else to revive the suspended civil gov- 
 ernment of the State, would follow and flow on as natural 
 consequences ; and the purposes of the General Government, 
 respecting the free people of color, would not, in the least, be 
 interrupted thereby. Indeed, the Legislature elected under 
 this plan, would be irresistibly constrained to alter the muni- 
 cipal laws that were in force before, and to make them cor 
 respond to the federal frustration of the late concluded at- 
 tempt to " secede." 
 
 If the author were slavish enough to offer any excuse for 
 proposing his plan, which it seems the men in authority have 
 not perceived, he might cite the conclusion of the lamented 
 Lincoln's Amnesty Proclamation. He then said that any 
 better plan would be accepted by him. But this author leans 
 not on that reliance : in this age we live in, he cherishes the 
 belief yet, that the toe of the peasant stands firmly nigh to 
 and gently presses against the heel of the prince : he has no 
 apology to make for proposing his plan to be substituted for 
 the one sought to be put into practice, and which can even yet 
 be regarded only as ^provisional. He believes his plan would 
 ■be permanent, because it is strictly in observance of law ; and 
 in exhibiting it, he feels as free as the air he breathes. He 
 knows it is no more designed to do harm, than the air was 
 designed to destroy human life. If this plan be not accepted 
 by the public authorities, it will be found that no other will 
 work well, unless it be well to work the death of the repre- 
 sentative system of political and civil freedom. Any other 
 plan will have hitches in executing it, and huge hinges on 
 which reminiscences will long grate harshly, in frequent up- 
 starting, to irritate and annoy and embitter and new-create the 
 fault. 
 
 As in popular government it is and will perhaps always be 
 the case, that frequent changes supervene, it may not be 
 amiss to explain what the writer means by the terms "pro- 
 
visional " and " permanent." In the sense that tlie people 
 can, at will, and often do, change the constitution of the State, 
 any e^cisting constitution is only provisional, to endure until 
 another, in a short time, shall be substituted. la that sense, 
 every constitution is temporary, and none is permanent. 
 Such, in fact, has been the habit of the States in this young 
 federal republic. The federal constitution, which established 
 an imperfect national government, has better withstood the 
 popular passion for change. The constitution in many of the 
 States, has been changed almosi as often as the young man has 
 had his tailor take his measure for his garments. In the 
 light of such facts, the terms are used only to distinguish the 
 one that is irregularly introduced into force and elFect, and is 
 avowedly to be superseded soon, from the other that is regu- 
 larly established, and is professedly to endure, at least for the 
 length of our generation. 
 
 This plan, in brief, is, that the Congress shall authorize the 
 States to elect representatives to the Congress, and fix the times 
 for the elections. At the same time, the people of each State, 
 qualified to vote, will elect a legislature, which is. necessary 
 to elect the State's Senators to the Congress. The State, 
 being so recognized to be in the practical relation to the 
 Union, will be at liberty, and will see that it is an attendant 
 duty, to elect the governor and other executive and the judi- 
 cial officers, and also to fill the ministerial offices belonging 
 to each department. If any act more direct is requisite, than 
 the implication from the authority to elect representatives to 
 the Congress, to authorize the State to proceed with the election 
 of a Legislature and the other officers in the home adminis- 
 tration, the recourse is accessible in the facts that the State is 
 now under military rule, and the President of the United 
 States, as commander-in-chief of the army, could order when 
 the State elections for the home administrations shall be made. 
 This election might be when the representatives to the Congress 
 are elected. After the State is thus put in motion, in the pano- 
 ply of the civil authority, a convention uf delegates could be 
 called to alter the constitution, if necessary. 
 
 Since the above "syas written, the proceedings of the people 
 
of Albemarle county have come under tliis author's inspec- 
 tion (thiS; June 10th.) Those proceedings are in accord with 
 the judgment that prompted this pamphlet. They protest 
 against the propriety of spreading the Alexandria constitu- 
 tion over this State, and, at the same time, counsel submission 
 to it, as a provisional authority. They declare that — " Enti- 
 tled to a republican form of government by the provisions of 
 the Federal Constitution, to which they are now remitted, 
 they cannot, without a dereliction of duty, shrink from as- 
 serting their right to the same, nor leave their silence to be 
 interpreted into acquiescence, Avhen measures are impending 
 that contravene the fundamental principle of such govern- 
 ment." 
 
 Now, if "the advantage of gaining time," in respect of any 
 one plan in preference to another, is to overrule the great 
 ■principle of the consent of the governed, and other valued 
 elements of our representative system, why not at once inau- 
 ^uarate a dictatorship ? This would be the shortest way of 
 gaining time. But it is not surprising, whilst the Albemarle 
 plan was on the right principle, that it has failed to gain ac- 
 ceptance. It proposes a needless convention^ and, besides, 
 agrees to the North Carolina plan, which is less consistent 
 with our system, than is the Pierpoint plan for Virginia. 
 Notwithstanding those objections to the Albemarle project, it 
 yet exhibits the first clear streak of dawn, the public had 
 before seen, that has presaged the open broad day ; and yet 
 those proceedings, in Albemarle county, propose no plan to 
 remove, the first difficulty in the situation, which this pam- 
 phlet does. Those proceedings reprobate the plan of using 
 the Alexandria constitution, and it is not inappropriate that 
 this pamphlet, which has for its sole purpose the suggestion 
 of a plan to reach the roots of the evil, shall be the vehicle 
 of reprobation, though in brief, of some incipient steps that 
 have been vehemently intimated. These are the holding of 
 t^tate and National conventions, to amend the constitutions, 
 AVhy hold either ? It is said, to adapt them to the abolition 
 of slavery. No convention is needed for that. The owner- 
 ship of slavery is already extinguished by force of arms. 
 
Already an emancipation amendment of the Fedefal Consti- 
 tution is pending, and has been adopted by. nearly enough 
 States to ratify it. Already in these States, South, where 
 that amendment has not yet been acted on, slavery has been 
 killed by physical force, and will not be sought to be revived ; 
 or if so, without any likelihood of success in Virginia. Then, 
 why a convention for that purpose ? A convention would do 
 mischief on other subjects, and is not necessary on this. The 
 Federal constitution is the wisest emanation of statesmanship 
 the world has ever seen — it embraces a cure for every ^disease 
 the body politic is heir to — a remedy for any emergency. Con- 
 sult it. It is the genuine scripture of the true political science. 
 Cherish it, as it is. No change is necessary for adapting it, 
 or that of this State, to the abolishment of negro-slavery. As 
 well might the sturdy oak be cut down, or the ancestral tree, 
 on the old homestead, that has yielded its fruit or spread its 
 shade for generations, be dug up or hacked, because it has a 
 rotten limb on its venerable trunk. Lop off the dead limb — 
 that is quite enough. Slavery is already lopped off with a 
 sharp axe and a strong arm. Let the old trunk stand with the 
 other fruitful limbs, in beautiful, genial vigor, just as they 
 are. Many who would advocate a convention, will think 
 that only what they desire shall, will, be altered. They are 
 in danger of meddling with strings, the existence of which 
 they do not suspect. They may see the talisman removed, on 
 which the fabric of freedom depends. 
 
 I^J^T'These articles were written at the several dates they 
 bear. Since they were written, much has been done towards 
 effecting the restoration of the States : but nothing is likely 
 to be or can be done, consistently with the federative system 
 of our complex governments, without applying to the work 
 of restoration, the principal features of the plan herein sug- 
 gested. Nothing that has been done, in the least prevents 
 the application of this plan ; especially in the light of the 
 suggestion that these States being now under military rule, 
 though, at the same time, having provisional civil govern- 
 ment, the President of the United States, as commander-in- 
 .chief, can order elections to be held for members of Congress, 
 
6 
 
 implying autliority to elect the State Legislatnre, &;c., &c. 
 The Congress of the United States would only have to admit 
 the elected to seats, and no extra session of tlie Congress 
 would be necessary, and the delay of the regular session 
 avoided. Save to admit — that is, to exercise the authority to 
 admit or not ; for, Congress is the judge of the elections, returns 
 and qualifications of its own members, each house for itself. 
 Neither is that all, nor the most, much as it is, just now. The 
 work in hand is how, orderly, to get States back into their 
 practical relations. Of thatf Congress is the judge. And it 
 ought to be weighed well, and it is of great weight, that the 
 Congress must act at first, or should act at last, in the matter 
 of restoring these States. Unavoidably, the Congress must 
 in advance give the authority to renew the State's represen- 
 tation in the Congress, or else hold in reserve the power, 
 (when the persons elected under whatever other authority 
 they may be sent up, shall apply for the seats,) to pass on 
 the competency of such other authority to have ordered the 
 elections and given the credentials. The Congress may pos- 
 sibly neglect that power of theirs. On that occasion of ad- 
 mitting the elect to the seats, tlie whole question of orderly 
 restoration of each State, will bo open. It cannot be consti- 
 tutionally foreclosed. Whilst it is true, as the Boston Post 
 justly declares, that " the present relations of the national 
 government to these States, ought not to be prolonged for the 
 purpose of compelling them to adopt constitutions or laws 
 repugnant to the ideas and sentimi?nts of the people ; " yet, 
 it is the right and the duty of the Congress to see to it that 
 the process of restoration be conducted with method and by 
 constitutional means. Must the Congress, the grand inquest 
 of the nation, be silent in restoring the States ? Or, is it that 
 they may have voice, but no vote, in the skill, and labor of 
 the work ? And why should not the Congress have its ap- 
 propriate work to do ? 
 
 The writer has not failed to perceive, or to appreciate, the 
 disinclination in the popular mind and the newspaper press, in 
 the South, to discuss the subject of the proper plan for re- 
 (Storing the States to the Union. That disinclination is from 
 
a double spring. It is the general opinion that the federal 
 authorities are intolerant of free debate. This, the writer 
 believes, is a misconception. That is one, but not the main, 
 spring of that disinclination to discuss the subject. The 
 other and the main spring is, that the public feeling in these 
 States, South, is very much and unduly depressed — so much 
 so as to be almost indifferent to the mode of restoring the 
 States — indeed, quite in despair of ever again enjoying the 
 rights of States in the Union. " Give us civil government," 
 is the popular clamor, without considering whether t'he way 
 in which it is attempted at the start, can be continued to a 
 completion of the restoration. That gloom is owing to the 
 fact, chiefly, that the supposed right of secession is squelched. 
 That used to be esteemed, by many, to be the totality of 
 States-Rights. No wonder they who so esteemed it, are des- 
 pondent now it is strangled by the blood of its discomfit 
 ture. That was their mistake, and a grevious mistake it was. 
 It was the immediate cause of all our present and pressing 
 woes. . If they who indulged that mistake, could be disabused 
 of it, in their minds and hearts, their hope would be healthy 
 and their expectation vigorous. Indeed, secession was not 
 the sum total or the substance of States-Rights. If it were 
 ever a right at all, it was a right to the damage of its posses- 
 sors. It only excited a delusive expectation, . so perfectly 
 imperfect a right it was. It excited the expectation of con- 
 tinuing peace, in the event of its exercise. That expectation 
 has been signally and explosively disappointed in the recent 
 and first attempt to put it into practice. On no future occa* 
 sion, would it be any more likely to be peaceful, or to prove 
 to be an attractive shibboleth. Then, why was it claimed, or 
 should it ever be again, as a right ? If not peaceful, it is only 
 cumulative and superfluous. If not peaceful, it is only an- 
 other name for the rirjlit of revolution. This blushing rose 
 does not smell as sweet by that other name. There is much 
 in a name. A blind man would put in the cup cow-dung, 
 called bugar, to sweeten his coffee. By the name of '' seces- 
 sionr the right to resist usurpation — to throw off old forms, 
 and to institute new ones with fresh or firmer guards for the 
 
people's future security of happiness — is divested of all the 
 glorious memories that cluster about tlie old and well-known 
 name of tbe right of revolution. When the right is invoked 
 by the old familiar name of revolution, the invocation means 
 war ; and preparation is made for war. When it is invoked 
 by the new name, it means peace in the imagination of its 
 assertors; and when war swiftly ensues, they are all unpre- 
 pared for it. Amidst the vicissitudes of the fortune of war, 
 *' secession " could set up no banner for the union of all classes 
 of the people. Aright then it is (if it exist in theory at all) 
 to the disadvantage of them that asserted it. In practice it 
 is ensnaring, though in theory it was charming. The theory 
 is now exploded and expelled : at least, its advocates whom 
 mo argument could reach, now dance to the music of the 
 CTnion, after a long serenade of the trumpet's clangor and the 
 -cannon's roar. Yet, nevertheless, the right of revolution 
 remains, and all the valuable rights of the States, remain. 
 The right to regulate suffrage — the right to representation in 
 the Congress — a free, but not libellous press — a fair, but not 
 slanderous speech — and every other right of any value, the 
 Rist of which is long — all remain. Nor is there any room for 
 the despondent belief that the rights subsisting and of value, 
 though suspended by the State's delinquency, are to be taken 
 .away. On the contrary, whilst the " seceding " States might 
 from the first have been treated as States that had ceased by 
 their own acts to have any rights in the Union, and ought to 
 have been declared out of it, and then, hence, might, and pro- 
 bably would, now be dealt with as conquered provinces, the 
 federal authorities, not altogether free from moral restraint, or 
 ■even legal checks, disavow such to be the intended treatment, 
 and proclaim the purpose and solicitude to restore them to 
 the Union. Nor should any timidity exist in the minds of the 
 private citizens, or on the part of the newspaper press, to 
 discuss freely, if fairly and honestly, the application and en- 
 joyment of the rights that are potential. The federal authori- 
 ties have given no sufficient evidence of a design to suppress 
 what ought to be published or spoken. It is not evidence to 
 that effect, that as much latitude is not allowed under military 
 
rule, as might, witli impunity or even applause, be indulged 
 in the milder and more equable reign of the civil law. Nor 
 is it such evidence displayed in the fact that newspapers have 
 been suppressed, the conductors of which, under misconcep- 
 tion, and whilst the civil law was in abeyance, indulged abu- 
 sive tempers. The liberty of the press cannot be justly 
 claimed under military rule over a conquered province or a 
 subjected State, to have the same extent, if indeed it can be 
 claimed to be capable of existing at all, as under the civil 
 law. In the one case, whatever liberty the press may have, 
 is at the pleasure of the military commander ; Virhilst, in the 
 other case, the liberty of the press consists in this, that neith- 
 er the courts of justice, nor any other judge whatever, can 
 lawfully proceed to suppress or check it, except only by the 
 trial by jury. ■ » 
 
 The writer's purpose which he here distinctly declares, as 
 is indicated, perhaps, sufficiently already, is to pursue to ever- 
 lasting death that evil principle, called State-secession, which 
 has so long and exceedingly infected the public mind and 
 infested the public counsels. It has been already slain by 
 the sword ; that was its physical death. By the argument 
 stated above, the writer seeks to subject it to the second 
 death, by the most destructive views he has conceived to sub- 
 ject its spirit to. He will now speak as gently as he can, of 
 those who quickened its mortal career to so much success, 
 before it reached its physical death by the sword. He has 
 but one tear to shed, and then his eyes sparkle with joy ; and 
 that tear is shed at the grave of the Confederate soldiers 
 who were more numerous far and not less heroic than the 
 seventy thousand Komans who were " killed on the spot," at 
 Cann^, by Hannibal's Carthaginians.* Of the " Confeder- 
 ates " who are so lamented as to elicit that tear, not many in 
 the proportion were of the original secessionists, of whom the 
 writer will proceed to speak a little space, and by way of 
 taking a glimpse at the interior view of the great rebellion. 
 
 *I noue the less Lament the slaughter of the Union soldiers, ex- 
 cept the foreign mercenaries who, not impelled by love of liberty or 
 pride of nativity, fought for land and richly gained a grave. 
 
10 
 
 It often happens tliat errors of opinioa of much irnportauco 
 and extensive influence prevail, simply because no one will 
 take the trouble to contradict them, at the outset, or to con- 
 front their march, with steady firmness. It is now being said 
 that secession has been put down by the war. It is only true 
 that it has ceased to be an illusi:)n. The fact is that secession 
 never was uppermost, to be put down in the popular judg- 
 ment. — On the contrary, a vast majority in the South have 
 always denied the doctrine. John C. Calhoun never espoused, 
 though John Q. Adams did assert it. It is true of the whole 
 country, as of the qualified voters of this city, that only a few 
 espoused that disorganizing and incompatible doctrine, In 
 Petersburg, out of a voting population of eighteen hundred, 
 just before the war, less than two hundred and fifty were in 
 support of secession as a State-right. Yet nearly all that 
 voting population, three-fourths of them being under the age 
 of forty-five, were in the war, as soldiers or other " Confeder- 
 ate *' servitors. And now, because they were in that service, 
 they are claimed to have been secessionists, and many are 
 discredited who are now found asserting that they were not in 
 favor of the war, but friends of the Union. They were in 
 the war, because they (and a proportional number of the whole 
 South) suffered themselves to be wheedled into it, by that 
 anarchical, ai>d place-hunting, and ever active party of seces- 
 sionists whose conduct always evinced a determination to rule 
 or ruin. Though eager for the war and addicted to efforts 
 of laborious zeal to bring it about, making the while asseve- 
 rations that no war would be superinduced, they have the 
 reputation of not having done their part of the fighting, but 
 being best fed out of the public crib, during the terrible con- 
 vulsion of this youthful gigantic country driven by their 
 counsels to the dreadful verge of utter ruin. These men have 
 been the swiftest to apply for pardons. And it can now be 
 seen by the careful observer, that tlieyi who before the war, 
 were advocates of secession as a theory, are still seeking to 
 make the impression that the war was waged to establish that 
 right, in practice ; whereas it is the fact that seven-eighths of 
 the people were deceived into the support of the war, on other 
 
11 
 
 grounds of inducement to the acts of State secession, and 
 nearly all of them with the view, swaying them, to make 
 more sure the ownership of slaves, that was secure already. 
 That it was secure in the States before the war, had been de- 
 monstrated by votes in the House of Eepresentatives on three 
 memorable occasions, to wit, in 1796, in 1833, and in 1859, 
 (I believe were the years), when, at each time, a resolution 
 was in that House adopted, almost unanimously, to the effect 
 that the general government had no power to interfere with 
 slavery in the States. How much less secure it was made by 
 the war, the end of the war has told. How much the false 
 doctrine prevalent in the South, that the people are sovereign 
 in making and amending constitutions, to the extent of de- 
 stroying an existing property, emboldened the North, and 
 even excused them, in urging them on to slay negro-slavery 
 by the sword, under cover of a design " to save the life of the 
 nation " against the avowed attempt of the secessionists to 
 dismember the Union, the world will probably never under- 
 stand. It is under the influence of the fact that the heart of 
 the people was not in support of secession which that party, 
 small in numbers, but large in activity and deceptive powers 
 sought to establish, that the people of the South have so 
 readily and cheerfully acquiesced in the result of the war to 
 the utter overthrow of that disorganizing doctrine which, 
 whilst it has been so killed oft' by the war that it can never 
 again be wielded as an element of deception, is yef cherished 
 as a sound doctrine in theory by many of those who used it 
 with such sad consequences to the South, and who would be 
 willing to strive again to set it on its crippled legs, if they 
 were strong enough to make the attempt. (Let it not be in- 
 ferred from this vein of thought, drawn from a storehouse of 
 facts, that anything here said carries the intimation that the 
 late owners are not reconciled to the emancipation of their 
 slaves. Such inference would be wrong, as such intimation, 
 if intended, would violently assault the truth.) It is from 
 the lingering attachment of the original secessionists to the 
 exploded theory, that the false accusation springs to vex the 
 patience of honest men who are right-thinking politicians, to 
 3 
 
12 
 
 the effect that men who hare all the time of the war beer 
 friends of the federal Union, were, during the war, (if the} 
 remained in the South,) either false to the South, or are no^ 
 false to the North, There is not a word of truth in the unju? 
 imputation. It is false in every sentiment and syllable, I 
 is perfectly consistent with the nature of the human hear 
 and the structure of human society, that, vfith profoundest 
 honesty, a man may have been a friend of the Union, and 
 yet have been willing to spend and be spent in support of the 
 war on the side of tlie South. To b<3 brief, I will simply 
 illustrate the proposition thus : I see my father in a quarrel 
 — think him in the wrong — tell him so — even tell others that 
 such is my deliberate belief — but he will insist, and after 
 ample time for reflection, he gets into a fight — the odds are 
 against him — I go to his help and take a hand in the fray. 
 The principal man in the quarrel and fight was, before either, 
 my friend; and I believed, during both the quarrel and the 
 fight, that he was in the right. After the fight is over and 
 my father is whipt, I tell his antagonist I thought all the time 
 he was right and my father was wrong — but he was my father, 
 and I took his side. Was I either false to my father, then, 
 or to my friend, now ? No, neither. In the late rebellion, 
 the South was my father — the Union, my friend. I took part 
 with the South — the South is whipt — and I am, as I was, the 
 friend of the Union. It cannot be justly said that I was false 
 then to the South, or false novr to the Union. According to 
 natural instincts, and in the depths, as well as on the surface, 
 of the political philosophy of our system, I am and have been 
 true to both, and by other conduct would have been false to 
 the South, then, or now false to the Union. 
 
 The men who before the war, opposed it, who contended 
 that there was no suf&cient cause for it — who did least in 
 prosecuting it — were in very truth the men, when calmly 
 viewed below the fretful surface, who did most for the South. 
 For one, though I did a little to aid in the war, and yet never 
 for an hour believed the South could be as well off out of the 
 Union, as in it, I will never admit that I wouLS not have done 
 more for the South, if I had refused to gi-v^ any aid of any 
 
13 
 
 sort in support of the war on the side of tlie South. They 
 who did nothing in that way, have done more for the South, 
 than they who in that way of bad activity, did most. That 
 is just as clear as it is in any other wrong, that they who 
 did most to execute it, are they who are most to be blamed. 
 In my father's fight wherein he was in the wrong, in case my 
 aid under the impulse of natural affection, uncurbed by rea- 
 son, had given him success, how deep should be my sorrow, 
 and loud my lamentatian, that the evil effects of his victory 
 over my friend who was in the right, had brought a neigh- 
 borhood into trouble, or a nation into calamity, which it 
 might require ten years or a century to correct. Then, let 
 not him who did most to carry on the war or was foremost to 
 bring it on, take to himself, or be allowed by any to have the 
 praise over him who would, if he could, have averted the 
 bold onset of an attempt that has run its- career to the reverse 
 result. The end of the attempt is full enough of evils which 
 its permanent success would have augmented. Success with 
 a view to reunion, is the only success that would have been 
 better than defeat to the South. The original secessionists 
 should stand aside, in shame, and the friends of the Union, in 
 regret, who did most in the war, and let them who did the 
 
 # 
 
 least for the success of the war against the Union, and so did 
 most for the South, proceed now to repair the ruins they were 
 unable to prevent. 
 
 It is not improbable that these men who vrere original 
 secessionists — men bolder than brave, and more artful than 
 wise — will strive to have the " Confederate " war debt paid. 
 If they succeed, they will receive much of the payment, and 
 by some shift contribute but a little. Nor is it unlikely that 
 with the boast that they were sincere in their devotion to 
 their principle — with which boast every field of election will 
 be vocal — they will succeed in deceiving the people to put 
 them in office again, in order to soothe their wounded pride 
 and sore humility under the discomfiture their principle has 
 encountered. A bad principle should elicit no sympathy, in 
 its defeat, for its advocates. The people should be wise and 
 just to tell them: "You deceived us once; that was your 
 
14 
 
 fault : if you deoeive us again, it will be our fault." Besides, 
 it would not be bonest and just in the people, by putting 
 tbem in the public service again, to rob them of the crown of 
 political martyrdom, which they declared before the war, if 
 it came and they failed in it, would be glory enough for them 
 — it was so sweet to sacrifice one's self for one's country, come 
 death or defeat in the struggle. As they were not killed, let 
 them living wear the martyr's crown, in private walks. 
 
 It becomes the writer, in a sense of justice to others and 
 himself, to state that, in his observations on " the Wheeling 
 and Alexandria constitutions," which he reprobates in the 
 .claim set up for them that they cover and convey a rightful 
 authority in the so-called " restored " government of Virginia, 
 he does not intend to impute to any who have taken the in- 
 consistent oath to support it a?zc?the constitution of the United 
 States, an act of intentional perjury. It is an oath in the 
 forms of law prescribed, and persons authorized to administer 
 oaths, have administered it. If possible it ought to be taken 
 by all, and certainly every one who has taken it ought to 
 observe it, in its purposes and spirit. No one has any right to 
 menial reservation in taking a legal oath : and without legality 
 no ceremony is an oath : nor can any man not legally 
 charged with the service, administer a legal ceremony. No 
 one who has not authority to administer an oath, can impose 
 the obligation of an oath, by any formality wherein the party 
 submitting to it, under constraint or by consent, is not re- 
 quired by the laws to be subject to a prescribed oath. 
 
 The recent occasional forms of oath imply that the party 
 sworn has the right of mental reservation in taking a legal 
 oath. The implication is, in this, that some forms recite that 
 jihe oath is taken without mental reservation, as though the 
 party would have that right, if the denial of it were not in- 
 serted. The practical effect of the occasional recital of the 
 denial of the right, is that the party sworn, observing the ab- 
 sence of the denial in the present instance, assumes that it is 
 not intended in this case, as it is required in some others. It 
 is thus made evident that the better practice would be not to 
 jnsert the denial in any case, an4 so to leave the ceremony to 
 
15 
 
 the simple effect, unassisted, and legally cutting off the right 
 to mental reservation, in all cases, without concession, or ex- 
 ception, or cavil of any sort. 
 
 In the matter of o^iths, no less than in other matters, no 
 person who is not appointed by the law, can administer the 
 law. It would be honorable to all societies which are un- 
 regulated by laws enacted by the public legislature, if they 
 would substitute the pledge of honor in the stead of the 
 mockery they indulge, if indeed any of them do pretend to 
 administer oaths, to bind their members or of&cers. Morality 
 is more honored, and honor is better served, by the neglect, 
 than by the practice, of such serious mimickry. Indeed, the 
 more solemn the occasion, the more reprehensible the trifling 
 with it. 
 
 Three things are necessary to constitute an oath : (1) one 
 party to swear (2) another, on (3) the occasion, all three ap- 
 pointed by the laws. In all Christian countries, and with 
 very much minuteness in Virginia, the laws determine when, 
 and hy, and to whom, prescribed oaths shall be administered, 
 
 In the light of these allegations, it is true that one who has 
 gone through the mere lorms of taking an oath, when the 
 transaction was not required or recognized by law, has the 
 right of mental reservation, so as that afterwards, in case he 
 fails to comply with the formality he passed through, how- 
 ever, and yet to much less extent, he may be censurable for 
 trifling with a sacred ceremony, he cannot justly be charged 
 with legal or (so absurdly to speak) moral perjury. Observe 
 the two points : (1) The pal-ty is culpable, but not guilty of 
 any crime ; and (2) he had right to mental reservation, be- 
 cause the party he was dealing with, on an occasion not known 
 to the laws, had neither legal authority nor adequate moral 
 power to impose the obligation of an oath. The party had 
 the same right to mental reservation, he would have had to 
 recant a rash promise made on the same occasion in any 'jLher 
 form. As manslaughter is not murder, nor so criminal, 
 though it is culpable; so, trifling with oath-taking, is not per- 
 jury, nor so culpable, though it is' sinful, 
 
 "Whilst all that is true of the oath specially adverted to, 
 
16 
 
 the writer is not able to iiuderstand how be can escape perju- 
 ry, in fact, though, not by intent, who has taken it, if the 
 party he dealt with was authorized to administer it. The 
 writer is not disposed to blame any one in particular who has 
 taken it, except to this extent, he does blame all such : He be- 
 lieves it would have been wise for all the people of the State 
 to have declined taking it, for the reason that its two distinct 
 obligations are so contradictory, the one of the other, that 
 both cannot be complied with. 
 
 Though this preface is already unusually fall in reference 
 to the matters in the text, still the writer judges it not un- 
 juitable to extend it somewhat in one distinct direction, and 
 to enlarge a little in another direction. ' This purpose, first, is 
 to say why the most difficult of all the problems- involved in 
 the work of restoring the States of the Union, is not discussed. 
 What is to be done with the colored people lately slaves, is 
 that problem. Adventurous as any may think the writer to 
 be, and unable as he feels himself to make a smooth and firm 
 path the labyrinth he has attempted in much feebleness, 
 though with some confidence, to thread, he declines to solve 
 that problem of the future of the negro. He ventures to say 
 it is too vast for any one man to master, or any one genera- 
 tion of men to adjust. He will only say, as Jeremy Bentham 
 expresses it, who is sometimes sage, at others, silly, that we 
 cannot reason with a fanatic armed with natural right, which 
 every one understands just as he likes ; applies as it may suit 
 him ; of which he can yield no part, retrench no part ; which 
 is inflexible, at the same time it is unintelligible ; which is 
 consecrated in his eyes, as a dogma, and from which no one, 
 he thinks, can depart, without crime. Instead of investiga- 
 ting the principles of legislation by their apparent or proba- 
 ble effects, and accordingly determining them to be good or 
 bad, he considers and adopts or rejects them, with single re- 
 ference to his standard of "natural right" — that is to say, he 
 substitutes for the reason of experience,' the chimeras of im- 
 agination. 
 
 The subject of State disqualification to hold Federal of&ce, 
 which is proposed to be enlarged on, in ending this preface, 
 
17 
 
 involves a point that has long been in dispute and often under 
 discussion, to settle which a good opportunity would be af- 
 forded in enforcing this way of restoring the late rebel States. 
 The point is, whether, by the constitution of a State, any dis- 
 qualification can be superadded, so that a man, though twenty- 
 five years of age, and an inhabitant of that State in which he 
 was elected, at the time of the election — he having been seven 
 years a citizen of the U. S., and elected by electors qualified 
 to vote in the State for a delegate to the most numerous 
 branch of its legislature, which are all the qualifications the 
 constitution of the U. S. requires specifically, shall concur in 
 him to entitle him to the seat in the House of Eepresentatives, 
 shall, notwithstanding the concurrence of those requisites, be 
 ineligible by reason of a disqualification prescribed by the 
 constitution of his State. The point has been supposed by 
 many to be presented, when it was not in point of fact. In 
 McCreery^s case, in the House of Eepresentatives, in 1807, it 
 was, by an act of the Legislature of Maryland, that the resi- 
 dence was required as the act prescribed. In TrumhulVs case^ 
 in the Senate of the United States, from Illinois, the facts did 
 not bring up the point plumply. Several of the State con- 
 stitutions provide that men in the State judgship shall not be 
 eligible to "any political office,^'' nor within twelve months 
 thereafter. Some of them in those terms so provide, whilst 
 in others the prohibition is enlarged in terms to embrace state 
 OT federal office ; whilst in some the expression, during his 
 term of service as Judge, is used ; and in others, the term, for 
 which he was elected to be the Judge. This question is likely 
 to arise anyhow, and especially if the Congress at its next 
 session shall claim it to be their right and duty to determine 
 whether any State can only be authorized to renew its repre- 
 sentation in the Congress, by an enabling act of the Con- 
 gress — not the question of the eligibility of an acting or recent 
 Judge at the time of his election to the Congress, which may 
 possibly arise, but that same question, in the principle of it, 
 in respect to men who have recently held other offices, which 
 13 almost certain to come up. The Alexandria constitution, 
 if it is of force, prescribes that no person shall hold office 
 
18 
 
 "under that constitution," who lias held office under the so- 
 called Confederate government, &c., &c. No such disqualifi- 
 cation is prescribed by the constitution of the United States, 
 though by the act of the Congress of July 2, 1862, the pre- 
 scribed oath is a disqualiScation of any and all to hold federal 
 office, who aided voluntarily in the rebellion. Now, then, in 
 case that act is repealed, as the writer thinks it should be, for 
 want of constitutionality, and a man is elected to the Congress 
 by the people who, being unrestrained by the disqualifying 
 provision of the State constitution, will give him votes 
 enough to entitle him to the return, shall the Congress, or 
 should they, admit him. to the seat ; and admit him. because 
 the constitution of the United States does not, whilst that of 
 the State does, jirovide specially that in such case he shall not 
 hold the office ? If so, the State's interdict is a nullity. It 
 would be equally clear, or clearer, that a provision in any 
 State constitution, to the effect, that a recent Judge, or one ex- 
 ercising the office of Judge, by due election or appointment, 
 in his State, shall not be eligible to any federal political office, 
 is also a nullity. Under such decision or ruling by the po- 
 litical or judicial authority, the State constitutions should not 
 be encumbered with any such disqualifications. They would 
 serve only to give an uncertain sound. And in respect to the 
 ineligibility of the Judges, if the State's interdict of elections 
 to any political office, is interpreted to be confined to State 
 offices in the Jiome administration of the State, and not to in- 
 clude federal offices from the State also, the disqualification 
 by the State 'is quite useless. The only purpose of the dis- 
 qualification is to preserve the integrity of the bench, by 
 taking away the temptation to seek popularity by swerving 
 their decisioDs to acquire it. Eligibility to the more lucrative 
 and distinguishing federal offices, is the principal source of 
 temptation. As Patrick Henry said, "bring up the federal 
 allurements and compare them with the poor, dontemptible 
 things that the State legislature can bring forth." There is 
 indeed no other merely State office that is at all likely to 
 tempt the Judge to quit the bench, to get it. The purpose of 
 ' the disqualification would be utterly disappointed, if the 
 State's Judge is admissible to federal office. 
 
19 
 
 It is appropriate to the times that the general subject of 
 State-disqualifications for election to the Congress, shall be 
 dwelt on to be elucidated; if the writer shall be fortunate by 
 argument to throw any light into its intricacies. It has been 
 debated in McCreery and TrumhidV s cases, almost to exhaus- 
 tion. It would be too voluminous to reproduce the argu- 
 ments so powerfully put for and against the power of the State, 
 by Randolph and Love, on the one side, and Rowan and 
 Quincy, on the other, in McCreery's case, under a State- Statute, 
 It is not necessary to dwell on the difference between the 
 question, when it arises under the constitution of the State, on 
 the one hand, and under an act of the ordinary legislature, by 
 which is meant a State-Statute, on the other hand. Every- 
 body knows how more significant and less reversible, and 
 hence more respectable, is the constitution of the State, than 
 is an act passed by its legislature. Besides the specific pro- 
 visions of the constitution of the United States, defining what 
 requisites a man elected by the people to the Congress, must- 
 possess, to entitle him to the seat, the ninth amendment pre- 
 scribes that no power retained by a State shall be disparaged 
 by the delegation of the powers the States thought fit to con- 
 fide to their general government. With only that much 
 premised on the general subject, a view will here now be 
 presented, which is not so much as intimated in the discus- 
 sions to which it has hitherto been subjected, as thorough as 
 were those discussions by men of eminent abilities. This 
 view will be taken under the concession that when a citizen, 
 who is fully in all respects qualified, presents his credentials, 
 the Congress must admit him, they being the judges, but not 
 the authorized prescribers, of qualifications. This, then, is a 
 view to be taken and acted on by the voters in the State, be- 
 fore and at the election. It demands the attention of every 
 citizen, no less on the subject of suffrage in political elections, 
 than in other matters, whether it is his duty to obey the laws 
 of the State, Any law his State has enacted, binds him, until 
 it is adjudged by the supreme court of the United States, to 
 be repugnant to the constitution of the United States, and 
 therefore void. No law passed or rule prescribed by tho Con- 
 4 
 
20 
 
 gress, of and by itself, can make void the law of tlie State, 
 Hence, thougli tlie man returned to tlie Congress be qualified 
 under that constitution, by Lis having the requisites concur 
 in him, which it prescribes, the duty of the voters to obey the 
 laws of the State, remains in its high import repellant of the 
 disfranchised at and in the election, so that he should not be 
 voted for. The law of the State prescribing the disqualifica- 
 tion might be enforced by the State, by fine or imprisonment, 
 or by both, for violating it. The people have not a right to 
 elect whom they please, but such only as are within the law 
 of eligibility. "W e are not a lawless democracy, nor in a state 
 of nature unorganized. 
 
 On this day (September 20th) a letter touching the princi- 
 ples under consideration, falls under my eye. It is a letter 
 from Hon. J. M. Botts. The subject is of great importance 
 to the public. As I believe Mr. B. is in great error, and his 
 standing just now may mislead others, I trust to be excused, 
 and justified by him, for making this attempt to correct his 
 signal mistake. There is much in that letter that challenges 
 assent, for it is loyal to the Union ; but no little is in it, that 
 ought not to be received as sound, for it is not true to the real 
 rights of the States. All he urges tb the effect that the en- 
 actments of the Congress ought to be respected and obeyed 
 as law, until they are repealed or adjudged by competent 
 courts to be unconstitutional and therefore void, is correct. 
 Clearly in that principle it may be seen, and ought to be felt^ 
 that the acts or ordinances of State legislatures and city coun- 
 cils, ought to be obeyed by the citizens within the jurisdic- 
 tion, as long as they are in force in the forms of law. If 
 popular opinion or individual judgment may determine any 
 one enactment to be of no force or of modified effect, so might 
 the whole code be set at naught. The leading doctrine of his 
 letter, however, it seems to me, has no footing in our system, 
 and is violently repugnant to it. He cites the third section of 
 the sixth article of the constitution of the United States, 
 which requires the oath " to support this constitution," and 
 also prohibits particularly any religious test oath for any 
 office. He then says : " Here, then, is to be found the pro- 
 
21 
 
 hibition, and the only proliibition^ upon the action of Con- 
 gress :" (to wit :) " that no religious test oath shall be required." 
 
 Now, I am simple enough to apprehend that a single ques- 
 tion will show up the fallacy. Has the Congress the authori- 
 ty to prescribe an oath disqualifying him who will not take 
 it, to the effect, or in terms, that he has done no act since the 
 rebellion ended, adversely to the extension of suffrage to negroes ? 
 or that in future he Avill advocate negro suffrage ? That is 
 not a religious test oath. Who will contend — will Mr. Botts — 
 that the Congress has constitutional competency to prescribe 
 such an oath, excluding from eligibility, or capacity to take 
 the seats in the Congress, all such as could not conscientious- 
 ly, or would not, take such an oath ? 
 
 Mr. Botts adds, and labors logically to show that, " the 
 true reading of that provision, as it seems to him, is, that 
 Congress may prescribe such other qualifications " (than those 
 they are expressly authorized to see shall be observed) " as 
 their wisdom and experience may hereafter suggest ;" &c. So 
 far from its being true that the Congress may impose (and it 
 would be an imposition in the odious sense) such other quali- 
 fications as circumstances might arise and conspire to prompt 
 them to, whilst the coastitution is unaltered, the truth and 
 the practical extent of the authority of the Congress, are, that 
 they shall see to it that no man shall be admitted, unless the 
 qualifications in terms prescribed, do concur in him. If not 
 to have prohibited the power to the general government, is to 
 have given it authority to impose disqualifications, then the 
 constitution of the United States, is not composed of grants of 
 power, as all parties have hitherto conceded it is, but it is an 
 instrument comprising plenary power, unrestricted by reser- 
 vations to the States or to the people, and unlimited, except 
 where the limitation is expressed. If that be so, then the 
 federal constitution is an absorption of the whole system ; ex- 
 cept only powers prohibited to it. That the legislature of a 
 State may fix the representative age, or prescribe the anti- 
 duelling oath, to which Mr. B. refers, is manifest in this that 
 the power is not prohibited to the States by the constitution 
 of the United States, and is, by the absence ©f such prohibi- 
 
•22 
 
 tion, in terms, '* reserved to tlie States respectively." The 
 requirement that the members of the State legislatures," and 
 certain other State officers, fehall be " bound by oath or affir- 
 mation to support the constitution of the United States," is 
 not a prohibition on the State to prescribe other requisites for 
 State officers. If it were so, then in the many cases in which 
 that constitution prescribes no qualifications, the State could 
 prescribe none. But, say many persons, this question involv- 
 ing the conflict of authority to prescribe the qualiiications, 
 cannot arise, except in a case of contested election ; because, 
 say they, the Congress is bound to admit all presenting proper 
 credentials. If that were just so as stated, still the question 
 challenges attention and demands decision, what that word 
 proper means ? This question is capable of determination by 
 Congress, however, in other cases than those of contestants 
 for the seat. In any case, the Congress may look into the 
 propriety of the credentials before admitting the applicant 
 to the seat. The manner of initiating that investigation 
 is provided by a distinct prescription of the laws. See, 
 Stat : at large, United States, Vol, 12, p. 80-i. The act 
 of the Congress there recorded, delares that " the clerk " (of 
 the House of Representatives) " shall, make a roll and place 
 thereon the names of all persons, and of such persons only, 
 whose credentials show that they were regularly elected in 
 accordance with the laws of their States respectively, or {and ?) 
 the laws of the United States." Thereunder, the inquiry 
 arises, what law authorizes an election to be held at the call 
 of a provisional governor ? Beyond, — what clause of the 
 constitution of the United States, or section of law, author- 
 izes the President to appoint a provisional civil governor of 
 A State, in any exigency ? The authority is not to be found 
 by fair or endurable construction, within the decision of the 
 supreme court of the United States, in the Rhode Island case, 
 Luther vs. Borden, 7 Howard, in which the court only ruled 
 that the President might and should interpose, under and by 
 authority of the act of the Congress of February 28, 1795, 
 " on the application of the legislature of the State, or of the 
 e;:?:ecutive thereof, when the legislature cannot be convened." 
 
23 
 
 In such an exigent anil urgent conjuncture, when there is "an 
 insurrection " in the State, "against the government thereof,'''' the 
 President of the United States may decide who compose the 
 legislature and who is tlie governor, all claiming to have 
 been duly elected. That decision holds, as expressly, that in 
 any case not within the conditions contemplated by that act, 
 it still "rests roith the Congress to decide what government is 
 the established one of the State." That act presupposes a 
 foregone election, to say no more. It did not grow out of a 
 rebellion against the government of the United States, nor 
 does it apply to such a case or the case of a State having 
 failed or refused to hold the elections. So far is that act, as 
 well as that adjudication, from conferring authority on the 
 President to appoint a civil governor. Much less does it con- 
 fer on his appointee to the chief executive magistracy of a 
 State, any authority to order an election of the State's repre- 
 sentatives to the Congress. Of very little value will be the 
 credentials so derived. The propriety of credentials, into 
 which the Congress may examine before the producers of 
 them are admissible to the seats, is comprised in, and can be 
 a lawful consequence only from, the regularity of the election. 
 Such elections will be irregular, and the consequential cre- 
 dentials will be without validity. The Congress has not con- 
 ferred, nor has that body the constitutional competency to 
 confer, the authority on the President of the United States, 
 to appoint a civil governor of a State. Such authority would 
 vest him with sovereign power ; whereas, by the constitution, 
 he is merely the agent of the sovereign power. It is its duty 
 to see to it that each State shall have the republican form, 
 and the same duty is devolved on the President to the full 
 measure of the executive competency ; but yet, nevertheless, 
 the authority to make such an appointment, cannot lawfully 
 be entrusted to him by the Congress, nor, consistently, by the 
 people of the States, even by amending the constitution of 
 the United States, because such authority in him is utterly 
 incompatible with republican forms. By the existence of 
 such authority in the President, if it were formally conferred 
 on him, the constitutional guarantee of the republican form, 
 
24 
 
 would be changed into an anti-republican guarantee of dicta- 
 torial competency in the President. It is not possible, in any 
 sense,, or by any means, to consist witli self-government, that 
 the election of their governor, without the antecedent consent 
 of the people of the State, both freely and formally given 
 by themselves, shall be so far removed from them ; and such 
 consent so given would essentially change the government — 
 obliterate the republican form — and impress on it and fix in 
 it another character. 
 
THE RIGHT WAY 
 
 ["Does this power of restoration not reside somewhere?" That 
 is the question put, this 9th of November, by one of tlie most re- 
 spectable and conservative journals in the United States. The ques- 
 tion is pertinent and profound ; and the purpose of these pages is, 
 chiefly, to answer that the power does reside somewhere, but, alone, 
 in the Congress of the United States ; and that the President of the 
 United States only had the authority, and, to this extent, only aa 
 the commander-in-chief of the army and the navy, to take the in- 
 cipient step of fixing the times for electing members of the Congress, 
 with the view, when such elections should be sanctioned by the 
 Congress, but not until then, of retiring the military forces from 
 these States. Says that journal, as all who favor the President's plan 
 seem to think, " it matters not what we call the means the President 
 may use to enforce it." It is just there the shoe pinches. Thecon- 
 stitution appoints the oncans ior the end, to wit, that the Congress 
 shall, because the States in rebellion failed to, fix the times and 
 2:>laces for electing tlie members. In the elections by the authority 
 so given to hold them, the restoration, which is the end, would be 
 reached. By any other means to restore these States, consistently 
 with the system, as well might an attemj^t, call it what we might, 
 be made by any soul to get to Heaven, consistently with the Chris- 
 tian's creed, witiiout the use of the means divinely appointed to 
 that blissful end.] 
 
 Petersbueg, Ya., May 16, 1865. 
 
 This is the gravest constitutional question that has accrued 
 upon the North American experiment of self-government, 
 since the rebellion of the colonies against the rule of the 
 British King, in the success of vrhich the system of written 
 constitutions, with concurrent laws, had its origin. Though 
 my argument may be dull, its subject— the observance of the 
 laws — is of interest to society, so extensive that every mem- 
 ber has a stake in it, either present or prospective. Though 
 my discourse on every point may not be compact, it has cost 
 me a labor which only earnest zeal would have encountered. 
 The object was to discern through the laws what is just to be 
 done. 
 
 Every citizen has the right, even under military rule, and 
 should be allowed the liberty, if exercising it in the right 
 tone and manner, to inquire into the conduct of the goveru- 
 
26 
 
 inent, and by argument to endeavor to correct it. If a fair 
 exercise of that liberty is offensive to tlie governing power, 
 and may be silenced and suppressed by it, in this country, 
 then the noble experiment of self-government our fathers set 
 on foot and gave a good prospect of success to, has ended al- 
 ready in a failure. The right spirit is not vituperative or fri- 
 volous ; and whatever is either, ought to be suppressed, whilst 
 the military rule is tolerated. Whatever is solemn, which 
 implies that it is within the facts and enjoined by principles, 
 and is intended to correct a wrong, ought to be indulged, and 
 will be, unless they who are clothed with the limited authori- 
 ty of the system, are bent on abusing it, and exerting usurp- 
 ed power, permanently. 
 
 A close and generally accurate observer and a deep thinker 
 has said : The people generally think and almost reverently 
 believe that the men in authority use a great depth of thought 
 and very much sagacity in their operations. The fact is, that, 
 in all countries, the ministers of state seldom think but of 
 providing for the present and usual contingencies, In doing 
 that, they constantly follow the open beaten track before 
 them, governed by precedents. This method does very well 
 for the common course of human affairs, even is the safest ; 
 but whenever circumstances of a new nature arise, sad blun- 
 ders occur, at least very often. Indeed, with us in these 
 States, it is fortunately observable, and it will be very fortu- 
 nate for the people, if the men in authority will be only 
 faithful and diligent to observe, that the framers of our sys- 
 tem have done the thinking for them, and defined their duty, 
 even in unusual conjunctures. Action in the right way, is all 
 that remains to be done. 
 
 There are some views, founded, I conscientiously believe, 
 in everlasting truth, and closely appertaining to the passing 
 conjuncture of the public affairs of this recently disturbed 
 and not yet quite pacified country, which I have thought ac- 
 ceptable and desirable to be expressed and promulgated. By 
 proposing them for publicity in this form, I am (but doing 
 that which through much of my life I have done, that is) la- 
 boring for the public benefit. 
 
• • 27 
 
 "When the Federail Union was forme J, the gravest controvert- 
 ed question was, what amount of delegated authority its gov- 
 ernment should be clothed with. The representative men of that 
 generation, who favored, and, as the federative plan progressed 
 for uniting the colonies which had achieved their indepen- 
 dence by a rebellion against the governing power of the mother 
 country beyond the Atlantic, urged on a closer union, were 
 called "federalists;" and other names, even that of "tories," 
 were ascribed to their opposers. When the scheme had been 
 instituted, and ever afterwards, from 1787 down to the year 
 1861, they who succeeded in instituting the government, as it 
 was, by and under the constitution of the United States, as- 
 sumed, or had ascribed to them, the party designation of 
 '^Bepuhlicans f and the name of federalists which they had 
 lost, was freely bestowed upon those who it was contended 
 sought to gather to that government more and larger powers 
 than the constitution intended, or could be fairly interpreted, 
 to confer on the functit>narie3 charged, in their co-ordinate 
 relations, with administering it. The stout contest, in num- 
 berless elections, struggled on, never relenting, through three- 
 quarters of a century, exhibiting its fierceness in nullifica- 
 tion, in 1832, and in secession, in 1860-'61.'^ At no other pe- 
 riod were the party ascerbities so subdued, as during the ad- 
 
 *The advocates of the disorganizing doctrine of secession, were 
 long since and often and every wliere outweiglied in argument, as 
 they inferentially confessed by seeking to take shelter, as they al- 
 leged they might, in the reservation of the rigiit by Virginia, when 
 her convention ratified the federal constitution. They asserted that 
 her reservation of the right enured to all the States. That-was a 
 mistake of theirs, in point of fact. Virginia made no such reserva- 
 tion. The Isiuguage oS ^^the foi-)n of ratijlcafion" was, as follows: 
 "We, the Delegates of the people of Virginia, &c., &c., Do, in the 
 name and in behalf of the people of Vii'ginia, declare and make 
 known that the powers granted under tlie constitution, bein'g de- 
 rived from ihcj)C02Jle of the United States, maybe resumed by Hie.m^ 
 wliensoever the same shall be iDcrverted to their injury or oppres- 
 sion, and that every power not granted thereby remains with them 
 and at their will." — Va. Debates, p. 4G'J. It was not that the pow- 
 ers were granted by the several States and niight be resumed by any 
 State, at will. And Patrick llunry said, at the time, June, 17S8: 
 "The question turns, sir, on that poor little thing — wc, the people, 
 instead of the States of xVmerica." Ho said it was "an alarming 
 transition, from a confederacy to aconsolidated govonuncnt." — p. 42. 
 Yet it is true that many and larg(j rights and Y>ovvers were reserved 
 to the States, and are still held to be inviolable. 
 
28 
 
 ministration of Monroe, of wliicli it has been said, that lie 
 found the federative edifice of his country's Union, as Augus- 
 tus C^SAR found his imperial city, built of brick, and left it 
 re-built of marble. Previously, in 1806, with what design 
 may never be fully developed, but suspected of hostile inten- 
 tions against the United States, Colonel Aaron Burr descend- 
 ed the Cumberland and Mississippi rivers, "with only a few 
 unarmed men." This allusion is introduced mainly to preface 
 the observation here, that from 1801 to 1809, that government' 
 was administered by President Jefferson, on the doctrine of 
 state-riglds 2in&]jopular interference,^' and for a distinct repulsion 
 of the policy of the federalists. Again, in 1832-'3, with a 
 deeper intensity, the struggle of the rights of the States 
 against the powers of the General Government, stirred the . 
 public councils and the popular heart. The question dividing 
 society, involved the duty of allegiance by the citizen, to the 
 State, or to the United States, Did he owe that allegiance^ 
 in the disruptive issue of the contest, to the one or to the 
 other. The citizens, on the one side or the other, could claim 
 tto ascendancy for the one set over the other, on the score of 
 public intelligence, or private or public worth. The states- 
 men, on the one side or the other, could justly lay no claim 
 to the pre-eminence, on the score of mental capacity, or other 
 talents, or excellence of public service. The contest, for 
 
 *A sagacious writer, in 1838, v/rote : "The doctrine of the sove- 
 reignty of the people, was nurtured in the townsliips in New Eng- 
 land, until it took possession of the people of the State ; every class 
 was enlisted in its cause ; battles v/ere fought and victories obtained, 
 for it; until it became the lav/- of laws." "Not a man in New 
 England iy to be found, who would acknowledge that the State has 
 any right to interfere (in any township) with their local interests." 
 Yet, they claim the right and exert the rc-iuisite brute force, through 
 and by the general government, to interfere with our State's local 
 interests. The population and territorial extent of our State as 
 much exceed a township, as the State is exceeded by the United 
 States under the general government. The same principles are no 
 less co?i8^iii^tecZ to protect the State than the township, against that 
 interference. Indeed, the State isj far more protected by the consti- 
 tution of the general government, than is a township or a county 
 jirotected by the constitution of the State government. The theory 
 of the former is that all power not granted, is reserved to the States 
 or to the people thereof; whereas the theory of the latter, is, that all 
 power not reserved to the people, is granted to the government of 
 the State. 
 
29 
 
 auglit the most virtuous and wisest could do, was, in 1861, 
 reduced to the arbitrament of the sword. In this bloody 
 trial of the issue, if those on one side can claim superiority, 
 on one point ; the other side may, on some other point. It 
 would serve no purpose to the advantage of all, or probably 
 of either, on the whole, to make the comparison ; and it is the 
 advantage of all which it is now most desirable to ascertain 
 and advance. The battle is over, and the conflict of logic had 
 gone before, and could find no end, until the theory of the 
 State's right of secession, as claimed, was buried in the co- 
 ercive power of the Federal Union. The question is, have 
 the conquered suffered enough, or should they be subjected to 
 pains and penalties for crime ?* Suppose they of the other 
 side, in the protracted and embittered contest of the states- 
 man, the logician and the orator, with almost whole States 
 and crowds of patriots supporting each side, had been over- 
 come by the physical force of the army in the field — ought 
 they of the other side to be by those of this, subjected to 
 legal pains and penalties for their former persistency in the 
 
 *So apt an illustration of my views, has lately been cited in the 
 Petersburg Index, from the pages of ancient history, that I will in- 
 sert it here, so that it sliall have this record to assist in jjerpetuating 
 the noble sentiment and rescuing this Ciiristian Republic from the 
 deep disgrace of more cruelty than the men of A.D. 161 were willing to 
 practice. That instance of clemency \vas without the consideration 
 and inducement to it, which I have herein urged, that one promi- 
 uent cause of our recent war was found, on the part of many en- 
 gaged in bringing it on, in a chronic controversy as to the existence 
 of a right which many years and mighty men had struggled and 
 tailed to settle, until the sword was the only resort for a cure of the 
 disease ; 
 
 In the second century, an insurrection against the Roman author- 
 ity broke out in Syria and tlie East, headed by a pretended descend- 
 ant of the patriot Cassius, who had conspired against the mighty 
 C!ajsar. It ended in disaster and failure ; and nothing seemed to be 
 left but vengeance upon the adiierents of the rebellion. Under such 
 circumstances, here is the letter wliich the royal conqueror — the 
 noble Antoninus Pius— M^rote to the Roman Senate, and which de- 
 serves to be written in letters of gold upon the historic page : 
 
 " I beseech you, Conscript Fathers, not to jjunish the guilty with 
 too much rigor. Let no one be put to deatlx. Let the banished re- 
 turn to their country. I wish I coujd give back tlieir lives to those 
 who have died in this quan'ol. Revenge is unworthy of an Empe- 
 ror. You v.'ill i)ardou, therefore, the children of this Cassius, his 
 son-in-law, and his wife. Let them live in safety — let them retain 
 all that (.!assius possessed — let them live in whatever place they 
 choose, to be a monument of your clemency and mine." 
 
30 
 
 Federal doctrine of coercion and denial of the doctrine of the 
 State's right to secede ? The question is asked, and will be 
 left to the men in authority to be answered. It may be that 
 it must be left to those who shall come after us, and whom 
 the lapse of time, in after ages remote, shall impress with 
 the knowledge and wisdom to sound the depths and ascend to 
 the heights of the argument which that question involves. 
 It will be wise, however, let it be suggested, that they who 
 are charged with the duty, or the privilege, of solving it for 
 the present, shall not be unmindful that the right of revolu- 
 tion is a doctrine of unalienable tenure, of which no free peo- 
 ple will divest themselves, and no people can deprive their 
 posterity. The people of the South are now quiescent, and 
 they are giving multiform evidences of a cheerful willingness 
 to be acquiescent, claiming only the right to assert that now, 
 when hostilities are ended, they are a free people in a federa- 
 tion of States, each of which is entitled to a republican repre- 
 sentative government. We, the people of the State, desire 
 only that the improvided situation in which we are plunged, 
 on a sudden, and from which the men in power profess a de- 
 sire to extricate us, shall be relieved by a resort to the re- 
 ceived maxims of civil liberty, the chief of which is the fairly 
 ascertained consent of the governed. "We wish all men every 
 where to understand, that we are not made "of stuff" so flat 
 and dull, 
 
 "That we can let our beard be shook with danger, 
 And think it pastime." 
 
 It was said of Austria: "True, she had been conquered 
 once, but it did not therefore follow that she should be con- 
 quered again." The South would not have been, nor couM 
 she be, if there had been, or should be, sufficient cause for 
 war. God protects the right. 
 
 The meeting of " Conservative Union citizens," at Frank- 
 fort, Kentucky, Hon. Joseph R. Underwood, President, held 
 the other day, takes the rigid constitutional view of the present 
 aspects of the never-ending subject of negro-slavery — that is, 
 right for any slave-holding State that was not in the rebellion 
 
31 
 
 — yet, though right in principle, not wiso to be insisted on, 
 beyond a demand for gradual emancipation. Beyond that, 
 the State would be isolated and impotent. That view, strict- 
 ly observed before the war, would have accelerated emanci- 
 pation, and might have prevented the war. The view is that 
 the subject belonged absolutely and exclusively to the State 
 and the people thereof. But the States in the rebellion made 
 or accepted the issue at arms, and ought to abide the result. 
 How far debtors who contracted debts on the faith of their 
 slave property, and also innocent orphans and widows, in 
 these States, may of right demand compensation, is a question 
 not yet closed, nor can be, to the end of time, unless compen- 
 sation be given those classes. It is conceded that such only 
 of them should be paid, as shall show themselves guiltless of 
 the attempted secession — guiltless, except by pretended "con- 
 federate" legal constraint from which they could not escape, 
 when the Union could not protect them. 
 
 Peteesbukg, May 17, 1865. 
 
 Scarcely any other problem in the politics of this or any 
 other country, in the past ages, is so difficult of solution as 
 this, of the extent of the powers either relinquished by or 
 remaining with the several States in the federal Union. Men 
 as honest as sagacious, have discussed the complicated sub- 
 ject. They have failed to reach the same conclusions. One 
 thing, however, is certain, for all concur in this, that the con- 
 stitution of the Federal Union contains no provisions for its 
 dissolution. Its framers may have supposed that it would be 
 permanent and 'perpetual. As Philips says : " Troy thought 
 so once ; yet, the land of Priam lives only in song ! Thebes 
 thought so once ; yet, her hundred gates have crumbled ! 
 * * * In his hurried march, Time has but looked at their 
 imagined immortality," and all its vanities. Our fathers who 
 founded cur federative system, knew that the countries of 
 Pemosthenes and the Spartan, which Philips also depict 
 

 «d, had existed and passed away.* Then it is not likely 
 they imagined the system they founded would never be 
 subverted. Too knowmoj to believe it would never be 
 subverted, they were induced, we must suppose, as were 
 the founders of former systems, to provide no mode for 
 its overthrow, for the reason that they foresaw it would be 
 more difficult for their posterity to find out the mode by which 
 it could be subverted, than it would be to resort to it, if it 
 had been provided. I doubt the wisdom of their policy dis- 
 played in the failure to provide how the federation might be 
 ended.f Stately as the fabric is, and stable as it was designed 
 to be, and yet I wish it shall be, the posterity of its builders, 
 so proximate as thus early, have already made an attempt to 
 break it up. To the credit of this posterity, however, let it 
 be observed and remembered, that whilst they renounced the 
 forms of the Federal Union, they did not seek to expel the 
 princwies of civil, political or religious liberty, on which it 
 was founded by the original builders. In and by the recent 
 
 * Since the text was written, the writer has re-read De Lolme, on 
 the English constitution, which he read first in 1826. That enlight- 
 ened coaimentator quotes Montesquieu, thus: "Have not Rome, 
 Lacedajmon, and Carthage jDerished ? T/te E)iglish government, also, 
 will perish when the legislative joower shall have become more cor- 
 rupt than the executive." Though, says De Lolme, I do by no 
 means pretend that any human establishment can escajie the fate 
 to which we see everything iu nature is subject, nor am so preju- 
 diced by the sense I entertain of the great advantages of that gov- 
 ernment, as to reckon among them that of eternity, I will, how- 
 ever, observe, in general, that as it differs by its structure and 
 resources from all those with which history makes us acquainted, 
 so it cannot be said to be liable to the same dangers." 
 
 t A distinguished friend on reading the text, writes me : " That a 
 nation should not provide for its own dissolution, is not wonderful ; 
 but that a mere confederciGy should, is an act of ordinary foresight." 
 That is just the idea expressed in the text — " how the federation 
 might be ended." The difference of opinion then is not "whether it 
 would have been wise in the founders of the federal system to have 
 provided, "as an act of ordinary foresight," some mode of dissolv- 
 ing it for sufficient cause ; but the difference is whether the system 
 they founded is constituted a nation — or is it a mere confederacy . 
 To the foreign world, I admit, it is a nation. Of itself, disconnected 
 w^ith foreign relations, how Obviously does it show itself not to be a 
 nation, in the fact that it has not the power to regulate the right of 
 suffrage by which the representatives from its component parts, the 
 States, are elected to fill the federal councils? A nation without 
 the power to elect the representatives to make or to execute its 
 laws! 
 
33 
 
 attempt at its formal renuuciation, the men wiio started that 
 attempt and prosecuted it with vigor, gave gallant attestation 
 of their devotion to the principles and provisions of the fed- 
 eral constitution, which in the outset they incorporated in the 
 constitution of the " Confederate " States. It is remarkable,, 
 and to the praise of the " Confederate " constitution, that it 
 did not retain, but radically rejected the clause, and refused 
 to insert any like it, by which the African Slave Trade was 
 allowed for twenty years by a provision in the constitution of 
 the federal Union. Judge by that fact, world of mankind, if 
 the South desired to rob benighted Africa of her savage sons, 
 even for civilized servitude. That gallant and vigorous at- 
 tempt, so purged of the African slave trade, had so much 
 prospect of success, that it involves a vast amount of damage. 
 The work to be done, is to get the States that made the at- 
 tempt, back into the harness, that each may pull and all pull 
 together again. 
 
 The case now is that no manner of taking the fabric to 
 pieces, whether into two or more, was provided, but an attempt 
 has been made that has thrown some of its parts out of joint. 
 The disjointing of its parts has done damages which all do, 
 or should, desire to see repaired. It is desirable to ascertain 
 what part of the damages can be repaired, and wisdom would 
 seem certainly to dictate that such as cannot be mended, shall 
 be contemplated, with patient resignation, if not forgotten 
 altogether. A loss that cannot be replaced, must be borne. 
 It is but natural that in rectifying any contrivance of human 
 skill, the principles and the process of construction shall be 
 consulted, no matter to what extent or how it was put out of 
 sorts. • Nor is it important to know when or by whom the 
 disorder was produced. If it was done just now or long ago, 
 by a wise man or a fool, by many or by few, with good or 
 evil designs, the work in hand is to repair the injury, as far 
 as possible, and, unless there is good cause for delay, to do it 
 promptly. Whoever did the injury, can, whilst it is being 
 repaired, or afterwards, be taken to account. 
 
 In the business now before us, that is, restoring the States- 
 tO' their practical relation to iLc Union, they still retaining-. 
 
34 
 
 the theoretical, or constitutional, or if any prefer to call it, 
 their institutional, connection, as no mode of dissolving it 
 Avas provided by its founders, we may, Avith profit, inquire 
 whether there is any mode to be found in the principles on 
 which it was constructed, by which it could have been dis- 
 solved, as to the whole of its constituent members, or any of 
 them, without the damage the wrong jittempt has wrought. 
 By finding out how it might have been dissolved, we will 
 discover the principles by which it may be reinstated in its 
 practical working. It is believed, and will be taken for granted, 
 as if agreed by all, that the main fundamental principle — the 
 mudsill — of the fabric, was that the majority shall govern. 
 However that principle is departed from in any or however 
 many special cases, there is the fulcrum after all, on which 
 the lever of the republican creed is established and tui'ns to 
 the sweep of the popular sovereignty. Though the plurality 
 rule prevails in special cases, it is exceptional, and in every 
 case it is only to escape greater inconvenience. It partakes 
 of the principle of the majority, for it is more than any other. 
 Though the special prescription that two-thirds or three- 
 fourths, or the whole body with unanimity, may or must de- 
 cide, sometimes prevails, it is for the protection of popular 
 sovereignty, and is invariably a restraint on the authority of 
 the freople's representatives, and almost always intended to 
 give sability to the people's institutions, as they have estab- 
 lished them. All such prescriptions are strictly in unison 
 with the early teaching of the fathers of the system, that ex- 
 isting forms shall "not be changed for light and transient 
 causes." It will be perceived that the observation is pertinent 
 here, that the States ratified and established the federal con- 
 stitution, no less to secure the blessings of liberty for their 
 posterity, than to form a more perfect Union. It should not 
 be lost sight of, that in starting the mode of dismemberment, 
 which has failed, the disallecl!^d States, be it repeated, did 
 not reject the principles of the federal constitution, but their 
 attempt was to renounce only the forms of the federal Union. 
 Now let us apply the principle that the majority shall 
 govern, to find, if we can, whether there is any peaceful mode, 
 
35 
 
 as -the federal union was not likely to exist forever, by which' 
 it- might have been, or may le for cause, dismembered. The 
 way by which it was established, must be searched, and the 
 facts so ascertained will materially assist us and reconcile us 
 to the conclusion we will arrive at. The two most important 
 facts we cannot fail to find by the retrospection, are, first, that 
 the States, severally, each for itself alone, ratified that consti- 
 tution ; and, second, . that the States which came into thef 
 Union after it was formed by the first nine that ratified it, 
 did not accede to the Union, as of right, but were admitted 
 into it. The authority was in the States already in the Union, 
 to reject the applfpation of any State seeking the admission. 
 If any acceded, they were the four last which ratified'the eon^ 
 stitution, after the Union was formed by the ratification of 
 the other nine. All the States since have been admitted, cer- 
 tainly. How has each State been admitted ? The archives 
 show, by the votes of a majority of the States in the Union ' 
 at the several times of each new State's admission. The light 
 shed by these facts, guides safely to the conclusion, that no 
 State can dissolve it^ connection so formed, in any other way 
 than by the consent of the majority of the States in the 
 Union, at the time any one desires to go out. By analogy to 
 its application to be admitted, \z ought to apply for the con- 
 sent of the other States to let it go out ; which consent, by the 
 same analogy, the majority of the others might give. In de- 
 fault of the formal application to retire, the chief executive 
 authority ought, as Jackson and Lincoln did, to issue the 
 proclamation of warning to the insurgent Stats. But yet, the 
 federal government is not charged with the duty of making 
 •war on a State in the Union, nor has it any such authority, and 
 the resisting State is not yet out. Therefore, that government 
 ought to supply the neglect' of the State to apply for permis- 
 sion to withdraw. This neglect could and should be supplied 
 by a simultaneous proclamation by the President, to the other 
 States, to hold conventions, severally, and to advise him^ au- 
 thoritatively, each State for itself, whether the people thereof 
 will consent to the withdrawal of the disaffected State. If 
 the majority so signify their willingness, the disaffected one 
 6 
 
36 
 
 would go out in peace. That would no more destroy the life 
 of the nation, than the loss of a limb destroys a man's life. 
 The nation would survive a loss of any number of the co- 
 States, less than a majority of them all. The pathetic appeal 
 to the people of the North, to save the life of the nation, was 
 a deception. 
 
 That is just exactly the doctrine embraced in " the form of 
 ratification " of the constitution which was reported by Gov- 
 ernor Eandolph, in the Virginia convention, and adopted, on 
 the 25th of June, 1788, and which has been so often misin- 
 terpreted and misjudged by the secessionists to be in support 
 of their creed. On that form of ratificat^n, they relied as 
 showing'that Virginia reserved that right, and that her reser- 
 vation thereof enured to each of the other States. The lan- 
 guage of that form is : " We, the delegates of the people of 
 Virginia, &c., declare that the powers granted under the con- 
 stitution, being derived from the people of the United States 
 may be resumed by them, whenever perverted to their oppres- 
 sion ; and that every power not granted remains with them 
 and at their will." Surely, that means, not at the will of the 
 people of Virginia, but of the United States ; and to be resumed 
 by whom ? and when ? Why, clearly, not by the people of 
 Virginia, but of the United States, when oppressively used, 
 and so used by whom ? JN'ot by the people of the United 
 States, but by the constituted authorities ; and this is shown 
 most unequivocally by the next clause in that form of ratifi- 
 cation which has been misquoted and misapplied for more than 
 three quarters of a century. That next clause is — and "there- 
 fore no right of any denomination, can be cancelled, abridged 
 or modified, by the Congress, by the Senate or House of Kep- 
 resentatives acting in any capacity, by the President or any 
 department or ofiicer of the United States, except in those 
 instances in which power is given by the constitution for 
 those purposes ;" &c. That demonstrates that the oppression 
 deprecated was guarded against as likely to come, not fram 
 the people of the United States, but from the constituted au- 
 thorities ; and in this case it was declared that the granted 
 powers might be resumed by the people of the United States. 
 
37 
 
 And the question recurs, /ioty in such case resumed? It is 
 obvious, the right to secede not being reserved, the granted 
 powers could in no other way be peacefully resumed, except 
 by a majority of the people of the United States acting by 
 States. 
 
 In the light of that, which is the only peaceable mode of 
 dissolving the federal Union, it will be seen that the States 
 which lately attempted to withdraw, were in fault, but not 
 more in fault than the government of the Union was derelict 
 to its duty and peaceful privilege. If the dissatisfied States 
 were in fault in not making formal application for the consent 
 of the, other Stat«; so were the authorities of the Union in 
 fault for not applying to the satisfied States to signify their 
 consent to the disruption. But suppose the loyal States dis- 
 sent ? In this case, time will have been gained for reflection 
 — ^^which might be all that was necessary to secure a recon- 
 ciliation. Suppose the disaffection remains, when the dissent 
 of the co-States is ascertained. The arbitrament of war is 
 still accessible, if it must come. That there should not be, 
 nor indeed can be, any necessity for war, is as clear and abso- 
 lutely certain as that the civil administration of the govern- 
 ment of the Union, could be shaped so as to be as coercive 
 upon any State or set of States gone out, to make them come 
 back into the Union, as the fiercest war with deadly arms. If 
 a resort to the coercive energy of the civil power, is not pre- 
 ferable to war for " preserving the Union, when a State (or 
 several) has become dissatisfied with the government," 
 then there yet remains, in this nineteenth century of the 
 Christian age, the deplorable alternative of a return to the 
 usages of savage life, to sustain civilized society. In any 
 crisis, and at all hazards, an attempt should be made, with 
 persistent vigor, to escape that return. Tell me not, that 
 there is less savageness in the shell thrown from afar, than in 
 the club wielded at hand. Tell me not, that man must re- 
 main as he was, nay, as he is, and not become as Christ in- 
 tended he shall be. We boast an advance beyond the nations 
 that exist, or any this has survived, and our boast is vain a.nd 
 vicious, if it be not true that a return to savage usages is not 
 
38 
 
 neodful, but is despicable. There is less danger that the 
 landmarks of liberty will be obliterated by ilm milder exer- 
 cise of the civil power coercively, than by the frightful and 
 unchristian demonstrations of tlie war power. So much is 
 enough to indicate how peace be ma}'- maintained and the 
 Union reassured on any future occasion of a threatened dis- 
 ruption, or of one actually occurred. 
 
 The highest duty of man to his fellow-intelligences, pleads 
 trumpct-tongued against a resort to arms. It demands a resort 
 to the civil authority, to the utmost measure of its capacity to 
 coerce peace between the States, in preference to war to con- 
 quer a peace. That highest duty of man to man, is by all 
 possible means to avoid the destruction of human life. Our 
 system, especially and pre-eminently, utters forth that de- 
 mand. It has its fountains and all the channels of its flow, 
 in Friendship, Patriotism, and Humanity. The waste of hu- 
 man existence is not among the objects to accomplish which 
 man is gifted with next to omnipotent powers. It is not the 
 impulse or the purpose of our system. It should be shunned, 
 
 "The rolling waves?, the sun's unwearied course, 
 The elements and seasons, all declare 
 For what the Eternal Maker has ordain'd 
 The powers of man : we feel within ourselves 
 His energy divine : He tells the heart 
 He meant lo make us to behold and love 
 What He beholds and loves, the general orb 
 Of life and being." 
 
 Our system in its theory, is in full accord with the poet's 
 noble and just expressions, and its practice cannot be in har- 
 mony, unless it abhor and avoid war. 
 
 The application of these views to the solution of the pres- 
 ent situation, is plain and easy. The lately disaffected States 
 and the coercive government of the Union having both been 
 in default — the disaffected States having been overcome by 
 "overwhelming numbers and resources," and having suffered 
 a spoliation of nearly all their affluence, and the slaughter of 
 the flower of their youth, and of the vigor of their manhood 
 — and the Union having been triumphant thoroughly, though 
 tardily — let the one return to the Union and enjoy the bless- 
 
39 
 
 ings of liberty the constitution promises, and tlic other dis- 
 play the benignity that befits the conqueror, especially one 
 occupying the vantage ground of snch superior resources. 
 The principle that the majority shall govern, strictly applies 
 in restoring the recently disaffected but now reconciled 
 States. That principle can best be displayed in the passage 
 by the Congress of an enabling act of amnesty. This plan 
 would diffuse its genial warmth thoughout the States, and 
 tinge the whole horizon with its radiance. 
 
 Petersburg, Va., May 18, 1865. 
 
 My last letter suggests that the States lately "in rebellion," 
 so to designate them, shall be restored to their " practical re- 
 lation " in the Union (as President Lincoln verv, correctly 
 designated the proposed operation) by an enabling act of 
 amnesty. The difficulty of selecting the right way of doing 
 the thing, is perplexing indeed, owing to the complexity of 
 the federative system. President Lincoln was not fully satis- 
 fied with the mode he proposed, in his Amnesty Proclamation, 
 8th December, 1863. He generously confessed that the opera- 
 tion was dif&cult, and that it might be that his plan vv^as not 
 the best. He suggested the best he could with his (then) 
 present impressions, and declared that " it must not be under- 
 stood that no other possible mode would be acceptable." 
 
 Let it be noticed that the social compact of the State is not 
 dissolved. The people of the State are not thrown back into 
 a state of nature. Nor is the constitutional compact of this 
 State with the others in federal union, dissolved. The ques- 
 tion, therefore, is (not one of abstract expediency, how the 
 State shall be restored, but) one of constitutional power and 
 obligation. It is a question of legal right. The framing 
 timbers of the State's structure are all in their proper })laces, 
 in their sockets. It is only the weather-boal'ding and interior 
 finish that are stript off. If any like the simile better, the 
 State is a skeleton, needing to be reclothed with fiesh and 
 blood. All it3 ofliccs ptill eaust, and only n(X)d to be filled. 
 
40 
 
 The State is now under military rule. It is in the condi- 
 -tion, strictly, of a conquered province ; but the purpose is to 
 re-establish civil government. This is the design avowed by 
 the men in the federal authority, to be intended by them, and 
 to be accomplished in " the republican form," as the consti- 
 tution enjoins. This State (and each of the others) has a con- 
 stitution and a code of laws of its own, which were in force 
 before " the rebellion." Each State and the people thereof 
 had "rights reserved," which the federal authority cannot 
 touch, without subverting the system. Each, for instance, 
 has the reserved right to regulate suffrage in the popular 
 elections. Each has its criminal code. Scarcely any State 
 has in its constitution any provision in conflict with the fed- 
 eral power ; and if any has, it is subject to be overruled by 
 the federal authorities. These and kindred observations 
 might be enlarged the length of a volume. Very much, then, 
 in restoring the State remains ; and yet much needs to be 
 altered. Owing to the delinquency in which the States have 
 been caught, they must be clothed with newness of life. 
 Whatever there is in the existing forms of the State, that is 
 incompatible with the objects of the federal power in its suc- 
 cess in "crushing the rebellion," may be obliterated ; and 
 should be, if rightly done ; and whatever is not incompatible 
 with the success of that power, needs to be revived, because 
 the rebellion suspended the whole. How can this be done ? is 
 the question. I repeat, by an enabling act of amnesty. The 
 provisions of such act to extend pardon, must be to this ex- 
 tent, at least, that the State, as a body politic, shall be relieved 
 of the incapacity which by its delinquency it has incurred ; 
 and its enabling provisions must prescribe that the State may, 
 and when it shall, elect its representatives atid senators to the 
 United States Congress. 
 
 • This plan for restoring the lately disaffected States, to their 
 practical relations in the federal Union, is deduced from the 
 first clause of th(^ forth section of the first article of the con- 
 stitution of the United States ; and it is justified by the analo- 
 gies to be drawn from the admission of a State from the ter- 
 ritorial condition, and of a State acquired by purchaso, as 
 
41 
 
 Louisiana was, or by conquest, as Texas was. In cacli case,- 
 an enabling act was passed by Congress, either previously to 
 or presently with the admission of the new State. It is true 
 that, in one sense, these States lately disafiecfced, and now 
 sought to be reconciled, were at no time out of the Union. 
 The States which remained loyal did not, any of them, con- 
 sent that the others or any of these might retire. They were 
 out of the Union in the sense that, they sought to be. They 
 ■were still in it, in the sense of the dissent of all the others 
 which persistently made a struggle to make good that dissent 
 which is so significant in the result. If the State was not out 
 of the Union, the government of the Union had no authority 
 to make war on the State ; and if the State was out, when the 
 war was made, its citizens are not chargeable with treason. 
 The Federal authorities conceded that the confederates were 
 a belligerent power. It is clearly diaUowed by sound princi- 
 ples of law, as it is repelled by all respectable morality, that 
 the State shall be held to have been out of the Union for 
 war purposes, and still to be remaining in for any purpose of 
 accountability on criminal charges against the citizens, now 
 when the war is ended. 
 
 The ideas prevailing on this point, whether these States are 
 in the Union or out, are conflicting and confused; and also, if 
 in, for what purposes they are in. That they are in, now, in 
 some sense, since the rebellion has ceased, is not questioned. 
 Whether they were out, in any or what sense, during the rebel- 
 lion, is not now so important. That they are now in, on an equxil 
 footing with the States not in the rebellion, but which resisted 
 it, is contradicted by those who assert that claim of equality. 
 The contradiction is manifest in this that they who assert that 
 equality, are contending that the President h'as the authority 
 to appoint provisional . governors for the States in question. 
 That these States are without governors, when each had one 
 acting, shows that they are not practically in the Union, and 
 therefore are not in on an equal footing with the others : and 
 that they may, by any means, be supplied with governors,- 
 show that i\xong\i ;pmciicalhj out of the Union, they are still 
 in theoretically. If they are out in theory, the Trcsideut ha& 
 
49 
 
 no power to take tlicm in, in practice ; and if they are prac- 
 tically in, he has no power to appoint their governors. His 
 duty to take care that the laws shall be executed, confers on 
 him no authority to make a law or to appoint a public oflicer. 
 Then it would seem to be just and proper that these States^ 
 having failed to maintain the doctrine of secession, and being 
 compelled to retain the federal relation, should not be deprived 
 of any rights they had before the struggle ; excer.ting only such 
 rights, whatever these were, as, by their existence, gave origin 
 and progress to the struggle. Of these contested rights, there 
 were but two, to wit : secession of right, and the right of 
 property in negro slaves. This right of property, whatever 
 extent of precipitate disruption it m.ay attain imto, or how 
 many masters may consent never again to exercise it, remains 
 as yet in its constitutional and adjudicated legal sanctions ; and 
 the right of secession, it would seem, will never again be claim- 
 ed, unless by such (to use Milton's figure) as would " ride the 
 air in whirlwind, and make such wild uproar as hell scarcely 
 could hold." It does not appear that these States have lost 
 any other rights — the right to regulate the right of suffrage,* 
 for instance, or th^e rights of legislation and judicature — or the 
 right to be represented in the federal councils. Each State 
 
 * " A power," that is truly, as President Johnson justly declares 
 in his Proclamation appoiutinii; a Governor ad interim for Korth 
 Carolina, which " the joeople of the several States composing the 
 Federal Union, have righteously exercised from the origin of the gov- 
 ernment to the present time." Upon that just and dignified conces- 
 sion, not less happily exj^ressed than conceived, the question ai'ises, 
 why should not other landmarks of our constitutional republican po- 
 litical freedom, that are equally obvious, righteous and honored, be 
 equally observed ? Why not? 
 
 Not only is it true that the Congress has no authority to interfere 
 in the matter of suffrage in the States, but it is so on the soundest 
 views. The authority could only be falsely claimed by inferonce 
 from that provision of the Federal Constitution, w^hich guarantees 
 to each State the republican form. This is a far-reaching authority, 
 but if it extends to the regulation of suffrage, it would equally em- 
 brace and confer power on the Congress to interfere with the judi- 
 cial tenure, and on the pretence that during good behavior, or for a 
 tenure of seven or more years, is too loose, or too long, to be recog- 
 nized as being republican. Besides, there is no limit to the federal 
 power, if the doctrine is toprevailthatit embraces whatever facility 
 or function is not prohibited. The right rule, the only ellective 
 limitation, is, that the claim of any power must be shown to have a 
 lirm footing in a clear grant. 
 
43 
 
 retains the right to elect its legislators, and its judicial and 
 executive officers. This right is only in abeyance ; not abro- 
 gated. Then, when released from military rule, who, but her- 
 self, can'appoint the Governor ? Whilst under military rule, 
 who has any power to appoint the civil officers of the State ? 
 No power which the States granted to the Union, invests it, or 
 either of its co-ordinate departments, with any actual authority, 
 or the semblance of any, to appoint a Governor.* The State is 
 ascertained, hy force of arms, to be delinquent to a loyal organi- 
 zation at home, and the practical domestic organization is for- 
 feited, as far as it was formed whilst the State was in the delin- 
 quency. So much of the organization as existed before the 
 war, is only suspended. By the failure to maintain a loyal do- 
 mestic organization, the State was thrown out of its practical 
 relation to the government of the Union. The frame of the 
 State's organization is still subsisting, as it existed before the 
 war. That fourth section of th-e first article of the Constitu- 
 tion, sheds all the light needed to show how the State shall be 
 restored to its rights in the Union. It prescribes that each 
 State may appoint the times, places and manner of holding 
 elections for senators and representatives, hut the Congress may 
 at any time, hy law, Tnahe or alter such regulations, except as to 
 the places of choosing senators.f The present is just exactly 
 
 *This absence of power in the President to appoint a Governor of a 
 
 State, is one of the chief excellences of the Anglo-American system, 
 and most valuably distinguishes it from the conK.titutional mon- 
 archies in the old world. This did not escape the 'observation of the 
 enWghiiined DctocqucvUlG, who in his "Democi?icy in America," 
 says: " In the exercise of the executive power, the Presidentof tlie 
 United States, is constantly subject to a jealous scrutiny. He may 
 make, but he cannot conclude, a treaty ; "he may designate, but he 
 cannot apjiolnf, a public ojpccr. The King of France is absolute" 
 (wliereas the President is merely the chief agent) " in the sphere 
 of the executive power." 
 
 t Tlie writer has to-day, (14th Sept., lS(>j,) for the first time, ex- 
 amined a debate in Congress, which occurred on 21st Aug., 1789, on 
 an amendment, at tiiat time i)r()posed by Mr. J3urke," of S.' C. 
 to be made to the Constitution of the United ^States, in regard to this 
 power of Congress given that body, by iv. Sec, of i. Article. The 
 proposed amendment was to theetlectof restricting that power, and 
 it was urged by the advocates of iho amendment, that the States 
 should have exclusive auttiority to regulate their own elections. It 
 was insisted on by Mr. Smith, of Soutli Carolina, that tlie amend- 
 ment oflered by his colleague, w«Hdd not prevent any exercise of the 
 power as given by the fourth section, in any case of a State's neglect 
 
 7 
 
44 
 
 a conjuncture in which the Congreas may appropriately exer- 
 cise the power. The State has failed, in forfeiting its right by 
 its delinquency, to elect the proper officers to administer its 
 government. Now, then, if the government of the Union is 
 desirous that the State shall be restored, let that government 
 indicate how the people of the State shall be purged of the im- 
 purity of secession, and be restored to the loyal relation of 
 practical activity in the Union. To do that, the Congress may 
 prescribe by law the times for choosing its senators and repre- 
 sentatives. This, however, the State cannot do, until that gov- 
 ernment shall have set a time for making those elections ; for, 
 until that is done, the State cannot elect a Legislature, by whom 
 the constitution requires those senators shall be chosen. As 
 soon as the State is advised that the two Senators may be sent 
 up and admitted to the seats, the State can and will proceed to 
 elect the Legislature, and this election will be made according 
 to the laws of the State, except so far only as the people of 
 the State have incurred any disabilities by reason of its recent 
 delinquency. The disability of the State, as a corporate body, 
 will have been removed by the enabling act authorizing the 
 State to renew its representation in the Congress. Or, the Con- 
 gress not being in session, the President might, as Commander- 
 in-Chief, order the election. Thisistheaptest modeof change 
 from the military to the civil rule.* The disability of the in- 
 
 or refusal to make provision for the Congressional election. Mr. 
 Goodhue regarded the power given by the constitution to the Con- 
 gress to alter or malce the regulations, at any time, by law, as being 
 necessary to the existence of the Federal Government. Mr. Madison 
 " was willing to make every amendment that Avas required by the 
 States, whieli did not tend to destroy the principles and efficiency of 
 the constitution. He conceived that the proposed amendment" 
 (which only sought to restrict the power of Congress) " would have 
 that tendency; and he was, therefore, opposed to the a^nendment.''^ 
 Yet, now, it is claimed that the President of the United States, in 
 his capacity of the chief executive civil magistrate of the United 
 States, may so far neglect that iv. Sec, I. Article, as to exercise the 
 authority, so, by cotemporaneous interpretation, ascertained to be 
 confided exclusively to the Congress ! Fatal neglect it will be if per- 
 sisted in. 
 
 * The observations in this expositive note, are important to be con- 
 sidered, as showing that this step, as every other, of the plan, ia 
 founded on express provisions of the Constitution United States. 
 The President is Commander-in-Chief of the Army and Navy of tha 
 United Slates, by Art. ii,, Sec. ii,, Clause i. E-ach State in, or in- 
 
45 
 
 dividual citizens will remain to bo adjusted. The question re- 
 curs : Who can assign the qualifications of the State's elec- 
 tors, or derogate from the State's assignment of capac^ity to any 
 citizen to be elected ? How many and which that were incul- 
 pated, by common fame or notorious acts, in the State's delin- 
 quency, are to be disqualified, and by what authority ? 
 
 There is one point in those important practical questions, 
 about which, it would seem, there can be no dispute. It is 
 that no one shall exercise the right of suffrage or fill any office, 
 unless and until he take the oath of federal allegiance. This 
 is a sine qua non. Every man intending to continue to reside 
 in any State, ought to be willing to do that in good faith. Can 
 that government require of the individual citizens anything 
 beyond that, to qualify them to be electors or to be capable of 
 being elected ? 
 
 When the State shall have been authorized to renew the 
 election of representatives and senators to the Congress, all else 
 that is requisite to restore the State to the practical working 
 in the federal scheme, will follow as natural consequences. 
 That authority would imply the duty of the State to proceed 
 at once to elect a Legislature, and a Governor, and the Judges 
 — a Legislature, because that body is charged with the election 
 of Senators to the Congress — and a Governor and the Judges, 
 because the executive and judicial functions are a part of the 
 State's organization. The authority to renew her representa- 
 tion in the Congress, would also imply amnesty or pardon to 
 
 tending to be in, practical co-operation in support of the supremo 
 federal authority, is entitled to " the republican form," as pointed 
 out in the preface. Art. iv., Sec. ]v. By Art. ir., Sec. iii., the 
 President is charged with the high function of "taking care that 
 the laws be faithfully executed." The enforcement of the republi- 
 can form, during the recess of the Congress, is thus clcarl,y devolved 
 on the President, but he sliould take care tliat every step ho tal^es, 
 is within the autliority of the laws of which the constitution is the 
 chief. There is no provision of any law, organic or ordinary, wliieli 
 gives or implies authority to him to appoint a civil (Jovernor of a 
 State, when the civil government thereof lias been suspeudiHl by a 
 rebellion or interrupted otlierwise, and is under milita)'y rule Yet, 
 he has authority, and it is his duly, to take care that the State bo 
 promptly relievetlof the military rule that has sui)ervencd, and this 
 he can do in therocossof tlieCongi'e^^, only by fixing tJietimcsand 
 |)laces by military orders for electing the civil i^llicers of wbojn (h< 
 Governor is the chief in our re]iublic;).n forms. 
 
46 
 
 the State ; but that would not convey a pardon to any of the 
 citizens, in their individual relation, who compose the State. 
 Whatever may be the punishment for any of them, held in re- 
 serve, would not be hindered by the execution of this plan for 
 restoring the State. This plan carricS; as one of its characteris- 
 tics, a deference to the judicial power of the Federal Govern- 
 ment, which, it may be demonstrated, must first ascertain 
 whether «n?/ ci^/zen is an "o^/ewcZe?-," before any federal legis- 
 lative or executive authority may lawfully interpose a pardon 
 in his behalf. The judiciary is co-ordinate. The court has 
 independent and exclusive, but not conclusive, cognizance of 
 the case when it has arisen under the laws in force. The Con- 
 gress has power to repeal a law, but is powerless to snatch the 
 accused from a regular trial according to law. Nor can the 
 President prevent the trial. Should the Congress attempt to 
 authorize him to do so, it would be legislative usurpation. The 
 accused, when convicted, can be pardoned by the President. 
 The decision of the Supreme Court in the case of the United 
 States vs. Wilson, 7 Cranch, is not at all inconsistent with the 
 view here taken. This view is sustained by the tenor of Sec- 
 retary Seward's instructions to Mr. Dayton, Minister to France, 
 to the effect that the President's action (in the given case, as 
 in any other) can be overruled by the judicial authority, even 
 though that action be assented to by the Congress or by any 
 mode or extent of the popular concurrence. And it should be 
 so. " The judicial power," as an eminent writer remarks, 
 " is the only sure criterion of the goodness of a government." 
 The Congress, or, it may be as clearly, the President of the 
 United States, might issue an amnesty to the State — the State 
 not being amenable to the judicial authority, or capable of a 
 criminal offence. This cjucstion and the like of it, are avoid- 
 ed by this plan for restoring the State, (at least until after the 
 State shall have been restored,) simply by authorizing' her to 
 elect her representatives to the Congress, and by which alone 
 the regular action of the State can and would be superinduced 
 as a natural consequence. Nor would the execution of this 
 plan at all interfere with the purposes of the General Govern- 
 ment with respect to the free people of color, whatever' those 
 
purposes may be consistently witli the received doctrine that 
 the regulation of suffrage belongs to the State. 
 
 The only thing now remaining to be suggested to show that 
 this plan is practicable at all points, and would be eminently 
 practical, is to indicate by what authority the State would pro- 
 ceed, by the qualified voters, to elect the members of the Gen- 
 eral Assembly — that is, delegates and senators to compose the 
 State Legislature. This, it seems to me, is also quite plain, if 
 it be -necessary. The State is now under military rule. The 
 President of the United States is the Commander-in-Chief. 
 Let him, as such, order his subordinates in command of the 
 forces in this State, to appoint a time for the election of the 
 State Legislature and other officers, and direct that after the 
 election the civil power of the State shall be in action, and 
 that the military be withdrawn, so far as its presence would 
 hinder any regular exercise of any civil office. So, in each 
 State. 
 
 The object of more lasting benefit than to serve the exist- 
 ing exigency, important as this is, is to bring back the public 
 councils to look into the constitution for remedies to correct 
 irregularities in our system of political freedom. If the cor- 
 rection of a departure from the system, as this system is 
 framed by written constitutions, may be found outside of the 
 constitution, and though inconsistent with its principles, may 
 be applied by tfte men in authority, how and why shall tkey 
 be held culpable who by attempted secession deflected the 
 system from the regular working ? If the opposers of seces- 
 sion, (of whom the author of these fugitive pages was one,) 
 may look for and find a remedy which does not turn on the 
 provisions of the constitution, for any supposed or real griev- 
 ance, what right have they to convplain, even, that they who 
 threw the system off its hinges and out of the harness, had 
 resorted to acts of secession that are outside of the constitu- 
 tion ? I ; it that some of the States must, and others may not, 
 respect the constitution and^ be governed by it ? The idea 
 that one wrong may be done to correct another, isinot any 
 more sanctioned by our laws, than it is sound in morals. 
 Why may they, in authority who do not obey thc'lawS; exact 
 
48 
 
 allegiance of those who are not in authority? Illustrious 
 lesson of liberty this is, that " in the exercise of his powers 
 of government, the President of the United States, is no more 
 than a magistrate ; and the laws, whether those that existed be- 
 fore him, or those to which, by his assent, he has given being, 
 must direct his conduct, and bind him equally with his fellow- 
 citizens. It is the government, as it is defined by written con- 
 stitutions, which all, in and out of authority, are sworn to 
 support. As De Lolme expresses it, " there may be an im- 
 mense distance between !the making of the laws and the 
 observing of them." The government is one thing — its ad- 
 ministration is another, and may be very different. The oath 
 to support the constitution, is an oath to resist tyranny and to 
 rebel against persistent usurpations and oppression. It is not 
 any administration of government, to which the public coun- 
 cils may deflect its powers from the line the government pre- 
 scribes, that the citizens in private life are bound to obey and 
 cherish. The administration derives its honor from its duti- 
 ful observance of the government, and from that orbit alone 
 can it shed the beneficence of the government. If the gov- 
 ernment is found to be less perfect than it should be, let its 
 defects be supplied only by a resort to the power of the people 
 that created and established it. If the administration is 
 vicious, that is, in departures from its appropriate sphere, let 
 it be reclaimed by fair speech, and the power of argument, 
 and the elective suffrage, and the right of the people to in- 
 struct the representatives whom they elected. The sentiment 
 of the poet applies as well to the administration, as to the 
 man who owes allegiance to the government : 
 
 '• On him who lives as wisdom would require, 
 As duty woos, and as the virtues claim, 
 Time, if it robs the poet of his lyre, 
 Bestows a bliss beyond the wealth of fame." 
 
 The constitution is the gospel of that wisdom ; and it is the 
 virtue that drives them who administer it, to the duty of ob- 
 serving it, which bestows the honor of enduring value. 
 
49 
 
 Peteesburq, Va., June 5, 1865. 
 
 Repeated in other words, with a few other thoughts. 
 
 If tlie United States authorities are in earnest and sincero 
 in tlieir avowed purpose of re-establishing the legal rule of a 
 regular civil government in this State, the plan is conspicu- 
 ous in the provisions of the constitution of the United States. 
 If it is the purpose, however, of that government to experi- 
 ment longer, as General Sherman expresses it, in the machinery 
 bj which its power is to be displayed in the South, this pur- 
 pose is equally conspicuous, and so much so, in the hindran- 
 ces which are in the tide of experiment, that it will be diffi- 
 cult for the authorities to discover a better mode than that 
 they are practising. The military authorities, in this city 
 and elsewhere, as far as I have observed, are exempt from 
 this animadversion. These are doing the best for us their 
 orders will allow, and the men in civil office seem to have 
 right disposition, but they do not adopt the right loay. 
 
 Let the authorities at Washington consult the situation, and 
 be governed by the constitution, and the right plan is on the 
 surface ; and if adopted, will bring relief to us, and to them- 
 selves the assurance of that prosperity which the agricultural 
 and other industrial pursuits prosecuted with all practicable 
 vigor, alone can reproduce. One act will do the work. With- 
 out that act first accomplished, the pending troubles will drag 
 their slow length along, until, it is to be feared, great as they 
 are, still deeper and more difficult will be engendered. Whilst 
 there is danger that delay to bring in permanent government, 
 may breed troubles of one sort or another, yet the mere ele- 
 ment of time, within the compass of a year or two, is of incon- 
 siderable value. The State can get on tolerably under mili- 
 tary rule or a forced provisional government. And let it be 
 perceived that this plan applies to every one of the late so- 
 called Confederate States. That requisite act first to be done 
 to accomplish the desirable object of restoring the State to 
 the former practical relations in the federal union, with least 
 possible delay, is simply that the federal authorities shall au- 
 thorize the State to renew her representation in the Congress. 
 
50 
 
 The State is now without that representation, and she has no 
 legislature which alone can choose and send up two Senators 
 to that Congress. ^ (See Art. I., Sec. III., cl. 1 Con. U. S.) 
 The authority to the State to do that, would imply that the 
 State shall proceed to elect a Legislature, There is, in the 
 situation, as it is, no time appointed for the election of the 
 representatives of the State to the^! Congress. As the State 
 has failed to prescribe a time, the Congress has the authority 
 to do it. That authority is conferred by Art. I., Sec. IV., cl. 
 1, Con. U. S. And here the only question of any possible 
 dif&culty arises. It is, hoio is the time for electing a Legislature 
 to he appointed, and hy toliom ? The answer here, too, is on 
 the surface, but it extends- iself to and through all the depths 
 of the subject. Excluding the Peirpoint government, (which 
 I would advise all to help on to success, as provisional,) the 
 State is under the military rule. The President is commander- 
 in-chief. Then, let him issue an order to the proper military 
 authority within and throughout the State, to fix a time for 
 the election of Delecrates and Senators to the General Assem- 
 bly, according to the suffrage (with the qualification of new 
 allegiance) as it was regulated by the constitution before the 
 war. That would prevent the delay for the Congress to meet. 
 The constitution of Virginia, although its operation was prac- 
 tically suspended by " the Ordnance of Secession," has not 
 been disannulled ; but, on the contrary, it is in the theoretical 
 structure of the federal union, still potential, that is, existing 
 still in the capabilities of a practical exercise. Its pro-slavery 
 provisions are, by the result of the war, deadened; and by 
 the universal acquiescence of the owners of the hitherto law- 
 ful property, those provisions are utterly annihilated. The 
 only qualification on the right of sufiYage that needs to be 
 added, is the just requirement that the citizens, before voting, 
 shall have taken the prescribed oath of allegiance. That 
 super-addition of qualification to entitle the citizen to suffrage, 
 is just, from the fact that the State, as an organized society, 
 attempted to secede and is baffled. The individual citizens 
 are found in that delinquency or dis(|ualification. They, noAV, 
 as individuals, desire the benefit of a renewal of represen- 
 
51 
 
 tation, and they should by oath, reclothe themselves, each for 
 himself, with the former allegiance, or submit to a denial of 
 the desired benefit. The general government has no authori- 
 ty to require aay other test oath. 
 
 Whatever else is done, and however long it may take to do 
 all else that may need to be done, the State's representation 
 in the Congress must be renewed before the State can be re- 
 stored. When that, which is most important and indispensa- 
 ble, is done, all else will flow on by natural consequences. 
 The State so officered, would alter — would at once be constrained 
 to conform — the municipal law, to suit the changed relations 
 of the colored people. If desirable, at any time after the 
 State is restored, and no matter why desired, to have a con- 
 vention to change the constitution, in an}'- respect, or however 
 soon thereafter, it could be done with more deliberatic n, and 
 be better done, in all respects, after, than before, the event of 
 the practical restoration. Nor would the punishment of indi- 
 viduals^ whatever that may be, in reserve for any, be.embar- 
 rassed by the execution of this plan. The authority of the 
 State as an organized society, would imply an amnesty to it, 
 as such, but would not impart any pardon to anj^ of the mem- 
 bers _of that society. It is competent to the federal Cono-ress 
 and executive, the latter acting as a component part of the 
 federal Legislature, to issue that authority necessarily imply- 
 ing amnesty or pardon to the State, because the State has tbe 
 reserved right of " the republican form" which the General 
 Government is bound by the constitution (Art. lY., Sec IV.,) 
 to guarantee to every State in this Union. That guarantee 
 cannot be made good to any State, under the federative sys- 
 tem, as it was, or as, it is supposed, it is intended to be, unless 
 and until the State is authorized to renew the representation 
 in the Congress, which tlie state has lost the opportunity to 
 do at present, by the failure to appoint a time for the elections. 
 The State needs not, nor indeed can, be held subject to any 
 punishment that may be in reserve for offenders ; because the 
 constitution of the union provides no punishment for the State, 
 nor any fundamental forfeiture. Nor does principle prescribe 
 any. It as otherwise with the individuals of the organized 
 8 
 
52 
 
 society, called a State (and, by-tlie-by, a State without rights^ 
 would be a nondescript). The individual members are liable to 
 punishment, as offenders ; but whether any are offenders in a 
 criminal sense, and whether tliat is given in charge to the 
 judicial power, which is a co-ordinate department, to ascer- 
 tain, exclusively of any interference by the federal Legisla- 
 ture and Executive, until after judicial coviction, are ques- 
 tions of grave import involving elements of controversy 
 enough to be postponed, until they must be decided. The 
 other question of the right and (it seems to me) the only way 
 of restoring the State, is upon us and craves to be first settled. 
 " Sufficient unto the day is the evil thereof;" and it is an evil, 
 in this instance, that may become inveterate, if the cure here- 
 in suggested^ be neglected. 
 
 How inconsiderate, not to say how immoral, it is, that pub- 
 lications shall be spread over the popular mind that it is in- 
 different how the States are got back into the Union, cannot 
 fail to be seen in the light of an illustratien that will be offered 
 in conclusion of this article to enforce the right way. It is 
 agreed by the men in the federal authority that these States 
 are not to be held as conquered provinces, but are to be re- 
 charged with federal duty and replenished with the federal 
 privileges. That is just the status of a territorial people in 
 the act of forming their institutions for admission into the 
 Union. If it is not material, but indifferent, whether the 
 federal government shall see to it that the new State shall 
 come in ia no other than the republican form, then it matters 
 not what means are used to restore these States to member- 
 ship in the Union. If the constitution be not observed in 
 this transaction, the historian who shall record the events by 
 'which our federal system will have been brought to its end, 
 will devote his first chapter to the unconstitutional restora- 
 tion of the rebel States in 1865. 
 
 Perersbukg, June 17th, 1865. 
 TJie Wheeling and Alexandria Constitutions. 
 As the records show, the case of Virginia, is thus in the 
 outline of the projected partition into two States: On the 11th 
 
53 
 
 qF June, 1861, a convention of delegates from thirty-nine 
 counties remaining loyal to the federal Union,' was assembled 
 in Wheelinc". On the 19th, an ordinance was passed " for the 
 reorganizatioa of the State government," to extend over the 
 whole State. On the 9th of August, an ordinance was passed 
 declaring the ordinance of secession, passed on the 17th of 
 April, at Richmond, to have been '^' v/ithout the authority of 
 the people of Virginia," in the face of the fact that the whole 
 State was represented in the Richmond convention. On the 
 2'Oth of August, the Wheeling convention ordained that a 
 new State should be formed including the thirty-nine counties, 
 to be called "the State of Kanawha." On the same day, 20th 
 of August, 1861, they passed another ordinance providing 
 for the election of members to the Congress, from the whole 
 State of Virginia. Oa the 13th of May, 1862, the legislature 
 at Wheeling passed an act professing to give the consent of 
 " the Lesfislature of Viro;inia " to the formation of the new 
 State of West Virginia to comprise forty-eight of the counties 
 of the State of Virginia ; and this new State was admitted 
 into the Union by the Congress. On the 13th of Febauary, 
 1864:, a convention of Delegates from half dozen counties 
 about Alexandria, assembled in that city and issued a consti- 
 tution, as if it were an edict by a prince to his subjects, and 
 now claim that it shall be extended over this part of the State ; 
 and the President of the United States promises the federal 
 army, if necessary, to enforce it. If that was right, a third, 
 without delegated authority, may assume to act for the whole, 
 and a small portion of that third' can subject the other two 
 thirds to their rule. The Congress refused to admit, that is, 
 did not admit, to seats the men who were elected under the 
 Alexandria constitution, to serve as Senators from that frac- 
 tion of the third of the old State. Why were they refused 
 geats in the United States Senate? — 'Nor is that all. It is 
 claimed by the authorities at Washington, that the Virginia 
 Ordinance of Secession which incited to the formation of the 
 Wheeling government, (and most properly Avas it formed, if 
 it had been provisional only during the war,) did not carry 
 the whole State, or any part of it, out of the Union. This is 
 
54 
 
 true, and is not now questioned by argument or arms. With 
 this just demand enforced, to wit, that the whole State was 
 all the time of the war, still in the Union, how can it be 
 maintained by the federal authority that the new State was 
 constitutionally carved out of the old State, without the con- 
 sent of a Legislature representing the whole State ? The 
 provision of the constitution of the United States, is : Art. 
 IV., Sec. III., cl. I. " New States may be admitted by the 
 Congress into this Union ; but no new Siate shall be formed 
 or erected within the jurisdiction of any other State ; nor any 
 State be formed by the junction of two or more States, or 
 parts of States, without the consent of the Legislatures of the 
 States concerned, as well as of the Congress." 
 
 Such being the facts constituting the situation of Virginia, 
 and it being also a fact that the United States authorities do 
 not intend to impose an immorality on the citizens in East Vir- 
 ginia, the question arises, how can any citizen take the oath to 
 support both the Constitution of the United States, and the 
 Wheeling arrangement? I am a sincere and lo^^al inquirer 
 for the truth. No man is a warmer admirer of the Federal 
 Union, from affection for its principles and veneration for its 
 felicitous provisions. Having most cheerfully taken the oath 
 to support the Constitutiou of the United States, I am anxious 
 to take the oath to the government of the State, as it ought, 
 instead of as it is sought, to be established. The oue constitu- 
 tion is in conflict with the doctriDos on which the other is 
 founded. The great and most admirable principle that the 
 government of the United States derives its just powers from 
 the consent of the governed, is rejected by the exaction of the 
 oath to support the Alexandria Constitution, to which at least, 
 seven-tenths of the voters to become qualified as such by the 
 just exaction of a new oath of allegiance to the Federal Gov- 
 ernment, had not given, nor had any opportunity to give, their 
 consent before it was extended over them. Nor was it the 
 fault of very many of these citizens that they never had an 
 opportunity to vote to ratify or reject it. The opportunity 
 was withheld from most of us by causes we could not control, 
 3,nd one of which only needs to be mentioned in support of 
 
55 
 
 tTi#argument against the permanent expansion of theautliori- 
 ty of the Alexandria Constitution. lb was intended by its fra- 
 mers, that the people of the larger part of the State repre- 
 sented in the General Assembly, at Eichmond, should not 
 have any voice in determining its acceptability. It was pro- 
 perly intended to protect, during the war, the people of that 
 portion of the State, whose delegates in convention framed 
 it ; and it had done its full legitimate service, when the war 
 was ended. Or, if now it is meant that it shall survive, and 
 that its authority shall be spread, as a mantle, over this larger 
 part of the State, it can only be rightfully done, consistently 
 with our system, by submitting the question of its ratification 
 or rejection, to the vote of the whole State. The enlarge- 
 ment of suffrage, by removing some of the disqualifications 
 the Alexandria constitution prescribes, would not remove the 
 radical objections to that constitution. That Legitlature's 
 removal of restriction on the right of suffrage, would be a 
 temporary expedient evincing a good disposition, but showing 
 only a very thin salve on a deep wound.* No less could be 
 
 *The writer will now add in view of the events transpired since 
 the foregoing was written, that it is no excuse or relief for it to be 
 shown, as now it is, that the Legislature just adjourned, this 23d of 
 June, has acted wisely by enlarging suftiage. Without that, their 
 scheme was inert and could not be put into operation at all, with 
 any semblance of fairness. 
 
 The citizen in this East part of the State, it seems to me, and I 
 greatly regret it, who shall take both oaths, must of necessity, 
 which is inherent and unavoidable, perpetrate a perjury. The pow- 
 ers incorporated in the Wheeling and Alexandria constitution, are 
 prescribed without legislative agents deputed by us to prescribe 
 them ; and after the dictatorial prescription as to us, our consent, or 
 submission rather, is exacted by an oath to be governed by it. If 
 this government of the State is intended to be only provisional, con- 
 ducted by a Governor ai^pointed by the President of the United 
 States, as to seven-tenths of the people who may hereafter be quali- 
 fied to vote, in any general election, by taking the oath of allegiance 
 to the government of the United States, still, I would say how un- 
 like it is, and repugnant, to the Constitution of the United States, 
 which provides for the election of the chief magistrate, by popular 
 suffrage, or in a mode considered equivalent, to wit: by electors 
 chosen Vy the people. 
 
 So, manj' a King has acted well, at times, for the s^'-vecf people 
 ruled witliout their consent. It is the representative system, as ac- 
 credited by the Constitution of the United States, and by it reserved 
 to the States, in and by which this writer seeks to have this State 
 re-established. ' 
 
 By this inconsistent oath, by this superaddition of oaths, this State 
 is brought to a balk— a dead lock— so Hint a moral and intelligent 
 
56 
 
 done, without cofessing tliat the design was to carry on The 
 government, without giving these seven-tenths of tlie State 
 any voice in administering it, as they had none in originating 
 or organizing it. 
 
 Let this topic be presented in another aspect ; or if this be 
 so like the other aspects in which it has already been a little 
 looked into, let oiher language be used to exhibit it in a some- 
 what different light, lEovy can the oath be taken by the citi- 
 zens in East Virginia, to support the "restored " government ? 
 Is it not true that the State is not "restored," in any sense ? 
 If that word in the oath intends to represent that the govern- 
 ment of the State is now as it was before the war, it is a mis- 
 take that is obvious in the fact that that government is claim- 
 ed to be suppressed, by those who have enacted another in its 
 stead. If that word intends to convey the idea that the former 
 government, which the Washington authorities admit is only 
 under a temporary suspension, is revived, this is equally a mis- 
 take — and a mistake obvious in the fact that it is not bsing put 
 in motion in any of its functions, but the Alexandria Crovern- 
 
 people, cannot get license under the revenue laws of the State, to 
 practice law, or medicine, or carry on any business that requires a 
 license ; just as is the case, and to a greater extent than is tlie case, 
 in North Carolina, (and in other States,) where, for instance, Robert 
 P. Dick, Esq., has declined to qualify as United States District 
 Judge. The policy I am opposing, in part, is a needless multiplica- 
 tion of oaths. There it is tlie case that by the act of Congress, July 
 2, 1862, an oath, now needless, excludes from public service a sincere 
 Unionist ; whilst in this State, an inconsistent oath drives loyal 
 citizens from public service and private business. 
 
 Why, if "West Virginia " is lawfully a State, should the citizens 
 of East Virginia be required to swear to support its government? 
 Why not as well require us to swear to support the government of 
 Kentucky, or that of any other State? If ''West v^irginia " is not 
 lawfully a State, ouglit anybody to be required to swear to support 
 its government ? 
 
 The constitution of the United States, as has been argued herein, 
 does not allow tlie division of a State by legislative consent. That 
 consent should be given, if at all, only by a convention of the peo- 
 ple of the whole State, and then be of no avail without the sanction 
 of the Congress. Suppose the constitution does not disallow, as 
 an incipient step leading to the division of a State, or consummat- 
 ing it, that one constitution may be substituted for another, by the 
 individual consent of thequalitied voters of the State, still I Avould 
 insist that it ought not to be unfairly done, and least of all 
 ought it to be so done as to bring on the people of any portion of 
 the State a moral obligation to uphold an unconstitutional transac- 
 tion. 
 
57 
 
 ment is being driven, as a wedge, between the people of the 
 State and that former government of theirs. If. that word 
 " restored " is used to signify that the State is re-placed in its 
 former practical relations in the Union, such is not the case. 
 The Senators elected by the Alexandria Legislature, have not 
 been admitted to the seats, though they applied with their 
 credentials. Whatever was the cause of the failure to admit 
 them, want of time or what not, the fact is that they have not 
 been admitted, though they may expect to be. This expecta- 
 tion may be disappointed again, as it was before, for want of 
 time, or some other like frivolous excuse alleged under cover 
 of some other cause, or for some other excuse more serious 
 than any that has been alleged as the reason for the failure to 
 admit them on the former occasion. Any how, in the fact that 
 the State is not in the Union yet, in the furniture of a revived 
 civil authority, the government of the State is not restored. 
 And, moreover, if the Senators had been admitted from the 
 State which is claimed by the prescribed oath to have been 
 "restored," even if it is "restored" in any sense not here ad- 
 verted to, if there is any such sense, or if they shall hereafter 
 be admitted, they will at most only be Senators sent up by a 
 very small part of the State, and not by a Legislature elected 
 by the whole State, as the Constitution of the United States, 
 requires they should be. 
 
 Apart from all that, as much as it is, the oath requires the 
 taker of it (properly) to support the Constitution of the United 
 States, and (improperly) the "restored" government of Vir- 
 ginia. The " restored " government involves the erection of 
 " West Yirginia," within the old limits of Virginia. The Con- 
 stitution of the United States provides (as has been conceded 
 for the sake of the argument, only) that such a formation of a 
 State shall not be accomplished without the consent of the 
 Legislature of Virginia. That consent has not been regularly 
 given. In strictness, the regular Legislature could not give such 
 consent. It ceuld he consented to only, if at all, hy a Convention. 
 The Constitution does not allow such an erection of a neiu State. It 
 is the formation of a State by the junctionof two or more (or parts 
 of) States, to which the Constitution requires the consent of the 
 
58 
 
 Legislature thereof. It is j^teremptory that "no new State shall he 
 formed or erected within the jurisdiction of any other State ; &c. 
 The case of Maine is not a precedent against that strict inter- 
 pretation — indeed, the erection of Maine into a new State is 
 not an example under any construction — for this, if nothing 
 else, that Maine was not a pan of the State of Massachusetts, 
 "but was only connected with that State, as a province, from 
 1639 to 1820 ; at which last date Maine was admitted into the 
 Union. It is true that Massachusetts did give consent to the 
 erection of Maine into a new State. How that consent was 
 given, whether by the legislature or by a convention, no his- 
 tory that is accessible, tells."^ New Hampshire was in the same 
 case as Maine was, that is, under the jurisdiction of Massa- 
 chusetts, and shared her fortunes, until the period of the Revo- 
 lution in 1776. It does not appear that Massachusetts gave 
 any consent to the erection of New Hampshire into a State. 
 Nor is it material how Massachusetts gave her consent con- 
 cerning Maine. All the early history of this province shows 
 that its territory was never considered as part and parcel of 
 Massachusetts, as were West and East Virginia linked into 
 one State in territory. No doubt, either, is there any room 
 for, that that consent of Massachusetts, respecting Maine, was 
 fairly given, and not pinched and squeezed out, as is our con- 
 sent, without opportunity to give or withhold it, in the case of 
 the partition of Virginia. The Wheeling and Alexandria 
 
 * Since the text was written, I find, in 35th vol. Annals of Con- 
 gress, 13th Jan'y, 1820, that representative jRoSer;".? referred to. the ac- 
 tion of Maine, in seeking admiBsion as a State, as having been " clidy 
 authorized by act of the Legislature of Massachusetts." If that pre- 
 cedent were entitled to respect, but is not, as it was without consti- 
 tutional warrant, and if Maine be regarded as thus being a part of 
 Massachusetts, against her troubled story which tells she was not, 
 still the case of Maine would be a precedent inapjilicabie to the pro- 
 I>osed partition of Virginia. It would be inapplicable in this, that 
 it was by "act of the Legislature of West Virginia," so called, and 
 pot by act of the Legislature of Virginia, (as in tlie other case of 
 Massachusetts,) that the erection of West Virginia was pretended to 
 be authorized. The cases would be parallel, however both would be 
 unauthorized by the coiistitution, if in that case Massachusetts had 
 not been consulted, as Virginia was not, and Maine by her legisla- 
 ture had given the consent, as West Virginia did ; or, if the Legis- 
 lature of Virginia had given the consent. But there is no parallel- 
 ism, and therefore uo precedent. The case being altered altera the 
 case. 
 
59 
 
 Conventions, if the representatives m both had been in one, 
 excluded two-thirds of the whole State, whose consent it is 
 claimed is covered and conveyed by the action of those partial 
 conventions, and sought to be enforced by an oath which dis- 
 franchises, for office, or for license in any taxable avocation, 
 all in East Virginia who will not take it. Though the taking 
 of it by the people may be regarded as an evidence of their 
 loyalty, and will elicit a compliment for them from the men in 
 the official circle, the writer had hoped it was a compliment 
 this people would show they had too much spirit and under- 
 standing by compliance with it, to deserve. The effect of this 
 oath, whatever was its design, is to secure the consent of the 
 individual citizens in the East, to the formation of West Vir- 
 ginia. It is npt by the individual citizens, even if they were to 
 act in a grand mass meeting, and with no dissenting voice, 
 that the constitutionally required consent can be given. It is 
 the consent of the Legislature of the State of old Virginia, as 
 a whole State, that is indispensable to validity, according to 
 the Constitution of the United Stales, (in this view of it,) and 
 that consent cannot be substituted or justified by any consent 
 in any other form, to make it lawfully effective for the erec- 
 tion of a new State within the limits of the old State. This 
 view for the sake of presenting the argument, is taken under 
 the concession that the constitution allows, in the case, the 
 consent of the legislature of the whole State as sulncient, 
 which however it does not allow. If the consent by the indi- 
 vidual citizens, by oath or otherwise, had been asked or re- 
 quired before the erection of the new State, it might, under 
 that concession, wear the air of plausibility. But the erec- 
 tion of West Virginia, is not even that much in deference to 
 the spirit of the constitution, even under that erroneous con- 
 struction ; much less does it conform to the representative 
 principle of the consent of the governed. The effect of the 
 oath is to secure the individual consent of the citizens, after 
 the fact. It is that, instead of the consent of the legislature, 
 he/ore the fact. The parts of the oath,, as I apprehend, do not 
 consist with one another. But I have seen, and much fear 
 shall often see, not owing to any lack of honesty, but toa 
 9 
 
60 
 
 superabundance of heedlessness, on the part of the people, 
 how impotent law and logic are, when they come in collision 
 with the exercise of political privilege. Still 1 would warn 
 my country th;it until it shall be otherwise — until the consti- 
 tution is respected as the limit of authority, we shall never 
 again be safe in freedom's rights, and our noble experiment 
 of representative government will inevitably fail, and in 
 scenes more revolting, perhaps, than those exhibited in the 
 late war, the scandal of the age. 
 
 Some attempt' has been made, (Oct. 20th,) in several quar- 
 ters, to induce the belief that the oaths of amnesty under the 
 presidential proclamations, may be likened to that oath to 
 support and defend the " restored " government of Virginia. 
 There is not the least resemblance. The former oaths are 
 prescribed by federal power, and the latter by State power. 
 A no less reckless attempt has been made to liken the former 
 oaths, in point of authority to require them, to the oath pre- 
 scribed by the act of the Congress of July 2, 1862. directing 
 a test other than the oath to support the constitution of the 
 United States. Neither is there any resemblance here. The 
 former relate to the private citizens, alike with *he public 
 men, or other ofBcials, vfhilst in the private station ; whereas 
 the latter relates only to those elected by the people, or ap- 
 pointed to office, to be taken (else a denial of the office en- 
 sues) upon their induction into the offices to which they have 
 been chosen by popular suffrage or otherwise appointed to be 
 the representative men or ministerial agents. The amnesty 
 oaths were and are to put to the test, the ^^^-os-pective loyalty of 
 all the members of t^e society, or State, Just emerged from a 
 rebellion. The. test oath of induction into office, has no such 
 purpose to serve, in any sense. It relates to the past conduct 
 of them who are to be subjected to it. It proposes to subject 
 to its ordeal those only who have been appointed to serve 
 that society which has already been purged and justified by 
 the amnesty oaths. These (amnesty) oaths were required of men 
 who had striven to become foreigners. These (amnesty) 
 oaths were prescribed in virtue of the national sovereignty, 
 just as in the nation's foreign relations, on the kindred subject, 
 
61 
 
 tlio oath of allegiance is made necessary to naturalization. 
 The State was not out of the Union and foreign, but in and 
 delinquent. The test-oath of offiiGe does not deal with foreign 
 subjects, but is altogether v/ithin the domestic polity and 
 the circles of of&cial service the constitution circumscribes. 
 To illustrate : The constitution determines how many Senators 
 each State shall send up to the Congress, but it does not de- 
 clare for what the Congress may " declare war " or " make a 
 treaty of peace " with any foreign power. The act of am- 
 nesty was one of grace, and the competent giver had the right 
 to set the conditions. The test-oath of office is an act affect- 
 ing reserved rights that are restricted, as alone they can be, 
 just precisely as they are defined in the constitution adjusting 
 them; and they cannot be either diminished or augmented, 
 unless and uutil that constitution is altered. But say they 
 who liken these oaths, and intimate or insist that the one is 
 as unconstitutional as the others, " the swearer is sworn by 
 the amnesty oath to abide the proclamation setting the ne- 
 groes free, which violated the constitution." Now, it was not 
 the proclamation, but it was the sword, that set them free. 
 We who incur (if we will) this branch of tlie amnesty oaths, 
 made the war, or accepted the wager of battle, of which the 
 chief result is the negro's freedom.'^ We made a positive sur- 
 
 *The Itxw and the morality of this whole subject of slavery, so far 
 as it was the proximate cause of the war, and so far as its destruc- 
 tion, as a property, is the effect of the defeat of the South in tiiat 
 war, can be put in a nutshell, thus: T, the South, told him, the 
 North, that his purpose was to take from me my hat, negro slavery. 
 No, says he, 'tis not so, there is no purpose to touch (slavery) tlie 
 hat on your head — it is yours. He say.s so to me three times and 
 trives me a writing to that effect (which is in three votes in the 
 House of llcpresetitatives). I am not satisfied with that threefold 
 disavowal of design to take away irom me my hat. I approach him, 
 when he is standing with folded anas, and ciiarge him with a hanli- 
 ering alter my hat— lie proietts he r(>gards it as mine, to do with as 
 I please. I hear him with incredulity, and take counsel of my fears 
 that he does intend to take my hat from me. In the pride of my 
 physical strength, and in th(^ strength of my suspicion, I rise up in 
 his presence and challenge him to tisticuftsto beat him ofi'from ttiat 
 design he had so often denied heever meditated. In the fight I am 
 overcome, my strength being lot^^s than I had supposed. Surely, I 
 will be bound in honor to acknowledge that I have lost all claim to 
 the hat, forever, even though ho decline the victor's title to it, and 
 let it lie by, where I lost it, as the negroes linger here where we lost 
 them. 
 
62 
 
 render of the ownership — a surrender of our constitutional 
 right to it. We certainly assented to, if we did not seek, the 
 issue of battle. Now, nothing is surer than that a man (or 
 State) has a right to give up his rights. Our right was safe 
 — we would insist it was not — we went to war to make it 
 safe, Avhen we knew they who opposed us were seeking an 
 opportunity to do what they had as often as three times 
 confessed the constitution would not let them do. So unequal 
 was the war that our resting our right of the ownership on 
 that issue, was equivalent to a voluntary surrender. They to 
 whom we thus surrendered that right, as it was under the 
 laws from which we appealed to a trial of physical forces of 
 known odds against us, now tell us, just exactly and exactly 
 justly, that we should seal our verbal promise to abide the 
 result, by a recorded oath which, if our assent to the issue had 
 not been given, would be unconstitutional, but having been 
 given, is made constitutional against us in virtue of that 
 assent and consequent surrender of our right. The one oath 
 is to support a government we had no voice in making ; the 
 others or amnesty oaths are to support an efiect of the war 
 the South would have. 
 
 As Junius says, if there be a defect in the representation 
 of the people, that power which alone is equal to the making 
 of the laws, in this country, is not complete, and the acts of 
 legislature, under that circumstance, are not the acts of a pure 
 and entire legislature. I speak of the theory of the consti- 
 tution ; and whatever difficulties or inconveniences may attend 
 the practice, I am ready to maintain that as far as the fact 
 deviates from the principle, so far the practice is vicious and 
 corrupt, and ought to be relinquished by a prompt and ingen- 
 uous return to the principle. 
 
 The exclusion from ofl&ce and from suffrage, by the Alex- 
 andria constitution, of all who were members of the General 
 Assembly at Richmond, during the war, is retained, as if it 
 was not as necessary for the people of this part of the State 
 to have a State government during the war, to prutect us, as 
 it was that the people of that part of the State which is now 
 " West Virginia," should have been provided with a govern- 
 
6n 
 
 meut duriug the war, to protect them. Indeed, there is no 
 reason in the philosophy of the system, to justify the disfran- 
 chisement of the members of the Confederate Congress or 
 members of the State Legislature, Their action was but the 
 logical and governmental sequence of the upheaving and 
 overruling ordinance of secession passed by "sovereign" con^ 
 ventions. Though secession was as unjustified by true con- 
 struction, as it is unsustained by arms, individuals had no 
 way of escape. The public opinion became a resistless tor- 
 rent, and men of capacity were compelled by it to serve in 
 the Confederate Congress. Such men, in such a conjuncture, 
 were not to be expected to suppress the promptings of pri- 
 vate ambition and public duty. It is but the often told story 
 of ambition in all past ages. .It will be well if the men in au- 
 thority, since hostilities have ceased, shall succeed in main- 
 taining their authority without abusing it. Most of the men 
 who served in that Congress, would now, under the prompt- 
 ings of the same private ambition, devote their talents to the 
 public duty of serving and advancing the popular opinion 
 when turned back to its former channels. By the " sovereign " 
 people, 
 
 "in the rebellion, 
 When what was not right, but what shall be, was law, 
 Those men were chosen ; now, in better hour. 
 Let what is right be that which should be done."" 
 
 And, moreover, as to the members of the State Legislatures, 
 it cannot justly, nor should it, be overlooked, by the powers 
 that be, that, irrespectively and independently of the rebel- 
 lion and the consequent war measures, the State needed and 
 was entitled to a Legislature. Not a few of these members 
 admired and would have shielded the federal Union. The 
 voice of some of them, was still for peace. Some sought 
 seats in the Legislature, (as some did in the Congress,) to 
 escape the conscription into the army. Most of them looked 
 only to the domestic affairs of the State. Many of them who 
 looked beyond to the conduct of the war, were induced to seek 
 the success of our arms, in order to secure a firmer footing, 
 t.han defeat could afford, for favorable terms, whenever nego- 
 
64 
 
 tiations for peace might fortunately intervene. If right that 
 any, can it be that all, members of the State's Legislature 
 during the war, shall be disqualified to vote or to be elected I 
 
 and zvliat of the future ? 
 
 ; Petersburg, June 19th, 1855. 
 
 "What a spectacle have the people of this great Federal 
 Republic exhibited, as it is embraced in the period interme- 
 diate between the 8th of January, 1861,* when the writer 
 threw a prophetic glance springing from facts, into the issues 
 of the late war, and this day as he looks upon the frightful 
 horrors outstanding for the crowded pages of history ! It is 
 suitable and salutary to make references to the past events 
 constituting such a spectacle, when the retrospect is indulged 
 to be a guide for the future, and the basis on which to super- 
 induce and solidify reconciliation and concord. At the first 
 date, the unexampled career of prosperity might have been 
 maintained, in its gushing stream and sparkling spray, if the 
 public councils of the country would have " sprinkled cool 
 patience" upon the heat and flame of their distempers. Not 
 so, it is said, in the sense that this war might have been pre- 
 vented; but cnly deferred. It was not love or dislike of the 
 Federal Union which brought on the war. It was neither 
 kindness of philanthropy for the black slaves, nor avarice of 
 their labor without wages, that made the war. JSTo such irre- 
 pressible sympathy for any portion of the human family in 
 distress, if such had been the situation of the blacks, has ever 
 been known to imp^l the people of the North. They are too 
 intelligent not to know that there was distress enough at 
 
 "That is the date of a letter in the first eaition, which predicted 
 the South's defeat in tlie war the writer was striving to avoid. It 
 was not that he was a prophet, but only that lie toolv heed unto tlie 
 common sense inculcated by that scripture that asks: "Or what 
 king going to war against another Iving, sittetli not down first, and 
 consulteth whether he be able with ten thousand to meet hiai who 
 Cometh against him with twenty thousand?" 
 
65 
 
 Lome to have absorbed all their teeming sources of charity ; 
 and they are too christian to be ignorant that the Apostle 
 Paul teaches that all men everywhere should learn to relieve 
 all manner of destitution at home, before the benefactors 
 should spread their benevolence abroad. And at the South 
 it was too clearly seen how slave labor without wages, which 
 vastly increased the natural indolence of the blacks, had long 
 been making the South poor indeed, and laggard in the race 
 of thrift, especially in the mechanic arts. No, it was not sla- 
 very that was the cause of the war. And just as unques- ■*■ 
 tionable it is that it was not love of the Union, in the one 
 section, or dislike of it, in the other. In the South, it was 
 the boast that in the earliest stages, her public men were 
 foremost in constructing the best government the world ever 
 saw. This was one of many strong links to attach the South 
 to the Union — powerful to repress any upstarting dislike. At 
 the North, it was seen and avowed that the Union was the 
 strongest safeguard of the ownership of slaves, and kept off 
 foreign interference. So manifestly was this so, that, in 1850, 
 memorials were sent up to the Congress from the North, to 
 the effect that on account of the slavery in the South, " some 
 plan should be framed for the immediate and peaceful disso- 
 lution of the American Union." Then, it was not a love or 
 dislike of the Union, that engendered the distemper of the 
 times, that produced, when it did, the terrific spectacle that 
 has intervened between those periods. ■ Some other cause for 
 the war, must be found in tne deep-vaulted reason of human 
 conduct. It would be the Avorst of reproach, if such a spec- 
 tacle had been produced without a cause in its reason suffi- 
 cient, or to become sufficient only a little later. It were use- 
 less to inquire further than has been already intimated, how 
 it might have been postponed, perhaps the length of a gene- 
 ration. It was to come, and it has been. The law of popula- 
 tion produced it. It was ambition, with angry passions, that 
 precipitated.it only a little time. The toiling millions of the 
 " free " States and of the world, wanted the fertile fields and 
 dense forests of the " slave " States, for tillage, as their treas- 
 ure. The teeming toilers of the world who make tlieir bread 
 
66 
 
 by " the sweat of the face," wanted elbow room. They must 
 have it. 
 
 In support of the correctness of this view, let the language 
 of (now) Secretary W. H. Seward, the foremost statesman of 
 this age, be cited, though it is less powerful than the evidence 
 of natural causes. It was in the Chicago Convention he said : 
 " There are the Southern States, with the finest territory on 
 the face of the earth, peopled by four millions of blacks. 
 That territory is wanted for the free white men of the North; 
 and those blacks must be put out of the way." 
 
 How benignant are the constraints resulting from the cause 
 here assigned as the only sufficient one that in reason could 
 liave existed to produce the war, to induce all in its endings 
 and its effects, to be impressed with and show forth right tem- 
 pers — they that come, to come with gentleness, and they that 
 are come to, to receive with kindness ! God gave His earth 
 to the human race to occupy and cultivate. AYhy should it 
 not drive away from all the spirit of reproach that lingers in 
 the other erroneously alleged causes of the war ? 
 
 The writer craves, in this retrospect, at the risk of being 
 considered egotistical, to bring up the fact that during two 
 years he did earnestly desire that the attempted secession, 
 though without cause and all wrong at first, might be success- 
 ful. It was whilst he thought freedom had failed and was 
 trodden under foot in the States that remained satisfied in the 
 Union. It did indeed look as if every barrier would be 
 broken down, as many were, by the incursions of usurped 
 power ; as once was the case, and by somewhat similar means, 
 in old England. The federal Congress in this country, as 
 Parliament in that, had in their terror enacted that the exe- 
 cutive proclamations should have the force of law. The con- 
 stitution seemed to be really undone. But soon in these 
 " Confederate " States, the like incursions of power made 
 gigantic strides which the writer strove to avert ; and his 
 value of the Union revived. It is now believed by him, that 
 in these American States, as in Great Britain, freedom will 
 on the first opportunity begin again to make its appearance 
 in health. Let the men in authority b© true to the constitu- 
 
67- 
 
 tion, and tlie people loyal to the Union, and freedom right 
 early will again rejoice. 
 
 Nor is that all of self, as the writer has been tempted by 
 the retrospect to say that much. The reason here, as elsewhere 
 when the writer refers to what he thought or did or did not 
 do, is that the interests of the public law and' of private rights 
 are involved in all such references, and he aims to advance- 
 them. At one time in the war, he urged the principle of tak- 
 ing no prisoners of the enemy's soldiers on our soil. That is 
 not the black flag which is execrable in his judgment. The 
 black flag covers cruelty to prisoners. The principle urged' 
 instead, is to take no prisoners of war to be dealt with as such, 
 but all captured unavoidably to be treated tenderly, with the 
 understanding that they must make haste to get out of the 
 country. It was urged for acceptance as calculated to stop 
 the war. Now that war is over, the same principle is repro- 
 duced as fit for the civilized nations, as more likely, than the 
 usages now and of late years in vogue, to prevent wars. It' 
 is but too well ascertained that the existing usages of so-called 
 civilized war, as if any war was civilized and not savage, are 
 utterly impotent to prevent wars. They do indeed but multiply 
 them. The reason of the principle urged as a good substitute 
 for those barbarous usages, is familiar in other forms. When 
 the animal in man, outstrips his reason, he can be held in 
 check, or driven back, only by some conduct of his antago* 
 nist which will impress his heart, or at the least his imagina- 
 tion, with consternation, and overmaster his roused passions. 
 By the civil law a man may, so as this principle proposes, give 
 no quarter to the invading foe who assails him in his castle. 
 Stricken down in his onset, he has no claim to assistance ; 
 and if still capable of renewing the assault, he may be law- 
 fully smitten again. When entirely disabled, though still 
 alive, he may lawfully be left to such succor as others than 
 him whom he had assailed, may chance to afford. And the 
 principle urged, besides its accord with the civil law, is only 
 the same principle in another familiar form of its practical ex* 
 pressioD, to wit, that the modern improvement of arms and 
 other munitions of war for human slaughter, is inclining the 
 10 
 
68 
 
 nations to avoid war. The writer's articles urging that princi- 
 ple during the war, just exactly as they were published in the 
 Petersburg Express, will show that he intended it in the inter- 
 ests of christian civilization, as well as for success in that 
 war. It is but too true to justify the remark, that, in all wars, 
 however and whenever prosecuted, the men in authority, and 
 those in command, have shown too little aversion to the shed- 
 ding of human blood. They have seemed to be more careful, 
 if otherwise careful at all, that it is not their blood, nor the 
 blood of their kinsfolk, that is shed. The writer deemed the 
 principle as he proposed it for practice, eminently likely to 
 be influential and effective in preventing national wars and 
 the inevitable waste of human life. He also published an 
 article in the same newspaper about the same time, expressly 
 intended to persuade both armies to withdraw from the en- 
 forced service, with their arms, and to repair to their homes, 
 and to take care that no more armies should be raised in 
 either section — which was said by some persons to be treason- 
 able to the South. If other persons did not, nor could, look 
 into the vast trouble, except in one of its magnificent points 
 of susceptibility and possible issues, it is to be regretted. 
 And now the writer says that if /u's right way for readjusting 
 the States in the Union, be in due time resorted to, the pros- 
 perity of this old State will ere long largely exceed any she 
 might ever have reached, with negro-slavery continuing to 
 exist. Whilst he sought, with all effort he could, to shield 
 that ownership from any violent disruption, he never desired 
 it should be perpetuated. He has often put in print his 
 opinion that it was " a pecuniary burden '' (in 1863,) and " a 
 blighting curse " (in 1832). As to other kinds of property, 
 and in every other respect, the writer desires to see the con- 
 stitution of the United States respected, and wherein its ex- 
 press provisions fail of apt application, its analogies observed. 
 In former years, the constitution was the object of the patriot's 
 admiration — the theme of the orator's praise — the subject of 
 the philosopher's delighted meditation— and the gushing 
 spring of the private citizen's security. Would that it may 
 a'j-ain and long give to every citizen that sense of assured 
 
69 
 
 security in all valuable rights of person and of property, 
 whicli alone can produce or sustain the proud sentiment of 
 freedom, or make a free people happy. All that, if justice be 
 done,* can be better accomplished without negro slavery, than 
 with it. Here on this phase of the immense troubles of the 
 times, I would raise the political Ebenezer of our State. I 
 would give no heed to them who say, forbear to discuss politics. 
 They do not digest the purport of the august subject. They 
 only have a vulgar inkling of its vastness. They surely must 
 think that politics consist in scrambles for office, on a theatre 
 where personal detraction, or abuse of officials, is the height 
 of the argument. With all such, the light of politics shines 
 in darkness, and the darkness comprehends it not. Indeed, 
 it is true that the witticism of Swift, when quoted as jf it was 
 meant for a slur on politics, is sheer nonsense. Not otherwise 
 than by the labors of the politician, have two blades of grass 
 been made to grow where but one grew before ; or one ear of 
 corn, in place of none. It is alone study and free discussion 
 of politics that ever produced society or developed its organi- 
 zation and economy. The laws the politicians make, are 
 necessary to encourage products of agriculture and of the me^ 
 chanic arts, and to secure the enjoyment of tbem. 
 
 Though the writer is so impressed respecting discussions of 
 politics, still on that most difficult problem of the future of 
 the negro, on this continent, he thinks it will be wise to take 
 heed unto the teaching of Tristram Shandy, where he says 
 that when the precipitancy of a man's wishes, hurries him on 
 in his ideas ninety times faster than the vehicle he rides in,- 
 woe be to the truth, and woe be to the vehicle, and its tack- 
 ling too, (let 'em be made of whatever stuff you will,) from 
 which he breathes forth the disappointment of his soul. The 
 recent events respecting the destiny of the portion of the 
 black race amongst us, have gone ahead of both the fears 
 and the hopes of the one side and of the other, on the sub- 
 ject of their continued slavery. ' The sudden event of their 
 
 *See President Liucoln'a annual message in 1862, on conipcnsatiou 
 for slaves set ffce. 
 
70 
 
 universal einaucipatioa amongst us, has oatrun the calcula- 
 tions of tlie wildest on the one side, and the firmest on the 
 other side. The power of the Union which was much valued 
 by many, as the surest support of the ownership, until by 
 some peaceful process it might he put au end to by degrees, 
 has, like a torrent swept away every vestige of title to the 
 negroes as a property. And now ihat the ownership has been 
 so swept away by the force oi arms as wielded by the admin- 
 istration of the government of the Union, the moral power 
 of that government, in the might of a milder statesmanship^ 
 as the rainbow after the storm gladdens and assures, must be 
 exhibited, or there is nowhere to find assurance, or promise 
 even, that these States will not be deluged by the mingled 
 shed blood of the races. May He in whom all things consist, 
 overrule that Union to show itself more valuable to the 
 States in ending, than it was. in defending, '' the peculiar in- 
 stitution." 
 
 "Whilst curiosity and interest — interest in a million of 
 forms — urge the investigation into the future of the negro, on 
 this continent, there are dark spaces which the eye of the 
 human understanding cannot see into. History, hitherto, has 
 exhibited but two examples : Where the blacks excelled, they 
 destroyed or drove off the whites ; and where the whites ex- 
 celled, the}' subjected the blacks to servitude. It is happily 
 for us to be expected, such so far having been the exemplary 
 conduct of the blacks, since their emancipation, that such a 
 destiny does not await either race. So civilizing has been 
 the bondage of the blacks, that, whatever other direction 
 under Providence the course of events may take, the one race 
 will e:icape bondage, and the other banishment or other bru- 
 tality ; and history bear a new record. Though the prejudice 
 of race might possibly be overcome in the belief that all the 
 human family had a common origin, still that other prejudice 
 of color, being constantly visible and incapable of being put 
 out of siirht, is ineradicable. The freedom of the black race 
 cannot silence that prejudice, much less remove it. As in the 
 North it has been, so in the Soutli it will be, that the repug- 
 nance of the whites to the blacks, is but increased by the 
 
71 
 
 ireedom of the latter. It has often been remarked that that 
 repugnance is most inexorable in the States in which the 
 slavery has longest been abolished, or never existed subordi- 
 nating a large black population. If law cannot compel, and 
 prejudice forbids, equality of these races, the result must be, 
 whilst they inhabit the same region, that contact will produce 
 collision. Such collisions will increase in frequencv and vio- 
 lence, until one party or the other is the master, unless the 
 contact be prevented. This can only be done, by the remo- 
 val of the one race or the other, from the inhabited region. 
 This can only be done by man's direct exertions, or bv the 
 operation of natural causes. Then, the best course for the 
 whites, is, under the influence of philanthropy or of selfish- 
 ness, to treat the negro with no violence, under color or cover 
 of law — to be patient and await the usually slower, but inva- 
 riably surer^ways of Providence Who works as man seldom 
 knovvs, until His purpose is displayed in the accomplishment. 
 The whites have their hands full, so exhausted are they by 
 the war, in assisting one another ; and yet they are willing 
 to, and will do no less than, extend to the blacks a benevolent 
 kindness in all manner of unavoidable intercourse, as well as 
 in engaging them in any services they are suited for at fair 
 wages — and a generous justice in fulfilling all contracts with 
 them for their services. 
 
 THE EIGHT WAY. 
 
 It is in the mind of the reader to ask why does the writer 
 persist in his right way? The answer is, because it is the 
 right way. But the objector rejoins that another way is 
 almost consummated. Not so fast, the writer must surrejoin. 
 The time is not yet, when that other way by provisional gov- 
 ernors, which President Johnson, with 60 much of good dis- 
 position that all admire it, has driven so far, should and may 
 be balked. That time cannot arrive, until the Congress shall 
 liave assembled. When it has assembled, the objector sug- 
 gests, it will be unwise in the Congress to undo so much 
 
72 
 
 filready done — it will bo annoying, not to say unjust, to the 
 South, some of the States in which will not only have in- 
 curred the costs of the election of members to the Congress, 
 but, much more, have held conventions and formed constitu- 
 tions, &c,, &c. It will be cruel to compel the South to run 
 the round of all that work again. If all that were necessary 
 to be done over, very much of which need not be jetouched, 
 however, still it would be wise to require it, and for the 
 special purpose, eVeu if it would serve no other than the 
 purpose, of making it known that, at whatever cost or incon- 
 venience, the constitution of the United States must be ob- 
 served. The new constitutions that will have been adopted 
 by State conventions, will not need to be retouched, if re- 
 publican in form, and within the reserved rights of the States. 
 It will be wise for the Congress to intervene to do its appro- 
 priate work and high duty, even in respect to the less valua- 
 ble consideration of the pecuniary costs involved ; because, 
 to make it known that the right way in this conjuncture, must 
 be pursued, will exert a salutary influence in preventing 
 other departures which are certain to be more expensive than 
 the regular course. For instance, consider the twenty-seven 
 hundred millions of debt incurred (whoever was at fault) by 
 the late departure from the right way, the chief wrong of 
 which, to wit, the dislocation of these States from their co- 
 operative labors and correlative benefits in the federal Union, 
 is all that is possible to be corrected. If the President with 
 the acquiescence of the Congress, may appoint the governors 
 of States and through them severally control all elections in 
 each State, why may not the Congress with the assent of the 
 President, or by a two-thirds vote overruling his veto, direct 
 the regulation of the right of suffrage m each State ? Bach 
 would do sio-nal violence to the constitution, and either usur- 
 pation would be quoted as a precedent for the other. The right 
 way would avoid both 
 
 If the right way is not pursued in correcting that wrong, 
 the government of the United States will receive a shock 
 tinder which it must stagger, and from which it -will likely 
 never recover. 
 
17 '■» 
 
 to 
 
 It is passing strange ; and can it be that the All-wise One 
 intends that the scheme of self-government, by written con- 
 stitutions and concurrent laws, made by representatives, by 
 liberal suffrage, by the people chosen, shall not succeed? 
 "What is it that is passing strange, which causes the distress- 
 ing doubt to spring, and almost have sway, whether what the 
 world has esteemed the most perfect federal system vocal with 
 popular freedom, can have success ? It is that the Press, the 
 foremost enlightener of the age, seems not to understand the 
 bearings of this great occasion. The Press, South, is bespat- 
 tering with its eulogistic strains the most signal departures 
 from the representative principle, as displayed in the Presi- 
 dent's plan for restoring these States, without bestowing one 
 thought expressed on the constitutionality of that plan, as 
 though indeed we had no constitution. It is not that they 
 do not understand that most admirable instrument that ought 
 to be (if I am in error that it is by this Press considered) 
 sacred. It is considered sacred by them, and yet they over- 
 look its injunctions, and jump over its limitations, to get, at 
 once, as the seeming interest of the hour suggests, back into 
 the Union. And the Press, North, with as little regard for 
 the constitution, is, in the main, opposing that plan, not for 
 the reason that it is unconstitutional, but because it stands out 
 boldly and bravely against their desire to defeat it for this 
 that it is not as unconstitutional as they would have it. They^ 
 insist that these States shall be constrained to give up the 
 right, they have always enjoyed, to regulate suffrage by de- 
 termining who shall be invested with that political privilege, 
 each State for itself, and no one, or all others combined, for 
 any other. That Press insists that Congress shall intervene 
 in this vital subject, to control the State. As none are so 
 blind as they who will not see, and the object here is so con- 
 spicuous that they who will open their eyes cannot fail to see 
 it and to discover the road to it, the conclusion must be, if 
 they do not find the right way, that they are smitten with ju- 
 dicial blindness. The Divine AVisdom would not so afiiict 
 them, unless it is His holy will to use them to sink the sys- 
 tem and for the good of the human race bring in some substi- 
 
74 
 
 tute. If this be so, my labor is in vain, and I am smitten 
 with judicial blindness. In my judicial blindness, if it so be. 
 He gives me, nevertheless, soundness of mind to say in devout 
 humility : His will, not mine, be done. • 
 
 Petersbukg, Sept. 22d, 1865. 
 
 There are certain questions of constitutional construction 
 that have long been in dispute, and it seems it would be well, 
 if they could be settled, so as to be understood by all men 
 eno-ao-ed in the public councils. I have for years bestowed 
 much study on those questions, and whilst I do not presume 
 that I can accomplish the object of getting a universal con- 
 currence in my views, such as there is that two and two make 
 four, still as there are some persons who cod fide in my views 
 of such subjects and have requested me at this time to express 
 my opinion on two of them, in the newspapers,* I have maae 
 up my mind to do so, not of my own motion, but at the re- 
 quest of other-^ whom I will not disoblige by declining. 
 
 1. It is in dispute whether a State Judge declared by the 
 constitution of his State ineligible to any political ofiice, may 
 be admitted to the seat in the Congress of the United States, 
 if elected by the qualified voters, and ascertained to be in all 
 particulars qualified as required by the constitution of the 
 United States. 
 
 On that question I am of the opinion to say that the Judge, 
 thouo-h he is ineligible, should, when he has been elected, be 
 admitted to the seat, if the requisite qualifications prescribed 
 by the Constitution of the United States are found to be pos- 
 sessed by him : notwithstanding he does not possess the. State 
 qualification. At once upon the enunciation of that proposi- 
 tion, most persons will say, that it is paradoxical. Most per- 
 sons will dissent at once, because they see on the surface that 
 the proposition is, that the man is ineligible, and still, if elect- 
 ed, may be admitted to the seat. Let such consider that our 
 
 * Parts of This article were fir&t published in the Petersburg Ez- 
 press. , 
 
75 
 
 system is complex, and not simple and single. Observe the 
 terms, if elecUd. In that expression in stating the proposition, 
 and in that act (<if making the election), is comprised the ex- 
 planation which relieves the proposition of its paradoxical 
 appearance. The election will have been in violation of the 
 constitution of the State, although the power to make it is 
 not inhibited t<3 the State by the constitution of the United 
 States. The power is not inhibited to the State, nor to the peo- 
 ple thereof, b}^ the constitution of the United States ; but the 
 people of the State by their State constitution have prohibit- 
 ed themselves from making the election. The Congress, not- 
 withstanding the State's interdict of its people to m.ake the 
 election, ought to admit the man who v/as recently a Judge in 
 his State, to the seat, when all tlie qualifications concur in 
 him, which are prescribed by that government, that is, by the 
 constitution thereof. Yet, he ought not to have been elected. 
 "Why not ? Because the State constitution forbids his eligi- 
 bility ; and the people, that is, the qualified voters in the dis- 
 trict, ought to have been governed by the organic law of the 
 State. No less ought the constitution of the State, which is 
 "\\& organic law, to be obeyed by the people of the State, until 
 it is altered b}- the people thernselves or adjudged by some 
 competent court of law to be repugnant and of no efieci;, 
 than ought the ordinary laws of the State, which are the acts 
 of the State's legislature, to be obeyed, until they are repealed. 
 The people have not a right to elect whom they please, but 
 such only as are qualified according to the laws. They only 
 have the liberty to elect such as are vfithin the law. It is in 
 this country, as Blackstone says it is in Great Britain : ''Sub- 
 ject to the restrictions and qualifications, every subject of the 
 realm is eligible of common right." It is only the selfish or 
 designing aspirants who will tell the people that they have 
 the liberty to elect whom the law disqualifies. It is only the 
 lawless who will suggest that the enactment of a regular leg- 
 islative body, be it the Congress of the United States, or a 
 State legislature, or a city council, may be disregarded by 
 any within its jurisdiction, until it is repealed or adjudged 
 vcid by the judicial authority — much less should the provi- 
 
 V! 
 
76 
 
 sions of a State constitution be neglected or violated. Each 
 house of the Congress is bound by the public laws of the 
 United States, and the q^ualified voters of each State, are 
 bound by its public laws. Then, the conclusion is that though 
 a citizen, a recent judge or other person, who is declared in- 
 eligible by his State, should be admitted to the seat after he 
 has been elected to the Congress, in every case in which he 
 is qualified as the constitution of the United States requires; 
 yet, no one who is disqualified by the State, ought to be 
 elected, because the law in force ouo-bt to be obeved. 
 
 In the same principle is the case of every one who is dis- 
 qualified to hold office under the Alexandria constitution 
 which is now being enforced in this State. The provision is, 
 in substance, that no one who was in " Confederate " or State 
 office, aiding in the late rebellion, shall hold office under that 
 constitution. Be it observed that the opinion has gained some 
 footing, that a member of the Congress, is not a State officer^ 
 though he is elected under the State's laws to serve the State. 
 Assuming, here, that he is a State officer, and it being then 
 clear that he is disqualified by the present constitution of the 
 State, the principle vindicated by this argument would require 
 that be should not have been elected to the Congress, but when 
 elected, if qualified in all respects as the constitution of the 
 United States requires, he should be admitted to the seat. 
 
 That doubt which sometimes prevails to the extent of gov- 
 erning the expression in acts of legislaton, is the cause of the 
 tautology in the third article in the Alexandria constitution. 
 That doubt, whether a legis.lative representative of the people, 
 is an officer, is admitted into that third article where it declares 
 that no person who held office under the " Confederate " or any 
 rebellious State government, and repeats or was a member of 
 the " Confederate " Congress or of any State legislature in 
 rebellion. The repetition implies that it was not certain that 
 a member of either legislature, lield officx. And yet that 
 doubt is rejected in the seve^ith section of the fourth article of 
 that constitution, as well as by the like section of the consti- 
 tution of Virginia ratified in 1851, and which is still tJie con- 
 stitution, if the State has not been out of the Union, by rea- 
 
son of the rebellion. Tlint doubt so admitted by the third 
 article, is rejected by the fourth, where it is declared that the 
 removal from his residence of any person elected to either 
 branch of the general assembly, " shall vacate his office.^'' So 
 plainly is a legislative representative of the people declared 
 in Virginia, to be an officer. And clearly and completely the 
 position of a member of any legislature., is an " office " which 
 means " a particular duty, charge or trust conferred by pub- 
 lic authority, or for a public purpose." It would seem to be 
 needless for legislators to be addicted to the circumlocution 
 the Alexandria constitution indulges and itself contradicts. 
 
 So much only on that question which is so fruitful of views 
 in support of the conclusion arrived at. The other question 
 is more difficult, though it is capable of as definite a conclu- 
 sion. 
 
 2. It is in dispute whether the Congress can, by a statute, 
 or in deciding a contested election, require, besides the oath 
 to support the constitution of the United States, another oath, 
 or any other oath, to entitle the elected to the seat. 
 
 I propose to give my views of this topic, by responding to 
 so much of a late letter from that distinguished gentleman, 
 Hon. John M. Botts, as relates to this subject ; and from which 
 I dissent. All Mr. B. urges to the effect that the enactments 
 of the Congress, including the impending test oath, ought to 
 be obeyed, until repealed or adjudged void, is incontroverti- 
 ble. The leading doctrine, however, of his letter, it seems to 
 me, has no foundation in our system, and is repugnant there- 
 to in all relations. Mr. B. cites and recites the third section 
 of the sixth article of the constitution of the United States, 
 which requires the oath to " support that constitution," and 
 also as positively prohibits any "religious test oath," for any 
 office. State or federal. He then says : 
 
 "Here, then, (in that section,) is to be found the prohibi- 
 tion, and the only prohibition, upon the action of Congress ;" 
 {to wit) " that no religious test oath shall be required." 
 
 Now, I apprehend, a single question will expose Mr. B.'s 
 misconception of the constitution. Has the Congress authori- 
 ty to require an o^th disqualifying every citizen, in other' 
 
7.8 
 
 respects qualified, who cannot or will not take it, to tlie efl'ect 
 that he had done no act since the war ended, adversely to ex-, 
 tending suffrage to negroes? That is not a religious tost oath, 
 it is understood. Wno will contend — will Mr. B. — that the 
 Congress has power to prescribe such an, oath disqualifying 
 all who will not take it ? Yet, his opinion and arguments 
 admit the existence of the authority in the Congress to do 
 that very thing, if only their wisdom and experience so sug- 
 gest* 
 
 The power to require such an oath on the subject of uegro- 
 suffrage, would enable the Congress, (should the President 
 assent, or should they overrule his veto,) to deprive the State 
 of its power to regulate suffrage. It would admit to sufl'rago 
 the negro, against the State's consent. 
 
 Mr. Botts adds, and labors to show, that " the true reading 
 of that provision, as it seems to hivi, is, that Con.gre?3 may 
 prescribe such othor <jnalifications a?v their wisdom and expe- 
 
 *It would seem, to be indisputable that the expressipna, of. Chief, 
 .Tustioe Marshall, in ^rcCullocli v.s: State of Maryland, 4Whfeatbii; 
 do not dissent from the view tak,*!n 'in .the text. He says :/;'yrhe 
 (iath which mi^^ht be exacted— that of fidelity to the constitution — ^ 
 is prescribed, and no other can bf*; reqiiivod.''' Bti!! he addk to that' 
 omphalic declaration,, what scenis tO; be a direct contradiction .;, try 
 wit, says he : " Yet, he would li!> chargc'l with insanity who should 
 contend, that the legislature" — that is, the.Oongresw— " raij^^ht not 
 superadd to the oath directed by t'le constitution, such other, 0iqs6;/i qf 
 office as its wisdom might sugget't." No otheroath than that sp'jcifiea 
 can be required, and yet such other oatii as wisdom may suggestji 
 may be superadded. The con trad iction will disuj)[)ear, and it caji^ 
 only be made to disap}>ear, when, Whether the membersiiip'ih a leg- 
 islative bQdy is an office, or nij(t, Jt is understood that .tl^e oath of 
 fidelity in the dischaiu'e of the duties s>f the office, is sir.iply, no 
 more or less than, neither beyond nor sliort of, but exactly equiva- 
 lent to, the oath of fidelity to" th-e constitution. In thisyiew, let it 
 be observed that the superadded' oath would not in su bst a I'rce impose' 
 any additional obligation. Only tha^f©rcpS;Would be variedvand tliie 
 only good effect, if "any goc>'l purpose is served, wouhl be in the fact 
 that by the varied form of the oath, the attention is directed to th€S> 
 particular duties of the oiBce- And le^iij be observed, that the oath 
 of office — such only as an oath of office "ought to'be— ^au'd according 
 to the meaning of the wortHs'', to utmost latitude — signiflea thit the 
 l>arty will, in exercising the office, ir^ discharging its duties, be, 
 taitliful to do all the law requires fcH'b^'ddhe ih\he ])Osition. The' 
 oath of office does not comprehend theJdea that the past conduct of 
 the party, has all been consistent with, or that no act of his past 
 life is inconsistent with, the nature of the duties of the office to 
 which he is assigneel, or the character of hhw who, whilst he is fill- 
 ing it, must show a conduct adapted to the abstract integrity of the 
 trust. 
 
r- 
 
 
 
 rience may suggest," ko,, in addition to those expressed in the 
 constitution, so only that it is not a religious test oath. It 
 seems to me, that the Congress, in the light of the principle 
 of construction which I will presently indicate as conveying 
 my argument, has not the power to impose (and its exercise 
 would be an imposition, indeed, of any) such additional quali- 
 fications as circumstances may arise and prompt them to pre- 
 scribe, ivhilst the constitution is unaltered. The practical ex- 
 tent of the authority of the Congress, is that they shall see 
 to it that no man shall be admitted, unless the qualifications 
 ^vhi.chare prescribed, do all concur in him. If not to prohilKt 
 it to the Congress, gives the authority to impose disqualifica- 
 tions, then the constitution of the United States is not com- 
 posed of grants of power, as all parties have hitherto conced- 
 ed it is, but it is, in that view, an, instrument comprising ple- 
 nary powers unrestricted by reservations to the States or to 
 the people, and unlimited, except only wherein the limitation 
 is. ex pressed. If tbat be so, then it is conceded that the con- 
 stitution of the United States is an exclusive arbsorption of 
 the entire system, rejecting State rights, even the right to, 
 regulate suffrage. That the legislature of a State may fix the 
 representative age. and prescribe the anti-dnelling oath, (to 
 both which Mr. B. refers, and the authority, to do which, I 
 apprehend, he most erroneously derives from that section 
 which he claims confers such large power on the Congress, 
 on , the contrary,) is manifest in this that the power to do those 
 1;^ings remains with the States, because it is not prohibited to 
 them by the constitution of the United States. By reason of 
 the absence of such prohibition, the, power to fix the repre- 
 tentativQ's age and to prescribe the anti-duelling test oath, is 
 expressly "reserved to the States respectively." * 
 
 The specific grant the tigction conyeys, is, to require an 
 oath to support the constitution of the United States. The 
 specifiic express prohibition is that no religious test oath shall 
 
 , . -. , . _; ...ll V __ ^___ . 
 
 *Thongh much of this is in fornier f)ages, I trust it will be accep- 
 table to t^ie reatler, wlio. will .tind some thoughts expressed hej;e< 
 that are not embraced "in the foregoing reference to tlie same subjects* 
 
80 
 
 be required under the United States. It niaj be construed to 
 prohibit a State's omission to require its enmerated officers to 
 take the oath to support the constitution of the United States. 
 It may also be construed into a prohibition on the several 
 States to require of their officers in the home service, any re- 
 ligious test oath. This has always been a received construc- 
 tion. The specific grant to require one oath does not cover 
 another, unless that other is both proper aud necessary. The 
 purpose is to bind the member by oath that he will support 
 the Constitution of the United States. To effect that, it is not 
 nicessary that he has always supported it. Such was the con- 
 temporaneous exposition and has been the uniform practice, 
 as the invariable form of the oath attests, to wit — "You swear 
 that you will support the constitution of the United States " 
 — and it is not, nor ever was, that the affiant always, or during 
 any given past time, has supported it. 
 
 . Using the language of Senator Benton — "The States, being 
 original sovereignties, may do what they are not prohibited 
 from doing ; the federal government, being derivative, and 
 carved out of the States, is like a corporation, the creature of 
 the act which creates it, and can only do what it can show a 
 grant for doing." Now, thi^ grant from the States is simply 
 to require an oath to support the constitution of the United 
 States. Of course, a requirement of any other oath, even 
 that the party, in the past time, always, or at any period, sup- 
 ported, or did not by any act oppose, that constitution, is out- 
 side of the grant, and aggrieves the genius of the government 
 of limited authority. If the utmost extent of the grant, is 
 not the exact measure of the authority, then there is no stand- 
 ard or steady rule — no bounds of the poAver to be exercised, 
 but the unbridled will of the dominant party. 
 
 It would be difficult to bring the requirement of any other 
 oath, under the cover of a curious distinction which some as- 
 tute conductors of the Press have at sundry times sought to 
 impress. They assert by the terms they use to state the 
 shadowy thought, that there is a difierence between enact- 
 ments that are exira-constitutional, and yet not «?iconstitu- 
 tiODal. Now, extra and un denote the game negutioD. The 
 
81 
 
 one is Latiu — the other Saxon — that's all. Each is a prefix 
 of negative significance. Extra means beyond, and im not 
 within; and if the act of legislation is beyond, it is not with- 
 in. It is a distinction without a difference, and is the more 
 exceptionable, because it seeks to escape the substance of 
 usurpation, and to hide itself in the shadows of authority. If 
 authority is needed in support of this view, that which is very 
 high is at hand to show that extra is equivalent to un or not. 
 Lord Chatham said, of Lord Mansfield's discourse on the mo- 
 tion in arrest of judgment in Woodfall's trial, that that dis- 
 course was "irregular.extra-judicial and unprecedented" — that 
 is, not judicial. 
 
 The requirement that "the members of the State legisla- 
 tures," and the other State officers enumerated in that third 
 section, shall be " bound by oath or affirmation to support 
 the Constitution of the United States," is not a a prohibition 
 on the State to prescribe other qualifications for the officers 
 from the States to serve in their general government. If the 
 power of the State were derived from that third section, then 
 in the many cases of State offices, in which the Constitution 
 of the United States prescribes no qualification, the State 
 could prescribe nOne. Then, indeed, the demagogue could 
 ply his appeal to the popular passion to enjoy their liberty to 
 elect whom they please, and lay it on with success to the ut- 
 ter ruin of regulated liberty. 
 
 This subject is serious enough to justify an appropriation 
 of the language of the Scriptures : Strait is the gate and nar- 
 row is the way, tjiat leadeth unto the constitutional authority, 
 and few there be, of late, who find it. Whilst no portion of 
 the people should elect any whom the constitution of their 
 State disqualifies ; still it is the duty of the Congress to ad- 
 mit whom the United States constitution does qualify. The 
 Congress has no authority to require any oath, except the 
 one "to support the constitution of the United States." The 
 State retains the power to require any oath, except that they 
 are prohibited from requiring any religious test-oath. These 
 strait gates must be entered at, and the narrow paths be trod, 
 by the majorities in j^ower, in the appropriate spheres, or other- 
 
82 
 
 wise our system cannot be preserved. It may, otberwise, be 
 patched up for a time, but before long it will perish. How 
 melanchoh^ it is that they who have done the South most 
 detriment, have been of her own immediate household.' How 
 deeply it is to be regretted that prominent men of the South 
 should, at any time, and especially just now, express the 
 opinion that the Congress has authority t^'plresCribs ttw?/ (biit 
 a reli'j-ious) test oath. As limits are set to Thd^'eik'etcise Of 
 power, for the protection of mindrities, the' Sbtith 'snr'ely 
 should not fail in exercising the- privilege of free' debate, to 
 insist that the constitutional limitations shall be respect bd. 
 How injudicious in any to assert or assent to the proposition 
 that as the reins are in the hands of the' Korthj the South 
 should fold up her arms and close her lips and utter not a 
 word of remonstrance, or expostulation, or argument. Any 
 abstinence from the frankest and most earnest sugo-c^tions df 
 facts or of logic in support of our I'ights, implies a belief thalt 
 the representative men of the North have souls too frigid to 
 conceive or too narrow to nourish noble or just sentiments. 
 For one I do not concur in the ungenerous rejection. They 
 who counsel such abstinence from free expressions in support 
 of our constitutional rights, on the ground that we are in the 
 hands of the North, as clay in the hands of the potter, do 
 not tell us how we can or when we will get out of their power 
 of numbers over us. They seem not to know, or if they 
 know, not to remember, or if they remember the fact, not to 
 be animated by its knowledge, that there is a vast difference 
 between a determination to obey the existing laws, so long as 
 they do exist, and that other-disposition in derogation bf ele- 
 mental rif>-hts of freedom, to let lawless enacimehts remain in 
 the existing form.s of law exacting obedience thereto in utter 
 abandonment of constitutional reservations. The South, the 
 ■whil6 obeying the laws and seeking their correction and re- 
 duction to the right standard, should shake ofi" the dust of the 
 dirty grave in which the late elections have buried her dig- 
 nity, and a portion of the public Press by its course is threat- 
 ening to inter her honor also, and stand forth boldly for her 
 ri^irhts under the laws, not as the laws arc, but as they should 
 
)0 
 
 be. How unlike is iheir counsel, to that of Junius, who, dedi- 
 cating a collection of his letters to the English nation, exhort- 
 ed and conjured them " never to suffer an invasion of their 
 political constitution, liowever minute the instance might ap- 
 pear, without mahing a determined, persevering resistance." 
 Postscript. — A part of the argument of Mr. Graham, of N. 
 Carolina, has come under mj eye this date (Oct. 18). It is 
 not agreeable to dissent from so able a man^, especially when 
 his views of the test oath concur with my own. The question, 
 however, is so important that I expect to be excused for con- 
 troverting his opinion on one topic. If I do not misconceive' 
 him, he insists that an enactment of Congress may be disre- 
 garded, if believed to be unconstitutional. AVho is compe- 
 tent to determine its conformity to the constitution ? Can 
 any tribunal but the body itself or the Supreme Court ? If 
 so, what other appeal is there in the case ? Admitting that 
 there is no way in which the applicant can compel the branch 
 of Congress to which he has credentials, to allow him to take 
 the seat, it would only show the fact that the constitutional 
 provisions are imperfect. Admitting that the case is incapa- 
 ble of being presented to the supreme court, so that it might 
 adjudge the test oath void for want of constitutionality, or 
 might command an admission to the seat, and yet that would 
 not show that the system is inadequate to a correction of the 
 supposed departure in requiring au unconstitutional test of 
 membership. The Congress may repeal the law which they 
 had improvidently enacted. The admission of the man to 
 the seat, whilst the enactment is not formally repealed, would 
 be a virtu9.1 repeal in the particular case ; and that, it is sup- 
 posable, would be done in any case in which one branch of 
 the Congress would decide that the enactment was unconsti- 
 tutional which prescribed the religious or other test oath, the 
 other branch dissenting and insisting it shall remain in the 
 forms of law. But suppose the Congress will neither repeal- 
 the test, nor will either branch admit a man elected who will 
 not take the oath, it will be in vain that the whele body of 
 the electors shall, though never so deliberately, have sent up 
 the man deemed by the "body, inadmissible. Yet, for all that, 
 12 
 
. 84 
 
 it is only au inconvenience, of the same sort, and differing 
 only in degree from tlie Avaut of representation, by the death 
 or the expulsion of a member, during the interval until the 
 vacancy is filled. The greater inconvenience, if the Con- 
 gress will persist, can be remedied by the recurring elections, 
 until the body in both branches is renewed of numbers who 
 ivill formally repeal the obnoxious test. It were better that 
 any portion of the people should be subjected to that incon- 
 venience for any length of time it could possibly exist, than 
 that the doctrine should be received and acted out that enact- 
 ments, by competent legislative bodies, may be disregarded 
 before they are declared of no effect by the constituted au- 
 thorities. 
 
 To be more explicit, having thus repelled the sentiment at 
 large which asserts that an existing enactment, though never 
 so plainl}^ unconstitutional, may be disregarded, and to do 
 exact justice to Mr. Graham, as respects the point on which 
 alone I dissent, he shall here state it as it is in his letier. He 
 recites the oath which, as it is, is to the effect that no one who 
 bore arms in or countenanced the late rebellion, shall ever 
 hereafter be elected or appointed to any office in the general 
 government. Admitting, as he does, that whilst the enact- 
 ment remains in the forms of law, it does exclude from office 
 the nineteen-twentieths who but for the oath would be eligible, 
 Mr. Graham, on the point of our disagreement, still states it 
 thus : "A formal repeal of this law, is not necessary to render 
 it nugatory, so far as relates to its effect on the members of 
 Congress." Mr. G. then proceeds to enumerate instances. 
 
 I have conceded in the general argument I have made 
 against the sentiment (which is but too prevalent in favor) of 
 allowable disregard of existing enactments thought by the 
 public or by distinguished men, before being adjudged, to be 
 unconstitutional, that where one branch of a legislature, at 
 any session after the enactment, shall consider it ought to be 
 repealed, it will be apt to regard it as of no force, in the act 
 of organizing the body, even without proceeding to ascertain 
 whether the other branch will concur in the repeal. It might 
 80 happen that men in the same class—on the same footing 
 
85 
 
 of legal ineligibility — would be admitted into one branch, and 
 excluded from the seats in the other. This disregard of the 
 law would eagerly seek to find excuse in the fact that " each 
 house is the judge of the elections and qualifications," of its 
 own members. But each is the judge, under (not above) the 
 law. This judicial power would not show, in the supposed 
 case, that the disregard of the law would be justifiable. In 
 point of fact, and to the eye of the law, it would be a demon- 
 stration to the contrary. It would show the one house in 
 factious opposition to the recorded concurrent judgment of 
 both. Just such, in the moral aspect, at the least, were the 
 cases of Missouri and New Hampshire, as quoted in Mr, G.'s 
 letter. In the teeth of the decennial act of 1842, the house 
 of " represcmtatives admitted members elected by general 
 ticket, whilst the act required they should have been chosen 
 by districts in each State. That was simply a disregard of 
 the law; and Mr. G. says so in terms by stating truly that "a 
 majority determined to disregard the law," and did admit the 
 men presenting credentials of election by general ticket, which 
 was the manner of election the law interdicted. That is all 
 that Mr. G. could have said, or any one can say, justly, of that 
 or any other neglect of an existing enactment which is the 
 law, until it is annulled by the competent authority, that is, 
 by repeal or by adjudication : to wit, that it was a disregard 
 of the law. So, the examples cited by Mr. G., as any others 
 that might be, that a formal repeal is not necessary to get rid 
 of a law, only prove a disregard of the law. Then, we are 
 remitted to the question whether it is allowable to disregard 
 the law. The argument that it is not necessary in our system, 
 returns in its majestic strength, and re-asserts that any mis- 
 chief or inconvenience, if not otherwise regularly corrected, 
 may be removed by the popular elections recurring at short 
 intervals. If there were no remedy, it would not show that 
 the law ought not to be the existing rule. It would only 
 show that the system has not reached perfection and ought to 
 be improved. 
 
&3 
 Tilt Co'iisfiiutional Power of Pardon. 
 
 Petersburg, Nov. 15tb, 1865. 
 
 It is curious enough that Mr. Seward's instructions to the 
 United States Minister at the Court of France, is somewhat 
 cited as an anthorit}^ in support of relief from confiscation. 
 The relief is invoked with the understanding, and to advance 
 it, that the Proclamations issued by the Presidents, Lincoln 
 and Johnson, are effectual, and that the intended benefit must 
 be enjoyed, independently of any exercise of authority by 
 the courts. Now, whatever there is in those instructions, it 
 is to this extent, and no more, thai, the judiciary of tJie United 
 States is a co-ordinate department. The instructions say that 
 should the President attempt an unconstitutional act, '-he 
 would be prevented by the judicial authority, even though 
 assented to by Congress and the people." If, then, the Presi- 
 dent has done the unconstitutional thing of granting pardon 
 with restoration of all rights of property, before conviction — 
 before the persons pardoned are ascertained to be offenders — • 
 may not that unconstitutional thing he prevented hy the judicial 
 authority ? May not the independent court proceed to confis- 
 cation ? After that, the co-ordinate power hitherto of the 
 court, would be at an end ; and then, but not till then, the 
 executive authority might interpose — as would be well and 
 wise it should. All acts, of whatever sort, are best in order. 
 "Were Congress to repeal the confiscation laws, still the judi- 
 cial authority would have jurisdiction of cases already arisen 
 under the laws whilst they were in force. He that would be 
 just must be logical. 
 
 A few observations of a more general nature may be sea- 
 sonable. Blackstone says that a reprieve may be granted 
 before or after judgment. Wliilst that learned commentator 
 does not say that pardon may be granted before conviction, 
 he does say that the court is bound to take notice of it ex 
 officio; just as it is, however, of any other public law: and 
 hence it is that the King's cii-irter of pardon must be brought 
 to the knowledge of the court by special plea. Then there is 
 ftQthing in the authority quoted to show that the party sup- 
 
87 
 
 posed to be v.n otlendcr can avail himself of a. general pardon, 
 until lie is at least put upon his trial- 
 There is much looseness in Kent and Stor}^, and the " Fed- 
 eralist," on this topic of the prerogative of pardon. They 
 saj the power of pardon, in the President, is unlimited — gen- 
 eral — unqualified — except in cases of impeachment. Is such 
 the true construction of the grant of the power ? The lan- 
 guage of the constitution is, jJ^rdons for offences against the 
 United States. The limitation is twofold. There must be an 
 offence, and it must have been committed against the United 
 States. Nor is that all. The oftence itself is not pardoned, 
 but it is the o^ender to whom the pardon must convey a re- 
 mission of the penalty annexed. When does the penalty 
 attach ? On conviction, and not before. The offence and the 
 offender must be ascertained and identified, and this can only 
 be done judicially, whenever, as in American governments, 
 Story says not more aptly for another purpose, " there is a 
 separation of the general departments of government, legis- 
 lative, judicial, and executive, and the powers of each are 
 administered by distinct persons." Indeed, in all the Ameri- 
 can authorities, there is but one statement, (so to call it,) which 
 goes to show the opinion of commentators to be that pardons 
 may be granted before conviction or arraignment, and this 
 partakes more of the looseness of the demagogue, than the 
 accuracy of the jurist. That is as follows : " The principal 
 argument for reposing the power of pardon in the executive 
 magistrate in cases of treason, is, that in seasons of insurrec- 
 tion, or rebellion, there are critical moments when a well- 
 timed offer of pardon to the insurgents, or rebels, may restore 
 the tranquility of the commonwealth." Does that declama- 
 tion outweigh the solid view by which Story repulsed Black- 
 stone's slur that "the power of pardon cannot exist in a 
 democracy" — to wit: that the legislative, judicial and execu- 
 tive department each has its appropriate duties assigned by a 
 written constitution, imposing limitations on each! Logic 
 forbids it. 
 
 It is salutary and wise, as Story argues, that the power of 
 pardon is confided to the executive, and for the reasons he 
 
88 
 
 assigns, and others ; and It is a lovely power in its exhibition, 
 of clemency. It is a salutary power, with promptness, as a 
 single executive may, to bring to quiet the turbulent m the 
 act of their violence. But, then, nevertheless, it is, in this 
 instance, by the constitutional prescription, only and not be- 
 yond, a 2^romise of pardon, and to that extent, and in terms, 
 the presidential proclamations to persons in rebellion should 
 be — that if they will at once desist, though convicted there- 
 after, they shall be pardoned. Why the trial, if pardon cer- 
 tainly is to follow conviction ? asks the advocate of exercis- 
 ing the power before conviction or trial. The answer is 
 obvious. The violators of the peace of society should be 
 made to feel that they shall not go to what lengths they please 
 with impunity, and stop just there, and be held to no account. 
 The sound view v/as expressed the other day, by President 
 Johnson, on the occasion of the presentation, by a deputation 
 of twelve of the fifteen thousand women in Baltimore, of 
 their petition for the pardon and immediate release of Mr. 
 Jefferson Davis, when President Johnston said to tbem : the time 
 is not yet come for me to he magnanimous. Yet, why not in the 
 case of Mr. Davis, as well as in others ? The occasion craved 
 the interposition of the just sentiment, that as the obscure are 
 equal to the more distinguished, in the rights of freedom, so 
 also by the law each class is alike liable to its penalties. The 
 President was not governed by prejudice, and he surely will 
 not reply that the law may be made void, or have effect, as 
 the policy or the passions of the day may decide. The spirit 
 of the law was exerting in him its inculcation and controlling 
 influence. 
 
 All whatever that has been alleged in conflict with this 
 view, to wit, that the power of pardon conferred by the con- 
 stitution on the President, consists in and is confined to cases 
 in which the parties have been judicially ascertained to be 
 offenders, and the punishment by regular trial according to law 
 has been awarded, is, and only this, that the party, at large, 
 who petitions the President for a pardon, thereby confesses 
 that he is an oftender. It would seem to be enough to say, 
 in reply, that such groimd of defence of the exercise of tlie 
 
81) 
 
 power before tlie party is judicially ascertained to be an of- 
 fender, or, at the least, before being put on trial, is in conflict 
 with a fundamental principle of criminal jurisprudence, to 
 wit, that a confession is not admissible as evidence upon a 
 trial, unless it was voluntary. If induced by fear or the flat- 
 tery of hope, and, especially if made in the presence of a 
 person in authority over the prisoner, or any party liable to 
 arrest, because under suspicion, the confession is not admissi- 
 ble. In the ground taken in suppt rt of the pardoning power 
 in the President, before a trial, both conditions concur, either 
 of which would be enough to exclude the confession as evi- 
 dence of guilt. The party petitioning is influenced by the 
 flattery of hope, and the extorted confession is made to the 
 man in authority who dispenses the pardon. In illustration 
 of the soundness of the view denying the power, the fact is 
 notorious that many, under the influence of fear, have peti- 
 tioned for pardon, who needed no pardon, and many more 
 who were pardoned already. 
 
 What says DeSolme, of the king's power of pardon ? It is 
 that " he can pardon offences, that is, remit the punishment 
 that has been awarded in consequence of his prosecution." 
 We should not let the lessons of old England's experience be 
 lost on us, which tell us that there is no better way of build- 
 ing up the royalty of executive power, than by encouraging 
 proclamations from that department in this country. It was 
 said more than eighty years ago, that the "star-chamber dif- 
 fered from all the other courts of law, in this : the latter were 
 governed only by the common law, or immemorial customs, 
 and acts of parliament ; whereas the former often admitted 
 for law the proclamations of the king and council, and 
 grounded its judgments upon them. The abolition of this 
 tribunal, therefore, was justly looked upon as a great victory 
 over regal authority." 
 
 The writer knows of no authority, in the way of judicial 
 decision, in England or America, to justify the exercise of the 
 power of pardon, with or without restitution of rights of pro- 
 perty, before trial. The caseof A'm^f vs. Amery, ii. T, Reps., ad- 
 judicated the question of the power of the crown to |)ardon a 
 
90 
 
 forfeiture and to grant restitution to a corporator wliose riglits, 
 ■whatever they were, of course, were derived to him by the 
 specific provisions of tlie act of incorporation. The case of 
 the United States vs. Wihon, in which Blackstone is quoted, 
 as above, is simply a case of extra-judicial opinion. The 
 question was not before the court, to decide whether the court 
 was bound to take notice of a general pardon which was not 
 before the court by special plea in the case. The facts were, 
 in this case of Wilson, that the pardon referred to was ex- 
 pressly restricted to the sentence of death passed upon the 
 defendant under a former conviction. — So there is nothing in 
 those cases, and there is no other, touching the controverted 
 power of the President to pardon a party before he is put 
 upon his trial or regularly charged with an offence. 
 
 Two observations shall conclude all the writer desires to 
 urge for consideration on this subject. The law of Virginia 
 is that no person shall be pardoned hefore conviction, wnich 
 excludes that idea so much relied on, in the public talk, that 
 a person's petition for pardon is a confession of guilt, and suf- 
 fices as the foundation for an exercise of the pardoning pow- 
 er. This is of a sort with that other loose notion of the 
 commentators, that the power is confided to the executive, be- 
 cause he can act more promptly than a legislative body, and 
 therefore may grant a pardon and prevent a trial; The con- 
 fession is extorted by the prospect of pardon, and is not fro::i 
 contrition, is one of the observations I deem important to re- 
 peat ; and the other is that the executive proclamation to 
 insurgents, ought only to be a 'promise to such as will at once 
 desist, that they shall be pardoned, aftel being brought by 
 the government's prosecution to conviction. 
 
 The writer has here expressed these views of the power of 
 pardon, not with any desire that any thing, in this connection, 
 President Johnson, in his admirable magnanimity, has done, 
 shall be reversed, but with the hope that, as far as they are 
 just, they shall exert their appropriate influence on future oc- 
 casions, in shaping the legislation under, and the administra- 
 tion of, the government of the federal Union. 
 
, ' 01 
 
 The next Congress — The Constitution the SoutKs safest Guide. ■ 
 
 Petersburg, Nov. 4, 1865. 
 
 It is a mistake that is not unfrequently made, that they only 
 who have a duty to discharge officially, have a right to express 
 opinions how it ought to bo discharged. It is true that any 
 one who undertakes to declare how another shall discharge a 
 public duty — in which every citizen has an interest and a 
 right to speak — ought to show that he understands the sub- 
 ject. Nor is th#t quite all. The official, high or low, who is 
 advised in the right lomj to desist from any mode of accom- 
 plishing a good end, ought to desist and to adopt the better 
 way advised by any citizen. Under the guidance of these 
 and like sentiments which it would be tedious to enumerate, 
 I have lately exercised my right to suggest how I think the 
 late rebel States ought to be brought back into their regular 
 working in our federal Union. I am gratified to see the Clerk 
 of the House of Eepresentatives concurs in my views. Amono* 
 other letters that I have had the honor to receive respecting 
 the pamphlet I have lately issued on the subject, there is one 
 from as pure a patriot and as firm a Southern man as any that 
 breathes or has lived, who writes me in these words touching 
 the point in agitation : 
 
 "I agree with you very nearly, if not altogether, in respect 
 to the most republican and constitutional mode of re-estab- 
 lishing" our Union relations." 
 
 Sooner after the end of the war, than any other person, 
 when, of course, I did not have the light of any suggestions 
 from any quarter, except the light shed on the subject by the 
 Constitution of the United States, which was my sole guide, I 
 ventured to develope that plan for reviving our Union rela- 
 tions. It is founded, as the reader has seen, on the provision 
 in that constitution, that the Congress of the States in the 
 constitutional concert, may by law alter or make the regula- 
 tions for electing th^ members thereto, from any State that 
 has refused, as all in the rebellion did refuse, to renew their 
 congressionol representation. Now, then, is the time for the 
 Congress to act by a law to fix the times for making (^.l^pge 
 elections. 
 13 
 
92 
 
 On an aspect of tlie subject just beginning to be developed, 
 I will Here express my opinion. 
 
 It was a wise precaution in tlie House of Eepresentatives 
 to arm its clerk with authority to put on the roll of members, 
 such only as have proper credentials. That does not make the 
 clerk the judge to determine who is entitled to be the sitting 
 members. It only charges him with the duty of judging who 
 shall participate in organizing the House. In the New Jer- 
 sey case, in which the contestants were not called in organ- 
 izing the House, the clerk was sustained, altliough there was 
 not, as there now is, a positive law to regulate his conduct. If 
 that preliminary authority was not lodged somewhere, and 
 no where can it be more under the control of the House, than 
 in the clerk, men might get in, and, in organizing, defeat those 
 entitled to be the sitting members. It is manifest that the 
 present clerk takes the right view of the act of March 3, 1863, 
 wherein he "regards it as requiring that the elections shall 
 have been in accordance with the laws of the States respect- 
 ively, and of the United States. If that were not so, then the 
 ratio of representation might be disregarded to the extent of 
 a State's sending up twenty, instead of any smaller number, 
 to take part in organizing the House. The matter is too 
 plain for debate. The House, by that act, was intending to 
 protect itself. Certainly, however the disjunctive or has crept 
 into that act, it is out of place. It would, if it were meant to 
 be there, disjoin the House from the laws itself had concurred 
 in making. Instead of protecting itself, it would, by using 
 terms allowing the alternative of complying with any but its 
 own laws, open a door for occasions of subordinating itself to 
 the laws of a State. But let it be that the Congress intended 
 the alternative that the laws of a State might govern and be 
 obeyed in derogation of its own, and still the clerk is right, 
 because there are as yet no laws in the States lately in rebel- 
 lion, which authorize elections to the Congress, nor can be, 
 until the Congress shall give vitality to their enactments. It 
 is alone the Congress that can clothe these States with "change 
 of raimant" — even with the festal robes of Federal service, in- 
 stead of the cast-off garments of rebellious State "sovereignty." 
 
93 
 
 I have not failed to see the eagerness of the people in the 
 South to have civil law restored, and I unite in that earnest 
 desire. Still I believe that the dignity of the State is sunk 
 in making, and will yet, I fear, be lowered more by insisting 
 on, elections without first being authorized by the Congress. 
 Nor have I failed to see that under the ill-judged counsels of 
 the newspaper press in the South, our people are likely to 
 consider the rejection of the lately elected members to the 
 Congress of the United States, as a great grievance to the 
 South, and an act of Avhich the South will have just cause of . 
 complaint against the North. My object has bpen, and will 
 be, by all the means I can, to convince the people of the South, 
 that the refusal by the Congress to admit these men to seats, 
 is the constitutional duty of the Congress, and the highest 
 measure of safety for the South. The firmest safeguard of 
 the South is a strict observance of the constitution ; and any 
 complaint in the South against the North for adhering to the 
 constitution, ought to be prevented, if possible. It is better 
 we should stay out of the Union, in the way of having no 
 representatives in the Congress, for five years to come, than 
 that the constitution shall be violated in admitting them. 
 What is it, but that power, which constrains the President to 
 declare that the right to regulate suffrage is a right the people 
 of the several States comprising the Federal Union, have 
 righteously exercised from the origin of the government to 
 the present time ? It is alone that constitution which is so 
 thoughtlessly said to be dead and buried, that is that constrain- 
 ing power justifying the President. There is no other bar- 
 rier encountering the flood of arbitrary power. Let that bar- 
 rier be broken down, and where is the resort or the appeal of 
 the people of the South ! And still, (how strange it is !) the 
 people of the South are ready to say that the North is unjust, 
 revengeful, and what not, if any plan the quickest, however 
 * unconstitutional, to bring in the reign of civil law, shall be 
 rejected by the North in Congress. For one, I will not join 
 in that injustice. 
 
94 
 
 The Writ of Habeas Corpus. 
 
 Petersburg, Nov. 24th, 1865. 
 
 In all the legislation in the federal or the " Confederate " 
 Congress, none was more alarming to the friends of civil liberty, 
 than were the laws sus{)ending the privilege of that writ. In 
 the Senate of Virginia, where this writer was during most of 
 the war, he devoted much of his labors to prevent the suspen- 
 sions of the writ, in which, in concert with others, he had 
 some success, and in preventing the trial of civilians by 
 courts-martial, in which last it was his fortune, after a severe 
 strugo-le, to have complete success. The writer had occasion 
 • there to make speeches in which it was his object to define 
 what is the privilege, and what is a constitutional suspension, 
 of the writ ; and to argue that it ought not ever to be sus- 
 pended. He will insert here an extract from that definition 
 and argument. 
 
 EXTRACT : 
 
 I therefore renew the inquiry, what is that privilege f It 
 is the right of the party in custody, to have the summary 
 judgment of the law of the land, upon the alleged cause for 
 the restraint of his personal liberty. The award of the writ 
 to the petitioner, by the competent authority of the court or 
 the judge, is to the efiect that the prisoner shall not absolute- 
 ly be detained to await a trial in the regular course of law, 
 but shall have an earlier opportunity to be confronted with 
 the witnesses against him, in order to prove his innocence, or 
 that there is at most against him onjy a light suspicion. The 
 principle of the criminal law, that the accused, on, his trial, 
 is presumed to be innocent, until his guilt is proved, is re- 
 versed, and on this summary hearing which the award of the 
 writ secures to him, he is presumed to be guilty, until he 
 proves his innocence, or that there is only a light suspicion 
 of guilt against him. In the one case, the accused will be re- 
 leased ; in the other let to bail — and if he can establish neither 
 his innocence, nor a light suspicion only, he will be" remanded 
 to the custody from which he was taken by the award of the 
 ••writ. Such is precisely the privilege. A suspension of the 
 
96 
 
 privilege, then, hath this extent, and no more, that the party 
 held in custody, is compelled, in virtue of his arrest, to await 
 in prison the regular trial appointed by the law. The sus- 
 pension of the privilege does not deprive the prisoner, of the 
 right to be regularly tried, but simply withholds the quicker 
 hearing and decision of his case. But a practice prevails 
 which makes void the constitutional assurance of a speedy 
 trial by jury, and usurps a control beyond what the amplest 
 lawful suspension of the privilege of the writ, can confer. 
 This practice denies any trial at all, and keeps the party re- 
 strained of his liberty, as if imprisonment w'ere not punish-: 
 ment, but merely a pleasant pastime. JS"or are the rights of 
 speedy trial by jury, the only constitutional rights that have 
 usually been and are quite certain to be taken from the citi- 
 zens, by legislative acts suspending the privilege of the writ. 
 It is apt under the suspensions to be forgotten that men's per-, 
 sons are not to be seized, except by virtue of the precept of 
 the civil magistrate, issued upon probable cause and supported 
 by oath. In the operations of the civil authority, it is often 
 overlooked that the warrant is the constitutional precursor of 
 seizures of the person. The practice is most injurious to the 
 pride of a free man. If it be civil liberty where th^t practice 
 is always apt and almost sure to ensue any suspension of the 
 privilege of the writ, and it may, by authority given by the 
 constitution, be suspended at the will of the men in office, 
 then let me live where avowed despotism reigns.. 
 
 Having shown thus what the privilege of the writ is, and 
 what the extent of a lawful suspension is, I will proceed to 
 show that it ought not ever to be surSpended. It is only some 
 supposition of a necessity, in time of war in some form, either 
 foreign or intestine, that can come to the mind to excuse the 
 existence of a power, any where lodged, in a free system, to 
 suspend the privilege of the writ. The founders of our system 
 restricted the exercise of the power to the Congress, in 
 cases of rebellion or invasion, and in such periods only when 
 " the public safety requires it." What is the public safety ? 
 As it has been in all times and .tongues, so it is yet. In the 
 opinion of the tyrant, the public safety subsists in his own 
 
96 
 
 safety — not alone in the security of his person, but (be the 
 tyrant king or congress) in the security to himself of the des- 
 potic power. The conception and contemplated impression 
 on the mind of the ruling power aiming to be despotic, is the 
 safety of the usurped power to augment that power. So un- 
 safely for civil liberty, is the public safety guarded by the 
 granted power to suspend the privilege of the writ. But 
 suppose the power lodged where it will not be abused. Sup- 
 pose further that the practice of denying or even unduly 
 delaying the regular trial, be not suffered to prevail when the 
 privilege of the writ is suspended. Why, even in such case, 
 should the privilege of the writ be suspended ? The citizens 
 or strangers under arrest and in custody, must be guilty or 
 innocent. If guilty, all good men will agree, they ought to 
 be tried and punished. If innocent, all men everywhere, but 
 bad men, will agree, they should be set free or l?t to bail. 
 Show, who can, why the privilege of the writ should ever be 
 suspended. Show, who can, how the public safety can ever 
 be served by it. Show, who can,- why, in any conceivable 
 case, any one shall be denied an opportunity in advance of 
 the regular trial, to prove his innocence. 
 

 ■4 
 
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 THE EIGHT WAY 
 
 I'OR 
 
 |l(sl0riiig l|r.Iat£ |U.bcl^tatf-.s 
 
 I C^lJ"! 
 
 TO 
 
 THE FEDERAL UNION; 
 
 OR, 
 
 
 
 
 AN AEGUMENT INTENDED TO INDUCE THE PEOPLE 
 
 AND PUBLIC MEN, IN MAKINd ELCTIONS AND 
 
 FILLING OFFICES, 
 
 STA.TE -A.ND FEI3EK^L, 
 
 TO BIC GOVERNED B A' 
 
 THE CONSTITUTION OE THE UNITED STATES. 
 
 'The subject who is truly loyal to the Cluff ihif^istrato. Mill neilher atlviNC >j 
 nor submit to arbitrary iiioasun.s.'"— JuNir.s. 
 
 m 
 
 i*^ 
 
 SE001:^ID E:i3ITI02Sr 
 
 ^By Eobekt R. CoLLiEii, Esq. 
 
 € 
 
 ^ m 
 
HOLDING FORTH THE CONSTITUTION, 
 
 AND INVITING CONCURRKNT LAWS. 
 
 The writer of this pamphlet which his limited means deny 
 him the privilege of enlarging, as he might Avith as much 
 more matter already prepared for it, as is embraced in it, does 
 not without inconvenience spare the amount required to pay 
 for printing its present length. Yet, if he did not believe its 
 value to any one who will buy and read it, will exceed the 
 price it will be offered at, he would not offer it for sale, but 
 give it away, as with his productions often before he has done. 
 Its value is in the influence it is intended to exert in support [ 
 of law and order. Surely, no patriot will consider of no 
 value any efibrt that is sincere and conservative in support of 
 our system of wLich Mr. Madison, in 1833, said: ''The 
 happy union of t.ese States, is a wonder; their constitution 
 a miracle; their example the hope of liberty throughout the 
 world." 
 
 This pamphlet proceeds on the supposition that the United 
 States are intended to be governed by law, and that neither 
 the States, noi* the people of the United States, have agreed 
 to have, or require, a despot or dictator to rule them. 
 
 
 V 
 
I 
 
II 
 
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LIBRARY OF CONGRESS 
 
 013 744 553 
 
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