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UNIVERSITY LIBRARY

RECONSTRUCTION.

CLAIMS OF THE INHABITANTS OF THE STATES ENGAGED
IN THE REBELLION TO RESTORATION OF POLITI
CAL RIGHTS AND PRIVILEGES UNDER
THE CONSTITUTION.

Br CHAELES G. LORING.

BOSTON:
LITTLE, BROWN, AND COMPANY,
1866.

'da I
115"

CAMBRIDGE:
PEESS OF JOHN WILSON AND BON.

Cd.L\

CONTENTS.

PART FIRST.

CHAPTER I.
Page.
State Rights — Preliminary History of  1

CHAPTER II.
The Constitution — Formation of, and Individual and State
Rights and Duties under it  18

CHAPTER III.
States under the Constitution — Rights of Representation
IN Congress — Conditions of — Effects of State Rebel
lion  27

CHAPTER IV.
Powers and Duties of General Government in Relation to
the States in Rebellion, and when left by the Rebel
lion without Organized Governments under the Consti
tution, AND to Restoration of their Political Privileges
under it. — Rights Consequent upon War  40

CHAPTER V.
Political Rights and Privileges of Rebel States Forfeited
AND Lost. — Restor-vtion must be by Act of Government. —
Law of Self-preservation  53

IV CONTENTS.

PART SECOND.

CHAPTER I. Paok.
Reply to Theories and Arguments adduced in Support of
the President's Policy. — Alleged Destruction of States
BY imposing Conditions of Restoration  69

CHAPTER II.
Asserted Constitutional Limits to Powers of Congress. —
Theory that the People of the late Rebel States are
entitled to Complete Immediate Restoration  81

CHAPTER III.
Right of Government as Conqueror to dictate Terms of
Peace  91

CHAPTER IV.
Asserted Powers of the President as the Executive Head
OF the Government, and as Commander-in-Chief, to de
cide upon the Rights of the Rebel States to Immediate
Restoration  109

EECONSTEUCTION.

PAET FIEST.

CHAPTER I.
STATE RIGHTS— PRELIMINARY HISTORY OF.
The question of the day with the people of the
United States — and none of graver moment ever agi
tated the public mind — is that concerning the claims
of the inhabitants of the several States, recently in
open rebellion against the national Government, to be
re-admitted to the exercise of the personal and corpo
rate political powers and franchises which they enjoyed
under the Constitution before they made war upon
the Union in order to accomplish its destruction.
That, by reason of that rebellion and its suppression,
those who were parties to it forfeited their rights, as
individual citizens, to property, liberty, and life, of
which they could at any time be deprived by due
process of law, and to which they could be restored
only by the pardon of the Government, no one who
does not justify the rebellion denies. The only con
troversy is, whether citizens, thus under the ban of
1

Z RECONSTRUCTION.
the law, became, upon the laying-down of their arms
and profession of submission to the national Govern
ment, at once restored to their former rights, as
inhabitants of their respective States, to immediate
participation in the councils of the nation and to im
mediate agency in the administration of the national
Government. The practical issue may be thus stated : whether
it is competent for the national Government, as now
administered, to impose upon the inhabitants of the
several States lately in open rebellion against it, such
terms and conditions of re-admission to the exercise
of their former political powers, in the adminis
tration of the national sovereignty, as it may judge
to be essential for its future security; or "whether,
having laid down their arms and professed a readi
ness to obey the laws, ^hose inhabitants are entitled
to an immediate recognition of those powers as
matter of right, and to be permitted at once to re-
assume the exercise of them in the councils of the
nation. In such a discussion, it is necessary that we have a
clear and definite understanding of the meaning of
the word " State," as used in the Constitution, and as
it should be used in any argument concerning it.
There is a great deal of vague impression and loose
talk about the States of the Union as being sover
eign, free, and independent; affording shelter for
much sophistr}^ and declamation, tending to obscure a

STATE RIGHTS. 6
subject which, above all others of the day, demands
careful analysis and calm reasoning.
The simple definition of a State, politically speak
ing, is a people inhabiting a definite territory, and
possessing an organized government to which they
owe obedience ; and this definition applies exactly to
the several States of the Union. But there are vari
ous kinds of such States.
Some are possessed of absolute sovereignty, both
internal and external, having not only entire control
over the municipal relations and affairs of their sub
jects, but also unlimited power over their external
relations to other nations. These constitute and are
universally recognized as individual nations, or mem
bers of the family of nations.
There are others, which, existing as independent
communities and possessing supreme authority inter
nally over their subjects, have nevertheless no sepa
rate national sovereignty, but are united with other
States by a common league or compact, by which
their external or national sovereignty is committed to
a central authority, representing them unitedly as one
nation; they separately neither claiming, nor being
recognized, to be distinct members of the family of
nations. Such States cannot be denominated sovereign, free,
and independent States in any general or seemingly
appropriate use of those terms, — not being so in the
most important elements of State sovereignty, free-

4 RECONSTRUCTION.
dom, and independence ; namely, those of national
power and relationship to other nations.
In States of the first-named class, rebellion against
the national sovereignty, in whatever form, is treason
in every individual engaged in it, and punishable
accordingly. In those of the second, the rebellion of any one
State against the central authority does not render
any of its citizens guilty of treason against it, nor
make him personally punishable for that crime or
otherwise. It is simply the violation or breach of
the compact by the State to which its subjects owe
exclusive allegiance ; and the only redress for the
other parties is by war against the State, to compel
the fulfilment of its obligations, or to obtain redress
for the breach of them; and, if they succeed in the
conflict, the State becomes a conquered territory, over
which the victors have all the rights of war, — includ
ing, of course, those to prescribe conditions on which
the subdued State shall be re-adraitted to the league,
or may thereafter exercise any internal or external
sovereignty. It Avas to this last-named class that the inhabitants
of the rebel States claimed that they belonged ; alle
ging that they were sovereign, free, and independent
States, united by the Constitution as by a compact or
league only, from which they had the right to secede,
as States, at pleasure, or for justifiable cause, — they
being the exclusive judges of the existence of any.

STATE RIGHTS. 5
They claimed that they owed personal allegiance to
their respective States, and not to the United States ;
and that, in the resistance by their States of the
authority of the Government of the United States,
they, as individuals, were not rebels or traitors, but
persons acting in obedience to their allegiance to
those States ; and which, as such, were alone liable, if
the league or compact had been unjustly violated by
such resistance. And this, it is generally understood,
is to be one of the principal grounds of defence of
Jefferson Davis, if not the only one upon the merits,
should he ever be put upon trial for treason.
If this position be maintainable, it is difficult to
perceive on what ground the rebel States can deny
the authority of the Government, as the victor in
the contest, to dictate the terms of peace, and the
terms upon which those States shall be re-admitted
to their former privileges, and to hold them in sub
jection as conquered States during its discretion.
Upon their own theory, therefore, and that still
asserted by them as boldly as ever to be the only true
one, there could be no question of the right of the
Government to prescribe any terms of re-admission
which it should think just and expedient.
But, in truth, the inhabitants of no one of these
United States ever had political existence as a sov
ereign, free, and independent State, possessing any
external or international sovereignty ; or ever had any
distinct separate nationality.

6 RECONSTRUCTION.
The inhabitants of them were always, from the be
ginning, the people, or portions of the people, of one
empire, which alone maintained and exercised inter
national sovereignty, and upon whose protection and
supreme authority, as such, they relied.
In short, the inhabitants of them have always been
substantially, as under the Constitution they now are,
one people.
Before the Eevolution, and during its continuance
up to the Declaration of Independence, they were
inhabitants of colonies or provinces of Great Britain,
claiming all their powers of internal government
under her charters or commissions, and contending
with her only for immunity from alleged violations of
them. They made no claim to any sovereignty, inter
nal or external, not directly granted by or derived
from her, or belonging to them as her subjects.
They were in all respects integral portions of the
British empire, and so portions only of one people.
Every inhabitant of each colony had the entire and
perfect rights of British citizenship in every other,
and of carrying on trade and dwelUng in it, under
the laws and regulations of the empire, unobstructed
and unrestricted by colonial legislation.
They carried on the war of the Eevolution for some
time under the title of the United Colonies, and for
the declared purpose of a redress of grievances only,
and with no avowed view of establishmg any national
independence.

STATE RIGHTS. 7
The first Congress, which assembled in 1774,
adopted the significant title, "The delegates appointed
by the good people of these colonies ; " thus emphati
cally declaring their union as one people, struggling
in a common cause. They asserted, as great constitu
tional rights common to all, the liberties and immuni
ties of the common law of England, and declared
themselves as united for the common defence of those
rights. And thus was the incipient, and soon to become
the irrevocable step taken to constitute themselves the
citizens of a new empire or nation.
The delegates to the second Congress, in 1775, were
principally chosen, not by the State legislatures, as
representatives of the States, but by conventions of
the people of the several colonies, as representing
them ; although, in some instances, they were chosen
by the popular branch of the legislature, the choice
being afterwards ratified by such conventions.
Soon after its assembling, and before its second ses
sion in September, actual war had commenced in
Massachusetts, and was imminent in other colonies ;
and the Congress immediately proceeded " to put the
country into a state of defence," as one common
country. It assumed and exercised control over the
military operations of all the colonies ; created a
continental army ; appointed Washington command-
er-m-chief " of the continental forces," and, in a letter
accompanying his commission, charged him to make

8 RECONSTRUCTION.
it his especial care " that the liberties of America re
ceive no detriment." It also provided a continental
currency ; directed reprisals upon the ships and mer
chandise of Great Britain ; established a treasury
department, general post-office; and regulated the
relations with the Indian tribes.
In short, the inhabitants of the colonies, before the
Declaration of Independence, had substantially estab
lished a national Government in the name and with
the general consent and approbation of the people,
and with all the principal attributes of a nation, ex
cepting that of international sovereignty, which they
had not yet claimed. The struggle was as yet in
defence of their violated rights as citizens of Great
Britain, and carried on under the title of " The
United Colonies ; " thus still recognizing that re
lationship. And it was not till after thus uniting themselves
as one people, engaged in a common cause, that they,
in conformity with the recommendation of the Con
gress, proceeded in then respective jurisdictions to
make provisions for local governments for the man
agement of their domestic concerns, which their sepa
ration from the mother Government and the exigencies
of the times made necessary. So that the formation
of a national Government, revolutionary indeed and
with limited internal powers, but none the less na
tional, acting as the agent, and in the name and with
the consent, of the inhabitants of the whole territory

STATE RIGHTS. 9
embraced within the limits of the colonies, had been
established by the union in one body of delegates
representing them, and was in actual operation before
the adoption of the local governments, called State
governments, as they have since existed ; and had
itself recommended their formation as necessary
means of accomplishing the purposes of its creation,
— very significant facts, surely, in illustration of the
true relations of the States to the General Govern
ment in their subsequent history.
By the Declaration of Independence in 1776, made
" in the name and behalf of the good people of these
colonies," it was enacted that they were "and of right
ought to be free and independent States ; that they
are absolved from all allegiance to the British Crown,
and that all political connection between them and
the State of Great Britain is and ought to be dis
solved ; " and that then- national title thereafter should
be that of the " United States of America," — by
which title they have ever since been universally
recognized. By these proceedings, the inhabitants of all the
colonies, acting as one people, threw off their allegi
ance to the British Crown, and claimed to become an
independent sovereign nation, entitled to all the rights
and attributes of external and internal sovereignty in
regard to all international relations.
They did not assert any pretension of becoming
severally iitdependent States, entitled to any such

10 RECONSTRUCTION.
sovereignty, in their relation to foreign nations.
They claimed no membership as individual States in
the family of nations ; nor did they declare any inde
pendence of each other in any relations with them ;
but asserted their right to be accounted and dealt with
as one sovereign people or nation, composed of the
inhabitants of all the States ; and as such, and only as
such, have they ever since been recognized in all the
treaties and international relations of peace or war into
which they have since entered.
By reference to the Constitution of Massachusetts,
Part I. Art. IV. (which was adopted before the Arti
cles of Confederation were executed), it will be seen,
that she, in asserting the right of her people to gov
ern themselves as a free sovereign and independent
State, limits these rights to the exercise and enjoy
ment of every power, jurisdiction, and right '¦'which is
not, or may not hereafter be, by them expressly delega
ted to the United States of America in Congress as
sembled." Now, at that time the United States of
America was the 07ily nation known or recognized, or
claiming to exist, as one of the family of nations, and
of which each State formed only a component part,
pursuant to the Declaration of Independence. No
disavowal of distinct or independent or sovereign
nationality could be more explicit.
The local allegiance, however, of the inhabitants
of each colony, before due to the Crown, was
declared to be transferred, not to the central national

STATE RIGHTS. 11
Government thus established, but to the colony itself,
or, in the language of a resolution adopted by the
Congress, " to the laws of the colony." The relations
of individuals to the national Government were no
where defined, but left to construction upon the
nature of this union of the colonies or States in a
national sovereignty.
Hitherto there had been no written articles of
confederation or agreement, by which the obligation
of the States, or the authority of the Congress, or the
nature of the central Government, were defined.
The powers of an external national sovereignty
had been assumed and acted upon by the consent
of the people ; but its internal authority, or means of
maintaining itself, were all left to loose construction,
or the voluntary agency of the several independent
States to comply with their respective duties, result
ing from the alliance.
Whether either of the colonies or States was so
bound by this alliance as to be incapable of abandon
ing it at pleasure — being in the nature of a voluntary
party to a copartnership without limitation of time,
and without any right on the part of the other States
to enforce its compliance with the requisitions of the
Congress for the carrying-on of the war of independ
ence, in which they had thus united — may perhaps
be considered questionable ; although such abandon
ment would seem to be an obvious breach of good
faith to the rest, with which it had embarked as in a

12 RECONSTRUCTION.
common cause. But the decision of the question is
immaterial, as it was soon finally disposed of before
it was practically, if ever, raised by the subsequent
Articles of Confederation.
The embarrassment and inefiiciency evidently re
sulting from this state of affans rendered some more
definite bond of obligation and union essential ; and
the Congress in November, 1777, addressed a circu
lar letter to the legislatures of the several States,
recommending them " to invest the delegates of the
States with competent powers ultimately, in the name
and behalf of the State, to subscribe articles of
confederation and perpetual union of the United
States, and to attend Congress for that purpose on or
before the tenth day of March next."
But it was not till 1781 that the articles were
adopted, owing to many causes of delay, a principal
one of which was the claims of several of the States
to the Western lands, extending to the Pacific Ocean,
which it was contended by the other States should be
held in common, as purchased by the common blood
and treasure of all of them ; and which lands were
finally ceded to the United States immediately after
the articles were executed, thus constituting a most
important further bond of national union, and an
inestimable element of future wealth and power.
By these Articles of Confederation, the government
was to consist of a single representative body called
a " General Congress," in which were vested all the

STATE RIGHTS. 13
powers, executive, legislative, and judicial, granted
to the United States. Each State was to maintain its
own delegates ; and, in the determination of questions,
the voting was to be by States, each State being
entitled to one vote. The agreement was styled
" Articles of Confederation and Perpetual Union "
between the thirteen States named; and this body
politic was styled " The United States of America."
Each State retained its sovereignty, freedom, and
independence, and every .power, jurisdiction, and right
not expressly delegated to the Congress. And the
nature and objects of the Union were described as a
firm league of friendship between the States for their
common defence, the security of their liberties, and
their mutual and general welfare ; and the parties
bound themselves to assist each other against all force
offered to or attack made upon them, or any of them,
on account of religion, sovereignty, trade, or under
any other pretence Avhatever. The free citizens of
each State were entitled to all privileges and immuni
ties of free citizens in the several States. All the
general powers of external national sovereignty were
vested in the Congress, — the powers of treaty, peace
and war, regulating the coin, creating public debt,
building and equipping a navy, determining the
number of land forces, and of making requisitions
upon each State for its quota of men and money.
The several States were prohibited from receiving or
sending embassies, or entering into any treaties with

14 RECONSTRUCTION.
foreign powers or with each other without consent of
Congress. In short, the Articles of Confederation constituted
the people of the States, thus united, one nation, as
entirely as it was practicable for any mere league or
confederation of States to do so.
They were of essential importance in enabling the
Congress to carry through the war. But after the
peace, and when the bond of a common paramount
interest and necessity had ceased, and State jealous
ies, rivalries, weaknesses, and selfishness had shown
the entire insufficiency of such a compact for the
necessary strength and respectability of the nation
abroad, and its internal peace and security at home,
the people became conscious of the necessity of
establishing a closer bond of union as one people,
under a common government, having internal as well
as external sovereignty ; to which each citizen should
owe a personal allegiance, and from which he might
claim protection ; and whose powers for all national
purposes should act upon each individual citizen
directly, and not through the agency of State gov
ernment. And from this necessity resulted the Constitution,
upon the nature and construction of which the solu
tion of this question must now depend.
Such was the condition of the nation and of the
several States at the time of the adoption of that Con
stitution, and such the evils which it was intended
to remedy.

STATE RIGHTS. 15
From this history, nothing can be clearer than the
proposition that no one of these States had ever been
free, sovereign, and independent in its external, how
ever it may have been so in its internal relations;
but with regard to them no controversy has ever
arisen. There has never been a moment, from the breaking-
out of the Revolution, when the inhabitants of any one
of these States ever pretended to be a separate people
from those of any other State in any national relation
whatever ; on the contrary, they always claimed to be
portions of the people of Great Britain at the outset,
and to become exclusively one independent people
after declaring their final separation from her. Rights
of national citizenship were never claimed by the in
habitants of any particular State, as distinguished
from those of any other State, but always as citizens
of the United States, comprehending them altogether.
It is true that they were internally divided into sepa
rate and distinct municipal governments, sovereign
and independent in all that regards their domestic
relations ; and could contract as such States, as being
entirely independent so far as they had not surren
dered the power so to contract to the central Govern
ment. But no one, it is believed, can contend, that, after
the adoption of the Articles of Confederation, any
one State could have broken off from the confederacy
and made a separate treaty of peace with England,

16 REOONSTRUCTION.
or allied itself to any other foreign power ; or could
have established any laws or regulations subversive
of the common rights and interests of all, in their
external relations with other nations or in those inter
nal to each other.
To be sure, no such act would have constituted any
personal crime on the part of any inhabitant of such
State against the General Government, because they
owed personal allegiance to the State only.
But the General Government would have had the
clear and manifest right, in such case, to interfere,
and by force of war, if necessary, to compel con
formity by the State to the general compact, and to
enforce its requisitions if disobeyed. Civil war was
thus, indeed, the only remedy ; and it was to provide
against this evil and weakness, among others, that
the Constitution was established. But, if the result
of any such war had been the subjugation of the
State, it is clear that it would have been at the
mercy of the victor as to terms of future re-admission
to the rights of the confederation.
At the time, then, of the formation of the Consti
tution, the inhabitants of the thirteen States, retaining
the internal sovereignties of each of them, were united
as one people or nation in all that regarded external
sovereignty, or any claimed or acknowledged national
existence ; and were possessed of a vast extent of un
occupied territory as tenants in common and joint
owners, which was to be divided into new States in

STATE RIGHTS. 17
union with them, and composing with them a common
country, so fast as it should become peopled ; and
which was incapable of division or apportionment
among them upon any principle on which it had been
granted, — the only one recognized being that of a
national domain.
They had become, therefore, essentially a nation
under a government exercising unqualified external
sovereignty, possessed of a common country, and need
ing only the surrender to it of a portion of certain
independent rights hitherto preserved by them as
separate States, which interfered with their enjoy
ment of the internal sovereignty essential for secur
ing the blessing of a perfect nationality, and which
the Constitution was destined to provide for.

18 RECONSTRUCTION.

CHAPTER II.
THE CONSTITUTION — FORMATION OF, AND INDIVIDUAL
AND STATE RIGHTS AND DUTIES UNDER IT.
There was a provision in the Articles of Confede
ration for making alterations therein, by the assent of
a Congress of the United States and of the legisla
tures of the several States. And in February, 1787,
in the Congress then in session, a resolve was passed,
reciting that whereas experience had evinced that
defects existed in the present confederation, and a
convention of delegates had been proposed to remedy
them, " and such a convention appeared to be the
most probable means of establishing in these States
a firm national government,'' it was expedient to call
a convention of delegates for the purpose of revising
the articles, and reporting to Congress and the several
legislatures "such alterations as should, under the
Federal Constitution, be adequate to the exigencies
of government and the protection of the Union."
The several States assented to the proposition, and
appointed delegates to the Convention, which assem
bled at Philadelphia, in May, 1787.
Although the purpose of the Convention was to
amend the Articles of Confederation, it was soon ap
parent from the common stock of information con-

THE CONSTITUTION. 19
tributed by the delegates, of the utter inefficiency of
any mere league or confederation to accomplish the
ends desired, that nothing short of a consolidated
national government, with full powers of maintaining
itself internally, as well as externally, by direct action
upon the individual citizens composing the nation,
in regard to all that pertains to the exercise of na
tional as distinguished from municipal authority, could
answer to the national exigency.
And the final result of prolonged, laborious, and
exhaustive discussion of the subject by the greatest
men of that age, and who would have been not less
distinguished in any other age or nation, was the
present Constitution.
As, however, it far transcended any mere alteration
or amendment of the Articles of Confederation, —
being in fact the substitution of "a firm national
government" over the whole people of the United
States, in place of a league of the States, — it was
clearly necessary to submit its adoption directly to the
people, acting in their primary capacity, and not to
the State legislatures, as mere amendments of the
articles might have been and were intended to be; it
being obvious that State legislatures could have no
authority thus to transfer the personal allegiance of
their citizens to that of a central government, or part
with the sovereign power with which they were
invested by the people under their several State con
stitutions.

20 RECONSTRUCTION.
The question was of the substitution of a constitu
tional government in the place of a league, and was
one, therefore, which the people alone, and not the
State legislatures, could lawfully decide.
The Constitution was therefore reported by the
Convention to the Congress for its approval and sanc
tion, and by it the several State legislatures were
invited to recommend the assembling of conventions
of the people to decide upon its adoption or rejection ;
and it was finally adopted by the people, or their dele
gates to conventions called for the purpose of deciding
upon it, and thus became the supreme law of the
land. And by the nature and objects and letter and
spirit of this Constitution must the question at issue
now be decided, with the aid, where needed, of
such light as may be drawn from the previous history
above alluded to.
Now, up to the time of the adoption of the Consti
tution, the people of the several States had, as above
shown, become one people or nation, so far as their
external national sovereignty was concerned, the gov
ernment of which resided in the general Congress ;
each of the States possessing the right of sending
delegates to that Congress, and the right to one vote
in its deliberations and decisions. But each remained
at the same time supreme and independent in its in
ternal sovereignty, excepting in so far as the Articles
of Confederation imposed limits thereupon, — which
limits were few, but of essential importance in pro-

THE CONSTITUTION. 21
viding for the necessities of internal commerce and
equality of rights between the respective inhabitants
of the different States.
But by the Constitution all this was changed. By
its express terms, the national Government was no
longer to consist of a confederation of States, to be
administered by their respective delegates, but a gov
ernment of the whole people of the United States as
one people, under one supreme sovereignty internally
and externally so far as national sovereignty Avas con
cerned ; a government of which the people were to
elect the legislators and rulers by their own personal
votes, as representing them, and accountable directly
to them, and not as representing the States, or as
accountable to them.
In short, it established a " firm national govern
ment" as supreme in all things, touching its external
and internal sovereignty over its subjects or citizens,
as that possessed by any other government of any
other nation. The existence of the several States
as independent and sovereign in their municipal or
domestic relations, and as having certain rights and
powers as constituents of the General Government,
was, indeed, fully provided for, and an equal repre
sentation was reserved to them in the Senate, — a
most wise a.id salutary measure for the preservation
of that independence and sovereignty, and for con
stituting a most important check upon the popular
body representing the whole people. It is worthy

22 RECONSTRUCTION.
of remark, that, while in the Articles of Confedera
tion the sovereignty, freedom, and independence of
each State, and every power, jurisdiction, and right
not expressly delegated to the United States in Con
gress assembled, are expressly reserved, not a word
is found m the Constitution of any sovereignty as
derived from, or granted to, or existing in the States.
On the contrary, the declaration that " the powers
not delegated to the United States by the Constitution,
nor prohibited by it to the States, are reserved to the
States respectively or to the people," conclusively
shows that the whole people of the United States,
as one people, were considered and intended to be
recognized as the ultimate source of all national
power and sovereignty.
The States were to enjoy all the powers they
originally possessed not prohibited to them, and
certain very important new powers granted to them,
by the Constitution ; the government of the United
States was to possess all the powers thereby vested
in it expressly or by necessary implication ; and
the inhabitants of all the States, collectively as one
people, were made the depository of all other power
whatsoever. Much profitless discussion has taken place upon the
manner in which the Constitution was adopted ; the
advocates of secession and other apologists of it as
serting that the Constitution was the act, or creation
of the State governments, in the exercise of State sov-

THE CONSTITUTION. 23
ereignties, while others contend that it was the crea
tion of the whole people of the several States, acting
as one people, for the establishment of one national
government. Nothing is plainer, however, than that the State
governments had nothing to do with the matter, fur
ther than to recommend to their several peoples to
meet together and appoint delegates to conventions
to represent and act for them upon the question of its
adoption, and to report their decisions to the Con
gress. This was the only course which was open to secure
the uniform calling of such conventions, — to give the
legislative sanction of each State to any transfer or
surrender which the people might see fit to make to
the General Government of any of the powers which
they had heretofore vested in the State governments ;
and above all was the only mode of obtaining the true
result of a popular vote of the whole people upon the
subject; it being obvious that the various interests,
opinions, and sentiments of the whole people could
be far better ascertained by this mode of voting
upon the question in divisions or districts, than it
could be by a general vote, in which the majority of
the whole might control and constrain the universal
wish or interests of large and important sections of the
country. It is undeniably true, that the people of
each State were so far sovereign and independent
that they could not be required to surrender that

24 RECONSTRUCTION.
sovereignty and independence, to the extent required
by the Constitution, without their consent ; and this
would of necessity require the inhabitants of each
State to vote separately and collectively on the question.
But it is none the less true, that the decision was not by
the State governments in their corporate capacity, but
by the people in their primary capacity, deciding
whether they would or would not become one people
with those of all the other States, under one form of
entire national sovereignty.
But, be this as it may, the fact seems indisputable,
that the inhabitants of the several States, by the
adoption of the Constitution, did voluntarily unite
themselves as one people under one supreme national
Government invested with all necessary powers of
national sovereignty, internal and external, — a Gov
ernment which claims from them, as individuals,
personal allegiance to its authority, and extends over
them personal protection; and which claims also from
the political bodies or States, of which they were also
members, allegiance as such States and compliance
with the corresponding obligations imposed upon
them, while extending also over them its protection
in the enjoyment of all their political rights as such
States. The principal rights of individuals as citizens of
the United States, thus created by the Constitution,
were those of the elective franchise in forming the
House of Representatives ; of protection in property,

THE CONSTITUTION. 25
liberty, and life under the laws; and the rights of
universal citi-zenship in the territories and jurisdiction
of each State. The principal rights of the States
were the elective franchise of equal representation in
the Senate; of protection in the maintenance of
a republican form of government, and against for
eign invasion and internal sedition ; with the enjoy
ment, in common with the inhabitants of all the
other States, of free and unrestricted trade and
intercourse among themselves, and of equal com
mercial advantages in their trade and intercourse with
foreign nations.
To which was added the participation in the
sovereign power of enacting amendments to the
Constitution, if Congress should elect that mode
of submitting any to the tribunal of State determi
nation. All these powers, rights, and immunities were cre
ated by the Constitution, and made dependent upon its
authority. They have no other origin, no other right
to be; and necessarily involve, upon every principle
of public or civil law, justice and good faith, corre
sponding obligations for obedience to its authority and
fidelity to its support.
So far, therefore, is the proposition that the States
created the Constitution, so often asserted, from being
true, that the reverse is much more nearly so. It
was the Constitution which conferred all the rights
which the States derived under it, and now have, as
4

26 RECONSTRUCTION.
original grants. It was the people of the whole
United States which thus created and defined the indi
vidual, corporate, and poUtical rights of all the parties
to it.
The only authors or framers of the Constitution
were the inhabitants of the several States in their
primary capacities, as the acknowledged fountains of
all political power, who thus changed the organi
zations and political constitutions of the several States ;
taking from them certain hitherto existing independ
ent corporate powers and immunities, and investing
them with certain new powers, immunities, and rights,
not before enjoyed ; imposing upon them certain new
duties and obligations, in order to adapt them to
the new order of things ; and uniting themselves as
one consolidated nation or people, in which all politi
cal power, not thus otherwise disposed of, was de
clared to be thereafter for ever deposited.
We have then next to ascertain what were the
relations of the inhabitants of the several States to
the national Government, and their rights and obliga
tions as such inhabitants under the Constitution.

STATES UNDER THE CONSTITUTION. 27

CHAPTER III.
STATES UNDER THE CONSTITUTION — RIGHTS OF REPRE
SENTATION IN CONGRESS — CONDITIONS OF— EFFECTS
OF STATE REBELLION.
By the Constitution, entire nationality was substi
tuted for confederation. While, as before stated, the
people of the several States retained their internal
sovereignty over thek domestic relations, they sur
rendered to the nation all the attributes of external
and many of the most essential of those of internal
sovereignty ; entered into obligations of allegiance
and obedience to the Constitution, and all laws made
in pursuance thereof, as the sipreme law of the land ;
and made an oath by persons elected to offices of
State to support the Constitution, essential to the
organization of their respective State governments.
In return for which, the Constitution conferred upon
the citizens of all the several States, or secured them
in the enjoyment of two distinct classes of political
rights and privileges, — one of these pertaining to
them individually as citizens of the nation ; and the
other consisting of those which each has in combina
tion with others as members of the political corporate
body or State of which they are inhabitants, including

28 RECONSTRUCTION.
those of representation in the Senate and House of
Representatives in Congress.
The word " State," therefore, as used in the Consti
tution, can only be construed to signify one under a
government organized according to its requisitions,
recognizing its supreme authority, and admitting the
duty of obedience to its provisions and to all laws
enacted in conformity with it. If a State be not in
this condition, although it may still exist as a State
within the Union, its inhabitants remaining subject
to the territorial jurisdiction of the General Govern
ment, and to the Constitution and the laws, and to
compulsory obedience to them, — nevertheless, it is
not a State contemplated by the Constitution as en
titled to the rights of those who have remained in full
communion under it. And this proposition, seem
ingly so self-evident, is made, if possible, more mani
festly true upon examining its provisions touching
the rights and obligations created by it. Take, for
instance, the rights of representation in Congress, the
immediate subjects of inquiry.
One of the most important of the rights or privi
leges which the Constitution confers upon every citi
zen of the United States as an individual, and that
mainly involved in the consideration of the question
in hand, is that of the elective franchise, in being
represented in the House of Representatives in the
national Government. This is obviously a national
right, or one to which he is entitled as a citizen of

STATES UNDER THE CONSTITUTION. 29
the United States, to be exercised for the common
welfare of them all. And the members of the House,
elected by its exercise, are representatives of the
nation, a portion of its Government, and, in no proper
sense, representatives of the State, or in any way jus
tifiable in regarding its peculiar interests otherwise
than as component parts of the good of the whole.
But although the individual is invested with this
franchise as a citizen of the United States, or as one
member of the whole nation, and to be exercised for
the common good, it is nevertheless one granted to
him as an inhabitant or member of the State to which
he belongs, and is inseparately connected with such
membership ; so that if the State should cease to
exist as a duly organized State, within the provisions
of the Constitution, or he should cease to be an
inhabitant of any such State, the right or franchise
would no longer exist, although he might continue to
be a citizen, and, as such, answerable to the laws of
the United States.
This is evident from the language and spirit of the
Constitution. It provides that " the House of Rep
resentatives shall be composed of members chosen
every second year by the people of the several States ;
and the electors shall have the qualifications requi
site for electors of the most numerous branch of the
State Legislature."
Again : " No person shall be a Representative who
shall not, when elected, be an inhabitant of that State

30 RECONSTRUCTION.
in which he shall be chosen." Again : « Representa
tives and direct taxes shall be apportioned among the
several States which may be included in this Union
according to their respective numbers." " The num
ber of Representatives shall not exceed one for every
thirty thousand, but each State shall have at least one
representative." " When vacancies happen in the
representation from any State, the executive authority
thereof shall issue writs of election to fill such vacan
cies." The existence, therefore, of this franchise, al
though it is vested in the individual as a citizen of
the United States, is nevertheless made dependent
upon his membership of a State, regularly constituted
within the Union, and upon the action of such State
in prescribing his qualifications as an elector ; and, in
case of a vacancy, upon the will of the executive to
cause it to be filled.
It follows, therefore, that, if the State, of which
any citizen of the United States is an inhabitant, be
not one duly organized, or otherwise be not in com
munion with the other States, in obedience to the
Constitution and the laws, or shall have become by
repudiation or any other cause not entitled to the
rights and privileges of a State under the provisions
of them, no inhabitant of such State can claim the
right to exercise the franchise, however loyal he
personally may be to the General Government, or how
ever zealously he may have opposed such disorgani
zation, repudiation, or rebellion, and so be an unwiUing
victim to its consequences.

STATES UNDER THE CONSTITUTION. 31
It may seem a hardship upon the individual to be
thus deprived of a right or privilege by the fault of
others to which he is no voluntary party ; but it is
an unavoidable consequence of his political condition
as the citizen of a contumacious or rebellious State,
rendering personal discrimination impossible.
This rule, founded in unavoidable necessity, ap
plies, with the semblance of still greater hardship,
to the property of innocent inhabitants of a State in
rebellion against the national Government. If a State
having jurisdiction of a definite territory, of which it
is possessor, rebel against the sovereign national Gov
ernment, and actual war has arisen between them,
such territory is by public law considered to be ene
mies' territory, and all property within its limits, to
whomsoever belonging, as enemies' property, giving
strength and resources to the enemy, and, as such, lia
ble to capture and condemnation; so that, in the
late rebellion, a vessel belonging to inhabitants of
Richmond, and captured by a national vessel, was
adjudged lawful prize, although the owners were citi
zens of the United States, and claimed that they had
always been and were loyal to them, and in no sense
voluntary parties to the rebellion. (Prize Cases, 2
Black's United-States Reports, 635.)
It may seem needless to discuss the point further,
as the express language of the provisions of the Con
stitution seems to make it so clear. It may be added,
however, that any other construction, considering

32 RECONSTRUCTION.
this right of suffrage to be wholly personal as that of
a citizen of the United States only, and not dependent
upon the relations of his State to the Union, would
involve, as a necessary consequence, the right of the
inhabitants of a State in actual rebellion to elect and
send representatives to Congress, so long as they re
mained without arrest or conviction for the crime of
treason by due course of law ; for, until such arrest or
conviction, no civil right can be accounted lost or for
feited. Snch being believed to be the principles of con
struction applicable to the Constitution, we have next
to consider the effect of the rebellion upon the rela
tions of the people of the State to the Union, in refer
ence to their right of suffrage as citizens of the United
States, and to representation in the national Govern
ment. Now, by the rebellion, which Avas in the name and
by the asserted powers and authority of the several
rebel States, assuming to act in their political capaci
ties, it is manifest that all their respective constitu
tions or governments contemplated by the Constitution
of the United States, or in conformity therewith, were
entirely abolished ; and that entirely new ones were
substituted, having no affinity Avith those remaining
as loyal States in the Union, and none of the elements
Avhich were necessary to entitle their inhabitants
to participate in any rights of representation in the
national Government. The governments, Avhich they

STATES UNDER THE CONSTITUTION. 33
had before rebellion, Avere founded upon the unity
of the people of all the States as one people or na
tion, OAving personal allegiance, and upon Avell-defined
and established constitutional relations to the central
Government; and could not be laAvfuUy organized
without the taking of the oath of such allegiance by
every legislative, jiidicial, and executive officer of
the State. They AA'ere also possessed of certain lim
ited poAvers, prescribed by the Constitution, and Avere
under numerous specified obligations to the General
Government ; all Avhich Avere essential elements of their
nature as States under the Constitution, and on Avhich
the political rights of their inhabitants to be repre
sented in the General Government Avere founded. But
those governments, in all their essential relations to
that of the United States under the Constitution, Avere
utterly abrogated by the rebellion ; and neAV ones
Avere substituted, founded on the denial of any such
national unity, or any such allegiance, relations, limits,
or obligations. Nothing could be more entire than
the total abolition of the old State governments as
they existed at the formation of the Constitution, and
continued up to the time of the rebellion.
When, therefore, the rebellion Avas subdued, it is
manifest that there Avere no governments existing in
the rebel States, in conformity Avith the Constitution,
or Avhich could entitle their inhabitants to the exercise
of any political poAvers under it.
The people of thepe States were, as to the United

34 RECONSTRUCTION.
States, Avithout any civil government which that of
the United States Avas bound to respect, and subject
entirely to its military authority, or to such govern
ments as it should see fit to impose, until State
governments, in conformity to the Constitution,
should be again constructed.
All their inhabitants Avho had voluntarily taken
part in the rebellion were criminals, Avho, as individual
citizens, had forfeited their right to property, liberty,
and life under the laAvs, for their attempt to destroy
the Government of their country ; and had in the
same manner forfeited and lost their corporate rights
of representation and participation in its GoA'ernment.
And as they could only be restored to the former, by
authority of (he Government, so it alone was to
restore the latter. Those States, as to any organized
constitutional government entitling them to represen
tation in that of the United States, Avere utterly
" without form, and void."
And such Avas then the universal belief and convic
tion of all the officers of the GoA'ernment, and of the
people of the loyal States, excepting those Avho had
always sympathized in the rebellion, and Avho, at
the least, are noAV entitled to the credit of consistency
in taking the opposite ground.
No one Avas more emphatic in the assertion of this
principle than the President, who, in an official proc
lamation, declared that those States " were deprived
of all civil government ; " and authorized the publica-

STATES UNDER THE CONSTITUTION. 35
tion of his declaration in conversation that " the
State institutions are prostrated, laid out on the
ground, and that they must be taken up and adapted
to the progress of events."
So Mr. ScAvard, in his telegram of July 24, 1865,
to the provisional GoA'ernor of Mississippi, said " the
Government of the State Avill be provisional only
until the civil authorities shall be restored with the
approval of Congress" And again, in that of Sept.
12, 1865, a little more than a year ago, to Governor
Marvin, of Florida, he says, " It must, hoAvever, be
distinctly understood, that the restoration to Avhich
your proclamation refers will be subject to the decision
of Congress." And the Avhole course of the Presi
dent's conduct Avas in conformity Avith it. He held the
inhabitants of those States, as he laAvfully might and
Avas bound to do, as under military control, and Avith
out authorized civil government ; appointed provisional
Governors; and interfered Avith, and dictated terms
for, the formation of their local governments. All
this Avas justifiable only upon the hypothesis that he
was exercising his military authority, in order to
bring the people into loyal relations to the national
Government; but it was entirely inconsistent Avith
the idea that the States had any laAvfully estabhshed
civil governments under the Constitution. For, if
they had, he could Avith no more propriety have
thus interfered Avith them than Avith those of Penn
sylvania or New York.

36 RECONSTRUCTION.
And he continues to act on the principle that no
such civil governments exist in those States doAvn to
this day. On Avhat other principle does he justify
interfering Avith the government of Lousiana, or call
ing the Governor, elected by her people, to account
for his conduct, or passing judgment upon the law
fulness or unlaAvfulness of conventions assembled
there, or on the actions of State officers ? And by
Avhat right does he forbid and prcA'ent the pirate
Semmes from holding the judicial office to which he
Avas duly appointed under the authority of the State
Government of Alabama, if it has one Avhicli the Gov
ernment of the United States is bound to respect?
And by what authority did he order the soldiery of the
United States to aid and assist the murderer Monroe,
in putting doAvn an assembly of loyal citizens of New
Orleans, if the State of Louisiana is under a regu
larly constituted State government ? Can he, or
would he dare to, order the troops of the United
States, to come to the help of the city police in any
loyal State, unless on application by the State Gov
ernment ? Any right of such interference is prohib
ited by the Constitution. And, if the President Avere
to be impeached for this interposition of military
force in Noav Orleans, the only justification he could
set up Avould be, that the State had no civil govern
ment, but one in subordination to his military author
ity as commander-in-chief, and that the interposition
was necessary for the preservation of good order.

STATES UNDER THE CONSTITUTION. 37
Considering, then, the proposition established, that
the inhabitants of the disloyal States, by then* rebel
lion and open Avar against the United States, had
abandoned, lost, or forfeited all civil and political
rights under the Constitution, including those of rep
resentation in Congress, the next inquiry is Avhen and
in Avhat manner such rights might revert or be re
stored to them.
It is maintained by some that they were never lost,
but continued in full force during the rebellion, —
that is the doctrine of the minority of the " Committee
on Reconstruction ; " but, if the above vicAvs be sound,
it is obviously erroneous, and needs no further answer.
Others hold that although these rights Avere sus
pended or in abeyance during the rebellion, and until
peace was effectually secured by the exercise of
military power, yet that, Avhen that Avas attained, the
inhabitants of those States Avere instantly re-instated
in all their previous rights and privileges, and, upon
re-organizing their State governments so as to bring
them within the requisitions of the Constitution, they
became entitled to representation and participation in
the administration of the national Government.
And this, perhaps, is the general belief of those Avho
advocate the immediate recognition of those rights.
On the other hand, it is maintained that civil and
political rights and privileges under the Constitution,
being thus forfeited or lost by the voluntary flagrant
treason of the inhabitants of those States, can only

38 RECONSTRUCTION.
be restored by the permission and authority of that
constitutional poAver against Avhich they rebelled, and
by which they have been subdued
It is much to be regretted, that this question has
been too often, if not generally, discussed under a
form Avhich is believed to be, not only no true state
ment of the real issue, but one tending greatly to
distort and obscure it ; namely, Avhether such States,
by reason of the rebellion of their inhabitants, Avere
to be accounted as m or out of the Union. No
such issue has arisen upon the facts, and the ques
tion in that form is Avorse than a merely profitless
abstraction : it is a pernicious play upon Avords.
They, during and after the rebellion, Avere States
in possession of defined territories, and under organ
ized governments to Avhich they professed allegiance.
And they Avere clearly in the Union, in so far as
their territories, people, and amenability to the
Constitution and laAvs of the Union are concerned.
The national Government still maintained its right of
territorial jurisdiction over them, and of enforcing
obedience to the Constitution and the laAvs, as fully
as it ever had ; and their inhabitants remained citi
zens of the Union, and entitled to all the civil and
political rights and immunities which they ever pos
sessed as such, excepting those Avhich they had for
feited or lost or abandoned by their treason.
By that treason, each inhabitant has forfeited his
liberty and life as the penalty of his crime, if the

STATES UNDER THE CONSTITUTION. 39
Government shall see fit to exact it by due process of
laAv ; but, until arrest and sentence under such con
viction, he is still entitled to protection and immunity,
and the enjoyment of all the civil rights Avhich he
ever had resulting from such merely individual citi
zenship. And he may be restored to the future
undisturbed enjoyment of them by an act of amnesty
of the General Government, or by a pardon from
the ExecutiA'e after conviction and sentence.
But, Avith regard to the political rights of the
inhabitants of a State in its corporate political capa
city, — those of representation in the House and
Senate, for instance, — these, as has above been
shoAA'n, do not rest upon nor result from their Individ- '
ual citizenship, as citizens of the United States merely,
but depend also upon the political relations Avhich the
State bears to the Union, and cease to exist Avhenever
it has suspended, lost, forfeited, or abandoned the
rights belonging to it as a State in its normal relations
to the Government ; and can be restored only by
restoration of the State to those relations.
Such being, then, the condition of the States lately
in rebellion, Avhat are the rights and duties of the
General Government in regard to them, and to the
restoration of then- relations, rights, and privileges as
equal States in the Union ]

40 RECONSTRUCTION.

CHAPTER IV.
POWERS AND DUTIES OF GENERAL GOVERNMENT IN RE
LATION TO THE STATES IN REBELLION, AND WHEN
LEFT BY THE REBELLION WITHOUT ORGANIZED GOV
ERNMENTS UNDER THE CONSTITUTION; AND TO RES
TORATION OF THEIR POLITICAL PRIVILEGES UNDER
IT. — RIGHTS CONSEQUENT UPON AVAR.
There is no express provision in the Constitution
relating to the rebellion of the inhabitants of a State
in its corporate capacity against the authority of the
United States, nor to any penal or other conse
quences resulting from such rebellion, excepting in
so far as any citizen of the State may be punishable
individually for voluntarily participating in it, as
above suggested. And hence it has been argued,
that, in such cases, the General Government has no
poAver to compel obedience or fulfilment of the obli
gations Avhich the Constitution imposes upon the
several States.
This Avas the theory adopted by Mr. Buchanan in
the most perilous crisis of the country's history, and
from Avhich the leaders of the rebellion derived their
chief encouragement to resist the national authority,
Avhich, if duly exerted, might have saved her from
the terrible struggle that ensued.

powers of GENERAL GOVERNMENT. 41
And it is the argument still of secessionists and
their sympathizers. A moment's consideration, hoAV-
ever, seems sufficient to expose its fallacy. Upon
looking into the Constitution, it is found to contain,
among others, the folloAving express provisions, apply
ing exclusively to the States in their political corpo
rate capacities as such, namely: "The United States
shall guarantee to every State in this Union a repub
lican form of government." " No State shall enter
into any treaty or alliance or confederation," or
" enter into any agreement or compact Avith another
State or with any foreign poAver." " The citizens of
each State shall be entitled to all the privileges and
immunities of the several States." " The Constitution
and the laws of the United States which shall be
made in pursuance thereof, shall be the supreme law
of the land." " The President shall take care that the
laws shall be faithfidly executed." And " Congress
shall have poAA^er for calling forth the militia to
execute the laws of the Union, and suppress insur
rection and repel ^rvasion." And, in the face of
these provisions, is it possible to believe that any one
State may, at pleasure, impose a despotic or monarch
ical government upon an unAvilling and oppressed
portion of its people ? or may enter into a treaty
of alliance, offensive and defensive, with a foreign
nation? or into one of commerce, with discriminat
ing privileges in its favor, destructive of the interests
of the other States? or may prohibit the citizens of
6

42 RECONSTRUCTION.
the other States from enjoying the same privileges
and immunities Avith its own within its borders, and
expose them to loss of liberty and life upon undertak
ing to reside Avithin them ? or may openly violate the
Constitution or the laAvs of the land, and set the
Government of the United States at defiance ? — and
that there is no redress, but that these violations of
the Constitution must be quietly acquiesced in as
remediless ? Are these provisions — so express, and
so obviously essential to the internal peace, the
prosperity, the unity, the sovereignty, and security of
the nation, and without the power to compel the
fulfilment of which it would cease to be a nation —
meaningless AVords, a mere hrutumfidmen " of sound
and fury, signifying nothing " ? Such a construction
of the Constitution must be accounted palpable non
sense upon any other theory than that of the absolute
right of secession. What, then, is the remedy, and
Avhat are the consequences involved in the application
of it?
And it is obvious that Avar is the only remedy.
Any effective denial or violations of these provisions
of the Constitution by any State must be by forcible
resistance of the laAvful officers of the United States,
civil or military, engaged in the duty of compelling
C( mpliance Avith them ; for so long as they should
continue to be practically obeyed, no mere protest
against their obligation, by any mere manifesto or
proclamation, Avould justify recourse to force of arms,

POWERS OF GENERAL GOVERNMENT. 43
any more than would the mere declaration of oppo
sition to' the Government, and of an intention to
resist its laws by force of arms, amount to treason
under the Constitution. And, if such forcible resist
ance be resorted to by a State, the case presented
becomes at once that of an organized government,
possessing territorial jurisdiction, and asserting sov
ereignty and independence internal and external, and,
claiming the personal allegiance of its citizens as
paramount to all other allegiance, taking up arms to
repel the attempt of another sovereign State to
enforce obedience to its asserted authority. And
this is nothing less than actual war — civil war
indeed, but none the less actual Avar — between
sovereign States, or those claiming to be such, and
attended Avith all the attributes and consequences of
war according to the public law, or law of nations.
NoAv, one of the best-established principles of that
code is, that, as there is no acknowledged arbiter or
judge between the parties engaged in war, the victor
has of necessity the right to dictate the terms of
peace, provided that they be not inconsistent with
humanity and the generally recognized principles of
that code. And this rule, under certain limitations,
is as applicable to a civil war as to one between
sovereign States of no antecedent connections with
each other.
Vattel thus lays down the law of nations on this
subject : " A civil Avar breaks the bands of society

44 RECONSTRUCTION.
and government, or at least suspends their force and
effect; it produces in the nation two independent
parties, Avho consider each other as enemies, and
acknowledge no common judge. These two parties,
therefore, must necessarily be considered as constitut
ing, at least for a time, tAvo separate bodies, two
distinct societies. Having no common superior to
judge between them, they stand in precisely the same
predicament as two nations loho engage in a contest,
and have recourse to arins."
Wheaton lays doAvn the laAV to the same effect.
(Dana's ed., § 296.)
And it has been expressly recognized and enforced
by the Supreme Court of the United States in the
Prize Cases, 2 Black's U.S. Rep., p. 638, in reference
to the late rebellion.
War, therefore, being the only possible solution of a
controversy betAveen one of the States and the Gov
ernment of the United States, involving absolute
denial and violation of the duties and obligations of
the State, — the only tribunal to which appeal for
a final decision could be made, — neither necessity
nor propriety required that it should be set forth in
the Constitution, as the means of determining the
issue made between them, any more than they would
require the statement in a civil contract, that, if either
shoul4 fail to fulfil the obligation Avhich it imposed
upon him, the other should have the right to appeal
to a judicial tribunal for redress.

POWERS OF GENERAL GOVERNMENT. 45
In this case, both parties did thus appeal to the only
and ultimate tribunal between contending States, and
took upon themselves respectively the consequences
of its judgment.
If that judgment had been in faA'or of the confed
erate States, the sovereignty, independence, and right
of secession which they asserted, Avould have been
vindicated, and finally adjudged to them, as matter of
future indisputable right. And the United States
would not only have been bound by that decision, but
might also have been justly, by the law of nations,
compelled to enter into such stipulation, and give such
security, as the confederate States might reasonably
exact, to prevent the United States from ever there
after re-asserting claims to their allegiance or obedi
ence. But the judgment was against them, and a
corresponding just right accrued to the United States,
not only to enforce obedience to the duties imposed by
the Constitution, and keep the confederate States
under military control until the peaceful fulfilment of
them could be relied upon ; but also to require full
indemnity for the Avrongs and losses caused by the re
bellion, including payment of the debt incurred in
suppressing it, if the confederate States could re-im-
burse tlie amount of it, and any security Avhich reason
and justice might shoAV to be necessary to prevent
any future perpetration of the crime.
But the powers of the United States, as victors in
such a contest, are by no means as unlimited as they

46 RECONSTRUCTION.
might be in a war Avith another nation of acknowl
edged independence. They cannot be considered as
extending to the absolute subjection and permanent
control of the confederate States as conquered terri
tories, nor to the imposition of any such unqualified
terms, conditions, or exactions as the exercise of more
sovereign will and poAver might justify in such other
war. The power to wage Avar upon a State in rebellion,
for the preservation of the Union, is a constitutional
poAver necessarily invested in the Government solely
for that purpose, and limited by that necessity. It
cannot, therefore, be exercised for any other end, nor
beyond the means justly and reasonably required for
its accomplishment. It cannot justify the holding of
the territories of the State as conquered or as prov
inces under military rule, or the depriving them of
the rights of civil government, or of their previous
constitutional privileges, any further than may be
necessary to enforce present obedience to the Consti-
tion and the laAvs, and for security against danger
of future like disobedience or revolt. But so far as
the attainment of these ends may render the occupa
tion and government of the State by military rule,
or the Avithholding of any civil rights and privileges,
essential, so far the right of such occupation, govern
ment, and authority is as obviously and indisputably
justifiable as Avas the right of Avaging the Avar to ob
tain those ends. And, as above stated, the Govern-

POWERS OF GENERAL GOVERNMENT. 47
ment, as the victor, must, by the necessity of the case,
be the sole judge of such necessity and of the proper
security to be demanded ; being governed in the exer
cise of its discretion by the limits of constitutional
authority, as above stated.
This vicAV, it is believed, furnishes a satisfactory
answer to the insensate clamor raised against the ad
vocates of the poAvers of the General Government as
founded upon the rights of war, and by which dema
gogues and sympathizers in rebellion have attempted
to darken the understanding of the people, and lead
them to believe that the assertion of such powers is
nothing short of advocacy of an usurpation, tram
pling the Constitution under the heel of military des
potism, instead of being, as it truly is, a vindication
of the only means which the Government possesses of
self-preservation, and for maintaining the Constitution
and the life of the nation secure against future like
outrage and danger.
It surely cannot be pretended with any shoAv of
reason, that the States recently in rebellion could be
come entitled to immediate restoration of their former
political poAvers and privileges, merely upon the lay-
ing-doAvn of their arms and professions of submission
to the Constitution and the laAvs, if it should be
satisfactorily apparent that such surrender and pro
fessions were a mere subterfuge in order to obtain a
suspension of hostilities Avith the intention of renew
ing them at a more favorable opportunity, or if they

48 RECONSTRUCTION.
were made with the view of using those political
poAvers and privileges as the means of accomplishing
in another mode the same purposes for Avhich they
had been Avasinsr the war.
This would be to render the contest, and the victory
purchased at such cost of life and treasure, barren
and Avorthless indeed. Obvious justice and the hum
blest common sense alike dictate that the right to
secure peace and future security, the only desired
fruits of the conflict, is no less clear than the right to
fight for them ; and that, if it Avas humane and just
for the nation to enter upon the war and sacrifice the
lives of such hecatombs of the best and braAest of her
sons and such incalculable treasure to protect the
Constitution and the Union from violation and dis
ruption, it can be no less humane and just to exact,
as the condition of restorino; her rebellious children
to their former political poAvers and privileges under
them, reasonable security against the repetition of the
crime, Avhether in the field of battle or in the halls
of legislation.
Nor in this connection is it to be forgotten, that the
potitical poAvers and privileges to Avhich immediate
restoration is thus claimed are not any AA'hich the
Government of the United States has voluntarily
taken aAvay from the rebel States, either as punish
ment for their offence or as indemnity for the future ;
but are those only Avhich they themselves deliberately
and Avickedly cast aAvay, repudiated and abandoned,

rOAVERS OF GENER.\L GOVERNMENT. 49
in perpetration of the blackest and most fearful crime
knoAvn in human society. — the blackest and most
fearful, because involving, not only the broach of the
most solemn obligations, but of necessity also the
ruin of numberless happy families, the sacrifice of
hosts of precious lives, the loss of countless treasures
of national Avealth and industry, — the crimo of par
ricide jxgaiust the most humane and parental govern
ment the Avorld oAor looked upon, against Avhich tlioy
could not allege one instance of Avrong or oppression ;
the crime of fratricide, involving tlio shedding of tor
rents of brothers' blood, tlio making desolate of hun
dreds of doinostic hearths, and the shrouding of
thousands of homes in mourning to terminato only in
the grave. Surely, it is not for those guilty of crimes
like tlioso, Avith htuids stained Avith the blood of their
victims, imd their heiu'ts and mouths fiUl of bittoruoss
and hatred of those Avho upheld the Constitution
and the laws in this torriblo strife, arrogantly to de
mand immodiato restoration of the poAvers and priAi-
logos so impiously trampled under foot, tliat thoy may
resume their former unhappih paramount influence
and poAver in the councils of the nation Avhose Ufe
thoy have thus sought to destroy : nor to resent as an
insult the requisition of tliose whom tlioy haAC thus
cruellv luid grioAously AA'ronged, that some security be
glA-cn against the repetition of their crime.
Suppose, that iu the aviu- of the revolution, England

50 RECONSTRUCTION.
had been successful and conquered the revolting colo
nies, and re-assumed her territorial powers and juris
diction over them. What question could there be of
her power to impose such terms as she should think
proper, for restoration to them of their previous colo
nial rights under their charters, notwithstanding that,
upon the laying-down of their arms, they were indi
vidually restored to the rights of citizenship until con
viction of treason by process of laAv ?
Or if a large portion of the inhabitants of any one
State, composing entire counties or districts entitled
to representation in the legislature, should rise in
rebellion and expel the State government from these
territories, carry on civil war, finally terminating in
their subjection, what reasonable doubt could exist of
the right to take possession of those territories, and
hold them until peace and order should not only be
presently restored, but also made reasonably perma
nent, by continuing the force necessary for that pur
pose so long as such necessity should continue, or
until guaranties should be given such as to render it
needless ; the individual citizens meanwhile being left
in the ordinary enjoyment of all their civil rights,
excepting those ,only of representation in the State
government ? How can the war be said to be finally
terminated until absolute security is obtained ?
And upon what principle can like authority be
denied to the Government of the United States over

POWERS OF GENERAL GOVERNMENT. 51
inhabitants of the States under its authority, until
peace and the security for life, liberty, and property
of all loyal citizens within their borders shall be
secured, leaving to such inhabitants the enjoyment of
all other civil rights but those which entitle them to
take part in the Government ?
The principle so confidently maintained, that the
inhabitants of the rebel States, upon the laying-down
of their arms, became at once restored to all their po
litical rights as States, as well as their former civil ones
as citizens, until convicted of treason, involves the
palpable and enormous absurdity that they are thus
restored, although such surrender was not only en
forced upon them and was altogether involuntary, as
is the truth here, but was with intent of resuming
their hostile attitude again as soon as they could
gather strength for the purpose, and although the
danger of such resumption was palpably imminent,
and although, in the mean time, they were perpetrating
upon loyal citizens atrocious cruelties, from Avhich the
ordinary protection of civil law was entirely inade
quate, and evinced a settled determination to continue
such perpetration. The case need but be stated to
make its absurdity self-evident.
Upon the principles of public law, therefore, appli
cable, to this extent, to civil as well as to foreign
war, as founded in the absolute necessity of the case,
the General Government has the sole power and the

52 RECONSTRUCTION.
right to determine when the conflict has ceased, and
upon what terms and conditions, consistent with the
objects of the war, the inhabitants of the States in
rebellion shall be restored to political equality as
States in the Union.

POLITICAL RIGHTS AND PRIVILEGES. 53

CHAPTER V.
POLITICAL RIGHTS AND PRIVILEGES OF REBEL STATES
FORFEITED AND LOST.— RESTORATION MUST BE BY
ACT OF GOVERNMENT. — LAW OF SELF-PRESERVATION.
But independently of the right of the General Gov
ernment to prescribe the conditions upon which the
inhabitants of the rebel States may be restored to
equal political privileges AAdth the other States under
the Constitution, as one resulting from the war, there
are several other grounds upon which, as is believed,
it may be satisfactorily vindicated.
As the Constitution contains no express provisions
determining the status of the inhabitants of a State
in rebellion, or their right to restoration of political
privileges as a State under the Constitution, after
subjugation or submission to the authority of the
General Government, such restoration is necessarily
one of construction, or implied right or poAver, to be
settled upon general principles.' And the proposition
which first suggests itself is that the power of decid
ing upon the right of such restoration, and upon the
terms of it, resides in the General Government as mat
ter of absolute and inevitable necessity.
The Constitution is the supreme law, and the Gov-

54 RECONSTRUCTION.
ernment estabhshed by it was for the purpose of car
rying that law into effect. The Government is the
sole agent of the people for this purpose, and so has
supreme authority to decide every question arising
under it, in the particular modes pointed out by the
Constitution where such questions admit of their
application, and by its own action where none such
are provided. The Government represents the whole
people of the United States in all matters of law
arising under the Constitution, as in all other things
provided for by it; and has not only the power, but
is under the obligation, " to provide for the common
defence and general welfare of the United States,"
and " to make all laAvs which shall be necessary and
proper for carrying into execution the foregoing power,
and all other powers, vested by the Constitution in
the government of the United States."
The nature of the political relations of the several
States to the United States is obviously pure matter
of law. Any question concerning the violation or
forfeiture of them, or the right of restoration to them
if lost or forfeited, is also a pure question of law,
and one which must of necessity be decided. All
these and cognate questions are not outside of the
Constitution, but are questions under it, affecting its
existence and the existence of the Union, and must
be decided: the nation's life is at stake upon them.
If, then, no other tribunal has been appointed for
their decision, the General Government has supreme

POLITICAL RIGHTS AND PRIVILEGES. 55
authority to decide them : or, if they are of a nature
to be ultimately decided by the Supreme Court, still
the present decision, for the time being, until the
question can be brought before that tribunal, if it
ever could be, must be by the General Government ;
for a present decision one way or the other by it must
be made. Inaction is as much a decision against the
right, as action is one in favor of it. It has therefore
the final, or, if not the final, the immediate right of
decision ; and such decision is its present first duty
under the clauses above stated. No one will dispute
that the settlement of these questions is essential to
" the common defence and general welfare of the
United States." 'No one can question that Congress
is invested with full powers to " provide for that
defence and welfare." And no one can point out any
other tribunal by which the nature of them can be
adjudged, and the proper remedy applied.
The action of Congress, therefore, seems not only
justifiable, but an absolute necessity. All these ques
tions being obviously matters of legal right, — of law
purely, — the decision and the provision for them
must of like necessity rest with the law-making
power, — that is, the Congress, — or with the judiciary
And nothing can seem more manifestly in contradic
tion to all legal principle, or a plainer usurpation,
than for the executive department of the Government,
whose ofiice is confined to the administration of the
law, to assume the right of deciding upon the nature

56 RECONSTRUCTION.
of those relations and the manner of their restora
tion. The next proposition is, that State rights, being
corporate rights or privileges or franchises only, be
longing to the States as subjects of the national Gov
ernment, and being lost or forfeited by their rebellion
against it, never could revert or be recovered by their
subjugation or submission; but any restoration of
them must be by a grant from the sovereign power
which created them.
State rights and powers are such, and such only,
as were granted, defined, or recognized by the Con
stitution. The States are in no sense sovereign
under it, nor are they in any part of it styled or rec
ognized to be such. They have no right to decide
any question under it in the last resort, but are always
amenable and subject to the final decision of the
General Goverment upon it. In certain cases they
may sue and be sued, and in such cases must submit
to the judgment of the supreme judicial authority, like
any other subject. They are component parts of the
nation as " bodies politic," or " corporate bodies," or
"political societies" as Mr. Madison styles them, in the
same manner as individual citizens are component
parts of it. However distasteful the truth may be to
the magniloquent advocates of State rights, the truth,
nevertheless, is, that the States are subjects of the Gov
ernment established by the Constitution, and bound
by the law in the same manner as other subjects.

POLITICAL RIGHTS AND PRIVILEGES. 57
The right of representation in Congress, and so to
participate in the administration of the General Gov
ernment, was not one belonging to them in their
original capacities Avhen the Constitution was formed,
nor one created by them as the framers of the Con
stitution. It was one conferred upon and granted
to them by the whole people of the United States, in
the formation of that frame or structure of govern
ment. The people of the United States was the
grantor, and the several States respectively were the
grantees, of that right. It was not one which they
had the power to lay down and re-assume at pleasure.
Such a principle would be obviously destructive of
a government created for the ruling and preservation
of a nation ; but the right was given and made de
pendent upon the existence and fulfilment of certain
relations and conditions prescribed by the Constitu
tion, and in such manner that it could not exist unless
they were complied with.
These rights, then, were merely corporate rights,
belonging to the States only as political corporations
or societies, and implying corresponding allegiance
and obedience to the Government from which they
were derived, in the same manner as d6 the rights
and privileges of any other corporations created by a
civil government. And it is not perceived why they
may not be lost and forfeited by misuser or nonuser,
in the same manner as may be any other corporate
rights created by such governments. Nor is it seen

58 RECONSTRUCTION.
why Congress might not, in the exercise of its
supreme power of deciding or providing means for
deciding all questions of law arising under the Con
stitution, have provided a mode of trying and deter
mining questions, like the present, concerning the
forfeiture or loss by States of their political rights
and franchises under it.
No such tribunal, indeed, could be necessary in an
ticipation of fiagrant rebellion and civil war, in which
such civU rights and privileges would be not only
renounced and abandoned, but the wealth and
strength derived from their enjoyment and the or
ganization on which they were founded, were to be
the chief means of sustaining the contest against the
Government which created them. Such rebellion and
war, as has before been shown and seems to be self-
evident, is, of necessity, a destruction of any corporate
rights or franchise under the Government thus assailed
by the corporation itself And, no other tribunal
having been established to pass in judgment upon
such forfeiture or destruction, the power of doing so,
if any judgment were needed, necessarily resides in
the Government itself in political as well as in legal
questions. Another ground upon which these political rights
may be accounted as forfeited or lost is, that, as above
shoAvn, they were granted upon condition of the con
tinued existence of certain prescribed relations to the
United States and obedience to the Constitution and

POLITICAL RIGHTS AND PRIVILEGES. 59
the laws ; and, that condition having been voluntarily
and entirely broken, they were by the terms of the
grant, and the principle universally recognized in
continuing grants upon conditions, totally and irrevo
cably forfeited and lost. And, being so forfeited or
lost, every principle and analogy of civU law and of
common sense dictates that restoration of it must
depend upon the assent of the other party ; namely,
the people who granted it, and who, for all purposes
of upholding the Constitution and protecting the life
and welfare of the nation under it, are represented by
the General Government, which is invested with
plenary and final power to determine all questions
arising under it.
All analogy sustains this Adew of the subject. In
all cases of contract, founded upon conditions, breach
of the conditions is finally fatal to all rights under it,
and their restoration could only be obtained by re
mission of the forfeiture by the other party. So, in
cases of treason once committed, no penitence, no
proffered return to allegiance, no obedience however
entire, can wash away the crime : pardon from the
government whose authority was violated can alone
restore the guilty party to immunity in his former
civil rights of property, liberty, and life. And it
would be strange indeed, if criminals thus under the
ban of the laAV, as having forfeited all their personal
rights, including that of life itself, may still retain,
in their political corporate capacity as a State, their

60 RECONSTRUCTION.
privileges and poAver of participation in the adminis
tration of the government Avhich they sought and
may be still seeking to destroy, — strange indeed, that
the government should be invested with full power
to protect itself against danger from their treason as
individuals by the extremest punishment, but have
none whatever to protect itself against the infinitely
greater danger resulting from treason in their politi
cal corporate capacities as component parts of itself;
none to expel the most dangerous internal enemy,
but must continue to maintain and nourish the viper
gnaAving at its heart.
It is no ansAver to pretend that the law against trea
son subjecting every individual guilty to loss of life is
a sufficient protection, as it may be administered to the
extent necessary for preventing repetition of the crime;
for, however sufficient that defence might be in ordi
nary cases of insurrection or conspiracy by compara
tively fcAV individuals acting in their individual
capacities, it is utterly and obviously incompetent and
futile in the case of a rebellion by the people, or a
large majority of the people, of a State, acting in its
corporate capacity. Such punishment at the utmost
could be extended to a few only of those of most
prominent influence, position, or criminality. It could
ncA'er reach the mass of voters, Avho Avould be still left
to the uninterrupted and practically unassailable
enjoyment of their most important political rights, —
and those not only the most dangerous, but, it may be,

POLITICAL RIGHTS AND PRIVILEGES. 61
the only ones by the exercise of which they could
peril the safety of the Government and the peace of
the nation. Upon such a theory, the Government
would be utterly powerless to protect itself from the
hostility of traitors red-handed from the battles of
rebellion, seeking to accomplish by political machina
tions the destruction they failed to accomplish on the
field. It would seem that no merely technical con
struction of the Constitution, rendering the Govern
ment so feeble and incapable of self-protection, and
for accomplishing the great ends of national unity,
peace, and prosperity for which it was created,
can be accepted ; but that the common sense and
the instinct of self-preservation alike cry out against
it. Again, if the theory referred to be sound; if the
inhabitants of a State may thus rise in rebellion, and,
after waging a bloody and costly Avar against the
Government, may, by the mere laying-down of their
arms and seemingly sincere professions of obedience,
assert the absolute right of restoration to political
station and power in the national administration, — it
follows that the nation has no protection from revolt
and national embarrassment or ruin beyond the mere
pleasure of the inhabitants of any State, or number of
States, to keep the peace; for if they may rebel, and,
being conquered, may resume all their former rights, —
or (to speak more properly according to the theory)
if they have never lost any by rebelUon, — it folloAvs

62 RECONSTRUCTION.
that they may resort to this process, or the threat of it
(Avhich in many cases would be hardly less disastrous
than the reality iu a national point of view), whenever
they might think it expedient to do so, for the pur
pose of obtaining some desired political end or ascend
ency, or of compelling the adoption of some especial
local or national policy, with the certainty, that, while
enjoying the chance of success, they could lose nothing
if defeated, and with the possibility that even defeat
might prove a gain, as in the present instance, Avhere,
upon their theory, they would be entitled to re-assume
their former political rights, but with a vast increase
of relative power in the Government. And such rebel
lion might be endlessly repeated Avith the like impu
nity, with the chances of gaining the desired end if
successful, and the certainty of sustaining no loss of
political power if defeated. The national Govern
ment, if of such a nature, would be little worth the
blood and treasure it originally costs for its establish
ment, or a tithe of those recently expended in its
preservation: it would be neither worth dying for
nor living under.
But there is another and broader view to be taken
of this subject, in the light of the great principles
upon which the Constitution Avas founded, and the
great purposes for Avhich it Avas created, extending far
beyond any merely literal or technical rules of construc
tion as applied to written contracts or instruments in
the ordinary business of life.

POLITICAL RIGHTS AND PRIVILEGES. 63
A constitution of national government demands
more than mere obedience to rules of law founded
upon domestic expediency, which renders their appli
cation to such instruments imperative and conclusive,
often without much, if any, regard to the fundamental
question of intention, or of right or wrong between
the parties, or the purposes for which they were made ;
and with none, if a technical rule can be found de
cisive of the question. Such rules are of inevitable
necessity in the multifarious relations and commerce
of individual life, and, in the long-run, subserve the
cause of justice.
But a contract creating a nation, and designed to
secure and perpetuate the internal and external peace
and welfare, and to preserve the life of a nation, calls
for very different rules of construction. The founda
tion principles of self-preservation and of essential
security for the great objects of the compact, must
have controlling influence over all other principles, if
in conffict with them, when applied to any issue in
which they are involved.
This principle of self preservation is fully recog
nized as one of established law in all civUized com
munities. A man, to save his own life, may destroy
the life of another, although innocent of any wrong to
him ; as in the famUiar Ulustration of two men upon a
plank at sea sufficient for the safety of one, but not for
both. Either may justifiably repel the other from it,
if the instinct or duty of self-preservation be not over-

64 RECONSTRUCTION.
ruled by higher motives. And it applies with infinite
ly more forcd, and with no possible qualification,
where a national government is called upon to vindi
cate its existence, the destruction of which must involve
mcalculable losses of life and of every thing that
makes life worth having.
Now, the Constitution of the United States was a
compact entered into by the inhabitants of the United
States for the declared purpose of erecting and main
taining " a firm national government," under which
they Avere to be united as one people, owing to it
individual allegiance as citizens of one nation, and
which was designed to possess all the powers of inter
nal and external sovereignty requisite for securing to
them internal and external peace, security, and pros
perity ; and any construction of it, therefore, which
renders it manifestly inoperative to accomplish these
fundamental objects, or incapable of resisting inter
nal or external assaults upon its life, cannot be
accounted the true or just construction, however
plausibly its vindication may be attempted by literal
interpretations of particular provisions, or specious
arguments founded on the omission of others, or any
technical rules of construction, ordinarily applied to
written contracts in private life.
The nation, as history abundantly shows, existed as
a nation before the Constitution was formed. The
nation created the Constitution, not the Constitution
the nation. It constructed that national compact for

POLITICAL RIGHTS AND PRIVILEGES. 65
the more perfect definition and distribution of the
various rights and powers which its citizens possessed,
or were intended to possess, in their individual capa
cities and in their corporate capacities as States ; and
to establish a form of government that should be
competent to protect them in the enjoyment of those
rights and the exercise of those powers, and to secure
to them the blessings of " a firm national government "
able to protect them at home and abroad, and to pre
serve their national unity from destruction by foes
within or foes without. And to give an instrument
designed for these purposes a meaning which renders
it not only powerless to accomplish them, but fur
nishes to enemies within the direct means of under
mining and destroying the authority of the Government
which it was designed to create and preserve, or to
construe it as susceptible of any such use or abuse,
or as wanting in any essential power of self-protec
tion, is to sacrifice the substance to the form, and per
vert a compact intended for the preservation of the
nation's life into one for its destruction.
The Government, formed by the Constitution, rep
resents the nation in every thing pertaining to it as a
nation. Its life is the life of the nation. And it not
only has the right, but is, on every principle of duty,
bound, to protect that life at all costs and all hazards ;
and for that end to exercise other powers than those
expressly given by the Constitution, if manifestly
necessary for that end, upon the obvious principle

66 RECONSTRUCTION.
that the possession of such ultimate power of self-
preservation was necessarily impUed in its creation.
In the language of the Report of the majority of
the Committee on Reconstruction, which every one
desiring to understand the subject should know by
heart, —
" It is more than idle, it is a mockery, to contend
that a people Avho have thrown off their allegiance,
destroyed the local government Avhich bound their
States to the Union as members thereof, defied its
authority, refused to execute its laws, and abrogated
every provision which gave them pohtical rights within
the Union, shall retain, through all, the perfect and
enthe right to resume at their own will and pleas
ure all their privileges Avithin the Union, and espe
cially to participate in its Government, and to control
the conduct of its officers. To admit such a princi
ple for one moment would be to declare that treason
is always master, and loyalty a blunder. Such a prin
ciple is void by its very nature and essence, because
inconsistent with the theory of government, and fatal
to its own existence."
Upon every principle, therefore, of public law ap
plicable to a condition of peace or war; upon any
reasonable construction of the Constitution in refer
ence to the relations of the inhabitants of the several
States, and of those States to the national Govern
ment which it created and defined ; and upon the fun
damental principles of interpertation applicable to

POLITICAL RIGHTS AND PRIVILEGES. 67
civil or national compacts, — it is believed that no rea
sonable doubt should exist that the inhabitants of the
States recently in rebellion, by that act forfeited,
abandoned, or lost their political rights or representa
tion in Congress, and at the close of it, by their en
forced surrender, were, in the language of that report,
" disorganized communities, without civil government,
and without constitutions, or other forms by virtue
of which political relations could legally exist be
tween them and the Federal Government." The
vast majority of them were criminals who had vio
lated their allegiance, forfeited all rights civil or po
Utical, including those of liberty and life itself, holding
them only at the mercy of the Govenrment which
they had thus outraged and defied, but to whose power
they had been compelled unwillingly to submit.
And consequently that they could be re-instated in
their political rights only by the assent of the Gov
ernment which represented the nation, and is fully
empowered to do all things needful for the preserva
tion of the Constitution and the Union, and the res
toration of the people to unity and the enjoyment of
political privileges under them.

PAET SECOI^D.

CHAPTER I.
REPLY TO THEORIES AND ARGUMENTS ADDUCED IN
SUPPORT OF THE PRESIDENT'S POLICY. — ALLEGED
DESTRUCTION OF STATES BY IMPOSING CONDITIONS
OF RESTORATION.
It having been attempted, in the previous article
upon this subject, to maintain affirmatively the right
of Congress to impose upon the people of the rebel
States terms or conditions of restoration to their
political power and privileges as States in the Union
under the Constitution, a just treatment of the sub
ject demands consideration also of the position
taken, and arguments adduced, in defence of the
opposite theory, usually designated as the President's
policy. These are to be found in the Report of the minor
ity of the Reconstruction Committee, the Address of
th? Philadelphia Convention of August, and the
recently published letter of a gentleman, of national
celebrity as a lawyer, whose acknowledged claims to

70 RECONSTRUCTION.
general confidence and respect give very great weight
to his opinions upon a subject like the present, and
invest them Avith much of the force of judicial
authority. The principal positions and arguments contained
in the Report and Address referred to, it is believed,
have been substantially met and answered by those
taken in the preceding article, maintaining the right
of Congress to impose such terms and conditions, —
the antagonism betAveen them being so direct and
obvious as to render those on either side subversive
of those on the other, according to the convictions
produced in the mind of the reader ; although some
of them will receive further consideration below.
The letter, however, referred to as containing an able
epitome or summary of the whole matter, with some
new and original views, — and as having great and
wide influence in this vicinity, if not far beyond it, —
seems to demand a more careful and direct answer.
There Avould be several reasons which might pre
vent the writer of this article from entering upon the
task, if such answer Avere to be taken alone, as a
reply merely to that letter, and thus to place him in
seeming voluntary antagonism to a personal friend.
But personal reasons can no longer control when
such reply becomes an unavoidable duty, as a neces
sary portion of a humble effort to defend or uphold
a principle of government which he deems essential
to the salvation of his country from despotism or

THE president's POLICY. 71
anarchy, to the brink of Avhich he sadly but pro
foundly believes her to be now brought by the course
pursued by the national Executive.
The object of the letter is to sustain the President
in the theory he has adopted, that the inhabitants of
the States recently in rebellion (and which for brevity
wUl be denominated " the rebel States ") are lawfully
entitled to the immediate restoration of their former
political rights and powers in the administration of
the national Government, upon the determination or
fiat of the executive head of the Government that
the rebellion has ceased, and that the authority
of the Constitution and the laws of the United States
have been re-established among them ; and to over
throw the contrary doctrine maintained by Congress,
that the Government, in its legislative capacity, alone
has the right and power of determining when such
restoration shall take place, and of prescribing such
terms and conditions of it as may be deemed neces
sary for the protection and future peace and security
of the country.
Starting with seemingly very simple postulates or
propositions, — so simple, indeed, as to have the
appearance of mere truisms, but which, it is believed,
have no substantial application to the case in
hand, — the letter proceeds to draw from them the
desired conclusions ; and, having accomplished this by
way of general argument, it finally startles us with a
novel and specious construction ^of the Constitution,

72 RECONSTRUCTION.
investing the President with the omnipotent authority
he claims, — a construction believed to be entirely
original, and Avhich, if maintainable, entitles the
author to the profound gratitude of that functionary,
and of all Avorshippers of the " one-man poAver." So
that, after the perusal of the letter in the usual man
ner in Avhich papers of this sort are read, one might
naturally lay it down in a sort of dreamy conviction
that the President's policy is vindicated by the
simplest and clearest of demonstrations, " which he
who runs may read."
It is proposed, however, more carefully to examine
the premises, and the conclusions justly deducible
from them, if they can be applied to the existing
facts. And, upon such examination, it is believed
that the author of the letter, and Congress, will be
found to be much nearer to each other in ultimate
opinion, as founded upon general principles, than he
seems to imagine ; and that the great difference
between them Avill rest mainly on the novel construc
tion of the Constitution alluded to, which wUl also be
examined, and with great confidence that it has no
solid foundation.
Before proceeding, however, to these matters, it
may be well here to record two most essential princi
ples conceded by the author, lying at the founda
tion of the position taken by Congress, and which, in
a justly comprehensive application of them, it is
thought go very far (if not entirely) to overthrow

THE president's POLICY. 73
the argument he has attempted to raise upon the
postulates referred to.
The first is that of the unquestionable authority
and right of the Government to subdue the rebellion
by force of arras, laid doAvn in these words : —
" The Government of the United States may and must, in the
discharge of its constitutional duty, subdue by arm.s any number of
its rebellious citizens into quiet submission to its lawful authority.
And if the officers of a State, having the actual control of its
Government, have disobeyed the requirements to swear to support
the Constitution, and have abused the powers of the State, by mak
ing war ou the United States, tliis presents the ease of an usurping
and unlawful Government of a State, which the United States may
lawfully destroy hy force ; for, undoubtedly, the provision of the
Constitution, that the United States shall guarantee to every State
in this Union a republican form of government, must mean a
republican form in harmony wiih the Constitution, and which is so
organized as to be in the Union." ^
The second, and of no less importance, is that the
Government of the United States alone has the
poAver to decide when the time has come for the res
toration of the inhabitants of the rebel States to their
political rights and poAvers as States in the Union.
This principle is thus laid doAvn : —
" And if the preservation of the States within the Union was
one of the objects of the war, and they can be preserved only
by having republican governments organized in harmony with the
Constitution, and such government can be organized only by the
people of those States, then, manifestly, it is not only the right, but
the constitutional duty, of the people of those States to organize
1 All italicizing is by the writer of this article, unless it be otherwise
stated. 10

74 reconstruction.
such governments, and the Government of the United States can
have no rightful authority to prohibit their organization. But this
right and duty of the people of the several States can only begin
when ivar has censed, and the authority of the Constitution and the
laws of the United States has been restored and established; and,
from the nature of the case, the Government of the United States
must determine when that time has come."
NoAv, these tAVO propositions embrace substantially
all that is claimed by Congress and its supporters;
the question "Avhen the war has ceased, and the au
thority of the Constitution and the laAvs of the Uiiited
States has been restored and established," — being, as
is at once perceived, of very broad scope, — compre
hending other most material considerations besides
those of the mere laying-down of arms and formal
submission to that authority.
The Avar cannot, Avith any pretence of reason, be
considered to have ceased, nor the authority of the
Constitution and the laAvs to luiA'e been restored and
established, if the surrender and professed submission
Avere formal merely, or intended to endure only so
long as their enforcement could not be successfully
opposed ; nor if future resistance Avere designed of
any kind ; nor so long "as the rights and privUeges
of all citizens of the United States under the Consti
tution and the laAvs could not be fully vindicated and
secured by the impartial and faithful administration
of justice in the courts of those States- and of the
United States. And, if it is lawful and just to Avith-
hold from these States the restoration of political

THE PRESIDENTS POLICY. 75
rights and power in the administration of the national
Government until these ends shall have been accom
plished (as is thus conceded), it is not perceived Avhy
it may not be equally laAvful and just to propose and
require of them the fulfilment of reasonable condi
tions, by which such restoration may safely be made
immediate. If the people of those States prefer the
delay to accepting of the conditions, it is their
own choice, and they can have no just cause of
complaint. From these two principles or propositions above
cited, and the further one stated in the letter, that the
only rightful objects of the Avar —
" are not the destruction of one or more States, but their preserva
tion ; not the destruction of the Government in a State, but the
restoration of its government to a republican form of government in
harmony with the Constitution," —
the further conclusion is logically inevitable, that
during the rebellion, and until such re-organization,
the inhabitants of those States did not compose States
in the Union under the Constitution, and Avere not
entitled to any political poAver and privileges as such ;
although such inhabitants continued to be Avithin the
Union as citizens of the United States, and subject to
the authority of the national Government. And upon
these three concessions or postulates, — namely, that
the Government of these United States might rightfully
subdue the people of the States in rebellion by force
of arms ; that such people durmg the rebellion, and

76 RECONSTRUCTION.
until the authority of the Constitution and the laAvs
Avas restored and established, did not compose States
under the Constitution, and had no right nor poAver to
organize themselves into such States; and that the
Government of the United States is the rightful
judge of the time Avhen such authority has been
restored and established, and such re-organization
may take place, — it is believed that the claims of
Congress might safely be rested, as substantially
controlling all the other positions taken in the let
ter, saAdng that of the noAV construction above al
luded to.
But the specious logic of the letter requires, per
haps, a more critical examination of the premises
and mode of argument adopted in defence of the
President's policy, and in opposition to the claims of
Congress. Of the premises or postulates, the first in order is
in these Avords: —
" The nature of our Government does not permit the United
States to destroy a State, or acquire its territory by conquest."
The second is as folloAvs : —
" Neither does it permit the people of a State to destroy the
State, or lawfully affect in any way any one of its relations to the
United States."
And both are said to be equally inconsistent with
the Constitution. In another place, the first premise
is stated thus : —
" But neither the power and duty of the Government of the

THE president's POLICY. 77
United States to subdue by arms rebellious people in the territorial
limits of one or more States, nor its power and duty to destroy a
usurping Government de facto, can possibly authorize the United
Srtites to destroy one of the States of the Union, or, what must
amount to the same thing, to acquire that absolute right over its
people and its territory which results from conquest in a foreign
war." NoAV, these premises, taken in their literal and
seemingly natural meaning, are simple and undenia
ble, excepting the assertion that to exercise the
rights of conquest over the inhabitants of a rebellious
State, subdued by force of arms of the Government
of the United States, is the same thing as the de
struction of the State by that Government, Avhich Avill
presently be considered. No one ever pretended that
the Government of the United States, acting Avithin
its constitutional limits, could voluntarily destroy a
State, or could voluntarily assent to the AvithdraAval of
a State from the Union, or to the alteration of any
of her constitutional relations to it. And, if these
premises are to be thus understood, it is obvious that
they have no relevancy to the case under considera
tion. But it is impossible to believe this to be their
intended signification. To give to them any reason
able interpretation, as applicable to any issue before
the country, they must be construed as implying and
intended to signify, that any terms imposed upon the
people of the rebel States as conditions___of their res
toration to the privileges of States in the Union, be
yond those of present submission to the authority of

78 RECONSTRUCTION.
the Constitution and the laws, is virtually the destruc
tion of those States, or can be rightfully enforced
only upon the hypothesis that the Government of tlie
United States has accomplished that destruction by
becoming their conquerors in Avar.
This mode of reasoning, usually founded by its au
thors on representations or implications that the Gov
ernment was the aggressor Avhich inaugurated the
war, and was pursuing it for the conquest of the rebel
States and their subjugation to its authority, — and
which gives a corresponding bias to all their argu
ments and hypotheses, — however unconsciously
adopted, is nevertheless believed to be founded upon
an entire misconception or erroneous supposition of
the facts as really existing, not to say on one the
entire reverse of the truth.
No one can honestly deny, that the war was origi
nally inaugurated, declared, and carried on by the
people of the rebel States in pursuance of a long-
cherished design to dismember the Government of the
United States, to destroy the Union, and to erect a
huge Southern slave empire on a portion of its ruins;
and that the Government of the United States, from
the beginning to the end of it, Avas acting purely and
solely on the defensive, to save itself and the Union
from destruction, according to the duty imposed upon
it by the Constitution ; and that so far from its hav
ing been instrumental in the destruction of those
States, or of any of their relations to the Union, or

THE president's POLICY. 79
seeking any such destruction, its sole object has been
to save them from it.
It is true, that their relations to the Union, as
States under the Constitution, have been destroyed.
But that destruction was the Avork of their own hands,
not that of the national Government. It was they
who, repudiating the Constitution and authority of
the United States, abolishing their former govern
ments established under them, sundering all the
relations Avhich could constitute them States in the
Union, and establishing a foreign and hostile govern
ment, Avaged open Avar upon the Government of the
United States to accomplish its destruction. And is
it not, in the face of these facts, a marvellous per
version to talk of them as being destroyed, or of
their destruction as being sought by that governmentl
Or to say that any thing which the Government has
done, is doing, or can do, renders it in any degree
accountable for their destruction 1 Is it not undenia
ble, that they themselves, alone, have been guilty of
the most criminal self-destruction as States under the
Constitution 1 that they have died by their OAvn hands,
and not by the hands of the United States 1 and that
all which is left for the United States to do is to aid
in their resurrection from the graves dug by them
selves ?
It is in the light of these facts that Ave are to judge
of the justness of the position above referred to ;
namely, that for the Government of the United States

80 RECONSTRUCTION.
to acquire that absolute right over the people of a
State and its territory Avhich results from conquests
in a foreign Avar is the same thing as to destroy the
State. This Avord " State," as used in this connection,
in order to have any sensible meaning, must be con
strued to mean a State under the Constitution, and
preserving its constitutional relations to the Union.
And hoAv, after the people of it have themselves
destroyed it, and the Government has conquered them
in a long and bloody Avar, the exercise of any rights
of conquest in order to compel them to return to
their allegiance, or to make it secure from future
violation, is the same thing as destroying it, is not
clear to every comprehension. If it was already
destroyed, as such a State, by its OAvn people, the
rights of conquest could add nothing to such destruc
tion, hoAvever exercised ; and surely not, if exercised
solely for its restoration.
These premises therefore, it is believed, may be
laid aside as being either irrelevant to any question
in issue, or, if susceptible of any seeming relevancy,
being so only upon the assumption or supposition of
facts having no existence.

powers of CONGRESS. 81

CHAPTER 11.
ASSERTED CONSTITUTIONvU:. LIMITS TO POAVERS OF CON
GRESS.— THEORY THAT THE PEOPLE OF THE LATE
REBEL STATES ARE ENTITLED TO COMPLETE IMME
DIATE RESTORATION.
But the position doubtless mainly relied upon in
denial of the right of Congress to enforce any terms
upon the inhabitants of the rebel States as condi
tions of restoration, is, that the right of the Govern
ment of the United States to subdue the rebellion
was a constitutional right, Avhich can be lawfully ex
ercised only " within the limits of the powers con
ferred by the Constitution';" and that this right is
thus confined to the subjugation of the rebellion, and
the restoration and establishment of the authority of
the Constitution and the laws of the United States
in the rebellious territories ; and that, when such
restoration and estabUshment have taken place, — by
whatever means, — the inhabitants become ipso facto,
as matter of right, entitled to "re-organization as States
under the Constitution, and to the immediate enjoy
ment of their former political powers and privileges
conferred by it; and hence, that no terms of indem
nity for the past or security for the future, hoAvever
11

82 RECONSTRUCTION.
mUd or generous, or however reasonable, can be
exacted. NoAv, admitting the theory to be true that the right
of the Government to subdue the rebellion was a
strictly constitutional right, and to be exercised solely
for the purpose of restoring and re-establishing the
authority of the Constitution and the laws in the rebel
States, and of bringing them into the fold of the
Union, — it is not perceived Avhere any limits are pre
scribed by the Constitution, or by what course of
reasoning any can be inferred from it, Ayhich prohibit
the Government, after the rightful subjugation of its
rebellious subjects by force of arms, from requiring
of them indemnity for the injuries they have inflicted
upon the nation, so far as such indemnity is possible ;
or from prescribing such conditions of restoration to
their former political poAvers and privileges as may
be necessary to prevent the future perversion of them
to the like criminal purposes ; and such security for
the personal safety, freedom, and immunities of all
citizens of the United States within their borders as
justice, humanity, and the plighted faith of the Gov
ernment, make necessary.
If the Government has the constitutional right to
subdue its rebellious subjects by war for the purpose
of restoring the authority of the Constitution and
the laws over them, it follows in the plainest logical
necessity that it must have also the constitutional
right to make that restoration complete and perma-

POWERS OF CONGRESS. 83
nent; for otherwise it can in no just sense be ac
counted a full restoration. And as the Constitution
neither does nor could prescribe limits to the exer
cise of the military power necessary for the purposes
of such subjugation and restoration, so neither does
it, nor could it, prescribe limits to the poAver by which
they shall be rendered permanently secure. Both
must be left to the good faith and sound discretion of
the Government, applied to the exigencies as they
arise. And it is conceded on all hands that it alone
must be the judge to decide when such restoration
shall be accounted as accomplished.
It is believed that the case on this point might
be very safely rested here, as showing that upon the
principles affirmed or conceded by the author of the
letter, carried out to their legitimate issues, the Gov
ernment has an unquestionable right to prescribe such
terms as, in the exercise of good faith and a sound
discretion, it should see fit to impose as conditions of
the restoration of the people of the rebel States to
their former political powers and privileges. But the
theory of their immediate right to such restoration
without any conditions or limitations whatever, which
he asserts and attempts to maintain, appears to be so
utterly inconsistent with any reasonable appreciation
of the facts as known to exist, and to lead to conse
quences so seemingly subversive of all future peace
and security, that they cannot be suffered to pass
unnoticed. He states this theory in these remarkable
words : —

84 RECONSTRUCTION.
"After much reflection, and with no such partiality for execu
tive power as would be likely to lead one astray, I have formed
the opinion that the Southern States are now as rightfully, and
should be as effectively, in the Union as they were before the mad
ness of their people attempted to carry them out of it ; and in this
opinion I believe a majority of the people of the United States
agree." It is presumed, that, by this time, the author must
be convinced that a very great majority of the people
of the Northern States entertain a totally contrary
opinion. And if, from the votes cast in the late elec
tions, those of interested office-seekers and their
friends, of sympathizers in the rebellion from the
start to this hour, of hirelings paid for their ballots,
of those actuated by an unrelenting hatred of the
Republican party as a controlling motive, and of
the hordes of ignorant foreigners who constitute the
strength of the Democratic party in the great cities,
were to be stricken out of the count, he Avould, it
is believed, find himself in a minority, in point of
numbers, indeed most miserable.
But how does this theory comport with the facts?
It is undeniable, in view of all the evidence before the
the world, — in the report of the Committee upon
Reconstruction ; in the daily reports from Southern
newspapers ; in the public speeches and addresses
of the leading men of the South, both occasional and
official; in the action of their legislatures and so-
called courts of justice; in the reports of the
mihtary commanders stationed among them, and of

POWERS OF CONGRESS. 85
the officers of the Freedmen's Bureau; in the
multitudinous relations of murders and outrages upon
the black man; and in accounts of the insecurity
of life in many parts of the Southern States, to any
Union man out of the scope of military protection,
with which the daily papers and private letters are
filled, — in the view of all this evidence, and with the
ghastly massacres of Memphis and New Orleans
yet fresh in remembrance, it is undeniable that a
general and almost universal conviction prevails at
this moment, among the inhabitants of the rebel
States, that their cause was a just one ; that the
undertaking, on the part of the Government of the
United States, to subdue them was unrighteous and
cruel, and that they are the victims of oppression by
the mere fortunes of war ; that the debt incurred by
them was in defence of their sacred rights, and ought
to be conscientiously paid ; that the debt contracted
by the United States was the fruit of an unjustifiable
and wicked war upon them, and should be repudi
ated, or at least that no portion of it should be
assessed upon them ; that slavery, which they were
forced to abolish, was in truth a divine institution, the
best possible for the black man as well as for the
white ; that the security and happiness of both races
require that the negro should be held in perpetual
subordination, as the hcAver of wood and drawer of
water ; that the privUege of the ballot, of serving as
a juror, or of holding any office of honor or emolu-

86 RECONSTRUCTION.
ment, or of owning or hiring land, or of education,
are all alike inconsistent Avith the dignity and safety
of the Avhite man, or the real good of the black man ;
and that, if any opportunity should hereafter present
itself for them to re-assert their right of secession,
and establish a Southern empire, it Avould be perfectly
righteous for them to do so.
Such are unquestionably the temper, the feelings,
the sentiments, and opinions of the great majority of
Southern men and women at this time, and of nearly
all of their recognized leaders. If, then, the author
ity of the Constitution and the laws of the United
States is, or appears to be, so far established among
them, that its courts and magistrates of law and other
officers are permitted to re-assume their functions, and
no open or organized resistance of it is ventured
upon, they nevertheless all stand upon the ashes
of this smothered volcano, whose embers are still
burning with intense heat beneath them, and where
existing forms of laAV and government are notoriously
inadequate for the security of the lives and liberty
of the freedmen, who lie exposed to the mercUess
inflictions of State legislation, and the still more merci
less persecutions of vindictive social hatred, from
which nothing in the existing Constitution and laws
can protect them.
This seeming restoration, then, of the authority
of the Constitution and the laAvs, if, indeed, such
seeming can be said to exist, is but an outAvard show ;

POWERS OF CONGRESS. 87
and, while the heart of the South remains unchanged,
can be but a hollow truce, unless some fitting safe
guard for the future be erected. Nor can it be
justly said that such precautions would indicate
unjust and unworthy suspicions of the good faith of
the inhabitants of the Southern States, who have
professedly returned to their allegiance. The diffi
culty is not in supposing them less worthy of trust
than other men, or than the people of the North
might be in the like circumstances. It is in the
nature of man, that he cannot long and patiently
submit in silence and quiet under the sense of such
accumulated wrong and injustice as the people of
the South imagine to be thus heaped upon them.
And, if the smothered fire should not find vent in
another open outbreak, it inevitably must in the
secret windings of political machinations and com
binations tending to the same end. Some security,
therefore, seems indispensable for the preservation of
any future peace or permament safety of the Union.
But why, it is asked, is not the new oath of alle
giance sufficient, and all that can be reasonably
demanded of honorable men or good citizens? The
answer is obvious. Nearly all the leading men of
the South had taken the oath of allegiance to the
United States, and broke it unhesitatingly to take
part in the rebellion, and substitute a neAv oath of
allegiance to another and hostile government. And
they did this, they say, conscientiously, under the

88 RECONSTRUCTION.
conviction that allegiance Avas primarily due to their
respective States, and that the allegiance due to the
United States was secondary only. And in this view
they Avere and are sustained by the nearly unanimous
voice of their people. And, they still earnestly main
tain that they were right in this construction of their
duties, and spurn with indignation the imputation of
any treason or falsehood against the Government of
the United States. And, this being so, what security
can there be that this new oath Avill not be taken or
construed Avith the like mental reservation? or, if that
might not be, why might they not hereafter, and with
truth, assert that this oath was not voluntary, but one
extorted under duress and the force of arms, and
therefore not binding upon the conscience ?
In view, therefore, of the facts, and of the general
principles to be applied to them, it seems to follow,
as of logical necessity, that (however the poAvers of
the Government of the United States might be sup
posed to be otherAvise limited by the Constitution, in
the carrying-on of the war and in prescribing con
ditions of peace and restoration) whatever terms are
demanded by the exigency, in order to make such
peace and restoration entire and permanent, must be
within the scope of those powers ; and that some
such terms or conditions are imperatively demanded
in the present case.
Upon what reason or principle, then, is this doctrine
denied, and an attempt made to shoAv that the Consti-

POWERS OF CONGRESS. 89
tution does interpose to limit those powers and to
prevent the imposition of any such terms ?
The main argument, if argument it may be called,
seems to consist in the formula above cited ; namely,
that the right of the Government to subdue the re
bellion, being a constitutional right, could be exer
cised only " Avithin the limits of the poAvers conferred
by the Constitution J." that those poAvers, being con
fined to the restoration and re-establishment of the
authority of the Constitution and the laAvs in the re
bellious States, were exhausted when such restoration
and establishment were accomplished, and the peo
ple of those States therefore become entitled to im
mediate restoration of all their former political
poAvers and privileges in the Union; and therefore
that an attempt to impose upon them any terms or
conditions of such restoration is an usurpation, hav
ing no other foundation than the assumed right of
the conqueror to dictate terms of peace, and Avhich
right, it is alleged, pertains to conquest in a foreign
war only, and not to one in a civil Avar. And no
little dust has been throAvn into the eyes of the
public, by efforts to make it appear that Congress,
in undertaking to impose any terms or conditions
of restoration, are usurping, and assuming to act
upon, the rights and poAvers of conquerors in a
foreign Avar.
It must be apparent to every reader, that this style
of reasoning is founded upon an entire begging of
12

90 RECONSTRUCTION.
the Avhole question : first, in assuming that the rebels,
upon such submission, became immediately and un
conditionally entitled to enjoyment of their former
poAvers and privUeges in the Union, — Avhen the main
question at issue is Avhether they do become so ; and,
secondly, in assuming that the right of the conqueror
in Avar to dictate terms of peace is confined ex
clusively to foreign Avar, and doe.? not extend to civU
Avar, — Avhich is also one of the material questions to
be decided.
In reference to the first of these questions, it is be-
licA-ed that no further argument can be needed to
prove that the right of the Government to subdue the
rebellion, and restore the authority of the Constitution
and the laAvs iu the rebellious States, involves, by an
inevitable logical necessity, the right to impose upon
the people of those States such terms and conditions
as shall make such restoration secure and permanent,
or to hold them under its military authority until it
shall have become so.

RIGHT OF GOVERNMENT. 91

CHAPTER III.
RIGHT OF GOVERNMENT AS CONQUEROR TO DICTATE
TERMS OF PEACE.
In discussing the right of the Government to dic
tate terms and conditions of peace as the victors in
the struggle, Ave must put aside, as Avholly hrelevant,
all questions concerning the right of the Government
of the United States to hold the inhabitants of terri
tories, acquired by conquest in a foreign Avar, perma
nently under military control, or under territorial or
colonial administration only ; or of its obligation
to admit them into the Union as States Avh,en fitted for
such admission. Also, any question of its right or
poAver, as the conqueror, to hold the inhabitants of
the rebel States iu permanent military or other con
trol as territories or colonies ; or to impose upon
them any terms or conditions of restoration to then-
former political rights and powers, Avhich it may see
fit to impose in the exercise of its arbitrary Avill only,
Avithout due regard to such ultimate restoration. And
Avith them may go the nonsensical clamor about mili
tary usurpation, military despotism, despotic aa'UI, and
irresponsible poAver, heaped upon Congress for main-

92 RECONSTRUCTION.
taining its right, as the victor, to impose conditions
of peace.
It is conceded, that the nature of the Government
of the United States, as created by the Constitution,
does limit its poAvers, as conquerors of the rebel
States, to the effectual subjugation of their inhabitants
to its authority, for the purpose of the restoration of
them to their former rights and privileges as States in
the Union ; and Avould not allow it to hold them in
permanent arbitrary subjection, as conquered territo
ries merely, any longer than may be needful for the
accomplishment of such restoration. But it is main
tained that the Government, nevertheless, has full
right and poAver, as the conqueror in the Avar, to pre
scribe the terms and conditions of peace upon Avhich
such restoration shall be granted, unlimited and un
shackled by any provisions of the Constitution, or any
other restraints than those of obedience to humanity,
justice, sound national policy, and the preservation of
the Union ; and that the Constitution does not ex
pressly, nor by implication, interpose to shield the
inhabitants of those States from the imposition of
such terms and conditions, or to entitle them to re-
assume their participation of poAver iu the national
councils, free from all restraint upon its perversion
for accomplishing hereafter the same purposes Avhich
they sought to gain in the field. Any other principle
obviously deprives the Government, Avhose life is the
life of the nation, of the poAver of self-preservation,

RIGHT OF GOVERNMENT. 93
and makes the Constitution, Avhich created it, the ready
means for its destruction.
The truth is manifest, that the exigency of a civil
war, by a combination of States against the General
Government, was not anticipated by the framers of
the Constitution, and is noAvhere contemplated in its
provisions; and consequently that the terms of it
have nothing to do with the case in hand, further than
this : that in establishing a frame of government upon
the broadest principles of freedom and humanity, and
for the especial purpose of establishing and perpetu
ating the Union, they impose upon that government
corresponding obligations to treat rebellious subjects
Avith all the mercy and magnanimity Avhich the nature
of their crime and the safety of the republic Avill
alloAv; and the further sacred duty of preserving
the Union unimpaired, by restoring the rebel States
to their former places in it, as soon as such restora
tion can be safely accomplished; but leaving the
time and mode of discharging these duties to the
exercise of its judgment and discretion, to be faith
fully exercised for the good of the Avhole nation. The
common sense of the people of the United States,
of mankind, and of history will repudiate as absurd
any hypothesis that the Constitution imposes any
other limits to the authority of the national Govern
ment in such an exigency, or binds any such fetters
about its limbs as render it incapable of self-defence,
or of saving the nation for whose preservation it was
created.

94 RECONSTRUCTION.
As the Constitution, in investing the Government
with the poAver to enter upon foreign Avar, imphedly
clothed it Avith all the rights incident to conquest,
including that of dictating the terms of peace, and
unlimited by any other restramts than those imposed
by the nature of the Government and the objects of
the Avar ; so, in investing it Avith the poAver to subdue
rebellious subjects in a civil Avar, it gives the like
right to impose the terms and conditions of peace, or,
Avhich is the same thing, of restoration to their
former rights and privileges, unlimited by any other
than the like restraints. The reason is the same in
both cases. This right of the conqueror is not found
ed upon any arbitrary rule, nor is it any merely
gratuitous prerogative granted to the strongest as
the fruit of victory, but rests upon the absolute
and unavoidable necessity of the case, there being
no common arbiter or judge Avho can decide be
tAveen the parties upon the reasonableness or justice
of the terms upon Avhich peace should be made ; and
which necessity is as absolute in a civil war as in a
foreign Avar.
In considering the applicabUity of the rule in this
instance, it must be conceded that if there ever Avas
a case, or one could be imagined, in Avhich a civU
war could or should vest in the victorious Government
all the rights of the conqueror as in a foreign Avar,
this is most emphatically that case ; for Avhether re
garded in reference to the acknoAvledged absence of

RIGHT OF GOVERNMENT. 95
any justifying cause for the rebellion, or to the extent
of national territory held for four years in exclusive
and hostile array against the national forces, or to the
Averse than barbaric ill faith and fiendish cruelty Avith
Avhich the Avar on their part Avas Avaged, or to the
enormous sacrifices of precious life and countless
treasure Avhich it cost, the enormity of the crime
against civilization and humanity has no parallel, and
no punishment could e.xceed that due to the guUty
authors of it. Justice and humanity, as Avell as na
tional policy, Avould alike dictate, that, at the close
of the struggle, they should lie at the feet of their vic
tors. The entire identity of the rights and poAvers inci
dent to victory in civil Avar Avith those of victory in
foreign Avar is broadly and clearly laid doAvn in the
elementary AA'riters on j)ublic laAV of the highest
authority. It is so necessary to have this material
element in the argument immediately before the
reader, that no other apology is necessary for repeat
ing the citation from Vattel above made in another
connection. He states the principle thus : —
" A civil war breaks the bands of society and government, or at
least suspends their force and eflxjct. It produces in the nation two
independent parties, who consider each other as enemies, and ac
knowledge no common judge. These two parties, therefore, must
necessarily be considered as constituting, at least for a time, two
separate bodies, two distinct societies. Having no common superior
to judge between tliem, they stand in precisely the same predica
ment as two nations who engage in a contest, and have recourse to
armi."

96 RECONSTRUCTION.
Wheaton lays doAvn the laAV thus : —
" The general usage of nations regards such a war (civil war)
as entitling both the contending parties to all the rigiits of war as
against each other, and even as respects neutral nations." (Whea-
ton's International Law, Dana's ed., § 296.)
Mr. Dana annexes a very elaborate note upon the
subject of belligerent rights incident to civil Avar,
both in regard to the parties to it and to foreign na
tions, but suggests no distinction betAveen the rights
of victory in that and those of victory in a foreign
Avar. And it is believed that no such distinction is
anywhere intimated by any Avriter upon public laAV.
If it had been, it could not have escaped this learned
and thorough master of the subject. It seems impos
sible to believe, that, if the broad difference contended
for Avere contemplated by them as having legal ex
istence, they should never have made allusion to it ;
and equally incredible, that, if founded on any sound
principle, it should not have occurred to their minds.
So far, therefore, as their opmions may be inferred both
from their language and their silence, it is believed
that they may be considered as rejecting any such dis--
tinction. And the reason of the case is manifestly against
any. The fundamental principles of the right of the
victor to prescribe the terms of peace in a foreign
Avar, apply, not only Avith equal, but Avith greater
force, in a civil Avar. That of the necessity of the
case, namely, because there can be no common arbi-

RIGHT OF GOVERNMENT. 97
ter or judge between them, is of equal validity in
both cases. And, in reference to qualifications of the
arbiter, Avho but the victorious Government can de
cide upon the nature or degree of the crime involved
in the treason, the punishment justly due, the
amount of injuries for which indemnity may justly
be demanded, the security necessary to guard against
future like revolt, or for the protection of the
lives, liberties, rights, and property of the loyal citi
zens of the Union in the territories of the rebel
States, and the other questions necessarily involved
in any adjustment of the terms of peace ?
It is absurd to pretend, that, upon the surrender of
the rebel forces and the cessation of opposition to the
authority of the Constitution and the laws, the Con
stitution becomes the arbiter ; for the whole question
is of the right of the rebels to be restored to any
privileges under it, or of the terms upon which such
restoration shall be made ; and, until that shall have
been completed, their constitutional rights are the
subject in dispute, not the arbiter by which it can be
decided. Again, the rule applies to the case of a civil war
with much greater reason, from the consideration,
that in such a war, where the legitimate Government
has succeeded in subduing an unrighteous rebellion,
the conquered are malefactors, guilty of the highest
crime known in civilized society, and the terms
of whose pardon, therefore, upon aU the principles
13

98 RECONSTRUCTION.
and analogies of laAV, rest of right in the sense of just
ice and humanity of the Government Avhose authority
they have spurned, and Avhose laws they have out
raged. What, then, are the reasons urged in denial of this
right ? So far as they can be gathered from this let
ter, and the minority Report, and other pubHcations,
they are thus related : —
" When the war has ceased, when the authority of the Constitu
tion and laws of the United States have been restored and estab
lished, the United States are in possession, not under a new title as
conquerors, but under their old title as the lawful Government of
the country ; that title has been vindicated, not by the destruction
of one or more States, but by their preservation, and this preserva
tion can only be entered into by the restoration of republican gov
ernments organized in harmony with the Constitution."
" Conquest of a foreign country gives absolute unlimited sover
eign rights ; but no nation ever makes such a conquest of its own
territory. If a hostile power, either from without or within, takes
and holds possession and dominion over any portion of its territory,
and the nation by force of arms expel or overthrow the enemy, and
suppress hostilities, it acquires no new title, and merely regains the
possession of that of which it was temporarily deprived. The na
tion acquires no new sovereignty, but merely maintains its previous
rights." " When the United States take possession of a rebel district, they
merely vindicate their pre-existing title. Under despotic govern
ments, confiscation may be unlimited ; but, under our Government,
the right of sovereignty over any portion of a State is given and
limited by the Constitution, and will be the same after the war as
before." Now, in regard to these positions, it may be said in
the first place, as above stated, that the war cannot be

RIGHT OF GOVERNMENT. 99
said to be ended, and the authority of the Constitution
and the laws to be restored and estabhshed, so long
as military power is necessary to maintain it, as is
now the case in large portions of the Southern States ;
nor while such restoration is merely formal, tempo
rary, or insecure ; nor untU it shall be made complete
by suitable safeguards prescribed as the terms of
peace: and in the second place, as before shoAvn,
that no one pretends that the nature of our Govern
ment would allow any retention of the territories of
the rebel States as conquered foreign territory, sub
ject to despotic authority or military power only, if
the inhabitants were wUling to return to their alle
giance, under such terms as justice and humanity, and
the national safety, demand. All that is maintained
is, that, until such return and restoration, the Gov
ernment has full right, as the conqueror, to prescribe
those terms, unlimited by any provisions contained
in the Constitution ; and that the Constitution can
have no application to any question concerning any
rights of the rebels untU the final restoration of its
authority over them, upon such conditions as the
Government shall have imposed, and they shall have
accepted. It is undoubtedly true, that the Government, upon
the subjugation of the armies of the rebels and re
sumption of possession of their territories, has ac
quired no new title, but is in such possession by vir
tue of the old one. And the resiUt would be the same.

100 RECONSTRUCTION.
if, instead of the hostUe possession taken by the rebels,
it had been one taken by a foreign invading enemy.
No one can question, that, in the latter case, if the
invaders were so numerous, and had been so long in
possession, as to render their expulsion or extermina
tion impossible, the Government could impose upon
them such terms of permanent submission to its au
thority, and for protection of its loyal subjects there
remaining, as it should think proper. And upon
what principle can it be denied that the Government
has the like right in reference to its rebellious citi
zens, who, far more criminal than any invaders could
have been, have long held hostile possession of these
territories, and from whom securities for future obe
dience to the Constitution and the laws, and for the
protection of the loyal citizens residing among them
from cruel persecution, are demanded alike by justice
and humanity, and the national safety ?
And if it be true, as is conceded, that the United
States, upon the subjugation of the rebellion, " are in
possession, not under a new title, as conquerors, but
under their old title as the lawful Government of the
country," it is none the less true that the Govern
ment re-assumes its sway over citizens whose con
dition has been radically changed by the rebellion,
and with powers over them which it never before pos
sessed. Instead of loyal subjects, entitled to perfect
immunity in the rights of property, liberty, and life
which it could not impair, it finds them criminals,

RIGHT OF GOVERNMENT. 101
who have forfeited all such immunity, and who stand
liable to be bereft of all those blessings under the
laws which they have violated. Nor can such immu
nity be restored to them, but by its pardoning grace,
and upon such terms of submission and security for
future good behavior as its sense of justice and of
political expediency may dictate. And it is not per
ceived why, upon the same principles, the Government
has not the right to impose the like terms or condi
tions of restoration to their former political rights
and privileges in the councils of. the nation.
The soundness of a theory may be best illustrated
by famUiar examples. That of the supposed success
of England in subduing the colonies in the war of
the Revolution has been already adverted to. And
if, in such a case, she would have had the constitu
tional right (which is believed to be undeniable) of
imposing such terms and conditions of restoration to
the colonists, of their former political rights and
privUeges under their charters, as her Government
might have considered to be demanded by justice and
the future peace and security of the empire, what
becomes of the distinction between a civU and a
foreign war as to the power of the conqueror to
dictate terms of peace ?
But a stUl more satisfactory Ulustration may be
found by applying the theory to the case in hand.
That theory is, that, in subdui&g the rebellion, the
Government of the United States can only act right-

102 RECONSTRUCTION.
fully within the limits of the powers conferred ly the
Constitution; and that these powers are confined to the
restoration of the authority of the Constitution and laws
of the United States in the rebel States ; and therefore
that upon the laying-down of their arms, and the
proffered and apparent submission of the rebels to
such authority, they became instantly, ipsis factis,
entitled to be re-instated in all their former political
poAvers and privUeges as States in the Union; and
that the Government has no right to interpose any
such terms or conditions of such re-instatement as
otherwise might be obviously reasonable and neces
sary for the future peace and safety of the nation,
and which it might have imposed but for these limits
upon its poAver affixed by the Constitution.
Now, this theory manifestly involves the singular
doctrine, that whUe the rebels might carry on the
war, and, if successful, might dictate terms of peace
without any limits or restraints, but those of the law
of nations, and their OAvn sense of justice and human
ity, — " Heaven save the mark ! " — the Government
of the United States is bound, not only by these laws
and its sense of right, but also hand and foot by
the iron bands of the Constitution, crippling its
strength in the combat, and laying it, even in vic
tory, at the feet of the conquered, for them to assume
its powers, and enter at once upon the administration
of its authority. '
How would the case have stood, if the rebels had

RIGHT OF GOVERNMENT. 103
realized their hopeful anticipations of laying PhUa-
delphia. New York, and Boston in ashes, or under
contribution; and of dictating the terms of peace
and of the future relations between the loyal States
and the newly established slave empire, which was to
control the destinies of America ?
The war must have terminated, of course, as all
wars must, by a treaty of peace between the two
Governments. And it is worth whUe to contemplate
for a moment what Avould probably have been the
principal terms dictated by the victorious slave
holders. First, There would have been the condition that
nothing should be contained in the legislation or
jurisprudence of the conquered States derogatory to
the institution of slavery, as being of divine origin,
and as instinct with justice and humanity towards the
black man.
Second, That all the black men, women, and
chUdren in the free States, who had ever been held
in slavery in the slave States, and had escaped or
gone into the free States under any circumstances,
and the descendants of any residing therein, should
be immediately deliA'ered up to their former OAvners,
or their legal representatives ; and that commission
ers, of known sympathy with the institution, should
be appointed with full power to decide all questions
arising under the treaty, and to deliver up such
former slaves or their descendants, if any, to the

104 RECONSTRUCTION.
claimants ; and to call in the aid of the sheriffs of
their counties, with their posse comitatus, to protect
the oAvner in possession and transportation of such
slaves out of the free States.
Third, That the citizens of the Southern empire
should have the right at all times to carry their slaves
into the free States and the territories thereof, and use
and treat them there in the same manner as they
were accustomed to use and treat them in their own
States, and to hire them out while there, free from
all molestation by act or speech ; and that any such
molestation should be an offence punishable by laws
to be enacted for the purpose.
Fourth, That a laAV should be enacted, in each
of the free States, requiring the immediate arrest and
imprisonment of any slave Avho should thereafter
escape from a slave State into a free State, by any
person knoAving of such escape, or upon complaint
of his or her OAvner, or of any person assuming to
act in his or her behalf; and that any citizen of a
free State who should knowingly, or with reasonable
cause of suspicion, aid or abet any such slave in so
escaping, or harbor or conceal him or her, or give
to him or her any succor or relief whatsoever, or
Avho should fail to render aid when required in the
recapture and restoration of such slave, should, on
conviction, be punished by a fine, say, of not less
than a thousand dollars, and of imprisonment for a
term not less than five years for the first offence, of

RIGHT OF GOVERNMENT. 105
ten years for the second, and with death for the
third; and that all trials for any such offences
should be before commissioners to be appointed as
aforesaid, and Avithout the intervention of a jury, and
without appeal.
Fifth, That the United States should pay all the
expenses incurred by the Confederate States in carry
ing on the Avar, and prescribed pensions to the fami
lies of all their soldiers Avho had died in consequence
of it.
Sixth, That no memorials or other tributes of
honorable remembrance should be erected in any
portion of the free States of Ihose, their children,
Avho had fallen in the war.
Seventh, That it should be laAvful for the OAvner
of any slave escaping from either of the Confederate
States into either of the United States, to pursue him
in the territories thereof, and retake him by force of
arms, if necessary, and transport him to the owner's
place of residence, Avithout being held guilty of any
violation of the laAvs of neutrality, or of the laAvs of
the State thus entered upon ; and that no fortresses
or fortifications should be erected by the United
States upon the lines diA'iding the two empires, nor
within fifty miles thereof.
No one can reasonably suppose that these requisi
tions Avould, in any degree, have transcended those
Avhich would have been imposed upon the people of
14

106 RECONSTRUCTION.
the loyal States, if they had been as effectually sub
dued as are those of the rebel States.
But now that victory has perched upon the stand
ard of the United States, and absolute poAver is in
her grasp to vindicate the majesty of her outraged
laws, to demand indemnity for the enormous treasure
expended in maintaining her authority (none being
possible for the infinitely greater loss of the lives of
her children), and to require security for her peace
and safety against future like revolt, or political
machinations to accomplish the same ends, — all
demanded by the simplest justice, and free from all
taint of oppression, — Ave are coolly told that the
Constitution prohibits the exercise of any such pow
ers ; that these reasonable demands are wholly uncon
stitutional ; that all Avhich the Government can
laAvfully do is instantly to re-instate these still unsub
dued though conquered enemies iu all their former
political rights and privileges, and admit them into
immediate participation in the administration of its
authority. Upon this doctrine, the conclusion is obvious, that,
in such a conflict, the traitors are at all times mas
ters of the situation, and that, if defeated, the con
quered, and not the conquerors, dictate the terms of
peace. Another logical result from this theory is, that if,
by any combination of circumstances, the inhabitants
of States desirous to secede should obtain command

RIGHT OF GOVERNMENT. 107
of a majority in both houses of Congress, either by
the numbers of their own Senators and Representa
tives, or by combination with corrupt members mis
representing the loyal States, or otherwise ; and upon
an attempt to exercise their political poAver in de
stroying the Union, and dismembei-ing the Govern
ment, should be resisted by the people of the loyal
States by force of arms, and be effectually subdued in
the field, as they noAv have been, — they Avould never
theless have the perfect right, upon the laying-down
of their arms, to resume their places in the national
councils, there to resume then' nefarious efforts, and
again effect their purpose, or expose the nation to
the horrors of civil war; and, if needful, might
repeat the iniquitous game until the people of the
loyal States, exhausted by successive conflicts, or
weary of the strife and hopeless of repose, should be
finally compelled to submit.
Such are the clearly inevitable logical results of
the theory which the President has adopted, Avhich
he is pleased to style his pohcy, and which he pro
claims to be the only one in accordance with the
Constitution ; upon which he seeks to replace the in
habitants of the rebel States in immediate possession
of their previous political power and mfluence in
combination with theh former aUies of the North
ern Democracy ; and by Avhich, on his individual re
sponsibility and in declared opposition to the avUI of
the representatives of the people, he is perUling

108 RECONSTRUCTION.
the present tranquillity and future safety of the
country. The voice of an indignant people has
already pronounced its condemnation, with an em
phasis Avhich can leave no doubt either of its merits
or of its fate.

POWERS OF THE PRESIDENT. 109

CHAPTER IV.
ASSERTED POAVERS OF THE PRESIDENT, AS THE EXECUTIATE
HEAD OF THE GOVERNMENT AND AS COMMANDER-IN-
CHIEF, TO DECIDE UPON THE RIGHTS OF THE REBEL
STATES TO IMMEDIATE RESTORATION.
It remams only to consider the novel and remarka
ble construction of the Constitution, above men
tioned, upon which the President's policy is attempted
to be sustained by the author of the letter. It is
thus stated : —
" The question whether de facto governments and hostile popula
tions have been completely subdued by arms, and the lawful
authority of the United States restored and re-established, is a
military and executive question. It does not require legislative
action to ascertain the necessary facts ; and, from the nature of the
case, legislative action cannot change or materially affect them. As
commander-in-chief of the army and navy, and as the chief execu
tive officer whose constitutional duty it is to see that the laws are
faithfully executed, it is the official duty of the President to know
whether a rebellion has been suppressed, and whether the authority
of the Constitution and laws of the United States has been com
pletely restored and firmly established. The mere organization of a
republican government in harmony with the Union, by the people of
one of the existing States of the United States, requires no enabling
act of Congress, and I can find no authority in the Constitution for
any interference by Congress to prohibit or regulate the organization
of such a government by the people of an existing State of the
Union : on the other hand, it is clearly necessary that the President
should act so far at least as to remove out of the way military

110 RECONSTRUCTION.
restrictions on the power of the people to assemble and do those
acts which are necessary to re-organize their government. This I
think he was bound to do as soon as he became satisfied that the
right time had come."
It would be difficult to exaggerate the alarming
and dangerous nature of this doctrine, if it could be
successfully maintained. It might Avell startle the
nation to find that the power of final decision upon
the relations subsisting between the inhabitants of
the rebel States and the national Government, and
betAveen them and the other States in the Union,
groAving out of such a gigantic civil Avar as that
through Avhich Ave are passing, and the adjustment
of Avhich relations must vitally affect the nature, the
safety, and the strength of that Government for ages
to come, if not for ever, rests Avholly in one indi
vidual ; and that the representatives of the people
are voiceless and poAverless to control or affect it.
No one can belieA'e that poAver of such tremendous
import Avould ever have been intentionally vested in
the executive head of the Government alone, by the
framers of the Constitution, if the exigency had been
foreseen. No one Avill believe that it would have
been conferred by the people even upon a Washing
ton or a Lincoln, or that either of them Avould
voluntarily have assumed it. It is a poAver from
Avhich it Avould seem that any man, the most reckless
of responsibility, Avould naturally shrink, if having
only his country's good at heart; gladly turning for

POWERS OF THE PRESIDENT. Ill
advice and assistance to the representative agents of
the people, instead of repelling them Avith vitupera
tion and insult for questioning his supremacy.
The first obvious comment to be made upon this
theory is, that it rests entirely upon the assumption,
or the hypothesis attempted to be maintained in the
former part of the letter, that the people of the
rebel States, upon outward submission to the author
ity of the Constitution and the laws of the United
States, became instantly entitled to the restoration of
then former political powers and privileges in the
Union ; and that the Government Avas prohibited or
disabled by the Constitution from exacting any indem
nity, or requiring any security for their future
continued obedience, or any guarantees for the peace
and safety of the nation, hoAVCA'er reasonable or just
such demands might otherwise be considered. It
merely transfers the right of decision of the question
of such submission from the General Government
to the Executive Department alone. If, therefore,
that hypothesis is unsound, — as it is believed most
clearly to be, as above shoAvn, — this neAV theory of
construction of course falls to the ground Avith it.
For the most extreme defender of the President's
policy Avould not venture to affirm, that, if any terms,
conditions, or guarantees could be laAvfuUy demanded,
he would have any right or poAver to determine their
nature or extent.
Before proceeding to consider the various reasons

112 RECONSTRUCTION.
Avhich are belicA-ed sufficient to proA'e this theory to
be Avholly untenable, it is necessary to have a clear
and distinct understanding of the tAVO elements or
principles upon Avhich alone it is made to rest;
namely, the executive poAver and the mUitary power
of the President. These tAvo poAvers, although often,
as in this case, confounded together, as jointly con
ferring authority Avhich neither singly could give, are
totally distinct and independent, and are utterly unsus
ceptible of any fusion or commingling, so as to pro
duce a result Avhich neither could alone effect. And,
if the authority claimed for the President cannot be
deduced from either taken singly, it cannot be from
the two combined. Two ciphers cannot make a unit
nor can any multiplication of them.
NoAV, nothing in political science or language, and
nothing indeed in common conversation, is better
defined or more universally recognized than the
meaning of the term " executive " as applied to
government. Every one knoAvs that it is descriptive
of the head of the civil Government, who executes the
laws, as distinguished from the legislature which
enacts them, and the judiciary Avhich applies them ;
and that it designates an exclusively civil poAver for
the execution of civU laAVS. It is equally clear and
universally known, that military officers form no part
of the government, but are its instruments only for
especial purposes, and are never termed " the Execu
tive " nor " executive officers ; " and that military

POWERS OF THE PRESIDENT. 113
authority is no constituent part of the Government,
but merely an agency by Avhich it discharges certain
of its duties or functions. The term " executive " is
a correlative term, always used in correlation to
"judicial" and "legislative," and never as having any
reference to mUitary authority. AU dictionaries and
encyclopfedias, as Avell as common usage, are perfectly
co-incident on this point.
It is true, that the Constitution (Art. II., Sec. 1),
after providing that " the executive poAver shall be
vested in the President of the United States of Amer
ica," and prescribing the manner of his election,
qualifications, &c., provides in another section (Sec.
2) that " the President shall be commander-in-chief
of the army and navy of the United States, and of
the militia of the several States Avhen called into
the actual service of the United States." But this
neither creates nor implies any expansion of his
" executive poAver," but is merely the annexation
to his civil office of another entirely distinct and dif
ferent one. There Avas no necessity, in the nature of
things, for investing him Avith this military authority
as part of his poAvers as the head of the civil Govern
ment. And if the Constitution had provided that the
commander-in-chief should be any other person, and
appointed in any other manner, it Avould have dero
gated nothing from the President's executiA'e suprem
acy; nor can such addition of military to executive
authority render acts done under it executive acts,
15

114 RECONSTRUCTION.
any more than would the investment of the Chief
Justice Avith the command of the army and navy ren
der his military acts judicial ones, or vice versa. In
his military capacity, therefore, the President is the
mere servant or agent of the civil or political Govern
ment, and bound by its action as entirely as would be
General Grant, or any other person, if he had been
appointed such commander-in-chief. He has no right,
as such commander, to declare Avar or make peace,
nor decide any question affecting the political rela
tions betAveen the States and the General Government.
If the Congress declare Avar, Avhether civil or foreign,
he is, as commander-in-chief, bound by its behests to
use the military and naval forces of the nation for
the subduing of the enemy, and has no further au
thority than to command them for that purpose. And
as he has no poAA'er, as such commander, to declare Avar,
so neither, as such, has he poAver to declare the
AA'ar ended, hoAvever entire may be the subjugation of
the enemy in his opinion, if the cIa'U Government
shall determine otherwise and direct its further pros
ecution. Still less has he any poAver, as such com
mander, to dictate or agree upon terms of peace, or to
exonerate the conquered from submission to any such
terms as the civil Government may see fit to impose.
This principle Avas signally asserted and acted upon
in the surrender by General Johnston of his forces to
General Sherman, and no one ever questioned the
soundness of that decision. And, if possible, it is stUl

POWERS OF THE PRESIDENT. 115
more clear and certain that he has no poAver, as such
commander, to decide upon or adjust any political
relations created by the rebellion betAveen the rebels
and the General Government, or to define or determine
what may be the legal and pohtical consequences of
their treason.
Nor is the power of the President, as the executive
head of the nation, less strictly a limited poAver.
With regard to foreign relations, he can make treaties,
appoint ambassadors or other ministers and consuls,
only by and with the advice and consent of the Sen
ate. His only individual authority, indeed, in regard
to such relations, seems to be the unavoidable one of
receiving ambassadors and other public ministers.
His poAvers are, in truth, far less than those Avith Avhich
the executive departments under other forms of gov
ernment are usually invested. They ordinarily have
those of declaring Avar and making peace ; Avhereas,
by the Constitution, Congress alone is authorized to
declare war, and a treaty of peace can only be con
cluded by the President Avith the advice and consent
of the Senate. As the executive head of the nation,
he, of course, primarily represents the Government
in its relations to the Governments of foreign nations,
and in all negotiations with them, and may thus
exercise a vast infiuence upon its prosperity and
destiny. But he has no poAver of decision upon the
great questions of international obligation, and peace
and Avar, upon which they may chiefly depend.

116 RECONSTRUCTION.
So, in the administration of the internal affairs of
the country, his powers are confined to tbe appoint
ment of certain judicial and other officers by and
Avith the consent of the Senate, and to taking " care
that the laws be faithfully executed." He can neitlier
make laws nor decide finally upon any question
arising under those duly enacted. In political ques
tions involving the legal relations of citizens or of
the States to the Government, he is subject to the civil
Government, Avhich alone has poAver to decide them.
And in judicial questions he is subject to the judi
ciary. No principle of public laAV is more undeniable or
more universally recognized, than that the decision of
all the possible legal relations of the citizen to the
Government, individually or politically, are primarily
Avithin the sole and exclusive jurisdiction and rule of
the political or legislative department of it ; and are
never, under any circumstances, Avithin the scope of
the executive or of the military poAver, excepting
Avhen invoked for enforcement of the laws concerning
them. And nothing can be clearer than that any ques
tions concerning the relations created by the Consti
tution betAveen the people of the several States, or the
States in their corporate capacities, and the Govern
ment of the United States ; or betAveen the individual
States and the other States in the Union, as those
relations existed before the rebellion ; and concerning
any changes or effects upon such relations, caused by

POWERS OF THE PRESIDENT. 117
the rebellion ; and concerning the right and poAver
of the Government to exact indemnity of the rebel
States, and to impose terms or conditions of resto
ration to their former political poAvers and privUeges,
— are purely questions of constitutional laAV, of Avhich
the political or legislative department of the GoA-ern-
meiit has primarUy exclusive jurisdiction. And no
more fiagrantly unconstitutional usurpation of au
thority can be conceived of, than for the President, as
the executive head of the Government, or as the
commander-in-chief of the army and navy, to assume
the right of deciding upon them as pertaining to him
in either of those capacities. Cases doubtless may
arise, in Avhich it may be impossible seasonably to
determine to Avhich branch of the Government a ques
tion demanding immediate decision may belong;
and, in such case, an executive officer may be justi
fiable in deciding it upon his OAvn responsibility. But
where no reasonable doubt can exist, that it is one,
the decision of Avhich pertains exclusively to the po
litical department of the Government, he can have no
justification in acting upon it in opposition to the
decision of that department, hoAvever clear may be
his conviction that such decision is erroneous and
unAvarranted by a true construction of the Consti
tution. The responsibUity rests Avholly upon that
department, and in no degree upon him. He might
Avith equal propriety exert his executiA^e or mUitary
poAver to reverse a judgment of the Supreme Court,

118 RECONSTRUCTION.
and substitute his sense of justice in place of it, as
thus to infringe upon and oppose the jurisdiction of
the General Government.
Again, during and upon the termination of the re
bellion, the people of the rebel States, as has been
shown, and as is conceded in this letter, were utterly
disorganized, and Avithout governments Avhich could
entitle them to political rights as States in the Union ;
and could only be re-organized as such States by the
consent of the Government of the United States, on its
determination that the proper time for such re-organ
ization had come, and of Avliich the Government is
confessedly the sole judge.
But it is obvious, that, in deciding upon the right of
such restoration and the reception of the representa
tives of such State into the councils of the nation,
the essential preliminary question must be decided,
Avhether the Government thus organized is a republi
can form of government, and otherwise in harmony
with the requisitions of the Constitution. And it is
equally clear, that any such question is not only, in its
nature, purely political, but that the decision of it is,
by the express terms of the Constitution, delegated
exclusively to Congress. Upon what principle, then,
can it be contended that the President alone, as the
executive head of the Government or as commander-
in-chief of its forces, is authorized definitely to settle
that question, and to recognize the rebel States as en
titled to all their political rights and privUeges, as,

POVTERS OF THE PRESIDENT. 119
upon this theory in question, he is entitled to do?
Can a more palpable substitution of military or exec
utive authority, in place of the political authority
established by the Constitution, be conceived of ? It
is said, indeed, that —
" The mere organization of a republican Government in harmony
with the Union of a people of one of the existing States of the United
States requires no enabling act, and that no authority is found in
the Constitution for any interference by Congress to prohibit or
regulate the organization of such a government by the people of an
existing State in the Union."
But all this, if true, would not meet the difficulty.
Although no previous enabling act may be required
to authorize such organization, the subsequent duty
and necessity of passing judgment upon the question
whether it be a republican form of government, and
otherwise in harmony Avith the Constitution, Avill
nevertheless inevitably arise ; and that duty must, as
above shoAvn, devolve upon Congress alone. But the
proposition is believed to be fallacious, in assuming
that the people of a State, Avhich has thus destroyed
its political relations to the Union, can, before its
re-admission to the Union by the authority of the
Government, be accounted Avith any propriety as " one
of the existing States of the United States," or " an
existing State in the Union," under the Constitution.
Another and fatal objection, as is belieA'ed, to this
theory, is found in the consideration that it is based
entirely upon the assumption that the recent civil war

120 RECONSTRUCTION.
is to be accounted merely as an insurrection or rebel
lion, Avhich the executive head of the Government AA'^as
competent to deal Avith in determining its nature and
extent and its termination. Noav, to confound a civil
war of the gigantic proportions of that from Avhich the
United States is emerging, in Avhich the people of
eleven States inhabiting and holding in hostile array
about one-half of the territory of the United States,
organized themselves into a distinct and separate
Government, claiming to be an independent soA'er-
eignty, and endeaA'ored by a Avar of four years in
duration, by land and by sea, to establish themselves
as an independent nationality, — and to Avhich de facto
government belligerent rights Avere accorded by foreign
nations and the Government of the United States, and
Avere recognized by all its courts of justice and in its
foreign diplomacy, — to confound such a Avar with a
mere insurrection for a redress of grievances, or other
causes,, against a government whose general authority
was acknoAvledged, and Avhose nationality it Avas not
its purpose to destroy, and Avhich involved the neces
sity of nothing more than the exercise of ordinary
executive authority to subdue, — seems, to say the least,
strangely unreasonable, and to furnish no foundation
for any sound conclusions.
The Avar Avas in fact, in every sense, a territorial
Avar betAveen two poAverful governments, contending,
one for national life and the other for the establish
ment of an empire ; caUing forth all the resources of

POWERS OP THE PRESIDENT. 121
the national Government which the most exigent
foreign war could put in requisition ; involving it in
all the external political relations with other nations
which any war could create; and shaking to their
deepest foundations all the internal political relations
of the people, and of the loyal and of the rebel States
to the Government and the Union. A war in which
the executive head of the Government, in the mere
exercise of executive authority, would have been ut
terly powerless and helpless. A Avar not contemplated
nor provided for by the Constitution, perilling the life
of the nation, and throwing it back, in self-defence,
upon the original principles of self-preservation.
It was a war formally declared by the Confederate
Government Avith aU the solemnities of a declaration by
a foreign nation, and was finally recognized by an act
of Congress, in a statute held by the Supreme Court
to be equivalent to a formal declaration of war by
that of the United States; and until which act, a
respectable minority of the judges of the Supreme
Court held that the President was not justifiable
in the exercise of belhgerent rights affectuig foreign
nations. It had therefore every possible element of
a foreign war, recognized by the political and judi
ciary departments of the Government, all whose
powers were invoked in its support.
To maintain that the executive head of the Govern
ment, by virtue of his office, has sole authority to de
termine upon the termination of such a war, and
16

122 RECONSTRUCTION.
finally to decide upon its consequences upon the
political relations of the parties to it, and the terms of
peace, all Avhich is necessarily involved in this theory,
— and equally so whether he undertakes to dictate
terms of peace, or to decide that none can be constitu
tionally demanded — seems to vest in the President a
stretch of executive authority utterly abhorrent from
any rational construction of the Constitution, or any
conceivable theory of representative government.
A state of war can only be terminated by a treaty of
peace, express or implied. Usually between foreign
nations, formal Avritten stipulations are executed, and
determine the time and conditions of its cessation.
Where unconditional submission has been exacted,
the rights of Avar continue on the part of the victor,
untU he has pronounced upon the future political con
dition of the conquered ; and that, if unresisted, consti
tutes the final treaty of peace. So here the war,
declared by Congress, — which alone has the power to
declare war, — can only cease when the terms of peace
shall have been finally resolved upon ; and, until then,
the rebels are under the military authority of the Gov
ernment, excepting in so far as it may see fit to relieve
them from the immediate exercise of such authority,
during its pleasure. But peace Avill not have terminated
the Avar, until it shall have been decided on what terms
the rebel States shall be restored to the Union, or that
no terms can or shall be exacted. And that decision
cannot rest with the Executive. In the case of a

POWERS OF THE PRESIDENT. 123
foreign war, it would be the duty of the Senate, acting
in concert with the Executive, to determine on Avhat
terms the war should cease, or, in other words, when
and how peace should be made. But in a civil Avar
like this, where the fundamental relations of the people
of the rebel States to the Constitution and the laAvs are
involved, it is plain that the only departments Avhich
have cognizance of them, or can decide them, are the
political or judiciary departments. The idea that the
commander-in-chief of the forces of a Government,
acting merely as such, can decide the question when a
war declared by the authority of Congress has ended,
and its purposes have been accomplished, is too absurd
to require refutation. He is the mere servant or
instrument of the Government in carrying on the war ;
and must prosecute it, and continue the exercise of
military authority against and over the enemy, whatever
may be his individual opinion, until the Goverment
decide the war to be ended by agreeing upon terms of
peace. Nor, upon examination, is the idea that the
Executive Department of the Government can decide
such a question in the case of a war like this any more
tenable, it having been shown that such decision
necessarily involves the determination of many other
questions purely political and constitutional, of which
the Executive Department has no jurisdiction.
In conclusion, whatever questions might be raised
concerning the powers of Congress, or of the Exec
utive in ordinary cases of insurrection, it is believed

124 RECONSTRUCTION.
that in the case of a Avar declared by Congress, Avhich
alone has the poAver to declare Avar, and which power
is not limited by the Constitution to a foreign, but
applies, with equal reason, to a civil Avar of a magni
tude to require its interposition, — and in vicAV of the
unusual restraints imposed by the Constitution of the
United States upon the Executive in relation to all
matters of peace and war, — it is believed that no rea
sonable doubt can exist, that the President has no
authority whatever to decide upon the terms or condi
tions of peace, or upon those of the restoration of the
belligerents subdued by force of arms to their former
political rights and privileges in the Union.
Many other arguments might be adduced in support
of the authority claimed by Congress, and there are
doubtless others in defence of the President's policy
which have not been particiUarly noticed in the pre
ceding remarks.
It is believed, however, that the main points on
both sides have been considered as fully as the nature
of a publication of this sort wUl permit, and that they
embrace in substance the merits of the question before
the country. The author is conscious that there is a
limit to the patience of readers, and beyond which he
has great apprehension that he has already trans
gressed. He cannot, hoAvever, leave the subject without
adverting to a possible misapprehension of his views
upon the importance and sacredness of the rights of

POWERS OF THE PRESIDENT. 125
the States under the Constitution, which might arise
from the nature of the discussion Avhich has been
attempted. It wiU be observed, that his only object
has been to vindicate the sovereignty of the General
Government against the assaults made upon it by
advocates of the rights of inhabitants of States who
had renounced allegiance to it, and had engaged in
civU Avar for its overthroAv ; and consequently, that
the discussion has been almost exclusively con
fined to consideration of the relations of the States
to the General Government in that aspect only, and
of the subordination and limitations of State sov
ereignty rather than of its attributes. But no one
can be more profoundly impressed, than he believes
himself to be, with the essential importance and in
violability of the rights intended to be secured to the
several States under th^ Constitution. He accounts
their individual sovereignty and independence over the
domestic relations, and municipal laAV, and in the
internal governments of their respective inhabitants,
as the very foundation stones of the national Govern
ment. The preservation of this sovereignty and
independence, to the fullest extent warranted by the
Constitution, he considers to be chief among the fun
damental principles of American statesmanship ; as the
only means possible of maintaining a free and ener
getic government over territories of extent so vast as
those already comprised within our national bounda
ries ; as the safest barrier against attempt at Executive

126 RECONSTRUCTION.
usurpation ; as the main buhvark against the natural
tendency of the General Government, as of all oth
ers, to consolidation and centralization of its author
ity ; and which, not thus controlled, attaining at first to
the exercise of arbitrary power by the many, would,
as all history prophesies, eventually terminate in
practical despotism ; and, above all, as the sufficient
and only instrumentality for educating and disciplining
successive generations in the knowledge and practice
of political rights and duties, by Avhich alone they
can be made capable of self-government.
And no one Avill hail with profounder gladness a
just perception on the part of the inhabitants of the
rebel States of their true relations to the Govern
ment, and their return to their constitutional places
in the Union Avhich, unhappUy for us all, they have
made vacant.

"'"csMcuatai.Jitj;;^^

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