CHAPTER LVII THEORIES AS TO THE STATUS OF THE STATES As Congress put itself more directly into opposition to President Johnson, the leaders felt the need of a theory respecting the status of the Southern States which should serve as a sort of fulcrum in the approaching contest. At first the radical theories of Sumner and Stevens commended themselves to the average politician as little as the presidential theory. In the effort to find safe middle ground, the Joint Committee on Reconstruction formulated the forfeited-rights theory. In the case of Texas v. White, the Supreme Court practically adopted the congressional doctrine. 176. The State-Suicide Theory of Charles Sumner.1 It is true, beyond question, that the Acts of Secession are all inoperative and void against the Constitution of the United States. Though matured in successive conventions, sanctioned in various forms, and maintained ever since by bloody war, these acts no matter by what name they may be called — are all equally impotent to withdraw an acre of territory or a single inhabitant from the rightful jurisdiction of the United States. But while thus impotent against the United States, it does not follow that they were equally impotent in the work of self-destruction. Clearly, the Rebels, by utmost efforts, could not impair the National jurisdiction; but it remains to be seen if their enmity did not act back with fatal rebound upon those very State Rights in behalf of which they commenced their treason. . ... On this important question I discard all theory, whether it be of State suicide or State forfeiture or State abdication, on the one side, or of State rights, immortal and unimpeachable, on the other side. . . . It is enough, that, for the time being, and in the absence of a loyal government, they can take no part and perform no function in the Union, so that they cannot be recognized by the National Government. The reason is 1 Atlantic Monthly, October, 1863, XII, 518-26 passim. plain. There are in these States no local functionaries bound by constitutional oaths, so that, in fact, there are no constitutional functionaries; and since the State government is necessarily composed of such functionaries, there can be no State government. . . . Therefore to all pretensions in behalf of State governments in the Rebel States I oppose the simple FACT, that for the time being no such governments exist. The broad spaces once occupied by those governments are now abandoned and vacated.. ... . . . It is enough that the Rebel States be declared vacated, as in fact they are, by all local government which we are bound to recognize, so that the way is open to the exercise of a rightful jurisdiction. And here the question occurs, How shall this rightful jurisdiction be established in the vacated States? Some there are, so impassioned for State rights, and so anxious for forms even at the expense of substance, that they insist upon the instant restoration of the old State governments in all their parts, through the agency of loyal citizens, who meanwhile must be protected in this work of restoration. But, assuming that all this is practicable, as it clearly is not, it attributes to the loyal citizens of a Rebel State, however few in numbers, it may be an insignificant minority, - a power clearly inconsistent with the received principle of popular government, that the majority must rule. . . . . . . The new governments can all be organized by Congress, which is the natural guardian of people without any immediate government, and within the jurisdiction of the Constitution of the United States. Indeed, with the State governments already vacated by rebellion, the Constitution becomes, for the time, the supreme and only law, binding alike on President and Congress, so that neither can establish any law or institution incompatible with it. And the whole Rebel region, deprived of all local government, lapses under the exclusive jurisdiction of Congress, precisely as any other territory; or, in other words, the lifting of the local governments leaves the whole vast region without any other govern ment than Congress, unless the President should undertake to govern it by military power. . . . If we look at the origin of this power in Congress, we shall find that it comes from three distinct fountains, any one of which is ample to supply it. . . . First. From the necessity of the case, ex necessitate rei, Congress must have jurisdiction over every portion of the United States where there is no other government; and since in the present case there is no other government, the whole region falls within the jurisdiction of Congress. This jurisdiction . . can be questioned only in the name of the local government; but since this government has disappeared in the Rebel States, the jurisdiction of Congress is uninterrupted there. The whole broad Rebel region is tabula rasa, or "a clean slate," where Congress, under the Constitution of the United States, may write the laws. Secondly. This jurisdiction may also be derived from the Rights of War, which surely are not less abundant for Congress than for the President. . . . It is Congress that conquers; and the same authority that conquers must govern.. Thirdly. But there is another source for this jurisdiction which is common alike to Congress and the President. It will be found in the constitutional provision, that "the United States shall guarantee to every State in this Union a republican form of government, and shall protect each of them against invasion." When a State fails to maintain a republican government with officers sworn according to the requirements of the Constitution, it ceases to be a constitutional State. The very case contemplated by the Constitution has arrived, and the National Government is invested with plenary powers, whether of peace or war. 177. The Conquered-Province Theory of Thaddeus Stevens.1 The President assumes, what no one doubts, that the late rebel States have lost their constitutional relations to the 1 December 18, 1865. Congressional Globe, 39 Cong., 1 Sess., 72. Union, and are incapable of representation in Congress, except by permission of the Government. It matters but little, with this admission, whether you call them States out of the Union, and now conquered territories, or assert that because the Constitution forbids them to do what they did do, that they are therefore only dead as to all national and political action, and will remain so until the Government shall breathe into them the breath of life anew and permit them to occupy their former position. In other words, that they are not out of the Union, but are only dead carcasses lying within the Union. In either case, it is very plain that it requires the action of Congress to enable them to form a State government and send representatives to Congress. Nobody, I believe, pretends that with their old constitutions and frames of government they can be permitted to claim their old rights under the Constitution. They have torn their constitutional States into atoms, and built on their foundations fabrics of a totally different character. Dead men cannot raise themselves. Dead States cannot restore their existence "as it was." Whose especial duty is it to do it? In whom does the Constitution place the power? Not in the judicial branch of Government, for it only adjudicates and does not prescribe laws. Not in the Executive, for he only executes and cannot make laws. Not in the Commander-in-Chief of the armies, for he can only hold them under military rule until the sovereign legislative power of the conqueror shall give them law. Unless the law of nations is a dead letter, the late war between two acknowledged belligerents severed their original compacts and broke all the ties that bound them together. The future condition of the conquered power depends on the will of the conqueror. They must come in as new states or remain as conquered provinces. Congress . . . is the only power that can act in the matter. 178. The Doctrine of Forfeited Rights.1 At the close of the rebellion, therefore, the people of the rebellious States were found, as the President expresses it, "deprived of all civil government." Under this state of affairs it was plainly the duty of the President to enforce existing national laws, and to establish, as far as he could, such a system of government as might be provided for by existing national statutes. As commander-inchief of a victorious army, it was his duty, under the law of nations and the army regulations, to restore order, to preserve property, and to protect the people against violence from any quarter until provision should be made by law for their government. He might, as President, assemble Congress and submit the whole matter to the law-making power; or he might continue military supervision and control until Congress should assemble on its regular appointed day. Selecting the latter alternative, he proceeded, by virtue of his power as commander-in-chief, to appoint provisional governors over the revolted States. . . . But it was not for him to decide upon the nature or effect of any system of government which the people of these States might see fit to adopt. This power is lodged by the Constitution in the Congress of the United States, that branch of the government in which is vested the authority to fix the political relations of the States to the Union, whose duty it is to guarantee to each State a republican form of government, and to protect each and all of them against foreign or domestic violence, and against each other. We cannot, therefore, regard the various acts of the President in relation to the formation of local governments in the insurrectionary States, and the conditions imposed by him upon their action, in any other light than as intimations to the people that, as commander-in-chief of the army, he would consent to withdraw military rule just in proportion as they should, by their acts, manifest a disposition to preserve order among themselves, 1 Report of the Joint Committee on Reconstruction, June 18, 1866, VIIIXII passim. |