reconstruction, were consistent advocates of a doctrine which involved no contradictions like the system of Sumner and no element of vindictiveness like the "conquered province" theory of Stevens. Ordinances of secession they held to be null and void; these measures in no way impaired the vitality or contracted the scope of the Constitution because the power by which they were temporarily maintained, however near to attaining its object, had not been crowned with success. The result of the conflict could alone determine whether the bond of union between the seceding and the loyal States had been severed. Armed resistance to the supreme law was treason in those so engaged, even though such resistance was decreed by States. Ante-bellum relations would continue unimpaired if the General Government succeeded in suppressing the rebellion. This doctrine, once a State in the Union always a State, was, so far, in harmony with the policy adopted by the Administration at the commencement of hostilities.

With all the following propositions, however, the policy of the Government was not in entire accord, nor, indeed, was it in exact conformity with the principles above ascribed to the President. The people of a State, the Democratic leaders asserted, are the State, in the widest sense of that term, and they make its fundamental law; to be their constitution it must be their unrestrained and voluntary act, not a result of coercion or intimidation. When they have freely acted, then the only essential conditions of a State constitution, in its Federal relations, are that it should be republican in form and not conflict with the Constitution of the United States. South Carolina, for example, was made a member of the Union by the Constitution and the consent of her people; except successful revolution no other power could unmake her. That revolution being unsuccessful she was still in the Union. The idea that a State was partly out of and

partly in the Union, Democratic doctrine regarded as an absurdity. State officers, indeed, could commit suicide; a majority of its people could commit suicide; but the State did not, therefore, cease to exist, for the idea of a State involved the fourfold notion of a defined territory, people occupying it,✓ functions constituting a system of government and officers to administer it.)

Representative Joseph K. Edgerton, of Indiana, in an able speech delivered February 20, 1865, said that he accepted the principle of President Lincoln's inaugural and only regretted that after so clear and sound a statement of constitutional law and good intentions the President had subsequently come to the same conclusion as Mr. Stevens.) The theory then announced was the only one consistent with the true constitutional idea that the Federal Union is a perpetual union of States, and that each State, as an individual member of the Union, has in itself the same element of perpetuity that belongs to the aggregate Republic formed by the Federal union of States. The Union can be held to be perpetual only on the principle that the States composing it are perpetual corporations or bodies politic, and indestructible by any act of the aggregate body or by their own act. The States united cannot destroy a single commonwealth; power to do that is power to consolidate the States into one. A single member cannot destroy the Union; power to do that is power to secede, and neither consolidation nor secession is a principle of the Union. Here we have in amplified form the celebrated declaration of Chief Justice Chase, that the Constitution in all its provisions contemplates "an indestructible union of indestructible States." 1 For a different though a very able presentation of Democratic theory the reader is referred to the address of Mr. Pendleton on the bill to guarantee republican forms of government to the rebellious States.2

2

'Texas vs. White, 7 Wall,, p. 725. 2 See Chapter VII., pp. 257-261, infra.

Though this theory of a perpetual Union was the one almost universally held at the beginning of the war, it came during the progress of the conflict to be little regarded by the dominant party in Congress; (by Republican leaders it was soon cast ✓aside with indignation or contempt it remained unaltered when their views of State status were adapted to changed conditions, and the Democratic organization, so far at least as reconstruction was concerned, settled down into little more than a party of protest.

The silence in which Sumner's propositions were received may be regarded as a negative testimony to the conservative sentiments of Senators even after war had existed for nearly a year; the House, however, just twelve months before the Massachusetts Senator offered his plan, February 11, 1861, made a positive declaration of its opinion relative to the limitations of Federal authority by passing unanimously the following resolution? "That neither Congress, nor the people or the governments of the non-slaveholding States, have the right to legislate upon or interfere with slavery in any of the slaveholding States in the Union." This deliberate expression establishes beyond question the fact that the Constitution, as then understood, gave no authority to the Federal Government to interfere with, control or regulate relations V between master and slave in any State which recognized the right of property in man. On this subject the people were practically unanimous, their Representatives entirely so. Even three months of war, with all the antagonisms and all the bitterness excited, failed to shake this conviction.

1

(On July 22, 1861, the day after the disaster at Bull Run, Representative Crittenden, of Kentucky, introduced the following resolution:

That the present deplorable civil war has been forced upon the country by the disunionists of the Southern States, now in arms against

the constitutional Government, and in arms around the capital; that in this national emergency, Congress, banishing all feelings of mere passion or resentment, will recollect only its duty to the whole country; that this war is not waged on their part in any spirit of oppression, or for any purpose of conquest or subjugation, or purpose of overthrowing or interfering with the rights or established institutions of those States, but to defend and maintain the supremacy of the Constitution, and to preserve the Union with all the dignity, equality, and rights of the several States unimpaired; and that as soon as these objects are accomplished the war ought to cease.

Only two votes were recorded against it. Four days later Andrew Johnson offered in the upper House a resolution in nearly the same language, and it was opposed by only five Senators. There is little doubt that this practical unanimity in Congress reflected the sentiment of almost the entire North. This conspicuous landmark, so frequently referred to before the reunion was completed, will be useful to show how far the warring factions drifted during the progress of the conflict.

Senator Trumbull, of Illinois, who disliked certain expressions in the form in which it was proposed, said, relative to the object of the war as declared by the resolution:

I trust this war is prosecuted for the purpose of subjugating all rebels and traitors who are in arms against the Government. What do you mean by "subjugation"? I know that persons in the Southern States have sought to make this a controversy between States and the Federal Government, and have talked about coercing States and subjugating States; but, sir, it has never been proposed, so far as I know, on the part of the Union people of the United States, to subjugate States or coerce States. It is proposed, however, to subjugate citizens who are standing out in defiance of the laws of the Union, and to coerce them into obedience to the laws of the Union. I dislike that word in this connection. In its broadest sense I am opposed to it. If it means the war is not for the purpose of the subjugation of traitors and rebels into obedience to the laws, then I am opposed to it. I trust the war is prosecuted for that very purpose. I move to strike out the words "and in arms around the capital," and also the words "or subjugation." 2

'Globe, 1 Sess. 37th Cong., pp. 222-223.

Mr. Harris, of New York, said: "If slavery shall be abolished, shall be overthrown as a consequence of this war, I shall not shed a tear over that result; but, sir, it is not the purpose of the Government to prosecute this war for the purpose of overthrowing slavery. If it comes as a consequence, let it come; but it is not an end of the war.'

In the succeeding chapter will be traced with some degree of fullness the sentiments on reconstruction, in July, 1864, not only of the majority but of every important element composing Congress. The position then attained by the average Republican member, it must be repeated, was not reached at a single bound. Its progress has been described in the preceding pages. The vote on the Crittenden resolution marks the starting point. There was then, though war had existed for three months, no diversity of opinion worthy of notice. The successive advances from the declaration, February 11, 1861, that neither Congress nor the governments of the free States had a constitutional right to interfere with slavery in any slaveholding State of the Union to the passage by both Houses, July 2, 1864, of the Wade-Davis bill, which proposed by Federal law to regulate the franchise in the rebellious States, to appoint provisional governors (empowered to dissolve State conventions), and to prescribe provisions for their local constitutions, form one of the most instructive commentaries on the importance of necessity as a principle of constitutional interpretation.

A resolution introduced December 4, 1861, by Mr. Holman, of Indiana, for the purpose of getting the House to reaffirm the Crittenden prepositions of July 22 preceding, was tabled by a vote of 71 to 6s.2

A discussion of the various theories of reconstruction might seem to require in this place, by way of anticipation, at least