Burke Aaron Hinsdale.

President Hayes's southern policy. An address delivered in the Town hall, Hiram, Ohio, Tuesday evening, September 25, 1877 online

. (page 1 of 4)
Online LibraryBurke Aaron HinsdalePresident Hayes's southern policy. An address delivered in the Town hall, Hiram, Ohio, Tuesday evening, September 25, 1877 → online text (page 1 of 4)
Font size
QR-code for this ebook


E 668
Copy 1









Our belief is that at present the Southern whites are determined to accept him
(the negro) as a voter under white guidance, and, as long as lie chooses to accept
this guidance, to protect him in the fullest manner in the security of person and
property. We have no doubt that as far as the free exercise of all his faculties
goes — in buying, selling, earning, saving, suing and being sued — he is now as well
off as any white man at the South, exposed to no more violence, and in no more
danger of denial of justice than any of his neighbors. This result is not wholly sat-
isfactory to those who cannot bear to think even of any curtailment, in any part
of the country, of the freedom of election which exists in any other part ; but
those who remember that the problem which vexed us all after the war was simply
how to procure for the Viegro protection for person and property — that is, the status
even of a non-voting free laborer — must admit that his present condition is an
enormous advance; that to have actually obtained for him all that we then ventured
to hope for, and in twelve years, is no mean gain. — The Nation, No. 639.

tn l!xcbMige.

N^^, Res. \4 \'iT S*c«

OCT 4 m%


Fellow Citizens:

First of all, let me define the point of view from which I
speak. I appear here as the representative of no political party.
No men or man save myself is in any degree responsible for what
I am abont to say. If Eepublicans, with whom I have always
acted politically, approve my argument, I shall be gratified; if
Democrats approve it, I know of no reason why I should be
offended; but I shall utter no word simply to please either the
one or the other.

Whether in the future the administration of Peesident
Hates will stand out as an era in American politics, it is quite
too soon to tell; but it will be marked by two features of unques-
tionable importance. One of these is the President's attempt,
apparently honest and determined, to reform the National Civil
Service; the other, the radical change that he has made in the
attitude of the National Administration to certain of the States
lately in rebellion. The outcome of the first of these policies
cannot yet be predicted. The President may abandon it; he may
persist in it and fail; he may persist in it and succeed; but the
issue in any case will have much to do with fixing the place of
his administration in history. In the sense of being an accom-
plished and irreversible fact, the second policy is already an
assured success. This policy is the theme of my address; what
it is — why it was necessary — to what it will lead. I shall state
my thesis thus:

President Hayes's Southern policy is the plain meaning of
the National Constitution — the plain duty of a law-abiding,
patriotic President — and a necessary condition of peace and order
in the Southern States.

There has been much discussion concerning the nature of our
government, and concerning its proper name. Some have said
that our fundamental hiw is a compact among the States, tliat
sovereignty resides in the States, and that we are only a Con-
federacy; others, that the fundamental law is a National Consti-
tution, that sovereignty resides in the Union, and that we are a
I^ation. In this address I shall avoid theories, general descrip-
tions, and even names as far as possible, and confine myself as
closely as I can to admitted facts. Looking into our Constitu-
tions, I shall state how the powers of government are there dis-
tributed; especially shall I determine the larger relations of the
States and the Union.

The American Nation was born with our independence. How
early E pluribics unum became our national legend, I do not
know; but it is Avritten in "large hand" across the face of the
Declaration. The delegates comprising the Continental Con-
gress, in their most solemn act, style themselves "Eepresenta-
tives of the United States of America." They do not declare
the United Colonies "free and independent States," as separate
and unrelated communities — that is, as Virginia, New York,
and Massachusetts; but as united, as forming a union, and as
composing a nation. Thirteen political societies exist on both
sides of July 4, 1776; but on one side they are subject colonies,
on the other, free States. Hence, the States are no older than
the Nation, and the Nation is no older than the States. They
were created by the same act, and began to exist at the same
time. The Nation did not create the States, nor the States the
Nation; both were created by the American people, and are mu-
tually dependent. It has been well said:

"The American people ' have not, as an independent sovereign people, either
established their union, or distributed themselves into distinct and mutually
independent States. The union and the distribution, the unity and the dis-
tinction, are both original in their Constitution, and they were born United
States, as much and as truly so as the son of a citizen is born a citizen, or
as every one born at all is born a member of society, the family, the tribe,
or the nation. The Union and the States were born together, are inseparable
in their Co istitution, have lived a'ld grown together; and no serious attempt
till the late secession movement, has been made to separate them.' "*

Prom the beginning, the powers of government were roughly

*338 Andrews's '■^ Manwil of the Constitution,''^ pp. 21-2.

distributed between tbe Continental Congress, wliicli stood for
the Nation, and the State governments. This distril)ution was
made by general consent, and was not embodied in any conven-
tual or legislative act. It was guided by the needs and feelings
of the hour rather than by philosophical discussion; by the logic
of events rather than by the logic of statesmen. But the States
had this great advantage — they were old political communities,
though now existing under new names and deriving their powers
from a new source; they had institutions, traditions, a history,
and political machinery; they were also exceedingly jealous of
the Nation; wdiile the Nation had no such advantages, and had
to create its institutions and machinery de novo. What was
more natural than that, in the rough distribution of powers then
made, the larger share should fall to the States, and that the
General Grovernment was left almost helplessly weak? That such
was the case, is well known even to the tyro in American history.

In 1781, the yoimg Nation entered on a second phase of life.
The Articles of Confederation went into operation in that year.
These did little more than declare legal the state of things whicli
had existed since 1776. What had been a revolutionary govern-
ment now became a legal government. Hence, the Articles were
simply a new foundation thrust under an old building. In no
important particular did they strengthen the hands of the Nation.""
Indeed, when peace settled down upon the land and the pressure
of war ceased, those hands were Aveaker than ever, and it seemed
that the Union would fall to pieces.

In the first place, the new constitution was called "Articles
of Confederation and Perjictual Union between the States." It
amounted to nothing more than a league. In the second place,
such national powers as it conferred on the Union were rendered
practically inoperative by this proviso:

" The United States, in Congress assembled, shall never engage in a war,
nor grant letters of marque and reprisal in time of peace, nor enter into any
treaties or alliances, nor coin money, nor regulate the value thereof, nor ascer-
tain the sums and expenses necessary for the defense and welfare of the United
.States, or any of them, nor emit bills, nor borrow money on the credit of the
United States, nor appropriate money, nor agree upon the number of vessels
of war to be built or purchased, or the numoer of land or sea forces to be raised,
nor appoint a commander-in-chief of the army or navy, unless nine States
assent to the same."

What is more, this impotent constitution was incapable of


improvGiuent; since an amendment mnst first be agreed to in
Congress, and then be ratified by all the States — a plain prac-
tical impossibility.

To bo more definite, the Articles of Confederation gave Con-
gress power to fix the size of the National army, and to appor-
tion the troops to be raised among the States, according to a
prescribed rule; they also gave it power to divide ''all charges
of war" and other defined expenses among the States, according
to another prescribed rule. But, in the first instance, it was left
to the State Legislatures "to raise the men," and, in the second,
"to lay and levy" the taxes. In case the States did not raise
the men, or lay and levy the tax, the army was not re-
cruited and the treasury was not filled. Again, Congress had
" the sole and exclusive right and power * * * of entering
into treaties and alliances," but not to debar the States from
practically controlling the whole subject of commerce. One of
our early publicists thus sums up the more striking of these
defects :

' ' By this political compact the United States in Congress have exclusive
power for the following purposes, without being able to execute one of them.
They may make and conclude treaties ; but can only recommend the observance
of them. They may appoint ambassadors ; but cannot even defray the expenses
of their tables. They may borrow money in their own name on the faith
of the Union; but cannot pay a dollar. They may coin money; but they can-
not purchase an ounce of bullion. They may make war, and determine what
number of troops is necessary ; but cannot raise a single soldier. In, short, they
may declare everything, but do nothing."*

Fisher Ames very naturally declared, " The government
of a great nation had barely revenue enough to buy stationery
for its clerks, or to pay the salary of the door-keeper." It is
evident that the Articles unduly restricted the field of the
Nation. But a more fatal defect was this — the Nation had no
energetic or coercive power. It did not come in contact with
individuals, but only with corporate communities. In the words
of Hamilton —

"The great and radical vice in the construction of the existing Confedera-
tion is in the principle of legislation for States or governments, in their corpo-
rate or collective capacities, and as contradistinguished from the individuals of
whom they consist. "+

♦Story quotes the passage in his Oommentaries. — § 246.
+TAe Federalist, No. 15.

In fact, the Uuion liacl no power to touch a single man —

either to draft him into the army, to tax him to fill the treasury,

or to compel him to obey a single law. Concerning such a state

of affairs, Chief Justice Marshall wisely said:

"A government authorized to declare war, but relying on independent States
for the means of prosecuting it ; capable of contracting debts and of pledging
the public faith for their payment, but dependent on thirteen distinct sove-
reignties for the preservation of that faith ; could only be rescued from igno-
miny and contempt by finding those sovereignties administered by men exempt
from the passions incident to human nature."

And Justice Story as wisely added:

"That is, by supposing a case, in which all human governments would
become unnecessary, and all differences of opinion would become impossible."*

What flowed from such a constitution as this, need not be
stated in terms. It is enough to say that the General Govern-
ment was the plaything of the States, the contempt of foreign
nations, and the humiliation of national statesmen. Washington
called the Confederation "little more than the shadow without
substance," and Congress "a nugatory body." One of his con-
temporaries declared that the United States presented to the
world the awful spectacle of a nation without a government.

The Constitution of 1787 thoroughly remedied the great
defects of the Confederation. In the first place, it greatly widened
the sphere of the Nation; and, in the second, it brought the
Union into direct, face-to-face relations with the citizen. It was
a Constitution ordained and established by the i^eople, not
Articles of Confederation among contracting States. N"ow the
Congress could lay and collect taxes; borrow money on the
national credit; regulate commerce with foreign nations, the
Indians, and among the States; establish a rule of naturalization
and laws of bankruptcies; coin money and punish counterfeiting
it; establish post roads and post offices; create judicial tribunals;
define and punish piracy; declare war; raise and support armies;
provide and maintain a navy; declare the punishment of treason;
and perform many other sovereign acts that need not be here
recited. That there might be no mistake or failure as to the
extent of the Nation's authority, Congress was clothed with
power —

"To make all laws which shall be necessary and proper for carrying into
execution the foregoing jjowers, and all other powers vested by this Constitution

* Commentaries on the Constitution. — § 248.

in the government of the United States, or in any department or officer
thereof. "

The effect uf this power, implied tlirougliout tlie instrument
as well as here stated in words, was to free the Nation from all
dependence on the States so far as execnting its Avill was con-
cerned. Since the day on which the Constitution Avent into
operation, the American Union can draft and tax, imprison and
hang, without let or hindrance from any quarter. But as though
this were not enough, the Constitution declared:

"This Constitution, and the Jaws of the United States which shall be made
in pursuance thereof, and all treaties made, or which shall be made, under the
authority of the United States, shall be the supreme law of the land; and the
judges in every State shall be bound thereby, anything in the Constitution or
laws of any State to the contrary notwithstanding."

xVnother clause provided that "all legislative, executive, and
judicial officers, State as well as National, shall he bound by oath
or affirmationto support this Constitution."

As a result of the foregoing powers, the Constitution of 1787
made us in fact what we had before been in theory and in name
— A Natiojs".

One reading of our National Constitution will suffice to show
any competent judge tluit it is only one-half of a complete
political system. It grants some of the more striking powers, as
those enumerated, but others equally necessary to the well-being
of society are not mentioned. Where are these powers? Where
IS the other half of our system, considered as a whole?

It must not be supposed that with the new Constitution the
Nation became centralized or consolidated in any such sense as to
destroy or absorb the State governments. These continued vigor-
ous political societies, performing most of their former functions,
though stripped of some of the more imposing powers of govern-
ment. This fact points us where the powers not defined in the
National Constitution are found: they are in the States. More
specifically, such propositions as these must not be lost sight of:

1. With us the people are the ultimate source of political

2. The peoi)le, in a general or National capacity, deleo-ated
certain powers to the Nation, and prohibited to it certain other

3. The i)owers not delegated were held in reserve.

4. The people, in their States capacities, grant these re-


served powers to the Sti^te governments, or witlihold them as
they see fit. Some of them, however, are prohibited to the
States in the National Constitution.

So important was it thought clearly to bound the field of
National power, that the tenth Amendment to the Constitution
expressly declared:

"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

Accordingly, our government is one of unlimited powers so
long as it Avorks within certain lines; beyond those lines, it has
no powers at all. That territory is covered either by the State
governments, or by the people in their original capacity as popu-
lar sovereigns. Whether the National powers are more important
than the State powers, is the same as asking whether the Union
or the State is more necessary to the people. The fact is, both
are essentially complementary parts of one political system.

Certainly the powers delegated to the States in the State
Constitutions are both numerous and important. They are less
striking and obtrusive than the National powers, but they relate
more immediately and directly to domestic peace and order.
Before the late war, this was felt more strongly, perhaps, than
now. Very naturally. National politics has given an ever-widen-
ing field to political ability and political ambition. State poli-
tics has been gradually overshadowed. In 1795 John Jay re-
signed the Chief Justiceship of the United States to accept the
Governorship of New York; a thing morally impossible for at
least the last half century. The late war, by vastly enlarging
the scale of the National Government's operations, thrust the
Union forward still more prominently. Before the war and in
time of peace, the Union touched the common citizen at few
points, the State at many points. The National Government
looked after commerce, conducted diplomacy, managed the
army, the navy, the postoffice, the public lands, and controlled
the Indians. It taxed the citizen in a manner so indirect that
he hardly knew how or when he was taxed. In war, the
symbols of National power made a deeper impression. But it
fell to the State to look after the legal interests immediately
surrounding the home and the place of business. The citizen
might forget the Nation, but the State was ever before his vision.


For tlie preservcation of every private right and tlie redress of
every private wrong, he was directly dependent on the State.
It did not so much matter to him what was done by the diplo-
mats of the Panama Congress, or by the Indian agents on the
Missouri; but if the legal machinery of the State became seri-
ously deranged, lie felt the shock at once. Was he robbed on
tlie road by a highwayman; was his house plundered by a burg-
lar; were his buildings burned by an incendiary; was he unlaw-
fully deprived of his liberty; was he threatened in life or limb;
was his family molested; was he slandered, deprived of his pos-
sessions by fraud, his premises trespassed upon; would he collect
a debt or contest the title to a piece of property; would he di-
vorce his old wife or marry a new one,— in all these cases he
looked to the State for protection and for redress of wrongs.
Did he offend in any of these and many other particulars, it was
to the State that he must answer. Would he make a contract,
"bind out" his son as an apprentice, or organize a private cor-
poration, the State laid down the law governing the case. He
devised his estate according to State statutes; dying intestate,
the State controlled the devolution of his property. It is not
too much to say, that the statute in which he had a direct
personal interest was a State statute ten times where it was a
National statute once. I have said all this was so; it is so now
for while the Nation has tended to overshadow the State, our
Constitution and laws remain substantially unchanged so far as
these matters are concerned. Probably the Union and the States
will never resume their old relations in all particulars; but leo-al
oversight of domestic affairs must remain with the States, itn-
less our whole system is radically changed.

Thus, it is plain that our governmental system is two-fold
Ihe people, in the words of President Andrews, - have estab-
lished a kind of double government, that of the United States
and that of the several States." Dr. Brownson as truly says,
the powers of government are divided between a general crov-
ernment and particular governments, each emanating from^he
same source." Judge Jameson treats the subject still more ex-
plicitly, thus:

"And here I may remark that the Constitution of the United States is a
part of the Constitution of each State, whether referred to in it or not Tnd
U^tedStrr T""'' "' ''' States form a part of the Constitution of the
Umted States. An aggregation of all these constitutional instruments wouW


be precisely the same in principles as a single Constitution, which, framed by
the people of the Union, should define the powers of the general government,
and then by specific provisions erect the separate governments of the State,
with all their existing attributions and limitations of power. There is not a
particle of question that the people of the United States could have thus framed
their Constitution, had it been thought advisable, or that they could still^
whether regularly or not is another question —melt the thirty odd Constitutions
into a single one. To do the latter, undoubtedly they must first recall the
power, conceded by the existing Constitution to the people of the several States,
to frame, each in a quasi sovereign capacity, its own Constitution. But this, if
they are the sovereign, they unquestionably have, if not the iQgal compe-
tence, at least the physical ability, to do; or they may even, as we have seen,
under like conditions, abolish the States as distinct political organizations."*

Neither part of the one system is complete, or can be
understood, without the other; each is dependent on the
other, each essential to the other, and to society. Neither is
more essential than the other. The citizen is subject to two
jurisdictions; one State, one National. As a consequence, the
administration of justice in the United States is marked by
some curious anomalies. This can be shown by a few simple

The postoffice in Hiram, as you know, is kept in a store. On
one side of an inch board are bags of salt and papers of coffee;
on the other, the United States mail. Two men, we will sup-
pose, break into the store. One carries off the salt and coffee;
the other, the mail -matter. As burglars, they are both answer-
able to the State; but as thieves, one is answerable to the State,
the other to the Nation. One is arrested by a constable, bound
over for trial by a justice of the peace, tried by the State Court
of Common Pleas in Ravenna,, sentenced to the State's Prison at
Columbus; the other is arrested by a marshal, bound over by
a commissioner, tried by the United States District Court sit-
ting in Cleveland, and imprisoned wherever the Nation has
directed. One is pardoned, if pardoned, from Columbus; the
other, from Washington. How different the course of justice
in the two cases! The whole force of the Nation is pledged to
deliver the letters and newspapers to their owners; the force of
the State is pledged to protect the salt and coffee.

In the late railroad strike, the National Government could
liave put armed soldiers on the mail trains to protect the mails
in transit, and the mail clerks; but not to protect the baggage

* The Constitutional Conventio7i, 1867, pp. 87-8.


o "

f the passengers on the same trains, or even tlieir lives. Col.
Thomas Scott, in his late paper entitled " The Eecent Strikes,"
points out u still more curious anomaly, thougli for a very dif-
ferent })ur[)ose:

" The only roads which could procure prompt protection and inimunitv
from interference, were those whose misfortune had made them bankrupt, and
placed them in the direct custody of receivers appointed by the United States
Courts. To the aid of these roads, the United States Marshal could call United
States troops."*

Such an administration of justice as this, and such a division
of political powers, may surprise a foreigner; but such is the
American system of double government.

Each of these tAvo half-governments is supreme in its own
sphere. True, the National Constitution is the supreme law of
the land; but there is only one purpose for which the Nation can
enter the legal jurisdiction of a State that is republican and not
in rebellion, and it can enter then only on condition of its being
invited. That purpose and the condition are thus defined:

" The United States shall guarantee to every State in this Union a republican

1 3 4

Online LibraryBurke Aaron HinsdalePresident Hayes's southern policy. An address delivered in the Town hall, Hiram, Ohio, Tuesday evening, September 25, 1877 → online text (page 1 of 4)