Reverdy Johnson.

The dangerous condition of the country, the causes which have lead to it, and the duty of the people (Volume 2) online

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In the preparation of the annexed pamphlet the writer was
governed exclusively by patriotic motives. He believes his
country to be in peril, and his object is to exhibit what
he thinks are its causes. This he has done with no regard
to any mere party success, but to serve the whole country.
By awakening the people to the dangers impending over
our free institutions, he hopes to satisfy them tliat it is
their duty at once to adopt such a course as is necessary
to prevent such institutions from being destroyed or impaired.

Baltimore^ October, 186*7.

The ConditioD of the Country.

I. — No reflecting citizen can be insensible to the dangerous
condition of the country. It afiects injuriously every interest,
private and public. It palsies industry in all its branches, and
shakes the financial credit of the Government ; and whilst it
lessens the means of meeting its demands, it renders more
oppressive the burthen of taxation. It paralyzes commerce,
■without whose healthful condition the nation cannot prosper.
Our fathers thought, and experience has clearly proved it to be
true, that without a real union of all the States, and they and
their people possessing equal rights, the nation could not prosper.
With that view they adopted the Constitution of the General
Government. They clothed it with all the powers necessary to
its preservation, and designed it to be perpetual. In the
language of its preamble their object was to " secure the
blessings of liberty to themselves and their posterity." One
of the cardinal principles of the Government thus formed is
the equality of the States. Its very existence depends upon
the continuance of that equality. They are made equal in the
Senate as to representation without regard to population,
and in the House of Representatives, according to population.
They and their people are alike secured in the benefits of the
judicial department, and in every State and personal guarantee.
To guard against the possibility of any interference with this
principle of equality through the assumption of powers not
granted, which might be wielded to its modification, or

destruction, they subsequently adopted an amendment of the
Constitution, which declares that " the powers not delegated
to the United States nor prohibited to the States are reserved
to the States respectively, or to the people." That equality
is now at an end. Ten of the States and their people are not
only not admitted to equal rights with the rest, but, as
far as the legislative department is concerned, are denied them,
and subjected to mere military rule. The consequence is that
the whole potential wealth of those States is, and will be
as long as the present state of things continues, lost to the
nation. Its great staples of sugar, rice and cotton, which, in
the past so materially contributed to the general welfare, are
not, and cannot be produced. They nerved the arm of
industry in all the other States as much as, if not more than, in
the South. They enriched commerce — supplied the needs of
the manufacturing industry of the East, furnished the best
market for its products, gave employment and remunerative
wages to its employees, and increased the revenue of the
country by increasing its imports. As long as this political
disorganization remains, the more destructive will it be to
the interests of all. Wliat has brought the country into this
predicament ? The answer is obvious. It is the course which
the legislative department has pursued. Without meaning
to impute unpatriotic motives to it, or indulging in vituperation,
generally unjust and always undignified, but assuming that it
has acted from an honest error, it cannot, the author believes, be
doubted that that course has been the cause of the present trouble.
The war terminated more than two years and a half since, with
complete military success. It grew out of the insurrectionary
attempts of the people of the South. To suppress such
attempts Congress by the Constitution is vested with the power
to suppress insurrections by military force. For this purpose
they can call out the militia and use the army and navy ; and
long before the recent insurrection, laws were passed under this
authority. The design of this power was to maintain the
integrity of the Union and not under any circumstances to
impair it. It was preservation and not destruction which was

aimed at. To construe a power to preserve into a power to
destroy is a glaring absurdity. And yet what has been, and
is being done by Congress, exhibits this absurdity. They did
call out the militia and used the army and navy for the
suppression of the insurrection ; that suppression has been
attained; no armed or other resistance to the Constitution and
laws of the United States exists anywhere ; and yr the Union,
which the insurrection for a time suspended, continues sus-
pended. Was such a result as this contemplated by the authors
of the Constitution ? Was it contemplated in the early days of
the insurrection ? That it was not contemplated by the former
is clear from what has been already stated ; that it was not
contemplated in the latter, is equally clear. For in July, '61,
Congress passed, by an almost unanimous vote, a resolution
disavowing any purpose of conquest or subjugation, and on the
contrary declaring that the sole object was "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." Has the Union been preserved?
Have the States which were in insurrection been preserved ?
Are they, in the language of that resolution, now in the posses-
sion, unimpaired, of their " dignity, equality and rights ? " We
know that they are not. If the policy of restoring them to
their enjoyment inaugurated by Mr. Lincoln with the almost
unanimous approval of his party, and which Mr. Johnson has
endeavored to carry out, had not been interfered with by
Congress, the States would long since have been in their full
enjoyment. This, it is believed, no candid, sensible man will

II. — The ground upon which Congress claims the power,
which it has exerted of holding the Southern States as
conquered and subjugated, and legislating in regard to them
as such, is that the insurrection before it was suppressed,
assumed such proportions as made it a war, and brought it
within the war power, vested in that body by the Constitution.
That this is an error is obvious. The power to declare war,
and the power to provide for the suppression of insurrections,


are, in their very nature, distinct powers. The one looks
exclusively to hostilities with foreign nations, the other to
disturbances at home, and they are so treated in the Consti-
tution. Congress is vested with the authority to declare war
"raise and support armies and provide and maintain a navy."
If these powers were intended for cases of insurrection, the con-
ferring upon Congress any other authority for that end would
have been mere surplusage. And yet, in the same section of the
Constitution vesting these — the power is expressly given to
call out the militia to suppress insurrections. At the beginning
of the recent insurrection it was universally conceded that
when it should be suppressed the Union would be, as it was
before — composed of states of equal dignity and entitled to
equal rights. The insurrection, however, became so formidable
that upon grounds of humanity, as well as to give to the
Government the means to assist in its suppression, belligerent
rights were conceded to the insurrectionists. Humanity
demanded that this should be done, in order to save the
butchering of prisoners. If our Government had executed
those captured by its forces, the Confederate authorities would
have retaliated. Such a result would have answered no good
purpose towards suppressing the rebellion, and would, not
only have lacerated the feelings of our own people, but shocked
the public sentiment of the world. Congress, therefore, and
the President, wisely and with the best motives, recognized
belligerent rights in the insurrectionary Government. And
such concession at the same time gave to Congress the authority
to exclude neutral nations from all intercourse with the South.
As far as such nations were concerned Congress properly
claimed the rights of war, and upon that claim declared the
blockade of the Southern ports, and provided for the capture
of vessels and their cargoes attempting to violate it. Such
captures were made and adjudged to be lawful by our prize
courts. This greatly aided the Government in bringing tlie
insurrection to a close. In the first of these, called the prize
cases, decided by the Supreme Court of the United States, the
opinion contains one or two passages which have been relied

upon as justifying Congress in considering the States ia
question as conquered provinces. This ground has been
maintained with confidence in both Houses. The rest of the
opinion, the author thinks, sliews very plainly that the court did
not design to announce any such doctrine. No case has since
been before that tribunal calling for any correction of the
misapprehension. In one, however, before Mr. Justice Nelson,
(a member of that Court,) occurring since the termination of
the rebellion, involving the personal rights of a citizen of
South Carolina, he ruled that " the constitutional laws of the
Union were thereby enjoyed and obeyed, and were as autlior-
itative and binding over the people of the State as in any other
portion of the country." This view is plainly inconsistent
with the pretence that the South is now a conquered territory.
The Judge places South Carolina upon the same footing, as
far as her rights and the rights of her people are concerned, as
New York or any other of what were the loyal States. Since
that ruling one has been made by Chief Justice Chase, in June,
1867, in which that Judge refers to the opinion in the prize
cases, and evidently treats the pretence that the Court intended
to decide that the Southern States were not now equal States in
the Union, to be unwarrantable. The case was this : A citizen
of North Carolina was indebted on a promissory note to a citizen
of one of the States loyal during the insurrection. Pending the
insurrection, by force of a law passed by the Government de facto
of North Carolina confiscating such debts, the debtor was com-
pelled to pay it to the agent of that State, and lie relied upon
that payment as his defense. In his opinion the Chief Justice
says, "To maintain these propositions, the counsel for the defen-
dant rely upon the decisions of the Supreme Court of the United
States to the effect that the late rebellion was a civil war, in the
prosecution of which belligerent rights were exercised by the
National Government and accorded to the armed forces of the
Rebel Confederacy, and upon the decision of the State Courts
during and after the close of the American war for independence,
which affirmed the validity of confiscations, and sequestrations
decreed against the property of non-resident British subjects


and the inhabitants of colonies or states hostile to the United
Colonies or United States." " But these decisions do not, in
our judgment, sustain the propositions in support of wliich they
are cited."

"There is no douht that the State of North Carolina, by the
acts of the Conventiou of May, 1801 , l)y tlie x)revious acts of the
Governor of the State, by subsequent acts of all the departments
of the State Government, and by the acts of the people at the
election held after May, 1861, set aside her State Government and
Constitution, and connected under the National Constitution,
with the Government of the United States, and established a
Constitution and Government, connected with another pre-
tended Government set up in hostility to the United States, and
entered upon a course of active warfare against the National
Government ; nor is there any doubt that, by these acts, the
practical relations of North Carolina to the Union were sus-
pended, and yery serious liabilities incurred by those who were
engaged in thera."

"But these acts did not effect, even for a moment, the
separation of north carolina from the union, any more than


THE State by resisting its officers and defying its authority,

CAN separate him FROM THE StATE."

In referring to the legal effect of conceding belligerent rights
during the war to the Confederate Government, and to the
decision of the Supreme Court, the Chief Justice further said:
"In the prize cases the Supreme Court simply asserted the
right of the United States to treat the insurgents as belligerents,
and to claim from foreign nations the performance of neutral
duties under the penalties known to international law. The
decision recognized, also, the fact of the exercise and concession
of belligerent rights, and affirmed, as a necessary consequence,
the proposition that during the war all the inhabitants of the
country controlled by the rebellion, and all the inhabitants of
the country loyal to tlie Union were enemies reciprocally each
of the other. But there is nothing in that opinion which




FOREIGN States, and their inhabitants alien enemies." In this
view of the opinion of the Supreme Court the Chief Justice no
doubt has the concurrence of all his associates on that bench.
Since he became its Presiding Judge the subject has been
several times discussed by counsel ; and althougli the Court
has not deemed it proper to decide it in any subsequent case,
the point must necessarily have been considered by them in
consultation, and their views in that way have become known
to the Chief Justice. Indeed his language in the Carolina case
shows that he must speak from positive knowle<lge as to what
the Judges really meant. "^ 'There is nothing," he says, ''in
that opinion which gives countenance to the doctrine which
counsel endeavor to deduce from it — that the insurgent States,
by the act of the rebellion, and by levying war against the
nation, became foreign States, and their inhabitants alien
enemies." Now, if they were States as he holds them to have
been during the war, and not foreign States, they must have
been States of tlie Union, and as nothing has occurred since the
termination of the war to change their character, they must be
such States now. The ordinances and other acts of North
Carolina, in the words of the Chief Justice, merely "suspended"
"the practical relations" of that State to the Union. Those
ordinances and acts being now themselves annulled by the
result of the war and the acts of her citizens, suspension caused
by them necessarily terminates, and the prior relations of the
State are restored, and she and her citizens entitled to all the
rights, and bound by all the duties, as at first. But the doctrine
itself which Congress seems to have adopted toward the South-
ern States, that by the result of the war they are not States, but
territories subject to the unlimited power of Congress, cannot be
supported upon any constitutional or other theory. The idea
of conquest, by a government, of its own territory is ridiculous.
The idea that any department of the Government of the Union
has any other powers than those conferred by the Constitution is
equally ridiculous. That Government had no existence before


the Constitution was adopted ; it came into being solely under
and by virtue of that instrument ; all its powers are granted
by it. This being the case, how can it be, that under any
circumstances, as long as the Constitution remains unchanged by
the authority creating it, the Government can exercise powers
not delegated. This can only be done by its making a conquest of
the Constitution itself, which, if possible, is more absurd than
a con(j[uest of its own territory. If that could be done, it would
become but a Government, de facto, without any other restraint
than its own will, which would be tyranny, for whether,
unlimited power is in many men, or in one man^ is immaterial.
Tyranny is unlimited power, and its character is not changed
by the number of persons who may exercise it. And yet the
claim which Congress makes to legislate for the Southern
States is witliout any limitation. They have subjected them
to''the military power, which they assume is, for such a purpose,
within their unrestricted control. They not only disregard
the Constitution as the charter of their powers, but the consti-
tutions of the Southern States. They are not only not acting
under any authority derived from the people of the United
States, but in direct contravention of the known will of the
people of the South. It is true that some of the members of
the dominant party, in and out of Congress, justify legislation
upon constitutional grounds, but Mr. Stevens, of Pennsylvania,
who has in the public judgment become the master of his party
in the House of Representatives,, is guiltless of such a folly. In a
letter of his, recently published, with the frankness and boldness
which belong to him, he rejects the absurdity and places the
authority of Congress upon some ground outside of the Consti-
tution, and admits that it has no warrant whatever, under any
of its delegated powers. If he is right, then it follows that
as far as regards theSoutli there is no other restriction upon the
legislation of Congress]^ than its own discretion. It may
consequently treat all the Southern States as having no
existence whatever, as States, and govern them, through all
time, as territories, or constitute the wliole in one or as many
States as they may think proper, and witli sucli powers and


rights as they may choose to confer. They may, of course, if they
make States at all of them, deny them equality of representation
in the Senate, or any representation there, and deny them also
representation in the House of Representatives. They may
also deny them the benefit of the judicial department of the
Government, and citizens of the other States the right to
sue their people in the courts of the United States. They
may keep them altogether 'out of the Union formed by the
Constitution, and make them a Confederacy of themselves,
under such a Constitution (if the term can be so profaned) as
Congress may from time to time grant them. They may also
refuse their people some or all of the guarantees of personal
liberty secured by the Constitution of the United States, may
suspend at will the writ of habeas corpus, declare martial law
in time of peace, grant titles of nobility, authorize such States
to pass laws impairing the obligation of contracts, make any
currency a legal tender, regulate commerce without regard to
the restraints on that power in the Constitution^ and, in a word,
may rule them more absolutely than the Government of Spain
was wont to rule her colonies, and infinitely more so than
England endeavored to rule this country before "76 — an
endeavor which our fathers thought justifiable, and required
resistance by force of arms to establish themselves as an
independent nation — a course which has long since received
the sanction of all other nations, including England herself.

Consequences, such as these, legitimately following the Con-
gressional doctrine, should cause it to be sternly condemned by
every lover of constitutional liberty. But, even if the power
which it involves was not abnoxious to every idea of sucli
liberty, and could be vested anywhere with safety, Congress,
particularly the House of Representatives, is not the body to
possess it. Its very number diminishes tlie responsibility of
individual members, whilst it makes them subject to the
influence of popular passions, or the whims and caprices of the
hour. The whole current of history proves that such a body
is not a safe depository of unlimited power. The authors
of the Federalist so thought and maintained the necessity


of giving it only certain prescribed powers and subjecting
the exercise of these to the restraints of the judicial and
executive departments. In one of the numbers of that work
Mr. Madison says, nearly in terms, that the tendency of such a
body is at times to become a mere mob, and refers to historical
instances to prove it, Its course during the last few years, in
the judgment of many considerate citizens, has shewn that
in this respect history has repeated itself.

III. — So far, the authority exercised or claimed by Congress
has been considered under the war power, and upon the ground
taken by Mr. Stevens that it is outside of the Constitution.
Let us now see whether it has any warrant under any other
power known to that instrument. In the deliberations of the
Convention which framed it^ it was conceded hj every member
Avho took part in the debates, that the Government, and
especially Congress, was to be one of strictly delegated powers.
That this delegation was to be made by an enumeration, and
that no power, not enumerated would belong to it, but, on the
contrary, was prohibited. This, as a rule of construction, was
held to be the true one by every writer, during the interval of
the submission of the Constitution to the people of the States for
adoption or rejection, and was also so held without dissent in all
the conventions in the States by which it was adopted, and has
since, in every court. State or federal, been decided, to be the cor-
rect one. With this rule for our guidance, under which of the
delegated powers does Congress possess the authority which it
has exercised or claims ? That of war has already been
considered. The only other one is that "the United States
shall guarantee to every State a republican form of govern-
ment," Under this authority or duty it is said that Congress
may, not only in the States which were in insurrection, but in
all the other States, regulate the right of suffrage so as
to make the government of the State in form republican,
according to their views of what that form is. That form they
hold cannot exist without universal sulfrage ; and therefore
assert the power to legalize such suffrage. Against this pre-
tense the fact is conclusive that no such extension of franchise


existed in the States by whose people the present Government
was formed. To suppose that this clause of guarantee was
designed to give such a power to Congress is to suppose, that
the framers of the Constitution, sent to the convention by
their several States, intended to admit that their Governments
were not republican. And the absurdity of this inference is,
if possible, the more manifest, from the fact that, from tlie
organization of the Government to the last few years, no such
doctrine was broached in or out of Congress. Its author is
Mr. Sumner, a Senator from Massachusetts. He has now a bill
before the senate to carry it out. It regulates suffrage in all
the states, without regard to property, race or color.

He maintains therefore that even liis own State Government
is not republican, for she has never authorized any sucli
unlimited right. But we are not left for the refutation of such
a doctrine to general reasoning. The meaning of the clause
was stated by Mr. Madison in the 44th number of the Federalist;
lie says that "it supposes a pre-existing Government of the form
which is to be guaranteed." No intimation was given by him
or by any one in those days, or since, until the coming of the
Sumner era, that the clause was designed to give to Congress
the power to interfere with suffrage in the States, or that the
States then about to create the Union, had not Governments of
Republican form. It was indeed to these very Governments
that the clause was to apply. It was to secure to the people of
such States a continuing right to their enjoyment. If it had
been suggested by any member of the Convention, that the
Governments of Massachusetts andVirginia were notRepublican
because there was in each but a restricted suffrage, it would
have been pronounced a libel by Adams and Madison, and
rejected as insulting to the patriots, by whom all the then


Online LibraryReverdy JohnsonThe dangerous condition of the country, the causes which have lead to it, and the duty of the people (Volume 2) → online text (page 1 of 2)