in a hopeless minority "in the halls of Congress," the incident is small compared with the sum total of their losses.

It would be inadmissible to question the sincerity of the Reconstruction Committee in their apprehensions of such extreme danger from the admission of Southern representatives in the halls of Congress as they have so emphatically asserted in their report. It must be taken as true that in their view the danger is real and imminent. But considering the difference in the weapons used "in the halls of Congress' from those employed on that other "battle fleld," and considering that the Southern representatives, in disparity of numbers, would be at as great disadvantage in the one, as on the other, it is difficult to imagine a higher tribute than they pay to Southern representatives for that moral power and intellectual prowess which usually command success in legistive halls, and which in the opinion of the Committee, it admitted into the halls of Congress, would achieve such terible results.

Section 3 of the proposed amendment describes a class of persons thereby declared ineligible to be a Senator or Representative in Congress, Elector of President and Vice-President, or to hold any office, civil or military, under the United States, or under any other State.

"Every person, having previously taken an oath as a member of Congress, or as an officer of the United States, or as a member of any State Legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, who shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof," belongs to this proscribed class.

Two things are inevitably admitted by Congress in proposing this section as an amendment to the Constitution. First, that there was no law in existence, at the time when the Act was committed, which prescribed the proposed punishment. Second, that Congress has now no rightful power under the Constitution to pass a law to impose such punishment.

If there was such a law, or if Congress had the rightful power to pass such law, why ask the ratification of this amendment by three-fourths of the Legislatures of the several States to make it "valid as a part of the Constitution."

This third section presents a most grave question for the consideration of the Legislature. It is this. Has the Legislature the Constitutional authority to ratify this proscription as a part of the Constitution of the United States ?

The Legislature of Maryland is vested with all general powers of legislation appropriate to free republican government. But it is limited by the express or implied prohibitions of the Constitution of the State. The 17th Article of the Declaration of Rights declares "that retrospective laws, punishing acts committed before the existence of such laws,

and by them only declared criminal, are oppressive, unjust and incompatible with liberty; wherefore no ex post facto law onght to be made." And the Constitution of the United States declares that "no bill of attainder, or ex post facto law, shall be passed.' And "no State shall pass any bill of attainder or ex post facto law." Thus it is beyond question that neither Congress nor any State can give legal effect to this proposition. The people of each State, seperately, and the people of all the States unitedly, have in the most solemn form denied such power to both their Federal and State Governments.

The reasons for this denial of such power were fully set forth by the Judges of the Supreme Court of the United States in 1798, in the case of Calder and wife versus Bull and wife, 3 Dallas, 386.

Justice Chase said, "The obligation of a law in governments established on express compact, and on republican principles, must be determined by the nature of the powers on which it is founded." "The Legislature may enjoin, permit, forbid and punish; they may declare new crimes, and establish rules of conduct for all its citizens in future cases.' "The prohibition against their making any ex post facto laws, was introduced for greater caution, and very probably arose from their knowledge that the Parliament of Great Britain claimed and exercised a power to pass such laws under the denomination of bills of attainder, declaring acts to be treason which were not treason when committed; at other times they inflicted punishments where the party was not by law liable to any punishment; and in other cases they inflicted greater punishment than the law annexed to the offence. The ground for the exercise of such legislative power was this, that the safety of the kingdom depended on the death or other punishment of the offender; as if traitors when discovered could be so formidable or the government so insecure! With very few exceptions the advocates of such laws were stimulated by ambition or personal resentment and vindictive malice. To prevent such and similar acts of violence and injustice, I believe, the Federal and State Legislatures were prohibited from passing any bill of attainder or ex post facto law."

Justice Iredell said, "The history of every country in Europe will furnish flagrant instances of tyranny exercised under the pretext of penal dispensations. Rival factions in their efforts to crush each other have superseded all the forms and suppressed all the sentiments of justice, while attainders on the principle of retaliation and proscription, have marked all the vicissitudes of party triumph. The temptation to such abuses of power is unfortunately too alluring for human virtue, and therefore the framers of the American Constitution have wisely denied to the respective Legislatures, Fed

3

eral as well as State, the possession of the power itself. They shall not pass any ex post facto law; or in other words they shall not inflict a punishment for any act which was innocent at the time it was committed, nor increase the degree of punishment previously denounced for any specific offence."

Justice Patterson said, "The historic page abundantly evinces that the power of passing such laws should be with: held from Legislators; as it is a dangerous instrument in the hands of bold, unprincipled, aspiring and party men, and has been too often used to effect the most detestable purposes.

It has been already seen that the reconstruction Committee base their proposed act of proscription upon the same grounds of safety to the State and punishment of treason, which the British Parliament, some centuries ago, alleged in justification of similar acts.

Your Committee would not revive the dead issues of the past. But truth and justice require that they shall not evade the responsibilities of the present crisis. This question of proscription involves the consideration of the nature and character of the offence which is thus proposed to be punished. The Reconstruction Committee denounced it as a crime of unmitigated rebellion and treason. In all questions of criminality, the motives and purposes of the act fix its legal and moral character. The same act may be wilful and premeditated murder, or manslaughter, or excusable or justifiable homicide, according to the motive which shall appear to have actuated the party. Are not the persons proposed to be proscribed, and all who acted with them in the great war of secession entitled to be judged by the same elementary rule in the administration of justice? The question then is, were the people of the States which attempted secession, honest and sincere in their avowal of their belief in the right of secession and of the reasons for its exercise? By their public documents cotemporaneous with their action, they put themselves on trial before the country and the world for the truth and sincerity of their avowals. "The wager of battle" decided against their right of secession. That question was thus finally settled: "banished to the realms of speculative abstractions." But in considering the question of damages, is there anything in mitigation? Was their act an unpardonable crime? or was it a pardonable mistake?

In addition to their public, solemn, cotemporaneous declations at the time of secession, and before and during the war, -the Reconstruction Committee, after the close of the war, summoned before them Alexander H. Stevens, who had been Vice President of the Confederate States. They examined him on oath and report the following questions and answers: Question. "In what particular did the people believe their constitutional liberties were assailed or endangered from the Union ?''

Answer. Mainly, I would say, in their internal, social polity, and their apprehension from the general consolidating tendencies of the doctrines and principles of that political party which had recently succeeded in the choice of a President and Vice President of the United States. It was the serious apprehension that if the republican organization, as then constituted, should succeed to power, it would lead ultimately to a virtual subversion of the Constitution of the United States, and all its essential guarantees of public liberty. I think that was the sincere, honest conviction in the minds of our people. Those who opposed secession, did not apprehend that any such results would necessarily follow the election which had taken place; they still thought that all their rights might be maintained in the Union, and under the constitution, especially as there were majorities in both. Houses who agreed with them on constitutional questions."

In the further examination of Mr. Stephens as to "the considerations or opinions which led him to identify himself with the rebellion, so far as to accept the office of Vice President of the Confedrrate States," he said, "I believe thoroughly in the reserved sovereignty of the several States of the Union, under the compact or constitution of 1787," and proceeded to give his reasons for following the fortunes of his State.

In reply to the question, "Have your opinions undergone any change?" &c., Mr. Stephens said, "My convictions on the original abstract question have undergone no change, but I accept the issues of the war and the result as a practical settlement of the question. The sword was appealed to, to decide the question, and by the decision of the sword I am willing to abide.

There are some historical facts connected with "the original abstract question," which ought to be considered in connection with the question of punishment of those who held the obnoxious opinions. And first, that at the time of the adoption of the Constitution of the United States, the absolute sovereignty of the several States was universally conceded.

The co..stitution was framed by delegates of only twelve of the thirteen States of the confederation. By the terms of the constitution, the ratification of nine States was sufficient for the establishment of the constitution between the States so ratifying the same. Eleven States ratified the constitution, elected a Congress, President and Vice President; and on the 30th of April, 1789, "President Washington was sworn into office, and the Government then went into full operation in all its departments." North Carolina had refused to ratify the constitution without previous amendments and declaration of rights; and Rhode Island had declined to call a convention to consider the question of ratification. Thus the present Union, under the constitution, consisted originally of eleven States. North Carolina became a member of this

20

Union in November 1789, about seven months after the Government had gone into full operation in all its departments, and Rhode Island in May, 1790, more than a year after the organization of the Government. From the date of the organization of the Government, to the time of their ratifying the constitution, respectively, North Carolina and Rhode Island were considered as foreign nations. This fact is stated in the preface to an edition of the Federalist, published in Washington in 1818, thus. "When the constitution was ratified, Rhode Island and North Carolina, from honest but mistaken convictions, for a moment withheld their assent. But when Congress proceeded solemnly to enact that the manufactures of those States should be considered as foreign, and that the Acts laying a duty on goods imported, and on tonnage, should extend to them, they hastened, with a discernment quickened by a sense of interest, and at the same time honorable to their patriotic views, to unite themselves to the confederation."

Political parties divided under the administration of the first Adams, upon the constitutionality of the alien and sedition laws. In 1798, under the lead of Madison and Jefferson, Virginia and Kentucky asserted, in legislative resolves, the doctrine of State sovereignty, which was affirmed again in 1799. In 1800, the Republican party of that day came into power by a large majority, on that issue, with Jefferson as President.

In the year 1814, during the war with Great Britain, the doctrine of State Sovereignty was emphatically asserted by the New England States. The Legislature of Massachusetts appointed twelve delegates from that State, to meet and confer with delegates from the other New England States, or any other, upon the subject of their public grievances and concerns, " &c. Connecticut appointed seven delegates and Rhode Island four, by their respective Legislatures, who met with the Massachusetts delegates at Hartford, Connecticut, in December, 1814. Three persons from New Hampshire and one from Vermont appeared as delegates chosen by local conventions in those States, and were admitted as members. After a secret session of three weeks, they published a report, from which the following extracts are taken?

History of Hartford Convention by the Secretary, 355. "Whenever it shall appear that these causes are radical and permanent, a separation, by equitable arrangement, will be preferable to an alliance by constraint, among nominal friends but real enemies, inflamed by mutual hatred and jealosy, and inviting, by intestine divisions, contempt and agression from abroad. But a severance of the Union by one or more States, against the will of the rest, and especially in a time of war, can be justified only by absolute necessity."