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stances, what was their constitutional relation to the federal government ?
Previous to the passage of the ordinance of secession by the convention of South Carolina in 1860, the nation never had been called upon to determine the status of a State which declared its relation to the federal government severed. Certainly if a State could establish its independence by war, the question, so far as such State was concerned, would have no significance; but as such a conclusion of the difficulty could not be considered for an instant, the status of the seceded State, both before and after the cessation of hostilities, immediately became an important subject of discussion. The gradual evolution of popular sentiment, from the belief that the dignity of a State should not be tampered with, to the belief that by an act of secession a State divested itself of all its rights and privileges as a State, and reverted to the condition of a Territory, forms an interesting chapter in the history of the unwritten constitution of the United States.
2. When the 37th Congress met on July 4, 1861, in pursuance of Lincoln's proclamation, the war had not been in progress long enough to show to the country the extreme gravity of the situation and the wideness of the gap which had arisen between the Southern States and the rest of the Union. The common belief was that unprincipled agitators, who represented only a small minority of the legal voters in the insurrectionary States, had obtained temporary control over the governments of these States, and were waging a war against the Union, in which they were unsupported by the majority; and that the latter would joyfully resume control of their governments as soon as the opportunity should be given them, which it was confidently believed would soon happen. That is, the war was to be carried on, not against the States which claimed to have seceded, but against a certain element of the Southern population.
The extreme solicitude felt by Congress for the proper preservation of the sovereign privileges of these States is shown by the practical unanimity with which a resolution submitted by Mr. Crittenden, on July 22, was carried, there being only two dissenting voices. It declared the sense of the House to be that? “this war is not waged upon our part in any spirit of oppression, nor for any purpose of conquest or subjugation, nor 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.” Three days later, Andrew Johnson, then a Senator from Tennessee, submitted the same resolution in the Senate,3 where it was also carried with practical unanimity, although the discussion indicated a confused idea as to its exact sig. nificance.
But few months passed by before this staunch confidence in the rights of the States began to be shaken; a feeling of doubt had arisen which had not as yet resolved itself into a definite change of attitude, yet which was sufficient to prevent the re-endorsement of Mr. Crittenden's resolution, introduced by Mr. Holman, December 4, 1861, and tabled by a vote of 71 to 65.4
A series of resolutions introduced in the Senate by Mr. Davis of Kentucky, on February 13, 1862,5 while preserving
Scott, Reconstruction during the Civil War, 245 ff.
3 Alexander H. Stephens, in The War between the States, uses this fact as a basis for the charge that Johnson was inconsistent in refusing to ratify the Sherman-Johnston Convention.
* House Journal, 2d Session, 37th Congress, p. 33.
in the main the principles then in vogue, assumed a somewhat broader tone and expressed very clearly the belief of a large element of the thoughtful classes. Affirming the permanency of the privileges of the people of the United States, it denied the criminality of the citizen who does not perform “his duties of loyalty and obedience, when the government fails to give him protection and security,” and declared that the powers of the nation and State in the State are simply in suspension during a period of insurrection, and should be resumed, unimpaired, when the insurrection ceases. Here also was affirmed, in unmistakable terms, the inability of the States to secede, and the consequent obligation of the United States to preserve in these States republican forms of government. The guilty leaders should be punished, but the masses should receive amnesty; and immediately following the important admission was made that“ if the people of any State cannot or will not reconstruct their state government, and return to loyalty and duty, Congress should provide a government for such State as a territory of the United States, securing to the people thereof their appropriate constitutional rights."
Here, in connection with the positive statement that a State cannot secede, and the implication that the insurrectionary citizen may be upheld in his actions, was a clear expression of so-called extra-constitutional powers in treating incorrigible States as territories. It would be interesting to know how these resolutions were viewed by the Senate, but they were laid on the table and never taken up for discussion.
3. During the opening days of the 3d Session of the 37th Congress, the question of the right to interfere with the States as States, was brought fairly before the House by a series of resolutions in which the policy of the extreme wing
of the Democratic party was expressed. In them it is declared that “the Union as it was, must be restored and maintained, one and indivisible.", When this declaration is examined, with the President's preliminary proclamation of emancipation in mind, the significance of the three italicised words can be seen. The resolutions, after quoting the substance of the Crittenden resolution, further declared that "whoever shall pervert or attempt to pervert the same to a war of conquest or subjugation, or for the overthrowing or interfering with the rights or established institutions of of the States, and to abolish slavery therein, or for the purpose of destroying or impairing the dignity, equality, or rights of any of the States, will be guilty of a flagrant breach of public faith and of a high crime against the Constitution and the Union.” The same guilt was declared to attach to all who should “propose by federal authority, to extinguish any of the States of the Union, or to declare any of them extinguished, and to establish territorial governments within the same.”
These resolutions, which were an open attack upon the presidential policy, were tabled by a vote of 79 to 50, a party vote. This fact is of significance as an evidence of the growing feeling in the House, that the sovereign rights of the States might be too highly considered, and that decided discipline of some kind might be found a measure of necessity. It began to be doubted whether in some of these States there could be found a sufficient number of loyal citizens to carry on the government without modifications of the old constitution and laws. At the same time the small majority by which the resolutions were tabled shows
House Journal, 37th Congress, 3d Session, p. 43. Introduced December 5, 1862, by C. L. Vallandigham, whose subsequent career is well known. See Cox Three Decades of Federal Legislation, pp. 80–85. * The italics are mine.
that the old idea still exercised a powerful influence in the House.
On December 14, 1863, resolutions were introduced by Mr. Finck,' and others two days later by Mr. Rollins,? which were very similar to the Crittenden resolution, and were introduced merely as expressions of the Democratic policy, since the Republican majority was too pronounced to permit their adoption.
From the beginning of the war, the policy of the Democratic party in the North was to bring about some agreement between the North and the South, by compromises and concessions, and should the issue finally be determined in favor of the Union even by dint of superior strength, to restore the Southern States to their former condition. In short, the theory held almost unanimously by Congress at the opening of the 37th Congress, was retained as the Democratic theory,3 while the Republicans gradually modified their opinions, and with the progress of events developed a theory different from both the Democratic and the presidential theory.
Even after the proclamation of emancipation had come to be recognized as one of the natural results of the war, the policy of the Democratic party was unchanged except as necessarily modified by emancipation, and in the House, on February 8, 1864, Jacob B. Blair submitted resolutions * in which it was stated that “ every State which has ever been, is still a State in the Union, and that when this rebellion shall have been put down, each of the so-called seceding States will have the same rights, privileges, and immunities under the Constitution as any one of the loyal States, except so far as the holding of African slaves in bondage is affected
? Ibid., pp. 65-6.
1 House Journal, ist Session, 38th Congress, p. 48.