324

THE NEGRO MUST BE PROTECTED.

doctrine, one of the corner-stones of the American political edifice, had to be made. The war must have been a failure without that application. The Republican party, at its birth, ten years before, had not declared in favor of such an application; but events compelled that party to make that application, in 1866, or else abandon its claim to the decent respect of the Nation and of mankind.

The negro must be protected, not in the old way, as property, but in the new way, as person, and if a person, then a being having civil and political rights. The evidence before Congress was cumulative and compelling. Action must be thorough. No half-way measures could be tolerated. The right treatment of the negro as a man must be exacted of the South as a condition precedent to representation in Congress. Violence must be prevented; murder and bodily injury, punished. This meant military coercion and military rule so long as Congress might judge them necessary and proper. The question was one of practical as well as of party politics. The question was altogether larger, as it was a moral, a national question. By the supreme law of the land, Congress, and Congress alone was the judge of the policy which finally should prevail. Congress was the embodiment of the national conscience as well as of the national power. The evidence before it convinced the majority of its members that a policy of reconstruction must be strictly carried out. This policy had for its immediate end the peace of the country and the protection of all persons within its bounds. The negro had ceased to be property; he was a person and must be recognized as a person before the law. But the law must be amended; the old regime must cease; the new order of the ages must be recognized. The negro must be treated by the white man as a person possessing industrial, civil and political rights.

Few now living can realize the revolution in southern thought which this change exacted. The South had, literally, to be born again, and the new birth came amidst the throes of war, industrial ruin and social upheaval. But Congress was inexorable, and Congress was only the organ of the awakened Nation. Whatever we may now think, as individuals, of the evidence on which Congress based its action, we cannot escape the conclusion that this evidence of the condition of the South as affecting the negro race lately emancipated constitutes the defense of Congressional reconstruction.

Though slavery and the slave code were abolished by the Thirteenth Amendment, a system of peonage was still enforced in New Mexico and attempts to introduce it had been made with some success in Texas and in parts of the Gulf States. On the second of March, 1867, Congress abolished and forever prohibited the system in the United States,1 but the day of the passage of this law is memorable chiefly for the passage of the first great reconstruction act to provide for the more efficient government of the rebel States. It was declared that as no local State governments or adequate protection for life or property existed in them, and as it was necessary that peace and good order should be enforced until loyal or good State governments could be established, they were divided into five military districts.3 To each of these the President should assign an officer of the army not below the rank of brigadier general and should detail a sufficient military force

1 Statutes at Large, XIV, 546.

2 Id., pp. 428-430. It applied to Virginia, North Carolina, South Carolina, Georgia, Mississippi, Alabama, Louisiana, Florida, Arkansas and Texas.

3 Virginia, the first; North Carolina and South Carolina, the second; Georgia, Alabama and Florida, the third; Mississippi, and Arkansas, the fourth; Louisiana and Texas, the fifth.

326

PURPOSE OF THE ACT.

to protect all persons in their rights. The whole South was thus put under martial law, but no sentence of death could be carried into effect, under the act, without the approval of the President. As the chief purpose of the act was to establish republican State governments, it provided that when the people of any one of the rebel States should have formed a constitutional government in conformity with the Constitution of the United States in all respects, and framed by a convention of delegates elected by its male citizens twenty-one years old and upward, of whatever race, color or previous condition, who had resided in the State one year previous to the day of election and were not disfranchised, and when its constitution had been ratified by a majority of the popular vote and had been submitted to Congress and had received its approval, and when the State legislature had ratified the Fourteenth Amendment, Congress would admit its Senators and Representatives on their taking the oath prescribed by law. The disqualifying provision of the amendment should apply in the election of delegates to the State convention and also to the electors of delegates. Until these conditions were complied with, the civil governments of the States should be provisional and military; and no person disqualified to hold office under the proposed amendment should be allowed to vote or hold office in the State.1 The President vetoed the bill.2

1 This was H. R. bill, 1143, reported by Thaddeus Stevens from the Joint Select Committee on Reconstruction, February 6, 1867. (House Journal, p. 345.) It was discussed in the House till the 13th of February, when it passed by a vote of 109 to 55. 26 members not voting. (Journal, p. 376.) It was received in the Senate and passed a second reading on that day, was discussed, amended and passed in the Senate on the 16th. The vote on the different clauses varying from 26 to 14, and 30 to 7. (Journal, pp. 290-294.) It was returned to the House on the 18th, discussed that day and the day following, when the House disagreed

His first objection was that it placed all the people of the ten States "under the absolute domination of military rulers." The declaration that no legal governments existed in these States and that they afforded no adequate protection for life or property was, he said, contrary to fact. Their civil administration was in substance and principle the same as that prevailing in the Northern States and in other civilized countries. The real object of the bill was not to establish peace and good order but to compel the people of the ten States to select delegates to constitutional conventions by elections at which negroes should be allowed to vote; to force them to insert in their constitutions clauses giving the right to negroes and to such white men as might not be disfranchised for rebellion or felony; to submit the constitution to these; further, to submit them to Congress for approval and to adopt the fourteenth amendment in their legislatures. Thus the purpose of the military rule proposed was to coerce the southern people into the adoption of principles and measures to which it was known they were opposed. This was without precedent of authority and "in palpable conflict with the plainest provisions of the Constitution." The division of the States into five military districts and the

to the amendment of the Senate and asked a conference. (Senate Journal, p. 306; House Journal, p. 424.) The managers appointed on the part of the House were Mr. Stevens, Mr. Shellabarger and Mr. Blaine. The Senate insisted on its amendments. (Journal, p. 306.) The House receded from its disagreement and further amended the bill (February 19-21) by a vote of 128 to 46. (Journal, p. 444.) The Senate agreed to the amendment of the House and passed the bill February 21st by 35 yeas to 7 nays. (Journal, p. 320.) The bill returned by the President with the veto message was passed by the House on the 2nd of March by a two-third vote (Journal, p. 583), and by a vote of 35 to 11 on the same day by the Senate. (Journal, p. 419.)

2 See the veto message in Richardson, VI, 498-511.

judicial powers which the bill gave to the civil commanders were wholly unconstitutional. It created an absolute despotism. In this respect the bill discriminated against the people of the South and treated them in a way which the fundamental law forbade.

Moreover, the bill was passed by Congress in time of peace, when not one of the States brought under its operation was at war or in insurrection; while the laws of these States and the Federal Government were in harmonious operation, and the courts, State and Federal, open and in full exercise of their proper authority. That the bill was unconstitutional was clear from a recent decision of the Supreme Court.1 It even violated the principle laid down in the opinion of the minority of the Court delivered by Chief-Justice Chase. By the Constitution, but one kind of military jurisdiction could prevail in time of peace,-defined in a code of laws enacted by Congress for the government of the national force. But this bill formed no part of such a code. Again, the Constitution forbade the exercise of judicial powers in any other way than by established courts; but this bill gave judicial authority to military commanders. The United States are bound to guarantee to each State a republican form of government, but the act put nine millions of people under a military despotism. It was a bill of attainder against all these millions not one of whom had been heard in his own defense. Why thus attempt to change the entire structure and character of a State government by compelling the adoption of organic laws and regulations which the people were unwilling to accept if left to themselves?

The negroes had not asked for the privilege of voting and the vast majority of them had no idea of what it The bill not only thrust the suffrage into their

meant.

1 In Ex parte Milligan, 4 Wallace, p. 2-131.