334

ITS UNCONSTITUTIONAL COURSE.

abolished in their State constitutions; but as Kentucky had not abolished slavery, it would still remain in that State. But if true, that these States had no legal governments, then their abolition of slavery bound no one, for in now denying to them the power to elect a legal State legislature, or to form a constitution for any purpose, even for the abolition of slavery, Congress denied them the power to abolish it.

These States, as it happened, had not accepted the Fourteenth Amendment, and in consequence, it had never been proclaimed or understood even by Congress to be a part of the Constitution of the United States. The Senate had repeatedly sanctioned the appointment of marshals, district attorneys and judges for each of these States; yet if these had no legal governments not one of these judges was authorized to hold court. In appropriating moneys to pay the salaries of federal officers, in these States, and in executing the revenue laws they were treated distinctly as States and not as territories. Thus their civil condition was recognized by the Supreme Court, whose judges, in their allotted circuits, performed their duties in these as in other States. If in parts of the Union neither the Chief-Justice nor his associates had authority to hold court, every order, judgment and decree they rendered was void.

The reconstruction acts were passed on the theory that the ten States were conquered utterly and that they stood toward the Federal Government in a new relation which subjected them to military power. This theory the President combated. The United States had not conquered the places lately controlled by the Confederacy, but simply had repossessed them. Not a foot of land, not a public building belonging to any of these States had been confiscated by the General Government, nor taxed under fed

THE CROWNING ACT OF RECONSTRUCTION.

335

eral law. Thus the substance of this veto message, as of all the others which the President wrote against the reconstruction acts, was the serious objection that they made the military paramount to the civil authority.1 In April, 1866, he had announced by proclamation that the insurrection was at an end and that the people of the Southern States were loyally disposed and either had conformed or would conform, in their legislation, to the condition of affairs growing out of the Thirteenth Amendment.2 The evidence now before Congress did not corroborate the claims of this proclamation nor did it support the veto message, and the supplemental act and the special appropriation bill were passed, notwithstanding the President's objections.

It has long been customary to associate reconstruction exclusively with the southern States, but a moment's reflection, however, will show that it applied to nearly every State in the Union. The reconstruction acts which the President had vetoed were essentially special legislation directed to the South, but the Fourteenth and Fifteenth amendments which were the crowning acts of reconstruction reorganized the civil structure of American government, State and national. Though the so-called franchise clause of the Fourteenth Amendment chiefly affected the southern States, it also affected those of the North, which, twenty-six in number, including the border States, had, excepting four, hitherto excluded persons of color from the suffrage. By reason of disparity in the number

3

1 The President's language is closely followed. The veto message on the million dollar act consisted of only a few lines.

2 See the proclamation of April 2, 1866, respecting Georgia, South Carolina, Virginia, North Carolina, Tennessee, Alabama, Louisiana, Arkansas, Mississippi, Florida (Richardson, VI, 429432) and of August 20, 1866, as to Texas. Id., pp. 434-438. • Vermont, Massachusetts, New Hampshire, New York.

336

ATTITUDE OF MARYLAND.

of their negro population, the northern States were not under the same inducement as the southern to adopt negro suffrage.

Every northern State, save Delaware and Kentucky, had now ratified the Fourteenth Amendment and it was primarily to compel its ratification by the South that Congress had passed its special reconstruction acts. While they were under discussion, and before the act of July was passed, Maryland, Michigan and New York,-States to which the acts did not apply,—had been forming new constitutions. In each State the question of negro suffrage had come up. Before passing final judgment on the recent rejection of the amendment by the southern States it will be well to consider the attitude of these three States toward the same question.

The people of Maryland considered the State constitution of 1864, somewhat as a revolutionary document, and at the election in April, three years later, chose delegates to a constitutional convention to assemble at Annapolis in May.1 In framing the act calling it, the general assembly refused to extend the right to vote on the question of holding it, to male citizens of the State and of the United States of age and of "whatsoever race, color or previous condition." The Republicans of the State, in convention at Baltimore, on the twenty-seventh of February, had formally expostulated against the convention bill, because it discriminated against the loyal citizens of the State who were persons of color, and a month later, again expressed their hostility to the measure by formally invoking Congress to protect the majority of the people

1 The vote April 10, was 34,534 for, and 24,136 against, a convention. See Proceedings of the State Convention of Maryland to form a new constitution, commenced at Annapolis, May 8, 1867, Annapolis; George Colton, Printer, 1867, 842 pages with reports. It adjourned August 17.

of the State, white and colored, and give the State a constitution on the basis of universal, or manhood suffrage.1

A similar demand was made, in the week following the opening of the convention, by a meeting of delegates, both white and colored, which had been formally summoned at Baltimore by the Republican State Central Committee. This body seriously discussed the question of holding an independent constitutional convention, whose delegates should be elected by the male citizens of the State irrespective of color, and of leaving it to Congress to decide which constitution should be recognized as valid. This proposition, however, only hinted at public feeling and was not carried out. The Annapolis Convention was not disturbed in its work, and the constitution which it framed was ratified on the eighteenth of September by a small popular majority.2 The principal reference to the reconstruction acts in the new constitution was concealed in an article, in the Declaration of Rights, affirming that the provisions of the Constitution of the United States and of Maryland applied as well in time of war as of peace and that any departure from them under the plea of necessity tended to despotism.3

The general assembly was enjoined from providing for the payment by the State for emancipated slaves, but it was instructed to adopt such measures as it might deem expedient to obtain compensation from the United States and distribute it equitably among the former slaveholders. The public opinion which dictated this clause prevented the State, as we have seen, from ratifying the

4

1 See the resolutions of the Baltimore conventions of February 27 and March 27, 1867, in the Tribune Almanac.

2 4,116 votes, in a total of 70,188.

3 Article XLIV; see Proceedings, pp. 26, 57.

4 Article III, Section 37; See also Declaration of Rights, Article XXIV. See Proceedings, p. 29.

338

AFFAIRS IN MICHIGAN.

Fourteenth Amendment.1 The elective franchise was limited to white men and the discussions in the conventions do not show that there was any disposition to extend the right to negroes. There was much complaint among the negroes of the State at this time against its apprentice laws and the exclusion of the race from enjoying the industrial privileges of white men, and from equal rights in judicial proceedings. These complaints were not remedied by the convention, though it made some effort to allow the blacks to give testimony in court.2

3

The Maryland convention had been in session a week when that of Michigan met at Lansing. The constitution of 1850 limited the right to vote to white male citizens. Some effort made at that time to extend the suffrage to negroes, had amounted to no more practically than a suggestion. The question of extending the right now soon arose, and it was proposed to submit the question to the electors as a separate provision, but it was finally decided to submit it as part of the constitution.5

1 See page 320.

2 As to the Apprentice Laws of Maryland at this time, see Senate Miscellaneous Document No. 24, 40th Congress, 1867-1868.

3 See the Debates and Proceedings of the Constitutional Convention of the State of Michigan, convened at the City of Lansing, Wednesday, May 15, 1867. Official Report by William Blair Lord and David Wolfe Brown, Lansing, John A. Kerr & Co., Printers to the State, 1867; 2 volumes (folio) 1,072 pages; Journal of the Constitutional Convention of the State of Michigan, 1867, printed by order of the Convention under the supervision of Thomas H. Glenn, Principal Secretary of the Convention, Lansing; John A. Kerr & Co. (8 volumes) 943 pages. The Convention consisted of 75 Republicans and 25 Democrats.

4 For an account of the civil conditions in the State of Michigan in 1850, see the Constitutional History of the American People, 1776-1850, Vol. I, Chapters vii-ix.

5 August 9, Journal, p. 658-660; carried by a vote of 50 to 28. Debates, Vol. I, pp. 712-718; 779-789. An unsuccessful effort was made at this time to extend the right to vote to Indians civilized who had severed their tribal relations. Id.