an amendment of the Constitution, except by the valid and legal action of the States. Nor was their situation improved by the excuse afterward presented by Mr. Blaine, that ratification by them of the Fourteenth Amendment was sought, not as a valid act of ratification, but as testing the disposition of the people toward the Union, and as a qualification of the people for association with the other States in the Union. For if the State Legislatures were illegal, they represented no one, their acts bound no one, their action could qualify no one. More than this, there is no authority in the Constitution for submitting amendments to the Constitution to any ratifying power but to States, nor for any other purpose than for legal and valid ratification. There is no such thing known in the Constitution as submission of amendments to that instrument to States or to people in territorial divisions known as States, for the purpose of qualifying them to be States, or of testing the disposition of the people as to qualifications for Statehood. Such submission was, therefore, on that theory a violation of the Constitution, and action under it would have been equally a violation of that instrument. To reconstruct on that basis was to require the Southern States to commit a violation of the Constitution as a qualification for Statehood under it. The claim too that the Southern States were not States in the Union, and, therefore, not competent to act as States on the constitutional amendments, though avowed by many, was not recognized by the Senate, which in the main framed the bill. The proposition of Mr. Sumner to amend the bill so as to declare that three-fourths of the other States were competent to amend the Constitution was voted down in the Senate by a large majority, only seven members voting for it. The same proposition was contained in the Blaine amendment, which was lost in the House. Even those who professed belief in that position had no confidence in it. Mr. Kirkwood candidly avowed his fears that the Supreme Court would not sustain such a position.1

Such fear was well founded, for in the next year the case of Texas against White, 7 Wallace, 700, was decided, in which it was held that Texas was, and had been since her admission, a State in the Union as a State. That the Union was composed of "indestructible States." If so, then Texas and

1

Congressional Globe, Second Session, 39th Congress, p. 1393.

the other Southern States must be counted in enumerating three-fourths of the States, the number necessary to ratify an amendment to the Constitution.

There is nothing stranger than the action of the human brain when it is devoted to reconciling contradictory actions and theories in accordance with the attainment of a predetermined end. The majority in Congress had determined that the Southern States should not be admitted to representation in that body, except upon certain conditions that were intended to secure a predetermined end. That end was the enfranchisement of the Negroes in those States. This was an abandonment of the scheme as developed in the Fourteenth Amendment. That scheme looked to enfranchisement in those States by the action of the State Governments as then organized, or on failure of such enfranchisement, then to a diminution of the political power of those States based on that population. A choice was given between the two. Now it was determined that there should be no choice, but Negro suffrage was to be imposed through military rule. Mr. Sherman and other leaders of the majority were for universal suffrage and universal amnesty. They were for the exercise of this power by all male adults whether black or white, but with this difference, they were inflexible in the determination that all blacks should vote, but more pliant as to demands for exclusion of a portion of the whites. The bill as it passed the Senate committed suffrage to all, leaving, however, to the illegal State Governments power to disfranchise "for participation in the rebellion or for felony at common law."

So far as Congress was concerned, suffrage was to be universal, with a concession, however, to these illegal State Governments of the acknowledged rights of the State Governments to make the named exclusions.

The House, however, inserted the proviso to the fifth section, by which a large number of whites were excluded from suffrage for participation in rebellion, and both white and black felons were made eligible. Mr. Sherman and others of the majority were opposed to this proviso. Mr. Sumner wanted a more extended disfranchisement of whites who had engaged in the rebellion. In opposing this, Mr. Sherman, as has been seen, recurred to first principles. He declared that the exclusion of all the rebels would violate the maxim that

"all Governments must be founded on the consent of the governed." He "invoked constitutional liberty against such a doctrine," and warned the Senate to "beware, lest in guarding against rebels, you destroy the foundations of Republican institutions." Yet whilst proclaiming this doctrine, and admitting its application to rebels, he, with his associates, was without the slightest compunction enforcing in this very bill a Government without the consent of the governed, and enacting as a condition of release from military rule that these States should ratify, against their known wishes, an article amending the Constitution,-an article that made the most important change in their fundamental law.

The question of reconstruction seemed now settled. To have this settlement,—to have a distinct pledge, as is embraced in the fifth section of the Act, that on compliance with these terms military rule should cease and the Southern States be restored to the Union,-Reverdy Johnson, as we have seen, though opposed to the whole scheme, had voted for it.

The situation, then, was this: the Thirteenth Amendment abolishing slavery had become a part of the Constitution. The Fourteenth Amendment had been rejected by the Southern States and by several Northern States. The elections in the fall of 1866 had shown more than a two-thirds majority in Congress for the Republicans, and by that majority had condemned the President. These elections had given the endorsement of the country to the scheme of reconstruction embraced in the Fourteenth Amendment, and under the inspiriting influence of these elections the majority in the Senate ventured to pass the first Reconstruction Bill as above noted.

It will be well, however, to remember the extent of this scheme, to contrast it with the scheme of the Fourteenth Amendment that had been endorsed at the preceding election.

1. It provided for military rule, declaring the Southern State Governments illegal, whilst the Fourteenth Amendment was submitted to the then existing State Governments for their action, thereby recognizing their validity.

2. The present bill provided for reorganizing the State Governments on Negro suffrage, and on a partial, though very large, white disfranchisement. The Fourteenth Amendment made no disfranchisement as to voting.

3. The bill, however, left to the people of the States the initiation and the management of the proceedings for a call of the convention. Congress had not yet gone to the point of initiating these proceedings, taking control of the elections, and declaring the result.

On this point Mr. Sherman said: "The State communities are swept out of existence; and the people are required to proceed in their own way to form State governments.”

"No machinery is provided, it is true; but we have three examples already in our own history of States being organized by the people without any previous enabling act. Here is an invitation to the people. They can call their party conventions, their State conventions, and finally by a movement of the people, without regard to their local Legislature or local tribunals, a constitutional convention can be convened, elected by all the people, and they can form a Constitution." 1

4. It was still left to the States,-after they were thus reorganized, after their Constitutions had, as to suffrage, conformed to the requirements of the law, and after their admission to representation,-to change their Constitutions on the subject of suffrage according to their own views of propriety and safety. There were no fundamental conditions prescribed to be binding on the States after their admission to representa tion, in reference to suffrage or anything else.

'Congressional Globe, Second Session, 39th Congress, p. 1564.

CHAPTER VI

FURTHER MEDDLING

THE fortieth Congress met March 4, 1867, two days after this first reconstruction bill had become a law.

Immediately on the assembling of Congress, Mr. Sumner introduced resolutions that looked to furnishing the Negroes with homesteads from the lands of the Southern whites that were to be confiscated, and to a further restriction of the suffrage as against the whites. This action had been foreshadowed by Mr. Sumner in the debate a few days before, on the passage of the reconstruction bill.

The feeling was very strong among Republican Senators against reopening the question of reconstruction and adding new terms and conditions for the restoration of the Southern States. Evidently they were satisfied with what had been accomplished, with respect to both the rights of the blacks and the humiliation and ruin of the whites. Mr. Sherman, in resisting, as we have seen, the demands of Mr. Sumner for a further disfranchisement of the whites, had affirmed that it was enough that the Southern whites had been humiliated and conquered, their pride broken, their bravest and best slain, their institutions overthrown, they themselves disfranchised as to office, and their slaves made their political equals. Speaking of the bill just before its passage, he said: "I trust now . . that we may have a platform upon which the Southern people can build up society in the Southern States, and that our great and glorious Union may be again united, with all the States represented, with all the stars displayed upon our banner." 1

Mr. Stewart had said the passage of the bill was a matter of congratulation. "I believe it is a grand measure of justice and generosity, and the passage of it is the greatest event that has happened since the surrender of Lee. I believe it will give us peace and prosperity. It frankly says to 1 Congressional Globe, Second Session, 39th Congress, p. 1626.

1