Mr. Stewart asked him to state what he believed to be their duty.

Mr. Howard: "The first duty of every community that has a Government is to punish crime and to protect its friends. . . . The great and paramount duty of the rebel State Governments, their first and leading duty, is to punish crime and thereby to protect the peaceful and the innocent." 1 Mr. Howard mentioned no other duty.

FORCED TO RATIFY A CONSTITUTIONAL AMENDMENT

Mr. Hendricks agreed with Mr. Howard that the bill was coercion on the Southern States to compel them to ratify an amendment to the Constitution. On this point he said: "Any amendment of this nature [the Williams Amendment offered by Mr. Johnson] is substantially a proposition to the people of the South that if they will agree to the constitutional amendment [the Fourteenth] proposed at the last session of Congress, and to other propositions, it is very well; but this is submitted to them with the bayonet presented at the same time, and an amendment to the Constitution of the United States, which the fathers intended should be entirely at the will and pleasure of the States, is to be secured by the military power of the country.'

And, speaking of the bill and of the Louisiana bill, he said: "I know of no language which I can command that will describe my hostility to both bills." The Louisiana bill is "more insidious, and if it were parliamentary to say so, I would add, more cowardly in its attack on liberty. The bill which is now before us proposes in a bold way, outright and straightforward, by physical power to govern the people of the South; the other bill, by a political machinery, proposes to strip them of free government, and, under the pretense of guaranteeing a Republican form of government, to take away from the people the power to decide upon their own institutions." 3

Mr. Hendricks referred to the preamble of the bill, which alleged "that the pretended governments" in the Southern 1 Congressional Globe, 2d Session, 39th Congress, p. 1381. 2 Ibid., p. 1385.

3 Ibid.

States "were set up without the authority of Congress and without the sanction of the people;" these governments "afford no adequate protection for life or property, but countenance and encourage lawlessness and crime," and that "it is necessary that peace and good order should be enforced in said so-called States until loyal and Republican State governments can be legally established" therein.1

He insisted that the majority had too often been committed to the proposition that "these States did not cease to exist because of the ordinances of secession" now to turn their backs on it; that Congress had too often recognized them as States since those ordinances were adopted to allow the majority now to deny their existence as States. He asked when did they cease to be States and come to be pretended governments? He desired to know when it was and how it was this change took place; did the rebellion disrobe them as States? "We have said the contrary too often to aver that now." "Did they cease to be States by the act of secession, by the act of rebellion, by the act of war, or was it because the rebellion itself was defeated?" 2

The preamble of the law, it will be remembered, is the formal statement made in the most solemn form of the reason or occasion of the enactment of the law. Calling attention to the preamble, it will be seen that, though all these proceedings took place after the rejection of the Fourteenth Amendment by the Southern States, nothing is said in it about that rejection. If it be averred, as is sometimes done, that the rejection of that amendment was the reason of the subsequent reconstruction legislation of Congress, including the Fifteenth Amendment, the answer is found in the solemn statements made in the preamble to this and other bills passed on the subject. This preamble, as it is above set out, received the sanction of the House of Representatives, and it was substantially adopted in all respects in the bill that finally passed both Houses. This solemn statement of the reason for passing the bill not only does not sustain the charge that the rejection of the Fourteenth Amendment was the reason for the subsequent reconstrucion measures, but by an irresisti1 Congressional Globe, 2d Session, 39th Congress, p. 1037. 2 Ibid., p. 1385.

8 XIV U. S. Statutes at Large, p. 428.

ble implication avers the contrary. It avers that the State Governments are illegal or pretended Governments, set up without the consent of the people of the several States. If so, these Governments had neither the legal nor the moral right to ratify an amendment to the Constitution; not the legal right, because they themselves were illegal and pretended Governments; not the moral right, because such action would be a usurpation and assumption to speak for a people who had never consented to them.

Mr. Hendricks, in commenting on the preamble, stated that it contained propositions of fact "upon which the majority now claim the right to establish such a Government as this bill proposes." He then went on to show that the allegation, in the preamble, of lawlessness in the South and the complaint that the State Governments furnished no adequate protection to life and property were untrue in point of fact; and he made some statements as to lawlessness in the Northern States and their failure to punish adequately the most atrocious crimes.

CHAPTER V

DISHONOR TO SOUTH IN THE FOURTEENTH AMENDMENT

MR. HENDRICKS, proceeding, said he did not "know that it is worth while now to say a word in behalf of the people of the South. I am not going to apologize for their conduct. But, sir, they have submitted to the military authority of the Government most reluctantly upon their part; their arms have been laid down or taken from them; they have in every way in which they could do so addressed themselves to this Government for pardon and for restoration in all their relations to the Government, and for nearly two years they have been refused; they have agreed to the constitutional amendment abolishing slavery; they have modified their own Constitution so as to abolish slavery; they have repudiated the Southern debt contracted during the war; they have done all that they understood was required of them, except to adopt the last constitutional amendment; they have not adopted that, and I do not know that they ever will. Upon that subject I have no opinion to give. Some Senators on the other side know very well that there was a provision introduced into that constitutional amendment that made it almost impossible for the people of the South to adopt it. I speak of that provision which especially degraded the military officers of the South and cut them off from all positions in the Federal and State Governments." 1

A PLEA FOR HARMONY AND RESTORATION

Mr. Hendricks then made an eloquent appeal for restoration, saying: "It is the highest duty of the citizen and of the statesman now, by every effort possible, to restore harmony and peaceful relations." If Senators desired that Representatives from the Southern States should take a test oath, let it 1 Congressional Globe, 2d Session, 39th Congress, p. 1389.

be so, but let them be represented. "Let the wheels of this Government move on according to the Constitution." He further said: "As I read this bill and contemplate its wonderful provisions, it is almost impossible for me to believe that Senators by this policy desire restoration, . . . or harmony." He did not believe "that the safest way to establish liberty is first to establish despotism." 1

An amendment to the Williams-Johnson amendment was proposed and carried, requiring that the electors for delegates to the Constitutional Convention in any State should include Negroes. This was done after one o'clock a. M. on the 15th of February, but the amendment thus amended was still unacted on.

STATUS OF THE SOUTHERN STATES

It will be noted that the Williams-Johnson amendment up to the present had made no expression as to the number of States necessary to ratify the Fourteenth Amendment. The provision on that subject was only when "said amendment shall become a part of the Constitution of the United States."

Mr. Sumner proposed to remove the ambiguity which he said "leaves open to question whether these sham governments may not, by some hocus-pocus or other, be enlisted in the number of States to constitute the three-fourths required." His amendment was to the effect that three-fourths of the States then participating in the Government were sufficient to ratify the Fourteenth Amendment.

Mr. Johnson suggested that whatever might be the declaration of the Senate on that point, still it must finally be decided by the courts.

Mr. Saulsbury stated that a consequence of the amendment of Mr. Sumner was that "a majority of the representatives of the States" in the Senate "may get together and close the door against the representatives of the other States," and then, through the "assent of three-fourths of the States so represented," excluding the remainder, would ratify the amendment, though they might not be a majority of the States of the Union. "In the commencement of the late civil war Congress by resolution recognized every Southern State as a State of this Union, although those States were not represented in Con1 Congressional Globe, 2d Session, 39th Congress, p. 1389.