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LECTU RES
T)ELIVERED
IN THE LAW SCHOOL OF HARVARD COLLEGE, AND IN
DARTMOUTH COLLEGE, 1867-68, AND'69.
BY
JOEL PARKER.
NEW YORK:
PUBLISHED  BY HURD AND HOUGHTON.
1869.




Entered according to Act of Congress, in the year 1869, by
JOEL PARKER,
in the Clerk's Office of the District Court for the District of Massachusetts.
RIVERSIDE, CAMSBRIDGE:
PRINTED BY H. 0. HOUGHTON AND COAIPANYV




LECTURE  1.
THE THREE POWERS OF GOVERNMENT.
Delivered in the Law School of Harvard College, in January, 1867, and in Dartmouth
College, in April, 1869.
Gentlemen of the Law School:
THE subject of my lecture to-day is in the department of
Constitutional Law.  For two years past I have devoted the
closing lecture of my course for the autumn term, to some of
the topics embraced in that department, which were of prominent interest in connection with passing events, and I propose
to continue that arrangement.
My subject at the present time is the three great powers of
government, to wit, the Legislative, Judicial, and Executive,
with a view to the consideration of the appropriate functions of
each, in a constitutional republic, and especially under the
constitutions of the several States, and of the United States;
showing the absolute necessity that they should be kept separate, and the action of each confined to its appropriate sphere.
You are at once aware, from this announcement, that I must
necessarily traverse some of the debatable ground, which has
recently been contested by different parties with a greater degree of zeal than of knowledge or discretion. From the prominence which has lately been given to the discussion of some
portion of the subject, or, perhaps, I should rather say the prominence which has been given to violent assertions of opinion,
and violent denunciations of opinion, on topics connected with
the subject, it may well be supposed that you have all of you,
to some extent, greater or less, formed opinions in relation to
them. It is quite probable that those opinions may not be entirely alike, and perhaps the opinions which some of you have
formed may be not entirely in accordance with those which I
am about to express. If so, I pray you, as I have done before,
1




2           THE THREE POWERS OF GOVERNMENT.
to rest assured that in whatever I may say I have no party
to serve, nor any party purpose to subserve, nor any personal
interest to promote.  Will it be too much for me to ask of your
faith and trust an unhesitating confidence, that my sole purpose is to aid, as far as I may, in a sound exposition of the
principles of constitutional law, particularly as they are applicable to the Constitution of the United States, which in my
belief is essential to the interests of republican liberty, and to
the stability of our institutions.
Government, in one sense of the term, has been defined to
be i" the exercise of authority; direction and restraint, exercised
over the actions of men, in communities, societies, or states; the
administration of public affairs, according to established constitution, laws, and usages, or by arbitrary edicts." In another
sense it is "' the system of polity in a state; that form of fundamental rules and principles, by which a nation or state is governed, or by which individual members of a body politic are
to regulate their social actions; a constitution, either written
or unwritten, by which the rights and duties of citizens and
public officers are prescribed and defined."
The legitimate purpose of government in this "exercise of
authority," is not merely the administration of public affairs,
and the enforcement of the duties, and the imposition of the
restraints which are necessary to that administration, but it is
also the establishment and security of private rights, and the
protection of all who are under its jurisdiction in the enjoyment of those rights, the protection of their persons from unlawful violence, of their reputation from the assaults of malice,
and of their property and possessions from all unlawful interference.
Systems of government are of three sorts, Monarchical, the
government of one; Oligarchical, that of a few; Democratic,
that of the whole.
It is the first which is most often a despotism. But either of
these three forms may be despotic. Absolute power - authority unlimited and uncontrolled, acting according to no prescribed rule, or disregarding at pleasure a rule which has been
prescribed, and punishing a person for an act which was against
no rule, and therefore innocent when it was done, or depriving
a person of his property, according to the will of the party exercising the authority at the time - may be exercised by several




THE THREE POWERS OF GOVERNM1ENT.              3
persons acting as a council, or by a majority in a democracy,
as well as by a single ruler whose will is the law of the state.
There are, essentially inherent, in every system of govern[
ment, three principal powers, —the Legislative power, the
proper office of which is to make the laws; the Judicial, which
is rightly exercised in the interpretation of the laws, inquiring
also into their infraction, and applying remedial justice; and
the Executive, which manages the affairs of the state committed
to its charge, according to the laws, and enforces, if necessary,
the decrees of the judicial department.
The security of the people, in their rights of person and property, depends upon the separation of these three powers into
distinct departments, and upon the adoption of rules of government which shall limit and prescribe the powers to be exercised
by each department, providing that each shall operate as a
check upon each of the others, in such a mode as to restrain all
within their proper limits.
How to effict this is a problem not yet solved.  The experience of the last few years leads to a fear that it is one which
is never to be finally solved, until righteousness and peace pervade the whole earth.
In some governments the three powers are mixed and confused, without definite limits, running into each other, and perhaps retrospective and ez postfacto in their operation, and not
exercised alike in their relation to all persons and all actions.
The monarch who reigns without restraint, and whose will
is the law of his realm, who directs what shall be done, and
how and when it shall be done, approves or condemns at pleasure what has been done, and punishes without remorse or
mercy the most venial, and even meritorious acts, with the
same severity as the most atrocious crimes, is a lawgiver, a
judge, and an executive potentate. It may be his pleasure to
define the action which is required of his subjects, by particular
rules prescribed for their observance. It may be that the rule
is, that whatever is done without his permission may be treated
as an offence committed. These are both instances of a rule
which is prospective.  It may be that he blends the legislative,
judicial, and executive powers in a single action of his will, by
which he regards something done, or left undone, by one of
his subjects, as an offence which he punishes at his discretion.
It may be that he exercises but one of these powers in a par



4           THE THREE POWERS OF GOVERNMENT.
ticular case.  He prescribes the rule, and sees fit not to enforce it. This is legislation alone.  He regards a thing which
when done was not in violation of an existing rule, as a matter
to be punished. This is, in its nature, an ex post facto law,
which is promulgated, and sentence rendered, and carried into
execution forthwith, by an order which forms part of the transaction,- and may be deemed to be an exercise of judicial and
executive power. It may be that he regards the mere existence of one of his subjects as an obstacle to some proposed
action, and by a summary order sends him to execution, in
which case neither legislative nor judicial power is exercised.
The act is an exercise of despotic executive power only. These
instances may suffice to show us that the three powers which
have been mentioned, exist, even in such a government, while
it is at the pleasure of the despot which of them shall be exercised, and the manner of their exercise; the ordinary result
being that the executive power is often the sole power which is
brought into action.
What has thus been said of the despotic power of the monarch, is equally true of an oligarchy which may be equally a
despotism.
It makes no essential difference in the principle, that the
powers of government are exercised by several persons, as a
supreme power. In their united action, or in the action by the
voice of a majority, if that be the nature of the case, they exercise the three powers named, and may exercise them in the
same manner, or omit the exercise of one or more of them at
their pleasure.
It makes no difference whether this body be called a Council,
a Senate, a holy Vehme, an Inquisition, a Congress, or a Courtmartial; or whether its acts are in the form of laws, decrees,
orders, judgments, or sentences, if it exercise the supreme
power of government, without restraint, at the pleasure of its
will.
The same is true of a democracy, acting by majorities, and
ruling without restraint. If the democracy be of limited numbers, the ruling power may resolve itself into what, if it were
not the supreme power, would properly be denominated a mob;
but it would not thereby have changed its character. A mob
sometimes assumes to itself, and exercises all these powers. At
times it makes a show of the judicial, and perhaps applies an




THE THREE POWERS OF GOVERNMENT.               5
expost facto rule.  But its action usually presents more of the
executive feature, than of the legislative, or judicial.
I need not argue to you that there is no security for civil
liberty (but that would be an inappropriate phrase), that there
is no civil liberty in such a government. Property, liberty,
and life itself, are held at the unchecked will of an irresponsible
power. No one knows, from day to day, that he is, for an
hour, secure of either.  The hand of a';familiar," or an " official," or a sergeant-at-arms, or a corporal of the guard, may be
laid on him  at any moment; and the dungeon, the rack, the
stake, the guillotine, or the gibbet, may follow, without the
possibility of the intervention of any habeas corpus, or other
stay of proceedings, except at the pleasure of the ruling power.
The sentence denounced may be unjust, without excuse or
palliation.  There is no power to stop it, except the power
which decrees it shall be executed. The proceedings may be as
secret as the grave.  The husband or father, the son and
brother, the wife and daughter, may disappear, without a trace
left behind by which to discover the place of imprisonment or of
burial; or the arrest, incarceration, and execution, may be at
high noon, in the presence of weeping relatives and trembling
spectators, and the doom be equally beyond any power of delay
or prevention.
I have thus described some of the most odious forms of despotic power.
But there may be other forms, presenting, ostensibly, less
odious characteristics, in which the powers of government may
be exercised in a similar manner, but to a limited extent only,
and perhaps in rare instances, and these by usurpation.  Something of this kind is to be expected at the present day, rather
than the absolute power of which I have just spoken.  Civil
liberty may exist, to some extent, greater or less.  There may
be, in quiet times, no cause of complaint of the administration of
the government. But if the exercise of despotic rule may be
admitted at all; if it is conceded that emergencies may arise
when such authority may be exercised; if it is permitted to exist,
even as a possibility,- to the extent of its exercise, whatever
that may be, civil liberty is but at the pleasure of the government which does or may exercise it, and all persons hold their
property, liberty, and lives, at the pleasure of whoever may, on
1*




6          THE THREE POWERS OF GOVERNMENT.
one pretext or another, put in motion the engine of despotism.
One of the great struggles of the civilized world has been to
shake off and overthrow despotic government, whether exhibited in one or the other of its various forms, and to substitute a
government which should maintain and preserve civil liberty.
It needs no argument to show that such a government cannot
be expected from an absolute monarchy, nor from any limited
number of people exercising the power of government with an
interest adverse to that of the whole people; nor from the
great body of the people, exercising all the powers of government in mass-meeting, with no study of the principles which lie
at the foundation of all good government, and subject to the
influence of demagogues whose interest it is to make the worse
appear the better reason.
If the people generally are ignorant, they become the prey
of the designing. But education alone furnishes no guaranty
for the maintenance of liberty.  On the contrary, it is consistent with extraordinary corruption.
If the people are corrupt, it is in vain to expect that the
government which they set up will be any better than the constituency which it represents.
In neither of these cases can it be hoped that the different
powers of government will be faithfully exerted for the promotion of liberty, even if' their administration is committed to
separate and independent departments.  But these are extreme
cases.
It is in those states of society in which the great mass of the
people are neither so ignorant as not to understand their rights,
nor so corrupt as to barter them away, or to be regardless of
them, that there is a well-founded hope for the preservation
of liberty.
Even there, the best arrangements for civil government may
be overturned, for the time being, by the passions of the multitude; and repentance, if it come at all, may be altogether too
late to remedy the mischief which passion and recklessness have
produced.
The greatest safeguard which the case admits of, - guarding
against the errors of ignorance, on the one hand, and passion
on the other, - guarding, so far as may be, against the corruption which sometimes contaminates numbers of the people, -is




THE THREE POWERS OF GOVERNMIENT.             7
in the distribution of the powers of government into three
separate departments, in the manner already indicated.
The republics of the ancient world furnished only a very
limited security to civil rights.
The legislative and executive powers were generally in the
hands of one person, or body of persons, and although the
judicial power was nominally separated, yet, being the weaker,
it could, from its nature, have but little independence when the
other two were united against it. In fact it was substantially
subservient, from the nature of the case.
The attempt was long since made, in England, to separate
the legislative, judicial, and executive powers, and to erect
them into distinct, and to some extent, independent departments of government; and by this means, and by the declaration of certain principles of right, to secure civil liberty to the
people.  These principles are set forth in Magna Charta, the
Petition of Right, the Habeas Corpus Act, and the Bill of
Rights.
Mr. John Adams in the preface to the "Defence of the
American Constitutions," published in London, in 1787, says:
" The people's rights and liberties, and the democratical mixture
in a constitution, can never be preserved without a strong executive, or, in other words, without separating the executive
power from  the legislative. If the executive power, or any
considerable part of it, is left in the hands either of an aristocratical or a democratical assembly, it will corrupt the legislature, as necessarily as rust corrupts iron, or as arsenic poisons
the human body; and when the legislature is corrupted, the
people are undone."
After quoting Tacitus, as doubting the practicability, or the
duration, of a republic in which there is a governor, or senate,
and a house of representatives, though he admits the theory to
be laudable; and Cicero, as declaring the superiority of such a
government, Mr. Adamns says: " As all the ages of the world
have not produced a greater statesman and philosopher, united
in the same character, his authority should have great weight.
His decided opinion, in favor of three branches, is founded on a
reason that is unchangeable; the laws, which are the only possible rule, measure, and security of justice, can be sure of protection, for any course of time, in no other form of government."
He then says: "If Cicero and Tacitus could revisit the




8          THE THREE POWERS OF GOVERNMENT.
earth, and learn that the English nation had reduced the great
idea to practice, and brought it nearly to perfection, by giving
each division a power to defend itself by a negative; had found
it the most solid and durable government, as well as the most
free; had obtained, by means of it, a prosperity among civilized
nations, in an enlightened age, like that of the Romans among
barbarians; and that the Americans, after having enjoyed the
benefit of such a constitution a century and a half, were advised
by some of the greatest philosophers and politicians of the age
to renounce it, and set up the governments of ancient Goths
and modern Indians, - what would they say? That the Americans would be more reprehensible than the Cappadocians, if
they should listen to such advice."
But the negative in the monarch of the English Constitution
is merely nominal, being never exercised; and it is for this
reasons and from the fact that there is in the English unwritten
constitution no recognized power otherwise limiting the legislative authority of Parliament, that that body is often termed
omnipotent.  If Parliament refuses to sanction the measures of
the ministry, who represent the king, the ministry resign, or
the king dissolves Parliament, and there is a new election. If
measures are adopted by Parliament against the will of the existing administration, the ministry resign or acquiesce. But
there is no power, on the part of the judicial department, to
declare any act of Parliament void, because in violation of
Magna Charta, or against the Petition of Right, for even these
are not recognized as the supreme law of the land, unalterable
except by the act of the great body of the people; the first
being a grant or declaration by the king, and the latter a parliamentary declaration of right.
Montesquien, in his chapter on the Constitution of England,
says:
" When the legislative and executive powers are united in the
same person, or in the same body of magistrates, there can be no
liberty; because apprehensions may arise, lest the same monarch or
senate should enact tyrannical laws, to execute them in a tyrannical
manner."
Again: -
" There is no liberty if the power of judging be not separated




THE THREE POWERS OF GOVERNMENT.                9
from the legislative and executive powers. WTere it joined with the
legislative, the life and liberty of the subject would be exposed to
arbitrary control; for the judge would then be the legislator. ~Were
it joined to the executive power, the judge might behave with all
the violence of an oppressor.
"There would be an end of everything like liberty were the same
man, or the same body, whether of the nobles or of the people, to
exercise those three powers: that of enacting laws, that of executing
the public resolutions, and that of judging the crimes or differences
of individuals.
"L Iost kingdoms in Europe enjoy a moderate government, because the prince, who is invested with the two first powers, leaves
the third to his subjects. In Turkey, where these three powers are
united in the Sultan's person, the subjects groan under the weight
of a most frightful oppression.
"In the republics of Italy, where these three powers are united,
there is less liberty than in our monarchies. Hence their government is obliged to have recourse to as violent methods for its support, as even that of the Turks; witness the state inquisitors, and
the lion's mouth into which every informer may at all hours throw
his written accusations.
"What a situation must the poor subject be in, under those republics! The same body of magistrates are possessed, as executors of
the laws, of the whole power they have given themselves in quality
of legislators. They may plunder the state by their general determinations; and as they have likewise the judiciary in their hands,
every private citizen may be ruined by their particular decisions.
" The whole power is here united in one body; and though there
is no external pomp that indicates a despotic sway, yet the people
feel the effects of it every moment."j
There are under the English Constitution checks which in
some measure compensate for the lack of a negative by one
department of the government upon the proceedings of the
other.
The monarch is nominally possessed of the executive power,
but he is surrounded by a ministry who mainly exercise it in
fact, and who are held responsible for its exercise. The monarch is irresponsible, -can do no wrong politically. But if
the ministry transcend the existing laws they are held accountable, criminally and civilly, unless they can obtain an act of
indemnity.  The power of the king to dissolve the Parliament




10         THE THREE POWERS OF GOVERNMENT.
is a prerogative check upon a parliamentary encroachment.
The legislative power is deposited in two branches, the members
of one branch holding their seats generally by hereditary right,
those of the other through elections by the people; the interests of the two classes not being identical, sometimes even
antagonistic, and the hereditary branch opposing a conservative
check upon radical changes which may be desired by the other.
At the same time the executive, by a power to create peers,
who thereby become members of that branch, holds a check
upon it, which may prevent its conservatism from interposing
an obstacle to reform, or its hereditary aristocracy from becoming dangerous to the crown. Parliament, on the other hand,
has the power to refuse supplies, and thus paralyze the action
of the executive, and check obnoxious measures. And the
judiciary, although the incumbents of the bench are appointed
by the crown, are, from the tenure of their appointment, as
independent, as the nature of the case will admit, of both king
and Parliament.
The three powers of government being thus placed in separate departments, it remains to be seen whether these checks do
not practically provide for the security of liberty, at least equally
well with a form which is, theoretically, more perfect, by means
of negatives which the different departments have on each
other. They will provide as effectually for that security, if
these negatives shall practically lose their theoretical force and
themselves become nugatory.
One of the great objects of a considerable portion of the early
settlers of this country was to obtain the security of civil rights
as well as of religious liberty. But it was not to be expected
that in the infancy of the colonies, dependent as they were to a
great extent upon the crown, and separated into distinct communities, any well-defined arrangement of the powers of government could be perfected by them. It was only after the
declaration of independence that the people had an opportunity
to devise and adopt a more perfect system than that of Great
Britain (theoretically at least), for the security of civil liberty,
by the formation of written constitutions, which in theory are
the fundamental law prescribed by the people, as the source of
political power. These not only separated the three great powers
of government, and placed them in separate departments, but




THE THREE POWERS OF GOVERNMENT.                       11
limited and controlled the action of the departments by the declaration of fundamental principles, which none of the departments, nor even all of them  combined, might lawfully disregard
or violate. And further, by the adoption of checks, conferring,
to an extent, greater or less, the power of restraint in each upon
the action of the other, in the exercise of the powers granted,
civil liberty and civil rights were to be guarded by the independent action of each in its separate sphere.
Upon the declaration of independence the people of the new
States proceeded to organize State governments, each State for
itself.  Some of them  continued to  act under their original
charters, as the foundation of their government, but most of
them framed written constitutions, which became the organic
law  of their respective States.  Even before the final adoption
of the Declaration of Independence by Congress, Virginia formed
such a constitution, consisting of a Bill of Rights and a Form
of Government.1  Other States followed.  Some with  separate
bills of rights, and others incorporating assertions of right and
principle into  the frame-work  of their form  of government.
At a later period a Constitution was adopted by the peoples of all
the States for the limited purposes expressed in it, which contained an express provision that L6 this constitution, and the laws
of the United States which shall be made in pursuance thereof,
and all treaties made or which shall be made, under the authority of the United States, shall be the supreme law of the land;
and the judges in every State shall be bound thereby, anything
in the constitution or laws of any State to the contrary notwithstancling."
The principles of the State constitutions for the security of
civil liberty were afterwards expressly incorporated into it, in
the shape of amendments.
1 It has been denied that the States were at any time sovereign. That position cannot be maintained. Without entering into the argument here, it may be well to say, in
this connection, that in this adoption of a Constitution, - a fundamental law for the
foundation of civil government within her borders, defining the rights and liabilities
of her citizens, —a law which had no rule or authority above it, and which was
therefore the exercise of the highest possible attribute of sovereignty, —Virginia
neither asked the permission of Congress, nor submitted her constitution to the revision of that body. And although Massachusetts and some other of the colonies asked
the advice of Congress in relation to " taking up civil government," no one of the
States ever asked permission to adopt a constitution, or submitted that which the people had adopted, or proposed to adopt, to Congress for the sanction or approbation of
that body. There was no power in Congress to control the action of the States in the
adoption of their fundamental law, and of course none in regard to any other law.




12         THE THREE POWERS OF GOVERNMENT.
In these constitutional provisions of the States, and of the
United States, — in the separation of the legislative, executive,
and judicial powers, - in the independence of each, within its
proper sphere, -and in the checks which are provided, to prevent, as far as may be possible, encroachments by either,
rests the great security of civil liberty in this country.
It was reserved to the judicial department of the United
States to declare, that by the written fundamental law thus
prescribed in the Constitution of the United States, there existed a power in that department to guard against any infringement of such rights of the people as were protected in that
supreme law and might be within the jurisdiction of that department, by a judicial decision declaring the absolute nullity of any
act of the legislative department, which should be passed in
violation of the provisions of the Constitution.
This, however, was but a legitimate result from the fact that
the people had prescribed a paramount law, binding upon all
officers of the government, as well as upon the people; and the
fact that the judicial department is, in all cases which its process can reach, the interpreter and judge of the law of the land.
The same principle is applicable to the constitutions of the
several States, so far as they are not controlled by the Constitution of the United States.
Our constitutions doubtless admit of improvement in some of
their details. But these improvements are not to be looked for
at the hands of those who make flaming speeches about the
march of knowledge, and who decry the labors of the original
framers of the fundamental laws of the States and of the nation.
The original constitutions were framed in times which brought
the great principles of civil liberty, and the true rights and interests of the people, prominently into view, and when parties
had not been formed to serve the ambitious projects of those
who were seeking to acquire, or preserve, power and place.
They were formed by men better versed in the history of the
ancient republics than those who are now crying out for change.
They were formed in times favorable for a calm and temperate
consideration of the momentous questions involved in the formation of a fundamental paramount law. And it will, be the
part of wisdom in their successors, to consider and deliberate,
as carefully and intelligently as they did, before any action is




THE THREE POWERS OF GOVERNMENT.              13
taken which shall ignore or violate the fundamental principles
upon which they based their action.
If they considered slavery a subject respecting which it was
expedient to make compromises for the sake of union, it was
certainly not the part of wisdom in their successors, in the slave
States, to cherish and extend that institution, instead of providing for a gradual emancipation. And it remains to be seen
how far it was and is wise, in the successors of those persons in
the free States who deemed it better to secure a united government over the whole country than to go to war upon objections
to that institution, - to break the bonds of the slave suddenly,
and entirely, and then to endanger all the principles of civil
liberty, by a controversy whether the newly emancipated slave
shall at once have the right of suffrage.  The emancipation has
imposed hardship, misery, disease, and death upon immense
numbers of those whom it set free.  If it shall be the means of
breaking down the divisions which separate the legislative,
executive, and judicial powers, and thus of destroying the
safeguards of civil liberty, our successors may yet have bitter
occasion to believe, that bad as African slavery must be acknowledged to be, the loss of all security for persons and
property is an evil of infinitely greater magnitude.
The safeguards of civil liberty provided by the wisdom of
the fathers have certainly been sadly prostrated in the time of
the children, and the end is not yet. At the very first strain
upon them they gave way, partly on the plea of necessity, -
the tyrant's plea, - which often means mere questionable expediency, - partly by reason of the personal ambition which leads
the individual to seek his own elevation without regard to the
rights of others, and which induces him to excite and mislead the people, in order to promote and secure his own selfish ends, — an ambition which has been in all ages the curse
of political rights and civil freedom.
The first breach in the defences of constitutional liberty, during the late war, was in the adoption of new and extreme constructions of the Constitution of the United States, particularly
in that construction of the " war power" which caused it to
overshadow all the other powers of the government, and made
the President a despotic ruler.  He could do whatever the
necessity of the hour required, he being at the same time,
2




14           TIHE THREE POWERS OF GOVERNMENT.
the sole judge when the necessity existed, and what it required.
Strange as may now seem this assertion of the despotic power
of the Executive, it found ready adherents, and became, with
the party in power, almost a recognized axiom  in the interpretation of the Constitution, even among those who are now
quite as ready to maintain an  equally engrossing  and despotic power in Congress.  With  them  the  war is not yet
ended, and it will not be until their selfish ends'and purposes
are accomplished and secured.
I propose to call your attention to some of the evidences of
this assumption of power by the Executive, and by Congress.
Of that great humbug, the emancipation proclamation, which
Mr. Lincoln at the time compared to the Pope's bull against
the comet, -  and of which Mr. Thaddeus Stevens of Pennsylvania said, recently, that " no thoughtful man ever supposed
that it liberated a single slave," I have spoken and written
heretofore.  "' Noble in sentiment," he said; but it must stand
as one of the evidences' of the readiness of the persons then
in power to. disregard the provisions of the Constitution, respecting the rights of the States and of the people.
It has been asserted that if it did not liberate the slaves, it
had a great effect in securing the success of the war.  On the
contrary, in my opinion, it had a direct tendency at the time to
jeopardize its success.  It doubtless gratified radical politicians,
who should have given their hearty support to the prosecution
of the war without it; but it cooled the zeal of others, who,
however earnestly they might have desired the emancipation
of the slaves, by any constitutional means, yet saw in it the
inauguration of a system of measures, under a pretext of the
" war power,'" which could have no legitimate existence
under the Constitution, and which, while professing to make
freemen of slaves, in fact made slaves of freemen. Certainly
its direct tendency was to induce the rebels to fight with
greater desperation.1
1 The effect of the proclamation, in exciting enthusiasm in support of the war, if to
be found anywhere, must have exhibited itself in Massachusetts. The fact, however,
that not even a company of volunteers was raised in Massachusetts after the proclamation was issued; but that the quota of troops required from that State, subsequently, was made up by the hardest of drafting, and by sending to Canada and
Germany for white men, and all over the country for negroes, shows that the proclamation, if it had any effect, operated as a wet blanket.




THE THREE POWERS OF GOVERNMENT.              15
The attempt, by a presidential proclamation, to declare martial law over the whole of the United States, and to suspend
the habeas corpus throughout the length and breadth of the land,
without regard to the existence of active military hostilities in
particular localities, was an act of a kindred character, so far as
constitutional power was involved, but much more mischievous
in its pretensions.
A departure from its proper province has not been confined
to the Executive department. With less of excuse, if possible,
Congress has quite as signally violated the principles which
should limit the action of that department; first, by attempting to confer unconstitutional power upon the President; afterwards by endeavoring to concentrate power in itself.
The Constitution provides that the privilege of the writ of
habeas corpus shall not be suspended unless when in cases of
rebellion or invasion the public safety may require it.
I have heretofore had occasion to maintain that this is a
restriction and limitation of the power of suspension, and not a
grant of such a power.
It is true that the government of the United States is a
limited government, having only the powers expressly granted,
or such as are incident to those powers, and it is true also that
there is no grant of a power, in terms, to issue the writ of habeas
corpus, or of a right to suspend it.
But the right to constitute courts carried with it, as an incident, the right to regulate the process and proceeldings of those
courts, within the limits of the jurisdiction authorized by the
Constitution; and among other things to authorize the issue of
the writ of habeas corpus, as well as other writs; and of course
to prescribe, by law, the times and seasons, terms and conditions, in and upon which it should be granted or refused.
Under this general incidental authority, the right to regulate
the writ is clearly a legislative power, in regard to the suspension of the privilege of the writ, as well as in regard to the
issuing of it.
The framers of the Constitution, well aware that an unlimited power to suspend the privilege of this great safeguard
of civil liberty would be liable to great abuse, inserted this
clause of restriction and limitation upon the power of Congress
in this respect.




16          THE THREE POWERS OF GOVERNMENT.
The connection of the clause in the Constitution serves to
show, that even if it were to be regarded as a grant of a power
of suspension, the power is a legislative and not an executive
power. And this has been its practical construction, for the
original proclamation of Mr. Lincoln suspending the privilege
of the writ, was not deemed, even by his political friends, a
rightful exercise of executive power under the Constitution, as
is fully shown by the fact that Congress passed an act, purporting to authorize the President to suspend it, when in his judgment the public safety should require it.
But this power of suspension, being a legislative power, it is
not competent for Congress to grant away, or transfer it, any
more than it is competent for that body to give to the President
the power to say when and on what terms and conditions it
shall be issued in the first instance.  This is clear, upon the
general principle that no legislative body can transfer and assign
any of its powers of legislation. But the conclusion that the
power to suspend cannot be assigned, or committed to the Executive, is apparent, further, from the fact that this clause of
limitation shows that a judgment is to be exercised as to the
time when the privilege may be suspended, within, and according to the limits of the Constitution. 1" The privilege "....
G" shall not be suspended, unless when in cases of rebellion or
invasion the public safety may require it."
The question whether there is rebellion or invasion is to be
determined by the proper authority, in reference to this subject. But it is not sufficient to authorize the suspension, that
there is rebellion or invasion, -for that alone may not show
that the public safety requires the suspension.  There must be
a judgment exercised at the time, not only that there is rebellion
or invasion, but that the public safety does or may require the
suspension; and this right of judgment involves the exercise of
discretion on the part of the party who possesses, and may exercise the authority.  It is perfectly clear that Congress possesses the power to exercise this judgment and discretion, and
it follows with equal clearness, that it is its duty to judge; and
that the power and duty cannot be assigned to another department, either executive or judicial.
Another violation of constitutional duty by the two Houses
of Congress of a different character, and perhaps one which the




THE THREE POWERS OF GOVERNMENT.               17
Supreme Court cannot reach, is found in a surrender by each
to the other, of a part of its constitutional power, by a joint
resolution, in these words: -
"C Be it resolved by the House of Representatives (the Senate
concurring), That in order to close agitation upon a question which
seems likely to disturb the action of the government, as well as to
quiet the uncertainty which is agitating the minds of the people of
the eleven States which have been declared to be in insurrection, no
senator or representative shall be admitted into either branch of
Congress, from any of said States, until Congress shall have declared
such States entitled to representation."
If this was to be regarded as an act of legislation, so that the
resolution is to have force as a law, it would be void; because
the two Houses have assumed to act without the approval of
the President.  It would be a usurpation, the Constitution requiring that every order, resolution, or vote, to which the concurrence of the Senate and House of Representatives may be
necessary, except on a question of adjournment, shall be presented to the President, who may interpose his objections.
But a distinction seems to be made between a joint resolution
and a concurrent resolution, and no doubt this resolution was a
little private arrangement between the two 1Houses, —  a bargain
respecting the exercise of the power severally possessed by each of
judging of the election of its own members. Such is its true character, and as such, if it had taken the shape and form of ordinary legislation, with the prefix, 1"Be it enacted," or " Be it
resolved, by the Senate and House of Representatives," and if it
had been presented to and approved by the President, that
would not have rendered it a constitutional act. I admit, that
with the President's approval, it would have been no better
than it is at present.
The Constitution provides that each House shall be the
"judge of the elections, returns, and qualifications of its own
members."  There is a duty, as well as a power, of judgment.
From the very terms of the provision, the power granted is
a several power; and thus it involves a several duty. It is not
the subject-matter for a bargain between them. Neither House
can confer upon the other any power to judge in relation to the
subject, or agree to act in the matter according to the judgment of the other; and so they cannot agree that they will




18          THE THREE POWERS OF GOVERNMENT.
jointly judge of the elections and qualifications of the members
of both Houses. That would clearly be in violation of the provision that each shall judge of its own.
If, then, they cannot agree to judge jointly, they cannot
agree that the one shall not judge and act without the consent
of the other, or until a certain contingency shall happen, for
that is an attempt to limit the action of each as to time, which
is as much matter for the judgment of each, as any other part
of the duty relating to the subject.
If we were to suppose this resolution to be valid, the result
would be, that the House has tied its hands by a bargain, so
that it cannot perform its constitutional duty without the consent of the Senate; and that the Senate cannot perform its
constitutional duty without the consent of the House; and this
in relation to a matter respecting which the Constitution has
explicitly provided that each has a separate duty to perform.
It was said by a senator who supported the resolution, "6 It
is a mere legislative declaration of our opinion and determination, that until Congress has declared the State (whichever
one it may be that is before us) to be in a condition to be represented here, neither body will act upon the credentials of
members, This admits that the action is legislative in its character, and this legislative declaration of their opinion and determination, is neither more nor less than a legislative bargain.
The House initiate it, " Resolved (the Senate concurring),"
and the Senate concur, that is they agree. It was made a
"' concurrent resolution," because it was intended merely that
the two Houses should agree, and not that the President should
be asked to approve.
The same senator said: " Even after we have done it, after
we have made that legislative declaration,"....   we as a
Senate, I concede, can, in spite of this legislative declaration,
at any moment take them " (the credentials) "' from the table
and act upon them, without asking the consent of the House
of Representatives; and the House can, on its own side, in spite
of this resolution, if passed, take the credentials of those claiming to be members of that House, and act upon them if it
pleases."
But a;' leyislative declaration " by both Houses, concurring
in a resolution, is an act of legislation, and this act of concur



THE THREE POWERS OF GOVERNMENT.              1.9
rent legislation provides that no senator or representative
shall be admitted, &c. It is not a declaration of each House
of its intention to govern its own action in a particular mode.
If this agreement of the two Houses is not binding on them,
as it is thus admitted that it is not, it is precisely because it is
unconstitutional for them  thus to agree, by reason of the constitutional provision that each shall be the judge of its own
elections. It is not the less a bargain, because it is not binding.
It has not been the less abided by and acted on as a bargain,
because it is thus unconstitutional. That is the very objection
to it. If it had been a valid agreement the objection would fail.
This denial of the right of representation until Congress shall
have declared such States entitled to representation seems to be
placed upon two grounds: one, that it is the constitutional right
of the two Houses of Congress to judge of the election of their
own members, which is violated by the very resolution itself;
the other, that an inquiry is to be made whether the States
whose right of representation is in question are in the union.
Sometimes the two are connected in a single proposition in
this form, - The two Houses are empowered to judge of the
election of their own members, and must therefore inquire
whether the States, from which persons present themselves
as members, are in the Union or not.
That such an inquiry may be made, in the case of an attempt
to send senators and representatives by a community or territorial organization never yet in the Union, is true. But it is not
true in relation to States already admitted.  Until a revolution
takes place, an inquiry whether they are in the Union for the
purpose of representation, is preposterous.  They cannot rightfully be denied representation on any plea that they are not in
the Union, because *they cannot take themselves out of the
Union, nor be turned out of the Union, except by revolution.
But this bargain, by which the two Houses undertake to
limit their constitutional powers, and to surrender their constitutional duties, is only part and parcel of a more stupendous
departure from the limits of their constitutional authority, by a
denial that the States in question have a right to be represented
in their respective Houses.
The purpose of this denial, it is admitted, is to compel the
States to adopt certain proposed constitutional amendments, and




20          THE THREE POWERS OF GOVERNMENT.
perhaps to amend their own constitutions, also, beyond the
terms and scope of the amendments so proposed. It does not
appear how much, or what, is to be required, before the two
Houses,, acting under their bargain, will consent to exercise
their duty of judgment. The adoption of amendments proposed
will probably be deemed enough, provided it shall clearly appear that the adoption will secure the dominant party in the
possession of the offices.  If there is a well founded doubt of
that, then more must be required. This is the most charitable
supposition, for if this is not the object, it must be revenge and
vengeance, passions which it must not be surmised are the
motives of legislation.
Its pretext is that the States which are thus denied a representation have revolted and thereby lost their right of representation, and cannot be entitled to it again until they are reconstructed, and that this reconstruction is within the power and
a part of the duty of Congress.
If those States have lost their rights, and are not in the
Union, then the Union is dissolved, so far as they are concerned.
On what ground are we to arrive at such a conclusion? If we
reach that conclusion, or a conclusion, on any ground, that they
are not in the Union, how are they to adopt a constitutional
amendment?
The passage of acts for the confiscation of property, as a punishment for offences committed against the United States, the
confiscation to be made effectual without trial and conviction of
the alleged offence, is another departure from the duty and
power of the legislative department. It is an attempt to assume,
or to transfer to military tribunals, the functions belonging to the
judicial department, -is of a most dangerous character, and
against an express provision of the Constitution that " the trial
of all crimes, except in cases of impeachment, shall be by jury."
On the 9th of April, 1866, Congress passed, over the veto
of the President, "an act to protect all persons in the United
States in their civil rights and furnish the means of their vindication."
The first section of it is in these words, 6" That all persons
born in the United States, and not subject to any foreign power,
excluding Indians, not taxed, are hereby declared to be citizens
of the United States; and such citizens of every race and color,




THE THREE POWERS OF GOVERNMENT.               21
without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the
party shall have been duly convicted, shall have the same right
in every State and Territory in the United States to make and
enforce contracts; to sue, be parties, and give evidence; to inherit, purchase, lease, sell, hold, and convey real and personal
property; and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by
white citizens, and shall be subject to like punishment, pains,
and penalties, and to none other, any law, statute, ordinance,
regulation, or custom, to the contrary notwithstanding."
I reserve for another occasion an inquiry into the right of
Congress to create citizens otherwise than by naturalization
laws, and the acquisition of territory.
The other sections provide for an enforcement of the act by
very extraordinary provisions for that purpose. No judge can
make a decision against its constitutionality, without incurring
a heavy penalty if his decision should be reversed, and certainly
no judge can have any policy of insurance or guaranty against
such reversal, in the existing state of things, however clear his
legal convictions may be on the subject.  The only course,
therefore, for any judge of inferior jurisdiction, in order to
make sure of avoiding fine and imprisonment, is to decide that
the law is constitutional, notwithstanding lie may be convinced
beyond all possible doubt of its unconstitutionality, and hle is
under oath to perform his official duties faithfully.
That the judicial function of impartial unbiased judgment is
uprooted by such legislation needs no argument. It is in this
particular a most gross interference with the appropriate duty
of the judicial department. If it was not expressly intended to
terrify the incumbents of the bench, its framers were unfortunate in its construction.
I omit at this time specification of other constitutional objections, as the discussion would require more time than can be
spared upon the present occasion.  Suffice it to say that it is,
in the length and breadth of it, a gross usurpation.
With such asssumptions of power, and such violations of
constitutional duty, by the Executive and Congress, we might
surely infer that the exercise of arbitrary power would be common in the War and Navy Departments.




22          THE THREE POWERS OF GOVERNMENT.
Two or three instances may serve as examples of what may
be expected from the " war power," when it overrides constitutional safeguards.
General Charles P. Stone was arrested under pretence of
responsibility for the disaster of Ball's Bluff, and on vague
accusations of other offences. He was in the military service,
and therefore legitimately amenable to a court-martial, having
a right to have charges and specifications filed against him, and
to a trial.
But this was no part of the purpose of his accusers. He had
been a right arm to General Scott, in providing for the protection of Washington, at a time when its possession by the rebels
would have secured their independence. No one really doubted
that he was a skillful, brave, and gallant officer.  The primary
cause of his arrest was probably to draw off the attention of the
people fiom the failure of a favorite political partisan, then recently appointed a major-general, and who commanded at Ball's
Bluff. I have been so assured by a gentleman who held a high
command in that battle.
But it was understood, further, that General Stone had said
something of a senator which was not entirely respectful, and
that he was not a person who could be brought to cooperate in
the favorite measures of the party. And so he was imprisoned
a long time in Fort Lafayette, his repeated demands for charges
and a trial disregarded, and his prospects of success in his
chosen profession ruined, at the will of the Secretary of War,
in violation not only of the Constitution, but of express provisions of legislation for the government of the army.
The proceedings had no warrant of law, military or civil.
It was a most oppressive use of despotic power, assumed by
usurpation, to serve partisan purposes, and one for which no
atonement has ever been made.
Smith, Brothers & Co., of Boston, were contractors for
supplies for the use of the Navy Department, and fell under
the displeasure of Lieut. Wise and some of his associates in the
Navy Department.
Their real offence seems to have been that they refused to
become participators in frauds upon the government.  In 1864,
a charge was made against them that they themselves had defrauded it.  They were arrested by military authority, imra



THE THREE POWERS OF GOVERNMENT.            23
prisoned in Fort Warren, and bail in half a million of dollars
required.  When they had prepared to give security in this
enormous amount, the demand was abated to $20,000 each.
Their houses were entered, and their repositories searched;
their store broken open, the lock of the safe forced, and their
books and papers carried away; and a court-martial was
ordered for their trial in Philadelphia.
Fortunately for them they had made their mark as adherents
of the republican party and were thereby enabled to enlist
senatorial and other influences in their favor.  This reduced
the bail, and obtained an order that the trial (which it was intended should be far away from their witnesses and means of
defence) should be at Boston, where the offence, if any, had
been committed; giving them, by a presidential countermand,
what they should have had at first as a common right.
The principal witness had previously written to his confidant,
"I have been summoned before the select committee of the
Senate for investigating frauds in naval supplies, and if the
wool don't fly it won't be my fault.  Norton, the Navy agent,
has complained that I have interfered with his business. He
and his friend Smith are dead cocks in the pit. We have got
a sure thing on them, in the tin business.  They that dance
must pay the fiddler."- So far as he was able, he secured the
success of his prediction that the wool would fly. 1" When a
case comes to my oath, it's a won cause," said poor Peter
Peebles, and so thought the naval officer.
The trial was of great length, involving serious charges of
fraud, and the examination of extended accounts amounting to
a million and a quarter of dollars. But the charges were all
triumphantly met and refuted. They were abandoned, substantially, by the prosecution, except the single one of substituting Revely for Banca tin, and thereby, as was contended,
defrauding the government of $100.
The fact that Revely tin was furnished, instead of Banca,
was not denied; but the charge of fiaud was negatived by
ample evidence to show that this was because Banca tin could
not be procured just at the time when the tin was to be delivered; that Revely tin was just as good for the purpose for
which it was wanted, as the other; and by the testimony of the
master founder at the yard where it was to be used, that for




24         THE THREE POWERS OF GOVERNMENT.
seven years they had used no other than Revely.  The testimony of merchants, chemists, and assayers, was also introduced
to show that there was in fact no difference between the two.
But all this was insufficient.  " Fie on your civil courts," was
the language of a high officer in the Navy Department; "your
civil courts are organized to acquit.  We organize courts to
convict." And so it proved.
This contempt of civil courts, and avowed purpose of military
tribunals, shows the total insecurity of civil rights in a government ruling by military commissions and courts-martial.
Convictions are " a sure thing." The court-martial that tried
Messrs. Smith, found them  guilty of the tin; and sentenced
them to pay a fine of $20,000, and to be imprisoned for two
years.
The revising counsel for the Navy Department attempted to
sustain the decision; but the senatorial influence was again
brought to bear in favor of the faithful. The President committed the case to the senator for a report, who justly, and
properly, exonerated Messrs. Smith from all blame, and the
President disapproved of the proceedings, annulled the judgmeint and sentence, and ordered the accused to be discharged,
perhaps in terms not very complimentary to the court, or
others who were active in promoting the prosecution, as
Messrs. Smith have not been able to obtain from  the Navy
Department a copy of his order.
It can " need no ghost come from the grave to tell us," that
if Messrs. Smith had been among those who believed that the
government did sometimes lay its hand wrongfilly upon some
of the people, they would have had a further and most woeful
experience of the insecurity of civil liberty when the sovereign
powers are exercised by a single department, without checks or
restraints. One of those gentlemen had, recently before his
arrest, expressed the opinion, that the government did not put
its hand upon any one without good reason. His adherence to
the party stood him in good stead, in procuring the reversal of
the sentence, although even that could not withstand the malice
of the prosecution, and the subservience of the court. And it is
quite probable that his faith in relation to unwarrantable arrests
has been somewhat shaken by his experience in this matter.




THE THREE POWERS OF GOVERNMENT.             25
Lambdin P. Milligan was a citizen of Indiana, where he had
resided twenty years, and had never been in the military or
naval service of the United States.  On the 5th of October,
1864, while at his home, he was arrested by the order of the
general commanding the military district of Indiana, and from
that period was for a long time kept in close confinement. On
the 21st of October, 1864, he was tried by a military commission, convened by order of the general, on certain charges and
specifications (substantially, it seems, that he belonged to a
secret organization, which was conspiring to assist the enemy),
was found guilty, and sentenced to be hanged. An order from
the WVar Department stated that the sentence had been approved by the President, and directed that it be carried into
execution immediately. An order was issued that he should be
hung on the 19th of July, 1865.  On the 10th of that month,
Milligan presented a petition to the Circuit Court of the United
States for a habeas corpus, and a discharge from his imprisonment.  The petition stated that since his arrest, the Circuit
Court had held a session, emnpanelled and discharged a grand
jury, and that no bill of indictment had been found against him;
and he claimed that he should be turned over to the proper
civil tribunal, to be proceeded against according to the law of
the land, or discharged from custody under the provision of
the act of Congress of March 5th, 1863; insisting that the
military commission had no right to try him upon any charges
whatever, because he was a citizen of the United States, and of
the State of Indiana, and had not been, since the commencement of the rebellion, in any of the States whose citizens were
arrayed against the government of the United States, and that
the right of trial by jury was guarantied to him by the Constitution of the United States.
The judges of the Circuit Court were divided in opinion upon
the subject, and the division was certified to the Supreme Court
of the United States.  In this tribunal all the judges agreed
that Milligan was entitled to be discharged.  But they divided,
five to four, upon some of the principles which were involved
in the determination of the case.
I have thus referred to a very few of the many instances
furnished by the late war, of the insecurity of life, and of civil
3




26          THE THREE POWERS OF GOVERNMENT.
rights, under a system, which, on whatever pretext, places
despotic power in a single individual department.
I have not adverted to the trial of the conspirators for the
assassination of President Lincoln and Secretary Sewardl, because I am disposed to regard that as an exceptional case in
relation to some of the accused.
There was hardly a decent pretence for regarding the offence
as one which could be brought under the cognizance of a military tribunal. There was just about as much of a legal pretext
for that, as there was for the refusal of Mr. Secretary Stanton
to permit Mr. Ford, the owner, to sell the theatre in which Mr.
Lincoln was assassinated.
But after much thought, and some misgiving, I am inclined
to acquiesce in the administration of lynch law upon very extraordinary occasions, and in very extreme cases, and to regard
this case as one of that character.  It had the form  of a trial
by a military commission, appointed for the purpose, but that was
little better than a solemn farce.  The Western; "Regulators "
sometimes go through the form of a trial by jury, and hang the
subjects of their assumed jurisdiction, only after the rendition of
a verdict, being predetermined from the outset to hang them;
and so in this case.  The execution of Mrs. Surratt was no
better than any other murder.
Wvhile the executive power, which but a few years since was
exalted by party politicians above the judicial, and even above
the legislative also, has recently been swallowed up by the
legislative branch, to a very great extent, the judicial department is exhibiting a partial independence, manifested, however,
in some measure by a mere major vote.
In the case of Milligan, to which reference has already been
made, the majority of the court sustained these propositions: —
"B Military commissions, organized during the late civil war, in a
State not invaded and not engaged in rebellion, in which the Federal
courts were open, and in the proper and unobstructed exercise of
their judicial functions, had no jurisdiction to try, convict, or sentence for any criminal offence, a citizen who was neither a resident
of a rebellious State, nor a prisoner of war, nor a person in the naval
or military service. And Congress could not invest them with any
such power."
"' The guaranty of trial by jury contained in the Constitution was




THE THREE POWERS OF GOVERNMENT.                 27
intended for a state of war, as well as a state of peace; and is
equally binding upon rulers and people, at all times and under all
circumstances."
" The Federal authority having been unopposed in the State of
Indiana, and the Federal courts open for the trial of offences and
the redress of grievances, the usages of war could not, under the
Constitution, afford any sanction for the trial there of a citizen in
civil life, not connected with the military or naval service, by a military tribunal, for any offence whatever."
So far very well. But a minority of four judges, speaking
through the Chief Justice, take occasion to sustain that construction of the Constitution which subjects all civil liberty to
military power in time of war.
There are two or three matters in this opinion of the four
judges which deserve your careful consideration. It is said: —
"The power to make the necessary laws is in Congress; the
power to execute in the President.  Both powers imply many subordinate and auxiliary powers. Each includes all authorities essential
to its due exercise.  But neither can the President in war more
than in peace, intrude upon the proper authority of Congress, nor
Congress upon the proper authority of the President.  Both are
servants of the people, whose will is expressed in the fundamental
law.  Congress cannot direct the conduct of campaigns, nor can the
President, or any commander under him, without the sanction of
Congress, institute tribunals for the trial and punishment of offences,
either of soldiers or civilians, unless in cases of a controlling necessity,
which justifes what it conmpels, or at least insures acts of indemnity
from the justice of the legislature.
" We by no means assert that Congress can establish and apply
the laws of war where no war has been declared or exists."
"Where peace exists, the laws of peace must prevail.  What we
do maintain is, that when the nation is involved in war, and some
portions of the country are invaded, and all are exposed to invasion,
it is within the power of Congress to determine in what States or Districts such great and imminent public danger exists as justifies the
authorization of military tribunals for the trial of crimes and offences
against the discipline or security of the army, or against the public
safety."
"We have confined ourselves to the question of power. It was
for Congress to determine the question of expediency. And Congress did determine it. That body did not see fit to authorize trials




28          THE THREE POWERS OF GOVERNMENT.
by military commission in Indiana, but by the strongest implication
prohibited them. W~ith that prohibition we are satisfied, and should
have remained silent if the answers to the questions certified had
been put on that ground, without denial of the existence of a power
which we believe to be constitutional and important to the public
safety; a denial of which, as we have already suggested, seems to draw
in question the power of Congress to protect from prosecution the members of military commissions, who acted in obedience to their superior
officers, and whose action, whether warranted by law or not, was approved
by that upright and patriotic President, under whose administration the
republic was rescuedfronm threatened destruction."
I shall not detain you at this time with an argument to show
that this places the liberties of the whole country, and all its inhabitants, in the power of Congress, in time of war, if it pleases
Congress to assume that there is great public danger.  The
safeguards of the Constitution of the United States, and those of
the constitutions and laws of the several States, are swept
away also in cases of " controlling  necessity," of which the
President may judge, -a necessity which justifies what it is
supposed to compel, or at least insures acts of indemnity from
the justice of the legislature. -- A necessity to do what the
Constitution and laws will punish as a wrongful act, is not a
necessity which the Constitution can recognize.
And what is this indemnity thus spoken of?  Not merely a
provision of a pecuniary character, to reimburse the expense
and loss to which those who execute the unlawful measures of
the President and of Congress may be subjected, by actions
to recover damages in the courts of justice.  We are further
enlightened on that subject, by a subsequent paragraph in the
same opinion.  It is a power, by means of subsequent legislation, to protect from  prosecution members of military commissions, who act in obedience to their superior officers, whether
that action is warranted by law or not, provided it was approved by President Lincoln.  We are not informed whether
the approval of any other patriotic President, who may sit in
the executive chair during another war, will authorize Congress to pass subsequent acts of protection for unlawful acts.
It may well be maintained, that the legislature may provide,
by a prospective law, for the protection of an executive officer,
who is required by his superior to serve process, and who is




THE THREE POWERS OF GOVERNMENT.                              29
unable to judge whether the command is lawful or not; but the
power asserted here by the minority of the court, for Congress,
is, not only to  make the party who  exercises an assumed right
of judgment, and issues his commands for death, imprisonment,
or fine, in a case where he had no right whatever to sit in
judgment, irresponsible for his acts, however atrocious they
may be; but to do  this by a statute  passed after the  fact, and
thus, in cases of trespass and imprisonment, to take away a
vested right of action existing at the time.
This is done by the omnipotent Parliament of Great Britain;
but what clause  of the  Constitution  of the United States confers such a power upon Congress, the minority of the Supreme
Court do not inform  us.
Since the foregoing remarks were written a bill of indemnity
has  been  introduced  into  the  House  by  the  Judiciary  Commnittee.1
This, however, is not the sole instance in which the minority
of the court attempt to maintain a right of Congress to pass
retrospective laws, depriving a party of vested rights, although
1 The bill exhibits very clearly the extent of the power claimed. If such a power
may be exercised in this class of cases, what shall prevent its exercise in every other
case, at the pleasure of Congress.
" Be it enacted, ic., That all acts, proclamations, and orders of the President of the
United States, or acts done by his authority or approval, after the 4th of March,
1861, and before the 1st of December, 1865, respecting martial law, military trials by
court-martial or military commissions, or the arrest, imprisonment, and trial of persons
charged with participation in the late rebellion against the United States, or as aiders
or abettors thereof, or as guilty of any disloyal practice in aid thereof, or of any violation of the laws or usages of war, or of affording aid and comfort to rebels against the
authority of the United States; and all proceedings and acts done or had by courtsmartial or military commissions, or arrests and imprisonments made in the premises
by any persons by the authority, or the orders, or proclamations of the President,
made as aforesaid, are hereby approved in all respects, legalized, and made valid to the
same extent, and with the same effects, as if said orders and proclamations had been
issued and made; and said arrests, imprisonments, proceedings, and acts had been
done under the previous express authority and direction of the Congress of the United
States, and in pursuance of a law thereof previously enacted, and expressly authorizing
and directing the same to be done; and no civil court of the United States, or of any
State, or of the District of Columbia, or of any District or Territory of the United
States, shall have or take jurisdiction of, or in any manner reverse any of the proceed.
ings had or acts done aforesaid; nor shall any person be held to answer in any of
said courts for any act done or omitted to be done in pursuance of any of said proclamations or orders, or by authority or with the approval of the President, within the
period aforesaid, respecting any of the matters aforesaid; and all oficers and other
per'sons in the service of the United States, acting in the preeaises, shall be held prim facie
to have been authorized by the President; and all acts or parts of acts inconsistent with
the provisions hereof are hereby repealed."
3,




30              THE THREE POWERS OF GOVERNMENT.
it is, on the authority of decided cases, far the most unwarrantable instance, for the reason that it asserts a power to take away,
at once and directly, a vested right of action.
It is to be feared that in Congress, at the present time, the
success of party is paramount to all considerations respecting
the  integrity  of the  Constitution.   With  the  dominant party
the  great subject of rejoicing  is in  the  fact that the constitutional power of the President to  check  unconstitutional or improvident legislation is, for the time being, rendered inoperative
by a party majority in Congress so  strong  that it can pass any
measure  which  the  party  caucus shall dictate, over the veto.
Constitutional objections on the part of the minority, to measures devised by the majority to secure a party ascendency, are
treated with  scorn, and a veto is a signal for passing with hot
haste  the  measure which  is objected to.   The  unprecedented
course of refusing  to  print the  message  containing a veto, for
the purpose of consideration, has been made recently the subject of party gratulation.1
Thus the two Houses of Congress exercise their legislative
powers  uninfluenced  by  the  checks  and  balances  which  the
Constitution intended to place in the hands of the President, or
rather perhaps previously influenced to disregard them.
The great fear of party is not that the  constitutional union
of' the  States is endangered, and  constitutional liberty imperrilled, but that there may be loss of office.
The great subject of party denunciation is the Executive.
The great question is not whether the President is exercising
I Here is what was said of the passage of the District Suffrage Bill, a few days since,
which certainly was not a measure that required indecent haste: -
" It was expected that the House would set its heel upon the veto immediately on its
reception, and this expectation was not disappointed; for it was taken up and read as.soon as it camue from  the Senate, and the bill was at once put on its passage. The
Senate went.a long step beyond its previous record regarding vetoes. The usual
lmotion to lay on the table and print was made1 but, to the astonishment of most spectators, and to the gratification of not a few, the chamber refused to delay action long.enough for this purpose, and there, as well as subsequently in the House, the bill was
at once put on its passage. The message has not yet been printed, and it seems likely
enough that the future collector of old documents will search in vain through the files
of the Senate for this paper. As if to guard against such a contingency, and with a
possible instinctive perception of its coming fate, the President, establishing a new
precedent, had it very handsomely printed and stitched before sending it to Congress.
Curiosity shops wanting a copy of the first veto that was printed before delivery, are
hereby notified that this is the document for which application should be made."Bcstloz Daily Advertiser.




THE THREE POWERS OF GOVERNMENT.                  31
his powers constitutionally, but whether he sticks to the party
which elected him  to office, in all measures which the leaders
see fit to devise; and the impeachment which is threatened, is
in fact based substantially upon his failure to follow the behests
of the party.  If he had but been ready to concur in all the
extreme and unconstitutional measures of the party, we should
have heard nothing of malversation in office.
In the course of denunciation nothing is too violent, nothing
too gross. The political pulpit strives to come in for its share.
The 1R1ev. Horatio Stebbins is reported to have made this utterance in a thanksgiving  sermon, that is, in a partisan philippic, uttered in the pulpit, at San Francisco:" The most striking thing in MIr. Johnson's character is a feeling
that he has no social position. Kicked, insulted, scorned, he has
returned kicks, insults, and scorn. Not sure of himself, he is under
the delusion of false estimation, and exposed to flattery and vanity.
His education was among people with whom  ribaldry and insolence
were both algumlent and persuasion. A provincialism  of mind
which applies to the whole country the standards of'his village, and
to the times the old traditions of party, is his next defect. He is
oblivious of the great change; he acts as if the people felt now as
they did in 1860, when Douglas was telling them, no matter which,
freedom or slavery, God or Devil. In turning people out of office
to build up a party, he does not discern that the great republican
party is in no proper sense a party - but the country itself. He
calls Congress illegitimate, yet signs or vetoes its laws. He calls
the States that elected him an unconstitutional Union, and yet claims
to be president of the whole country."
This reverend gentleman must have attained, at least, to the
degree of Doctor of Vituperative Theology, and exhibits himself
as a fair specimen of the class of political clergymen who, commencing with a commendable sympathy for the slave, have
ended in making their pulpits huckster shops for traffic in the
small wares of partisan politics.  Partisan papers circulate this
as "C a Portrait of the President."
But this reverend gentleman and others who, like him, prostitute their pulpits to the purposes of party, cannot carry away
the palm of vituperation uncontested.
In a recent speech in the Senate of the United States the
denunciation of the President was even more violent.




82          THE THREE POWERS OF GOVERNMENT.
I shall not trouble you with a specimen of that part of the
speech, but I wish to turn your attention to two other particulars of it.  The senator said: --
" I know that the President sometimes quotes the Constitution, and
professes to carry out its behests. But this is of little value. A
French historian, whose fame as a writer is eclipsed by his greater
fame as an orator, who had held important posts, and now in advancing years is still eminent in public life, has used words which
aptly characterize an attempt like that of the President. I quote
the history of I3. Thiers: —
"' IWhen any one wishes to make a revolution, or a counter revolution, it is necessary always to disguise the illegality as much as
possible, and to this end to use the terms of the Constitution, in order
to destroy it, and also the members of the government, in order to
overturn it.' "
The senator's apparent unconsciousness that this language of
Mons. Thiers is equally applicable to the majorities of the two
Houses of Congress who, in all their unconstitutional acts and
resolutions, make at least equal pretence that they are acting under the Constitution, maybe regarded as somewhat remarkable.
In closing his speech the senator indulged himself in another
quotation of some significance.  He said: —
"But before I take my seat you will pardon me if I read a brief
lesson which seems as if written for the hour. The words are as
beautiful as emphatic.
"  The dogmas of the quiet past are inadequate to the stormy present. The occasion is piled high with difficulty and we must rise
with the occasion. As our case is new, so we must think anew and
act anew. We must disenthrall ourselves and then we shall save
our country.' 
" These are the words of Abraham Lincoln. They are as full of
vital force now as when he uttered them. I entreat you not to neglect the lesson. Learn from this how to save our country."
The dogmas of the quiet past, thus referred to, and which
were originally, in time of war, said to be inadequate to the
then stormy present, were those which related to the powers
granted by the Constitution, and to the administration of the
general government.
And the disenthrallment which is to be effected, and which
is thus urged as the lesson of the hour, long after the war is over;




THE THREE POWERS OF GOVERNMENT.              833
what is it?  What thrall exists upon the two Houses of Congress which they are urged to burst? Not certainly one of
courtesy to the President leading to an unwise sanction of his
measures. Not one of deference to the opinion of political opponents, and consequent doubt and hesitation respecting measures proposed. Not one imposed by existing laws, for they can
be repealed and others substituted.  Not even one arising from
the use of the veto, defeating the will of the majorities of both
Houses in relation to such alterations, for the great reason of
partisan rejoicing has been, and is, that this is no longer even
a constitutional safeguard, those majorities being, as we have
seen, so triumphant that they can pass anything the party dictates by a majority of two thirds, without even a respectful consideration of the objections of the President.
The only thrall which exists is the Constitution, and perhaps
the judicial power under it. And the 6' lesson " of the " hour "
was that the dominant party should reject the interpretations
and constructions of it in the past, and rid themselves of the
restraints imposed by it in the present. I regret to say that
this is not thinking anew or acting anew.  We have had much
of this kind of thought and action within the last few years.
There are already significant utterances respecting the removal of the thrall of the judiciary, by some change of circuits
which shall depose the majority of one, and exalt the minority
of the court.
But a change of circuit will hardly answer the purpose.
What measure is to be devised, and what 6' use " is to be next
made of 6 the terms of the Constitution in order to destroy it,"
remains to be seen. The Supreme Court has recently been
spoken of in the House as existing alone by the breath of Congress.
It was said by Mr. Chief Justice Chase in delivering the
opinion of the minority of the court in Milligan's case, and
when speaking of the asserted power of Congress, under the
Constitution, in time of public danger, to provide for the organization of a military commission, and for trial by that commission, of persons engaged in an alleged conspiracy, "' We have no
apprehension that this power, under the American system of
government, in which all official authority is derived from the
people and exercised under direct responsibility to the people,




34         THE THREE POWERS OFP GOVERNMENT.
is more likely to be abused than the power to regulate commerce, or the power to borrow money."  This is certainly a
most astonishing confidence.  One can hardly refrain from an
inquiry whether the confidence would be so strong in case the
power happened to be lodged in an adverse political party.
But even when in the hands of political friends, is there no
danger that it may be used to subserve the purposes of malice
and revenge?  Let the case of Smith, Brothers, give a most
emphatic answer.
The interest of party can be subserved only remotely and
indirectly by the exercise of the power to regulate commerce,
or that to borrow money. The purposes of malice, and the
gratification of a desire for revenge, not at all.
But, on the other hand, to what all indefinite extent party
purposes can be promoted by the imprisonment of a political
opponent! It was not the fault of the old police commissioners
of Baltimore, or their subservient judge, that the imprisonment
of their successors, on an allegation that they were disturbing
the peace (to wit, by attempting to exercise their lawful
authority), did not work out the success of their nefarious
schemes for the political ascendency of their party. They undoubtedly supposed that they had thus made' a sure thing"
of it.
CGentlemenr of the Law School, - I have thus endeavored to
present to you a true picture of the state of the country, for a
few years past, in regard to its constitutional law.
I have, heretofore, attempted to show the danger to which
civil liberty is subject, by the preponderance of executive
power in time of war.
A part of my object, at the present time, is more particularly
to exhibit the dangers of the preponderance of the legislative
department, in engrossing the powers of the other departments,
in time of peace.
I am  aware of the spirit of progress which listens to the
lessons of history, and the counsels of experience, with impatience; and of the self-confidence which prefers its own judgment, above all arguments and reasons, and disregards all
consequences in the pursuit of a favorite object.  Some lawyers
in Congress have sunk their constitutional law in their adherence to party.  Others, outside of that body, have let their
indignation against the rebellion run away with it.




THE THREE POWERS OF GOVERNMENT.             35
Let me urge upon you, gentlemen, a careful study of the
past, - of " the dead past," — to use the favorite phraseology
of those who reject its warnings.  Let me remind you that
what men have been, men may be, and will be again. Let
me say that ambition seeking power and place, unscrupulous in
its measures for the attainment of its object, and regardless of
consequences so that object is attained, is as active and enterprising now, as it has been in any period of the history of the
world. Let me suggest that sophistry is none the less specious
in the- law than it is in religion, where false prophets and false
apostles deceive even the very elect. Let me warn you that
the liberties of the country have no immunity from peril and
wreck, and that there is no policy of insurance upon which indemnity can be sought when the loss shall have come.
Be it yours, gentlemen, without regard to the transitory interests of the hour, or the excited passions of the hour, to exhibit a steadfast, unswerving adherence to the principles of
civil liberty, secured, it was fondly hoped, by the constitutions
of the States and of the United States.  And rest assured that
these principles are to be preserved only by a firm and unflinching maintenance of the great divisions of political power
in separate, and to a great extent, independent departments of
government; and by the preservation of the State and the
National governments, confining each to its proper sphere of
action and of duty, within its constitutional limits.








LECTURE  II.
THE ORIGIN  OF THE UNITED STATES, AND THE LEGAL
STATUS OF THE SOUTHERN  STATES ON THE SUPPRESSION OF THE REBELLION.
Delivered in Dartmouth College, April, 1869.
THERE are two theories in relation to the Constitution of the
United States, which not only differ widely in reference to its
origin, and the powers which exist under it, but which may
lead to very different results in regard to its amendment.
According to one of them, the Constitution was formed by a
convention of delegates from the several States, and adopted by
the people of the several States, acting separately, and surrendering thereby a portion of the powers of the States, and of
the people of the States, to the new government created by the
Constitution; by means of which agreement and surrender, the
people of the United States came into existence as an entire
people, and became a nation for the purposes mentioned in the
Constitution; all the powers not thereby granted, or incidental
to those granted, remaining with the States, and the people of
the States as such.
The other theory is based upon the position, that the people
of the United States became a nation upon the declaration of
independence, and that as such nation the whole people framed
and adopted the Constitution of the United States, granting to
the States, and to the people of the States, rights of representation in the new government under the Constitution; and,
that all powers not granted to the government of the United
States, or recognized by the Constitution as belonging to the
States, remain in the whole people, and not in the several
peoples of the different States.
A very elaborate attempt to sustain the right of Congress to
reconstruct the States where acts of secession were passed, is
4




3 8        TIlE ORIGIN OF THE UNITED STATES, AND
based, to a considerable extent, upon the latter of these theories.1
And the argument of the author may serve as a convenient
text for an examination of these adverse theories, with a view
to ascertain the origin of the government of the United States,
and the status of the Southern States on the suppression of the
rebellion. The author was a lawyer of eminence in his day,
prone, however, to persuade himself of the truth of that which
he desired to believe. If it shall be found, on examination,
that his positions are not sustained by the facts, and that he
persuaded himself of the correctness of the theory which he
supported, upon insufficient evidence, not only will his conclusions fall, but we shall have prima facie evidence, at least, that
the theory itself is indefensible.
Repudiating the question whether those States, by reason of
the rebellion of their inhabitants, were to be accounted as in or
out of the Union, because no such question has arisen upon the
facts, the author says: -
" They, during and after the rebellion, were States in possession
of defined territories, and under organized governments, to which
they professed allegiance. And they were clearly in the Union in
so far as their territories, people, and amenability to the Constitution
and laws of the Union are concerned.  The National government
still maintained its right of territorial jurisdiction over them, and
of enforcing obedience to the Constitution and laws as fully as it
ever had; and their inhabitants remained citizens of the Union, and
entitled to all the civil and political rights and immunities which
they ever possessed as such, excepting those which they had forfeited, or lost, or abandoned by their treason."
L" By that treason each inhabitant has forfeited his liberty and life
as the penalty of his crime, if the government shall see fit to exact
it by due process of law; but until arrest, and sentence, and such
conviction, he is still entitled to protection and immunity, and the
enjoyment of all the civil rights which he ever had resulting from
such merely individual citizenship." -" And he may be restored to
the future undisturbed enjoyment of them by an act of amnesty of
the General Government, or by a pardon from the Executive after
conviction and sentence."
The theories which would dissolve the Union by reducing
1 "Reconst'ructioon. Claims of the Inhabitants of the States engaged in the Rebellion
to Restoration of Political Rights and Privileges under the Constitution. By Charles
G. Loring. Boston: Little, Brown & Company. 1866."




THE STATUS OF THE SOUTHERN STATES.             39
the Southern States to a territorial condition, through State
suicide, or conquest, as in the case of foreign war, or through
the provision of the Constitution guaranteeing to each State a
republican form of government, are thus exploded; and the epigrammatic assertion that "6 rebels have no rights, except a right
to be hanged," is distinctly negatived, -  as their right to be
hanged, and of course their duty to be hanged, arises only upon
conviction and judgment.
"I But," the author says further, " with regard to the political rights
of the inhabitants of a State in its corporate political capacity,those of representation in th/e House and Senate for instance, - these"
"6do not rest upon nor result from their individual citizenship, as
citizens of the United States merely; but depend also upon the
political relations which the State bears to the Union, and cease to
exist whenever it has suspended, lost, forfeited, or abandoned the
rights belonging to it as a state in its normal relations to the government, and can be restored only by restoration of the State to those
relations."
He asserts the forfeiture of the political rights of the inhliabitants of the Southern States, and the right of the General Government to prescribe the conditions upon which they may be
restored to equal political privileges with the other States, as
consequences resulting from the war, and upon several other
grounds, which I propose to consider at this time, hoping that
this may be the last of these unconstitutional theories respecting the status of the Southern States, which it will be my duty
to examine and refute.
This forfeiture is first attempted to be maintained, under the
power to make war. The author says:"' Upon looking into the Constitution, it is found to contain, among
others, the following express provisions, applying exclusively to the
States in their political corporate capacities as such; namely: The
United States shall guarantee to every State in the Union a republican form of government." "No State shall enter into any treaty, or
alliance, or confederation," or " enter into any agreement or compact
with another State, or with any foreign power." "'The citizens of
each State shall be entitled to all the privileges and immunities of
[citizens in] the several States." " The Constitution and the laws of
the United States which shall be made in pursuance thereof, shall be
the supreme law of the land," and then quoting the provisions that




40        THE ORIGIN OF THE UNITED STATES, AND
the President shall take care that the laws be faithfully executed,
and that Congress shall have power to provide for calling forth
the militia to execute the laws, he inquires whether " in the face of
these provisions it is possible to believe that any one State may at
pleasure impose a despotic or monarchical government upon an unwilling and oppressed portion of its people;" and so, whether the
States may violate the other provisions above cited, - arriving at
the conclusion that for such violations " it is obvious that war is the
only remedy;" that " any effective denial or violations of these provisions of the Constitution by any State, must be by forcible resistance of the lawful officers of the United States, civil or military,
engaged in the duty of compelling compliance with them;" "and if
such forcible resistance be resorted to by a State, the case presented
becomes at once that of an organized government, possessing territorial jurisdiction, and asserting sovereignty and independence
internal and external, and claiming the personal allegiance of its
citizens as paramount to all other allegiance, taking up arms to
repel the attempt of another sovereign State to enforce obedience to its asserted authority; and this is nothing less than
actual war, civil war indeed, but none the less actual war between
sovereign States, or those claiming to be such, and attended with all
the attributes and consequences of war according to the public law,
or law of nations."
Then he says, that
"One of the best established principles of that code is, that as
there is no acknowledged arbiter to judge between the parties
engaged in war, the victor has of necessity the right to dictate
the terms of peace, provided that they be not inconsistent with
humanity and the generally recognized principles of that code.
And this rule, under certain limitations, is as applicable to a civil
war as to one between sovereign States of no antecedent connections with each other."   And thereupon he cites Vattel, and
WVheaton upon the Law of Nations, Dana's ed. ~ 296, and the
Prize Oases, 2 Black's Sup. C. Rep. 638, and concludes, that as
the judgment of war was against the confederate States, a "just
right accrued to the United States, not only to enforce obedience
to the duties imposed by the Constitution, and keep the confederate
States under military control until the peaceful fulfilment of them
could be relied upon; but also to require full indemnity for the
wrongs and losses caused by the rebellion, including payment of
the debt incurred in suppressing it, if the confederate States could
reimburse the amount of it, and any security which reason and




THE STATUS OF THE SOUTHERN STATES.           41
justice might show to be necessary to prevent any future perpetration of the crime."
I have given extended extracts, that the learned writer may
have the full benefit of his positions, and now I have to say, in
the first place, in general terms, that his argument is all wrong.
His conclusion shows that the Union and the Constitution
would be broken up, and the confederate States held as a conquered province; which is not under, but outside of the Constitution, and in entire conflict with it.
The law of nations has nothing to do with a civil war as between the parties themselves, unless, perhaps, in the application
of the law of prize. That law governs the relation which exists
between the parties to a civil war and other nations who recognize the existence of that war and the parties as belligerents.
But as between the parties themselves, - the government
assailed on the one hand, and the insurgents on the other,the law of nations has no application. The acts of the insurgents are treason, and may be punished as such under the
municipal law, which, if the war was like a foreign war, could
not be done.  The war may assume large proportions, to such
extent that the government may find it expedient not to punish
the treason. The insurgents may be successful, and then there
is revolution.
But the argument and conclusion of the writer fail for other
reasons. While the law of nations does not govern such a case
of war, as between the parties to it, the Constitution of the
United States makes no provision for a war between the United
States and one of the States, whether begun by one or the other
of the parties. It not only contemplates no such case, but
such a war is entirely impossible as long as the union of the
people and of the States exists under the Constitution.  With
a revolution which severs a State from the Union, war between
such State and the General Government becomes at once a
possibility.  Secession, if admitted to be effectual, would make
it possible. But until there is revolution to the extent of the
severance of a State from  the Union, so that treason is no
longer committed by acts of hostility, the State cannot lift its
armed hand against the Union, nor the Union set its armed
heel upon a State.  This results from the fact that by the Constitution, and for the purposes of the Constitution, the people




42        THE ORIGIN OF THE UNITED STATES, AND
of the United States became one people, - an entire nation. Such
a war, therefore, would be the warring of a nation against itself,
and we are taught that even the kingdom of Satan cannot stand
under such a warfare.  Such a war would of itself be dissolution, - disintegration.  For the purposes of war against each
other, no such division as State and United States, territorial
or otherwise, exists.  All attempts to array a State against the
General Government in war, are personally criminal, and the
party is answerable personally for his offence; but he is not,
and cannot be, authorized to act for the State, and it is not,
therefore, the treason of the State, or the war of the State,
while the State exists in the Union.
It is quite true that there may be unlawful acts, treason
itself, under semblance of State authority, by a usurpation of
State offices, and the unlawful appropriation of the property and
resources of the State. A majority of the people of a State
might by possibility attempt to set up a monarchical government. it would be a very poor relief to the oppressed minority
if the remedy was to be (as held by this writer) a war against
the State, involving the minority equally with the majority in
its horrors.
But it may be asked, what is the remedy other than war
against the State.  Certainly a very complete one, having for
its object the overthrow of the unlawful government (which
would not and could not be the government of a State within
the Union), and the punishment of the offenders, personally;
not the deprivation of the rights of the State, or its subjection
to pains, penalties, or bonds for good behavior. So far from
that, the United States is, by the clause which has been cited,
bound to guarantee, to that very State, a republican form of
government, - to protect that State against such crimes, even
of its own people. Is the United States under this clause of
obligation to protect the State, to turn round upon it, make war
upon it, and punish the State itself, to deprive it of its rights,
and destroy its equality with the other States? The thing would
be preposterous. The United States is, of course, clothed with
authority to pass laws which will enable that government to keep
its covenant, - laws for the punishment of every one who should
assume the office of king, or do any other act under such pre-:tended monarchy. True, again, it might be necessary to enforce




THE STATUS OF THE SOUTHERN STATES.            43
the laws by military authority, and this, if the criminals were
strong enough, might lead to a war, a civil war. But it would be
a war against the monarchists, — the insurgents,- who may have
organized, claiming to be a state, or a confederacy, or a nation.
A recognition of the insurgents as a belligerent party by England, France, and Spain, and all the other powers of Europe,
with the King of Dahomey added, would not alter the character
of such a war, from that of a treasonable war of persons, to a
war of a State against the United States, nor give authority to
the United States to conquer or punish the State. The victory
would be one over persons, over the unlawful organization, and
not over a part of the nation itself.
And so in relation to the other clauses of the Constitution by
which States may not make treaties, &c., &c.  What the
State is thus inhibited from  doing, the State cannot do.  The
prohibition creates an absolute disability.  Individuals may violate this provision, in the name of the State, and be personally responsible for their misdeeds.  But the attempted treaty
or other prohibited act is wholly void, so far as the United
States is concerned. Of course it is not the act of the State.
It may not be amiss here to consider this clause of guaranty
in another aspect, in which it presents itself in this connection.
I have shown (upon another occasion) how it came into the
Constitution, why it was inserted, and what is its true construction.1
It is, as we readily perceive, a covenant of protection on the
part of the United States, - protection to the oppressed minority, protection to the other States, - a duty assumed by the
United States.  But suppose the United States should not keep
this covenant.  The Constitution and laws of the United States
are the supreme law of the land.  The President shall take
care that the laws be faithfully executed. Congress shall have
power for calling forth the militia to execute the laws, says
this writer. All' very true. There is power enough. But the
President cannot subvert this monarchical government without
some action of Congress; and suppose the majority in Congress, believing that the subversion of the monarchy will not be
the means of gaining votes for the party in the next presidential
election, think that it is not best, therefore, to interfere, does
1 Revolution and Reconstruction, Lecture II.




44       THE ORIGIN OF THE UNITED STATES, AND
nothing, and so no war is made upon the monarchical organization called a State. The United States is then in the wrong.
What is the remedy?  If war by the United States against the
State is the proper remedy for the violation of the duty on the
part of the State to maintain a republican government, which
duty is not expressed but implied in this clause, why is not war
upon the United States by the State, which certainly has an interest in having this express covenant kept, the proper remedy to
enforce it. If it be thought that here would be a little practical
difficulty, inasmuch as such a war must necessarily be waged by
the " oppressed minority," not only against the United States,
but against tile majority of monarchists, who caused the offence,
that difficulty would not exist in reference to a war against
the United States by the other States, which certainly have
also an interest in having this covenant kept and this duty performed.  War against the United States for a violation of duty
is just as proper as war against a State for such a violation.
The argument of this and other writers, in reference to this
clause of guaranty, leads fairly to the inquiry respecting the
mode of its enforcement; and I have run out the argument
to show the absurdity of any conclusion that war upon a State
is the remedy, in any case, for a violation, by the majority of
the people of a State, of the constitutional obligations of the
State.  If the majority of the people of a State should refuse to
choose senators, or to elect representatives in Congress, and
should thus, at the same time, abandon a privilege and violate a
duty, we should say, in common parlance, that the State was
guilty; and yet it would not be the act of the State, which, as
a State in the Union, can only act lawfully. It would be the
unauthorized act of individuals, and war upon the State would
not be the remedy.
It may be found to be true that while there is power in the
United States, - through statutes, which being the supreme law
may be enforced by judicial or executive power exerted against
individuals, - to enforce all the duties of the States, there
is no such sanction in respect to the duties of the United States,
- the reliance for the performance of those duties being upon
the virtue and patriotism of those who are intrusted by the
people with their performance.  If that fails, the evil must be
endured until the people apply the remedy.  There can be no




THE STATUS OF THE SOUTHERN STATES.          45
indictment or impeachment of a majority in Congress, nor any
war upon that body, nor upon the United States and the Constitution. And there is just as little foundation, under and
within the Constitution, for war upon a State, although the
treason of individuals may reach to such a magnitude of organization, as that there may be war upon them.
The author next undertakes to maintain his notion of "the
right of the General Government to prescribe the conditions
upon which the inhabitants of the rebel States may be restored
to equal political privileges with the other States under the
Constitution, independently of the right resulting from war,"
and says'" there are several other grounds upon which, as is
believed, it may be satisfactorily vindicated."
The first proposition which he then suggests is, "6 that the
power of deciding upon the right of such restoration, and upon
the terms of it, resides in the General Government as matter of
absolute and inevitable necessity."
This is put as if the States could not be restored, except by
some action of the General Government. But such a proposition has no foundation in fact nor in law. If, on the close of
the war, the United States had withdrawn all the troops, and
left the peoples of those States to reorganize their governments,
under the State constitutions, as they existed before the war,
and the inhabitants had proceeded, upon such notice as was
satisfactory to them, to hold primary meetings, and to elect
members of the State legislatures, and then to elect senators and
representatives in Congress, those senators and representatives
would have been admitted to their seats, and the "' restoration 
would have been complete, without any measures of reconstruction by Congress.
The presidential plan, devised, it is said by Mr. Lincoln, and
followed by Mr. Johnson, of appointing military governors; and
through that mode, by means of the action of such governors,
taking measures for reorganization, would have accomplished
the same thing, without any terms or conditions prescribed.
That mode gave an opportunity to require, through the military
organization, the abolition of slavery, as terms of restoration,
not from necessity, but from choice.
The abolition of slavery alone, however, it was feared, would
not secure the ascendency of the party in power, and to secure




46        THE ORIGIN OF THE UNITED STATES, AND
that, came the " necessity " that the majority in Congress should
impose such terms as would accomplish that object, and hence the
6" absolute and inevitable necessity " that the power of deciding
upon the rights of restoration and its terms, should reside in the
General Government. The necessity was the one described by
Mr. Patterson, candidate for Congress, when he pledged himself " to support any military necessity to which the adcministration should see fit to resort."  That describes the inevitable
necessity exactly.  It is a necessity which the party chooses,
creates, adopts, resorts to, and which exists only by such choice
and adoption.  We have all heard of the man who was " forced
to go a volunteer." I think we have his counterpart in the
man who voluntarily imposes upon himself a present inevitable
necessity.
Necessity has been long denounced as the tyrant's plea; and
the use which has been made of the term, in this connection,
shows that this description of it is an apt one.  The Constitution recognizes no necessity to do anything which it does not
authorize to be done. Especially, it recognizes no necessity to
destroy the rights which it solemnly guarantees.
"The next proposition," he says, "is, that State rights being corporate rights, or privileges, or franchises only, belonging to the
States as subjects of the National Government, and being lost or
forfeited by their rebellion against it, never could revert or be recovered by their subjugation or submission; but any restoration of
them must be by a grant from the sovereign power which created
them."
"State rights and powers are such, and such only, as were
granted, defined, or recognized by the Constitution. The States are
in no sense sovereign under it, nor are they in any part of it
styled or recognized to be such. They have no right to decide any
question under it in the last resort; but are always amenable and
subject to the final decision of the General Government upon it."
This last is certainly a very strange position, unless there is
more special pleading here than is apparent upon the face of it.
It may be said that all State rights and powers are " recognized " by the Constitution, in the tenth amendment, which
provides that "6 the powers not delegated to the United States
by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people," which is




THE STATUS OF THE SOUTHERN STATES.             47
merely an explicit declaration of that which would have been
true without any such declaration. It was adopted to remove
fears, and place the matter, as it was supposed, beyond cavil.
But this provision which thus " recognizes " the rights of
the States, neither grants, nor defines them. Nor are they
" granted " elsewhere in the Constitution of the United States,
nor " defined " to any great extent.  The Constitution deals in
prohibitions upon the States to exercise, in the future, rights of
a sovereign character which they had exercised before, and
might have continued to exercise but for the surrender of them,
through the adoption of the Constitution.
Again, - It is not true, that the States "' have no right to
decide any question under it [the Constitution] in the last resort," even in a limited sense, for the validity of the laws of
Congress, and the question of the rightful exercise of power
under such laws, may be drawn in question in the State courts,
and if the decision of such court is in favor of the validity of
the statute or power, the State court is one of the last resort,
and the decision final. It is only when the validity of a treaty
or statute of, or an authority exercised under, the United States,
is drawn in question, and the decision is against their validity,
or where the validity of a statute of, or an authority exercised
under, a State, is drawn in question on the ground of their being
repugnant to the Constitution, treaties, or laws of the United
States, and the decision is in favor of the validity of the State
statute or authority, or where there is a decision against a title,
right, privilege, or exemption claimed under the United States,
that appeal or error lies from the State courts.
It may be said that the decision of the State court is thus
final, in questions regarding the Constitution, treaties, and laws
of the United States, not by any provision of the Constitution,
but because Congress has not seen fit to provide for an appeal
from the State court, except in the cases enumerated. Perhaps
this is so.  If it be, it will serve to show that the States have
the right to decide all questions in the last resort, except when
the right is taken away by or under the Constitution. If, however, it be intended to confine the assertion to those questions
only which arise "' under the Constitution," and are not reached
by any statute, it is a special averment which fails to support
the general doctrine, for the United States, being a limited




48         THE ORIGIN OF THE UNITED STATES, AND
government, and the powers conferred upon its several departments limited powers, there is a vast variety of questions which
the States, and the courts of the States, decide in.the last resort,
not by any grant from the General Government, but by virtue
of their original sovereignty, which has thus far never been
surrendered or taken away.  It was because the States were
not willing to part with a sovereign right, that the eleventh
amendment to the Constitution provided that "the judicial
power of the United States shall not be construed to extend to
any suit in law or in equity, commenced or prosecuted against
one of the United States by citizens of another State, or by
citizens or subjects of any foreign power.
That the States are bound by the Constitution of the United
States, and by laws duly passed in pursuance of it, is undoubtedly true. But that they are "' subjects " of the United States
in any ordinary sense of the term'" subjects," as used in describing political or civil rights, is not true.
The next assertion under the proposition which we are considering is that " the right of representation in Congress and so to participate in the administration of the General Government, was not
one belonging to them [the States] in their original capacities when
the Constitution was framed, nor one created by them as the framers
of the Constitution. It was one conferred upon and granted to
them by the whole people of the United States, in the formation of
that frame or structure of the government."  " The people of the
United States was the grantor, and the several States respectively were
the grantees of that right."
And so hle reaches the conclusion, that these rights are mere
corporate rights, belonging to the States only as political corporations or societies; and he perceives not why they may not
be lost and forfeited by misuser or nonuser in the same manner
as may be any other corporate rights created by the general
government " from which they were derived."
This position is certainly more astonishing, if possible, than
the last.  The author admits that " the nature of the political
relations of the several States to the United States is obviously
pure matter of law," and that " any question concerning the
violation or forfeiture of them, or the right of restoration to
them, if lost or forfeited, is also a pure question of law."
Now, as a pure question of law, how could the people of the




THE STATUS OF THE SOUTHERN STATES.             49
United States make a grant of political rights, or corporate
rights, or any other rights, before they came into existence as
6" the people of the United States? "  We might as well say
that a child created itself and at the instant of its birth granted
to its mother the right to nurse it. "6 The people of the United
States," in order to make a grant, must first have a political
existence as a people, and there was no such people or government until the adoption of the Constitution, which was the
creation of the peoples of the several States.
It is enough to say in answer to this position "6 that the General Government is the grantor, and the States the grantees of
the right of representation in Congress,"' that the thing is an
utter impossibility, consistently with the history of the formation of the Constitution, under which, and only under vlwhich,
this right of representation exists.  It is true, as the author
says, that "1 the right of representation in Congress, and so to
participate in the administration of the General Government,
was not one belonging to them [the States] in their original
capacities when [that is, before] the Constitution was formed."
They could not, in their original capacities, have a right of
representation in a congress under the Constitution, when there
was no provision for a constitution, and of course no congress
under it.  But it is not true, as he represents, that the right
was not one created by the States, or rather by the peoples of
the States, "6 as the framers of the Constitution."
The General Government could not be organized until this
right of representation had been exercised by the peoples of the
States, and by the States, as such, in the election of representatives and senators in a congress to be formed; and this was the
first act of the organization which brought "' the people of the
United States" into existence, as a whole people, for certain
limited purposes, under the Constitution.  C6 We, the people of
the United States," uttered their first words in the preamble
to the Constitution which made them "6 we the people," and of
course did not utter them until that Constitution became operative through ratifications by the peoples of the several States.
The formation of the government of the United States, - the
formation of this nation, -  was, throughout, the several action
of the populations of the States.  The States, acting severally,
sent delegates to the convention which devised the scheme of a
5




50        THE ORIGIN OF THE UNITED STATES, AND
national government, - the scheme of a nation to be organized
under a constitution which should create that nation.  The
Constitution which these State delegates framed was submitted
to the peoples of the States severally.  The acts of the peoples
of the several States, acting separately through conventions
called by their respective State legislatures, ratified the Constitution.  The ratification of the people of New Hampshire,
the ninth State ratifying, secured its adoption. These ratifications gave existence to the Constitution, and thereby life
to the nation. Through them  came authority, by a provision
of the Constitution which was thus adopted, for the election
of senators and representatives in Congress, by the several
States, before the organization of the government of the United
States, and for the purpose of organizing that government, -
and of course before the United States existed as a government under the Constitution.
These elections by the peoples of the States respectively, were
not, therefore, and could not have been, by any grant of the
United States, for the United States spoke only through the
action of the peoples of the States.  The government of the
United States received the breath of life, and power and right
friom them, by that instrument; and it would be absurd to hold
that by the same instrument by which the people of the United
States, as an entire people, came into existence, and at the
instant when they came into existence, they made a grant of
power to their creators, to perfect that existence.
All elections of senators and representatives since have the
same original foundation. Until the Constitution went into
operation the people of the country collectively had no power
to make any grant.  It went into operation for the purpose of
the elections necessary to organize the government, by means
of the ratifications; but it was not operative for any other purpose than these elections, until the government was organized.
The Constitution gives no power to make a grant of a right of
representation either expressly or by implication. There can
be no construction by which it is presumed or assumed that the
people of the United States came into existence as a nation
and then made the grant of a right of representation.  There
are cases in which it has been presumed, for the purpose of
giving effect to what was intended as a grant, that a corpo



THE STATUS OF THE SOUTHERN STATES.             51
ration made the grant the instant itself came into existence.
But there is no case in which it was ever presumed that a, coporation granted its own charter, and therein provided for its own
organization by conferring the power necessary for that pumrpose.
A legal presumption therefore that tile United States granted
tile right to choose the senators and representatives who were
chosen before the government was fully born and who assisted
at its birth, is neither a presumption of fact nor of law, but
against both.
The next ground upon which this author contends that the
political rights may be accounted as forfeited and lost is, that
having been granted "' upon condition of the continued existence
of certain prescribed relations to the United States and obedience to the Constitution and the laws; and that condition
having been voluntarily and entirely broken, they were by the
terms of the grant, and the principle universally recognized in
continuing grants upon conditions, totally and irrecoverably
forfeited and lost."
It is only necessary to say upon this point that the supposition
of a grant from  the General Government entirely failing, any
implication of a condition annexed to it, such as is mentioned,
fails with it.  We need not discuss the question, therefore,
whether if there had been such a grant tllere could have been
an implication of such a condition.
But it may be remarked that alleged forfeitures of grants
upon condition are subjects for judicial determination.  A forfeiture of corporate rights through misuser and nonuser, is not
to be declared and made effectual by any declaration of the
legislative department of the government; but, upon the ordinary principles of law, is to be made the subject of judicial
inquiry.  For the same reason the right of the two Houses of
Congress to judge of the election of their own members would
not cover the case.  If these rights were corporate rights, and
the General Government alleges such a forfeiture, then upon
the admission of the author that any question concerning the
violation or forrfeiture of them is also a pure question of law,
we must have a process of quo warCauto, by the Attorney-General, filed in the Supreme Court, and the States mnust be requirecl to come in and show by what authority they still assume
to exercise such rights of representation. Such a process would




52         THE ORIGIN OF THE UNITED STATES, AND
surely be a novelty as well as an absurdity.  But to such ends
we come at last, on this reasoning.
But the author says:-'" There is another and a broader view to be taken of this subject,
in the light of the great principles upon which the Constitution was
founded, and the great purposes for which it was created, extending
far beyond any nmerely literal or technical rules of construction as
applied to written contracts or instruments in the ordinary business
of life."
He says: -
" The foundation principles of self-preservation and of essential
security for the great objects of the compact must have controlling
influence over all other principles, if in conflict with them, when
applied to any issue in which they are involved.  The principle of
self-preservation is fully recognized as one of established law in all
civilized communities."
Between the two paragraphs just quoted are these assertions:
"The nation, as history abundantly shows, existed as a nation before
the Constitution was foarmed.  The nation created the Constitution,
not the Constitution the nation.  It constructed that national compact for the more perfect definition and distribution of the various
rights and powers which its citizens possessed, or were intended to
possess, in their individual capacities and in their corporate capacities
as States," etc.
Again: -
"The government formed  by the Constitution represents the
nation in everything pertaining to it as a nation.  Its life is the life
of the nation.  And it not only has the right, but is, on every principle of duty, bound to protect that life at all costs and all hazards;
and for that end to exercise other powers than those expressly given
by the Constitution, if manifestly necessary for that end, upon the
obvious principle that the possession of such ultimate power of selfpreservation was necessarily implied in its creation."
The assertion that'; the nation existed as a nation before the
Constitution was formed " lie makes emphatic by italics.
Let us go back and inquire further of history as to the truth
of this allegation.
By the term'" nation" in this connection is evidently meant
the people of the whole country as an entire community contradistinguishecd from  the people of the several States, and




THE STATUS OF THE SOUTHERN STATES.             53
having as such community rights and powers of a political character; and the assertion is in effect that this entire community
constructed this national compact.  The whole scope of the
argument shows this. To give the language any other construction would make it absurd, for this supposed nation it seems had
citizens, and it constructed this national compact for the more
perfect definition and distribution of the various rights and
powers which those citizens possessed, or were intended to
possess, in their individual capacities and in their corporate
capacities as States.
Now veritable well known history gives a complete and emphatic denial to this whole proposition.  History presents us in
the first place thirteen colonies, under the common jurisdiction
of' Great Britain, but organized under separate charters, grants,
and commissions; with their separate legislative, judicial, and
executive departments, as completely independent of each other
as any foreign nations, - with the exception of their common
dependence upon the mother country, and in some instances a
common governor.  It shows a claim  by Qreat Britain of a
right to tax these colonies, which had no representation in the
British Parliament, and a denial of that right, - a matter in
jwhich the colonies had a common interest only as the principle
was asserted as to all,-and each, and if acquiesced in would ini
the end be made operative in each.  Then came the attempt to
enforce the asserted right in one of these colonies and resistance
there, - the sympathy of the others, the resolution to make a
common cause in the assertion of the denial, as no one could
maintain the controversy alone, and without union in making
the resistance the claim would be enforced in detail against all.
Then a Congress of Delegates appointed by each to consider the
dangers common to all, to devise concert of action, and the
recommendation of measures to be adopted by all, —acting
separately, however, in the adoption of such measures.  Then
there is the armed attempt to enforce the measures of the
crown, and the  armed resistance directed by this Congress
of Delegates, who, by the authority of popular organizations in
the several colonies, appoint a Commander-in-Chief and do
divers other things necessary to be done in the prosecution of
the warfare, but nothing which might not be done by deputies
of different populations, assembled with authority for the purI




54        THE ORIGIN OF THE UNITED STATES, AND
pose. Connected with all this are earnest protestations of
loyalty and of a desire only for redress of grievances, and that
they do not desire to sever their connection as colonies with
the mother country.
As the contest is prolonged, the probability of obtaining
redress becomes less, the dangers of subjugation become more
apparent, and the idea of independence is entertained.  The
several popular organizations discuss it, act upon it, and assent
that it shall be declared.  But it is the independence of the
several colonies, which are to become free and independent
States.
The nature and character of what was proposed to be done
was well expressed by the action of the Connecticut Assembly,
instructing its delegates to propose to Congress " to declare the
United American Colonies free and independent States," and
that they move and promote a plan of union and confederation
of the colonies for the security and just preservation of their
just rights and liberties, and for mutual defence and security,
saving that the administration of government and thepower of
formzing governments for, and the regulation of the internal police
of each colony ought to be left and remain to the respective colonial legislatures, and also that such plan of confederation be laid
before such respective legislatures for their previous consideration
and assent."
The Declaration of Independence is made by the delegates
representing their respective constituents in accordance with
the authority thus conferred, and it is, not that the whole people are ani independent nation, nor with any assertion of a common power except as it is derived from their separate populations, but with a recital of grievances common to and affecting
all, and with the dlistinct and emphatic declaration that these
colonies "1 are, and of right ouglht to be, free and independent
States."  The assertion of independent sovereignty in eachl is
thus made plain and explicit.
YWe cannot ignore the effect of these proceedings, and say
that from  the time Congress assembled there was a nation
embracing the whole people; the people of the several colonies
meanwhile professing their desire to remain separate colonies
of Great Britain.  Tihe idea would be preposterous.  But there
was no change of organization or grant of power to Congress




THE STATUS OF THE SOUTHERN  STATES.                   55
altering the constitution of that body, from its first organization
to the Declaration.  Congress in making the Declaration represented the people of the several colonies as distinct populations,
as it represented those several populations when it first commenced its sessions, and  it is beyond  cavil (no, not beyond
that, but beyond a reasonable doubt), that the language of the
Declaration of Independence does not authorize any construction or interpretation of that instrument by which it can be
made to assert the existence of any entire nation, arising out of
the separation of the colonies from  the mother country.  Congress after the Declaration differed from  its first organization
only in this, that the delegates severally represented independent
States instead of revolted colonies.  The subsequent appointment of delegates was an exercise of the sovereignty which the
Declaration asserted, - sovereignty in the several States.
Congress repeatedly recognized the sovereignty of the States.'
There  was in  fact nothing  else  which could  be sovereign.
Congress was without the powers of a nation and could in no
sense  be sovereign, and  there  was nothing  besides but the
States.  There was no allegiance due to Congress, -  no treason
against it. But the allegiance was to the several States, and
treason was an offence against each accordingly. There were
no citizens of the United States.  The lack of power in Congress led to the formation of the Articles of Confederation, which
as we have seen by the action of the Connecticut Assembly
were contemplated  when  independence  should  be  declared.
The second of these articles, as they were drawn up by Congress and submitted to the several States, was in these words'
"6 Article 2d. Each State retains its sovereignty, freedom, and
independence, and every power, jurisdiction, and right which
is not by this confederation  expressly delegated to the United
States in Congress assembled."
1 The committee appointed to prepare a circular letter to accompany the Articles of
Confederation, brought in the following draught: -
"In Congress, York Town, November 17th, 1777.' Congress having agreed upon a plan of confederacy for securing the freedom, sovereignty, and independence of the United States, authentic copies are now transmitted
for the consideration of the respective legislatures."...... Permit us then
earnestly to recommend these articles to the immediate and dispassionate attention of
the legislatures of the respective States. Let them be candidly reviewed under a
sense of the difficulty of combining in one general system the various sentiments and
interests of a continent divided into so many sovereign and independent communities,
under a conviction of the absolute necessity of uniting all our councils and all our
strength to maintain and defend our common liberties." Joeurnal, 1777, pp. 513, 514.




56            THE  ORIGIN  OF THE  UNITED  STATES, AND
Requiring the adoption  of all the  States, and  Maryland objecting, because  there was  no provision  respecting  the  public
lands, they did not go into effect until her assent in  1781, and
the States were of course sovereign up to that time, for the
plain reason that up to that time they retained the sovereignty
which the 2d Article admitted that they possessed.
Even after the  adoption of the  articles, although  the  States
had thereby parted with some of the powers of sovereignty, Congress was not a nation, nor were the States, thus confederated,
a nation.   There was no power under the  articles to  institute
a  national executive  or legislature.   Congress possessed some
powers of each character. But there was still no allegiance
due to Congress or to the confederacy, nor any treason against
Congress  or  the  confederacy.   Congress  still  admitted  the
sovereignty of the States.'
It was the  insufficiency  of the  powers of the  confederacy
that caused the convention which framed the Constitution.  Tihe
first idea of a national legislature, judiciary and executive, is
found in a letter of Mr. Madison  to  Governor Randolph, after
the convention was called; and the first movement towards the
creation of a nation was in the resolution proposed by Governor
Randolph  in  the  convention.   The  Constitution,  as  framed,
proposed the creation of a national life for certain  limited purposes only.2
1 In Congress, Aug. 12, 1782.  "On the report of a committee, consisting of TMr.
Lowell, Mr. Cornell, and MIlr. Madison, to whom was referred a letter of the 9th of July,
from the Commnander-in-Chief, with sundry papers inclosed: -
" Resolvedl, That Congress approve the conduct of General WaVshington, in refusing
to enter into any discussion with General Carleton on the subject of the treason laws
passed by the several States.'" Resolved, That the States of America which compose the Union, being sovereign
and independent, the laws respectively passed by them for their internal government
and the punishment of their offending citizens, cannot be submitted to the discussion
of a foreign power, much less of an enemy." - Jou.rnals of Congr ess, 1781-82, p. 436.
The report of the committee in favor of the admission of Vermont into the confedemracy proposed, " That the district or territory called Vermont, as defined and
limited in the resolutions of Congress of the 20th and 21st of August, 1781, be rand it is
hereby recognized and acknowledged by the name of the State of Vermont, as free,
sovereign, and independent; and that a committee be appointed to treat and confer
with the agents and delegates from said State, upon the terms and mode of the admission of the said State into the Federal Union." - Journal, 1781-82, p. 343.
2 A friend who was somewhat inclined to this heresy of the existence of an entire
nation from the Declaration of Independence, after a short discussion which appeared
to convince him that the proposition was untenable, said to me, " Well, there  vas a
sentiment of nationality from the first."  The reply was, " You have hit it precisely."
There was a se'ntinzent of nationcdlitg. It was but a sentiment, until the adoption of




THE STATUS OF THE SOUTHERN STATES.                   57
Having thus ascertained that the nation of the United States
did not, and could not, under the circumstances, exist anterior
to the Constitution, that the Constitution was framed by the
peoples of the several States, and that these several populations,
acting separately through the instrumentality of the Constitution, formed the nation; and, moreover, that this nation thus
formed is a sovereignty only for particular and limited purposes9
the States existing as perfect sovereignties from the time of the
Declaration of Independence until they themselves, by their
voluntary acts, parted with portions of their sovereignty, retaining the rest; and that these sovereignties would exist and
be competent to act as perfect sovereignties if the nation under
the Constitution of the United States should be destroyed, - we
may well question the soundness of the proposition, that this
nation of limited powers has any right to exercise any powers
other than those granted, even for its own preservation. All
powers not delegated to it expressly, or by implication, are retained by the States and the people.  There is no grant of
power to go outside of the Constitution for any purpose, not
even for self-preservation.  There is no power of that character incident to any of the powers granted.  All incidental
powers, or powers by implication, are inside and under the
Constitution, and not outside of it.  It is not " bound to protect
its life at all costs, and all hazards."  It is not authorized to protect its life at the cost of the life of the States, or the liberties of
the citizens of the several States.  To do so would be to pervert
the purposes of its creation, -  would be flagrant usurpation,
which any State might lawfully resist for its own preservation,
and so might come revolution.
But let us consider the proposition respecting the right of
self-preservation a little farther, and assume, for the sake of the
argument, that there is, incidental to the powers granted, an
implied power in the nation of the United States, of self-preservation, and that it is bound to protect its life at all the costs and
the Constitution. There was a common sympathy arising from the common perils;
and common rejoicings when they were surmounted. There was a feeling of common
interest in the maintenance of the independence which had been achieved, - a desire
for the strength to be found in united action, - an agreement to join in consultation,
and in certain measures in relation to foreign intercourse. There was confederation,
and powers conferred on Congress. But nationality consisted only in sentiment, not
in fact.




58        THE ORIGIN OF THE UNITED STATES, AND
hazards which may result consistently with the Constitution
itself.  We cannot say which are inconsistent with it. On this
principle the result is the same.  The nation cannot go outside
of the Constitution by which it was created, and exercise powers
not incident to the powers granted by the Constitution, and
at costs and hazards which the Constitution does not justify.
There can be no such incidental powers.
Tile principle of self-preservation, then, is to preserve itself
in its constitutional form,- to save to itself the powers which it
possesses, as those powers exist in its relations to the States
and the peoples of the States.  Exercising all its powers, incidental and implied, it is not, in its efforts at self-preservation, to
acquire any new power, or to subvert any of the powers of the
States, or the liberties of the people as citizens of the States.
Its right of self-preservation is to keep itself as it is, not only
in reference to its own existence andc power, but in reference also
to the existence and powers of the States, and the liberties of the
peoples of the States.
This right of self-preservation, therefore, does not avail anything towards supporting the argument that the nation has a
right to treat the "' States lately in rebellion"  as conquered
States, or to deny them a representation in Congress, because
of the treason committed by the citizens of a State.
A  few words further upon LL reconstruction," which, as the
result of all these various theories of the loss of State rights,
it is so violently insisted, must take place before the disorganized States can be represented in Congress, and which it is also
insisted, is within the power of Congress alone.
The rebellion was of such extent, that the contest was not
between the government on one side, and a handful of insurgents on the other, of such limited numbers that only a small
exertion of the military power was required to suppress it. It
involved, to a greater or less extent, nearly all the people of
eleven of the States.  The State governments were in the
lhands of the rebels, who professed to exercise the powers of
those governments as if they were legitimately in their possession, and to do this in opposition to, and in subversion of, the
authority of the United States.  In whatever light this may
be viewed, so far as the States themselves were concerned, and
in relation to their local affairs, it was, as to the United States,




THE STATUS OF THE SOUTHERN STATES.           59
a usurpation of the State authority, for the purposes of treason.
The United States could not regard such an administration of
the State governments as lawful. As to that government, it
was an overturning of the lawful administration of the State
governments, and the substitution of an unlawful one as if it
were a lawful one, and this was usurpation. By this usurpation
the action of the State governments was brought in conflict
with the government of the United States, but the States themselves were not thereby destroyed.  There was no attempt on
the part of the rebels to change their ordinances, or to subvert
their constitutions. And if there had been such an attempt, it
would not have availed anything against the United States
government, which remained with all its powers, legislative,
executive, and judicial, unimpaired (notwithstanding their exercise was obstructed) within those States.
The rebels also organized a confederate government, embracing those States, with powers of a national character, like
unto those of the United States. This was a new creation, unlawful, treasonable, void, as against the United States.
The termination of the war, by the surrender and disbanding of the forces organized by this confederate government,
terminated at the same time the existence of the confederate
government, and it terminated, also, the administration of the
powers of the State governments in hostility to the United
States. But it did not terminate the existence of the several
States.  It terminated what was unlawful. It did not subvert
what was lawful. The war was prosecuted for the purpose of
subverting the confederacy and overcoming the rebellion; but
was not, and could not have been, prosecuted for the purpose
of overthrowing the States, consistently with the obligations
of the United States, particularly the obligation to guarantee to
them a republican form of government, - an obligation which
the United States owed, not only to those States whose people
were in rebellion, but to all the States, - to New Hampshire
as well as to South Carolina. The Northern States had an
equal interest in the due performance of this duty by the United
States with the Southern States.  All the Northern States had
an interest in the preservation of the Southern States, as members of the Union. An interest which the United States government had no right to overrule or disregard.  Any attempt




60        THE ORIGIN OF THE UNITED STATES, AND
on the part of the United States to prosecute the war for the
purpose of subverting or extinguishing the existence of those
eleven States whose people were in rebellion, or any one of
them, would have been revolutionary.  And so any attempt by
means of the war to subvert the rights of those States, as States,
must be of the same character.
The States could not constitutionally secede from their place
in the Union. It is equally true that the United States could
not constitutionally turn theim out.
The conclusion then is irresistible, to any one who reasons
upon legal, and not upon revolutionary principles, not only
that all which was necessary to be done, but all which could
constitutionally be done, on the close of the war, was to reorganize the governments of those States.  Until this could be
done, the military possession of the territory which had been
acquired by the success of the war could be continued for the
purpose of preserving the peace, and for the purpose of such
an administration of' justice as the military power might properly interpose in the mean time, limited by the ordinary exercise of military power in the suppression of a rebellion.
But how was this reorganization to be effected?
If there had been any provision of the Constitution of the
United States, by which on the disorganization of a State government, by the loss of the officers authorized to administer its
affairs, the President, or Congress, or the Secretary of State,
or any other official, was authorized to issue a proclamation for
primary meetings, to be held under the Constitution and laws
of such State, for the election of the officers necessary to organize the State government, and put it again into operation; it
would only have been necessary that the party thus designated
should have issued the proclamation, accordingly, and then the
people of the State, assembling and acting in accordance with
it, the reorganization would have been effected in a regular
manner. But there was no provision of the kind.
If there had been a provision in the constitutions of the
several disorganized States, by which such a proclamation
could be issued by any officer still holding office, or the president or librarian of some college, or the clerk or sexton of
some regularly organized society, then the reorganization might
have been had in the mode thus prescribed in the several States.
But there was no such provision anywhere.




THE STATUS OF THE SOUTHERN STATES.             ~1
No such case had been contemplated, and all provision for
such an occurrence had been omitted.
It is clear enough that the omission of such a provision,
because it did not enter into the imagination of any one that it
could, if inserted, be of any possible use, did not change the
nature of the case, so far as the continued existence of the
several States was concerned.  The States were there with
their powers and rights as before the war. The question was
how to bring those powers into action again.  Evidently there
must be an assumption of authority somewhere to provide for
taking  the first step for an election of State officers.  Who
should assume it?
As there was no State legislature to act, and as the act to
be done was in its nature executive and not legislative, -an
order or notice, by an assumption of power, for the purpose, -
Congress, which is not the depositary of executive power, was
not the proper party to interfere.  On the other hand, the circumstances indicated clearly that the President was the party
who should take this first step.  There was no State officer
who could with propriety make such an assumption.
By the Constitution of the United States, the President is
commander of the army and navy, and the army and navy,
under the orders of the President, were in possession and
authority, so far as any authority could be exercised.
There was to be a withdrawal of these forces, and the substitution of a civil rule and authority.  In the absence of any
provision for the purpose, who so proper to regulate the transition from one to the other, as the officer who held the right
and power to terminate the military occupation, and who
ought not' to terminate it until some provision was made for
the substitution of civil authority?
In assuming to provide for this transition from military government to a reorganization of the State governments, the
President, instead of issuing a proclamation directly calling upon
the people to assemble and choose officers, very judiciously interposed the appointment of provisional governors, and intrusted
to them the duty, if it may be so termed, of calling the primary
meetings, and in that manner made the organization, in appearance, more nearly like an act of the State, which it should
have been, had it been a possibility.
6




62        THE ORIGIN OF THE UNITED STATES, AND
He interposed a requirement that the constitutions of the
several States should be amended so as to abolish slavery, and
that the amendment of the Constitution of the United States
for that purpose should be adopted, so as to secure the abolition
against any further action of the State.
It may be admitted that there was no constitutional authority
for this, and as it was a requirement that the people of those
States should surrender what had been admitted to be a political right of those States, its character was essentially different
from that of any act intended merely to effect the reorganization of the States.  In other words it was usurpation, and revolutionary.
In this view, however, it was not without some palliation.
The existence of slavery had been for a long time the subject
of a bitter controversy between the different sections, which had
culminated in the attempt to dissolve the Union by force.
Whatever  other causes existed behind this, the pretext for
rebellion was found here.
After a vast sacrifice of life, and an enormous expenditure
of money, on the part of the Northern States, in the suppression of the attempt at revolution on the part of the Southern
people, it was but natural, when the rebellion was suppressed,
that the successful party should insist upon the removal of the
root of bitterness which had been made the means of such a disastrous conflict between the two sections, in order to prevent
further controversies of a like character in the future; even if
there was no constitutional warrant for the abolition of slavery
except by the States where it existed, and the action therefore
revolutionary.  The United States had been obliged to resort
to the law of force to preserve the Union, and it was apparent
that the same law of force which had been put in operation by
the rebels, could on the termination of the conflict be made
available to accomplish the abolition. Those who set the
machinery in motion could not reasonably object. As an act
of revolution, I am inclined to excuse and even justify a requirement on the part of the people of the Northern States that
slavery should be abolished. At the same time I regret that
there were no sufficient guards provided to make the abolition
a blessing instead of a curse to vast numbers of those who were
thus suddenly set fiee.  And I condemn, unreservedly, the




THE STATUS OF THE SOUTHERN STATES.             63
attempt to shield this act under any pretence of an authority,
under the Constitution, to abolish slavery, or to require it to be
clone, because that is perverting the Constitution, and in evil
example hereafter.
In consequence of this action of the President, meetings were
called in the several States, delegates elected, conventions assembled, constitutions amended, officers of the State governments elected, and the military occupation was withdrawn,
except for certain limited purposes, such as the protection of the
freedmen in the just possession of tile rights which they had acquired by the emancipation.  Reorganization was thus effected.
This was "' reconstruction " in one, and the only legitimate
sense of the term  in that connection.  If the States were in
the Union all the time, because they could not secede and go
out from it, this reorganization, under the action of the President, was all the reconstruction which was necessary to enable
them to act again in their proper sphere within the Union.
But this was not reconstruction in the sense of those who
have been clamorous for reconstruction.  They were seeking
to accomplish something beyond the reorganization of the States,
and the restoration of their relations to the Union by means of
such reorganization.  They were seeking to force upon those
States a radical change of their institutions, not in relation to
the alleged cause of the war only, but in relation to certain
rights of their citizens, which in all the other States are, and
have been, from the foundation of the government, acted on as
matters properly within the control of the States, - in relation
to matters which, even at the present day, are not only determined by the Northern States according to their will and pleasure, but by rules directly the reverse of those which are sought
to be enforced against the Southern States, - matters respecting which until recently no one ventured to suggest a doubt of
the right of each State to adopt its own measures, -matters
over which the government of the United States has no control,
except by usurpation.
These new measures of reconstruction are urged under the
plausible but hollow pretence of protection to the freedman in
the rights acquired by his emancipation; but the truth is, that
they have regard mainly to the retention of political power in
the party now in possession of it.




64        THE ORIGIN OF TUE UNITED STATES9 AND
Singular as it may seem, it nevertheless appears as if those
who so vigorously urged immediate unconditional emancipation
did not, until after the constitutional amendment providing for
emancipation was before the people, awake to the realization of
the fact, that the emancipation would enlarge, to a very great
extent, the representation of the Southern States in Congress,
under the existing law of apportionment, while the right of
suffrage, under the existing State laws, would remain in the
same class of persons who had previously exercised that right;
for if that result had been then seen by them, it would have
been the part of wisdom to have provided a new rule of apportionment by the new amendcment to the Constitution. Or sliall
we suppose, that seeing this effect of the emancipation, under
the existing laws, it was thought that the purposes of the party
miglht be best subserved by revolutionary measures, denying to
the Southern States any representation, or only such as the
party pleased to accord to them, firom time to time, when in this
or that locality men were elected who would train faitllfully in
the congressional party ranks, and, irrespective of the requirements of the Constitution and laws, do the bidding of the leaders
of the party.
For the purpose of securing the party ascendency, the State
governments, as organized by the direction of the President, in
their connection with the Union, have been substantially overthrown again by congressional action, -  about as effectually
subverted by Congress as they were by the rebellion, - and
the States themselves, in relation  to their internal affairs,
placed in a much worse state of disorganization.
I have followed and exposed the doctrines of this class of constitutional politicians, until the work has become burdensome.
It seems as if there was no end to their hollow pretences.
Each demagogue in Congress strives to invent some new theory,
and if unable to do that9 then to attach an an-iendment9 or improvement in sophistry upon the vicious constitutional notions
of some one else who has preceded him.  The boldest of all
these unconstitutional dogmas, is, perhaps, an allegation that
the Southern States may be reconstructed  under the " war
power,"' because the war is not ended.
In connection with other efforts by Congress to chance the
constitutional relations of the United States, ansd of the several




THE STATUS OF THE SOUTHERN STATES.             65
States, the Fourteenth Amendment deserves some consideration, as a part of the measures of reconstruction.
The words " the  Congress " and " Congress," are used
indiscriminately in the Constitution in two different senses.
When used in reference to the legislative authority of the
United States, these terms include the President also, so far
as his power of approval or veto is involved in the legislation.
Thus the Constitution provides that "1 the Congress shall have
power to lay and collect taxes, duties, imposts, and excises;"
6 to regulate commerce with foreign nations; " " the Congress may at any time, by law, make or alter"' "regulations
respecting the election of senators and representatives," &c.;
" No State shall, without the consent of the Congress, lay any
imposts, or duties on imports or exports, except what may be
absolutely necessary for executing its inspection laws,"' &C.;
"4 and all such laws shall be subject to the revision and control of the Congress.  No State shall, without the consent of
Congress, lay any duty of tonnage," &c.
The action of "' the Congress" in cases of this character is
legislative, appropriately manifested through some bill or resolution; and the Constitution provides that " every bill which
shall have passed the House of Representatives and the Senate
shall be presented to the President" for his approval, and
" every order, resolution, or vote, to which the concurrence of
the Senate and House of Representatives may be necessary
(except on a question of adjournment), shall be presented " in
like manner.
This is the general use of the terms.  But when the Constitjtion provides that " all legislative powers herein granted shall
be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives," and when it
provides further that the President "shall from time to time
give to the Congress information of the state of the Union,"
it is clear that only the two Houses are intended.
And this is perhaps true of the use of the term "' Congress,"
when the Constitution speaks of "' the first meeting of the Congress," although this phraseology might be construed to include
the President also, in the same manner that he is included in
relation to the passage of laws, if it were of any importance
that it should bear that construction.




66        THE ORIGIN OF TIHE UNITED STATES, AND
Thle fifthl article of the Constitution provides that 6G the Congress, whenever two thirds of both Houses shall deem it necessary, shall propose amendments to this Constitution, or, on the
application of the legislatures of two thirds of the several States,
shall call a convention for proposing amendments, which, in
either case, shall be valid, to all intents and purposes, as part
of this Constitution, when ratified by the legislatures of' three
fourths of the several States, or by conventions in three fourths
thereof, as the one or the other mode of ratification may be
proposed by the Congress," &c.
6'The Congress " 6C shall propose," —  " may be proposed by the
Congress "! The act through and by which this proposition is
to be made, takes, of course, the shape of a'" bill," or'" order,
resolution, or vote," and it is an act to which the concurrence
of the Senate and House is necessary.  That is clear.  Is the
assent or approval of the President necessary in order that
it should be a proposition by the Congress? - as his approval
is necessary in order that other things should be laws enacted
by the Congress, unless the two Houses pass the bill, order, or
resolution, by a two thirds vote.
At the session of Congress in June, 1866, four propositions,
diverse in their character and objects, were included in a single
article, by the two Houses of Congress, and sent out as a proposed amendment to the Constitution.
The first declares that all persons born or naturalized in the
United States, and subject to the jurisdiction thereof, are citizens
of the United States, and of the State where they reside; and
it forbids any State to make a law  which shall abridge tIle
privileges of citizens of the United States, or to deprive any
person of life, liberty, or property, without clue process of law;
or to deny to any person within its jurisdiction the equal protection of the law.1
The second has regard to tile apportionment of representatives, and the basis of representation, makin g it to depend in
some measure upon a denial or abridgment by a State of a right
of its male citizens to vote in certain State elections.
The third disables any person who has taken an oath to support
the Constitution of the United States, and afterwards has en1 May a State admit any other persons as citizens? Does "due process of law"
include trial by jury?




THE STATUS OF THE SOUTHERN STATES.              67
gaged in insurrection or rebellion, firom being representative or
senator in Congress, elector of President or Vice-President,
and fiomn holding any office, civil or military, under the United
States or any State.  But Congress may, by a vote of two
thirds, remove the disability.
The fourth provides that the public'debt of the United States,
authorized by law, shall not be questioned.  But neither the
United States, nor any State, shall assume or pay any debt incurred in aid of insurrection or rebellion, or any compensation
for loss of slaves; but all such debts, obligations, and claims,
shall be void.
It is readily seen that here are four amendments. But there
is but one vote to be taken on themn
There has been no approval by the President, nor any presentment for approval; but the propositions have been sent to
the several States, the Southern States as well as others, for
their ratification.
It is evident that the two Houses intended that they should
be sent to'" the States lately in rebellion " (as the phrase is)
as well as other States.
If amendments "6proposed by the Congress" require the
approval of the President, these propositions have not been
proposed for ratification in a constitutional mode, and the whole
proceeding is nugatory, at least as regards States not ratifying.
It may be urged that the term "6 the Congress " in this connection, means the two Houses; and that notwithstanding the
proposal is to be by bill, order, resolution, or vote, the approval
of the President is not necessary, because this is not a imatter
of legislation, but a special power, and there is no provision
for passing such a proposition by the two Houses in case the
President should withhold his assent, two thirds of both FHouses
being required in the first instance, and that it could not have
been intended that the proposing of amendments should be at
the pleasure of the Presidenst.
It is quite clear that the power vested in the Congress by the
fifth article is not an ordinary legislative power.
It is a special power. WVe will assume that a proposition
for amendiment has not the character of a legislative act, and
that the assent of the President is not required.
As the power, then, is not one of ordinary legislation, it has




68        TIHE ORIGIN OF THE UNITED STATES, AND
no claim to be governed or construed by the rules which govern
ordinary legislation.
As it is a special power, it must be construed and exercised
with reference to its object, and its operation in relation to the
several States to which propositions for amendments may be
made.
Now, it can hardly need an argument to show that the spirit,
intention, purpose, and object of this provision require that
" the Congrress," if the two Houses propose more than one
amendment, shall propose each amendment as a separate and
distinct proposition, so that no proposed amendment shall embrace two or more propositions, distinct and diverse in their
general character.
The reason for such a construction is obvious.  If Congress
may couple four dissimilar amendments together, this action
may be the means of depriving the States of constitutionlal
amendments, which three fourths of the States desire to adopt,
but which they refuse because coupled with others which they
disapprove; or of imposing upon them the necessity of adopting amendments which they, in fact, disapprove, but which
they vote to adopt rather than lose others in which they have
a great and controlling interest.  And if it may operate in this
way upon the majority of the States, its operation may be much
more objectionable upon the minority, which in this way may,
in other cases, have imposed upon them  amendments against
which they have voted, none of which would have obtained a
constitutional majority if they had been proposed separately.
It is no answer to this to say that the same thing may occur
in the adoption of an entire constitution, which must be
adopted entirely or not at all.  An entire constitution is
almost entirely made up of several parts fitted and joined
together, and in relation to most of these parts they should
stand or fall together, being dependent upon each other. It
is not so with proposed congressional amendments.  The body
of the work has already been adopted.  The amendments are
adjuncts to it.
Moreover, the authority of Congress is not to propose an
entire constitution, but to propose amendments to the existing
Constitution.
Nor can any support of such a course of coupling dissimilar




THE STATUS OF THE SOUTHERN STATES.              69
amendments, be derived from  the fact that legislative bodies,
and especially Congress, are in their ordinary legislation in the
habit of coupling diverse propositions in what is sometimes
called an "6 omnibus bill," which is objectionable in itself. That
cannot be used as a precedent in proposing constitutional
amendments, which, we have admitted, is not an act of' ordinary legislation, nor legislative in its character, but one done
under a special power.
Furthermore: the proposal of an article by which the States
must adopt all or none of several distinct amendments of different natures, and having different objects, while it is contrary
to sound principle, has not only no warrant in the language of
the Constitution, but has no support in any practice under it.
The first and fifth of the amendments which have been adopted
might seem at first sight to countenance such a procedure.
But it does not require a critical inspection to perceive that
each is made an entire thing consisting of several particularso
The first is a prohibition upon Congress to interfere with the
liberty of the citizen by an establishment of religion, or by
prohibiting the free exercise of it, or by abridging the freedom
of speech, or the press, or the right of the people peaceably to
assemble and petition for a redress of grievances~ The fifth is
a provision for the security of liberty and property, consisting
of several particulars; namely, "No person shall be held to
answer for a capital, or otherwise infamous crime, unless on a
presentment or indictment by a grand jury, except in cases
arising in the land or naval forces, or in the militia when in
actual service in time of war or public danger; nor shall any
person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall he be compelled in any criminal
case to be a witness against himself, nor be deprived of life,
liberty, or property, without clue process of law; nor shall private
property be taken for public use, without just compensation."
Another, and a very grave objection to this article of amendiment is, that the first and second propositions tend to change
the fundamental relations of the United States, and the several
States, by an interference with the internal concerns of the
States, certainly not contemplated in the original Constitution.
How far may such a process of amendment be carried, unlder
the congressional power to propose amendments, to be adopted




70       THE ORIGIN OF THE UNITED STATES, AND
by three fourths of the people, or of the legislatures of the
States?
If the people of the whole country had been a nation, from
the Declaration of Independence, with power to adopt a Constitution for the whole country, without regard to that much
abused thing called State rights (and such a power would have
existed on that state of facts), and if the Constitution had been
so adopted, - then Congress, having general legislative power,
might, notwithstanding the special provision of the Constitution
respecting amendments to be proposed to the States, pass an
act to ascertain the will of the people in regard to a convention for the purpose of amending the Constitution, and the convention if called, might put the Constitution into a new draft,
and by a major vote of the whole people State rights might be
obliterated.
But Congress, - under the Constitution, as it exists, adopted
not by any nation, but by the peoples of the several States, who
surrendered some of the powers of the States, and granted
limited powers to the United States, among them this power to
propose amendments, - has no power to call such a convention,
or to provide for any vote of the whole people upon the subject.
Amendments are to be made only in the mode prescribed.
It will hardly be contended, even by the advocates of the
ante-national theory, that Congress, under the special power to
propose amendments, can send forth one for adoption by the
legislatures, or even by the people, of three fourths of the
States, which shall operate to extinguish the authority of the
States, and turn them into counties of the United States. Why
not? Because Congress is not authorized to propose, as amendmzents, provisions which will subvert the Constitution, and the
States which gave it existence.  That would not be an amendment of the Constitution, but the destruction of it. How far
then, may the process of amendment be carried to the prejudice
of the fundamental principles which governed the relation of
the United States to the several States on its original adoption,
as shown by the instrument itself?   I may not answer this
question at the present time, but I commend it to your careful
consideration.
It is worthy of remark here that this article is proposed to
6 the States lately in rebellion."  It is transmitted to State au



THE STATUS OF THE SOUTHERN STATES.           71
thorities under the organization which has been had through the
measures of the President. It is true that it is thus transmitted
to those States by the Department of State; but the article
appears to have been passed by the two Houses of Congress
with the intention that it should thus be transmitted to those
States, for consideration by these very State legislatures.  It
was intended to affect them more particularly than any other
States, and the adoption of it by them was the very thing which
was intended to be compelled by the refusal to admit their
senators and representatives to seats in Congress.
Not only so, but the former amendment abolishing slavery
was in like manner transmitted to those States, to be acted on
by the legislatures under that reorganization through the action
of the President, and was adopted by them, and the act of
adoption received as effectual for the amendment of the Constitution.
Now these facts prove, conclusively, not only that the reorganization through the measures inaugurated by the President
was rightful, enabling the people once more to proceed with
their local elections, and, thus to organize a legitimate legislature not only for local and State purposes, but also for all purposes connected with its existence as a State in the Union.
And if the people could thus elect a legislature which could
receive and adopt an amendment to the Constitution, that legislature might well elect senators, and the people who constituted
it could elect representatives in Congress.
A constitutional amendment can only be proposed for adoption to a State in the Union.  The propositions by Congress,
admit that they are in the Union.  A denial after this, that
these States are in the Union, by any person who assumes to
reason upon the subject, fairly exposes such, person to the suspicion of some little deficiency in the region of the cerebral
organs, or of such an absorbing devotion to party as obscures
any ordinary perception of an unwelcome political truth.








LECTURE  I]I.
THE THREE DANGERS OF THE REPUBLIC.
[Law School of Harvard College, January, 1868. Dartmouth College, April, 1869.1
Gentlemen of the Law School:SOME brief recognition of that portion of the political excitements which have an immediate connection with the laws of
the country, and which must exert an immense force, either for
good or for evil, upon the institutions of government under
which we live, seems to be not only appropriate, but perhaps tol
be demanded of an educational institution designed to prepare,
young men to take an active part in the administration of justice~.
Such men necessarily exercise a great influence upon the destinies of the country.  If you may not control the course of
current events, you may and must do much either in support
of, or in opposition to, the measures which shape the future of
the Republic.
Within the present term  my attention was accidentally attracted to a leading editorial in the New York Evening Post,
entitled, " Some Cheering Signs," in which three signs of encouragement were enumerated and discussed.  The first two
related to the President's discretion, and to changes in the
Cabinet, and were of no material consequence. But the third
was of a wider significance, containing a long extract from the
New York World, upon which much commendation was bestowed. The mere fact that those two papers should agree
upon any political subject, naturally created some surprise,
which was not lessened upon an examination of the extract,
which was introduced by the " Post " in this wise:"In the third place, the democratic party, which conceives itself
on the eve of a splendid national triumph - whether rightly or
wrongly does not concern us here - in considering how it shall consolidate success, secure the future, and discharge the high responsi7




i74        THE THREE DANGERS OF THE REPUBLIC.
bilities implied in success, seems disposed to reconsider its position
and essentially recast its plans of action. In the speeches made
the other night by Messrs. Hofflman and Tilden, but particularly in
an article in the'World' of this morning — an article of great
penetration, thoughtfulness, and candor, which we have read with
unaffected pleasure - we discover evidences of forecast. and of a
sense of duty to the country, which are encouraging.  Listen to
these words, evidently sincere and well considered."
Then follows the extract from the "6 World "  -
"' The democratic party must be wise enough to recognize the
moulding influence of great events on public opinion, and the permanence of some of their consequences.  Even in the most tranquil
times, society and public opinion are in a state of constant, and in a
new country like this, of rapid growth. In a period of convulsive
turbulence and upheaving, opinion advances with an accelerated
velocity.  It is not possible that the mighty struggles of the last six
years should not leave a deep imprint on succeeding times. The
future of this country is not to depend on the opinions of men who
were over forty when the war broke out, but on the opinions of
those who were under thirty. Though built after the same plan,
our older men will say, like those of Israel, that the second temple
is not like the first. We must nevertheless recognize facts. It is a
fact that all theflower of our young men were enzgged in, and educated
by, the war. All the youtfhful vigor, daring, enterprise, love of adventure, thirst for honor, pride of country, marchzed with our armies. In
the army they lived a deeper life than falls to the lot of ordinary sluggish generations.  Their whole manhood was a ]hundred times put to
the proof; the experience of four years was more than the common
experience of a life.  And it came at an age when the character is
yet pliant and yielding; when opinions are either not formed, or
have not settled into dogmatic stiffness. The mould was applied
while the clay was yet soft, and it will continue to bear the impress.
There is an ineffaceable difference between the generation of men
that is going out and the younger generation that is coming in; and
no party which ignores this difference will be in sufficient sympathy
with the rising future to guide its politics.  Our elderly men, whose
habits of thought became fixed before the war, will be every year
deserting, in obedience to a summons they cannot resist. As between the old epoch and the new, they will be a constantly dwindling minority; but as between the living and the dead, they are'passing over to the majority.' Their indurated habits of thought
will pass with them, and the country will be ruled by the generation
whose character was shaped in these later stirring times.
"'""' — ~ —— ~ "~~-~-'`~~"' ~""   ""  ~""'




THE THREE DANGERS OF THE REPUBLIC.               75
6 The democratic party, in its brightest and palmiest days, was
preeminently the party of progress. In spite of the croakings and
forebodings of its opponents, it extended the suffrage to white citizens till suffrage became universal; it abolished imprisonment for
debt; removed the property qualification for office; made the State
judiciary elective; brought new territory into the Union until its
original area was quadrupled; made vigorous war upon the protective system, although many of its early leaders had supported it;
and until the slavery question became predominant, its favorite
employment was to stipply firesh fuel to the engine rather than
to put on the brakes.  In complaisance to its southern wing it made
mistakces on the slavery question and lost the advantage of leadership.
lz its attempts to prevent opiniosn advancing too fcast it fell beihind;
and there could not be a more Jcttal blunder, at present, tihan an attemJit,
to carry the public opinion of thze country back to the point where it
stood when, to save the train friom  destruction in moving down a
declivity, the democratic party went fiom the engine to the brakes."
Upon which the "' Post " thus comments:" What does all that mean?  Why, that copperheadism, which
has made the democratic party odious, must be thrown overboard;
that a dead and stagnant conservatism is to be abandoned; that the
old pro-slavery affinities, which have been a clog and a mlistake,
must be cut loose, and that the life and vigor of the young men of
-the nation, of the men who fought the battles of the Union, must be
taken as the inspiration and guide of policy. We congratulate the
World on the gracefulness with which it lets itself down, or, more
properly, on the manliness with which it raises itself up to the position which the Evening Post long since predicted it must occupy
if it and its party wish to place themselves on a level with the real
democratic sentiment of the nation."
There is certainly a significance in this.  These papers
claim to be among the leading journals of the country.  And
such positive assertions respecting the future of the democratic
party, by the leading conservative paper of that party, -  assertions which cause such jubilation in the radical organ of the
other wing, -  so radical that it has differed in nothing froml
the most superlatively radical of the republican, press, except in
the name, -  must have a meaning respecting the course and
policy of the country, of a very important character.
It is true, tlhat the matter is vague enough in some of its
particulars.  But in others it is clear.




76         THE THREE DANGERS OF THE REPUBLIC.
There is, or is to be, a new epoch. The future of the country is not to depend on the opinions of men who were over
forty when the war broke out.  The opinions of men z~under
thirty are to be the ruling opinions.  They were educated by
the war, and have lived a deeper life than falls to the lot of
ordinary sluggish generations.  In the army, within the period
of four years, they have had more than the common experience
of a life. Their characters were then pliant and yielding. The
mould was applied while the clay was soft, and the impress exhibits an ineffaceable difference between the incoming and outgoing generation, which last is to become a constantly dwindling
minority among the living, but with the encouragement that its
members may, by dying, attain the acme of a politician's aspirations, that is, pass into the  naj'ority.  "Their indurated
habits of thought," it is stated, "' will pass with them," which
is, I suppose, the democratic mode of expressing the scriptural
benediction, 64 their works do follow them."  The country is to
to be ruled by the "6 generation whose character was shaped in
these later times."
So far, so clear.  Curiosity might inquire whether persons
overforty, who administer a sufficient amount of flattery to the
men under thirty, who have acquired such a large experience
in the science of government by serving four years in the army,
are not expecting to share in the offices, and whether those
men under thirty, whose characters have received the mould,
and will continue to bear the indelible impress (and who of
course must have their indurated habits of thought by the time
they are forty), are, in the same remorseless way, to be consigned over to that majority which never troubles the active
politician, giving way to another set under thirty, who, in
order to possess equal qualifications, must be educated in
another war, in which they can obtain the experience of a
long life in four years?  But I am not curious on these subjects.
You will note that all this is said of those portions of the
incoming generation which participated in the active service of
the war, not in relation to the acquisition of vigorous constitutions,
readiness of action, strong will, and manliness of character, but
in regard to the experience and qualifications which will enable
them to govern the country, to mould anew its, institutions, to
direct its policy, and to shape its destiny.




THE THREE DANGERS OF THE REPUBLIC.            77
There is to be a second temple, which our older men will
sav is not like the first.  The worship, of course, is to be
adapted to the new order of things, and I have anxiously explored the text, and the commentary, to ascertain, if possible,
wherein the temple and the worship are to differ from those of
the fathers.
The oracle of the text, and the oracle of the commentary
are to some extent uncertain, but by a careful study we gain
some insight into our future.
The democratic party, which was preeminently the party of
progress, is to be so again. Copperheadism (the true signification and meaning of which term, in its most usual application
to persons at the North, is, ardent disinterested pacttiotism, and
sincere love of the country and itspolitical institutions,) is to be
thrown overboard; the conservatism which fears untried experiments upon the institutions founded by the fathers, is to be
abandoned; the wisdom of the past is to be ignored and disregarded; the life and vigor of the young men who fought the battles of the Union are to be the inspiration and guide of its policy.
The talk about cutting loose from  the old pro-slavery affinities is mere clap-trap, unless it means that we are to have no
consideration for the people of the Southern States; for slavery
having been abolished by an amendment of the Constitution,
there can be no pro-slavery affinities to cut loose from, and
there can be no blunder, fatal or otherwise, of returning to a
support of slavery.
But the democratic party is not to attempt to carry the public opinion of the country back to the constitutional principles
which were admitted and acknowledged before the war, - it is
not to commit the fatal blunder of putting on the brakes, when
the train is running down a declivity, even to save it from destruction, -but it is to follow up its favorite employment of
supplying fresh fuel to the engine, and to hasten with increased
velocity on the downward grade.  In other words, it is to enter
into a lively competition with the radical wing of the republican
party, in the hope of once more obtaining the Presidency and
Treasurership of the company, and the power of appointing the
engineers, conductors, ticket sellers, switchmen, lamplighters,
&c.
Well, the track of a nation, like that of a railroad, is not a




78        THE THREE DANGERS OF THE REPUBLIC.
straight, level, smooth line for any great distance.  It has its
deep cuts and embankments to run through and over, its curves
and its sidings, its defective rails, and its occasional obstructions.
Upon the principle suggested, the trackmen and the switchmen
should cast away their old conservatism, as well as the engineers.  The conductors must busy themselves exclusively in
collecting and pocketing the fares, -and the national train
must rush down the declivity at a rate of speed never before
conceived of in the progress of nations.
If a bent axle causes an Angola disaster, by which a train is
thrown down an embankment and the imprisoned passengers
burned alive, what must be the terrible catastrophe and ruin,
the horrible torture of those who are crushed to death under the
wreck of the nation, and what the lamentations and wailings
of the survivors, which must inevitably follow a national progress like this!
But, dropping the very significant metaphor in which these
advocates of progress have seen fit to clothe their conceptions
of the glorious future, to which they are to add their contributions, - let us inquire in plain prose, what is to be done, in fact,
by this party of progress.
We are left to learn this in a great measure by what it is
said has been clone by the democratic party heretofore.  What
it has done, it may continue to do, so long as there is room for
its enterprise.  We are told that it extended the suffrage to
white citizens until it became universal.  This is certainly a
strange declaration, in the face of the fact that all the young
men who in the army led that deeper life, four years of which
better qcalifies a man to guide its politics, than the common eoperience of a whole life passed elsewhere, have not yet a constitational right of suffrage, unless they have attained the age of
twenty-one years.  If suffrage is to be made universal, there is
much to be done here.
Next it is said that the democratic party abolished imprisonment for debt.  That, certainly, is not to be done over again.
The only progress to be made in this line is to abolish imprisonment for non-payment of damages for wrongs committed
(if it has not already extended to that), which would make no
very marked change in the life of the nation; and to abolish it,
likewise, as a punishment for crimes committed, which certainly




THE THREE DANGERS OF THE REPUBLIC.            79
would be progress in some direction. The property qualification for office having been removed, no progress seems necessary
in that direction, except to secure the offices.
An elective judiciary! Progress may still be made there by
electing the judges annually, by a popular vote. But that matter comes home so nearly to men's business, that even those who
have lived the i" deeper life " will hardly trifle much with it.
An elective judiciary has been generally found to be an error,
except in Vermont, where the judges are elected annually by
the legislature, and where the' have a practical remedy for a
bad constitution, by reilecting their judges, as a general rule, so
long as they are qualified.
Bringing new territory into the Union! Here is an ample,
field for a very mischievous progress, - sure, if pursued, to be
attended with its legitimate consequences.
Vigorous war upon  the protective  system!  Until the
national debt is either paid or repudiated, this cannot well be
a war to the knife. Progress here must be very tortoise-footed.
This is the summary given of the progress heretofore made
by the democratic party.  What new worlds there are for it to
conquer, hereafter, does not appear.
I have taken this text and commentary as an exponent of the
spirit of radicalism, not merely on account of the importance of
the sources from which they emanate, but because they are in
accordance with many kindred utterances, and indicate, in a
general way, the platform on which the radical spirit of progress
seeks to retain its power; and the purpose which it designs to
accomplish.
Utterances like these, through the press, in the halls of Congress, in conventions, and wherever else mere politicians make
themselves heard, may serve to show us three, -I think I may
say — the three great dangers of the Republic, two of them
shadowed forth in some of the objects which are apparently to
be attained, - the third, being the moving cause which produces all this agitation about progress, by the parties who for
selfish purposes seek to excite a self-sufficiency in the younger
generation, and to lead them to despise the indurated conservatism of any one over forty years of age.
The dangers to which I allude, are —
1. An undue extension of territory.




80        THE THREE DANGERS OF THE REPUBLIC.
2d. An undue extension of the right of suffrage, - and
3d. An undue desire for office, - a hankering after place and
power, not to serve one's country, but for the promotion of selfish purposes, - this last being the greatest danger of all.
It is something more than three quarters of a century, since
the formation of the government of the United States; and
these three quarters of a century may serve very nearly as
three epochs in its history.
It was formed by the peoples of the several States, as a substitute for the Confederacy, to which they had surrendered a
very limited portion of the sovereignty of their several States,
and by a surrender of a further portion of that sovereignty for
the purpose of endowing it with sufficient power to accomplish
the purposes of its formation. The peoples of the several States
were very tenacious of their rights under the State governments,
- in many instances surrendered them with extreme reluctance,
and with great fear that the powers granted would be used or
abused, to the subversion of the rights of the States and of the
people.  And by amendments to the original constitution,
adopted immediately after the government was organized and
which it was understood would be adopted when the Constitution was ratified, they placed, as they fondly supposed, such
express limitations upon its power, that the sovereignty of the
States and the liberties of the people were reasonably secured.
Still its operation was watched with no little jealousy.
Notwithstanding the men to whom  its administration was
committed in the first instance were of eminent ability, actuated
by the purest patriotism, and who exercised their untried powers
with the greatest caution, questions of construction in regard to
different clauses of the Constitution necessarily arose from the
outset; and a great question respecting the final arbiter for
the determination of such disputed questions, - or according to
the phrase of the day, the question, what was the remedy for the
abuse of its powers, - which has since led to attempts at nullification, and finally furnished the foundation for the rebellion of
1861, - was the subject of virulent controversy, upon which
parties divided within the first ten years of the existence of the
government.
The territory of the United States was then limited, on the
South by the Floridas, on the West by the Mississippi, (the




THE THREE DANGERS OF THE REPUBLIC.            81
western bank of which was in the possession of Spain), and by
the territorial possessions of Great Britain on the Northl; and
within these limits there was vacant space enough, so far to
satisfy the people of that day, that no provision was inserted in
the Constitution having in view the acquisition of further territory, - although, through the power to make war, the power
to form treaties, and to make regulations of commerce, acquisition of territory undoubtedly might be made.
It must have been evident that some provision would eventually become necessary for the commerce of the Mississippi,
but no one was bold enough to propose the insertion into the
Constitution of a clause directly authorizing the acquisition of
additional territory for that purpose.
During the first period of twenty-five years, Louisiana was
acquired, as a necessity, to secure a post at the outlet of the
Mi[ississippi river, but under a stormy opposition, so strong on
the part of a distinguished representative from Massachusetts
that he declared it as his deliberate opinion that if the purchase
was consummated the bonds of the Union would be virtually
dissolved, that the States which composed it would be free from
their moral obligations, and that as it would be the right of all,
so it would be the duty of some, to prepare definitely for a
separation,' amicably if they can, violently if they must."
Here is the assertion of right of secession or of a right of revolution, for an alleged usurpation of power by the General Government, in the extension of territory, comprised within the
limits of a nutshell, and coming from a representative of Massachusetts without rebuke from his constituents.
The second period was one of comparative quiet, and of
general prosperity. It seemed as if the experiment was no
longer problematical.
But in this period Florida was purchased, to give greater
facilities for navigation upon the Gulf. "' The extension of the
area of freedom " had lost some of its terrors.
The third period was one of political storm  and tempest,
embracing near its commencement the annexation of Texas,
and the acquisition of California, - and ending in the rebellion
of 1861, which, we are all well advised, shook the Union to its
foundations, and for a long time gravely threatened its disruption.
After all that has been said of slavery, as the cause of the




82        THE THREE DANGERS OF THE REPUBLIC.
war, and important as was the part which that institution had
in producing it, - and after making all allowance for conflicting industrial interests as furnishing the primal reason for it,
— we may, I think, safely conclude, that but for acquisition of
Louisiana and Florida, and perhaps of Texas also, that war
would never have had an existence.
I shall not detain you by arguing this matter in detail, at
this time. I think a moment's reflection will convince you, that
confined within the original limits, or, with the addition of a
small territory at the mouth of the MIississippi, the people of
the Southern States could never have so overestimated their
strength, as to enter into a contest with the rest of the Union.
The acquisition of California has, thus far, given strength to
the Union instead of subjecting it to peril.  Whether the
end of the fourth epoch may find the same state of things, is
known only to Omniscience.
But we must note the facts, that the territory west of the
Rocky mountains is fast filling with a busy, enterprising population, - that there is territory there sufficient for an empire,that the direct means of intercourse, even after the Pacific railroad shall have connected the two sections, will be very limited,
-— and that the difficulties of contending with a formidable rebellion there would be almost insuperable.
Alaska is, of itself, comparatively unimportant, in reference
to this question.  It is not likely of its own weight to sever
itself fiom  its connection with us, if that be consummated.
But it may furnish a convenient appendage to California and
Oregon, whenever the people of those States throw off their
allegiance.
It seems that the warnings of history, and of our own experience, are to be lost to us.
Our plans of aggrandizement, through an extension of our
territory, are apparently to have no limit.
We are to 6" take up the isles as a very little thing."  And to
annex South America, if not by a single operation, at least by
large sections.
How  far are we to extend in that direction without disunion?
The Southern States, although wasted and impoverished by
the war, are once more to become prosperous, - more so than




THE THREE DANGERS OF THE REPUBLIC.             83
ever before. Even the members of the party of progress are
desirous of that, when they shall have fitted those States for
political freedom, by such a proper adjustment of the suffrage
as will secure to that party the offices and emoluments.
Will it not be well for us to recollect, that there was another
army, in which the young men also lived that deeper life, and
acquired the experience of the same four years; that we are
teaching them to continue our enemies, instead of endeavoring
to make them our friends, - that if they complained of wrongs
before the war, they are not likely to consider them redressed by
the peace, still less by the measures of reconstruction since the
peace, -that this hostility has been already sufficiently fostered
by those measures, to be transmitted by inheritance, even unto
the third and fourth generations, - and finally that every acquisition of territory on their Southern borders, is but adding strength
to the next rebellion, for which we are daily educating them or
their descendants, through the hatred which we teach them.
I turn next to the second of the dangers which I have enumerated:The undue extension of the right of suffrage.
Suffrage, in a republic, is a personal power of government, -
the primary power. The people by their votes elect persons to
represent them in making the laws, because it is impracticable
that this power, the most important of all, lying at the foundation of government, can be exercised directly by the great body
of the people.
In the exercise of this power, each one does, or may do,
something towards the government of all the other members of
the community. His vote may determine who shall be the
successful candidate; and the successful candidate, in the exercise of his office, may determine the passage of laws which
affect the property, and persons, even the life, of other members
of the community.
The proposition, therefore, that there is a natural right of
suffrage, is a proposition that there is a natural right in one
man to govern others, subject, it should be added, to a natural
liability to be governed by others. Advocates for the natural
right do not appear to be anxious to sustain the liability.
It makes no difference that the right is exercised along with
others who have similar rights of suffrage.  It is claimed as a




84         THE THREE DANGERS, OF THE REPUBLIC.
natural, personal, individual right.  But this exercise of the
right with others, is certainly not a natural right.  A community does not exist by nature.  It is formed by association.
I do not know who is entitled to the paternity or maternity
of the proposition that suffrage is a natural right, but the assertion of such a natural right argues either an ignorance of the
nature of suffrage, or a disposition to use the proposition to
serve the purposes of party, or of selfishness; and in either
case it may well be presumed to have had its origin in Congress, - unless it be supposed that it is the offspring of some of
the political lady stump speakers, who are clamoring for their
natural right to govern others, before they have learned the
way to govern themselves.
I do no injustice to any one. If there are few who express
the proposition in these precise terms, there are many, some in
Congress, and some out of that body, who have been clamoring
for universal suffrage; and the propriety of universal suffrage
can be based only on such a natural right.
But there is, and can be, no such thing as universal suffrage.
Those who clamor for it do not mean what they say.
Universal suffrage should be at least a right of suffrage in
every one who could carry a ballot. In fact the child who is
old enough to know and remember its own name is better qualifled, in some respects, to exercise that right, than many of
those upon whom Congress has assumed to confer it.
But every one, - even those who sustain universal suffrage,
- will admit that there must be some limit. What, then, is the
limit of that, which it is said, ought to be universal? Twentyone years of age, even among negroes, seems to be admitted.
What else?
The rules, before the adoption of the Constitution of the
United States, were different in the several States.
In some a freehold estate was required for its exercise.
In some a large, in others a small, property qualification.
The original rules in the different States continued for a long
period. Changes came by an extension of the suffrage; in new
States by way of bidding for settlers, - and in the old by way
of bidding for votes.
These extensions have carried the suffrage beyond the line
of a safe policy.




THE THREE DANGERS OF THE REPUBLIC.            85
Persons unacquainted with our institutions, unqualified to
participate in the governlment,, come into the possession of
political power almost immediately after their arrival in the
country.
More recently greater extensions have been proposed, and
some of them adopted.
The principal of these are female suffrage, and negro suffrage.
Female suffrage, the exclusion of which has been almost universal in all ages throughout the world, is in its present day
and generation the offspring of a few masculine females, in conjunction with a small number of feminine males; and by the
careful nursing of peripatetic petticoat demagogues, and the
dandling of hermaphrodite aspirants for Congress and the State
legislatures, has become a child of large proportions, claiming
rights, and prepared to take an active part in the race of political contests for supremacy.
If it is not yet a power in the state, it claims to be a powerful agitation.
If there were a natural right of suffrage, I am not sure that
the claim of female suffrage could be denied, for there is certainly physical power sufficient to deposit the ballot, and surely
I shall not be so ungallant as to contend that there is not, on
the part of the women of the country, sufficient intelligence to
enable them to vote as wisely, and discreetly, as their masculine
compeers. I have no doubt that there are thousands and thousands of instances where the wives would vote more intelligently and conscientiously than their husbands do, at the present day.
But as I do not believe that suffrage is a natural right, I may
be allowed to make a suggestion or two on this subject.
God does not appear to have designed women for voters.
Biblical history furnishes us no precedents of that character.
When Abraham sent Hagar into the wilderness, with a loaf of
bread and a bottle of water, it was not in consequence of any
vote which had been taken in the household on the subject.
He was submissive to the despotism which ruled his action in
that matter.
The Queen of Sheba came to prove Solomon with hard questions.  We do not read that she propounded any respecting
8




86         THE THREE DANGERS OF THE REPUBLIC.
female suffrage, or that any suffrage of that or any other character existed in her dominions.
Ancient history seems to present female political power
wherever it appears, as despotic in its character, and I am free
to confess, that if we must have a despotism, I very much prefer one of this character, rather than a congressional despotism.
Artemisia and Zenobia, however otherwise distinguished, do
not appear to have made any stump speeches in favor of the
ballot.
Christianity, which has heretofore been supposed to have
assigned to woman her proper sphere in creation, made no provision for ally right of suffrage.  But those persons who a few
years since desired an anti-slavery Bible, and an anti-slavery
God, may perhaps wish still farther to improve Christianity by
other Bibles and other'Gods, and among the new revelations of
this description we may yet have a dispensation which shall
include the right of females to a participation in the ballot box.
If there was any natural right of suffrage appertaining to
womanhood, we certainly should expect to find it when the new
commonwealths were founded on the shores of Massachusetts.
But there is no evidence that any such right of suffrage was
exercised on board the Mayflower.  The names of the heroic
women who accompanied their husbands to the hardships of the
wilderness, and who perished in the inclemency of the winter
at Plymouth, are not found subscribed to the celebrated compact which gave a republican government to that colony.
We read in the eloquent words of a distinguished son of New
Hampshire, of 6" chilled and shivering childhood, houseless but
for a mother's arms, couchless but for a mother's breast;' " but
there was no balloting there, nor any female suffrage in the
subsequent history of the Pilgrirns.
The beautiful Priscilla iMullins, who so natively inquired of
that personable gentleman, Mr. John Alden, why he did not
speak for himself, instead of playing the suitor in behalf of the
valiant, but not good looking man of war, Miles Standish,
never carried a ballot in all the popular elections of the Colony.
If we turn to the Puritan Massachusetts Colony for evidence
of natural right, we meet with no better success.
The Lady Arabella Johnson, almost worshipped among the
emigrants, neither exercised nor claimed any right of suffrage.




THE THREE DANGERS OF THE REPUBLIC.              87
If it finds no place in ancient history; if it finds no support
in Christian teaching; if it was unknown to the early settlers
of New England; if, in fact, it is substantially but the modern
offspring of the enterprising female of the present generation,
it is clear it cannot be maintained as a natural right.
Considered as a question of expediency, and not of natural
right, there are some grave objections to this extension of suffrage, which have not been fully considered.
Theoretically, at least, all candidates for office should stand
upon a reasonable equality.
The first effect of admitting female suffrage might well be
expected to be, the removal of all candidates of the masculine
gender over the age of, say, about forty years, more or less,
from the pale of the candidacy.  Young America has already
done this to a large extent, and it seems is to do more, through
and in favor of those who in four years lived a longer and
deeper life than other persons.  Female suffi'age would finish
the work, and set the seal of proscription upon most semi-centenarians.
Even ladies of a mature age love to look upon the face of a
comely, personable young man, and of course such must find
favor princa facie in the political canvass.
Gentlemen of riper years may have the support of a few friends
wvho have known them  in their youth, or are connected with
them  by ties of consanguinity, or personal fiiendship.  But
wrinkled faces, and gray hairs, cannot be expected to awaken
any intense enthusiasm in the great body of female voters.
Let not the young man, however, rejoice in his youth, until
he has considered whether his features have the requisite synimetry, and if not, whether he can present as qualifications for
office a splendid pair of- whiskers, or an exquisite - mousy
tache.
Even then there must be perils to be encountered.  The
canvass must be delightful, the visitings and solicitations for
votes, - only there may be several Richmonds in the field,
and consequent difficulties and uncertainties respecting the
final result.  But the contemplation of the ultimate possible
consequence is awful.
You know that actions for breaches of promise to marry may




88         THE THREE DANGERS OF THE REPUBLIC.
be sustained by circumstantial evidence. Fancy a successful
candidate with a round half dozen of such actions on his back,
when he has performed the express promise which he made in
order to secure not only the vote of the promisee, but the
influence which it was understood she could exert among an
extensive connection.  This is bad enough.  Just imagine half
a dozen unsuccessful candidates in the same forlorn predicament,
exposed to all the dangers of circumstantial evidence, the success
of one action being no bar to the others.
But I am forgetting that the primary causes will reduce the
candidates to two, unless some one relies upon his qualifications,
or his friends, to support him against the caucus, and runs as
an independent candidate.  An independent candidate! with a
female constituency! The thing is absurd.  His will be the
most dangerous candidacy of all.
Tilhe caucus, however, presents preliminary dangers of a similar character, and perhaps of as great magnitude.  The women
who enjoy the right of suffrage must make that right effectual
in their hands.  They must attend the caucus.  If they have
the ballot merely to vote for candidates selected by what is
so6me.imes'alled the " opposite sex" (no longer so, bowever, if
of our party), it would be but as a niirage  "'lI t116 desert to a
thirsty traveller.  Of course there is a similar influence to be
exerted, on a smaller theatre to be sure, in order to get the
nomination of the caucus, or to secure an election as a delegate
to the convention which makes the nomination.
But the struggle for office is not to be all on one side of the
house.
The female stump agitators who are so clamorous for the
right to vote, have no intention to stop there.  Their desire is
quite as strong, even stronger, I think, to be voted for, than to
vote for others.  Of course.  Why not?  We have, then,
women at the primary caucus, to nominate for the officers who
are to be elected by the political division which the caucus represents, - and to select the delegates to the various conventions,
senatorial, gubernatorial, and  congressional.  Ordinary fair
dealing will require that there be an equal representation.
Nothing less than that ought to be satisfactory.  Ordinary gallantry will yield something more. The masculine portion of
the nominating conventions cannot be so unmindful of the




TIE THREE DANGERS OF THE REPUBLIC.             89
power of the fair half of the community as to refuse to concede
at least a full half of the nominations to the candidates of the
fair delegates. ~WVe should certainly expeet much more, as there
comes in here the rivalry of the two political parties, each bidding for the support of this great power in the state.
And then we have next the canvass by the lady candidates,
and their friends.  There may not be so many elaborate stump
speeches by the candidates which would be an advantage, - but
other influences may be brought to bear uponl the constituency.
The Duchess of Devonshire (in the reign of George III.)
was a very beautiful woman, and a politician withal.  She had
not the right of suffrage, but she could influence those who
had, and so she personally canvassed the borough in favor of
Mr. Fox. Applying to a butcher (the story says), he answered
that he would vote for her candidate if she would let him kiss
her.  She secured the vote!
If womanhood suffrage is admitted as a power of government, manhood suffrage and womanhood suffrage may not in
all cases stand side by side in the contests for political supremacy.
It is not likely that the one will be arrayed en zmasse against the
other, for reasons "' too numerous to mention," but the instances
will not be rare, in which a man's political foes will be those of
his own, or of his wife's household, as the case may be. If
women are to be invested with the right of suffrage, it is that
they may exercise it, and if they vote, they will canvass the
district, man fashion and woman fashion also.
If they vote they will certainly become partisans, zealous
partisans, as it is their nature to be, in whatever cause their
sympathies are enlisted.  Those persons, if any such there be,
who expect that women, with the ballot in their hands, will
purify the atmosphere of the hustings, and cast the oil of concord on the angry waves of party contention  and political
strife, may well take a fresh observation, and correct their
political reckoning.  Women who are disposed to cast their
votes for honest candidates who will fill the offices with integrity,
will soon be denounced by flippant stump orators of their
own sex, as copperheads, cobras, or some other venomous kind
of serpents, and will retire froim the field of partisan politics, -
where neither their influence nor their votes can be of any
benefit to the state, - disgusted with the tricks and corruptions




90        THE THREE DANGERS OF THE REPUBLIC,
by which they find themselves surrounded, as many men have
done and will continue to do.
All the reports which have reached us at the North represent the women of the South, exceptions of course, as among
the most ultra of the secessionists, and of the advocates for the
prosecution of the war to the bitter end; and, so far as the
newspaper reports may be relied on, the female haranguers who
stumped the Northern States, during the war, and who still ply
their vocation in the service of a political party, were not a
whit behind the chiefest of their Southern sisters in their
denunciations; pouring the seven vials of their wrath not only
upon the heads of the Southern white people, but upon all
those at the North who failed to come up to their party standard.
The way some of them "' pitched into " (I think the phrase is
appropriate in this connection) everything in the shape of constitutional law, so far as that law interposed any obstacle to their
wishes, was a caution to constitutional law to keep clear of their
path.
It is idle to expect that they will falter in the political;6 race
of diligence " set before them, when they hold the ballot.
In times of strong party excitement men almost in extremis
are carried to the polls to deposit their ballots.  Why not
women?  Aspirants for office are always jubilant over the
creation of a new one. Doctors are not exempt from ambition,
and female suffrage may lead to - medical appointments in the
interests of the party.
The inquiry may naturally suggest itself, whether, under
such a dispensation, there is any extra danger that the officer
elected may be, for a time, unable to discharge the duties of
the office.
The duties of senators in Congress extend through a period
of six years.  Those of representatives in Congress, and in
some of the State legislatures, for the term of two years.  We
always take the risk of disability by fever, and gout, and congestion, and all the kindred ills "' which flesh is heir to."  There
is no insurance against such things. Here nmay be an additional
disability.  Well! - we must take the risk of that also.
The right and privilege of governing the country carries
with it the duty of defending it by force of arms if necessary.
In fact, this duty is generally considered as extending to males




THE THREE DANGERS OF THE REPUBLIC.           91
who have the protection of the government, even without a
participation in its administration.  If, therefore, women are
admitted to the right of suffrage, and have all the rights of the
men, why shall there not be a corresponding duty to carry arms
and fight? There have been Amazons. Few, I think, since
the invention of gunpowder.
But here is a new dispensation.  When war comes, there
will be questions of uniform, arms, equipments, and organization. Shall the usual habiliments of the sex be discarded, and
the women train and fight, as they vote, " promiscuous "? Some
objections are obvious.  The morality of the camp would
hardly be promoted by such an organization. Shall they form
a separate corps, retain the female costume, and march into
battle with all its impediments?  The enemy can hardly be
expected to respect the sex, marshalled in hostile array, and
when the shot whistle, and the shells burst, the petticoats may
be expected to fly, in more ways than one.
After all, the danger to the republic from the extension of
suffrage does not lie in this direction. The disgust of the great
body of masculine office seekers, at the prospect of yielding one
half of their claims for office and plunder, coming in aid of
common sense, is likely to constitute an effectual bar against a
measure which might initiate such a state of things. With all
the declamation about universal suffrage, and impartial suffrage,
-- with all the vehement advocacy of negro suffrage, because
that may be made available to accomplish selfish purposes, -
womanhood suffrage finds but a very limited support in the
halls of Congress. Perhaps some of the leaders have found
that in the nature of things there is no majority of two thirds
to pass any measure over a petticoat veto, and are therefore
more inclined to suppress even the primary power of a feminine
will in household matters, than to clothe a refractory consort
with a right of suffrage which might be personally antagonistic.
Over and above all, the great body of sensible women
do not desire so far to depart from the political and social position which Christianity has assigned to them, as to mingle in
the strife and turmoil of partisan politics.
But Congress has assumed to confer the right to vote for
members of conventions to form constitutions upon the negroes
of the Southern States, - upon persons who do not know what




92        THE THREE DANGERS OF THE REPUBLIC.
a constitution or a convention is, - upon persons who are ignorant of the nature of the election, — upon persons who do
not know a month afterwards what the names were which they
registered, under somebody's superintendence and guardianship,
in order to secure a right to vote.
It is very easy to throw over all this the veil of a flimsy pretelice that it is but a measure of justice to them,- that it is
the only way in which they can be protected against the oppression of their old masters, - that they are entitled to it because some of their race fought the battles of the Union, and
performed good service.
Undoubtedly some of them, picked up in various parts of
the country, stood where the bone and muscle of the radicalism
of Massachusetts ought to have stood, if it had had any bone
and muscle for such a purpose.  So persons imported from
Germany stood as Massachusetts soldiers in the battles of the
Wilderness, and were shot down by scores before they knew
enough of English to understand the orders of their commanders, or even knew why they were there. Shall the freedom of
Massachusetts be sent to the people of Germany for that reason?
I speak thus unceremoniously of the radicalism  of Massachu?
setts because it has been foremost in breaking down the safeguards of constitutional law, not with the bold utterance of
Thaddeus Stevens that lie would not stultify himself by pretending that the measures he supported were constitutional, -
but generally under the hollow pretence that the Constitution
authorized all the unconstitutional measures.
The earliest threat of disunion was an utterance from Massachusetts.  The only successful nullification of the Constitution and laws of the United States came from  Massachusetts,
in her "personal liberty laws."  The unconstitutional theory,
by which the war powers of the Constitution trampled civil
rights in the dust, had a Massachusetts origin.  The notion of
State suicide, was a Massachusetts "felo de se." The disregard
of constitutional history in the allegation that the colonies became an entire nation on the declaration of independence, and
that this entire nation formed the Constitution of the United
States, leading to a mischievous enlargement of the power of
the General Government, if it did not originate in MIassachusetts, has had zealous advocates within her limits.  And all the




THE THREE DANGERS OF THE REPUBLIC.             93
unconstitutional measures respecting reconstruction have found
an unfaltering support within her borders.  If all these unconstitutional measures and theories have not been the acts of the
State of Massachusetts, she has given an unwavering adherence to the persons who promulgate and sustain them.
Let iMassachusetts stand up and face her history, and not attempt to shirk its responsibilities by pretending that these unconstitutional measures and theories are founded in sound principles of constitutional law.
Has there been any fair trial whether the white people of the
South would mete out as full a measure of justice to the negroes,
under their new condition as freedmen, as they are likely to attain under the acts of congressional reconstruction? No, no; it
is neither justice, nor gratitude, which is at the bottom of all this.
The white vote being so restricted, under pretence of participation in the rebellion, as to give the negro vote a preponderance suited to the purpose, it is expected that the conventions, managed by a few white men who are devoted to the
party and desirous of securing the offices, will so construct the
State constitutions that the States will be properly reconstructed to sustain the views of the radical managers, and seui;wi th*asm the tuipport of the Southern States,
Tbis is tie natural exercise of thie latutral right of suffrage,
pertaining to the negro. This is the manhood suffrage clamored
for, - which makes the negro a tool of designing demagogues,
and expects to overcome the will of the people who have understanding enough to exercise primary political power, by a
pretence of equality as hollow as it is mischievous. I make no
opposition to negro suffrage because it is negro suffrage.  I
have shared the right with the negro all my life without objection.  But immense numbers of the emancipated slaves are too
ignorant to comprehend the nature and character of suffrage.
Looking at the matter superficially it might seem  somewhat
strange that there has as yet been no effort to give the right of
suffrage to the young men who are between eighteen and
twenty-one years of age.  Many of them  served with great
credit to themselves and great benefit to the country during
the war.  They have infinitely more intelligence than tens and
hundreds of thousands of those who it is contended have a just
right to it, and upon whom Congress has attempted to confer it.




94        THE THREE DANGERS OF THE REPUBLIC.
The age of twenty-one, at which the minor attains his majority, is an arbitrary period, coming to us, as a limit from what,
in the broad sunshine of our deeper life, we designate as the
Dark Ages. Why not denounce the rule as a relic of barbarism,
- remove the period of nonage to eighteen, or even sixteen,
and thus give to the world another emancipation, and that of a
more intelligent population, better qualified to exercise this
right of suffrage?  The deeper life of the young men who between the ages of sixteen and twenty-one fought the battles of
the Union, and which so preeminently qualified them to direct
the destinies of the nation, would seem to demand it.
But no, the negro of the South is the chosen vessel designed
by nature for, and invested by Congress with, the primary
power of government.  In addition to the right to make constitutions in the States, - the general right of suffrage has
been bestowed upon the negroes of the District of Columbia;
and this is perhaps within the province of Congress under its
general power of legislation over the District.  Far be it from
me to say that they will not vote as wisely and as honestly as
many white persons who vote (not for men, but for measures)
within the same District.
Undue extension of the right *of suffrage tends to lessen its
value and to make its exercise a matter of bargain and sale.
Evils of this description have increased within the last few
years, and are of perilous magnitude at the present time.
When we shall have attained to the conviction that suffrage
is a right derived from Association, and that it is the primary
power of a republic to be exercised for the purposes of establishing  and maintaining good  government, - and therefore
rightfully to be exercised by persons qualified for its exercise,
whether negroes or white persons, and none others, - we shall
have learned the first principle which lies at the foundation of a
republican government. - If we can then make a practical application of the principle we shall have done much to secure the
perpetuity of our institutions.
But how is it possible that a majority of those who now by
constitutional provisions or statutes possess this right are to be
persuaded of the truth of the principle, and that their own interest requires reform, while there are so many demagogues
whose interest it is to mislead them?  And until such a con



THE THREE DANGERS OF THE REPUBLIC.              95
viction reaches a majority of the voters how is the reformation
to have a commencement?
Even if the principle were accepted as true, there are difficulties attending its application, inasmuch as there is no practical standard by which a precise and definite admeasurement of
qualifications can be made in each particular case.  But there
may be an approach to it, Property qualifications are unsatisfactory, and yet the acquisition of property furnishes some
evidence of intelligence, and the possession of property gives
an additional interest in the maintenance of government, the
protection of property as well as of persons being among the
duties of government.
Massachusetts is entitled to the credit of having done something in the right direction when she required as a qualification
that a person should be able to read and write, but even this
restriction has caused great dissatisfaction among the class who
clamor for manhood suffrage.
I will dismiss this branch of the subject at the present time
with an extract from  the New  York Times, a paper which
has the difficult part to play, of attempting to maintain some
adherence to principle, and at the same time to keep within the
ranks of its party.
"c;Universal Suffrage South."
"Universal suffrage, - exercised with independence and intelligence, - may be regarded as an indispensable element and condition of republican government. But experience shows that it may
also be made a most powerful and fatal weapon, in the hands of unscrupulous power, to crush out all real liberty and bolster up an
arbitrary and irresponsible tyranny. The Emperor of France has
founded his throne upon universal suffrage. There is no country
in the world where the suffrage is so absolutely free and universal,
as in France; and there is no government in the world more arbitrary than that which it has established. The reason is that the
suffrage of the people of France, instead of being independent, is
simply the tool which the central authority uses to accomplish its
own purposes. The great mass of the French peasants are ignorant,
utterly without experience in affairs of government, dazzled by traditions, credulous of promises, and responding -promptly and subserviently to appeals, representations, and demands made upon them
from imperial quarters.
" At the elections the agents and committees of the Emperor




96         THE THREE DANGERS OF THE REPUBLIC.
issue their letters of advice, - their arguments sustaining their theories, - their glowing pictures of the condition of the country, and
their still more glowing promises for the future, and scatter them
lavishly throughout the Empire. The coarser instruments of pressure are not neglected. The military'regulate' the elections and
preserve order.  The civil officials represent, perhaps somewhat
urgently, the expectations and wishes of the government, — their
own hopes of preferment depending largely on their success.
"6 And so it happens that universal suffrage in France, - being
simply a tool in the hands of the central power, instead of an independent expression of the intelligent popular will, —has founded
and sustains one of the most arbitrary and despotic governments in
Europe.
" The negro vote in the Southern States is exactly adapted to the
same kind of management. At the very lowest estimate it constitutes one third of the popular vote of the Southern States, and is
thus, in skilful hands, a weapon of sufficient power to control them.
The negroes now admitted to the suffrage are, as a body, utterly
ignorant - unable to read the ballots they are empowered to cast,
-wholly inexperienced in public affairs, - incapable of foresight
and provident preparation even for their own future, and far more
incapable of any regard whatever for the future of the State or the
nation, - accustomed to obey orders they receive from others, and
taught, by precept and experience, to regard with distrust and animnosity the community in which they live. Naturally and almost
inevitably they look to some outside source for their instructions:
and of course they do not look in vain.
"An Executive Committee of the Iadical Party in Congress has
taken charge of this matter, and has virtually taken charge of the
negro vote in the Southern States. It does precisely for that vote
what the agents of the French Emperor do for the peasantry vote
throughout France, and by very much the same appliances. It
prints documents and scatters them through the South. It employs
agents, lectulers, and missionaries of its own views among the negro
voters. And through its alliance with the dominant authority in the
government, it has quite as complete command of the military authority, which is now supreme in the Southern States, and of the
agents and subordinates of the Freedman's Bureau, as the French
Emperor has of the Prefets and other officials of the Empire.
"We find in the Rochester Express a somewhat detailed statement of the operations of this committee, which we copy in another
column of the Times as a matter of general interest. It seenms
that during the eight months from April to December of the present




THE THREE DANGERS OF THE REPUBLIC.              97
year, this committee has collected from members and emnployees of
Congress, and from  other sources, the sunm of $42,673, and has disbursed $39,153 - the most of which has been devoted to the employment of agents to organize, discipline, and instruct the negroes
of the Southern States in voting. They have employed directly in
this work one hundred and seventy-eight persons, besides aiding
through local committees as many more. But the most effective
agency in the prosecution of the work they have undertaken is that
of the Secret Loyal Leagyees, which under the direction of the central
authority have extended their organized and secret operations into
every section of the South, and have contributed more than anything
else to the consolidation of the negro vote. This effort has already
been attended with a very great degree of success. The committee
count upon that vote as sufficient to secure, first, the nomination,
and next the election, of a radical republican President."
The third danger, greater than all, - one which in fact creates in a great measure the other two, is, —
An undue desire for office, -a hankering after place and
power, -not to serve one's country, but for the promotion of
selfish purposes.
Whether this, with the corruption attending it, is the immedicabile vldnus of the republic, or whether a remedy may be
found, is perhaps the great problem which remains for solution.
If there is no medicine to cure, or at least to check, this raging
ulcer, the days of the body politic are surely numbered.
An efficient restriction of the suffrage, if practicable, might
accomplish something towards the prevention of the fiauds attendant upon the constant struggle for office. If that may not
be expected, how are we to escape from this danger?
If a reasonable system could be devised, so that the suffrage,
while it should be the main instrument of the election, should
not alone perfect it, that might tend to a reformation.
It may deserve consideration whether a combination of suffrage with somewhat of the element of chance would not present
a fair prospect of a partial remedy.  There would, in such a
system, be less opportunity for the excitement of prejudice and
passion, and less temptation to bribery, and other means of corruption.
It may be objected, that so far as it should make the select
tion of rulers dependent upon chance, it would be a departure
from the principle of a popular government. But if the chance
9




98        THE THREE DANGERS OF THE REPUBLIC.
relates to the selection of the candidates, and not to the final
determination of the election, the objection is in a great measure overcome.  Even if it should be made the means of the
final determination and perfection of the election, by a selection
among candidates already designated by the suffrage, it will decrease the temptation to bribery and fraud, and perhaps be most
effective for that purpose.
WVe must recollect that we are surrounded wit- difficulties,
anid reduced to a choice between such expedients as seem best
calculated to effect the desired object.
But is Ch~ance, as the final determinator of an election, so
very objectionable.?
I have long been of opinion that the course of our colleges,
in exciting the personal ambition of the students by the offer
of rewards in the shape of " appointments " to be performed at
Commencement, has a most mischievous tendency, exciting to
personal rivalry and evil passions, and ending, with many, in
grievous disappointment and  discouragement; and that if
public exhibitions are expedient upon such occasions, there
should be an opportunity for all to exhibit their talents and
acquirements, - or if that is impracticable, then, that it were
better that a selection should be made by lot, - which would
save disappointment and its attendant evils. And I hope that
the day will come when this will be found to be true, and
adopted as the rule; although it must be admitted that the
signs of the times are not full of encouragement. I fear that the
clergy are largely responsible for the failure of the experiment
which has been made upon that subject.
But nervous disease and premature death, occasioned by this
educational pressure upon the brain, - disease and death increasing at a fearful rate, particllarly among females, —may
at last awake ambitious parents to a realization of the danger,
and cause an improvement in our educational institutions.
And I would fain hope, that the principle of chance may to
some extent be incorporated into our popular elections, and
the excitement attendant upon them  be thereby allayed, - if
no other method may be found effectual to stop this miserable
scramble for office.
Mischievous ambition, however, does not always exhibit it.
self in a direct attempt to procure office. OIt appears at'" Bay




THE THREE DANGERS OF THE REPUBLIC.                 99
State " and "' Fraternity " lectures, seeking notoriety by the
advocacy of new theories of social life, as well as of political
government, and in efforts, in various ways, not to improve the
world in which we live, but to create a new one; all of which
tend more or less to the disturbance of good government
and the peace of society.  It occupies the pulpit with den unciations of every one who differs from  the political views of the
preacher.  It manifests itself at literary festivals, pours forth its
scorn upon conservatism, canonizes the negro, and confers upon
radicalism its apotheosis.  An oration upon a literary sulbject
before a literary society is the exception, and not the rule.
Literary topics do not command the cheers, not to say huzzas
and shouts, which are liberally conferred upon that frothy political declamation, which partisan newspapers call eloquence.
Unhallowed personal ambition seizes upon everything that
may possibly be brought in aid of its aspirations, and corrupts
it.  Upon the moral opinions of, the community, - upon the
sympathies of our nature.  How many demagogues, within the
last few years, have succeeded in placing themselves in office
by a pretence of friendship for temperance, or of sympathy for
the slave.
This ambition packs the primary caucus, -corrupts the
nominating convention, -  stuffs the sleeve of the presiding
officer with ballots for the candidate of the clique, to be
placed adroitly upon the table, - or slily slips enough of
those for the opposing candidate under it, to secure the right
nomination.
This it is that leads to nominations not fit to be made, - to
the employment of hireling writers to manufacture material to
order, suited to.the elevation of the party, or the employer,to the thousand and one lies, editorial or otherwise, which circulate regularly through unscrupulous partisan presses, particularly on the eve of an election, - to bribing of the electors, -
to friaud.clin the returns, - to appointments of persons unqualified for the performance of the duties of their offices, - to the
victory of party over patriotism, by and through which the
leaders control the bodies, minds, and consciences of their followers (so far as they have any consciences), who, the most
abject kind of slaves, are looking, beseeching, praying, for
office; andcl as a result, to the reception of bribes by, the




1]00       THE THREE DANGERS OF THE REPUBLIC.
members of Congress, and other legislative bodies, and to the
passage of acts through which the interest of the individual is
subserved, and the public treasury defrauded.
But the particular crowning mischief of this eager pursuit
"of political office is exhibited in the policy which has been pursued by the ambitious leaders of the dominant party, since the
close of the war, for the purpose of securing to their party success in the next Presidential election, and to themselves the
offices and emoluments, bribes and plunder which may be obtained as a consequence of that success.
The time has been when I should have spoken of honor, in
connection with office derived from  political success, but that
time has gone by. The struggle for office, not with motives
of patriotism9 - not with the legitimate desire of serving the
best interests of the country, - not for the promotion of the
welfare of the people of the State, or of the human race; but
for the party ends of an engrossing selfishness, and lately with
the express view of plundering the public, and those who have
business with public affairs, has shorn political office of the
honor which was once an attendant upon it; and if, at the
present day, the presumption is not, that a person holding a
political office has obtained it by indirect means, it requires at
least affirmative evidence of some kind, to show that the converse of that proposition is an assured trutli.
The war was waged, on the part of the North, professedly
for the preservation of the integrity of the Union, assailed by
the rebellion; and the profession was, in the outset, the reality.
The success of the war was to insure that result.
The expenditure of hundreds of thousands of lives, and
thousands of millions of money, in order to take vengeance
on those who were in rebellion, however unjustifiable that rebellion might be, would have been, not merely the extreme of
folly, - it would have been but the superlative of insanity.
On the close of the war the material interests of the country
required peace.
The selfish interests of the partisans of the dominant party
required office. And for the purpose of securing that great
good they hIave kept the country in the turmoil of "6 reconstruction."
The President broke loose from  the "' great expectations'




THE THREE DANGERS OF THE REPUBLIC.            101
which had been indulged respecting his fidelity to the republican party, so far as to lead to a suspicion that all the offices
would not be distributed among that party. The denunciations
which have followed could not well have been greater if he had
committed all the crimes enumerated in the Decalogue, and
added a score or two of others of lesser magnitude.  Treason
to the republican party!  Treason to the nation would have
been a venial offence compared to it.  Appointments to office
of any but from  the ranks of the faithful     Congress fairly
howled over the idea, and the echoes of the eager expectants
sent the reverberations throughout the length and breadth of
the United States, to say nothing of Europe and the island of
St. Domingo.
When Demetrius the silversmith who made silver shrines
for Diana, and the craftsmen and workmen of like occupation
saw that their craft, by which they had their wealth, was in
danger of being set at nought, they were filled with wrath, and
cried out, " Great is Diana of the Ephesians; " and the whole city
was filled with confusion, and rushed with one accord into the
theatre, and all with one voice about the space of two hours
cried out, " Great is Diana of the Ephesians."
But the uproar of Ephesus was but a feeble and subdued
utterance to the cry which went up when the unscrupulous
leaders of the dominant party discovered that their craft was in
danger, by which they, and their brothers, and uncles, and
nephews, and cousins three times removed, and other miscellaneous partisan supporters, had their wealth.  They rushed
with one accord into the halls of Congress, and into conventions, and fraternity lecture rooms, and mass meetings, —
and sometimes even into the pulpits, and from that day to this,
for the space of about two years, they have in these, and various
other places, cried out, Great is the republican party, and great
is its love for the negro, and great were the achievements of
the negro soldiers, and great is negro suffrage, wllich may enable us, through an efficient military despotism, to carry the
next Presidential election, and secure the offices, and powers,
and salaries, and other emolumzents, to be derived therefrom.
IWe are not told what Demetrius and the craftsmen of Ephesus did, when the town clerk put an end to the uproar, and dismissed the assembly.
9*




102        THE THREE DANGERS OF THE REPUBLIC.
But we had no town clerk, with sufficient authority to silence
the uproar in our case, and to dismiss the assembly which contains so many of the craftsmen of our day, - and so we know,
fiom their acts, that they determined to carry the next Presidential election, Constitution or no Constitution.  There is no
other reasonable way of accounting for the unconstitutional acts
which they have passed.
I say this in no partisan spirit.  I would not say it here, if
the question at issue, for the last two years, hlad been merely
which of two or more political parties should gain an ascendancy.
But I say it because, with the views which I entertain of
constitutional law, and of the unhallowed course of reckless
aspirants for office and power, it is my duty, here and now, to
make one more attempt to preserve the Constitution from destruction,- one more protest against infractions of its provisions,
which have of late become so frequent, and so gross, that there
is no well assured certainty that republican freedom will survive
the fourth quarter of the century.
The partisan press is ready to follow the party leaders,and the political atmosphere is poisoned by the fulsome slaver
of flattery with which it bepraises the unconstitutional acts of
Congress, and the venom, and froth, and scum, which it has
spewed out upon President Johnson whenever he has attempted
to arrest those unconstitutional measures by the power of the
veto, rendered, however, utterly powerless by unconstitutional
contrivances for that purpose.
The President is deprived, by what purports to be a statute,
passed by two thirds of both Houses of Congress, against his
veto, of the power not only of selecting his cabinet, but of
removing a cabinet minister whose acts of arbitrary power ought
long since to have caused his dismissal.
Everything is made to bend, not to any will of the people
duly expressed, in a constitutional manner, but to an assumed
will of the people, which is neither more nor less than the will
of the dominant party in Congress.
You may say that this is strong language for this place. I
admit it. But if I make my assertion good, that Congress, for
the last two years, has engrossed to itself executive and judicial powers, - that it governs now by a military despotism,
which is the creation of the will of Congress, and which repre



THE THREE DANGERS OF THE REPUBLIC.             103
sents that will to be the will of the people, - that it governs to
secure the offices, and not to promote the prosperity and fieedom and happiness of the people, — that it has thus not only
violated the Constitution, again and again, by the assumption of
powers which it does not possess, but has destroyed political
freedom, endangered our republican institutions, and smote the
industrial interests of a large section of the country with paralysis, - then what I have said, or may say, here or elsewhere,
in condemnation of its acts, and of the vituperation which in
and out of its halls is so liberally bestowed upon all who refuse
to fall down and worship the idol, is not, and cannot be strong
enough.
I am no partisan of President Johnson, but I honor him with
all my heart for his firmness in endeavoring to sustain and vindicate the organic law of the republic.
What has given rise to the unconstitutional acts which have
been passed by Congress, notwithstanding the President's veto,
within the last two years?
I need have no delicacy even here in speaking of those acts
as unconstitutional.  The leader of the dominant party, in the
House of Representatives said he would not so far stultify himself as to pretend that they were constitutional.  If the party
accepts his leadership, in their passage, it may well be charged
prima facie, at least by his admissions respecting their character.
But those admissions are in no way necessary to the proof
of their unconstitutionality.  That is open, gross, shameless,
palpable.
They have not even the merit of consistency in their unconstitutionality.  And the attempts to justify them  are equally
inconsistent.
The first and third of the acts, providing for" 6reconstruction 
may suffice as specimens of this unconstitutional legislation, -
this trampling by the Legislative department upon the Executive, and the Judicial, through the military power which it
controls.
The act of March 2d, 1867, recites, —
That "no legal State governments or adequate protection for life
or property now exist in the rebel States of Virginia," &c., and that
"it is necessary that peace and good order should be enforced in




104        THE THREE DANGERS OF THE REPUBLIC.
said States until loyal and republican State governments can be
legally established," and therefore enacts, "that said rebel States
shall be divided into military districts, and made subject to the military authority of the United States; " " that it shall be the duty of
the President to assign to the command of each of said districts an
officer of the army not below the rank of brigadier-general, and to
detail a sufficient military force to enable such officer to perform his
duties, and enforce his authority within the district to which he is
assigned;" "that it shall be the duty of each officer, assigned as
aforesaid, to protect all persons in their rights of person and property,
to suppress insurrection, disorder, and violence" [except of course
his own violence, and that which he orders], "and to punish, or
cause to be punished, all disturbers of the public peace, and criminals, and to this end he many allow loccal civil tribunals to take jurisdiction of and to try offenders, or, WHEN IN HIS JUDGMENT IT MiAY
BE NECESSARY FOR THE TRIAL OF OFFENDERS, HE SHALL HAVE
POWVER TO ORGANIZE 3MILITARY COMIIISSIONS OR TRIBUNALS FOR
THAT PURPOSE; AND ALL INTERFERENCE  UNDER COLOR OF STATE
AUTHORITY WITH THE EXERCISE OF MILITARY AUTHORITY UNDER
THIS ACT SHALL BE NULL AND VOID."
The military commrnander who should desire more ample
authority than this must be somewhat unreasonable.
But there are some restrictions upon it.  The laws and regulations for the government of the army are not to be affected
by the act except so far as they conflict with its provisions.
How  far is that?  Persons arrested are to be tried without
unnecessary delay, of which the district commander is of course
to be the judge; no cruel or unusual punishment is to be inflicted, - that is, none deemed by military law and officers to
be cruel or unusual, -  whether bucking and tying up by the
thumbs and other tortures are to be deemed cruel or unusual is
not said; no sentence of a military tribunal affecting the life or
liberty of any person is to be executed until it is approved by
the officer in command of the district, and even with his approval, no person is to be murdered by military authority without the approval of the President.
The limitations are not very formidable, unless it be the last,
which may perhaps be regarded as rather stringent.
It is next provided that when the people of any one of said
States shall have formed a constitution of government in conformity with the Constitution of the United States in all re



THE THREE DANGERS OF THE REPUBLIC.           105
spects, framed by a convention of delegates elected by the male
citizens of said State twenty-one years old and upward, of
whatever race, color, or previous condition, who have been
resident in the State for one year previous to the day of election
(thousands and thousands of whom do not know what a constitution means), with the exception of persons disfianchised; and
when such constitution shall provide that the elective franchise
shall be enjoyed by all such persons as have the qualifications
for electors of delegates (idiots and all other persons non compos mentis, - and negroes too ignorant to know what or who
they are voting for, included); and when such constitution
shall be ratified by a majority of the persons voting, &c., and
shall have been submitted to Congress for examination and
approval, and Congress shall have capproved the same; and
when the State legislature shall have adopted the proposed
14th article of amendment to the Constitution of the United
States (which it cannot do unless the State is a State in the
Union), and when that article shall have become a part of the
constitution, -  then, all these things having happened, the
State shall be declared entitled to representation in Congress,
&c.
But until the people of said States shall be by law admitted
to representation in Congress (the two houses having bargained
with each other not to admit any representation without the
consent of both), "'any civil government which may exist
therein shall be deemed provisional only, and in all respects subject to the paramount authority of the United States, at any time
to abolish, modify, control, or supersede the same," &c.
Then came a supplemental act of March 23d, providing for
the calling of conventions with ample provisions to secure the
ascendancy of military authority; and after this a supplement
to the supplement, July 19, 1867, declaring that it was the true
intent and meaning of the act of March 2d, and of the supplementary act of March 23d, that " the governments then existing in the rebel States of Virginia," &c., " were not legal State
governments; and that thereafter said governments, if continued, were to be continued subject in all respects to the military commanders of the respective districts, and to the paramount authority of Congress." 1
1 There seems, after all, to have been an omission in the Acts of Reconstruction, or




l 0~        THE THREE DANGERS OF THE REPUBLIC.
It was further enacted "that the commander of any district
namned in said act shall have power, subject to the disapproval of the
general of the army of the United States, and to have effect till
disapproved, whenever in the opinion of such commander the proper
administration of said act shall require it, to suspend or remove
fromn office, or from the performance of official duties, and the exercise of official powers, any officer or person holding, or exercising,
or professing to hold or exercise, any civil or military office, or duty
in such district, under any power, election, appointment, or authority
derived from, or granted by, or claimed under, any so-called State,
or the government thereof, or any municipal or other division
thereof; and upon such suspension or removal, such commander,
subject to the disapproval of the general as aforesaid, shall have
power to provide, from  time to time, for the performance of the
said duties of such officer or person so suspended or removed, by
the detail of some competent officer or soldier of the army, or by
the appointment of some other person to perform the same, and to
fill vacancies occasioned by death, resignation, or otherwise."
If Congress were to govern the territories, over which the
United States has full power of legislation, with such unmitigated despotic military authority, it would be rank tyranny.
How much better is it -  nay, how much worse it is, - when
States in the Union are subjected to it; whether to gratify the
vindictive spirit, or to promote the selfish purposes, of the party
leaders, is immaterial.
But this is not all, -- I had almost said it is not the worst.
This finhallowed march to power proposes to strike down the
Judicial department, as well as the Executive, and the States.
Another bill which has passed the House, requires the concurrence of two thirds of the Supreme Court in order to a
decision that any law of Congress is unconstitutional.
"SECTION  2. And be it further enacted, that no cause pending
before the Supreme Court of the United States, involving the action
or effect of any law of the United States, shall be decided adversely
to the validity of such law without the concurrence of two thirds of
all the members of said court in the decision upon the several points
in which said law or any part thereof may be deemed invalid; proa military district commander has slept upon his post, or the Supreme Court has been
guilty of treason against Congress. Texas, not having the fear of Congress before
her eyes, has prosecuted a suit in the courts of the Unitecl States, which could only
be maintained by a State ais the Union, and she has been declared to be, and to have
been, a State in the Union all the time, and the suit is sustained.




THE THREE DANGERS OF THE REPUBLIC.            107
vided, however, that if any Circuit or District Court of the United
States shall adjudge any act of Congress to be unconstitutional or
invalid, the judgment, before any further proceedings shall be had
upon it, shall be certified up to the Supreme Court of the United
States and shall be considered therein, and if, upon the conside'ration thereof, two thirds of all the members of the Supreme Court
shall not affirm said judgment below, the same shall be declared
and held reversed."
There is no hope of the present majority in Congress. They
are committed to their attempt to secure the offices to their
party if their march is over the ruins of the other departments.
The watchword of their radical leaders is, "6 No step backwards," and their army of office holders, and dependents, and
tools, and expectants, reicho it.
Some of the timid hesitate respecting this war measure
against the Judicial department, but they have given in against
their conscientious convictions heretofore, and may be expected
to do it again. The arithmetic required to enumerate the newspapers of the party which will not swear to all their readers,
that the acts of reconstruction are sound constitutional law, is
very limited indeed.  I think I may undertake to count them
upon my fingers, - yes, confining myself to one hand.
The only chance of redemption for the country is, the possibility that the intelligent portions of the community who love
their country, and have no ambition for its offices, - or none
except that they may fll those offices for useful purposes and
noble ends — may shake off their lethargy, arise in their might,
sweep from the statute book the unconstitutional enactments,
discard with them the ruinous policy which has dictated them,
and consign the conspirators against the Constitution to the obscurity which they deserve.
Let us labor and pray that the effort come not too late.
Gentlemen:  I lhave expressed my opinions somewhat more
freely than I should have done, were it not that I address you
as members of the Law School, for the last time. MIy resignation of the office of Royall Professor of Law will be in the hands
of the Corporation in the course of this day, and with this
Address my connection with the School is terminated.
You are just entering on the active business of life. You
will have, to a greater or less extent, influence, -places of trust




108        THE THREE DANGERS OF THE REPUBLIC.
and confidence,- if not political offices, -- stations where you
may do much for the dissemination of true principles of government, and of constitutional law.
Let it be my last will and testament, in this last official act,
to bequeath to you, and to those who have gone before, and
those who may come after you, the support of a republican
government, and the preservation of' the Constitution.
I take my leave with fervent wishes for the prosperity of the
School, and the happiness of all who have been or shall hereafter be connected with it.