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On Reconstruction
Speech of Congressman Thaddeus Stevens,
Delivered in Congress, December 18, 1865

 

 

    Mr. Stevens. A candid examination of the power and proper principles of reconstruction can be offensive to no one, and may possibly be profitable by exciting inquiry. One of the suggestions of the message which we are now considering has special reference to this. Perhaps it is the principle most interesting to the people at this time. The President assumes, what no one doubts, that the late rebel States have lost their constitutional relations to the Union, and are incapable of representation in Congress, except by permission of the Government. It matters but little, with this admission, whether you call them States out of the Union, and now conquered territories, or assert that because the Constitution forbids them to do what they did do, that they are therefore only dead as to all national and political action, and will remain so until the Government shall breathe into them the breath of life anew and permit them to occupy their former position. In other words, that they are not out of the Union, but are only dead carcasses lying within the Union. In either case, it is very plain that it requires the action of Congress to enable them to form State government and send representatives to Congress. Nobody, I believe, pretends that with their old constitutions and frames of government they can be permitted to claim their old rights under the Constitution. They have torn their constitutional States into atoms, and built on their foundations fabrics of a totally different character. Dead men cannot raise themselves. Dead states cannot restore their own existence "as it was." Whose especial duty is it to do it? In whom does the Constitution place the power? Not in the judicial branch of Government, for it only ajudicates and does not prescribe laws. Not in the Executive, for he only executes and cannot make laws. Not in the Commander-in-Chief of the armies, for he can only hold them under military rule until the sovereign legislative power of the conqueror shall give them law.

    There is fortunately no difficulty in solving the question. There are two provisions in the Constitution, under one of which the case must fall. The fourth article says:
 

    "New States may be admitted by the Congress into this Union" 

    In my judgment this is the controlling provision in this case. Unless the law of nations is a dead letter, the late war between two acknowledged belligerents severed their original compacts, and broke all the ties that bound them together. The future condition of the conquered power depends on the will of the conquerer. They must come in as new States or remain as conquered provinces. Congress -- the Senate and House of Representatives, with the concurrence of the President -- is the only power that can act in the matter. But suppose, as some dreaming theorists imagine, that these States have never been out of the Union, but have only destroyed their State governments so as to be incapable of political action; then the fourth section of the fourth article applies, which says:

    "The United States shall guaranty to every States in this Union a republican form of government."

    Who is the United States? Not the judiciary; not the President; but the sovereign power of the people, exercised through their representatives in Congress, with the concurrence of the Executive. It means the political Government -- the concurrent action of both branches of Congress and the Executive. The seperate action of each amounts to nothing either in admitting new States or guarantying republican Governments to lapsed or outlawed States. Whence springs the preposterous idea that either the President, or the Senate, or the House of Represenatives, acting seperately, can deetermine the right of States to send members to the Congress of the Union?

    To prove that they are and for four years have been out of the Union for all legal purposes, and being conquered, subject to the absolute disposal of Congress, I will suggest a few ideas and adduce a few authorities. If the so called "confederate States of America" were an independent belligerent, and were so acknowledged by the United States and by Europe, or had assumed and maintained an attitude which entitled them to be considered and treated as a belligerent, then, during such time, they were precisely in the condition of a foreign nation with whom we were at war; nor need their independence as a nation be acknowledged by us to produce that effect. In the able opinion delivered by that accomplised and loyal jurist, Mr. Justice Grier, in the prize cases, all the law on these points is collected and clearly stated. (2 Black, page 66) Speaking of civil wars, and following Vattel, he says:

   "When the party in rebellion occupy and hold in hostile manner a certain portion of territory, have declared their independence, have cast off their allegiance, have organized armies, have commenced hostilities against their former sovereign the world acknowledges them as belligerents, and the contest as war"

    And

    "The parties belligerent in a public war are independent nations. But it is not necessary, to constitute war, that both parties should be acknowledged as independent nations or Foreign States. A war may exist where one of the belligerents claims sovereign rights as against the other"

    The idea that the States could not and did not make war becausee the Constitution forbids it, and that this must be treated as a war of individuals, is a very injurious and groundless fallacy. Individuals cannot make war. They may commit murder, but that is not war. Communities, societies, States, make war. Phillimore says, (volume 3, page 68:)

    "War between private individuals who are members of a society cannot exist. The use of force in such a case is trespass and not war."


    But why appeal to reason to prove that the seceded States made war as States, when the conclusive opinion of the Supreme Court is at hand? In the prize cases already cited, the Supreme Court say:

    "Hence, in organizing this rebellion, they have acted as States claiming to be sovereign over all persons and property within their respective limits, and asserting a right to absolve their citizens from their allegiance to the Federal Government. Several of these States have combined to form a new confederacy, claiming to be acknowledged by the world as a sovereign State. Their right to do so is now being decided by wager of battle. The ports and territory of each of these States are held in hostility to the General Government. It is no loose, unorganized insurrection, having no defined boundary of possession. It has a boundary marked by lines of bayonets, and which can be crossed only by force. South of this line is enemies territory, because it is claimed and held in possession by an organized hostile and belligerent power."

    Again, the court say, what I have been astonished that anyone should doubt:

    "The proclamation of blockade is itself official and conclusive evidence to the court that a state of war existed."


    Now, what was the legal result of such war?

    "The conventions, the treaties, made with a nation are broken or annulled by a war arising between the contracting parties." -- Vattel, page 372, Halleck, 373, section 23

    If gentlmen suppose that this doctrine applies only to national and not to civil wars, I beg leave to refer them to Vattel, page 423. He says:

    "A civil war breaks the bands of society and government or at least suspends there force and effect: it produces in the nation two independent parties who consider each other as enemies, and acknowledge no common judge. These two parties must therefore be considered as thenceforward constituting, at least for a time, two seperate bodies: two distinct societies. They stand, therefore, in precisely the same predicament as two nations who engage in a contest, and being unable to come to an agreement, have recourse to arms."

    At Page 427:

    "And when a nation becomes divided into two parties absolutely independent, and no longer acknowledge a common superior, the State is dissolved, and the war between two parties stands on the same ground, in every respect, as a public war between two different nations."

    But must the belligerent be acknowledged as an independent nation, as some contend? That is answered in the case referred to in 2 Black, as follows:

    "It is not the less a civil war, with belligerent parties in hostile array, because it may be called an 'insurrection' by one side, and the insurgents be considered as rebels or traitors. It is not necessary that the independence of the revolted province or State be acknowledged in order to constitute it a party belligerent in a war, according to the law of nations."

    This doctrine, so clearly established by publicists, and so distinctly stated by Mr. Justice Grier, has been frequently reiterated since by the Supreme Court of the United States. In Mr. Alexander's case (2 Wallace, 419) the present able Chief Justice, delivering the opinion of the court, says:

    "We must be governed by the principle of public law so often announced from the bench as applicable to civil and international wars, that all the people of each State or district in insurrection against the United States must be regarded as enemies until by the action of the Legislature and Executive, or otherwise, that relation is thoroughly and permanently changed."


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