RECONSTRUCTION. 



323 



right in their former constitutional relations from the 

 moment that their capacity tu resist the laws of the 

 United States was destroyed. Without authority 

 derived from Congress for that purpose, he assumed 

 to appoint provisional governors for the States recov- 

 ered from secession. No provision existed in the laws 

 of the United States for the appointment of such offi- 

 cers. All offices, according to the Constitution and 

 laws of the United States, are created by Congress, 

 where not previously created by the Constitution 

 itself. The President has the power to fill the non- 

 elective offices of the government, but subject to the 

 approval of the United States Senate. No such office 

 as a provisional governor of any Territory was pro- 

 vided for by law, and the appointment of officers for 

 the States was clearly beyond the competency of the 

 President. The appointment was made without the 

 approval of the Senate, and before Congress had acted 

 upon terms of pacification and restoration with the 

 States that had been reduced by the military power of 

 the government. 



There were but two modes in which a state of war 

 could be converted into one of pacific relationship the 

 one by the treaty-making power and the other by 

 Congress and neitherof these modes had l>een applied 

 by the President, for the former depended upon the 

 absent of the Senate and the latter upon the action of 

 Congress, and neither of these lorms of assent had 

 been given. If it be assumed that the treaty-making 

 power can conclude conditions of peace independently 

 of 'the legislative authority, which is alone competent 

 under the Constitution to legalize the state of war, 

 Btill it was properly claimed that such power was inap- 

 plicable to the case in hand, for although the Con- 

 federated States were for the purposes of war regarded 

 as a foreign powerstillat the termination of hostilities. 

 by the actual reduction of these States under the 

 authority of the United States, this limited recognition 

 could have no effect, and the question was simply one 

 of dealing with territories acquired by conquest, which 

 was rightfully claimed by Congress. 



Under authority derived from the President alone, 

 the nrovi.iional governors assumed to call upon the 

 people of the States under military authority to send 

 delegates to enact constitutions of government for such 

 States. This power was regarded hy Congress as being 

 peculiarly within the scope of the legislative authority, 

 and its exercise by an executive officer, without the 

 authority or aid of the proper legislative body, as 

 without precedent in this country. As the absence of 

 a proper legislative authority within these States pre- 

 vented the exercise of that power, Congress remained 

 to be appealed to, and if the exigency demanded it, 

 could have been convened for that purpose. 



Conventions were held and the ordinances of seces- 

 sion were repealed and slavery abolished. In most of 

 the States in which such conventions were held consti- 

 tutions were fnorad. some of Which were submitted to 

 the people for ratification, while others took effect 

 from the authority of the convention alone. The 

 people who had been emancipated from slavery took 

 no part in these conventions, nor were permitted so to 

 do, notwithstanding they constituted a majority of the 

 population of several of the States. Had the conven- 

 tions been called in the manner provided by the pre- 

 vious constitutions of the various States so as to be af- 

 fected by the provisions of such constitutions, the 

 exclusion of the people of African descent could have 

 been accounted for, but such was not the case. The 

 conventions had no sanction under the antecedent con- 

 stitutions, and if called in the manner attempted in the 

 present instance during the vigor of those constitutions 

 would have been OMMdend irregular and revolution- 

 ary. They were in fact original efforts to construct a 

 government unfettered by antecedent authority, and 

 in accordance with American principles of government 

 should have proceeded from the whole population. 

 By these various constitutions the qualifications of the 



elector were that he should be a free white person 21 

 years of age. The emancipated slaves were ignored 

 and no political status given to them under those sys- 

 tems. Under these constitutions governments were 

 organized and public officers chosen, and, but for the 

 presence and unwillingness of the military authority to 

 relinquish the duties imposed upon it until relieved by 

 Congress, they would have gone into complete opera- 

 tion. The strange spectacle was exhibited of a complete 

 civil system, organized under the authority of the 

 national executive, suppressed by the military author- 

 ity of which its author was the head and source. 



The conflict was soon to be transferred, from the 

 ground where an irregular civil authority was seeking 

 to assert itself against the strong military arm, to Con- 

 gress. Pres. Johnson in his annual message to 

 Congress in 1806, after referring to the constitutional 

 duties of the States, says, as follows : "But if any 

 State neglects or refuses to perform its offices there is 

 more need that the general government should main- 

 tain all its authority and as soon as practicable re- 

 sume the execution of its functions. On this principle 

 I have acted and have gradually and gently and by 

 almost imperceptible steps sought to restore the 

 rightful energy of the general government and of the 

 States. To that end provisional governors have been 

 appointed for the States, conventions called, governors 

 elected, Legislatures assembled, and Senators and 

 Representatives chosen to the Congress of the United 

 States." Pres. Johnson in his message recog- 

 nized the right of Congress to determine the qualifi- 

 cations of its members. 



Both branches of Congress were by large majori- 

 ties united in opinion and hostile to the method of 

 reconstruction actually in course of execution under 

 the authority of the President. In the first place 

 the action of the President was regarded as an ex- 

 cessive exercise of the powers of his office and as an 

 encroachment upon the authority properly belonging 

 to Congress. Congress claimed to be the only con- 

 stitutional power that could change the relations be- 

 tween the late belligerents from that which was 

 brought about by the recognition of a state of war 

 to one of political and civil restoration, and was re- 

 solved to sustain its proper authority against such 

 encroachment. In the second place Congress deemed 

 it just and wise that the conditions of reunion 

 should be adjusted to the nature of the action that 

 had broken the unity between the States, so as to 

 express the true principles on which that union was 

 based, and that such expression should not be con- 

 fined to words but should appear in appropriate pub- 

 lic action that should transmit to history the lessons 

 of the war. It was thought that the mildest form in, 

 which, in the terms of pacification, the estimation 

 by Congress of the wrong inflicted upon the nation 

 could be appropriately expressed would be to dis- 

 qualify certain of the leaders of secession from re- 

 suming their former political influence over the peo- 

 Sle of those States for such time as Congress should 

 eem just and expedient. In the last place Congress 

 recognized the fact that a large population existed 

 in those States that had attempted secession having 

 neither political nor civil status under the former 

 laws of those States, and who, through the operations 

 of the war, had been made freemen, and had the 

 right to look to Congress to secure to them the 

 proper consequences of freedom in the future con- 

 stitutions of the civil society of which they should 

 form a part. 



Ii) addition to these responsibilities to the Consti- 

 tution, to the perpetuity of the Union, and to the 

 IMT.-OIIS whose condition had been radically changed 

 by the eventualities of the war, there was another 

 consideration of importance that affected the political 

 balance in Congress itself. Should the formei slave 

 population be excluded from political participation 

 in their respective States so that public authority 



