Discussion of the legal merits of a controversy which has been settled, beyond peradventure, not by law but by sheer physical force, must always appear somewhat academic. It may be pointed out, however, that the constitutional principle for which the South contended, and which the Civil War for all time repudiated, never rested upon any undisputed canon of constitutional interpretation, and consistently ignored the steady development of American political thought. Doubtless, when the Constitution was adopted, there were few people in any State who looked upon the new union as any more "perpetual" than that of the confederation which preceded it. The United States had tried one form of national government, had found it fatally defective, and had replaced it by another. There is little in the history of the period to indicate that the States which came in under the "new roof" looked upon the structure as anything more than a better arrangement, a more perfect" union, from which they could, however, withdraw, if they chose, should it prove unsatisfactory. Down to the time of the Civil War, the North as well as the South had its advocates of nullification and disunion, its champions of strict construction, its expounders of State rights. What the South failed to see, however, was that the whole course of national development was steadily making the State-rights doctrine practically unworkable, and that secession would be resisted, not because the Constitution in terms or by implication forbade it, but because national self-interest demanded the preservation of the Union. Into this broader life of nationality the old South never entered. It lived in the past, thought in the past, conceived of no future different

from the past. Its constitutional arguments had much logical keenness and cogency, but they sounded remote and unpractical to men who felt that, whatever the policy of the moment, the nation must in the nature of things be supreme.

No

No doubt there were times between 1789 and 1861 when this centralizing tendency in the federal government threatened to work fast and far, and when the maintenance of the States as vital, distinctive parts of the nation seemed endangered. For such excesses the stout insistence upon the constitutional rights of the States was a healthy corrective. doubt, too, the far-reaching scope of Chief - justice Marshall's great decisions seemed to many to jeopardize time-honored rights of person and property by transferring the ultimate control of them from the State to the United States. But so long as the Constitution contained within itself clear and adequate provision for its own amendment, so long as the principle of majority rule in matters of political discretion prevailed, secession was revolution, justifiable only if successful. It was the inestimable service of the Civil War to emancipate the political thought of the South from slavery to an outgrown theory, to show that a strong national government is no menace to the liberty of any loyal State, and to insist upon the obedience of all citizens as the indispensable prerequisite to national health, efficiency, and success.

XXIII

RECONSTRUCTION

HE close of the Civil War left the United States,

THE

notwithstanding the overwhelming victory of the North, with many serious problems. The army was quickly and quietly disbanded, and the hundreds of thousands of soldiers returned to civil life to find employment as best they might; but the situation was as abnormal as it was peaceful. There was an enormous debt to be paid and specie payment to be resumed, and both as soon as practicable without financial disturbance. The cessation of the extraordinary demand for war materials of all sorts necessitated the speedy diversion of capital and labor to new fields. Both domestic and foreign trade, the latter in particular greatly affected during the war by the depredations of Confederate cruisers and privateers, needed to be brought back to their normal channels. The North and South must not only live together, but trade with each other. The great danger was, not that the readjustment would be delayed, but that it would come suddenly and violently, with financial stringency, commercial disaster, and industrial disorder following in its train. The United States had been successful in a great war: could it achieve equal success in the more prosaic field of political and economic reorganization?

Of all the problems raised by the war, however, none were more serious or complicated than those connected with the political reorganization of the southern States and the treatment of the negroes. At the beginning of the war the federal government had felt it necessary, for political reasons, to deny the possibility of secession in fact as well as in theory. The "so-called Confederacy," "the pretended government," and the like, are phrases which occur frequently in the statutes and other documents of the time. So, after the war was over, many Republican leaders insisted that, be the legal or constitutional status of the South what it might, the South had not in fact seceded, but had only tried to secede; and this view was later taken by the Supreme Court. Whatever the worth of this contention as a legal theory, it was clear enough that, as a matter of fact, the States of the Confederacy had had for four years no political connection whatever with the United States, that they had yielded no obedience to its laws, but, on the contrary, had established and maintained a government of their own, and that they had been recognized as belligerents by foreign nations. If, during this time, they had continued to be "in the Union," it could only be because of some legal fiction new to American cxperience, and hence not of undisputed application.

On the other hand, it was equally clear that the relation of the late seceded States to the Union, now that they had been overcome, was not the same as it had been before the war. Their constitutions, for example, still recognized slavery. Their laws bound the States to the payment of debts arising from the war against the Union. Should these States be al

lowed to reorganize their governments as before 1861, and continue white supremacy and negro subjection? Should Senators and Representatives, as soon as regularly chosen, be admitted to Congress? Should the South be allowed to vote in the Presidential election of 1868? Or should the States which for four years. had maintained practical independence by force of arms be treated as conquered territory, to be organized and dealt with as Congress and the President might see fit, and in the way that would best insure the perpetuation of the principles for which the North had fought? These were questions on which the Constitution was silent, and for whose answer the history of the United States thus far afforded no precedent, and, for that matter, hardly a guide.

The subject of the political treatment of the South after the "insurrection" or "rebellion," as it was commonly called, had been put down was early considered by both Congress and the President. In December, 1863, Lincoln, in a proclamation granting amnesty, with certain exceptions, to persons who had engaged in rebellion against the United States, declared that whenever, in any of the seceded States except Virginia, loyal persons not less in number than one-tenth of those who had voted in the Presidential election of 1860 should re-establish a State government republican in form, it would be recognized and protected "as the true government of the State." Virginia was excepted because Lincoln had already recognized there the loyal "Pierpont" government. It was further suggested that, in such reorganization, 'the name of the State, the boundary, the subdivisions, the constitution, and the general code of laws, as before the rebellion, be maintained" so far as pos