“Contracts between nations, as between individuals, must lose their force where the considerations fail.
“A treaty pernicious to the state is of itself void, where no change in the situation of either of the parties takes place. By a much stronger reason it must become voidable at the option of the other party, when the voluntary act of one of the allies has made so material a change in the condition of things as is always implied in a radical revolution of government.”[12]
We but follow the simple principles of these texts, when we declare that the outrage perpetrated in Georgia so far changed the condition of things that the Legislature lost all title to recognition by Congress. It ceased to be the Legislature contemplated by Congress. Nor was it the first regular Legislature contemplated by the State Constitution. It was irregular, abnormal, revolutionary. To recognize such a body as the first regular Legislature is a fraud on the State Constitution. To insist that members chosen as the first regular Legislature shall be treated as provisional only is unjust to them. To insist that such members shall be despoiled of the regular term is a direct surrender to the disorganizers, who will rejoice to see Congress sacrifice the true men to whom it owes protection. To my mind there can be no surer rule than so to act that these disorganizers shall not rejoice. Especially will I not please them at the expense of patriot citizens.
In the exercise of this power Congress is acting on principles of Equity. And here allow me to say, that, in superintending the process of Reconstruction, Congress is a Court of Equity, bound to supply deficiencies in the existing law, to enjoin against threatened wrong, and generally to see justice done in spite of technicalities. Here I only follow the best definitions of Equity from the earliest times. No student can forget that profound definition by Aristotle,[13] adopted by Grotius[14] also,—“Equity is the correction of that wherein the law by reason of its universality is deficient”; nor can he forget the phrase of Lord Bacon, when he gives it a higher character still, namely, “The general conscience of the realm, which is Chancery.”[15] These two philosophers were each right; for Equity is at once a correction of law and the voice of conscience. In conformity with these principles, an ample jurisdiction has been established, under which, among other things, the powers of ordinary courts are supplemented by more flexile methods, the rules of law are prevented from becoming instruments of injustice, persons are restrained from asserting doubtful rights in a manner productive of irreparable damage, and, in the absence of positive law, universal justice is maintained. It has been a constant aspiration to bring Law and Equity into harmony. Lord Chancellor Eldon relates that on one occasion Lord Chief-Justice De Grey said, he “never liked Equity so well as when it was like Law”; and he adds, “The day before I heard Lord Mansfield say he never liked Law so well as when it was like Equity.”[16] In the same spirit, Bishop Burnet says of Sir Matthew Hale:—
“As great a lawyer as he was, he would never suffer the strictness of law to prevail against conscience; as great a chancellor as he was, he would make use of all the niceties and subtilties in law, when it tended to support right and equity.”[17]
Such is Equity, and such are the principles which preside in its courts. No strictness of law can prevail against conscience. The niceties and subtilties of law are all to be used in support of right and equity. These noble and authoritative rules are a pathway of light. Against all strictness of law conscience must prevail. If there are niceties and subtilties in the law, let them all be employed on the side of right and equity. That is according to reason and the harmonies of the Universe. It is Equity.
Am I not right, when I now insist that Congress is a High Court of Equity with Georgia at its bar? It only remains that it should apply the principles of Equity, especially supplying deficiencies in the existing law, enjoining against threatened wrong, and seeing that justice is done,—all technicalities to the contrary notwithstanding. Against all strictness of law conscience must prevail; and if there are niceties and subtilties in the law, they must all minister to the completion of Reconstruction. To this end, the process of Congress must go forth in such form as will best establish peace and security in that State under the safeguard of equal laws. With the execution of this process Georgia will be a republican government in reality as in name.
The assertion of this power is necessary now, not merely for Georgia, where it will bring peace and security, but also for the Nation, which will be elevated in character and strengthened in that unity against which the Rebellion dashed itself in battle. An ancient sage has left in perpetual testimony, that the best government is where an injury to a single citizen is redressed as an injury to the whole nation. In harmony with the saying of the sage is the fundamental law that protection and allegiance are reciprocal, so that the Nation owes protection in exchange for the allegiance it receives. The duties of the Nation are correlative with the duties of the citizen. Are we a Nation? Surely we are not, if any State can without correction deny Equal Rights within its border, or in any way imperil the tranquillity of the Republic. There was a time when all this might be done with impunity,—when a State was permitted to exalt itself above the Nation,—when a State determined for itself the standard of Human Rights,—when there was one rule of citizenship at Boston and another at New Orleans, and as many different rules as there were States,—when State Rights were made the protection for all that a State chose to do, and the turtle, with its impenetrable shell, was the prototype of a political community constituting part of the Nation. But this time has passed. A State can no longer play the turtle; State Rights have ceased to be a protection for all that a State inclines to do; there can be but one rule of citizenship in all the States, being the same in Boston and New Orleans; no State can determine for itself the standard of Human Rights; no State can exalt itself above the Nation; nor can any State without correction deny Equal Rights within its borders, or in any way imperil the tranquillity of the Republic. The judgments of courts, the arguments of Senators, with all possible learning and all possible skill, are impotent against that prevailing law which places the National Unity and the Equal Rights of All beneath the safeguard of the Nation. There they will remain from this time forevermore, making the Republic more than ever an example to mankind.
After various amendments, the bill was finally taken into a new draft, leaving the questions presented in the Bingham Amendment to the determination of the State Constitution, and in this form passed both Houses without a division.