unless Congress proceed[ed] at once to do something to protect these people from the barbarians who [were] daily murdering them; who [were] murdering the loyal whites daily, and daily putting into secret graves not only hundreds but thousands of the colored people.[68]
At first the lower house resumed its consideration of the bills recommended at the last session by the joint committee. But early in February, 1867, these were dropped in favor of a new bill. This was the Reconstruction Bill which became law on March 2. It provided that the South should be divided into five districts, each to comprise the territory of one or more of the southern states. The President should assign to each district a military officer not below the rank of brigadier-general, and should detail for his use a sufficient military force. The duties of these officers should be “to protect all persons in their rights of person and property, to suppress insurrection, disorder and violence, and to punish, or cause to be punished, disturbers of the public peace and criminals.” To this end they might either allow local courts to exercise their usual jurisdiction or organize special military courts, for the procedure of which a few general regulations were provided in the bill. Until the states should be by law restored to the Union, the governments existing in them were declared “provisional only, and in all respects subject to the paramount authority of the United States, at any time to abolish, modify, control or suspend the same.”
In section 5 of this bill were stated the conditions upon which the southern states might regain their places in the Union. In each of them a constitutional convention should be elected. For members of this convention all male “citizens” of the voting age should vote, except those excluded from office by the pending Fourteenth Amendment. These were forbidden to sit in the convention or to vote for delegates. The convention thus formed should frame a new constitution, which should give the franchise to all persons qualified to vote for delegates by the present bill. The constitution should be submitted to the people of the state for ratification, and to Congress for approval. When these should have been received, and when the legislature elected under the new constitution should have ratified the Fourteenth Amendment, then Congress should pass an act admitting the reconstructed state to Congressional representation, and the present law should cease to operate in that state.[69]
The principle of this bill was the same as that of the reconstruction measures first undertaken at the suggestion of the joint committee, namely the punishment of an enemy. The debate in the House was opened by a felicitous quotation from Vattel on the public law applicable to the case of a conquered enemy.[70] The punishment here provided was, however, more severe than that first proposed. The former program was designed to offer to the states the alternative of adopting the Fourteenth Amendment or remaining out of the Union and under the Freedman’s Bureau—which was, indeed, regarded as a very obnoxious alternative. But the present bill required them not only to ratify the amendment, but to adopt new constitutions, elect new governments, enfranchise the negroes, and disfranchise their most prominent and respected citizens; and meanwhile imposed upon them not simply a bureau, to interfere in individual cases, but the virtually absolute rule of a military governor.
This bill was passed over Johnson’s veto on March 2, 1867. On March 23 a supplementary act was passed, providing means for executing section 5 of the preceding act. The initiative in calling the constitutional conventions, instead of being left to the states, to be exercised or not, as they chose, was now assigned to the military governor. He, with the assistance of such boards of registry as he might create, was directed to register all persons qualified to vote for delegates. He should then fix the number of delegates and arrange the plan of representation, set the day for election and summon the convention.[71]
A third reconstruction act was passed on July 19, 1867. It is unnecessary to discuss it, since it was only explanatory of the acts of March 2 and 23, and added nothing which needs mention here to their provisions.[72]
Were the Reconstruction Acts constitutional? Since the Supreme Court has failed, either voluntarily or otherwise, to decide every case brought before it depending upon this question,[73] reasoning is not rendered idle by authority. The Supreme Court has indeed expressed a definite opinion on the subject, but has given no decision.
The opinion referred to was expressed in the case of Texas versus White.[74] The Court said:
These new relations [namely, those created by the civil war] imposed new duties upon the United States. The first was that of suppressing the rebellion. The next was that of re-establishing the broken relations of the states with the Union. The authority for the performance of the first had been found in the power to suppress insurrection and to carry on war; for the performance of the second, authority was derived from the obligation of the United States to guarantee to every state a republican form of government.