A Compilation of the Messages and Papers of the Presidents. Volume 6, part 2: Andrew Johnson

by Unknown

But these military appointees would not be bound even by a judicial opinion. They might very well say, even when their action is in conflict with the Supreme Court of the United States, "That court is composed of civil officers of the United States, and we are not bound to conform our action to any opinion of any such authority."

This bill and the acts to which it is supplementary are all founded upon the assumption that these ten communities are not States and that their existing governments are not legal. Throughout the legislation upon this subject they are called "rebel States," and in this particular bill they are denominated "so-called States," and the vice of illegality is declared to pervade all of them. The obligations of consistency bind a legislative body as well as the individuals who compose it. It is now too late to say that these ten political communities are not States of this Union. Declarations to the contrary made in these three acts are contradicted again and again by repeated acts of legislation enacted by Congress from the year 1861 to the year 1867.

During that period, while these States were in actual rebellion, and after that rebellion was brought to a close, they have been again and again recognized as States of the Union. Representation has been apportioned to them as States. They have been divided into judicial districts for the holding of district and circuit courts of the United States, as States of the Union only can be districted. The last act on this subject was passed July 23, 1866, by which every one of these ten States was arranged into districts and circuits.

They have been called upon by Congress to act through their legislatures upon at least two amendments to the Constitution of the United States. As States they have ratified one amendment, which required the vote of twenty-seven States of the thirty-six then composing the Union. When the requisite twenty-seven votes were given in favor of that amendment—seven of which votes were given by seven of these ten States—it was proclaimed to be a part of the Constitution of the United States, and slavery was declared no longer to exist within the United States or any place subject to their jurisdiction. If these seven States were not legal States of the Union, it follows as an inevitable consequence that in some of the States slavery yet exists. It does not exist in these seven States, for they have abolished it also in their State constitutions; but Kentucky not having done so, it would still remain in that State. But, in truth, if this assumption that these States have no legal State governments be true, then the abolition of slavery by these illegal governments binds no one, for Congress now denies to these States the power to abolish slavery by denying to them the power to elect a legal State legislature, or to frame a constitution for any purpose, even for such a purpose as the abolition of slavery.

As to the other constitutional amendment, having reference to suffrage, it happens that these States have not accepted it. The consequence is that it has never been proclaimed or understood, even by Congress, to be a part of the Constitution of the United States. The Senate of the United States has repeatedly given its sanction to the appointment of judges, district attorneys, and marshals for every one of these States; yet, if they are not legal States, not one of these judges is authorized to hold a court. So, too, both Houses of Congress have passed appropriation bills to pay all these judges, attorneys, and officers of the United States for exercising their functions in these States. Again, in the machinery of the internal-revenue laws all these States are districted, not as "Territories," but as "States."

So much for continuous legislative recognition. The instances cited, however, fall far short of all that might be enumerated. Executive recognition, as is well known, has been frequent and unwavering. The same maybe said as to judicial recognition through the Supreme Court of the United States. That august tribunal, from first to last, in the administration of its duties in banc and upon the circuit, has never failed to recognize these ten communities as legal States of the Union. The cases depending in that court upon appeal and writ of error from these States when the rebellion began have not been dismissed upon any idea of the cessation of jurisdiction. They were carefully continued from term to term until the rebellion was entirely subdued and peace reestablished, and then they were called for argument and consideration as if no insurrection had intervened. New cases, occurring since the rebellion, have come from these States before that court by writ of error and appeal, and even by original suit, where only "a State" can bring such a suit. These cases are entertained by that tribunal in the exercise of its acknowledged jurisdiction, which could not attach to them if they had come from any political body other than a State of the Union. Finally, in the allotment of their circuits made by the judges at the December term, 1865, every one of these States is put on the same footing of legality with all the other States of the Union. Virginia and North Carolina, being a part of the fourth circuit, are allotted to the Chief Justice. South Carolina, Georgia, Alabama, Mississippi, and Florida constitute the fifth circuit, and are allotted to the late Mr. Justice Wayne. Louisiana, Arkansas, and Texas are allotted to the sixth judicial circuit, as to which there is a vacancy on the bench.

The Chief Justice, in the exercise of his circuit duties, has recently held a circuit court in the State of North Carolina. If North Carolina is not a State of this Union, the Chief Justice had no authority to hold a court there, and every order, judgment, and decree rendered by him in that court were coram non judice and void.

Another ground on which these reconstruction acts are attempted to be sustained is this: That these ten States are conquered territory; that the constitutional relation in which they stood as States toward the Federal Government prior to the rebellion has given place to a new relation; that their territory is a conquered country and their citizens a conquered people, and that in this new relation Congress can govern them by military power.

A title by conquest stands on clear ground; it is a new title acquired by war; it applies only to territory; for goods or movable things regularly captured in war are called "booty," or, if taken by individual soldiers, "plunder."

There is not a foot of the land in any one of these ten States which the United States holds by conquest, save only such land as did not belong to either of these States or to any individual owner. I mean such lands as did belong to the pretended government called the Confederate States. These lands we may claim to hold by conquest. As to all other land or territory, whether belonging to the States or to individuals, the Federal Government has now no more title or right to it than it had before the rebellion. Our own forts, arsenals, navy-yards, custom-houses, and other Federal property situate in those States we now hold, not by the title of conquest, but by our old title, acquired by purchase or condemnation for public use, with compensation to former owners. We have not conquered these places, but have simply "repossessed" them.