submitted its project to the States for ratification, the State Conventions took it upon themselves to ratify that instrument, not only without express instructions, but in evident violation of those which were implied in the Acts calling them together.

Like the Provincial Conventions, therefore, which engineered our separation from Great Britain, the Secession Conventions. were simply provisional organizations resting upon a revolutionary basis, and exercising such powers as were deemed requisite by the insurgent populations to insure the success of the revolution upon which they had entered. In one respect, however, they differed from the Conventions of 1776. The existing establishments, the State organizations, were, in 1861, all conducted in the interest of the rebellion; it was, therefore, unnecessary for the Conventions, running a parallel course with the various departments of the State governments, to assume so wide governmental powers as did the Provincial Conventions in 1776, to which the colonial governors and Assemblies were generally hostile.

§ 250. The Secession Conventions being thus purely Revolutionary Conventions, as defined in the first chapter, they must depend for their justification solely upon the success of the revolution which they originated. That revolution, it is now a matter of history, did not succeed in any one of the eleven States. The armies engaged in the attempt to wrest those States from the Union were overthrown, having succeeded only in dismantling those States, and placing them in abnormal relations to the Union. Precisely what those relations were, at the moment the rebel armies surrendered, it is not easy to determine; nor, perhaps, is it necessary, further than to state, that the revolting States were found to be under the sway of certain so-called governments, how formed does not matter, which were alien to the Union, the State Constitutions, under which the initial steps in the rebellion had been taken, having been severally overthrown. Such governments obviously could not be recognized by the Federal authorities as existing at all, for any purpose.

Here, then, were brought again into relations of practical subjection to the Union, certain integral populations, which had once been Constitutional States, but which having, by truancy from constitutional courses, lost something necessary to that

character, were such no longer were, indeed, little more than "geographical denominations;" communities, which, although as much in the Union, territorially, as ever, were properly neither constitutional States, nor constitutional Territories, but States which had, sua sponte, for purposes of ambition, divested themselves of their constitutional apparel, and donned that of treason and rebellion, and so had forfeited their prerogative as States to participate in governing the Union, and been relegated to a condition analogous to that of Territories — a condition in which they belonged to the Union, but had rightfully no governing function whatever, local or general.

§ 251. Standing thus, it is evident, there were necessary to lead off in any movement with a view to the rehabilitation of such States in their normal relations to the Union, Conventions to provide them with Constitutions. This was universally admitted, but how to call those Conventions, was a question upon which there were wide divergences of opinion.

In my judgment, there were but four possible modes of calling such Conventions.

1. The inhabitants of the rebel States might, by a spontaneous movement, without the intervention of any recognized authority whatever, have called Conventions to reconstruct their governments. This course would have required, obviously, the tacit consent of Congress, but, as explained in the first part of this chapter,1 it would have been liable to great practical objections, and would, besides, have been wholly irregular, not to say revolutionary.

2. The second course was for the so-called legislatures of the seceded States, elected under the rebel régime, to initiate, with the consent or connivance of Congress, the movements for reconstruction in their respective States. This course, however, was politically impossible. The government of the United States could not recognize the rebel legislatures, as possessed of any political functions whatever, without, by implication, admitting the validity of the act of secession. If those bodies were to meet, it must be as so many individuals liable to the penalties of treason, and having no rights which the government of the Union was bound to respect, except such as they held in common with other public enemies.

1 See ante, §§ 114, 115.

§ 252. 3. As a third course, the Congress of the United States might have inaugurated the movement toward reconstruction by calling Conventions in the lately insurgent States.

Undoubtedly, this course would have been irregular, since Congress has power to pass enabling Acts only for Territories, strictly so called, and not for States. It is true, as we have seen, that the rebel communities, on the surrender of the Confederate armies, were not constitutional States. But neither were they constitutional Territories. They were States whose practical relations to the Federal whole were in a state of disruption. In other words, they were quasi States, so far as their historical relations to the Union were concerned, but quasi Territories, in relation to the exercise of Federal rights.

Being neither States nor Territories, but communities presenting, in their different relations, the aspects of both, Congress could not regularly act toward them as though they were either. It could not permit them to call, nor could it itself regularly call for them, Conventions to reconstruct their subverted govern.

ments.

4. Finally, the requisite nucleus for reconstruction might have been provided by the President of the United States, acting in his capacity of Commander-in-Chief of the national armies, engaged in crushing the rebel Confederacy.

With reference to this mode, however, it is evident, that it would have been legitimate only as a war measure, the power of the President to act in the manner supposed, being simply a war power, and therefore proper only whilst the war should last. On the coming of peace, all political structures built up by, and under the shelter of the military arm for the temporary government of the conquered districts, would melt away, save as the law-making power of the Union should recognize and confirm them. They would not have been legally or regularly formed. Judged from a constitutional point of view, they would have been based simply on the will of the commanding general, and, therefore, have been akin to institutions purely revolutionary, as founded without the authority of law. That this is so, becomes the more probable, when it is considered, that it has never, in any one of the States of the Union, or in the Union itself, been recognized as within the competence of the executive branch of the government to call a Convention: that is, of the executive,

as such. Considered as the commander of armies in the field, on the other hand, and, in that capacity, called upon to provide for the government temporarily of the territory overrun, because the President could do any thing, he could doubtless call a Convention to frame a provisional Constitution; or, should he prefer to do so, could himself, in general orders, establish a Constitution. But, the point insisted upon is, that such a Convention would lack the essential requisites of legitimacy, as a Constitutional Convention. The act of the President would be justifiable only upon the ground of its necessity, and hence the body convened would stand on the same footing as the English Convention, called by William of Orange on the abdication of James II., which was unquestionably a revolutionary body.

§ 253. These four modes of proceeding being all liable to objections, the question arises, which, on the whole, was preferable?

The answer is that mode which, beside being attended by the fewest practical evils, was most conformable to established precedents in the United States, in times of peace and constitutional order.

Tried by this test, it is, in my judgment, beyond question, that the third mode, that by the direct intervention of Congress, was to be preferred.

Congress was the grand Council of the nation. Its interference in the business of reconstruction, though irregular, would be effected by some formal Act or Resolution, in which could be provided, to the satisfaction of the nation at large, guarantees not only for the private rights of the citizens of the States concerned, but for the public liberties. Besides, in one aspect of the case, there would, in the intervention of Congress, be an intrinsic propriety, sufficient almost to stamp the act as constitutionally rightful and regular. The legislature of the Union is, as we have seen, as to Federal relations, the legislature of each State. As the rebel States, when admitted to full participation in the government, at once assume a governing relation to the other States, co-members with them of the same Federal whole, the question of their reconstruction, as a practical question, is a Federal one, and ought to be settled by Federal authority. Of all the departments of the general government, Congress is undoubtedly the one to which can be most safely intrusted

the power of calling the Conventions necessary for that purpose. As, in such a case, these bodies would be called in each State by that legislature which had supreme jurisdiction over the Federal relations of such State, the departure from the strictest constitutional precedents would be but nominal.

§ 254. The mode actually adopted was the fourth, by the intervention of the President of the United States, save in Virginia, where reconstruction was inaugurated by the spontaneous action of the loyal citizens of the State. In all of them, therefore, the Conventions called for the purpose indicated, were, in my judgment, irregular.

The history of the call of those bodies, considering separately such as were convened before, and such as were convened after the close of the secession war, is as follows.

The particulars of the call of the Virginia Convention of 1861, by which the government of that State, wrested from its constitutional relations, was reconstructed, have been given in former sections of this chapter, when treating of the formation of the State of West Virginia.1 The principal facts only need be stated, that on the 13th of May, 1861, one month after the passage of the Secession Ordinance, "by a movement almost spontaneous, the loyal people of the Northwestern counties assembled in mass meeting at the city of Wheeling, to deliberate on their condition and the steps it behooved them to take. After much discussion, the result was that they invited the loyal people of the whole State to assemble in Convention at the same city, on the 11th of June then next, 'to devise such measures and take such action as the safety and welfare of the loyal citizens of Virginia may demand.'" 2 This Convention was composed of the members of the legislature previously duly elected under the existing Constitution and laws, and of delegates proportioned to the population of the counties, each being entitled to at least one. The Convention, having delegates from counties situated to the east as well as the west of the Alleghanies, on the 13th of June, adopted unanimously a declaration in which, after briefly reciting the acts of the usurping Convention and executive, 'in the name and on behalf of the good people

1 Ante, §§ 187-190.

2 Address of the Delegates composing the New State Constitutional Convention, to their Constituents, adopted February 18th, 1863, p. 12.