A Just and Lasting Peace: A Documentary History of Reconstruction (10 page)

(September 6, 1865)

Pennsylvania Representative Thaddeus Stevens (1792–1868) stood unquestionably as the most radical of Radical Republicans, the symbol of equal rights and opportunity for the freedpeople and of government extremism and misrule for their former masters. Like Sumner, Stevens refused to compromise and held a special hatred for the South's plantation leadership elite, which he blamed for disunion. Determined to make the Confederates pay for their treason, Stevens interpreted the former Rebel states as “conquered territory” and insisted that the Southern states should not return to the Union until they guaranteed the freedmen full political and civil rights. He favored various punishments for the ex-Confederates, including property confiscation and breaking up plantations into forty-acre plots for the former slaves. Stevens's “Reconstruction” speech to his Lancaster, Pennsylvania, constituents articulates clearly and forcefully his harsh Reconstruction program and why he and President Johnson disagreed so forcefully on the question.

 

Fellow Citizens:

In compliance with your request, I have come to give my views of the present condition of the Rebel States—of the proper mode of reorganizing the Government, and the future prospects of the Republic. During the whole progress of the war, I never for a moment felt doubt or despondency. I knew that the loyal North would conquer the Rebel despots who sought to destroy freedom. But since that traitorous confederation has been subdued, and we have entered upon the work of “reconstruction” or “restoration,” I cannot deny that my heart has become sad at the gloomy prospects before us.

Four years of bloody and expensive war, waged against the United States by eleven States, under a government called the “Confederate States of America,” to which they acknowledged allegiance, have overthrown all governments within those States which could be acknowledged as legitimate by the Union. The armies of the Confederate States having been conquered and subdued, and their territory possessed by the United States, it becomes necessary to establish governments therein, which shall be republican in form and principles, and form a more “perfect Union” with the parent Government. It is desirable that such a course should be pursued as to exclude from those governments every vestige of human bondage, and render the same forever impossible in this nation; and to take care that no principles of self-destruction shall be incorporated therein. In effecting this, it is to be hoped that no provision of the Constitution will be infringed, and no principle of the law of nations disregarded. Especially must we take care that in rebuking this unjust and treasonable war, the authorities of the Union shall indulge in no acts of usurpation which may tend to impair the stability and permanency of the nation. Within these limitations, we hold it to be the duty of the Government to inflict condign punishment on the rebel belligerents, and so weaken their hands that they can never again endanger the Union; and so reform their municipal institutions as to make them republican in spirit as well as in name.

We especially insist that the property of the chief rebels should be seized and appropriated to the payment of the National debt, caused by the unjust and wicked war which they instigated.

How can such punishments be inflicted and such forfeitures produced without doing violence to established principles?

Two positions have been suggested.

First—To treat those States as never having been out of the Union, because the Constitution forbids secession, and therefore, a fact forbidden by law could not exist.

Second—To accept the position to which they placed themselves as severed from the Union; an independent government
de facto,
and an alien enemy to be dealt with according to the laws of war.

It seems to me that while we do not aver that the United States are bound to treat them as an alien enemy, yet they have a right to elect so to do if it be for the interest of the Nation; and that the “Confederate States” are estopped from denying that position. South Carolina, the leader and embodiment of the rebellion, in the month of January, 1861, passed the following resolution by the unanimous vote of her Legislature:

“Resolved, That the separation of South Carolina from the Federal Union
is final,
and she has no further interests in the Constitution of the United States; and that the only appropriate negotiations between her and the Federal Government are as to their mutual relations as
foreign
States.”

The convention that formed the Government of the Confederate States, and all the eleven states that composed it, adopted the same declaration, and pledged their lives and fortunes to support it. That government raised large armies and by its formidable power compelled the nations of the civilized world as well as our own Government to acknowledge them as an independent belligerent, entitled by the law of nations to be considered as engaged in a public war, and not merely in an insurrection. It is idle to deny that we treated them as a belligerent, entitled to all the rights, and subject to all the liabilities of an alien enemy. We blockaded their ports, which is an undoubted belligerent right; the extent of coast blockaded marked the acknowledged extent of their territory—a territory criminally acquired but
de facto
theirs. We acknowledged their sea-rovers as privateers and not as pirates, by ordering their captive crews to be treated as prisoners of war. We acknowledged that a commission from the Confederate Government was sufficient to screen Semmes and his associates from the fate of lawless buccaneers. Who but an acknowledged government
de jure
or
de facto
, could have power to issue such a commission? The invaders of the loyal States were not treated as out-laws, but as soldiers of war, because they were commanded by officers holding commissions from that Government. The Confederate States were for four years what they claimed to be, an alien enemy, in all their rights and liabilities. To say that they were States under the protection of that constitution which they were rending, and within the Union which they were assaulting with bloody defeats, simply because they became belligerents through crime, is making theory overrule fact to an absurd degree. It will, I suppose, at least be conceded that the United States, if not obliged so to do, have a right to treat them as an alien enemy now conquered, and subject to all the liabilities of a vanquished foe.

If we are also at liberty to treat them as never having been out of the Union, and that their declarations and acts were all void because they contravened the Constitution, and therefore they were never engaged in a public war, but were merely insurgents, let us inquire which position is best for the United States. If they have never been otherwise than States in the Union, and we desire to try certain of the leaders for treason, the Constitution requires that they should be indicted and tried
“by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law.”

The crime of treason can be committed only where the person is actually or potentially present. Jefferson Davis sitting in Richmond, counseling, or advising, or commanding an inroad into Pennsylvania, has committed no overt act in this State, and can be tried, if any where, only in the Richmond District. The doctrine of constructive presence, and constructive treason, will never, I hope, pollute our statutes, or judicial decisions. Select an
impartial
jury from Virginia, and it is obvious that no conviction could ever be had. Possibly a jury might be packed to convict, but that would not be an “impartial” jury. It would be judicial murder, and would rank in infamy with the trial of Lord Russell, except only that the one was the murder of an innocent man, the other of a traitor. The same difficulties would exist in attempting forfeitures, which can only follow conviction in States protected by the Constitution; and then it is said only for the life of the malefactor—Congress can pass no “bill of attainder.”

Nor, under that theory, has Congress, much less the Executive, any power to interfere in remodelling those States upon reconstruction. What reconstruction is needed? Here are States which, they say, have never been out of the Union, and which are consequently now in it without asking leave of any one. They are competent to send Senators and members to Congress. The state of war has broken no constitutional ligaments, for it was only an insurrection of individuals, not a public war waged by States. Such is the reasoning, notwithstanding every State acted in its municipal capacity; and the court in the prize cases (2 Black 673) say:
“Hence in organizing this rebellion they have acted as States.”
It is no loose unorganized rebellion, having no defined boundary or possession. It has a boundary, marked by lines of bayonets, and which can be crossed only by force—south of this line
is enemy's
territories, because it is claimed and held in possession by an [“]organized, hostile and belligerent power.” What right has any one to direct a convention to be held in a sovereign State of this Union, to amend its constitution and prescribe the qualifications of voters? The sovereign power of the nation is lodged in Congress. Yet where is the warrant in the constitution for such sovereign power, much less the Executive, to intermeddle with the domestic institutions of a State, mould its laws, and regulate the elective franchise? It would be rank, dangerous and deplorable usurpation. In reconstruction, therefore, no reform can be effected in the Southern States if they have never left the Union. But reformation
must
be effected; the foundation of their institutions, both political, municipal and social,
must
be broken up and
relaid,
or all our blood and treasure have been spent in vain. This can only be done by treating and holding them as a conquered people. Then all things which we can desire to do, follow with logical and legitimate authority. As conquered territory, Congress would have full power to legislate for them; for the territories are not under the Constitution, except so far as the express power to govern them is given to Congress. They would be held in a territorial condition until they are fit to form State Constitutions, republican in fact, not in form only, and ask admission into the Union as new States. If Congress approve of their Constitutions, and think they have done works meet for repentance, they would be admitted as new States. If their Constitutions are not approved of, they would be sent back, until they have become wise enough so to purge their old laws as to eradicate every despotic and revolutionary principle—until they shall have learned to venerate the Declaration of Independence. I do not touch on the question of negro suffrage. If in the Union, the States have long ago regulated that, and for the Central Government to interfere with it would be mischievous impertinence. If they are to be admitted as new States they must form their own constitutions; and no enabling act could dictate its terms. Congress could prescribe the qualifications of voters while a Territory, or when proceeding to call a convention to form a State government. That is the extent of the power of Congress over the elective franchise, whether in a territorial or state condition. The President has not even this or any other power to meddle in the subject, except by advice to Congress—and they on territories. Congress, to be sure, has some sort of compulsory power by refusing the States admission until they shall have complied with its wishes over this subject. Whether those who have fought our battles should all be allowed to vote, or only those of a paler hue, I leave to be discussed in the future when Congress can take legitimate cognizance of it.

If capital punishments of the most guilty are deemed essential as examples, we have seen that, on the one theory, none of them can be convicted on fair trials—the complicity of the triers would defeat it. But, as a conquered enemy, they could not escape. Their trials would take place by courts-martial. I do not think they could thus be tried for treason; but they could be tried as belligerents, who had forfeited their lives, according to the laws of war. By the strict rights of war, as anciently practiced, the victor held the lives, the liberty and the property of the vanquished at his disposal. The taking of the life, or reduction to bondage of the captives, have long ceased to be practiced in case of ordinary wars; but the abstract right—the
summum jus
—is still recognized in exceptional cases where the cause of the war, or the character of the belligerent, or the safety of the victors justify its exercise. The same thing may be said of the seizure of property on land. Halleck (457) says some modern writers—Hautefeuille, for example—contends for the ancient rule, that private property on land may be subject to seizure. They are undoubtedly correct, with regard to the general abstract right, as deduced from [“]the law of nature and ancient practice.” Vattel says: “When, therefore, he has subdued a hostile nation, he undeniably may, in the first place, do himself justice respecting the object which has given rise to the war, and
indemnify himself for the expenses and damages
which he has sustained by it.” And at page 369: “A conqueror, who has taken up arms not only against the sovereign but against the nation herself, and whose intention it was to subdue a fierce and savage people, and once for all to reduce an obstinate enemy, such a conqueror may, with justice, lay burdens on the conquered nation, both as a compensation for the expenses of the war, and as a punishment.”

I am happy to believe that the Government has come to this conclusion. I cannot otherwise see how Capt. Wirz can be tried by a Court Martial at Washington for acts done by him at Andersonville. He was in no way connected with our military organization, nor did he as a citizen connect himself with our Army so as to bring his case within any of the Acts of Congress. If he committed murder in Georgia, and Georgia was a State in the Union, then he should be tried according to her laws. The General Government has no jurisdiction over such crime, and the trial and execution of this wretch by a United States Military Court would be illegal. But if he was an officer of a belligerent enemy, making war as an independent people, now being conquered, it is a competent, holding them as a conquered foe, to try him for doing acts contrary to the laws of war, and if found guilty to execute or otherwise punish him. As I am sure the loyal man at the head of the Government will not involve the nation in illegal acts and thus set a precedent injurious to our national character, I am glad to believe that hereafter we shall treat the enemy as conquered, and remit their condition and reconstruction to the sovereign power of the nation.