best energies of our statesmen were occupied with its solution. Eleven of the States had for four years been in armed insurrection, but now, through superior force, they lay helpless at the feet of the Union. Under these circumstances, what was their constitutional relation to the federal government?

Previous to the passage of the ordinance of secession by the convention of South Carolina in 1860, the nation never had been called upon to determine the status of a State which declared its relation to the federal government severed. Certainly if a State could establish its independence by war, the question, so far as such State was concerned, would have no significance; but as such a conclusion of the difficulty could not be considered for an instant, the status of the seceded State, both before and after the cessation of hostilities, immediately became an important subject of discussion. The gradual evolution of popular sentiment, from the belief that the dignity of a State should not be tampered with, to the belief that by an act of secession a State divested itself of all its rights and privileges as a State, and reverted to the condition of a Territory, forms an interesting chapter in the history of the unwritten constitution of the United States.

2. When the 37th Congress met on July 4, 1861, in pursuance of Lincoln’s proclamation, the war had not been in progress long enough to show to the country the extreme gravity of the situation and the wideness of the gap which had arisen between the Southern States and the rest of the Union. The common belief was that unprincipled agitators, who represented only a small minority of the legal voters in the insurrectionary States, had obtained temporary control over the governments of these States, and were waging a war against the Union, in which they were unsupported by the majority; and that the latter would joyfully resume control of their governments as soon as the opportunity should be given them, which it was confidently believed would soon happen. That is, the war was to be carried on, not against the States which claimed to have seceded, but against a certain element of the Southern population.

The extreme solicitude felt by Congress for the proper preservation of the sovereign privileges of these States is shown by the practical unanimity with which a resolution submitted by Mr. Crittenden, on July 22, was carried, there being only two dissenting voices.[1] It declared the sense of the House to be that[2] “this war is not waged upon our part in any spirit of oppression, nor for any purpose of conquest or subjugation, nor purpose of overthrowing or interfering with the rights or established institutions of those States, but to defend and maintain the supremacy of the Constitution and to preserve the Union with all the dignity, equality and rights of the several States unimpaired; and that as soon as these objects are accomplished the war ought to cease.” Three days later, Andrew Johnson, then a Senator from Tennessee, submitted the same resolution in the Senate,[3] where it was also carried with practical unanimity, although the discussion indicated a confused idea as to its exact significance.

But few months passed by before this staunch confidence in the rights of the States began to be shaken; a feeling of doubt had arisen which had not as yet resolved itself into a definite change of attitude, yet which was sufficient to prevent the re-endorsement of Mr. Crittenden’s resolution, introduced by Mr. Holman, December 4, 1861, and tabled by a vote of 71 to 65.[4]

A series of resolutions introduced in the Senate by Mr. Davis of Kentucky, on February 13, 1862,[5] while preserving in the main the principles then in vogue, assumed a somewhat broader tone and expressed very clearly the belief of a large element of the thoughtful classes. Affirming the permanency of the privileges of the people of the United States, it denied the criminality of the citizen who does not perform “his duties of loyalty and obedience, when the government fails to give him protection and security,” and declared that the powers of the nation and State in the State are simply in suspension during a period of insurrection, and should be resumed, unimpaired, when the insurrection ceases. Here also was affirmed, in unmistakable terms, the inability of the State to secede, and the consequent obligation of the United States to preserve in these States republican forms of government. The guilty leaders should be punished, but the masses should receive amnesty; and immediately following the important admission was made that “if the people of any State cannot or will not reconstruct their state government, and return to loyalty and duty, Congress should provide a government for such State as a territory of the United States, securing to the people thereof their appropriate constitutional rights.”

Here, in connection with the positive statement that a State cannot secede, and the implication that the insurrectionary citizen may be upheld in his actions, was a clear expression of so-called extra-constitutional powers in treating incorrigible States as territories. It would be interesting to know how these resolutions were viewed by the Senate, but they were laid on the table and never taken up for discussion.

3. During the opening days of the 3d Session of the 37th Congress, the question of the right to interfere with the States as States, was brought fairly before the House by a series of resolutions in which the policy of the extreme wing of the Democratic party was expressed.[6] In them it is declared that “the Union as it was, must be restored and maintained, one and indivisible.”[7] When this declaration is examined, with the President’s preliminary proclamation of emancipation in mind, the significance of the three italicised words can be seen. The resolutions, after quoting the substance of the Crittenden resolution, further declared that “whoever shall pervert or attempt to pervert the same to a war of conquest or subjugation, or for the overthrowing or interfering with the rights or established institutions of any of the States, and to abolish slavery therein, or for the purpose of destroying or impairing the dignity, equality, or rights of any of the States, will be guilty of a flagrant breach of public faith and of a high crime against the Constitution and the Union.” The same guilt was declared to attach to all who should “propose by federal authority, to extinguish any of the States of the Union, or to declare any of them extinguished, and to establish territorial governments within the same.”

These resolutions, which were an open