New-York tribune., 1902-07-16

loyal States. If they were out of the Union.
they could come in, If at ALL subject to the con-
stitutiOn as it stood at the time of admission.
II they were still in it, the attempt to impose
constitutional amendments upon them un-
warranted. They should either have had no
voice at all or a free voice. The Johnson plan
was impracticable in that it would have put in
absolute control Of the Southern States the peo-
pie who had just been conquered. The Congress
plan in many OF it's details certainly
unconstitutional and would have been declared
so if it could have been brought before the Su-
preme Court in a proper form involving private
rights After several cases had been thrown
out Of court involving purely political issues,
one came up fairly testing the question, and.
anticipating an adverse decision. Congress re-
pealed the law and avoided a judgment on its
work
Professor Burgess maintains that the proper
course of reconstruction would have been to
treat the conquered districts frankly terri
tory. and place the civil rights Of citizens In
the States under the protection of the United
States. The latter step would have been the
last act in the building of a consolidated nation.
1t would have made the States mere organs of
local self-government. Some thought the war
amendments had done this, but the Supreme
Court, in the Slaughter House cases. stood for
the old theory of the States sovereign authority
over its own citizens, and limited the scope Of
the amendments to securing the former slaves
against oppressive legislation. Concerning the
first step in his programme, Professor Burgess
asks: What reason is there for speaking of
the States in system of federal government
as indestructbe?" They emerge from the
status of Territories under the exclusive power
of Congress-. and may revert TO it upon losing
the conditions on which State existence is
founded. Revolt destroys the State, it does not
perdure as an abstraction. If re-established 1t
is new State, though it occupies the territory,
adopts the laws and assumes the obligations of
the old State. This, he declares was the sound
political science and the correct constitutional
law of reconstruction.
It certainly was the sound political science.
but it was not so certainly the correct consti-
tutional law. 1t would be the status Of States
under a scientifically correct national constitu-
ton, but the United States is not a school piece
Of political science. It is an actuality. full OF
and constitutional faults. Talk
about indestructible States in a nation may be
but it was Chief Justice Chase
who after the war declared that the consti-
tuition, in all its provisions, looks to an inde-
Union composed of indestructible
States" and in the case of Texas agt White
held that there could be no loss OF separate and
autonomy of the States, and that
Texas notwithstanding secession and rebellion,
never ceased to be State in the Union.
The theory Of Professor Burgess. on the con-
trary, would have allowed Congress to reform
the States with entirely different boundaries
even the original States which We're not the Gre
alton of Congress. but sovereigns who sur
rendered their sovereignty-in part or whole
10 make Congress possible. Under It, If gang
Of adventures should seize State capital and
could maintain themselves through military
power. though the large majority Of the people
Of the State were opposed to them, that loyal
people might be forever deprived Of their voice
n the government Of their country. Their land
could be held Indefinitely territory at the
Will of a Congress which might be in political
liscord with them, though they had COM
nitted no offence. and though the United States
guarantees TO every State republican form of
government and protection against invasion and
domestic violence.
The results of reconstruction were unfortu-
nate but the mistakes were due more to con-
servatism than to confusion Of thought about
he nature Of States. Wade, Stevens and Winter
Davis were working In the direction OF extreme
under the spur OF practical necessity,
yet they did not carry out any consistent policy
Of Transforming the government system. Lin
coin, Seward and Johnson. on the other hand,
we're conserving the system as 1t existed, &C
,ording to the rulings of all departments OF the
government for half century. This purpose
clashed with that of the radicals taking ad-
vantage Of power to fix upon the country the
results Of the war" and the elimination was
Impeachment. Perhaps. If Congress
had al the start boldly treated the South as
territory, and while constitutional law in
A state Of fux amid the confusion OF war COM
nitted the political power to this long step tow
I'd Of
rather than OF Chief Justice Chase might have
prevailed in Texas agt. White, and the settled
aw would have been that the revolving States
passed out Of existence, and that their territory
became a mere province, subject 70 the Jurisdic-
lion OF the United States. Thus Professor
Burgess's theory Of scientifically perfect fed
eral republic would have been established. It is
now only a theory Of political science for the
nation in it's evolution has not yet reached this
stage, and since the Supreme Court de-
cisions have tended to discourage rather than
development in this direction.
The aim Of Professor Burgess being the study
Of political principles, his narrative is COM
pressed and almost skeletonized. 1t is how
ever, clear and comprehensive, and gives an ex-
cellent picture Of the military movements Of
the Civil War and of events In the period of
The fairness of his judgments
Of men is notable, especially his generous ap-
probation Of the ability and sincerity Of Jeffer-
son Davis in his devotion to an ideal of gov
ernment which false and mischievous, but
strongly intrenched in tradition. Making due
allowance for the extreme positions taken in
lpholding what is undoubtedly the sound, help
,ul and progressive theory of the American con-
the work is entitled to high rank and
Nowhere else in the same compass
IS the history of the United States from 1860 to
1880 treated at once so readably and so phlo-
10 pitv houeyer hat he an