Even if it be admitted, however, that the federal government had the power
described, it may still be argued that the Reconstruction Acts are not
legally justified. A conqueror has a right to govern a conquered people as
he pleases and as long as he pleases; he also has a right to alter his
mode of treatment and substitute another mode. But after he has imposed
certain terms as final, after the requirements of these terms have been
complied with, after he has restored the conquered people to their normal
position and rights and has unmistakably terminated the relation of
conqueror to conquered--then his rights of war are at an end. It may be
argued that this was the case when the Reconstruction Acts were passed. It
may be argued that in December, 1865, the federal government had, through
the President, terminated its capacity as a conqueror, and could regain
that capacity only by another war; that after that termination it had no
more power to reconstruct Georgia than to reconstruct Maine.
This argument is irrefutable if we assume that the President had full
power to act for the federal government in the disposition of the defeated
Secessionists, and that therefore his acts of 1865 were the acts of the
federal government. In case of an international war, which is closed by a
treaty, the President may (if supported by the Senate) act finally for the
federal government, and estop that government (so far as international law
is concerned) from further action. But at the close of a civil war he
cannot exercise his diplomatic power. The disposition of the defeated
people in this case falls to the legislative branch of the government.
If the President had pardoned a great majority of the Secessionists, that
fact perhaps might have legally estopped Congress from passing the
Reconstruction Acts. These acts were a war punishment, and a pardon cuts
off further punishment.[79] But the total number of persons who received
amnesty under the proclamation of May 29, 1865, was 13,596,[80] which was
of course only a small fraction of the Secessionist population.
The passage of the Reconstruction Acts may thus be regarded, from a legal
point of view, as simply the substitution of one method of treating the
defeated enemy for another. The change was from mildness to harshness. It
was doubly bitter to the defeated enemy, after he had been led to believe
that his punishment was over, to be subjected to a worse one. But these
are not legal considerations.
Public-domain text, read in full here on John Shaqi.
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