THE
AMERICAN REPUBLIC: CHAPTER 12
ITS
CONSTITUTION TENDENCIES AND DESTINY
Orestes A. Brownson LL. D
TABLE OF CONTENTS
THE QUESTION OF
SECESSION
The doctrine that a State has a right to secede and carry with it its
population and domain, has been effectually put down, and the unity and
integrity of the United States as a sovereign nation have been
effectively asserted on the battle-field; but the secessionists, though
disposed to submit to superior force, and demean themselves henceforth
as loyal citizens, most likely hold as firmly to the doctrine as before
finding themselves unable to reduce it to practice, and the Union
victory will remain incomplete till they are convinced in their
understandings that the Union has the better reason as well as the
superior military resources. The nation has conquered their bodies,
but it is hardly less important for our statesmen to conquer their
minds and win their hearts.
The right of secession is not claimed as a revolutionary right, or even
as a conventional right. The secessionists disclaim revolutionary
principles, and hold that the right of secession is anterior to the
convention, a right which the convention could neither give, nor take
away, because inherent in the very conception of a sovereign State.
Secession is simply the repeal by the State of the act of accession to
the Union; and as that act was a free, voluntary act of the State, she
must always be free to repeal it. The Union is a copartnership; a
State in the Union is simply a member of the firm, and has the right to
withdraw when it judges it for its interest to do so. There is no
power in a firm to compel a copartner to remain a member any longer
than be pleases. He is undoubtedly holden for the obligations
contracted by the firm while he remains a member; but for none
contracted after he has withdrawn and given due notice thereof.
So of a sovereign State in the Union. The Union itself, apart from the
sovereign States that compose it, is a mere abstraction, a nullity, and
binds nobody. All its substance and vitality are in the agreement by
which the States constitute themselves a firm or copartnership, for
certain specific purposes, and for which they open an office and
establish an agency under express instructions for the management of
the general affairs of the firm. The State is held jointly and
severally for all the legal obligations of the Union, contracted while
she is in it but no further; and is free to withdraw when she pleases,
precisely as an individual may withdraw from an ordinary business firm.
The remaining copartners have no right of compulsion or coercion
against the seceding member, for he, saving the obligations already
contracted, is as free to withdraw as they are to remain.
The population is fixed to the domain and goes with it; the domain is
attached to the State, and secedes in the secession of the State.
Secession, then, carries the entire State government, people, and
domain out of the Union, and restores ipso facto the State to its
original position of a sovereign State, foreign to the United States.
Being an independent sovereign State, she may enter into a new
confederacy, form a new copartnership, or merge herself in some other
foreign state, as she judges proper or finds opportunity. The States
that seceded formed among themselves a new confederacy, more to their
mind than the one formed in 1787, as they had a perfect right to do,
and in the war just ended they were not rebels nor revolutionists, but
a people fighting for the right of self-government, loyal citizens and
true patriots defending the independence and inviolability of their
country against foreign invaders. They are to be honored for their
loyalty and patriotism, and not branded as rebels and punished as
traitors.
This is the secession argument, which rests on no assumption of
revolutionary principles or abstract rights of man, and on no
allegation of real or imaginary wrongs received from the Union, but
simply on the original and inherent rights of the several States as
independent sovereign States. The argument is conclusive, and the
defence complete, if the Union is only a firm or copartnership, and the
sovereignty vests in the States severally. The refutation of the
secessionists is in the facts adduced that disprove the theory of State
sovereignty, and prove that the sovereignty vests not in the States
severally, but in the States united, or that the Union is sovereign,
and not the States individually. The Union is not a firm, a
copartnership, nor an artificial or conventional union, but a real,
living, constitutional union, founded in the original and indissoluble
unity of the American people, as one sovereign people. There is,
indeed, no such people, if we abstract the States, but there are no
States if we abstract this sovereign people or the Union. There is no
Union without the States, and there are no States without the Union.
The people are born States, and the States are born United States. The
Union and the States are simultaneous, born together, and enter alike
into the original and essential constitution of the American state.
This the facts and reasonings adduced fully establish.
But this one sovereign people that exists only as organized into
States, does not necessarily include the whole population or territory
included within the jurisdiction of the United States. It is restricted
to the people and territory or domain organized into States in the
Union, as in ancient Rome the ruling people were restricted to the
tenants of the sacred territory, which had been surveyed, and its
boundaries marked by the god Terminus, and which by no means included
all the territory held by the city, and of which she was both the
private proprietor and the public sovereign. The city had vast
possessions acquired by confiscation, by purchase, by treaty, or by
conquest, and in reference to which her celebrated agrarian laws were
enacted, and which have their counterpart in our homestead and kindred
laws. In this class of territory, of which the city was the private
owner, was the territory of all the Roman provinces, which was held to
be only leased to its occupants, who were often dispossessed, and their
lands given as a recompense by the consul or imperator to his disbanded
legionaries. The provincials were subjects of Rome, but formed no part
of the Roman people, and had no share in the political power of the
state, till at a late period the privileges of Roman citizens were
extended to them, and the Roman people became coextensive with the
Roman empire. So the United States have held and still hold large
territorial possessions, acquired by the acknowledgment of their
independence by Great Britain, the former sovereign, the cession of
particular states, and purchase from France, Spain, and Mexico. Till
erected into States and admitted into the Union, this territory, with
its population, though subject to the United States, makes no part of
the political or sovereign territory and people of the United States.
It is under the Union, not in it, as is indicated by the phrase
admitting into the Union—a legal phrase, since the constitution
ordains that "new States may be admitted by the Congress into this
Union."
There can be no secession that separates a State from the national
domain, and withdraws it from the territorial sovereignty or
jurisdiction of the United States; yet what hinders a State from going
out of the Union in the sense that it comes into it, and thus ceasing
to belong to the political people of the United States?
If the view of the constitution taken in the preceding chapters be
correct, and certainly no facts tend to disprove it, the accession of a
Territory as a State in the Union is a free act of the territorial
people. The Territory cannot organize and apply for admission as a
State, without what is called an "enabling act" of Congress or its
equivalent; but that act is permissive, not mandatory, and nothing
obliges the Territory to organize under it and apply for admission. It
may do so or not, as it chooses. What, then, hinders the State once in
the Union from going out or returning to its former condition of
territory subject to the Union? The original States did not need to
come in under an enabling act, for they were born States in the Union,
and were never territory outside of the Union and subject to it. But
they and the new States, adopted or naturalized States, once in the
Union, stand on a footing of perfect equality, and the original States
are no more and no less bound than they to remain States in the Union.
The ratification of the constitution by the original States was a free
act, as much so as the accession of a new State formed from territory
subject to the Union is a free act, and a free act is an act which one
is free to do or not to do, as he pleases. What a State is free to do
or not to do, it is free to undo, if it chooses. There is nothing in
either the State constitution or in that of the United States that
forbids it.
This is denied. The population and domain are inseparable in the
State; and if the State could take itself out of the Union, it would
take them out, and be ipso facto a sovereign State foreign to the
Union. It would take the domain and the population out of the Union,
it is conceded and even maintained, but not therefore would it take
them out of the jurisdiction of the Union, or would they exist as a
State foreign to the Union; for population and territory may coexist,
as Dacota, Colorado, or New Mexico, out of the Union, and yet be
subject to the Union, or within the jurisdiction of the United States.
But the Union is formed by the surrender by each of the States of its
individual sovereignty, and each State by its admission into the Union
surrenders its individual sovereignty, or binds itself by a
constitutional compact to merge its individual sovereignty in that of
the whole. It then cannot cease to be a State in the Union without
breach of contract. Having surrendered its sovereignty to the Union,
or bound itself by the constitution to exercise its original
sovereignty only as one of the United States, it can unmake itself of
its state character, only by consent of the United States, or by a
successful revolution. It is by virtue of this fact that secession is
rebellion against the United States, and that the General government,
as representing the Union, has the right and the duty to suppress it by
all the forces at its command.
There can be no rebellion where there is no allegiance. The States in
the Union cannot owe allegiance to the Union, for they are it, and for
any one to go out of it is no more an act of rebellion than it is for a
king to abdicate his throne. The Union is not formed by the surrender
to it by the several States of their respective individual sovereignty.
Such surrender could, as we have seen, form only an alliance, or a
confederation, not one sovereign people; and from an alliance, or
confederation, the ally or confederate has, saving its faith, the
inherent right to secede. The argument assumes that the States were
originally each in its individuality a sovereign state, but by the
convention which framed the constitution, each surrendered its
sovereignty to the whole, and thus several sovereign states became one
sovereign political people, governing in general matters through the
General government, and in particular matters through particular or
State governments. This is Mr. Madison's theory, and also Mr.
Webster's; but it has been refuted in the refutation of the theory that
makes government originate in compact. A sovereign state can,
undoubtedly, surrender its sovereignty, but can surrender it only to
something or somebody that really exists; for to Surrender to no one or
to nothing is, as has been shown, the same thing as not to surrender at
all; and the Union, being formed only by the surrender, is nothing
prior to it, or till after it is made, and therefore can be no
recipient of the surrender.
Besides, the theory is the reverse of the fact. The State does not
surrender or part with its sovereignty by coming into the Union, but
acquires by it all the rights it holds as a State. Between the original
States and the new States there is a difference of mode by which they
become States in the Union, but none in their powers, or the tenure by
which they hold them. The process by which new States are actually
formed and admitted into the Union, discloses at once what it is that
is gained or lost by admission. The domain and population, before the
organization of the Territory into one of the United States, are
subject to the United States, inseparably attached to the domain of the
Union, and under its sovereignty. The Territory so remains, organized
or unorganized, under a Territorial Government created by Congress.
Congress, by an enabling act, permits it to organize as a State, to
call a convention to form a State constitution, to elect under it, in
such way as the convention ordains, State officers, a State
legislature, and, in the way prescribed by the Constitution of the
United States, senators and representatives in Congress. Here is a
complete organization as a State, yet, though called a State, it is no
State at all, and is simply territory, without a single particle of
political power. To be a State it must be recognized and admitted by
Congress as a State in the Union, and when so recognized and admitted
it possesses, in union with the other United States, supreme political
sovereignty, jointly in all general matters, and individually in all
private and particular matters.
The Territory gives up no sovereign powers by coming into the Union,
for before it came into the Union it had no sovereignty, no political
rights at all. All the rights and powers it holds are held by the
simple fact that it has become a State in the Union. This is as true
of the original States as of the new States; for it has been shown in
the chapter on The United States, that the original British sovereignty
under which the colonies were organized and existed passed, on the fact
of independence, to the States United, and not to the States severally.
Hence if nine States had ratified the constitution, and the other four
had stood out, and refused to do it, which was within their competency,
they would not have been independent sovereign States, outside of the
Union, but Territories under the Union.
Texas forms the only exception to the rule that the States have never
been independent of the Union. All the other new States have been
formed from territory subject to the Union. This is true of all the
States formed out of the Territory of the Northwest, and out of the
domain ceded by France, Spain, and Mexico to the United States. All
these cessions were held by the United States as territory immediately
subject to the Union, before being erected into States; and by far the
larger part is so held even yet. But Texas was an independent foreign
state, and was annexed as a State without having been first subjected
as territory to the United States. It of course lost by annexation its
separate sovereignty. But this annexation was held by many to be
unconstitutional; it was made when the State sovereignty theory had
gained possession of the Government, and was annexed as a State instead
of being admitted as a State formed from territory belonging to the
United States, for the very purpose of committing the nation to that
theory. Its annexation was the prologue, as the Mexican war was the
first act in the secession drama, and as the epilogue is the
suppression of the rebellion on Texan soil. Texas is an exceptional
case, and forms no precedent, and cannot be adduced as invalidating the
general rule. Omitting Texas, the simple fact is, the States acquire
all their sovereign powers by being States in the Union, instead of
losing or surrendering them.
Our American statesmen have overlooked or not duly weighed the facts in
the case, because, holding the origin of government in compact, they
felt no need of looking back of the constitution to find the basis of
that unity of the American people which they assert. Neither Mr.
Madison nor Mr. Webster felt any difficulty in asserting it as created
by the convention of 1787, or in conceding the sovereignty of the
States prior to the Union, and denying its existence after the
ratification of the constitution. If it were not that they held that
the State originates in convention or the social compact, there would
be unpardonable presumption on the part of the present writer in
venturing to hazard an assertion contrary to theirs. But, if their
theory was unsound, their practical doctrine was not; for they
maintained that the American people are one sovereign people, and Mr.
Quincy Adams, an authority inferior to neither, maintained that they
were always one people, and that the States hold from the Union, not
the Union from the States. The States without the Union cease to exist
as political communities: the Union without the States ceases to be a
Union, and becomes a vast centralized and consolidated state, ready to
lapse from a civilized into a barbaric, from a republican to a despotic
nation.
The State, under the American system, as distinguished from Territory,
is not in the domain and population fixed to it, nor yet in its
exterior organization, but solely in the political powers, rights, and
franchises which it holds from the United States, or as one of the
United States. As these are rights, not obligations, the State may
resign or abdicate them and cease to be a State, on the same principle
that any man may abdicate or forego his rights. In doing so, the State
breaks no oath of allegiance, fails to fulfil no obligation she
contracted as a State: she simply forgoes her political rights and
franchises. So far, then, secession is possible, feasible, and not
unconstitutional or unlawful. But it is, as Mr. Sumner and others have
maintained, simply State suicide. Nothing hinders a State from
committing suicide, if she chooses, any more than there was something
which compelled the Territory to become a State in the Union against
its will.
It is objected to, this conclusion that the States were, prior to the
Union, independent sovereign States, and secession would not destroy
the State, but restore it to its original sovereignty and independence,
as the secessionists maintain. Certainly, if the States were, Prior to
the Union, sovereign States; but this is precisely what has been denied
and disproved; for prior to the Union there were no States. Secession
restores, or reduces, rather, the State to the condition it was in
before its admission into the Union; but that condition is that of
Territory, or a Territory subject to the United States, and not that of
an independent sovereign state. The State holds all its political
rights and powers in the Union from the Union, and has none out of it,
or in the condition in which its population and domain were before
being a State in the Union.
State suicide, it has been urged, releases its population and territory
from their allegiance to the Union, and as there is no rebellion where
there is no allegiance, resistance by its population and territory to
the Union, even war against the Union, would not be rebellion, but the
simple assertion of popular sovereignty. This is only the same
objection in another form. The lapse of the State releases the
population and territory from no allegiance to the Union; for their
allegiance to the Union was not contracted by their becoming a State,
and they have never in their State character owed allegiance to the
United States. A State owes no allegiance to the United States, for it
is one of them, and is jointly sovereign. The relation between the
United States and the State is not the relation of suzerain and
liegeman or vassal. A State owes no allegiance, for it is not subject
to the Union; it is never in their State capacity that its population
and territory do or can rebel. Hence, the Government has steadily
denied that, in the late rebellion, any State as such rebelled.
But as a State cannot rebel, no State can go out of the Union; and
therefore no State in the late rebellion has seceded, and the States
that passed secession ordinances are and all along have been States in
the Union. No State can rebel, but it does not follow therefrom that
no State can secede or cease to exist as a State: it only follows that
secession, in the sense of State suicide, or the abdication by the
State of its political rights and powers, is not rebellion. Nor does
it follow from the fact that no State has rebelled, that no State has
ceased to be a State; or that the States that passed secession
ordinances have been all along States in the Union.
The secession ordinances were illegal, unconstitutional, not within the
competency of the State, and therefore null and void from the
beginning. Unconstitutional, illegal, and not within the competency of
the State, so far as intended to alienate any portion of the national
domain and population thereto annexed, they certainly were, and so far
were void and of no effect; but so far as intended to take the State
simply as a State out of the Union, they were within the competency of
the State, were not illegal or unconstitutional, and therefore not null
and void. Acts unconstitutional in some parts and constitutional in
others are not wholly void. The unconstitutionality vitiates only the
unconstitutional parts; the others are valid, are law, and recognized
and enforced as such by the courts.
The secession ordinances are void, because they were never passed by
the people of the State, but by a faction that overawed them and
usurped the authority of the State. This argument implies that, if a
secession ordinance is passed by the people proper of the State, it is
valid; which is more than they who urge it against the State suicide
doctrine are prepared to concede. But the secession ordinances were in
every instance passed by the people of the State in convention legally
assembled, therefore by them in their highest State capacity—in the
same capacity in which they ordain and ratify the State constitution
itself; and in nearly all the States they were in addition ratified and
confirmed, if the facts have been correctly reported, by a genuine
plebiscitum, or direct vote of the people. In all cases they were
adopted by a decided majority of the political people of the State, and
after their adoption they were acquiesced in and indeed actively
supported by very nearly the whole people. The people of the States
adopting the secession ordinances were far more unanimous in supporting
secession than the people of the other States were in sustaining the
Government in its efforts to suppress the rebellion by coercive
measures. It will not do, then, to ascribe the secession ordinances to
a faction. The people are never a faction, nor is a faction ever the
majority.
There has been a disposition at the North, encouraged by the few Union
men at the South, to regard secession as the work of a few ambitious
and unprincipled leaders, who, by their threats, their violence, and
their overbearing manner, forced the mass of the people of their
respective States into secession against their convictions and their
will. No doubt there were leaders at the South, as there are in every
great movement at the North; no doubt there were individuals in the
seceding States that held secession wrong in principle, and were
conscientiously attached to the Union; no doubt, also, there were men
who adhered to the Union, not because they disapproved secession, but
because they disliked the men at the head of the movement, or because
they were keen-sighted enough to see that it could not succeed, that
the Union must be the winning side, and that by adhering to it they
would become the great and leading men of their respective States,
which they certainly could not be under secession. Others sympathized
fully with what was called the Southern cause, held firmly the right of
secession, and hated cordially the Yankees, but doubted either the
practicability or the expediency of secession, and opposed it till
resolved on, but, after it was resolved on, yielded to none in their
earnest support of it. These last comprised the immense majority of
those who voted against secession. Never could those called the
Southern leaders have carried the secession ordinances, never could
they have carried on the war with the vigor and determination, and with
such formidable armies as they collected and armed for four years,
making at times the destiny of the Union well nigh doubtful, if they
had not had the Southern heart with them, if they had not been most
heartily supported by the overwhelming mass of the people. They led a
popular, not a factious movement.
No State, it is said again, has seceded, or could secede. The State is
territorial, not personal, and as no State can carry its territory and
population out of the Union, no State can secede. Out of the
jurisdiction of the Union, or alienate them from the sovereign or
national domain, very true; but out of the Union as a State, with
rights, powers, or franchises in the Union, not true. Secession is
political, not territorial.
But the State holds from the territory or domain. The people are
sovereign because attached to a sovereign territory, not the domain
because held by a sovereign people, as was established by the analysis
of the early Roman constitution. The territory of the States
corresponds to the sacred territory of Rome, to which was attached the
Roman sovereignty. That territory, once surveyed and consecrated,
remained sacred and the ruling territory, and could not be divested of
its sacred and governing character. The portions of the territory of
the United States once erected into States and consecrated as ruling
territory can never be deprived, except by foreign conquest or
successful revolution, of its sacred character and inviolable rights.
The State is territorial, not personal, and is constituted by public,
not by private wealth, and is always respublica or commonwealth, in
distinction from despotism or monarchy in its oriental sense, which is
founded on private wealth, or which assumes that the authority to
govern, or sovereignty, is the private estate of the sovereign. All
power is a domain, but there is no domain without a dominus or lord.
In oriental monarchies the dominus is the monarch; in republics it is
the public or people fixed to the soil or territory, that is, the
people in their territorial, and not in their personal or genealogical
relation. The people of The United States are sovereign only within
the territory or domain of the United States, and their sovereignty is
a state, because fixed, attached, or limited to that specific
territory. It is fixed to the soil, not nomadic. In barbaric nations
power is nomadic and personal, or genealogical, confined to no
locality, but attaches to the chief, and follows wherever he goes. The
Gothic chiefs hold their power by a personal title, and have the same
authority in their tribes on the Po or the Rhone as on the banks of the
Elbe or the Danube. Power migrates with the chief and his people, and
may be exercised wherever he and they find themselves, as a Swedish
queen held when she ordered the execution of one of her subjects at
Paris, without asking permission of the territorial lord. In these
nations, power is a personal right, or a private estate, not a state
which exists only as attached to the domain, and, as attached to the
domain, exists independently of the chief or the government. The
distinction is between public domain and private domain.
The American system is republican, and, contrary to what some
democratic politicians assert, the American democracy is territorial,
not personal; not territorial because the majority of the people are
agriculturists or landholders, but because all political rights,
powers, or franchises are territorial. The sovereign people of the
United States are sovereign only within the territory of the United
States. The great body of the freemen have the elective franchise, but
no one has it save in his State, his county, his town, his ward, his
precinct. Out of the election district in which he is domiciled, a
citizen of the United States has no more right to vote than has the
citizen or subject of a foreign state. This explains what is meant by
the attachment of power to the territory, and the dependence of the
state on the domain. The state, in republican states, exists only as
inseparably united with the public domain; under feudalism, power was
joined to territory or domain, but the domain was held as a private,
not as a public domain. All sovereignty rests on domain or
proprietorship, and is dominion. The proprietor is the dominus or lord,
and in republican states the lord is society, or the public, and the
domain is held for the common or public good of all. All political
rights are held from society, or the dominus, and therefore it is the
elective franchise is held from society, and is a civil right, as
distinguished from a natural, or even a purely personal right.
As there is no domain without a lord or dominus, territory alone cannot
possess any political rights or franchises, for it is not a domain. In
the American system, the dominus or lord is not the particular State,
but the United States, and, the domain of the whole territory, whether
erected into particular States or not, is in the United States alone.
The United States do not part with the dominion of that portion of the
national domain included within a particular State. The State holds
the domain not separately but jointly, as inseparably one of the United
States: separated, it has no dominion, is no State, and is no longer a
joint sovereign at all, and the territory that it included falls into
the condition of any other territory held by the United States not
erected into one of the United States.
Lawyers, indeed, tell us that the eminent domain is in the particular
State, and that all escheats are to the State, not to the United
States. All escheats of private estates, but no public or general
escheats. But this has nothing to do with the public domain. The
United States are the dominus, but they have, by the constitution,
divided the powers of government between a General government and
particular State governments, and ordained that all matters of a
general nature, common to all the States, should be placed under the
supreme control of the former, and all matters of a private or
particular character under the supreme control of the latter. The
eminent domain of private estates is in the particular State, but the
sovereign authority in the particular State is that of the United
States expressing itself through the State government. The United
States, in the States as well as out of them, is the dominus, as the
States respectively would soon find if they were to undertake to
alienate any part of their domain to a foreign power, or even to the
citizens or subjects of a foreign State, as is also evident from the
fact that the United States, in the way prescribed by the constitution,
may enlarge or contract at will the rights and powers of the States.
The mistake on this point grows out of the habit of restricting the
action of the United States to the General government, and not
recollecting that the United States govern one class of subjects
through the General government and another class through State
governments, but that it is one and the same authority that governs in
both.
The analogy borrowed from the Roman constitution, as far as applicable,
proves the reverse of what is intended. The dominus of the sacred
territory was the city, or the Roman state, not the sacred territory
itself. The territory received the tenant, and gave him as tenant the
right to a seat in the senate; but the right of the territory was
derived not from the domain, but from the dominus, that is, the city.
But the city could revoke its grant, as it practically did when it
conferred the privileges of Roman citizenship on the provincials, and
gave to plebeians seats in the senate. Moreover, nothing in Roman
history indicates that to the validity of a senatus consultum it was
necessary to count the vacant domains of the sacred territory. The
particular domain must, under the American system, be counted when it
is held by a State, but of itself alone, or even with its population,
it is not a State, and therefore as a State domain is vacant and
without any political rights or powers whatever.
To argue that the territory and population once a State in the Union
must needs always be so, would be well enough if a State in the Union
were individually a sovereign state; for territory, with its population
not subject to another, is always a sovereign state, even though its
government has been subverted. But this is not the fact, for territory
with its population does not constitute a State in the Union; and,
therefore, when of a State nothing remains but territory and
population, the State has evidently disappeared. It will not do then
to maintain that State suicide is impossible, and that the States that
adopted secession ordinances have never for a moment ceased to be
States in the Union, and are free, whenever they choose, to send their
representatives and senators to occupy their vacant seats in Congress.
They must be reorganized first.
There would also be some embarrassment to the government in holding
that the States that passed the secession ordinance remain,
notwithstanding, States in the Union. The citizens of a State in the
Union cannot be rebels to the United States, unless they are rebels to
their State; and rebels to their State they are not, unless they resist
its authority and make war on it. The authority of the State in the
Union is a legal authority, and the citizen in obeying it is disloyal
neither to the State nor to the Union. The citizens in the States that
made war on the United States did not resist their State, for they
acted by its authority. The only men, on this supposition, in them,
who have been traitors or rebels, are precisely the Union men who have
refused to go with their respective States, and have resisted, even
with armed force, the secession ordinances. The several State
governments, under which the so-called rebels carried on the war for
the destruction of the Union, if the States are in the Union, were
legal and loyal governments of their respective States, for they were
legally elected and installed, and conformed to their respective State
constitutions. All the acts of these governments have been
constitutional. Their entering into a confederacy for attaining a
separate nationality has been legal, and the debts contracted by the
States individually, or by the confederacy legally formed by them, have
been legally contracted, stand good against them, and perhaps against
the United States. The war against them has been all wrong, and the
confederates killed in battle have been murdered by the United States.
The blockade has been illegal, for no nation can blockade its own
ports, and the captures and seizures under it, robberies. The Supreme
Court has been wrong in declaring the war a territorial civil war, as
well as the government in acting accordingly. Now, all these
conclusions are manifestly false and absurd, and therefore the
assumption that the States in question have all along been States in
the Union cannot be sustained.
It is easy to understand the resistance the Government offers to the
doctrine that a State may commit suicide, or by its own act abdicate
its rights and cease to be a State in the Union. It is admissible on
no theory of the constitution that has been widely entertained. It is
not admissible on Mr. Calhoun's theory of State sovereignty, for on
that theory a State in going out of the Union does not cease to be a
State but simply resumes the powers it had delegated to the General
government. It cannot be maintained on Mr. Madison's or Mr. Webster's
theory, that the States prior to the Union were severally sovereign,
but by the Union were constituted one people; for, if this one people
are understood to be a federal people, State secession would not be
State suicide, but State independence; and if understood to be one
consolidated or centralized people, it would be simply insurrection or
rebellion against the national authority, laboring to make itself a
revolution. The government seems to have understood Mr. Madison's
theory in both senses—in the consolidated sense, in declaring the
secessionists insurgents and rebels, and in the federal sense, in
maintaining that they have never seceded, and are still States in the
Union, in full possession of all their political or State rights.
Perhaps, if the government, instead of borrowing from contradictory
theories of the constitution which have gained currency, had examined
in the light of historical facts the constitution itself, it would have
been as constitutional in its doctrine as it has been loyal and
patriotic, energetic and successful in its military administration.
Another reason why the doctrine that State secession is State suicide
has appeared so offensive to many, is the supposition entertained at
one time by some of its friends, that the dissolution of the State
vacates all rights and franchises held under it. But this is a
mistake. The principle is well known and recognized by the
jurisprudence of all civilized nations, that in the transfer of a
territory from one territorial sovereign to another, the laws in force
under the old sovereign remain in force after the change, till
abrogated, or others are enacted in their place by the new sovereign,
except such as are necessarily abrogated by the change itself of the
sovereign; not, indeed, because the old sovereign retains any
authority, but, because such is presumed by the courts to be the will
of the new sovereign. The principle applies in the case of the death
of a State in the Union. The laws of the State are territorial, till
abrogated by competent authority, remain the lex loci, and are in full
force. All that would be vacated would be the public rights of the
State, and in no case the private rights of citizens, corporations, or
laws affecting them.
But the same conclusion is reached in another way. In the lapse of a
State or its return to the condition of a Territory, there is really no
change of sovereignty. The sovereignty, both before and after, is the
United States. The sovereign authority that governs in the State
government, as we have seen, though independent of the General
government, is the United States. The United States govern certain
matters through a General government, and others through particular
State governments. The private rights and interests created,
regulated, or protected by the particular State, are created,
regulated, or protected by the United States, as much and as plenarily
as if done by the General government, and the State laws creating,
regulating, or protecting them can be abrogated by no power known to
the constitution, but either the State itself, or the United States in
convention legally assembled. If this were what is meant by the States
that have seceded, or professed to secede, remaining States in the
Union, they would, indeed, be States still in the Union,
notwithstanding secession and the government would be right in saying
that no State can secede. But this is not what is meant, at least not
all that is meant. It is meant not only that the private rights of
citizens and corporations remain, but the citizens retain all the
public rights of the State, that is, the right to representation in
Congress and in the electoral college, and the right to sit in the
convention, which is not true.
But the correction of the misapprehension that the private rights and
interests are lost by the lapse of the State may remove the graver
prejudices against the doctrine of State suicide, and dispose loyal and
honest Union men to bear the reasons by which it is supported, and
which nobody has refuted or can refute on constitutional grounds. A
Territory by coming into the Union becomes a State; a State by going
out of the Union becomes a Territory.
CHAPTER XIII.
RECONSTRUCTION.
The question of reconstructing the States that seceded will be
practically settled before these pages can see the light, and will
therefore be considered here only so far as necessary to complete the
view of the constitution of the United States. The manner in which the
government proposed to settle, has settled, or will settle the
question, proves that both it and the American people have only
confused views of the rights and powers of the General government, but
imperfectly comprehend the distinction between the legislative and
executive departments of that Government, and are far more familiar
with party tactics than with constitutional law.
It would be difficult to imagine any thing more unconstitutional, more
crude, or more glaringly impolitic than the mode of reconstruction
indicated by the various executive proclamations that have been issued,
bearing on the subject, or even by the bill for guaranteeing the States
republican governments, that passed Congress, but which failed to
obtain the President's signature. It is, in some measure,
characteristic of the American government to understand how things
ought to be done only when they are done and it is too late to do them
in the right way. Its wisdom comes after action, as if engaged in a
series of experiments. But, happily for the nation, few blunders are
committed that with our young life and elasticity are irreparable, and
that, after all, are greater than are ordinarily committed by older and
more experienced nations. They are not of the most fatal character,
and are, for the most part, such as are incident to the conceit, the
heedlessness, the ardor, and the impatience of youth, and need excite
no serious alarm for the future.
There has been no little confusion in the public mind, and in that of
the government itself, as to what reconstruction is, who has the power
to reconstruct, and how that power is to be exercised. Are the States
that seceded States in the Union, with no other disability than that of
having no legal governments? or are they Territories subject to the
Union? Is their reconstruction their erection into new States, or
their restoration as States previously in the Union? Is the power to
reconstruct in the States themselves? or is it in the General
government? If partly in the people and partly in the General
government, is the part in the General government in Congress, or in
the Executive? If in Congress, can the Executive, without the
authority of Congress, proceed to reconstruct, simply leaving it for
Congress to accept or reject the reconstructed State? If the power is
partly in the people of the disorganized States who or what defines
that people, decides who may or may not vote in the reorganization? On
all these questions there has been much crude, if not erroneous,
thinking, and much inconsistent and contradictory action.
The government started with the theory that no State had seceded or
could secede, and held that, throughout, the States in rebellion
continued to be States in the Union. That is, it held secession to be
a purely personal and not a territorial insurrection. Yet it
proclaimed eleven States to be in insurrection against the United
States, blockaded their ports, and interdicted all trade and
intercourse of any kind with them. The Supreme Court, in order to
sustain the blockade and interdict as legal, decided the war to be not
a war against simply individual or personal insurgents but "a
territorial civil war." This negatived the assumption that the States
that took up arms against the United States remained all the while
peaceable and loyal States, with all their political rights and powers
in the Union. The States in the Union are integral elements of the
political sovereignty, for the sovereignty of the American nation vests
in the States finite; and it is absurd to pretend that the eleven
States that made the rebellion and were carrying on a formidable war
against the United States, were in the Union, an integral element of
that sovereign authority which was carrying on a yet more formidable
war against them. Nevertheless, the government still held to its first
assumption, that the States in rebellion continued to be States in the
Union—loyal States, with all their rights and franchises unimpaired!
That the government should at first have favored or acquiesced in the
doctrine that no State had ceased to be a State in the Union, is not to
be wondered at. The extent and determination of the secession movement
were imperfectly understood, and the belief among the supporters of the
government, and, perhaps, of the government itself, was, that it was a
spasmodic movement for a temporary purpose, rather than a fixed
determination to found an independent separate nationality; that it was
and would be sustained by the real majority of the people of none of
the States, with perhaps the exception of South Carolina; that the true
policy of the government would be to treat the seceders with great
forbearance, to avoid all measures likely to exasperate them or to
embarrass their loyal fellow-citizens, to act simply on the defensive,
and to leave the Union men in the several seceding States to gain a
political victory at the polls over the secessionists, and to return
their States to their normal position in the Union.
The government may not have had much faith in this policy, and Mr.
Lincoln's personal authority might be cited to the effect that it had
not, but it was urged strongly by the Union men of the Border States.
The administration was hardly seated in office, and its members were
new men, without administrative experience; the President, who had been
legally elected indeed, but without a majority of the popular votes,
was far from having the full confidence even of the party that elected
him; opinions were divided; party spirit ran high; the excitement was
great, the crisis was imminent, the government found itself left by its
predecessor without an army or a navy, and almost without arms or
ordnance; it knew not how far it could count on popular support, and
was hardly aware whom it could trust or should distrust; all was hurry
and confusion; and what could the government do but to gain time, keep
off active war as long as possible, conciliate all it could, and take
ground which at the time seemed likely to rally the largest number of
the people to its support? There were men then, warm friends of the
administration, and still warmer friends of their country, who believed
that a bolder, a less timid, a less cautious policy would have been
wiser, that in revolutionary times boldness, what in other times would
be rashness, is the highest prudence, on the side of the government as
well as on the side of the revolution; that when once it has shown
itself, the rebellion that hesitates, deliberates, consults, is
defeated and so is the government. The seceders owed from the first
their successes not to their superior organization, to their better
preparation, or to the better discipline and appointment of their
armies, but to their very rashness, to their audacity even, and the
hesitancy, cautious and deliberation of the government. Napoleon owed
his successes as general and civilian far more to the air of power he
assumed, and the conviction he produced of his invincibility in the
minds of his opponents, than to his civil or military strategy and
tactics, admirable as they both were. But the government believed it
wisest to adopt a conciliatory and, in many respects, a temporizing
policy, and to rely more on weakening the secessionists in their
respective States than on strengthening the hands and hearts of its own
staunch and uncompromising supporters. It must strengthen the Union
party in the insurrectionary States, and as this party hoped to succeed
by political manipulation rather than by military force, the government
must rely rather on a show of military power than on gaining any
decisive battle. As it hoped, or affected to hope, to suppress the
rebellion in the States that seceded through their loyal citizens, it
was obliged to assume that secession was the work of a faction, of a
few ambitious and disappointed politicians, and that the States were
all in the Union, and continued in the loyal portion of their
inhabitants. Hence its aid to the loyal Virginians to organize as the
State of Virginia, and its subsequent efforts to organize the Union men
in Louisiana, Arkansas, and Tennessee, and its disposition to recognize
their organization in each of those States as the State itself, though
including only a small minority of the territorial people. Had the
facts been as assumed, the government might have treated the loyal
people of each State as the State itself, without any gross usurpation
of power; but, unhappily, the facts assumed were not facts, and it was
soon found that the Union party in all the States that seceded, except
the western part of Virginia and the eastern section of Tennessee,
after secession had been carried by the popular vote, went almost
unanimously with the secessionists; for they as well as the
secessionists held the doctrine of State sovereignty; and to treat the
handful of citizens that remained loyal in each State as the State
itself, became ridiculous, and the government should have seen and
acknowledged it.
The rebellion being really territorial, and not personal, the State
that seceded was no more continued in the loyal than in the disloyal
population. While the war lasted, both were public enemies of the
United States, and neither had or could have any rights as a State in
the Union. The law recognizes a solidarity of all the citizens of a
State, and assumes that, when a State is at war, all its citizens are
at war, whether approving the war or not. The loyal people in the
States that seceded incurred none of the pains and penalties of
treason, but they retained none of the political rights of the State in
the Union, and, in reorganizing the State after the suppression of the
rebellion, they have no more right to take part than the secessionists
themselves. They, as well as the secessionists, have followed the
territory. It was on this point that the government committed its
gravest mistake. As to the reorganization or reconstruction of the
State, the whole territorial people stood on the same footing.
Taking the decision of the Supreme Court as conclusive on the subject,
the rebellion was territorial, and, therefore, placed all the States as
States out of the Union, and retained them only as population and
territory, under or subject to the Union. The States ceased to exist,
that is, as integral elements of the national sovereignty. The
question then occurred, are they to be erected into new States, or are
they to be reconstructed and restored to the Union as the identical old
States that seceded? Shall their identity be revived and preserved, or
shall they be new States, regardless of that identity? There can be no
question that the work to be done was that of restoration, not of
creation; no tribe should perish from Israel, no star be struck from
the firmament of the Union. Every inhabitant of the fallen States, and
every citizen of the United States must desire them to be revived and
continued with their old names and boundaries, and all true Americans
wish to continue the constitution as it is, and the Union as it was.
Who would see old Virginia, the Virginia of revolutionary fame, of
Washington, Jefferson, Madison, of Monroe, the "Old Dominion," once the
leading State of the Union, dead without hope of resurrection? or South
Carolina, the land of Rutledge, Moultrie, Laurens, Hayne, Sumter, and
Marion? There is something grating to him who values State
associations, and would encourage State emulation and State pride, in
the mutilation of the Old Dominion and the erection within her borders
of the new State called West Virginia. States in the Union are not
mere prefectures, or mere dependencies on the General government,
created for the convenience of administration. They have an
individual, a real existence of their own, as much so as have the
individual members of society. They are free members, not of a
confederation indeed, but of a higher political community, and
reconstruction should restore the identity of their individual life,
suspended for a moment by secession, but capable of resuscitation.
These States had become, indeed, for a moment, territory under the
Union; but in no instance had they or could they become territory that
had never existed as States. The fact that the territory and people
had existed as a State, could with regard to none of them be
obliterated, and, therefore, they could not be erected into absolutely
new States. The process of reconstructing them could not be the same
as that of creating new States. In creating a new State, Congress, ex
necessitate, because there is no other power except the national
convention competent to do it, defines the boundaries of the new State,
and prescribes the electoral people, or who may take part in the
preliminary organization but in reconstructing States it does neither,
for both are done by a law Congress is not competent to abrogate or
modify, and which can be done only by the United States in convention
assembled, or by the State itself after its restoration. The
government has conceded this, and, in part, has acted on it. It
preserves, except in Virginia, the old boundaries, and recognizes, or
rather professes to recognize the old electoral law, only it claims the
right to exclude from the electoral people those who have voluntarily
taken part in the rebellion.
The work to be done in States that have seceded is that of
reconstruction, not creation; and this work is not and cannot be done,
exclusively nor chiefly by the General government, either by the
Executive or by Congress. That government can appoint military, or
even provisional governors, who may designate the time and place of
holding the convention of the electoral people of the disorganized
State, as also the time and place of holding the elections of delegates
to it, and superintend the elections so far as to see the polls are
opened, and that none but qualified electors vote, but nothing more.
All the rest is the work of the territorial electoral people
themselves, for the State within its own sphere must, as one of the
United States, be a self-governing community. The General government
may concede or withhold permission to the disorganized State to
reorganize, as it judges advisable, but it cannot itself reorganize it.
If it concedes the permission, it must leave the whole electoral people
under the preexisting electoral law free to take part in the work of
reorganization, and to vote according to their own judgment. It has no
authority to purge the electoral people, and say who may or may not
vote, for the whole question of suffrage and the qualifications of
electors is left to the State, and can be settled neither by an act of
Congress nor by an Executive proclamation.
If the government theory were admissible, that the disorganized States
remain States in the Union, the General government could have nothing
to say on the subject, and could no more interfere with elections in
any one of them than it could with elections in Massachusetts or New
York. But even on the doctrine here defended it can interfere with
them only by way of general superintendence. The citizens have,
indeed, lost their political rights, but not their private rights.
Secession has not dissolved civil society, or abrogated any of the laws
of the disorganized State that were in force at the time of secession.
The error of the government is not in maintaining that these laws
survive the secession ordinances, and remain the territorial law, or
lex loci, but in maintaining that they do so by will of the State, that
has, as a State, really lapsed. They do so by will of the United
States, which enacted them through the individual State, and which has
not in convention abrogated them, save the law authorizing slavery, and
its dependent laws.
This point has already been made, but as it is one of the niceties of
the American constitution, it may not be amiss to elaborate it at
greater length. The doctrine of Mr. Jefferson, Mr. Madison, and the
majority of our jurists, would see to be that the States, under God,
are severally sovereign in all matters not expressly confided to the
General government, and therefore that the American sovereignty is
divided, and the citizen owes a double allegiance—allegiance to his
State, and allegiance to the United States—as if there was a United
States distinguishable from the States. Hence Mr. Seward, in an
official dispatch to our minister at the court of St. James, says: "The
citizen owes allegiance to the State and to the United States." And
nearly all who hold allegiance is due to the Union at all, hold that it
is also due to the States, only that which is due to the United States
is paramount, as that under feudalism due to the overlord. But this is
not the case. There is no divided sovereignty, no divided allegiance.
Sovereignty is one, and vests not in the General government or in the
State government, but in the United States, and allegiance is due to
the United States, and to them alone. Treason can be committed only
against the United States, and against a State only because against the
United States, and is properly cognizable only by the Federal courts.
Hence the Union men committed no treason in refusing to submit to the
secession ordinances of their respective States, and in sustaining the
national arms against secession.
There are two very common mistakes: the one that the States
individually possess all the powers not delegated to the General
government; and the other that the Union, or United States, have only
delegated powers. But the United States possess all the powers of a
sovereign state, and the States individually and the General government
possess only such powers as the United States in convention delegate to
them respectively. The sovereign is neither the General government nor
the States severally, but the United States in convention. The United
States are the one indivisible sovereign, and this sovereign governs
alike general matters in the General government, and particular matters
in the several State governments. All legal authority in either
emanates from this one indivisible and plenary sovereign, and hence the
law enacted by a State are really enacted by the United States, and
derive from them their force and vitality as laws. Hence, as the United
States survive the particular State, the lapse of the State does not
abrogate the State laws, or dissolve civil society within its
jurisdiction.
This is evidently so, because civil society in the particular State
does not rest on the State alone, nor on Congress, but on the United
States. Hence all civil rights of every sort created by the individual
State are really held from the United States, and therefore it was that
the people of non-slaveholding States were, as citizens of the United
States, responsible for the existence of slavery in the States that
seceded. There is a solidarity of States in the Union as there is of
individuals in each of the States. The political error of the
Abolitionists was not in calling upon the people of the United States
to abolish slavery, but in calling upon them to abolish it through the
General government, which had no jurisdiction in the case; or in their
sole capacity as men, on purely humanitarian grounds, which were the
abrogation of all government and civil society itself, instead of
calling upon them to do it as the United States in convention
assembled, or by an amendment to the constitution of the United States
in the way ordained by that constitution itself. This understood, the
constitution and laws of a defunct State remain in force by virtue of
the will of the United States, till the State is raised from the dead,
restored to life and activity, and repeals or alters them, or till they
are repealed or altered by the United States or the national
convention. But as the defunct State could not, and the convention had
not repealed or altered them, save in the one case mentioned, the
General government had no alternative but to treat them and all rights
created by them as the territorial law, and to respect them as such.
What then do the people of the several States that seceded lose by
secession? They lose, besides incurring, so far as disloyal, the pains
and penalties of treason, their political rights, or right, as has just
been said, to be in their own department self-governing communities,
with the right of representation in Congress and the electoral
colleges, and to sit in the national convention, or of being counted in
the ratification of amendments to the constitution—precisely what it
was shown a Territorial people gain by being admitted as a State into
the Union. This is the difference between the constitutional doctrine
and that adopted by Mr. Lincoln's and Mr. Johnson's Administrations.
But what authority, on this constitutional doctrine, does the General
government gain over the people of States that secede, that it has not
over others! As to their internal constitution, their private rights
of person or property, it gains none. It has over them, till they are
reconstructed and restored to the Union, the right to institute for
them provisional governments, civil or military, precisely as it has
for the people of a territory that is not and has never been one of the
United States; but in their reconstruction it has less, for the
geographical boundaries and electoral people of each are already
defined by a law which does not depend on its will, and which it can
neither abrogate nor modify. Here is the difference between the
constitutional doctrine and that of the so-called radicals. The State
has gone, but its laws remain, so far as the United States in
convention does not abrogate them; not because the authority of the
State survives, but because the United States so will, or are presumed
to will. The United States have by a constitutional amendment
abrogated the laws of the several States authorizing slavery, and
prohibited slavery forever within the jurisdiction of the Union; and no
State can now be reconstructed and be admitted into the Union with a
constitution that permits slavery, for that would be repugnant to the
constitution of the United States. If the constitutional amendment is
not recognized as ratified by the requisite number of States, it is the
fault of the government in persisting in counting as States what are no
States. Negro suffrage, as white suffrage, is at present a question
for States.
The United States guarantee to such State a republican form of
government. And this guarantee, no doubt, authorizes Congress to
intervene in the internal constitution of a State so far as to force it
to adopt a republican form of government, but not so far as to organize
a government for a State, or to compel a territorial people to accept
or adopt a State constitution for themselves. If a State attempts to
organize a form of government not republican, it can prevent it; and if
a Territory adopts an unrepublican form, it can force it to change its
constitution to one that is republican, or compel it to remain a
Territory under a provisional government. But this gives the General
government no authority in the organization or re-organization of
States beyond seeing that the form of government adopted by the
territorial people is republican. To press it further, to make the
constitutional clause a pretext for assuming the entire control of the
organization or re-organization of a State, is a manifest abuse—a
palpable violation of the constitution and of the whole American
system. The authority given by the clause is specific, and is no
authority for intervention in the general reconstruction of the lapsed
State. It gives authority in no question raised by secession or its
consequences, and can give none, except, from within or from without,
there is an overt attempt to organize a State in the Union with an
unrepublican form of government.
The General government gives permission to the territorial people of
the defunct State to re-organize, or it contents itself with suffering
them, without special recognition, to reorganize in their own way, and
apply to Congress for admission, leaving it to Congress to admit them
as a State, or not, according to its own discretion, in like manner as
it admits a new State; but the re-organization itself must be the work
of the territorial people themselves, under their old electoral law.
The power that reconstructs is in the people themselves; the power that
admits them, or receives them into the Union, is Congress. The
Executive, therefore, has no authority in the matter, beyond that of
seeing that the laws are duly complied with; and whatever power he
assumes, whether by proclamation or by instructions given to the
provisional governors, civil or military, is simply a usurpation of the
power of Congress, which it rests with Congress to condone or not, as
it may see fit. Executive proclamations, excluding a larger or a
smaller portion of the electoral or territorial people from the
exercise of the elective franchise in reorganizing the State, and
executive efforts to throw the State into the hands of one political
party or another, are an unwarrantable assumption of power, for the
President, in relation to reconstruction, acts only under the peace
powers of the constitution, and simply as the first executive officer
of the Union. His business is to execute the laws, not to make them.
His legislative authority is confined to his qualified veto on the acts
of Congress, and to the recommendation to Congress of such measures as
he believes are needed by the country.
In reconstructing a disorganized State, neither Congress nor the
Executive has any power that either has not in time of peace. The
Executive, as commander-in-chief of the army, may ex necessitate, pace
it ad interim under a military governor, but he cannot appoint even a
provisional civil governor till Congress has created the office and
given him authority to fill it; far less can be legally give
instructions to the civil governor as to the mode or manner of
reconstructing the disorganized State, or decide who may or may not
vote in the preliminary reorganization. The Executive could do nothing
of the sort, even in regard to a Territory never erected into a State.
It belongs to Congress, not to the Executive, to erect Territorial or
provisional governments, like those of Dacotah, Colorado, Montana,
Nebraska, and New Mexico; and, Congress, not the executive, determines
the boundaries of the Territory, passes the enabling act, and defines
the electoral people, till the State is organized and able to act
herself. Even Congress, in reconstructing and restoring to life and
vigor in the Union a disorganized State, has nothing to say as to its
boundaries or its electoral people, nor any right to interfere between
parties in the State, to throw the reconstructed State into the hands
of one or another party. All that Congress can insist on is, that the
territorial people shall reconstruct with a government republican in
form; that its senators and representatives in Congress, and the
members of the State legislature, and all executive and judicial
officers of the State shall be bound by oath or affirmation to support
and defend the constitution of the United States. In the whole work
the President has nothing to do with reconstruction, except to see that
peace is preserved and the laws are fully executed.
It may be at least doubted that the Executive has power to proclaim
amnesty and pardon to rebels after the civil war has ceased, and ceased
it has when the rebels have thrown down their arms and submitted; for
his pardoning power is only to pardon after conviction and judgment of
the court: it is certain that he has no power to proscribe or punish
even traitors, except by due process of law. When the war is over he
has only his ordinary peace powers. He cannot then disfranchise any
portion of the electoral people of a State that seceded, even though
there is no doubt that they have taken part in the rebellion, and may
still be suspected of disloyal sentiments. Not even Congress can do
it, and no power known to the constitution till the State is
reconstructed can do it without due process of law, except the national
convention. Should the President do any of the things supposed, he
would both abuse the power he has and usurp power that he has not, and
render himself liable to impeachment. There are many things very
proper, and even necessary to be done, which are high crimes when done
by an improper person or agent. The duty of the President, when there
are steps to be taken or things to be done which he believes very
necessary, but which are not within his competency, is, if Congress is
not in session, to call it together at the earliest practicable moment,
and submit the matter to its wisdom and discretion.
It must be remembered that the late rebellion was not a merely personal
but a territorial rebellion. In such a rebellion, embracing eleven
States, and, excluding slaves, a population of at least seven millions,
acting under an organized territorial government, preserving internal
civil order, supporting an army and navy under regularly commissioned
officers, and carrying on war as a sovereign nation—in such a
territorial rebellion no one in particular can be accused and punished
as a traitor. The rebellion is not the work of a few ambitious or
reckless leaders, but of the people, and the responsibility of the
crime, whether civil or military, is not individual, but common to the
whole territorial people engaged in it; and seven millions, or the half
of them, are too many to ban to exile, or even to disfranchise Their
defeat and the failure of their cause must be their punishment. The
interest of the country, as well the sentiment of the civilized
world—it might almost be said the law of nations—demands their
permission to return to their allegiance, to be treated according to
their future merits, as an integral portion of the American people.
The sentiment of the civilized world has much relaxed from its former
severity toward political offenders. It regards with horror the savage
cruelties of Great Britain to the unfortunate Jacobites, after their
defeat under Charles Edward, at Culloden, in 1746, their barbarous
treatment of the United Irishmen in 1798, and her brutality to the
mutinous Hindoos in 1857-'58; the harshness of Russia toward the
insurgent Poles, defeated in their mad attempts to recover their lost
nationality; the severity of Austria, under Haynau, toward the defeated
Magyars. The liberal press kept up for years, especially in England
and the United States, a perpetual howl against the Papal and
Neapolitan governments for arresting and imprisoning men who conspired
to overthrow them. Louis Kossuth was no less a traitor than Jefferson
Davis, and yet the United States solicited his release from a Turkish
prison, and sent a national ship to bring him hither as the nation's
guest. The people of the United States have held from the first "the
right of insurrection," and have given their moral support to every
insurrection in the Old or New World they discovered, and for them to
treat with severity any portion of the Southern secessionists, who, at
the very worst, only acted on the principles the nation had uniformly
avowed and pronounced sacred, would be regarded, and justly, by the
civilized world as little less than infamous.
Not only the fair fame, but the interest of the Union forbids any
severity toward the people lately in arms against the government. The
interest of the nation demands not the death or the expulsion of the
secessionists, and, least of all, of those classes proscribed by the
President's proclamation of the 29th of May, 1865, nor even their
disfranchisement, perpetual or temporary; but their restoration to
citizenship, and their loyal co-operation with all true-hearted
Americans, in hearing the wounds inflicted on the whole country by the
civil war. There need be no fear to trust them. Their cause is lost;
they may or may not regret it, but lost it is, and lost forever. They
appealed to the ballot-box, and were defeated; they appealed from the
ballot-box to arms, to war, and have been again defeated, terribly
defeated. They know it and feel it. There is no further appeal for
them; the judgment of the court of last resort has been rendered, and
rendered against them. The cause is finished, the controversy closed,
never to be re-opened. Henceforth the Union is invincible, and it is
worse than idle to attempt to renew the war against it. Henceforth
their lot is bound up with that of the nation, and all their hopes and
interests, for themselves and their children, and their children's
children, depend on their being permitted to demean themselves
henceforth as peaceable and loyal American citizens. They must seek
their freedom, greatness, and glory in the freedom, greatness, and
glory of the American republic, in which, after all, they can be far
freer, greater, more glorious than in a separate and independent
confederacy. All the arguments and considerations urged by Union men
against their secession, come back to them now with redoubled force to
keep them henceforth loyal to the Union.
They cannot afford to lose the nation, and the nation cannot afford to
lose them. To hang or exile them, and depopulate and suffer to run to
waste the lands they had cultivated, were sad thrift, sadder than that
of deporting four millions of negroes and colored men. To exchange
only those excepted from amnesty and pardon by President Johnson,
embracing some two millions or more, the very pars sanior of the
Southern population, for what would remain or flock in to supply their
place, would be only the exchange of Glaucus and Diomed, gold for
brass; to disfranchise them, confiscate their estates, and place them
under the political control of the freedmen, lately their slaves, and
the ignorant and miserable "white trash," would be simply to render
rebellion chronic, and to convert seven millions of Americans, willing
and anxious to be free, loyal American citizens, eternal enemies. They
have yielded to superior numbers and resources; beaten, but not
disgraced, for they have, even in rebellion, proved themselves what
they are—real Americans. They are the product of the American soil,
the free growth of the American republic, and to disgrace them were to
disgrace the whole American character and people.
The wise Romans never allowed a triumph to a Roman general for
victories, however brilliant, won over Romans. In civil war, the
victory won by the government troops is held to be a victory for the
country, in which all parties are victors, and nobody is vanquished.
It was as truly for the good of the secessionists to fail, as it was
for those, who sustained the government to succeed; and the government
having forced their submission and vindicated its own authority, it
should now leave them to enjoy, with others, the victory which it his
won for the common good of all. When war becomes a stern necessity,
when it breaks out, and while it lasts, humanity requires it to be
waged in earnest, prosecuted with vigor, and made as damaging, as
distressful to the enemy as the laws of civilized nations permit. It
is the way to bring it to a speedy close, and to save life and
property. But when it is over, when the enemy submits, and peace
returns, the vanquished should be treated with gentleness and love. No
rancor should remain, no vengeance should be sought; they who met in
mortal conflict on the battle-field should be no longer enemies, but
embrace as comrades, as friends, as brothers. None but a coward kicks
a fallen foe; a brave people is generous, and the victors in the late
war can afford to be generous generously. They fought for the Union,
and the Union has no longer an enemy; their late enemies are willing
and proud to be their countrymen, fellow-citizens, and friends; and
they should look to it that small politicians do not rob them in the
eyes of the world, by unnecessary and ill-timed severity to the
submissive, of the glory of being, as they are, a great, noble,
chivalric, generous, and magnanimous people.
The government and the small politicians, who usually are the most
influential with all governments, should remember that none of the
secessionists, however much in error they have been, have committed the
moral crime of treason. They held, with the majority of the American
people, the doctrine of State sovereignty, and on that doctrine they
had a right to secede, and have committed no treason, been guilty of no
rebellion. That was, indeed, no reason why the government should not
use all its force, if necessary, to preserve the national unity and the
integrity of the national domain; but it is a reason, and a sufficient
reason, why no penalty of treason should be inflicted on secessionists
or their leaders, after their submission, and recognition of the
sovereignty of the United States as that to which they owe allegiance.
None of the secessionists have been rebels or traitors, except in
outward act, and there can, after the act has ceased, be no just
punishment where there has been no criminal intent. Treason is the
highest crime, and deserves exemplary punishment; but not where there
has been no treasonable intent, where they who committed it did not
believe it was treason, and on principles held by the majority of their
countrymen, and by the party that had generally held the government,
there really was no treason. Concede State sovereignty, and Jefferson
Davis was no traitor in the war he made on the United States, for he
made none till his State had seceded. He could not then be arraigned
for his acts after secession, and at most, only for conspiracy, if at
all, before secession.
But, if you permit all to vote in the re-organization of the State who,
under the old electoral law, have the elective franchise, you throw the
State into the hands of those who have been disloyal to the Union. If
so, and you cannot trust them, the remedy is not in disfranchising the
majority, but in prohibiting re-organization, and in holding the
territorial people still longer under the provisional government, civil
or military. The old electoral law disqualifies all who have been
convicted of treason either to the State or the United States, and
neither Congress nor the Executive can declare any others disqualified
on account of disloyalty. But you must throw the State into the hands
of those who took part, directly or indirectly, in the rebellion, if
you reconstruct the States at all, for they are undeniably the great
body of the territorial people in all the States that seceded. These
people having submitted, and declared their intention to reconstruct
the State as a State in the Union, you must amend the constitution of
the United States, unless they are convicted of a disqualifying crime
by due process of law, before you can disfranchise them. It is
impossible to reconstruct any one of the disorganized States with those
alone, or as the dominant party, who have adhered to the Union
throughout the fearful struggle, as self-governing States. The State,
resting on so small a portion of the people, would have no internal
strength, no self-support, and could stand only as upheld by federal
arms, which would greatly impair the free and healthy action of the
whole American system.
The government attempted to do it in Virginia, Louisiana, Arkansas, and
Tennessee, before the rebellion was suppressed, but without authority
and without success. The organizations, effected at great expense, and
sustained only by military force, were neither States nor State
governments, nor capable of being made so by any executive or
congressional action. If the disorganized States, as the government
held, were still States in the Union, these organizations were
flagrantly revolutionary, as effected not only without, but in defiance
of State authority; if they had seceded and ceased to be States, as was
the fact, they were equally unconstitutional and void of authority,
because not created by the free suffrage of the territorial people, who
alone are competent to construct or reconstruct a state.
If the Unionists had retained the State organization and government,
however small their number, they would have held the State, and the
government would have been bound to recognize and to defend them as
such with all the force of the Union. The rebellion would then have
been personal, not territorial. But such was not the case. The State
organization, the State government, the whole State authority rebelled,
made the rebellion territorial, not personal, and left the Unionists,
very respectable persons assuredly, residing, if they remained at home,
in rebel territory, traitors in the eye of their respective States, and
shorn of all political status or rights. Their political status was
simply that of the old loyalists, or adherents of the British crown in
the American war for Independence, and it was as absurd to call them
the State, as it would have been for Great Britain to have called the
old Tories the colonies.
The theory on which the government attempted to re-organize the
disorganized States rested on two false assumptions: first, that the
people are personally sovereign; and, second, that all the power of the
Union vests in the General government. The first, as we have seen, is
the principle of so-called "squatter sovereignty," embodied in the
famous Kansas-Nebraska Bill, which gave birth, in opposition, to the
Republican party of 1856. The people are sovereign only as the State,
and the State is inseparable from the domain. The Unionists without
the State government, without any State organization, could not hold
the domain, which, when the State organization is gone, escheats to the
United States, that is to say, ceases to exist. The American democracy
is territorial, not personal.
The General government, in time of war or rebellion, is indeed
invested, for war purposes, with all the power of the Union. This is
the war power. But, though apparently unlimited, the war power is yet
restricted to war purposes, and expires by natural limitation when
peace returns; and peace returns, in a civil war, when the rebels have
thrown down their arms and submitted to the national authority, and
without any formal declaration. During the war, or while the rebellion
lasts, it can suspend the civil courts, the civil laws, the State
constitutions, any thing necessary to the success of the war—and of
the necessity the military authorities are the judges; but it cannot
abolish, abrogate, or reconstitute them. On the return of peace they
revive of themselves in all their vigor. The emancipation proclamation
of the President, if it emancipated the slaves in certain States and
parts of States, and if those whom it emancipated could not be
re-enslaved, did not anywhere abolish slavery, or change the laws
authorizing it; and if the Government should be sustained by Congress
or by the Supreme Court in counting the disorganized States as States
in the Union, the legal status of slavery throughout the Union, with
the exception of Maryland, and perhaps Missouri, is what it was before
the war.[1]
The Government undoubtedly supposed, in the reconstructions it
attempted, that it was acting under the war power; but as
reconstruction can never be necessary for war purposes, and as it is in
its very nature a work of peace, incapable of being effected by
military force, since its validity depends entirely on its being the
free action of the territorial people to be reconstructed, the General
government had and could have, with regard to it, only its ordinary
peace powers. Reconstruction is jure pacis, not jure belli.
Yet such illegal organizations, though they are neither States nor
State governments, and incapable of being legalized by any action of
the Executive or of Congress, may, nevertheless, be legalized by being
indorsed or acquiesced in by the territorial people. They are wrong,
as are all usurpations; they are undemocratic, inasmuch as they attempt
to give the minority the power to rule the majority; they are dangerous
inasmuch as they place the State in the hands of a party that can stand
only as supported by the General government, and thus destroy the
proper freedom and independence of the State, and open the door to
corruption, tend to keep alive rancor and ill feeling, and to retard
the period of complete pacification, which might be effected in three
months as well as in three years, or twenty years; yet they can become
legal, as other governments illegal in their origin become legal, with
time and popular acquiescence. The right way is always the shortest and
easiest; but when a government must oftener follow than lead the
public, it is not always easy to hit the right way, and still less easy
to take it. The general instincts of the people are right as to the end
to be gained, but seldom right as to the means of gaining it; and
politicians of the Union party, as well as of the late secession party,
have an eye in reconstructing, to the future political control of the
State when it is reconstructed.
The secessionists, if permitted to retain their franchise, would, even
if they accepted abolition, no doubt re-organize their respective
States on the basis of white suffrage, and so would the Unionists, if
left to themselves. There is no party at the South prepared to adopt
negro suffrage, and there would be none at the North if the negroes
constituted any considerable portion of the population. As the
reconstruction of a State cannot be done under the war power, the
General government can no more enfranchise than it can disfranchise any
portion of the territorial people, and the question of negro suffrage
must be left, where the constitution leaves it—to the States
severally, each to dispose of it for itself. Negro suffrage will, no
doubt, come in time, as soon as the freedmen are prepared for it, and
the danger is that it will be attempted too soon.
It would be a convenience to have the negro vote in the reconstruction
of the States disorganized by secession, for it would secure their
re-construction with antislavery constitutions, and also make sure of
the proposed antislavery amendment to the Constitution of the United
States; but there is no power in Congress to enfranchise the negroes in
the States needing reconstruction, and, once assured of their freedom,
the freedmen would care little for the Union, of which they understand
nothing. They would vote, for the most part, with their former
masters, their employers, the wealthier and more intelligent classes,
whether loyal or disloyal; for, as a rule, these will treat them with
greater personal consideration and kindness than others. The dislike
of the negro, and hostility to negro equality, increase as you descend
in the social scale. The freedmen, without political instruction or
experience, who have had no country, no domicile, understand nothing of
loyalty or of disloyalty. They have strong local attachments, but they
can have no patriotism. If they adhered to the Union in the rebellion,
fought for it, bled for it, it was not from loyalty, but because they
knew that their freedom could come only from the success of the Union
arms. That freedom secured, they have no longer any interest in the
Union, and their local attachments, personal associations, habits,
tastes, likes and dislikes, are Southern, not Northern. In any contest
between the North and the South, they would take, to a man, the
Southern side. After the taunts of the women, the captured soldiers of
the Union found, until nearly the last year of the war, nothing harder
to bear, when marched as prisoners into Richmond, than the antics and
hootings of the negroes. Negro suffrage on the score of loyalty, is at
best a matter of indifference to the Union, and as the elective
franchise is not a natural right, but a civil trust, the friends of the
negro should, for the present, be contented with securing him simply
equal rights of person and property.
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