The American Republic
by
by O. A. Brownson
Part 4 out of 5
side of the master or on the side of the slave. The right of a
citizen to hold a slave, if a right at all, is the private right
of property, and the right of the slave to his freedom is a
private and personal right, and neither is placed under the
safeguard of the General government, which has nowhere, unless
in the District of Columbia and the places over which it has
exclusive legislative power in all cases whatsoever, either the
right to establish it or to abolish it, except perhaps under the
war power, as a military necessity, an indemnity for the past,
or a security for the future.
This applies to what are called Territories as well as to the
States. The right of the government to govern the Territories
in regard to private and particular rights and interests, is
derived from no express grant of power, and is held only ex
necessitate--the United States owning the domain, and there
being no other authority competent to govern them. But, as in
the case of all powers held ex necessitate, the power is
restricted to the absolute necessity in the case. What are
called Territorial governments, to distinguish them from the
State governments, are only provisional governments, and can
touch private rights and interests no further than is necessary
to preserve order and prepare the way for the organization and
installation of a regular State government. Till then the law
governing private rights is the law that was in force, if any
such there was, when the territory became by purchase, by
conquest, or by treaty, attached to the domain of the United
States.
Hence the Supreme Court declared unconstitutional the ordinance
of l787, prohibiting slavery in what was called the territory of
the Northwest, and the so-called Missouri Compromise,
prohibiting slavery north of the parallel 36' 30'. The Wilmot
proviso was for the same reason unconstitutional. The General
government never had and has not any power to exclude slavery
from the Territories, any more than to abolish it in the States.
But slavery being a local institution, sustained neither by the
law of nature nor the law of nations, no citizen migrating from
a slave State could carry his slaves with him, and hold them as
slaves in the Territory. Rights enacted by local law are rights
only in that locality, and slaves carried by their masters into
a slave State even, are free, unless the State into which they
are carried enacts to the contrary. The only persons that could
be held as slaves in a Territory would be those who were slaves
or the children of those who were slaves in the Territory when
it passed to the United States. The whole controversy on,
slavery in the Territories, and which culminated in the civil
war, was wholly unnecessary, and never could have occurred had
the constitution been properly understood and adhered to by both
sides. True, Congress could not exclude slavery from the
Territory, but neither could citizens migrating to them hold
slaves in them; and so really slavery was virtually excluded,
for the inhabitants in nearly all of them, not emigrants from
the States after the cession to the United States, were too few
to be counted.
The General government has power to establish a uniform rule of
naturalization, to which all the States must conform, and it was
very proper that it should have this power, so as to prevent one
State from gaining by its naturalization laws an undue advantage
over another; but the General government has itself no power to
naturalize a single foreigner, or in any case to say who shall
or who shall not be citizens, either of a State or of the United
States, or to declare who may or may not be electors even of its
own officers. The convention ordains that members of the house
of representatives shall be chosen by electors who have the
qualifications requisite for electors of the most numerous
branch of the State legislature, but the State determines these
qualifications, and who do or do not possess them; that the
senators shall be chosen by the State legislatures, and that the
electors of President and Vice-President shall be appointed in
such manner as the respective State legislatures may direct. The
whole question of citizenship, what shall or shall not be the
qualifications of electors, who shall or shall not be freemen, is
reserved to the, States, as coming under the head of personal or
private rights and franchises. In practice, the exact line of
demarcation may not always have been strictly observed either by
the General government or by the State governments; but a
careful study of the constitution cannot fail to show that the
division of powers is the division or distinction between the
public and general relations and interests, rights and duties of
the people, and their private and particular relations and
interests, rights and duties. As these two classes of relations
and interests, rights and duties, though distinguishable, are
really inseparable in nature, it follows that the two governments
are essential to the existence of a complete government, or to
the existence of a real government in its plenitude and
integrity. Left to either alone, the people would have only an
incomplete, an initial, or inchoate government. The General
government is the complement of the State governments, and the
State governments are the complement of the General government.
The consideration of the powers denied by the convention to the
General government and to the State governments respectively,
will lead to the same conclusion. To the General government is
denied expressly or by necessary implication all jurisdiction in
matters of private rights and interests, and to the State
government is denied all jurisdiction in right, or interests
which extend, as has been said, beyond the boundaries of the
State. "No State shall enter into any treaty, alliance, or
confederation; grant letters of marque and reprisal; coin money,
emit bills of credit, make any thing but gold and silver coin a
tender in the payment of debts; pass any bill of attainder, ex
post facto law, or law impairing the obligation of contracts, or
grant any title of nobility. No State shall, without the
consent of Congress, lay any imposts or duties on imports or
exports, except what may be absolutely necessary for executing
its inspection laws and the net produce of all duties and
imposts laid by any State on imports and exports shall be for the
use of the treasury of the United States, and all such laws
shall be subject to the revision and control of Congress. No
State shall, without the consent of Congress, lay any duty of
tonnage, keep troops or ships-of-war in time of peace, enter into
any agreement or compact with another State or with a foreign
power, or engage in war, unless actually invaded, or in such
imminent danger as will not admit of delay."
The powers denied to the States in some matters which are rather
private and particular, such as bills of attainder, ex post
facto laws, laws impairing the obligation of contracts, granting
titles of nobility, are denied equally to the General government.
There is evidently a profound logic in the constitution, and
there is not a single provision in it that is arbitrary, or
anomalous, or that does not harmonize dialectically with the
whole, and with the real constitution of the American people. At
first sight the reservation to the State of the appointment of
the officers of the militia might seem an anomaly; but as the
whole subject of internal police belongs to the State, it should
have some military force at its command. The subject of
bankruptcies, also, might seem to be more properly within the
province of the State, and so it would be if commerce between the
several States had not been placed under Congress, or if trade
were confined to the citizens of the State and within its
boundaries; but as such is not the case, it was necessary to
place it under the General government, in order that laws on the
subject might be uniform throughout the Union, and that the
citizens of all the States, and foreigners trading with them,
should be placed on an equal footing, and have the same remedies.
The subject follows naturally in the train of commerce, for
bankruptcies, as understood at the time, were confined to the
mercantile class, bankers, and brokers; and since the regulation
of commerce, foreign and inter-state, was to be placed under the
sole charge of the General government, it was necessary that
bankruptcy should be included. The subject of patents is placed
under the General government, though the patent is a private
right, because it was the will of the convention that the patent
should be good in all the States, as affording more encouragement
to science and the useful arts than if good only within a single
State, or if the power were left to each State to recognize or
not patents granted by another. The right created, though
private in its nature, is Yet general or common to all the States
in its enjoyment or exercise.
The division of the powers of government between a General
government and particular governments, rendered possible and
practicable by the original constitution of the people
themselves, as one people existing and acting through State
organizations, is the American method of guarding against the
undue centralism to which Roman imperialism inevitably tends;
and it is far simpler and more effective than any of the
European systems of mixed governments, which seek their end by
organizing an antagonism of interests or classes. The American
method demands no such antagonism, no neutralizing of one social
force by another, but avails itself of all the forces of society,
organizes them dialectically, not antagonistically, and thus
protects with, equal efficiency both public authority and
private rights. The General government can never oppress the
people as individuals, or abridge their private rights or
personal freedom and independence, because these are not within
its jurisdiction, but are placed in charge, within each State,
of the State government, which, within its sphere, governs as
supremely as the General government: the State governments
cannot weaken the public authority of the nation or oppress the
people in their general rights and interests, for these are
withdrawn from State jurisdiction, and placed under charge of a
General government, which, in its sphere, governs as supremely as
the State government. There is no resort to a system of checks
and balances; there is no restraint on power, and no systematic
distrust of power, but simply a division of powers between two
co-ordinate governments, distinct but inseparable, moving in
distinct spheres, but in the same direction, or to a common end.
The system is no invention of man, is no creation of the
convention, but is given us by Providence in the living
constitution of the American people. The merit of the statesmen
of 1787 is that they did not destroy or deface the work of
Providence, but accepted it, and organized the government in
harmony with the real orders the real elements given them. They
suffered themselves in all their positive substantial work to be
governed by reality, not by theories and speculations. In this
they proved themselves statesmen, and their work survives; and
the republic, laugh as sciolists may, is, for the present and
future, the model republic--as much so as was Rome in her day;
and it is not simply national pride nor American self-conceit
that pronounces its establishment the beginning of a new and
more advanced order of civilization; such is really the fact.
The only apparently weak point in the system is in the
particular States themselves. Feudalism protected the feudal
aristocracy effectively for a time against both the king and the
people, but left the king and the, people without protection
against the aristocracy, and hence it fell. It was not adequate
to the wants of civil society, did not harmonize all social
elements, and protect all social and individual rights and
interests, and therefore could not but fail. The General
government takes care of public authority and rights; the State
protects private rights and personal freedom as against the
General government: but what protects the citizens in their
private rights, their personal freedom and independence, against
the particular State government? Universal suffrage, answers
the democrat. Armed with the ballot, more powerful than the
sword, each citizen is able to protect himself. But this is
theory, not reality. If it were true, the division of the
powers of government between two co-ordinate, governments would
be of no practical importance. Experience does not sustain the
theory, and the power of the ballot to protect the individual
may be rendered ineffective by the tyranny of party. Experience
proves that the ballot is far less effective in securing the
freedom and independence of the individual citizen than is
commonly pretended. The ballot of an isolated individual counts
for nothing. The individual, though armed with the ballot, is
as powerless, if he stands alone, as if he had it not. To
render it of any avail he must associate himself with a party,
and look for his success in the success of his party; and to
secure the success of his party, he must give up to it his own
private convictions and free will. In practice, individuals are
nothing individually, and parties are every thing. Even the
suppression of the late rebellion, and the support of the
Administration in doing it, was made a party question, and the
government found the leaders of the party opposed to the
Republican party an obstacle hardly less difficult to surmount
than the chiefs of the armies of the so-called Confederate
States.
Parties are formed, one hardly knows how, and controlled, no one
knows by whom; but usually by demagogues, men who have some
private or personal purposes, for which they wish, through party
to use the government. Parties have no conscience, no
responsibility, and their very reason of being is, the
usurpation and concentration of power. The real practical
tendency of universal suffrage is to democratic, instead of an
imperial, centralism. What is to guard against this centralism?
Not universal suffrage, for that tends to create it;, and if the
government is left to it, the government becomes practically the
will of an ever shifting and irresponsible majority. Is the
remedy in written or paper constitutions? Party can break
through them, and by making the judges elective by party, for
short terms, and re-eligible, can do so with impunity. In
several of the States, the dominant majority have gained the
power to govern at will, without any let or hindrance. Besides,
constitutions can be altered, and have been altered, very nearly
at the will of the majority. No mere paper constitutions are
any protection against the usurpations of party, for party will
always grasp all the power it can.
Yet the evil is not so great as it seems, for in most of the
States the principle of division of powers is carried into the
bosom of the State itself; in some States further than in
others, but in all it obtains to some extent. In what are
called the New England States, the best governed portion of the
Union, each town is a corporation, having important powers and
the charge of all purely local matters--chooses its own
officers, manages its own finances, takes charge of its own
poor, of its own roads and bridges, and of the education of its
own children. Between these corporations and the State
government are the counties, that take charge of another class
of interests, more general than those under the charge of the
town, but less general than those of the State. In the great
central and Northwestern States the same system obtains, though
less completely carried out. In the Southern and Southwestern
States, the town corporations hardly exist, and the rights and
interests of the poorer classes of persons have been less well
protected in them than in the Northern and Eastern States. But
with the abolition of slavery, and the lessening of the
influence of the wealthy slaveholding class, with the return of
peace and the revival of agricultural, industrial, and
commercial prosperity, the New England system, in its main
features, is pretty sure to be gradually introduced, or
developed, and the division of powers in the State to be as
effectively and as systematically carried out as it is between
the General government and the particular or State governments.
So, though universal suffrage, good as far as it goes, is not
alone sufficient, the division of powers affords with it a not
inadequate protection.
No government, whose workings are intrusted to men, ever is or
can be practically perfect--secure all good, and guard against
all evil. In all human governments there will be defects and
abuses, and he is no wise man who expects perfection from
imperfection. But the American constitution, taken as a whole,
and in all its parts, is the least imperfect that has ever
existed, and under it individual rights, personal freedom and
independence, as well as public authority or society, are better
protected than under any other; and as the few barbaric elements
retained from the feudal ages are eliminated, the standard of
education elevated, and the whole population Americanized,
moulded by and to the American system, it will be found to
effect all the good, with as little of the evil, as can be
reasonably expected from any possible civil government or
political constitution of society.
CHAPTER XI.
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 de fending 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.*
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
* This was the case in August, 1865. It may be quite otherwise
before these pages see the light.
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.
CHAPTER XIV.
POLITICAL TENDENCIES.
The most marked political tendency of the American people has
been, since 1825, to interpret their government as a pure and
simple democracy, and to shift it from a territorial to a purely
popular basis, or from the people as the state, inseparably
united to the national territory or domain, to the people as
simply population, either as individuals or as the race. Their
tendency has unconsciously, therefore, been to change their
constitution from a republican to a despotic, or from a civilized
to a barbaric constitution.
The American constitution is democratic, in the sense that the
people are sovereign that all laws and public acts run in their
name; that the rulers are elected by them, and are responsible to
them; but they are the people territorially constituted and fixed
to the soil, constituting what Mr. Disraeli, with more propriety
perhaps than he thinks, calls a "territorial democracy." To this
territorial democracy, the real American democracy, stand opposed
two other democracies--the one personal and the other
humanitarian--each alike hostile to civilization, and tending to
destroy the state, and capable of sustaining government only on
principles common to all despotisms.
In every man there is a natural craving for personal freedom and
unrestrained action--a strong desire to be himself, not
another--to be his own master, to go when and where he pleases,
to do what he chooses, to take what he wants, wherever he can
find it, and to keep what he takes. It is strong in all nomadic
tribes, who are at once pastoral and predatory, and is seldom
weak in our bold frontier-men, too often real "border ruffians."
It takes different forms in different stages of social
development, but it everywhere identifies liberty with power.
Restricted in its enjoyment to one man, it makes him chief, chief
of the family, the tribe, or the nation; extended in its
enjoyment to the few, it founds an aristocracy, creates a
nobility--for nobleman meant originally only freeman, as it does
his own consent, express or constructive. This is the so-called
Jeffersonian democracy, in which government has no powers but
such as it derives from the consent of the governed, and is
personal democracy or pure individualism philosophically
considered, pure egoism, which says, "I am God." Under this sort
of democracy, based on popular, or rather individual sovereignty,
expressed by politicians when they call the electoral people,
half seriously, half mockingly, "the sovereigns," there obviously
can be no state, no social rights or civil authority; there can
be only a voluntary association, league, alliance, or
confederation, in which individuals may freely act together as
long as they find it pleasant, convenient, or useful, but from
which they may separate or secede whenever they find it for their
interest or their pleasure to do so. State sovereignty and
secession are based on the same democratic principle applied to
the several States of the Union instead of individuals.
The tendency to this sort of democracy has been strong in large
sections of the American people from the first, and has been
greatly strengthened by the general acceptance of the theory that
government originates in compact. The full realization of this
tendency, which, happily, is impracticable save in theory, would
be to render every man independent alike of every other man and
of society, with full right and power to make his own will
prevail. This tendency was strongest in the slaveholding States,
and especially, in those States, in the slaveholding class, the
American imitation of the feudal nobility of mediaeval Europe;
and on this side the war just ended was, in its most general
expression, a war in defence of personal democracy or the
sovereignty of the people individually, against the humanitarian
democracy, represented by the abolitionists, and the territorial
democracy, represented by the Government. This personal
democracy has been signally defeated in the defeat of the late
confederacy, and can hardly again become strong enough to be
dangerous.
But the humanitarian democracy, which scorns all geographical
lines, effaces all in individualities, and professes to plant
itself on humanity alone, has acquired by the war new strength,
and is not without menace to our future. The solidarity of the
race, which is the condition of all human life, founds, as we
have seen, society, and creates what are called social rights,
the, rights alike of society in regard to individuals, and of
individuals in regard to society. Territorial divisions or
circumscriptions found particular societies, states, or nations;
yet as the race is one and all its members live by communion with
God through it and by communion one with another, these
particular states or nations are never absolutely independent of
each other but, bound together by the solidarity of the race, so
that there is a real solidarity of nations as well as of
individuals--the truth underlying Kossuth's famous declaration of
the solidarity of peoples."
The solidarity of nations is the basis of international law,
binding on every particular nation, and which every civilized
nation recognizes and enforces on its own subjects or citizens
through its own courts as an integral part of its own municipal
or national law.
The personal or individual right is therefore restricted by the
rights of society, and the rights of the particular society or
nation are limited by international law, or the rights of
universal society--the truth the ex-governor of Hungary
overlooked. The grand error of Gentilism was in denying the
unity and therefore the solidarity of the race, involved in its
denial or misconception of the unity of God. It therefore was
never able to assign any solid basis to international law, and
gave it only a conventional or customary authority, thus leaving
the jus gentium, which it recognized in deed, without any real
foundation in the constitution of things, or authority in the
real world. Its real basis is in the solidarity of the race,
which has its basis in the unity of God, not the dead or abstract
unity asserted by the old Eleatics, the Neo-Platonists, or the
modern Unitarians, but the living unity consisting in the
threefold relation in the Divine Essence, of Father, Son, and
Holy Ghost, as asserted by Christian revelation, and believed,
more or less intelligently, by all Christendom.
The tendency in the Southern States has been to overlook the
social basis of the state, or the rights of society founded on
the solidarity of the race, and to make all rights and powers
personal, or individual; and as only the white race has been able
to assert and maintain its personal freedom, only men of that
race are held to have the right to be free. Hence the people of
those States felt no scruple in holding the black or colored race
as slaves. Liberty, said they, is the right only of those who
have the ability to assert and maintain it. Let the negro prove
that he has this ability by asserting and maintaining his
freedom, and he will prove his right to be free, and that it is a
gross outrage, a manifest injustice, to enslave him; but, till
then, let him be my servant, which is best for him and for me.
Why ask me to free him? I shall by doing so only change the form
of his servitude. Why appeal to me! Am I my brother's keeper?
Nay, is he my brother? Is this negro, more like an ape or a
baboon than a human being, of the same race with myself? I
believe it not. But in some instances, at least, my dear
slaveholder, your slave is literally your brother, and sometimes
even your son, born of your own daughter. The tendency of the
Southern democrat was to deny the unity of the race, as well as
all obligations of society to protect the weak and helpless, and
therefore all true civil society.
At the North there has been, and is even yet, an opposite
tendency--a tendency to exaggerate the social element, to
overlook the territorial basis of the state, and to disregard the
rights of individuals. This tendency has been and is strong in
the people called abolitionists. The American abolitionist is so
engrossed with the unity that he loses the solidarity of the
race, which supposes unity of race and multiplicity of
individuals; and falls to see any thing legitimate and
authoritative in geographical divisions or territorial
circumscriptions. Back of these, back of individuals, he sees
humanity, superior to individuals, superior to states,
governments, and laws, and holds that he may trample on them all
or give them to the winds at the call of humanity or "the higher
law." The principle on which he acts is as indefensible as the
personal or egoistical democracy of the slaveholders and their
sympathizers. Were his socialistic tendency to become exclusive
and realized, it would found in the name of humanity a complete
social despotism, which, proving impracticable from its very
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