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 united; 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, caution, 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 stanch 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 gaming 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 pre-existing 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 defeuded 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 seem 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 laws enacted by a State are really enacted by the United States, and derive from them tieir 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 the 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 re-organizing 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 place 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 he 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 tilings 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 hang, 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 ail, 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 healing 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, into 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 has 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, hare 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 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 anti-slavey constitutions, and also make sure of the proposed anti-slavery 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.
* This was the case in August, 1865. It may be quite otherwise before these pages see the light.
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