This is denied. The population and domain are inseparable in the State; and if the State could take itself out of the Union, it would take them out, and be ipso facto a sovereign State foreign to the Union. It would take the domain and the population out of the Union, it is conceded and even maintained, but not therefore would it take them out of the jurisdiction of the Union, or would they exist as a State foreign to the Union; for population and territory may coexist, as Dacota, Colorado, or New Mexico, out of the Union, and yet be subject to the Union, or within the jurisdiction of the United States.

But the Union is formed by the surrender by each of the States of its individual sovereignty, and each State by its admission into the Union surrenders its individual sovereignty, or binds itself by a constitutional compact to merge its individual sovereignty in that of the whole. It then cannot cease to be a State in the Union without breach of contract. Having surrendered its sovereignty to the Union, or bound itself by the constitution to exercise its original sovereignty only as one of the United States, it can unmake itself of its state character, only by consent of the United States, or by a successful revolution. It is by virtue of this fact that secession is rebellion against the United States, and that the General government, as representing the Union, has the right and the duty to suppress it by all the forces at its command.

There can be no rebellion where there is no allegiance. The States in the Union cannot owe allegiance to the Union, for they are it, and for any one to go out of it is no more an act of rebellion than it is for a king to abdicate his throne. The Union is not formed by the surrender to it by the several States of their respective individual sovereignty. Such surrender could, as we have seen, form only an alliance, or a confederation, not one sovereign people; and from an alliance, or confederation, the ally or confederate has, saving its faith, the inherent right to secede. The argument assumes that the States were originally each in its individuality a sovereign state, but by the convention which framed the constitution, each surrendered its sovereignty to the whole, and thus several sovereign states became one sovereign political people, governing in general matters through the General government, and in particular matters through particular or State governments. This is Mr. Madison's theory, and also Mr. Webster's; but it has been refuted in the refutation of the theory that makes government originate in compact. A sovereign state can, undoubtedly, surrender its sovereignty, but can surrender it only to something or somebody that really exists; for to Surrender to no one or to nothing is, as has been shown, the same thing as not to surrender at all; and the Union, being formed only by the surrender, is nothing prior to it, or till after it is made, and therefore can be no recipient of the surrender.

Besides, the theory is the reverse of the fact. The State does not surrender or part with its sovereignty by coming into the Union, but acquires by it all the rights it holds as a State. Between the original States and the new States there is a difference of mode by which they become States in the Union, but none in their powers, or the tenure by which they hold them. The process by which new States are actually formed and admitted into the Union, discloses at once what it is that is gained or lost by admission. The domain and population, before the organization of the Territory into one of the United States, are subject to the United States, inseparably attached to the domain of the Union, and under its sovereignty. The Territory so remains, organized or unorganized, under a Territorial Government created by Congress. Congress, by an enabling act, permits it to organize as a State, to call a convention to form a State constitution, to elect under it, in such way as the convention ordains, State officers, a State legislature, and, in the way prescribed by the Constitution of the United States, senators and representatives in Congress. Here is a complete organization as a State, yet, though called a State, it is no State at all, and is simply territory, without a single particle of political power. To be a State it must be recognized and admitted by Congress as a State in the Union, and when so recognized and admitted it possesses, in union with the other United States, supreme political sovereignty, jointly in all general matters, and individually in all private and particular matters.

The Territory gives up no sovereign powers by coming into the Union, for before it came into the Union it had no sovereignty, no political rights at all. All the rights and powers it holds are held by the simple fact that it has become a State in the Union. This is as true of the original States as of the new States; for it has been shown in the chapter on The United States, that the original British sovereignty under which the colonies were organized and existed passed, on the fact of independence, to the States United, and not to the States severally. Hence if nine States had ratified the constitution, and the other four had stood out, and refused to do it, which was within their competency, they would not have been independent sovereign States, outside of the Union, but Territories under the Union.

Texas forms the only exception to the rule that the States have never been independent of the Union. All the other new States have been formed from territory subject to the Union. This is true of all the States formed out of the Territory of the Northwest, and out of the domain ceded by France, Spain, and Mexico to the United States. All these cessions were held by the United States as territory immediately subject to the Union, before being erected into States; and by far the larger part is so held even yet. But Texas was an independent foreign state, and was annexed as a State without having been first subjected as territory to the United States. It of course lost by annexation its separate sovereignty. But this annexation was held by many to be unconstitutional; it was made when the State sovereignty theory had gained possession of the Government, and was annexed as a State instead of being admitted as a State formed from territory belonging to the United States, for the very purpose of committing the nation to that theory. Its annexation was the prologue, as the Mexican war was the first act in the secession drama, and as the epilogue is the suppression of the rebellion on Texan soil. Texas is an exceptional case, and forms no precedent, and cannot be adduced as invalidating the general rule. Omitting Texas, the simple fact is, the States acquire all their sovereign powers by being States in the Union, instead of losing or surrendering them.

Our American statesmen have overlooked or not duly weighed the facts in the case, because, holding the origin of government in compact, they felt no need of looking back of the constitution to find the basis of that unity of the American people which they assert. Neither Mr. Madison nor Mr. Webster felt any difficulty in asserting it as created by the convention of 1787, or in conceding the sovereignty of the States prior to the Union, and denying its existence after the ratification of the constitution. If it were not that they held that the State originates in convention or the social compact, there would be unpardonable presumption on the part of the present writer in venturing to hazard an assertion contrary to theirs. But, if their theory was unsound, their practical doctrine was not; for they maintained that the American people are one sovereign people, and Mr. Quincy Adams, an authority inferior to neither, maintained that they were always one people, and that the States hold from the Union, not the Union from the States. The States without the Union cease to exist as political communities: the Union without the States ceases to be a Union, and becomes a vast centralized and consolidated state, ready to lapse from a civilized into a barbaric, from a republican to a despotic nation.

The State, under the American system, as distinguished from Territory, is not in the domain and population fixed to it, nor yet in its exterior organization, but solely in the political powers, rights, and franchises which it holds from the United States, or as one of the United States. As these are rights, not obligations, the State may resign or abdicate them and cease to be a State, on the same principle that any man may abdicate or forego his rights. In doing so, the State breaks no oath of allegiance, fails to fulfil no obligation she contracted as a State: she simply forgoes her political rights and franchises. So far, then, secession is possible, feasible, and not unconstitutional or unlawful. But it is, as Mr. Sumner and others have maintained, simply State suicide. Nothing hinders a State from committing suicide, if she chooses, any more than there was something which compelled the Territory to become a State in the Union against its will.

It is objected to, this conclusion that the States were, prior to the Union, independent sovereign States, and secession would not destroy the State, but restore it to its original sovereignty and independence, as the secessionists maintain. Certainly, if the States were, Prior to the Union, sovereign States; but this is precisely what has been denied and disproved; for prior to the Union there were no States. Secession restores, or reduces, rather, the State to the condition it was in before its admission into the Union; but that condition is that of Territory, or a Territory subject to the United States, and not that of an independent sovereign state. The State holds all its political rights and powers in the Union from the Union, and has none out of it, or in the condition in which its population and domain were before being a State in the Union.

State suicide, it has been urged, releases its population and territory from their allegiance to the Union, and as there is no rebellion where there is no allegiance, resistance by its population and territory to the Union, even war against the Union, would not be rebellion, but the simple assertion of popular sovereignty. This is only the same objection in another form. The lapse of the State releases the population and territory from no allegiance to the Union; for their allegiance to the Union was not contracted by their becoming a State, and they have never in their State character owed allegiance to the United States. A State owes no allegiance to the United States, for it is one of them, and is jointly sovereign. The relation between the United States and the State is not the relation of suzerain and liegeman or vassal. A State owes no allegiance, for it is not subject to the Union; it is never in their State capacity that its population and territory do or can rebel. Hence, the Government has steadily denied that, in the late rebellion, any State as such rebelled.

But as a State cannot rebel, no State can go out of the Union; and therefore no State in the late rebellion has seceded, and the States that passed secession ordinances are and all along have been States in the Union. No State can rebel, but it does not follow therefrom that no State can secede or cease to exist as a State: it only follows that secession, in the sense of State suicide, or the abdication by the State of its political rights and powers, is not rebellion. Nor does it follow from the fact that no State has rebelled, that no State has ceased to be a State; or that the States that passed secession ordinances have been all along States in the Union.

The secession ordinances were illegal, unconstitutional, not within the competency of the State, and therefore null and void from the beginning. Unconstitutional, illegal, and not within the competency of the State, so far as intended to alienate any portion of the national domain and population thereto annexed, they certainly were, and so far were void and of no effect; but so far as intended to take the State simply as a State out of the Union, they were within the competency of the State, were not illegal or unconstitutional, and therefore not null and void. Acts unconstitutional in some parts and constitutional in others are not wholly void. The unconstitutionality vitiates only the unconstitutional parts; the others are valid, are law, and recognized and enforced as such by the courts.

The secession ordinances are void, because they were never passed by the people of the State, but by a faction that overawed them and usurped the authority of the State. This argument implies that, if a secession ordinance is passed by the people proper of the State, it is valid; which is more than they who urge it against the State suicide doctrine are prepared to concede. But the secession ordinances were in every instance passed by the people of the State in convention legally assembled, therefore by them in their highest State capacity—in the same capacity in which they ordain and ratify the State constitution itself; and in nearly all the States they were in addition ratified and confirmed, if the facts have been correctly reported, by a genuine plebiscitum, or direct vote of the people. In all cases they were adopted by a decided majority of the political people of the State, and after their adoption they were acquiesced in and indeed actively supported by very nearly the whole people. The people of the States adopting the secession ordinances were far more unanimous in supporting secession than the people of the other States were in sustaining the Government in its efforts to suppress the rebellion by coercive measures. It will not do, then, to ascribe the secession ordinances to a faction. The people are never a faction, nor is a faction ever the majority.

There has been a disposition at the North, encouraged by the few Union men at the South, to regard secession as the work of a few ambitious and unprincipled leaders, who, by their threats, their violence, and their overbearing manner, forced the mass of the people of their respective States into secession against their convictions and their will. No doubt there were leaders at the South, as there are in every great movement at the North; no doubt there were individuals in the seceding States that held secession wrong in principle, and were conscientiously attached to the Union; no doubt, also, there were men who adhered to the Union, not because they disapproved secession, but because they disliked the men at the head of the movement, or because they were keen-sighted enough to see that it could not succeed, that the Union must be the winning side, and that by adhering to it they would become the great and leading men of their respective States, which they certainly could not be under secession. Others sympathized fully with what was called the Southern cause, held firmly the right of secession, and hated cordially the Yankees, but doubted either the practicability or the expediency of secession, and opposed it till resolved on, but, after it was resolved on, yielded to none in their earnest support of it. These last comprised the immense majority of those who voted against secession. Never could those called the Southern leaders have carried the secession ordinances, never could they have carried on the war with the vigor and determination, and with such formidable armies as they collected and armed for four years, making at times the destiny of the Union well nigh doubtful, if they had not had the Southern heart with them, if they had not been most heartily supported by the overwhelming mass of the people. They led a popular, not a factious movement.

No State, it is said again, has seceded, or could secede. The State is territorial, not personal, and as no State can carry its territory and population out of the Union, no State can secede. Out of the jurisdiction of the Union, or alienate them from the sovereign or national domain, very true; but out of the Union as a State, with rights, powers, or franchises in the Union, not true. Secession is political, not territorial.

But the State holds from the territory or domain. The people are sovereign because attached to a sovereign territory, not the domain because held by a sovereign people, as was established by the analysis of the early Roman constitution. The territory of the States corresponds to the sacred territory of Rome, to which was attached the Roman sovereignty. That territory, once surveyed and consecrated, remained sacred and the ruling territory, and could not be divested of its sacred and governing character. The portions of the territory of the United States once erected into States and consecrated as ruling territory can never be deprived, except by foreign conquest or successful revolution, of its sacred character and inviolable rights.

The State is territorial, not personal, and is constituted by public, not by private wealth, and is always respublica or commonwealth, in distinction from despotism or monarchy in its oriental sense, which is founded on private wealth, or which assumes that the authority to govern, or sovereignty, is the private estate of the sovereign. All power is a domain, but there is no domain without a dominus or lord. In oriental monarchies the dominus is the monarch; in republics it is the public or people fixed to the soil or territory, that is, the people in their territorial, and not in their personal or genealogical relation. The people of The United States are sovereign only within the territory or domain of the United States, and their sovereignty is a state, because fixed, attached, or limited to that specific territory. It is fixed to the soil, not nomadic. In barbaric nations power is nomadic and personal, or genealogical, confined to no locality, but attaches to the chief, and follows wherever he goes. The Gothic chiefs hold their power by a personal title, and have the same authority in their tribes on the Po or the Rhone as on the banks of the Elbe or the Danube. Power migrates with the chief and his people, and may be exercised wherever he and they find themselves, as a Swedish queen held when she ordered the execution of one of her subjects at Paris, without asking permission of the territorial lord. In these nations, power is a personal right, or a private estate, not a state which exists only as attached to the domain, and, as attached to the domain, exists independently of the chief or the government. The distinction is between public domain and private domain.

The American system is republican, and, contrary to what some democratic politicians assert, the American democracy is territorial, not personal; not territorial because the majority of the people are agriculturists or landholders, but because all political rights, powers, or franchises are territorial. The sovereign people of the United States are sovereign only within the territory of the United States. The great body of the freemen have the elective franchise, but no one has it save in his State, his county, his town, his ward, his precinct. Out of the election district in which he is domiciled, a citizen of the United States has no more right to vote than has the citizen or subject of a foreign state. This explains what is meant by the attachment of power to the territory, and the dependence of the state on the domain. The state, in republican states, exists only as inseparably united with the public domain; under feudalism, power was joined to territory or domain, but the domain was held as a private, not as a public domain. All sovereignty rests on domain or proprietorship, and is dominion. The proprietor is the dominus or lord, and in republican states the lord is society, or the public, and the domain is held for the common or public good of all. All political rights are held from society, or the dominus, and therefore it is the elective franchise is held from society, and is a civil right, as distinguished from a natural, or even a purely personal right.

As there is no domain without a lord or dominus, territory alone cannot possess any political rights or franchises, for it is not a domain. In the American system, the dominus or lord is not the particular State, but the United States, and, the domain of the whole territory, whether erected into particular States or not, is in the United States alone. The United States do not part with the dominion of that portion of the national domain included within a particular State. The State holds the domain not separately but jointly, as inseparably one of the United States: separated, it has no dominion, is no State, and is no longer a joint sovereign at all, and the territory that it included falls into the condition of any other territory held by the United States not erected into one of the United States.

Lawyers, indeed, tell us that the eminent domain is in the particular State, and that all escheats are to the State, not to the United States. All escheats of private estates, but no public or general escheats. But this has nothing to do with the public domain. The United States are the dominus, but they have, by the constitution, divided the powers of government between a General government and particular State governments, and ordained that all matters of a general nature, common to all the States, should be placed under the supreme control of the former, and all matters of a private or particular character under the supreme control of the latter. The eminent domain of private estates is in the particular State, but the sovereign authority in the particular State is that of the United States expressing itself through the State government. The United States, in the States as well as out of them, is the dominus, as the States respectively would soon find if they were to undertake to alienate any part of their domain to a foreign power, or even to the citizens or subjects of a foreign State, as is also evident from the fact that the United States, in the way prescribed by the constitution, may enlarge or contract at will the rights and powers of the States. The mistake on this point grows out of the habit of restricting the action of the United States to the General government, and not recollecting that the United States govern one class of subjects through the General government and another class through State governments, but that it is one and the same authority that governs in both.

The analogy borrowed from the Roman constitution, as far as applicable, proves the reverse of what is intended. The dominus of the sacred territory was the city, or the Roman state, not the sacred territory itself. The territory received the tenant, and gave him as tenant the right to a seat in the senate; but the right of the territory was derived not from the domain, but from the dominus, that is, the city. But the city could revoke its grant, as it practically did when it conferred the privileges of Roman citizenship on the provincials, and gave to plebeians seats in the senate. Moreover, nothing in Roman history indicates that to the validity of a senatus consultum it was necessary to count the vacant domains of the sacred territory. The particular domain must, under the American system, be counted when it is held by a State, but of itself alone, or even with its population, it is not a State, and therefore as a State domain is vacant and without any political rights or powers whatever.

To argue that the territory and population once a State in the Union must needs always be so, would be well enough if a State in the Union were individually a sovereign state; for territory, with its population not subject to another, is always a sovereign state, even though its government has been subverted. But this is not the fact, for territory with its population does not constitute a State in the Union; and, therefore, when of a State nothing remains but territory and population, the State has evidently disappeared. It will not do then to maintain that State suicide is impossible, and that the States that adopted secession ordinances have never for a moment ceased to be States in the Union, and are free, whenever they choose, to send their representatives and senators to occupy their vacant seats in Congress. They must be reorganized first.

There would also be some embarrassment to the government in holding that the States that passed the secession ordinance remain, notwithstanding, States in the Union. The citizens of a State in the Union cannot be rebels to the United States, unless they are rebels to their State; and rebels to their State they are not, unless they resist its authority and make war on it. The authority of the State in the Union is a legal authority, and the citizen in obeying it is disloyal neither to the State nor to the Union. The citizens in the States that made war on the United States did not resist their State, for they acted by its authority. The only men, on this supposition, in them, who have been traitors or rebels, are precisely the Union men who have refused to go with their respective States, and have resisted, even with armed force, the secession ordinances. The several State governments, under which the so-called rebels carried on the war for the destruction of the Union, if the States are in the Union, were legal and loyal governments of their respective States, for they were legally elected and installed, and conformed to their respective State constitutions. All the acts of these governments have been constitutional. Their entering into a confederacy for attaining a separate nationality has been legal, and the debts contracted by the States individually, or by the confederacy legally formed by them, have been legally contracted, stand good against them, and perhaps against the United States. The war against them has been all wrong, and the confederates killed in battle have been murdered by the United States. The blockade has been illegal, for no nation can blockade its own ports, and the captures and seizures under it, robberies. The Supreme Court has been wrong in declaring the war a territorial civil war, as well as the government in acting accordingly. Now, all these conclusions are manifestly false and absurd, and therefore the assumption that the States in question have all along been States in the Union cannot be sustained.

It is easy to understand the resistance the Government offers to the doctrine that a State may commit suicide, or by its own act abdicate its rights and cease to be a State in the Union. It is admissible on no theory of the constitution that has been widely entertained. It is not admissible on Mr. Calhoun's theory of State sovereignty, for on that theory a State in going out of the Union does not cease to be a State but simply resumes the powers it had delegated to the General government. It cannot be maintained on Mr. Madison's or Mr. Webster's theory, that the States prior to the Union were severally sovereign, but by the Union were constituted one people; for, if this one people are understood to be a federal people, State secession would not be State suicide, but State independence; and if understood to be one consolidated or centralized people, it would be simply insurrection or rebellion against the national authority, laboring to make itself a revolution. The government seems to have understood Mr. Madison's theory in both senses—in the consolidated sense, in declaring the secessionists insurgents and rebels, and in the federal sense, in maintaining that they have never seceded, and are still States in the Union, in full possession of all their political or State rights. Perhaps, if the government, instead of borrowing from contradictory theories of the constitution which have gained currency, had examined in the light of historical facts the constitution itself, it would have been as constitutional in its doctrine as it has been loyal and patriotic, energetic and successful in its military administration.

Another reason why the doctrine that State secession is State suicide has appeared so offensive to many, is the supposition entertained at one time by some of its friends, that the dissolution of the State vacates all rights and franchises held under it. But this is a mistake. The principle is well known and recognized by the jurisprudence of all civilized nations, that in the transfer of a territory from one territorial sovereign to another, the laws in force under the old sovereign remain in force after the change, till abrogated, or others are enacted in their place by the new sovereign, except such as are necessarily abrogated by the change itself of the sovereign; not, indeed, because the old sovereign retains any authority, but, because such is presumed by the courts to be the will of the new sovereign. The principle applies in the case of the death of a State in the Union. The laws of the State are territorial, till abrogated by competent authority, remain the lex loci, and are in full force. All that would be vacated would be the public rights of the State, and in no case the private rights of citizens, corporations, or laws affecting them.

But the same conclusion is reached in another way. In the lapse of a State or its return to the condition of a Territory, there is really no change of sovereignty. The sovereignty, both before and after, is the United States. The sovereign authority that governs in the State government, as we have seen, though independent of the General government, is the United States. The United States govern certain matters through a General government, and others through particular State governments. The private rights and interests created, regulated, or protected by the particular State, are created, regulated, or protected by the United States, as much and as plenarily as if done by the General government, and the State laws creating, regulating, or protecting them can be abrogated by no power known to the constitution, but either the State itself, or the United States in convention legally assembled. If this were what is meant by the States that have seceded, or professed to secede, remaining States in the Union, they would, indeed, be States still in the Union, notwithstanding secession and the government would be right in saying that no State can secede. But this is not what is meant, at least not all that is meant. It is meant not only that the private rights of citizens and corporations remain, but the citizens retain all the public rights of the State, that is, the right to representation in Congress and in the electoral college, and the right to sit in the convention, which is not true.

But the correction of the misapprehension that the private rights and interests are lost by the lapse of the State may remove the graver prejudices against the doctrine of State suicide, and dispose loyal and honest Union men to bear the reasons by which it is supported, and which nobody has refuted or can refute on constitutional grounds. A Territory by coming into the Union becomes a State; a State by going out of the Union becomes a Territory.



CHAPTER XIII.

RECONSTRUCTION.

The question of reconstructing the States that seceded will be practically settled before these pages can see the light, and will therefore be considered here only so far as necessary to complete the view of the constitution of the United States. The manner in which the government proposed to settle, has settled, or will settle the question, proves that both it and the American people have only confused views of the rights and powers of the General government, but imperfectly comprehend the distinction between the legislative and executive departments of that Government, and are far more familiar with party tactics than with constitutional law.

It would be difficult to imagine any thing more unconstitutional, more crude, or more glaringly impolitic than the mode of reconstruction indicated by the various executive proclamations that have been issued, bearing on the subject, or even by the bill for guaranteeing the States republican governments, that passed Congress, but which failed to obtain the President's signature. It is, in some measure, characteristic of the American government to understand how things ought to be done only when they are done and it is too late to do them in the right way. Its wisdom comes after action, as if engaged in a series of experiments. But, happily for the nation, few blunders are committed that with our young life and elasticity are irreparable, and that, after all, are greater than are ordinarily committed by older and more experienced nations. They are not of the most fatal character, and are, for the most part, such as are incident to the conceit, the heedlessness, the ardor, and the impatience of youth, and need excite no serious alarm for the future.

There has been no little confusion in the public mind, and in that of the government itself, as to what reconstruction is, who has the power to reconstruct, and how that power is to be exercised. Are the States that seceded States in the Union, with no other disability than that of having no legal governments? or are they Territories subject to the Union? Is their reconstruction their erection into new States, or their restoration as States previously in the Union? Is the power to reconstruct in the States themselves? or is it in the General government? If partly in the people and partly in the General government, is the part in the General government in Congress, or in the Executive? If in Congress, can the Executive, without the authority of Congress, proceed to reconstruct, simply leaving it for Congress to accept or reject the reconstructed State? If the power is partly in the people of the disorganized States who or what defines that people, decides who may or may not vote in the reorganization? On all these questions there has been much crude, if not erroneous, thinking, and much inconsistent and contradictory action.

The government started with the theory that no State had seceded or could secede, and held that, throughout, the States in rebellion continued to be States in the Union. That is, it held secession to be a purely personal and not a territorial insurrection. Yet it proclaimed eleven States to be in insurrection against the United States, blockaded their ports, and interdicted all trade and intercourse of any kind with them. The Supreme Court, in order to sustain the blockade and interdict as legal, decided the war to be not a war against simply individual or personal insurgents but "a territorial civil war." This negatived the assumption that the States that took up arms against the United States remained all the while peaceable and loyal States, with all their political rights and powers in the Union. The States in the Union are integral elements of the political sovereignty, for the sovereignty of the American nation vests in the States finite; and it is absurd to pretend that the eleven States that made the rebellion and were carrying on a formidable war against the United States, were in the Union, an integral element of that sovereign authority which was carrying on a yet more formidable war against them. Nevertheless, the government still held to its first assumption, that the States in rebellion continued to be States in the Union—loyal States, with all their rights and franchises unimpaired!

That the government should at first have favored or acquiesced in the doctrine that no State had ceased to be a State in the Union, is not to be wondered at. The extent and determination of the secession movement were imperfectly understood, and the belief among the supporters of the government, and, perhaps, of the government itself, was, that it was a spasmodic movement for a temporary purpose, rather than a fixed determination to found an independent separate nationality; that it was and would be sustained by the real majority of the people of none of the States, with perhaps the exception of South Carolina; that the true policy of the government would be to treat the seceders with great forbearance, to avoid all measures likely to exasperate them or to embarrass their loyal fellow-citizens, to act simply on the defensive, and to leave the Union men in the several seceding States to gain a political victory at the polls over the secessionists, and to return their States to their normal position in the Union.

The government may not have had much faith in this policy, and Mr. Lincoln's personal authority might be cited to the effect that it had not, but it was urged strongly by the Union men of the Border States. The administration was hardly seated in office, and its members were new men, without administrative experience; the President, who had been legally elected indeed, but without a majority of the popular votes, was far from having the full confidence even of the party that elected him; opinions were divided; party spirit ran high; the excitement was great, the crisis was imminent, the government found itself left by its predecessor without an army or a navy, and almost without arms or ordnance; it knew not how far it could count on popular support, and was hardly aware whom it could trust or should distrust; all was hurry and confusion; and what could the government do but to gain time, keep off active war as long as possible, conciliate all it could, and take ground which at the time seemed likely to rally the largest number of the people to its support? There were men then, warm friends of the administration, and still warmer friends of their country, who believed that a bolder, a less timid, a less cautious policy would have been wiser, that in revolutionary times boldness, what in other times would be rashness, is the highest prudence, on the side of the government as well as on the side of the revolution; that when once it has shown itself, the rebellion that hesitates, deliberates, consults, is defeated and so is the government. The seceders owed from the first their successes not to their superior organization, to their better preparation, or to the better discipline and appointment of their armies, but to their very rashness, to their audacity even, and the hesitancy, cautious and deliberation of the government. Napoleon owed his successes as general and civilian far more to the air of power he assumed, and the conviction he produced of his invincibility in the minds of his opponents, than to his civil or military strategy and tactics, admirable as they both were. But the government believed it wisest to adopt a conciliatory and, in many respects, a temporizing policy, and to rely more on weakening the secessionists in their respective States than on strengthening the hands and hearts of its own staunch and uncompromising supporters. It must strengthen the Union party in the insurrectionary States, and as this party hoped to succeed by political manipulation rather than by military force, the government must rely rather on a show of military power than on gaining any decisive battle. As it hoped, or affected to hope, to suppress the rebellion in the States that seceded through their loyal citizens, it was obliged to assume that secession was the work of a faction, of a few ambitious and disappointed politicians, and that the States were all in the Union, and continued in the loyal portion of their inhabitants. Hence its aid to the loyal Virginians to organize as the State of Virginia, and its subsequent efforts to organize the Union men in Louisiana, Arkansas, and Tennessee, and its disposition to recognize their organization in each of those States as the State itself, though including only a small minority of the territorial people. Had the facts been as assumed, the government might have treated the loyal people of each State as the State itself, without any gross usurpation of power; but, unhappily, the facts assumed were not facts, and it was soon found that the Union party in all the States that seceded, except the western part of Virginia and the eastern section of Tennessee, after secession had been carried by the popular vote, went almost unanimously with the secessionists; for they as well as the secessionists held the doctrine of State sovereignty; and to treat the handful of citizens that remained loyal in each State as the State itself, became ridiculous, and the government should have seen and acknowledged it.

The rebellion being really territorial, and not personal, the State that seceded was no more continued in the loyal than in the disloyal population. While the war lasted, both were public enemies of the United States, and neither had or could have any rights as a State in the Union. The law recognizes a solidarity of all the citizens of a State, and assumes that, when a State is at war, all its citizens are at war, whether approving the war or not. The loyal people in the States that seceded incurred none of the pains and penalties of treason, but they retained none of the political rights of the State in the Union, and, in reorganizing the State after the suppression of the rebellion, they have no more right to take part than the secessionists themselves. They, as well as the secessionists, have followed the territory. It was on this point that the government committed its gravest mistake. As to the reorganization or reconstruction of the State, the whole territorial people stood on the same footing.

Taking the decision of the Supreme Court as conclusive on the subject, the rebellion was territorial, and, therefore, placed all the States as States out of the Union, and retained them only as population and territory, under or subject to the Union. The States ceased to exist, that is, as integral elements of the national sovereignty. The question then occurred, are they to be erected into new States, or are they to be reconstructed and restored to the Union as the identical old States that seceded? Shall their identity be revived and preserved, or shall they be new States, regardless of that identity? There can be no question that the work to be done was that of restoration, not of creation; no tribe should perish from Israel, no star be struck from the firmament of the Union. Every inhabitant of the fallen States, and every citizen of the United States must desire them to be revived and continued with their old names and boundaries, and all true Americans wish to continue the constitution as it is, and the Union as it was. Who would see old Virginia, the Virginia of revolutionary fame, of Washington, Jefferson, Madison, of Monroe, the "Old Dominion," once the leading State of the Union, dead without hope of resurrection? or South Carolina, the land of Rutledge, Moultrie, Laurens, Hayne, Sumter, and Marion? There is something grating to him who values State associations, and would encourage State emulation and State pride, in the mutilation of the Old Dominion and the erection within her borders of the new State called West Virginia. States in the Union are not mere prefectures, or mere dependencies on the General government, created for the convenience of administration. They have an individual, a real existence of their own, as much so as have the individual members of society. They are free members, not of a confederation indeed, but of a higher political community, and reconstruction should restore the identity of their individual life, suspended for a moment by secession, but capable of resuscitation.

These States had become, indeed, for a moment, territory under the Union; but in no instance had they or could they become territory that had never existed as States. The fact that the territory and people had existed as a State, could with regard to none of them be obliterated, and, therefore, they could not be erected into absolutely new States. The process of reconstructing them could not be the same as that of creating new States. In creating a new State, Congress, ex necessitate, because there is no other power except the national convention competent to do it, defines the boundaries of the new State, and prescribes the electoral people, or who may take part in the preliminary organization but in reconstructing States it does neither, for both are done by a law Congress is not competent to abrogate or modify, and which can be done only by the United States in convention assembled, or by the State itself after its restoration. The government has conceded this, and, in part, has acted on it. It preserves, except in Virginia, the old boundaries, and recognizes, or rather professes to recognize the old electoral law, only it claims the right to exclude from the electoral people those who have voluntarily taken part in the rebellion.

The work to be done in States that have seceded is that of reconstruction, not creation; and this work is not and cannot be done, exclusively nor chiefly by the General government, either by the Executive or by Congress. That government can appoint military, or even provisional governors, who may designate the time and place of holding the convention of the electoral people of the disorganized State, as also the time and place of holding the elections of delegates to it, and superintend the elections so far as to see the polls are opened, and that none but qualified electors vote, but nothing more. All the rest is the work of the territorial electoral people themselves, for the State within its own sphere must, as one of the United States, be a self-governing community. The General government may concede or withhold permission to the disorganized State to reorganize, as it judges advisable, but it cannot itself reorganize it. If it concedes the permission, it must leave the whole electoral people under the preexisting electoral law free to take part in the work of reorganization, and to vote according to their own judgment. It has no authority to purge the electoral people, and say who may or may not vote, for the whole question of suffrage and the qualifications of electors is left to the State, and can be settled neither by an act of Congress nor by an Executive proclamation.

If the government theory were admissible, that the disorganized States remain States in the Union, the General government could have nothing to say on the subject, and could no more interfere with elections in any one of them than it could with elections in Massachusetts or New York. But even on the doctrine here defended it can interfere with them only by way of general superintendence. The citizens have, indeed, lost their political rights, but not their private rights. Secession has not dissolved civil society, or abrogated any of the laws of the disorganized State that were in force at the time of secession. The error of the government is not in maintaining that these laws survive the secession ordinances, and remain the territorial law, or lex loci, but in maintaining that they do so by will of the State, that has, as a State, really lapsed. They do so by will of the United States, which enacted them through the individual State, and which has not in convention abrogated them, save the law authorizing slavery, and its dependent laws.

This point has already been made, but as it is one of the niceties of the American constitution, it may not be amiss to elaborate it at greater length. The doctrine of Mr. Jefferson, Mr. Madison, and the majority of our jurists, would see to be that the States, under God, are severally sovereign in all matters not expressly confided to the General government, and therefore that the American sovereignty is divided, and the citizen owes a double allegiance—allegiance to his State, and allegiance to the United States—as if there was a United States distinguishable from the States. Hence Mr. Seward, in an official dispatch to our minister at the court of St. James, says: "The citizen owes allegiance to the State and to the United States." And nearly all who hold allegiance is due to the Union at all, hold that it is also due to the States, only that which is due to the United States is paramount, as that under feudalism due to the overlord. But this is not the case. There is no divided sovereignty, no divided allegiance. Sovereignty is one, and vests not in the General government or in the State government, but in the United States, and allegiance is due to the United States, and to them alone. Treason can be committed only against the United States, and against a State only because against the United States, and is properly cognizable only by the Federal courts. Hence the Union men committed no treason in refusing to submit to the secession ordinances of their respective States, and in sustaining the national arms against secession.

There are two very common mistakes: the one that the States individually possess all the powers not delegated to the General government; and the other that the Union, or United States, have only delegated powers. But the United States possess all the powers of a sovereign state, and the States individually and the General government possess only such powers as the United States in convention delegate to them respectively. The sovereign is neither the General government nor the States severally, but the United States in convention. The United States are the one indivisible sovereign, and this sovereign governs alike general matters in the General government, and particular matters in the several State governments. All legal authority in either emanates from this one indivisible and plenary sovereign, and hence the law enacted by a State are really enacted by the United States, and derive from them their force and vitality as laws. Hence, as the United States survive the particular State, the lapse of the State does not abrogate the State laws, or dissolve civil society within its jurisdiction.

This is evidently so, because civil society in the particular State does not rest on the State alone, nor on Congress, but on the United States. Hence all civil rights of every sort created by the individual State are really held from the United States, and therefore it was that the people of non-slaveholding States were, as citizens of the United States, responsible for the existence of slavery in the States that seceded. There is a solidarity of States in the Union as there is of individuals in each of the States. The political error of the Abolitionists was not in calling upon the people of the United States to abolish slavery, but in calling upon them to abolish it through the General government, which had no jurisdiction in the case; or in their sole capacity as men, on purely humanitarian grounds, which were the abrogation of all government and civil society itself, instead of calling upon them to do it as the United States in convention assembled, or by an amendment to the constitution of the United States in the way ordained by that constitution itself. This understood, the constitution and laws of a defunct State remain in force by virtue of the will of the United States, till the State is raised from the dead, restored to life and activity, and repeals or alters them, or till they are repealed or altered by the United States or the national convention. But as the defunct State could not, and the convention had not repealed or altered them, save in the one case mentioned, the General government had no alternative but to treat them and all rights created by them as the territorial law, and to respect them as such.

What then do the people of the several States that seceded lose by secession? They lose, besides incurring, so far as disloyal, the pains and penalties of treason, their political rights, or right, as has just been said, to be in their own department self-governing communities, with the right of representation in Congress and the electoral colleges, and to sit in the national convention, or of being counted in the ratification of amendments to the constitution—precisely what it was shown a Territorial people gain by being admitted as a State into the Union. This is the difference between the constitutional doctrine and that adopted by Mr. Lincoln's and Mr. Johnson's Administrations. But what authority, on this constitutional doctrine, does the General government gain over the people of States that secede, that it has not over others! As to their internal constitution, their private rights of person or property, it gains none. It has over them, till they are reconstructed and restored to the Union, the right to institute for them provisional governments, civil or military, precisely as it has for the people of a territory that is not and has never been one of the United States; but in their reconstruction it has less, for the geographical boundaries and electoral people of each are already defined by a law which does not depend on its will, and which it can neither abrogate nor modify. Here is the difference between the constitutional doctrine and that of the so-called radicals. The State has gone, but its laws remain, so far as the United States in convention does not abrogate them; not because the authority of the State survives, but because the United States so will, or are presumed to will. The United States have by a constitutional amendment abrogated the laws of the several States authorizing slavery, and prohibited slavery forever within the jurisdiction of the Union; and no State can now be reconstructed and be admitted into the Union with a constitution that permits slavery, for that would be repugnant to the constitution of the United States. If the constitutional amendment is not recognized as ratified by the requisite number of States, it is the fault of the government in persisting in counting as States what are no States. Negro suffrage, as white suffrage, is at present a question for States.

The United States guarantee to such State a republican form of government. And this guarantee, no doubt, authorizes Congress to intervene in the internal constitution of a State so far as to force it to adopt a republican form of government, but not so far as to organize a government for a State, or to compel a territorial people to accept or adopt a State constitution for themselves. If a State attempts to organize a form of government not republican, it can prevent it; and if a Territory adopts an unrepublican form, it can force it to change its constitution to one that is republican, or compel it to remain a Territory under a provisional government. But this gives the General government no authority in the organization or re-organization of States beyond seeing that the form of government adopted by the territorial people is republican. To press it further, to make the constitutional clause a pretext for assuming the entire control of the organization or re-organization of a State, is a manifest abuse—a palpable violation of the constitution and of the whole American system. The authority given by the clause is specific, and is no authority for intervention in the general reconstruction of the lapsed State. It gives authority in no question raised by secession or its consequences, and can give none, except, from within or from without, there is an overt attempt to organize a State in the Union with an unrepublican form of government.

The General government gives permission to the territorial people of the defunct State to re-organize, or it contents itself with suffering them, without special recognition, to reorganize in their own way, and apply to Congress for admission, leaving it to Congress to admit them as a State, or not, according to its own discretion, in like manner as it admits a new State; but the re-organization itself must be the work of the territorial people themselves, under their old electoral law. The power that reconstructs is in the people themselves; the power that admits them, or receives them into the Union, is Congress. The Executive, therefore, has no authority in the matter, beyond that of seeing that the laws are duly complied with; and whatever power he assumes, whether by proclamation or by instructions given to the provisional governors, civil or military, is simply a usurpation of the power of Congress, which it rests with Congress to condone or not, as it may see fit. Executive proclamations, excluding a larger or a smaller portion of the electoral or territorial people from the exercise of the elective franchise in reorganizing the State, and executive efforts to throw the State into the hands of one political party or another, are an unwarrantable assumption of power, for the President, in relation to reconstruction, acts only under the peace powers of the constitution, and simply as the first executive officer of the Union. His business is to execute the laws, not to make them. His legislative authority is confined to his qualified veto on the acts of Congress, and to the recommendation to Congress of such measures as he believes are needed by the country.

In reconstructing a disorganized State, neither Congress nor the Executive has any power that either has not in time of peace. The Executive, as commander-in-chief of the army, may ex necessitate, pace it ad interim under a military governor, but he cannot appoint even a provisional civil governor till Congress has created the office and given him authority to fill it; far less can be legally give instructions to the civil governor as to the mode or manner of reconstructing the disorganized State, or decide who may or may not vote in the preliminary reorganization. The Executive could do nothing of the sort, even in regard to a Territory never erected into a State. It belongs to Congress, not to the Executive, to erect Territorial or provisional governments, like those of Dacotah, Colorado, Montana, Nebraska, and New Mexico; and, Congress, not the executive, determines the boundaries of the Territory, passes the enabling act, and defines the electoral people, till the State is organized and able to act herself. Even Congress, in reconstructing and restoring to life and vigor in the Union a disorganized State, has nothing to say as to its boundaries or its electoral people, nor any right to interfere between parties in the State, to throw the reconstructed State into the hands of one or another party. All that Congress can insist on is, that the territorial people shall reconstruct with a government republican in form; that its senators and representatives in Congress, and the members of the State legislature, and all executive and judicial officers of the State shall be bound by oath or affirmation to support and defend the constitution of the United States. In the whole work the President has nothing to do with reconstruction, except to see that peace is preserved and the laws are fully executed.

It may be at least doubted that the Executive has power to proclaim amnesty and pardon to rebels after the civil war has ceased, and ceased it has when the rebels have thrown down their arms and submitted; for his pardoning power is only to pardon after conviction and judgment of the court: it is certain that he has no power to proscribe or punish even traitors, except by due process of law. When the war is over he has only his ordinary peace powers. He cannot then disfranchise any portion of the electoral people of a State that seceded, even though there is no doubt that they have taken part in the rebellion, and may still be suspected of disloyal sentiments. Not even Congress can do it, and no power known to the constitution till the State is reconstructed can do it without due process of law, except the national convention. Should the President do any of the things supposed, he would both abuse the power he has and usurp power that he has not, and render himself liable to impeachment. There are many things very proper, and even necessary to be done, which are high crimes when done by an improper person or agent. The duty of the President, when there are steps to be taken or things to be done which he believes very necessary, but which are not within his competency, is, if Congress is not in session, to call it together at the earliest practicable moment, and submit the matter to its wisdom and discretion.

It must be remembered that the late rebellion was not a merely personal but a territorial rebellion. In such a rebellion, embracing eleven States, and, excluding slaves, a population of at least seven millions, acting under an organized territorial government, preserving internal civil order, supporting an army and navy under regularly commissioned officers, and carrying on war as a sovereign nation—in such a territorial rebellion no one in particular can be accused and punished as a traitor. The rebellion is not the work of a few ambitious or reckless leaders, but of the people, and the responsibility of the crime, whether civil or military, is not individual, but common to the whole territorial people engaged in it; and seven millions, or the half of them, are too many to ban to exile, or even to disfranchise Their defeat and the failure of their cause must be their punishment. The interest of the country, as well the sentiment of the civilized world—it might almost be said the law of nations—demands their permission to return to their allegiance, to be treated according to their future merits, as an integral portion of the American people.

The sentiment of the civilized world has much relaxed from its former severity toward political offenders. It regards with horror the savage cruelties of Great Britain to the unfortunate Jacobites, after their defeat under Charles Edward, at Culloden, in 1746, their barbarous treatment of the United Irishmen in 1798, and her brutality to the mutinous Hindoos in 1857-'58; the harshness of Russia toward the insurgent Poles, defeated in their mad attempts to recover their lost nationality; the severity of Austria, under Haynau, toward the defeated Magyars. The liberal press kept up for years, especially in England and the United States, a perpetual howl against the Papal and Neapolitan governments for arresting and imprisoning men who conspired to overthrow them. Louis Kossuth was no less a traitor than Jefferson Davis, and yet the United States solicited his release from a Turkish prison, and sent a national ship to bring him hither as the nation's guest. The people of the United States have held from the first "the right of insurrection," and have given their moral support to every insurrection in the Old or New World they discovered, and for them to treat with severity any portion of the Southern secessionists, who, at the very worst, only acted on the principles the nation had uniformly avowed and pronounced sacred, would be regarded, and justly, by the civilized world as little less than infamous.

Not only the fair fame, but the interest of the Union forbids any severity toward the people lately in arms against the government. The interest of the nation demands not the death or the expulsion of the secessionists, and, least of all, of those classes proscribed by the President's proclamation of the 29th of May, 1865, nor even their disfranchisement, perpetual or temporary; but their restoration to citizenship, and their loyal co-operation with all true-hearted Americans, in hearing the wounds inflicted on the whole country by the civil war. There need be no fear to trust them. Their cause is lost; they may or may not regret it, but lost it is, and lost forever. They appealed to the ballot-box, and were defeated; they appealed from the ballot-box to arms, to war, and have been again defeated, terribly defeated. They know it and feel it. There is no further appeal for them; the judgment of the court of last resort has been rendered, and rendered against them. The cause is finished, the controversy closed, never to be re-opened. Henceforth the Union is invincible, and it is worse than idle to attempt to renew the war against it. Henceforth their lot is bound up with that of the nation, and all their hopes and interests, for themselves and their children, and their children's children, depend on their being permitted to demean themselves henceforth as peaceable and loyal American citizens. They must seek their freedom, greatness, and glory in the freedom, greatness, and glory of the American republic, in which, after all, they can be far freer, greater, more glorious than in a separate and independent confederacy. All the arguments and considerations urged by Union men against their secession, come back to them now with redoubled force to keep them henceforth loyal to the Union.

They cannot afford to lose the nation, and the nation cannot afford to lose them. To hang or exile them, and depopulate and suffer to run to waste the lands they had cultivated, were sad thrift, sadder than that of deporting four millions of negroes and colored men. To exchange only those excepted from amnesty and pardon by President Johnson, embracing some two millions or more, the very pars sanior of the Southern population, for what would remain or flock in to supply their place, would be only the exchange of Glaucus and Diomed, gold for brass; to disfranchise them, confiscate their estates, and place them under the political control of the freedmen, lately their slaves, and the ignorant and miserable "white trash," would be simply to render rebellion chronic, and to convert seven millions of Americans, willing and anxious to be free, loyal American citizens, eternal enemies. They have yielded to superior numbers and resources; beaten, but not disgraced, for they have, even in rebellion, proved themselves what they are—real Americans. They are the product of the American soil, the free growth of the American republic, and to disgrace them were to disgrace the whole American character and people.

The wise Romans never allowed a triumph to a Roman general for victories, however brilliant, won over Romans. In civil war, the victory won by the government troops is held to be a victory for the country, in which all parties are victors, and nobody is vanquished. It was as truly for the good of the secessionists to fail, as it was for those, who sustained the government to succeed; and the government having forced their submission and vindicated its own authority, it should now leave them to enjoy, with others, the victory which it his won for the common good of all. When war becomes a stern necessity, when it breaks out, and while it lasts, humanity requires it to be waged in earnest, prosecuted with vigor, and made as damaging, as distressful to the enemy as the laws of civilized nations permit. It is the way to bring it to a speedy close, and to save life and property. But when it is over, when the enemy submits, and peace returns, the vanquished should be treated with gentleness and love. No rancor should remain, no vengeance should be sought; they who met in mortal conflict on the battle-field should be no longer enemies, but embrace as comrades, as friends, as brothers. None but a coward kicks a fallen foe; a brave people is generous, and the victors in the late war can afford to be generous generously. They fought for the Union, and the Union has no longer an enemy; their late enemies are willing and proud to be their countrymen, fellow-citizens, and friends; and they should look to it that small politicians do not rob them in the eyes of the world, by unnecessary and ill-timed severity to the submissive, of the glory of being, as they are, a great, noble, chivalric, generous, and magnanimous people.

The government and the small politicians, who usually are the most influential with all governments, should remember that none of the secessionists, however much in error they have been, have committed the moral crime of treason. They held, with the majority of the American people, the doctrine of State sovereignty, and on that doctrine they had a right to secede, and have committed no treason, been guilty of no rebellion. That was, indeed, no reason why the government should not use all its force, if necessary, to preserve the national unity and the integrity of the national domain; but it is a reason, and a sufficient reason, why no penalty of treason should be inflicted on secessionists or their leaders, after their submission, and recognition of the sovereignty of the United States as that to which they owe allegiance. None of the secessionists have been rebels or traitors, except in outward act, and there can, after the act has ceased, be no just punishment where there has been no criminal intent. Treason is the highest crime, and deserves exemplary punishment; but not where there has been no treasonable intent, where they who committed it did not believe it was treason, and on principles held by the majority of their countrymen, and by the party that had generally held the government, there really was no treason. Concede State sovereignty, and Jefferson Davis was no traitor in the war he made on the United States, for he made none till his State had seceded. He could not then be arraigned for his acts after secession, and at most, only for conspiracy, if at all, before secession.

But, if you permit all to vote in the re-organization of the State who, under the old electoral law, have the elective franchise, you throw the State into the hands of those who have been disloyal to the Union. If so, and you cannot trust them, the remedy is not in disfranchising the majority, but in prohibiting re-organization, and in holding the territorial people still longer under the provisional government, civil or military. The old electoral law disqualifies all who have been convicted of treason either to the State or the United States, and neither Congress nor the Executive can declare any others disqualified on account of disloyalty. But you must throw the State into the hands of those who took part, directly or indirectly, in the rebellion, if you reconstruct the States at all, for they are undeniably the great body of the territorial people in all the States that seceded. These people having submitted, and declared their intention to reconstruct the State as a State in the Union, you must amend the constitution of the United States, unless they are convicted of a disqualifying crime by due process of law, before you can disfranchise them. It is impossible to reconstruct any one of the disorganized States with those alone, or as the dominant party, who have adhered to the Union throughout the fearful struggle, as self-governing States. The State, resting on so small a portion of the people, would have no internal strength, no self-support, and could stand only as upheld by federal arms, which would greatly impair the free and healthy action of the whole American system.

The government attempted to do it in Virginia, Louisiana, Arkansas, and Tennessee, before the rebellion was suppressed, but without authority and without success. The organizations, effected at great expense, and sustained only by military force, were neither States nor State governments, nor capable of being made so by any executive or congressional action. If the disorganized States, as the government held, were still States in the Union, these organizations were flagrantly revolutionary, as effected not only without, but in defiance of State authority; if they had seceded and ceased to be States, as was the fact, they were equally unconstitutional and void of authority, because not created by the free suffrage of the territorial people, who alone are competent to construct or reconstruct a state.

If the Unionists had retained the State organization and government, however small their number, they would have held the State, and the government would have been bound to recognize and to defend them as such with all the force of the Union. The rebellion would then have been personal, not territorial. But such was not the case. The State organization, the State government, the whole State authority rebelled, made the rebellion territorial, not personal, and left the Unionists, very respectable persons assuredly, residing, if they remained at home, in rebel territory, traitors in the eye of their respective States, and shorn of all political status or rights. Their political status was simply that of the old loyalists, or adherents of the British crown in the American war for Independence, and it was as absurd to call them the State, as it would have been for Great Britain to have called the old Tories the colonies.

The theory on which the government attempted to re-organize the disorganized States rested on two false assumptions: first, that the people are personally sovereign; and, second, that all the power of the Union vests in the General government. The first, as we have seen, is the principle of so-called "squatter sovereignty," embodied in the famous Kansas-Nebraska Bill, which gave birth, in opposition, to the Republican party of 1856. The people are sovereign only as the State, and the State is inseparable from the domain. The Unionists without the State government, without any State organization, could not hold the domain, which, when the State organization is gone, escheats to the United States, that is to say, ceases to exist. The American democracy is territorial, not personal.

The General government, in time of war or rebellion, is indeed invested, for war purposes, with all the power of the Union. This is the war power. But, though apparently unlimited, the war power is yet restricted to war purposes, and expires by natural limitation when peace returns; and peace returns, in a civil war, when the rebels have thrown down their arms and submitted to the national authority, and without any formal declaration. During the war, or while the rebellion lasts, it can suspend the civil courts, the civil laws, the State constitutions, any thing necessary to the success of the war—and of the necessity the military authorities are the judges; but it cannot abolish, abrogate, or reconstitute them. On the return of peace they revive of themselves in all their vigor. The emancipation proclamation of the President, if it emancipated the slaves in certain States and parts of States, and if those whom it emancipated could not be re-enslaved, did not anywhere abolish slavery, or change the laws authorizing it; and if the Government should be sustained by Congress or by the Supreme Court in counting the disorganized States as States in the Union, the legal status of slavery throughout the Union, with the exception of Maryland, and perhaps Missouri, is what it was before the war.[1]

The Government undoubtedly supposed, in the reconstructions it attempted, that it was acting under the war power; but as reconstruction can never be necessary for war purposes, and as it is in its very nature a work of peace, incapable of being effected by military force, since its validity depends entirely on its being the free action of the territorial people to be reconstructed, the General government had and could have, with regard to it, only its ordinary peace powers. Reconstruction is jure pacis, not jure belli.

Yet such illegal organizations, though they are neither States nor State governments, and incapable of being legalized by any action of the Executive or of Congress, may, nevertheless, be legalized by being indorsed or acquiesced in by the territorial people. They are wrong, as are all usurpations; they are undemocratic, inasmuch as they attempt to give the minority the power to rule the majority; they are dangerous inasmuch as they place the State in the hands of a party that can stand only as supported by the General government, and thus destroy the proper freedom and independence of the State, and open the door to corruption, tend to keep alive rancor and ill feeling, and to retard the period of complete pacification, which might be effected in three months as well as in three years, or twenty years; yet they can become legal, as other governments illegal in their origin become legal, with time and popular acquiescence. The right way is always the shortest and easiest; but when a government must oftener follow than lead the public, it is not always easy to hit the right way, and still less easy to take it. The general instincts of the people are right as to the end to be gained, but seldom right as to the means of gaining it; and politicians of the Union party, as well as of the late secession party, have an eye in reconstructing, to the future political control of the State when it is reconstructed.

The secessionists, if permitted to retain their franchise, would, even if they accepted abolition, no doubt re-organize their respective States on the basis of white suffrage, and so would the Unionists, if left to themselves. There is no party at the South prepared to adopt negro suffrage, and there would be none at the North if the negroes constituted any considerable portion of the population. As the reconstruction of a State cannot be done under the war power, the General government can no more enfranchise than it can disfranchise any portion of the territorial people, and the question of negro suffrage must be left, where the constitution leaves it—to the States severally, each to dispose of it for itself. Negro suffrage will, no doubt, come in time, as soon as the freedmen are prepared for it, and the danger is that it will be attempted too soon.

It would be a convenience to have the negro vote in the reconstruction of the States disorganized by secession, for it would secure their re-construction with antislavery constitutions, and also make sure of the proposed antislavery amendment to the Constitution of the United States; but there is no power in Congress to enfranchise the negroes in the States needing reconstruction, and, once assured of their freedom, the freedmen would care little for the Union, of which they understand nothing. They would vote, for the most part, with their former masters, their employers, the wealthier and more intelligent classes, whether loyal or disloyal; for, as a rule, these will treat them with greater personal consideration and kindness than others. The dislike of the negro, and hostility to negro equality, increase as you descend in the social scale. The freedmen, without political instruction or experience, who have had no country, no domicile, understand nothing of loyalty or of disloyalty. They have strong local attachments, but they can have no patriotism. If they adhered to the Union in the rebellion, fought for it, bled for it, it was not from loyalty, but because they knew that their freedom could come only from the success of the Union arms. That freedom secured, they have no longer any interest in the Union, and their local attachments, personal associations, habits, tastes, likes and dislikes, are Southern, not Northern. In any contest between the North and the South, they would take, to a man, the Southern side. After the taunts of the women, the captured soldiers of the Union found, until nearly the last year of the war, nothing harder to bear, when marched as prisoners into Richmond, than the antics and hootings of the negroes. Negro suffrage on the score of loyalty, is at best a matter of indifference to the Union, and as the elective franchise is not a natural right, but a civil trust, the friends of the negro should, for the present, be contented with securing him simply equal rights of person and property.

[1] This was the case in August, 1865. It may be quite otherwise before these pages see the light.



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.