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The American Republic

b >> by O. A. Brownson >> The American Republic




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.

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