A B C D E F G H I J K L M N O P R S T U V W X Z

The American Republic

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




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.

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