It is argued, that the Acts of Secession are all inoperative and void, and therefore the States continue precisely as before, with their local constitutions, laws, and institutions in the hands of traitors, but totally unchanged, and ready to be quickened into life by returning loyalty. Such, I believe, is a candid statement of the pretension for State Rights against Congressional governments, which, it is argued, cannot be substituted for the State governments.
To prove that the Rebel States continue precisely as before, we are reminded that Andrew Johnson continued to occupy his seat in the Senate after Tennessee had adopted its Act of Secession and embarked in rebellion, and that his presence testified to the fact that rebel Tennessee was still a State of the Union. No such conclusion is authorized by this incident. There are two principles of Parliamentary Law long ago fixed: first, that the power once conferred by an election to Parliament is irrevocable, so that it is not affected by any subsequent change in the constituency; and, secondly, that a member, when once chosen, is a member for the whole kingdom, becoming thereby, according to the words of an early author, not merely knight, citizen, or burgess of the county, city, or borough which elected him, but knight, citizen, or burgess of England.[194] If these two principles are not entirely inapplicable to our political system, then the seat of Andrew Johnson was not in any respect affected by the subsequent madness of his State, nor can the legality of his seat be any argument for his State.
We are also reminded, that, during the last session of Congress, two Senators from Virginia represented that State in the Senate, and the argument is pressed that no such representation would be valid, if the State government of Virginia was vacated. This is a mistake. Two things are established by the presence of these Senators in the National Senate: first, that the old State government of Virginia is extinct; and, secondly, that a new government has been set up in its place. It was my fortune to hear one of these Senators, while earnestly denouncing the idea that a State government could disappear. I could not but think that he strangely forgot the principle to which he owed his seat in the Senate, as men sometimes forget a benefactor.
It is true beyond question that the Acts of Secession are all inoperative and void against the Constitution of the United States. Though matured in successive conventions, sanctioned in various forms, and maintained ever since by bloody war, these Acts, no matter by what name they may be called, are all equally impotent to withdraw an acre of territory or a single inhabitant from the rightful jurisdiction of the nation. But while thus impotent against the United States, it does not follow that they were equally impotent in the work of self-destruction. Clearly, the Rebels, by utmost effort, could not impair the national jurisdiction; but it remains to be seen if their enmity did not act back with fatal rebound upon those very State Rights in behalf of which they commenced their treason.
It is sometimes said that the States themselves committed suicide, so that, as States, they ceased to exist, leaving their whole jurisdiction open to the occupation of the United States under the Constitution. This assumption is founded on the fact, that, whatever the existing governments in these States, they are in no respect constitutional; and since the State itself is known by the government with which its life is intertwined, it must cease to exist constitutionally when its government no longer exists constitutionally. It were better, perhaps, to avoid the whole question of life or death in the State, and content ourselves with inquiry into the condition of its government. It is not easy to say what constitutes that entity we call a State; nor is the discussion much advanced by any theory. To my mind it seems a topic fit for the old schoolmen or a modern debating society; and yet, considering the part it has already played, I shall be pardoned for a brief allusion to it.
There are well-known words which ask and answer the question, “What constitutes a State?” But the scholarly poet[195] was not thinking of a “State” of the American Union. Indeed, this term is various in use. Sometimes it stands for civil society itself. Sometimes it is the general name for a political community, not unlike “nation” or “country,”—as when our fathers, in the Resolution of Independence which preceded the Declaration, spoke of “the State of Great Britain.” Sometimes it stands for the government,—as when Louis the Fourteenth, at the height of his power, exclaimed, “The State, it is I,”—or when Sir Christopher Hatton, in the famous farce of “The Critic,” ejaculated,—
“I cannot but surmise,—forgive, my friend,
If the conjecture’s rash,—I cannot but
Surmise the State some danger apprehends.”[196]