The American Republic: Its Constitution, Tendencies, and Destiny

by Orestes Augustus Brownson

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.