The American Republic: Its Constitution, Tendencies, and Destiny

by Orestes Augustus Brownson

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.