"In a state of rude Nature there is no such thing as a people. A number of men in themselves have no collective capacity. The idea of people is the idea of a corporation. It is wholly artificial, and made, like all other legal fictions, by common agreement. What the particular nature of that agreement was is collected from the form into which the particular society has been cast. Any other is not their covenant. When men, therefore, break p the original compact or agreement which gives its corporate form and capacity to a State, they are no longer a people; they have no longer a corporate existence; they have no longer a legal coactive force to bind within, nor a claim to be recognized abroad. They are a number of vague, loose individuals, and nothing more. With them all is to begin again. Alas! they little know how many a weary step is to be taken before they can form themselves into a mass which has a true politic personality."[20]
If that great master of eloquence could be heard, who can doubt that he would blast our Rebel States, as senseless communities who have sacrificed that corporate existence which makes them living, component members of our Union of States?
STATE FORFEITURE.
But again it is sometimes said, that the States, by their flagrant treason, have forfeited their rights as States, so as to be civilly dead. It is a patent and indisputable fact, that this gigantic treason was inaugurated with all the forms of law known to the States; that it was carried forward not only by individuals, but also by States, so far as States can perpetrate treason; that the States pretended to withdraw bodily in their corporate capacities;—that the Rebellion, as it showed itself, was by States as well as in States; that it was by the governments of States as well as by the people of States; and that, to the common observer, the crime was consummated by the several corporations as well as by the individuals of whom they were composed. From this fact, obvious to all, it is argued, that, since, according to Blackstone, "a traitor hath abandoned his connection with society, and hath no longer any right to the advantages which before belonged to him purely as a member of the community," by the same principle the traitor State is no longer to be regarded as a member of the Union. But it is not necessary, on the present occasion, to insist on the application of any such principle to States.
STATE ABDICATION.
Again it is said, that the States by their treason and rebellion, levying war upon the National Government, have abdicated their places in the Union; and here the argument is upheld by the historic example of England, at the Revolution of 1688, when, on the flight of James II. and the abandonment of his kingly duties, the two Houses of Parliament voted, that the monarch, "having violated the fundamental laws, and having withdrawn himself out of the kingdom, had abdicated the government, and that the throne had thereby become vacant."[21] But it is not necessary for us to rely on any allegation of abdication, applicable as it may be.
RIGHTFUL GOVERNMENT IN THE REBEL STATES VACATED.
It only remains that we should see things as they are, and not seek to substitute theory for fact. On this important question I discard all theory, whether it be of State suicide or State forfeiture or State abdication, on the one side, or of State rights, immortal and unimpeachable, on the other side. Such discussions are only endless mazes in which a whole senate may be lost. And in discarding all theory, I discard also the question of de jure,—whether, for instance, the Rebel States, while the Rebellion is flagrant, are de jure States of the Union, with all the rights of States. It is enough, that, for the time being, and in the absence of a loyal government, they can take no part and perform no function in the Union, so that they cannot be recognized by the National Government. The reason is plain. There are in these States no local functionaries bound by constitutional oaths, so that, in fact, there are no constitutional functionaries; and since the State government is necessarily composed of such functionaries, there can be no State government. Thus, for instance, in South Carolina, Pickens and his associates may call themselves the governor and legislature, and in Virginia, Letcher and his associates may call themselves governor and legislature; but we cannot recognize them as such. Therefore to all pretensions in behalf of State governments in the Rebel States I oppose the simple FACT, that for the time being no such governments exist. The broad spaces once occupied by those governments are now abandoned and vacated.
That patriot Senator, Andrew Johnson,—faithful among the faithless, the Abdiel of the South,—began his attempt to reorganize Tennessee by an Address, as early as the 18th of March, 1862, in which he made use of these words:—
"I find most, if not all, of the offices, both State and Federal, vacated, either by actual abandonment, or by the action of the incumbents in attempting to subordinate their functions to a power in hostility to the fundamental law of the State and subversive of her national allegiance."