RECONSTRUCTION AND NEGRO SUFFRAGE.
The submission of the Rebel armies and the occupation of the Rebel territory by the forces of the United States are successes which have been purchased at the cost of the lives of half a million of loyal men and a debt of nearly three thousand millions of dollars; but, according to theories of State Rights now springing anew to life, victory has smitten us with impotence. The war, it seems, was waged for the purpose of forcing the sword out of the Rebel's hands, and forcing into them the ballot. At an enormous waste of treasure and blood, we have acquired the territory for which we fought; and lo! it is not ours, but belongs to the people we have been engaged in fighting, in virtue of the constitution we have been fighting for. The Federal government is now, it appears, what Wigfall elegantly styled it four years ago,—nothing but "the one-horse concern at Washington": the real power is in the States it has subdued. We are therefore expected to act like the savage, who, after thrashing his Fetich for disappointing his prayers, falls down again and worships it. Our Fetich is State Rights, as perversely misunderstood. The Rebellion would have been soon put down, had it been merely an insurrectionary outbreak of masses of people without any political organization. Its tremendous force came from its being a revolt of States, with the capacity to employ those powers of taxation and conscription which place the persons and property of all residing in political communities at the service of their governments. And now that characteristic which gave strength to the Rebel communities in war is invoked to shield them from Federal regulation in defeat. We are required to substitute technicalities for facts; to consider the Rebellion—what it notoriously was not—a mere revolt of loose aggregations of men owing allegiance to the United States; and to hold the States, which endowed them with such a perfect organization and poisonous vitality, as innocent of the crime. The verbal dilemma in which this reasoning places us is this: that the Rebel States could not do what they did, and therefore we cannot do what we must. Among other things which it is said we cannot do, the prescribing of the qualifications of voters in the States occupies the most important place; and it is necessary to inquire whether the Rebel communities now held by our military power are States, in the sense that word bears in the Federal Constitution. If they are, we have not only no right to say that negroes shall enjoy in them the privilege of voting, but no right to prescribe any qualifications for white voters.
In the American system, the process by which constitutions are made and governments instituted is by conventions of the people. The State constitutions were ordained by conventions of the people of the several States; the constitution of the United States was made the supreme law of the land by conventions of the people of all the States; and the only method by which a State could be released, with any show of legality, from its obligations to the United States, would be the assent of the same power which created the Federal constitution,—namely, conventions of the people of all the States. The course adopted by the so-called "seceding" States was separate State action by popular conventions in the States seceding. This was an appeal to the original authority from which State governments and constitutions derived their powers, but a violation of solemn faith towards the government and constitution decreed by the people of all the States, and which, by the assent of each State, formed a vital part of each State constitution. No State convention could be called for the purpose of separating from the Union,—of destroying what the officers calling it had sworn to support,—without making official perjury the preliminary condition of State sovereignty. Looked at from the point of view of the State seceding, the act was an assertion of State independence; looked at from the point of view of the constitution of the United States, it was an act of State suicide. The State so acting through a convention of its people was no longer a State, in the meaning that word bears in the Federal constitution; for, whatever it may have been before it was one of the United States, it was transformed into a different political society by making the Federal constitution a part of its own organic law. In cutting that bond, it bled to death as a State, as far as the Federal constitution knows a State, to rise again as a Rebel community, holding a portion of the Federal territory by force of arms. A State, in the meaning of the Federal constitution, is a political community forbidden to exercise sovereign powers, and at once a part of the Federal government and owing allegiance to it. Is South Carolina, which has exercised sovereign powers, which has broken its allegiance to the Federal government, and which at present is certainly not a part of it, such a political society?
It is, we know, contended by some reasoners on the subject, that the Rebel States could not do what they palpably did. This course of argument is sustained only by confounding duties with powers. By the constitution a State cannot (that is, has no right to) secede, only as, by the moral law, a man cannot (that is, has no right to) commit murder; nevertheless, States have broken away from their obligations to the Union, as murderers have broken away from their obligations to the moral law. It is folly to claim that criminal acts are impossible because they are unjustifiable. The real question relates to the condition in which the criminal acts of the Rebel States left them as political societies. They cannot claim, as some of their Northern champions do for them, that being in the Union in our view, and out of it in their own, the only result of defeating them as Rebels is to restore them as citizens. This would be playing a political game of "Heads I win, tails you lose," which they must know can hardly succeed with a nation which has made such enormous sacrifices of treasure and blood in putting them down. After having, by a solemn act of their own, through conventions of the people, forsworn their duties to the constitution, they by that act forfeited its privileges. In our view they became Rebel enemies, against whom we had both the rights of sovereignty and the rights of war; in their own view, they became foreigners; and from that moment they had no more "constitutional" control of the area they occupied, were no more "States," than if they had transferred their allegiance to a European power, and the war had been prosecuted to wrest the territory they occupied, and the people they ruled, from the clutch of England or France. Even if we consider the Union a mere partnership of States, the same principle will apply; for partnership implies mutual obligations, and no partner can steal the property of his firm, and abscond with it, and then, after he has been hunted down and arrested, claim the rights in the business he enjoyed before he turned rogue.
But it is sometimes asserted that the small minority of citizens in the Rebel States claiming to be, and to have been, loyal, constitute the States in the constitutional meaning of the term. Now without insisting on the fact that it is so plainly impossible to accurately distinguish these from the disloyal, that an oath, not required by State constitutions, has, in the recent attempt at reconstruction, been imposed by Federal authority on all voters alike, it is plain that no minority in a political society can claim exemption from political evils it had not power to prevent. Had we gone to war with Great Britain, the property of Cobden and Bright on the high seas would have been as liable to capture as that of Lindsay or Laird. No loyal citizens at the South could have been more bitterly opposed to Secession than some of our Northern Copperheads were to the war for the Union; and yet the persons of the Copperheads were as liable to conscription, and their property to taxation, as those of the most enthusiastic Republicans. There would be an end to political societies, if men should refuse to be held responsible for all public acts except those they personally approved. A member of a community whose people, in a convention, broke faith with the United States, and made war against it, the Southern Unionist was forced into complicity with the crime. By the pressure of a power he could not resist he was compelled to pay Confederate taxes, serve in Confederate armies, and become a portion of the Confederate strength. More than this: the property in human beings, which he held by local law, was confiscated by the Federal government's edict of emancipation, equally with the same kind of property held by the most disloyal. And now that the war is over, he and those who sympathized with him are not the State, which was extinguished by its own act when it rebelled. He and his friends may be the objects of sympathy, of honor, of reward; but in the work of reconstruction the interest and safety of the great body of loyal citizens of the United States, of the persons who have bought the territory at such a terrible price, are to be primarily consulted. And not simply because such a course is expedient, but because the Southern Unionists can advance no valid claim to be the political societies which were recognized by the Federal constitution as States before the Rebellion. If they were, they might proceed at once to assume the powers of the States, without any authority from Washington, and without calling any convention to form a new constitution. If, on the breaking out of the Rebellion, they had rallied in defence of the old constitutions within State limits, preserved the organization of the States in all departments, raised and equipped armies, and conducted a war against the Confederates as traitors to their respective States as well as to the United States, they might present some claims to be considered the States; but this they did not do, and they were not powerful enough to do it. The large proportion of them were compelled to form a part of the Rebel power.
And this brings us directly to the heart of the matter. It is asserted that the Acts of Secession, being unconstitutional, were inoperative and void. But they were passed by the people of the several States which seceded, and the persons and property of the whole people were indiscriminately employed in making them effective. The States held by Rebel armies were Rebel States. All the population were necessarily, in the view of the Federal government, Rebel enemies. Consequently the territory of the States was as "void" of citizens of the United States as the Acts of Secession were "void." The only things left, then, were the inoperative ideas of States.
Again, to put the argument in another form, it is asserted, that, though the people of a State may commit treason, the State itself remains unaffected by the crime. A distinction is here made between a State and the people who constitute it,—between the State and the persons who create its constitution and organize its government. The State constitution which existed while it was a State, in the Federal meaning of the word, was destroyed in an essential part by the same authority which created it, namely, a convention of the people of the State; and yet it is said that the State remained unaffected by the deed. By this course of reasoning, a State is defined an abstract essence which can comfortably exist in all its rights and privileges, in potentia, apart from all visible embodiment; a State which is the possibility of a State and not the actuality of one; a State which can be brought into the line of real vision only by some such contrivance as that employed by the German playwright, who, in a drama on the subject of the Creation, represented Adam crossing the stage going to be created.
There is, it is true, one method of getting a kind of body to this abstract State, but it is a method which may well frighten the hardiest American reasoner. It was employed by Burke in one of the audacities of his logic directed against the governments established after the French Revolution of 1789. He took the ground, that France was not in the French territory or in the French people, but in the persons who represented its old polity, and who had escaped into England and Germany. These constituted what he called "Moral France," in distinction from "Geographical France"; and Moral France, he said, had emigrated.
But as few or none will be inclined to take the ground that South Carolina and Georgia exist in the persons who left their soil on the breaking out of the Rebellion, we are forced back to the conception of an invisible spiritual soul and essence of a State, surviving its bodily destruction. But even this abstraction must still, from the point of view of the Federal constitution, be conceived of as owing allegiance to the Federal government; and it can confessedly get a new body only by the exercise of Federal authority. Its leading institution has been destroyed by Federal power. Its old legislature and governor, who alone, on State principles, could call a convention of the people, are spotted all over with treason, and might be hanged as traitors, by the law of the United States, while engaged in measures to repair the broken unity of the State life,—a fact which is of itself sufficient to show that the old State is dead beyond all bodily resurrection. The white inhabitants who occupy its old geographical limits are defeated Rebels, and not one can exercise the privilege of voting without taking an oath which no real "State" prescribes. They are all born again into citizens by a Federal fiat; they are "pardoned" into voters; they derive their rights, not from their old charters, but from an act of amnesty. Far from any discrimination being made between loyal and disloyal, the great body of both classes are compelled to submit to Federal terms of citizenship or be disfranchised; and they are called upon, not to revive the old State, but to make a new one, within the old State lines. And all this would result from the necessity of the case, even if it were not made justifiable by the essential sovereignty of the United States, of which the war-power is but an incident. But if the Federal government can thus give the white inhabitants, or any portion of them, the right of suffrage, cannot it confer that right upon the black freedmen? It will not do, at this stage, to say that the Federal government has no right to prescribe the qualifications of voters in the States: because, in the case of the whites, it does and must prescribe them; and President Johnson has just the same right to say that negroes shall vote as to say that pardoned Rebels shall vote. The right of States to decide on the qualifications of its electors applies only to loyal States; it cannot apply to political communities which have lost by Rebellion the Federal character of "States," which notoriously have no legitimate State authority to decide the question of qualification, and which are now taking the preparatory steps of forming themselves into States through the agency of provisional Federal governors, directing voters, constituted such by Federal authority, to elect delegates to a convention of the people. It is a misuse of constitutional language to Call North Carolina and Mississippi "States," in the same sense in which we use the term in speaking of Ohio and Massachusetts. When their conventions have framed State constitutions, when their State governments are organized, and when their senators and representatives have been admitted into the Congress of the United States, then, indeed, they will be States, entitled to all the privileges of Ohio and Massachusetts; and woe be to us, if they are reconstructed on wrong principles!
It is often said, that, although the Federal government may have the right and power to decide who shall be considered "the people" of the Rebel States, in so important a matter as the conversion of them into States of the Federal Union, it is still politic and just to make the qualifications of voters as nearly as possible what they were before the Rebellion. Conceding this, we still have to face the fact, that a large body of men, held before the war as slaves, have been emancipated, and added to the body of the people. They are now as free as the white men. The old constitutions of the Slave States could have no application to the new condition of affairs. The change in the circumstances, by which four years have done the ordinary work of a century, demands a corresponding change in the application of old rules, even admitting that we should take them as a guide. Having converted the loyal blacks from slaves into the condition of citizens of the United States, there can be no reason or justice or policy in allowing them to be made, in localities recently Rebel, the subjects of whites who have but just purged themselves from the guilt of treason.