Reconstruction. Claims of the inhabitants of the states engaged in the rebellion to restoration of political rights and privileges under the Constitution

Chapter IV

POWERS AND DUTIES OF GENERAL GOVERNMENT IN RELATION TO THE STATES IN REBELLION, AND WHEN LEFT BY THE REBEL- LION WITHOUT ORGANIZED GOVERNMENTS UNDER THE CONSTI- TUTION, AND TO RESTORATION OF THEIR POLITICAL PRIVILEGES UNDER IT. — RIGHTS CONSEQUENT UPON WAR 40

Chapter I. State Rights — Preliminary History Of

THE question of the day with the people of the United States — and none of graver moment ever agitated the public mind — is that concerning the claims of the inhabitants of the several States, recently in open rebellion against the national Government, to be re-admitted to the exercise of the personal and corpo: rate political powers and franchises which they enjoyed under the Constitution before they made war upon the Union in order to accomplish its destruction.

That, by reason of that rebellion and its suppression, those who were parties to it forfeited their rights, as individual citizens, to property, liberty, and life, of which they could at any time be deprived by due process of law, and to which they could be restored only by the pardon of the Government, no one who does not justify the rebellion denies. The only controversy is, whether citizens, thus under the ban of

i the law, became, upon the laying-down of their arms and profession of submission to the national Government, at once restored to their former rights, as inhabitants of their respective States, to immediate participation in the councils of the nation and to immediate agency in the administration of the national Government.

/ The practical issue may be thus stated: whether it is competent for the national Government, as now administered, to impose upon the inhabitants of the several States lately in open rebellion against it, such terms and conditions of re-admission to the exercise of their former political powers, in the administration of the national sovereignty, as it may judge to be essential for its future security; or whether, having laid down their arms and professed a readiness to obey the laws, those inhabitants are entitled to an immediate recognition of those powers as matter of right, and to be permitted at once to re-assume the exercise of them in the councils of the \ nation.

In such a discussion, it is necessary that we have a clear and definite understanding of the meaning of the word " State," as used in the Constitution, and as it should be used in any argument concerning it. There is a great deal of vague impression and loose talk about the States of the Union as being sovereign, free, and independent ; affording .-shelter for much sophistry and declamation, tending to obscure a

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subject which, above all others of the day, demands careful analysis and calm reasoning.

The simple definition of a State, politically speaking, is a people inhabiting a definite territory, and possessing an organized government to which they owe obedience ; and this definition applies exactly to the several States of the Union. But there are .various kinds of such States.

Some are possessed of absolute sovereignty, both internal and external, having not only entire control over the municipal relations and affairs of their subjects, but also unlimited power over their external relations to other nations. These constitute and are universally recognized as individual nations,' or members of the family of nations.

There are others, which, existing as independent communities and possessing supreme authority internally over their subjects, have nevertheless no separate national sovereignty, but are united with other States by a common league or compact, by which their external or national sovereignty is committed to a central authority, representing them unitedly as one nation; they separately neither claiming, nor being recognized, to be distinct members of the family of nations.

Such States cannot be denominated sovereign, free, and independent States in any general or seemingly appropriate use of those terms, — not being so in the most important elements of State sovereignty, freedom, and independence ; namely, those of national power and relationship to other nations.

In States of the first-named class, rebellion against the national sovereignty, in whatever form, is treason in every individual engaged in it, and punishable accordingly.

In those of the second, the rebellion of any one State against the central authority does not render any of its citizens guilty of treason against it, nor make him personally punishable for that crime or otherwise. It is simply the violation or breach of the compact by the State to which its subjects owe exclusive allegiance ; and the only redress for the other parties is by war against the State, to compel the fulfilment of its obligations, or to obtain redress for the breach of them ; and, if they succeed in the conflict, the State becomes a conquered territory, over which the victors have all the rights of war, — including, of course, those to prescribe conditions on which the subdued State shall be re-admitted to the league, or may thereafter exercise any internal or external sovereignty.

It was to this last-named class that the inhabitants of the rebel States claimed that they belonged ; alleging that they were sovereign, free, and independent States, united by the Constitution as by a compact or league only, from which they had the right to secede, as States, at pleasure, or for justifiable cause, — they being the exclusive judges of the existence of any.

They claimed that they owed personal allegiance to their respective States, and not to the United States ; and that, in the resistance by their States of the authority of the Government of the United States, they, as individuals, were not rebels or traitors, but persons acting in obedience to their allegiance to those States ; and which, as such, were alone liable, if the league or compact had been unjustly violated by such resistance. And this, it is generally understood, is to be one of the principal grounds of defence of Jefferson Davis, if not the only one upon the merits, should he ever be put upon trial for treason.

If this position be maintainable, it is difficult to perceive on what ground the rebel States can deny the authority of the Government, as the victor in the contest, to dictate the terms of peace, and the terms upon which those States shall be re-admitted to their former privileges, and to hold them in subjection as conquered States during its discretion.

Upon their own theory, therefore, and that still asserted by them as boldly as ever to be the only true one, there could be no question of the right of the Government to prescribe any terms of re-admission which it should think just and expedient.

But, in truth, the inhabitants of no one of these United States ever had political existence as a sovereign, free, and independent State, possessing any external or international sovereignty ; or ever had any distinct separate nationality.

The inhabitants of them were always, from the beginning, the people, or portions of the people, of one empire, which alone maintained and exercised international sovereignty, and upon whose protection and supreme authority, as such, they relied.

In short, the inhabitants of them have always been substantially, as under the Constitution they now are, one people.

Before the Revolution, and during its continuance up to the Declaration of Independence, they were inhabitants of colonies or provinces of Great Britain, claiming all their powers of internal government under her charters or commissions, and contending with her only for immunity from alleged violations of them. They made no claim to any sovereignty, internal or external, not directly granted by or derived from her, or belonging to them as her subjects.

They were in all respects integral portions of the British empire, and so portions only of one people. Every inhabitant of each colony had the entire and perfect rights of British citizenship in every other, and of carrying on trade and dwelling in it, under the laws and regulations of the empire, unobstructed and unrestricted by colonial legislation.

They carried on the war of the Revolution for some time under the title of the United Colonies, and for the declared purpose of a redress of grievances only, and with no avowed view of establishing any national independence.

STATE RIGHTS.

The first Congress, which assembled in 1774, adopted the significant title, "The delegates appointed by the good people of these colonies;" thus emphatically declaring their union as one people, struggling in a common cause. They asserted, as great constitutional rights common to all, the liberties and immunities of the common law of England, and declared themselves as united for the common defence of those rights.

And thus was the incipient, and soon to become the irrevocable step taken to constitute themselves the citizens of a new empire or nation.

The delegates to the second Congress, in 1775, were principally chosen, not by the State legislatures, as representatives of the States, but by conventions of the people of the several colonies, as representing them ; although, in some instances, they were chosen by the popular branch of the legislature, the choice being afterwards ratified by such conventions.

Soon after its assembling, and before its second session in September, actual war had commenced in Massachusetts, and was imminent in other colonies ; and the Congress immediately proceeded " to put the country into a state of defence," as one common country. It assumed and exercised control over the military operations of all the colonies ; created a continental army ; appointed Washington commander-iii-chief " of the continental forces" and, in a letter accompanying his commission, charged him to make it his especial care " that the liberties of America receive no detriment." It also provided a continental currency ; directed reprisals upon the ships and merchandise of Great Britain ; established a treasury department, general post-office; and regulated the relations with the Indian tribes.

In short, the inhabitants of the colonies, before the Declaration of Independence, had substantially established a national Government in the name and with the general consent and approbation of the people, and with all the principal attributes of a nation, excepting that of international sovereignty, which they had not yet claimed. The struggle was as yet in defence of their violated rights as citizens of Great Britain, and carried on under the title of " The United Colonies ; " thus still recognizing that relationship.

And it was not till after thus uniting themselves as one people, engaged in a common cause, that they, in conformity with the recommendation of the Congress, proceeded in their respective jurisdictions to make provisions for local governments for the management of their domestic concerns, which their separation from the mother Government and the exigencies of the times made necessary. So that the formation of a national Government, revolutionary indeed and with limited internal powers, but none the less national, acting as the agent, and in the name and with the consent, of the inhabitants of the whole territory embraced within the limits of the colonies, had been established by the union in one body of delegates representing them, and was in actual operation before the adoption of the local governments, called State governments, as they have since existed ; and had itself recommended their formation as necessary means of accomplishing the purposes of its creation, — very significant facts, surely, in illustration of the true relations of the States to the General Government in their subsequent history.

By the Declaration of Independence in 1776, made " in the name and behalf of the good people of these colonies," it was enacted that they were "and of right ought to be free and independent States ; that they are absolved from all allegiance to the British Crown, and that all political connection between them and the State of Great Britain is and ought to be dissolved ; " and that then* national title thereafter should be that of the " United States of America," — by which title they have ever since been universally recognized.

By these proceedings, the inhabitants of all the colonies, acting as one people, threw off their allegiance to the British Crown, and claimed to become an independent sovereign nation, entitled to all the rights and attributes of external and internal sovereignty in regard to all international relations.

They did not assert any pretension of becoming severally independent States, entitled to any such sovereignty, in their relation to foreign nations. They claimed no membership as individual States in the family of nations ; nor did they declare any independence of each other in any relations with them ; but asserted their right to be accounted and dealt with as one sovereign people or nation, composed of the inhabitants of all the States ; and as such, and only as such, have they ever since been recognized in all the treaties and international relations of peace or war into which they have since entered.

By reference to the Constitution of Massachusetts, Part I. Art. IV. (which was adopted before the Articles of Confederation were executed), it will be seen, that she, in asserting the right of her people to govern themselves as a free sovereign and independent State, limits these rights to the exercise and enjoyment of every power, jurisdiction, and right "which is not, or may not hereafter be, by them expressly delegated to the United States of America in Congress assembled" Now, at that time the United States of America was the only nation known or recognized, or claiming to exist, as one of the family of nations, and of which each State formed only a component part, pursuant to the Declaration of Independence. No disavowal of distinct or independent or sovereign nationality could be more explicit.

The local allegiance, however, of the inhabitants of each colony, before due to the Crown, was declared to be transferred, not to the central national

Government thus established, but to the colony itself, or, in the language of a resolution adopted by the Congress, " to the laws of the colony." The relations of individuals to the national Government were nowhere defined, but left to construction upon the nature of this union of the colonies or States in a national sovereignty.

Hitherto there had been no written articles of confederation or agreement, by which the obligation of the States, or the authority of the Congress, or the nature of the central Government, were defined.

The powers of an external national sovereignty had been assumed and acted upon by the consent of the people ; but its internal authority, or means of maintaining itself, were all left to loose construction, or the voluntary agency of the several independent States to comply with their respective duties, resulting from the alliance.

Whether either of the colonies or States was so bound by this alliance as to be incapable of abandoning it at pleasure — being in the nature of a voluntary party to a copartnership without limitation of time, and without any right on the part of the other States to enforce its compliance with the requisitions of the Congress for the carrying-on of the war of independence, in which they had thus united — may perhaps be considered questionable ; although such abandonment would seem to be an obvious breach of good faith to the rest, with which it had embarked as in a common cause. But the decision of the question is immaterial, as it was soon finally disposed of before it was practically, if ever, raised by the subsequent Articles of Confederation.

The embarrassment and inefficiency evidently resulting from this state of affairs rendered some more definite bond of obligation and union essential; and the Congress in November, 1777, addressed a circular letter to the legislatures of the several States, recommending them " to invest the delegates of the States with competent powers ultimately, in the name and behalf of the State, to subscribe articles of confederation and perpetual union of the United States, and to attend Congress for that purpose on or before the tenth day of March next."

But it was not tiU 1781 that the articles were adopted, owing to many causes of delay, a principal one of which was the claims of several of the States to the Western lands, extending to the Pacific Ocean, which it was contended by the other States should be held in common, as purchased by the common blood and treasure of all of them ; and which lands were finally ceded to the United States immediately after the articles were executed, thus constituting a most important further bond of national union, and an inestimable element of future wealth and power.

By these Articles of Confederation, the government was to consist of a single representative body called a " General Congress," in which were vested all the powers, executive, legislative, and judicial, granted to the United States. Each State was to maintain its own delegates ; and, in the determination of questions, the voting was to be by States, each State being entitled to one vote. The agreement was styled " Articles of Confederation and Perpetual Union " between the thirteen States named; and this body politic was styled " The United States of America." Each State retained its sovereignty, freedom, and independence, and every power, jurisdiction, and right not expressly delegated to the Congress. And the nature and objects of the Union were described as a firm league of friendship between the States for their common defence, the security of their liberties, and their mutual and general welfare ; and the parties bound themselves to assist each other against all force offered to or attack made upon them, or any of them, on account of religion, sovereignty, trade, or under any other pretence whatever. The free citizens of each State were entitled to all privileges and immunities of free citizens in the several States. All the general powers of external national sovereignty were vested in the Congress, — the powers of treaty, peace and war, regulating the coin, creating public debt, building and equipping a navy, determining the number of land forces, and of making requisitions upon each State for its quota of men and money. The several States were prohibited from receiving or sending embassies, or entering into any treaties with foreign powers or with each other without consent of Congress.

In short, the Articles of Confederation constituted the people of the States, thus united, one nation, as entirely as it was practicable for any mere league or confederation of States to do so.

They were of essential importance in enabling the Congress to carry through the war. But after the peace, and when the bond of a common paramount interest and necessity had ceased, and State jealousies, rivalries, weaknesses, and selfishness had shown the entire insufficiency of such a compact for the necessary strength and respectability of the nation abroad, and its internal peace and security at home, the people became conscious of the necessity of establishing a closer bond of union as one people, under a common government, having internal as well as external sovereignty ; to which each citizen should owe a personal allegiance, and from which he might claim protection ; and whose powers for all national purposes should act upon each individual citizen directly, and not through the agency of State government.

And from this necessity resulted the Constitution, upon the nature and construction of which the solution of this question must now depend.

Such was the condition of the nation and of the several States at the time of the adoption of that Constitution, and such the evils which it was intended to remedy.

From this history, nothing can be clearer than the proposition that no one of these States had ever been free, sovereign, and independent in its external, however it may have been so in its internal relations; but with regard to them no controversy has ever arisen.

There has never been a moment, from the breakingout of the Revolution, when the inhabitants of any one of these States ever pretended to be a separate people from those of any other State in any national relation whatever ; on the contrary, they always claimed to be portions of the people of Great Britain at the outset, and to become exclusively one independent people after declaring their final separation from her. Rights of national citizenship were never claimed by the inhabitants of any particular State, as distinguished from those of any other State, but always as citizens of the United States, comprehending them altogether. It is true that they were internally divided into separate and distinct municipal governments, sovereign and independent in ah1 that regards their domestic relations; and could contract as such States, as being entirely independent so far as they had not surrendered the power so to contract to the central Government.

But no one, it is believed, can contend, that, after the adoption of the Articles of Confederation, any one State could have broken off from the confederacy and made a separate treaty of peace with England, or allied itself to any other foreign power ; or could have established any laws or regulations subversive of the common rights and interests of all, in their external relations with other nations or in those internal to each other.

To be sure, no such act would have constituted any personal crime on the part of any inhabitant of such State against the General Government, because they owed personal allegiance to the State only.

But the General Government would have had the clear and manifest right, in such case, to interfere, and by force of war, if necessary, to compel conformity by the State to the general compact, and to enforce its requisitions if disobeyed. Civil war was thus, indeed, the only remedy ; and it was to provide against this evil and weakness, among others, that the Constitution was established. But, if the result of any such war had been the subjugation of the State, it is clear that it would have been at the mercy of the victor as to terms of future re-admission to the rights of the confederation.

At the time, then, of the formation of the Constitution, the inhabitants of the thirteen States, retaining the internal sovereignties of each of them, were united as one people or nation in all that regarded external sovereignty, or any claimed or acknowledged national existence ; and were possessed of a vast extent of unoccupied territory as tenants in common and joint owners, which was to be divided into new States in union with them, and composing with them a common country, so fast as it should become peopled ; and which was incapable of division or apportionment among them upon any principle on which it had been granted, — the only one recognized being that of a national domain.

They had become, therefore, essentially a nation under a government exercising unqualified external sovereignty, possessed of a common country, and needing only the surrender to it of a portion of certain independent rights hitherto preserved by them as separate States, which interfered with their enjoyment of the internal sovereignty essential for securing the blessing of a perfect nationality, and which the Constitution was destined to provide for.

Chapter II

THE CONSTITUTION — FORMATION OF, AND INDIVIDUAL AND STATE RIGHTS AND DUTIES UNDER IT.

THERE was a provision in the Articles of Confederation for making alterations therein, by the assent of a Congress of the United States and of the legislatures of the several States. And in February, 1787, in the Congress then in session, a resolve was passed, reciting that whereas experience had evinced that defects existed in the present confederation, and a convention of delegates had been proposed to remedy them, " and such a convention appeared to be the most probable means of establishing in these States a firm national government" it was expedient, to call a convention of delegates for the purpose of revising the articles, and reporting to Congress and the several legislatures c;such alterations as should, under the Federal Constitution, be adequate to the exigencies of government and the protection of the Union."

The several States assented -to the proposition, and appointed delegates to the Convention, which assembled at Philadelphia, in May, 1787.

Although the purpose of the Convention was to amend the Articles of Confederation, it was soon apparent from the common stock of information con-

THE CONSTITUTION. 19

tributed by the delegates, of the utter inefficiency of any mere league or confederation to accomplish the ends desired, that nothing short of a consolidated national government, with full powers of maintaining itself internally, as well as externally, by direct action upon the individual citizens composing the nation, in regard to all that pertains to the exercise of national as distinguished from municipal authority, could answer to the national exigency.

And the final result of prolonged, laborious, and exhaustive discussion of the subject by the greatest men of that age, and who would have been not less distinguished in any other age or nation, was the present Constitution.

As, however, it far transcended any mere alteration or amendment of the Articles of Confederation, — being in fact the substitution of " a firm national government" over the whole people of the United States, in place of a league of the States, — it was clearly necessary to submit its adoption directly to the people, acting in their primary capacity, and not to the State legislatures, as mere amendments of the articles might have been and were intended to be; it being obvious that State legislatures could have no authority thus to transfer the personal allegiance of their citizens to that of a central government, or part with the sovereign power with which they were invested by the people under their several State constitutions.

The question was of the substitution of a constitutional government in the place of a league, and was one, therefore, which the people alone, and not the State legislatures, could lawfully decide.

The Constitution was therefore reported by the Convention to the Congress for its approval and sanction, and by it the several State legislatures were invited to recommend the assembling of conventions of the people to decide upon its adoption or rejection ; and it was finally adopted by the people, or their delegates to conventions called for the purpose of deciding upon it, and thus became the supreme law of the land. And by the nature and objects and letter and spirit of this Constitution must the question at issue now be decided, with the aid, where needed, of such light as may be drawn from the previous history above alluded to.

Now, up to the time of the adoption of the Constitution, the people of the several States had, as above shown, become one people or nation, so far as their external national sovereignty was concerned, the government of which resided in the general Congress ; each of the States possessing the right of sending delegates to that Congress, and the right to one vote in its deliberations and decisions. But each remained at the same time supreme and independent in its internal sovereignty, excepting in so far as the Articles of Confederation imposed limits thereupon, — which limits were few, but of essential importance in pro-

THE CONSTITUTION. 21

viding for the necessities of internal commerce and equality of rights between the respective inhabitants of the different States.

But by the Constitution all this was changed. By its express terms, the national Government was no longer to consist of a confederation of States, to be administered by their respective delegates, but a government of the whole people of the United States as one people, under one supreme sovereignty internally and externally so far as national sovereignty was concerned ; a government of which the people were to elect the legislators and rulers by their own personal votes, as representing them, and accountable directly to them, and not as representing the States, or as accountable to them.

In short, it established a " firm national government" as supreme in all things, touching its external and internal sovereignty over its subjects or citizens, as that possessed by any other government of any other nation. The existence of the several States as independent and sovereign in their municipal or domestic relations, and as having certain rights and powers as constituents of the General Government, was, indeed, fully provided for, and an equal representation was reserved to them in the Senate, — a most wise and salutary measure for the preservation of that independence and sovereignty, and for constituting a most important check upon the popular body representing the whole people. It is worthy of remark, that, while in the Articles of Confederation the sovereignty, freedom, and independence of each State, and every power, jurisdiction, and right not expressly delegated to the United States in Congress assembled, are expressly reserved, not a word is found in the Constitution of any sovereignty as derived from, or granted to, or existing in the States. On the contrary, the declaration that " the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people," conclusively shows that the whole people of the United States, as 9ne people, were considered and intended to be recognized as the ultimate source of all national power and sovereignty.

The States were to enjoy all the powers they originally possessed not prohibited to them, and certain very important new powers granted to them, by the Constitution ; the government of the United States was to possess all the powers thereby vested in it expressly or by necessary implication ; and the inhabitants of all the States, collectively as one people, were made the depository of all other power whatsoever.

Much profitless discussion has taken place upon the manner in which the Constitution was adopted ; the advocates of secession and other apologists of it asserting that the Constitution was the act, or creation of the State governments, in the exercise of State sov-