Part 2 — RECONSTRUCTION.

Reconstruction sounds the key note of American politics to-day. It is as true now as when Webster first said it, that 'the people of this country, by a vast and countless majority, are attached to the Union.' Reconstruction is the hope of the Union; and the hope of the Union is the controlling energy of the war. Hence, naturally, the theories that prevail in regard to reconstruction begin to define the political parties of the immediate future. United on the war, which they hold to be not simply inevitable, but also a war in the combined interests of liberty and order, and, therefore, just, the people seem likely about to be divided on questions suggested by the probably speedy termination of the war. The Union one and indivisible is the fundamental maxim on which all such questions must be based. So long as the name of Washington is reverenced among them, the American people will accept no other basis of settlement. The Union is to them the security and hope of all political blessings—liberty, justice, political order—which blessings it insures. Disunion is revolution, and puts them in peril. Therefore, no theory of reconstruction is practicable which countenances disunion, or in anywise assails the principle of the eternal oneness and indivisibility of the Union.

THEORIES OF RECONSTRUCTION.

There are three prominent theories of reconstruction now before the people. The first, as being in the natural and constitutional order of things, has shaped the policy of the Administration in its whole conduct of affairs. It supposes the rebellion to be an armed insurrection against the authority of the United States, usurping the functions and powers of various State Governments, and seeking to overthrow the Nation. So considering it, the whole power of the Nation has been brought to bear to subdue it, in accordance with the just authority conferred by the Constitution, which is the organic law of the Nation. The steadfast prosecution of this policy, upheld and supported by the people with a unanimity and patient faith that have strengthened the cause of democratic government all over the earth, has rescued from the rebellion and restored to their undisputed position in the Union, the States of Kentucky, Missouri, and now, at last, Tennessee, with a portion of Virginia. Such are the results to the Union of the natural and constitutional policy that aims at reconstruction through restoration.

The two other theories spoken of may be best considered together, as they originated in a common purpose, namely, the abolition of slavery, which it is supposed cannot be attained by the ordinary processes of war under the Constitution. Their advocates, however, contend that they are strictly constitutional.

The first of these theories supposes that the States included in the rebellion have, by the fact of rebellion, forfeited all rights as States. It is argued that States, like individuals, forfeit their rights by rebellion.

The other theory supposes that the States having rebelled, may be dealt with as foreign States; so that, according to the laws of war, the nation may treat them altogether as alien enemies, and in the event of the Nation's triumph, the States will be in all respects like conquered provinces.

It will be observed that each of these theories ignores the principle of the indivisibility of the Union, and presupposes a dismemberment of it on the part of every rebellious State.

I. THEORY OF STATE SUICIDE.

Probably no one will deny that rebellion works a forfeiture of all political rights to those engaged in it. The subject who renounces his allegiance can claim no protection: just as the Government that should fail to protect its subjects, could not claim their allegiance. Allegiance and protection are reciprocal and interdependent duties, and the failure of one involves and works the failure of the other. So that it might be quite correct to declare, in reference to the Southern rebellion, that a rebel has no rights which the United States is bound to respect. It will be perceived that the question of right is here spoken of, and not the question of policy. No feeling of sympathy with a defeated people, not the thousand-fold natural ties that bind the North and the South, should blind our eyes to the main question of right. Any policy toward repentant rebels that is not magnanimous and honorably befitting our complete triumph, can never find favor with the American people, nor ought to; but the incalculably precious interests of the Nation will not admit of any uncertain precedents in regard to secession. The precedent must be perfectly clear. It must be established unqualifiedly and unalterably that secession is treason, and that whoever is concerned in it is a traitor and must expect a traitor's punishment. It has been common to call secession a political heresy. The rebellion, the fruit of secession, stamps it as more and worse than simply a heresy. It is inchoate treason, and only awaits the favorable conditions to become open and flagrant. The patriotism, therefore, of any man may fairly be suspected, who, refusing to be taught by the experience of this war, revealing these things as in the clear light of midday, can speak softly and with 'bated breath' of secession. His country's baptism of fire has not regenerated such a man.

The attempt, as the legitimate and inevitable result of secession, to overthrow a Government whose burdens rested so lightly on its citizens as to have given rise to a current phrase that they were unfelt; and yet whose magnificent power gave it rank among the first of nations, securing full protection to the humblest of its citizens, and causing the name of American to be as proud a boast as Roman in the day of Rome's power; and withal being the recognized refuge and hope of liberty and humanity all over the globe, as vindicating the right royalty of man;—the attempt to overthrow such a Government must stand forever as the blackest of crimes. For the Confederate treason is more than treason against the United States: it is a crime against humanity, and a conspiracy in the interest of despotism, denying the royalty of man.

But, to return to our argument, a distinction is carefully to be noted between the consequences of rebellion to the individuals who engage in it and to the State which it assumes to control. It needs no argument to show that rebellion against the supreme power of a State does not necessarily affect the permanence of that power. If the rebellion fails, the rightful authority resumes its functions. If the rebellion succeeds, the movers of it assume the powers of the State, and succeed to all its functions. The civil wars of England furnish abundant illustration of this principle. However the course of Government may for the time have been checked, and its whole machinery disarranged, the subsidence of the tumult left the state, in every case, as an organic whole, the same. The consequences of unsuccessful rebellion fell only upon the persons engaged in it. So, in the successive changes that befell France after the Revolution, the state, as the body politic, remained unchanged. In dealing with the question of rebellion in our country the same principle applies, only another element enters into the calculation. That element results from the peculiar character of our Government in its twofold relation to the people of State and Nation. The Government springs directly from the people, who have ordained separate functions for the two separate organisms, or bodies politic, the State and the Nation. Strictly considered, there are not two Governments, there is only one Government. Certain functions of it are ordained to be executed by the State, and certain other functions by the Nation, How, then, can the State, as such, assume to set aside the ordained functions of the Nation? How, on the other hand, might the Nation assume to control the ordained functions of the State? Each to its own master standeth or falleth, and that master is the people. Hence, the absurdity of the doctrine which claims the right of a State to resume powers once delegated to the Nation. For the State, as such, never delegated those powers. Hence, the absurdity of secession as a dogma in American politics. And hence, also, it equally appears how absurd is any claim on the part of the Nation to visit upon the State organism the penalties of the treason of individuals against itself.

Let it be remembered that the State derives none of its rights from the Nation. How, then, can it be said to forfeit its rights to the Nation? The State is a separate and distinct organism, deriving its rights directly from the people within its territorial limit. They established it, and to them alone it is responsible. In the same manner, the people of the whole country, without regard to the territorial limits of States, established the Nation. The people of the whole country, therefore, have a permanent interest in the Nation, and no one portion of them may rightfully assume to set aside its supreme obligations, in disregard and violation of the organic law. If certain of the people of any State have rebelled against the National Government, attempting thus to set aside its paramount obligations, undoubtedly their lives and property are forfeit to the Nation. But how can their individual treason work a forfeiture of the State powers and functions? These have been usurped, indeed, by the armed combinations of the rebellion, but they are still complete, only awaiting the overthrow of the armed combinations to be resumed and controlled by those persons within the same territorial limit who have not rebelled.

It is objected to this view that it assumes a substratum of loyal people still existing in the rebel States. The assumption is certainly warrantable when we read of the scenes—witnesses against the Southern Confederacy whose eloquence surpasses speech—that have attended the overthrow of the rebellion in Tennessee; and when we remember that even in South Carolina there are such names as Judge Pettigrew and Governor Aiken; and when in New York city alone there is to-day a large body of Georgians, whose loyalty has made them exiles, and who only await the day of their State's deliverance to return and restore their State's loyalty; and when the signs in North Carolina are so positive that a Union element yet survives there; and when even far-off Texas has her loyal exiles in our midst. Considering those 'signs of the times,' the assumption that there are loyal men in the rebellious States seems certainly a valid and proper one, and one on which fairly to rest an argument. But it is believed that the argument is good without this assumption. Suppose that, the rebellion being overthrown, not even one man remains loyal to the Nation within the territorial limits of any single State, has the State ceased to exist? A State is called, in the language of publicists, a body politic. It is, in effect, a sort of corporation, administered for the benefit of its inhabitants by trustees whom they appoint. One of the maxims of law is that a trust shall not fail for lack of a person to execute it. It might, therefore, in such a case as the one supposed, be competent for the United States to designate persons who should take charge of the State Government, and administer it in trust for the children of its former recreant inhabitants, and as their legal and political successors. Reverting to the settled principles of the law, we find that the essential idea of a corporation is its immortality, or individuality, or the perpetual succession of persons under it, notwithstanding the changes of the individual persons who compose it. The State, like a corporation, has an individuality of its own, which is not affected by the changes of the individual persons composing it. It has an immortality, not affected by their entire extinction. Its own organic existence is not thereby extinguished. In other words, the State cannot be merged, or swallowed up, in the Nation.

It seems, then, that the doctrine of State suicide, as propounded in so many words, by its author, in the original resolutions offered in Congress, is equally repugnant to the Constitution and good sense. It is, in effect, revolutionary; for it would dismember the Union, by striking out of existence States as purely and completely sovereign within the sphere of their functions as the Nation itself. It is idle to deny that it thus recognizes and gives support to the doctrine of secession; for it accepts the results of secession, and supposes that accomplished by the rebellion which the war is meant to thwart and prevent, to wit, the disruption of the ties that bind the States and the Nation together in one harmonious whole.

What are we fighting for? To restore constitutional order; to vindicate 'the sacredness of nationality.' In other words, to combat the principle of secession, by force and arms, in its last appeal, just as we have always combated and opposed it hitherto on the platform and in the senate. But what right have we to oppose secession by coercion? The right of self-preservation. For secession loosens the very corner-stone of our Government, so that the whole arch falls, breaking the Union into an infinity of wretched States. Admitting secession, our Constitution is, indeed, no stronger than 'a rope of sand.' We fight to maintain the Constitution as an Ordinance of Sovereignty (as it has been forcibly styled) over the whole Nation. We must so maintain it, or surrender our national existence. This being so, we cannot admit any such right as secession; for that would be to sanction the revolutionary doctrine that a body of men, usurping a State Government, and calling themselves the State, can absolve their fellow citizens from their allegiance to the Constitution, the supreme law of the land. The rebel States are, then, still members of the Union. Otherwise, we are waging an unjust war. Otherwise we falsify and contradict the record of our Revolution, and are striving to reduce to dependence a people who are equally striving to maintain their independence. There is no justification for this war save in the plea for the National Union; no warrant for it save in the preservation of the Constitution, which is the palladium and safeguard of the Nation. The Southern rebellion has usurped the functions and powers of various State Governments: when it is overthrown, the victims of its usurpation will be restored to their former rights. Their allegiance is still perfect. Nothing but their own act can absolve them from it.

II. THEORY OF THE STATES AS ALIEN ENEMIES.

The advocates of the theory that the rebel States are foreign enemies, and may be treated according to all the laws of war with foreign nations, seek support for their views in the decision of the Supreme Court rendered last March in the Hiawatha and other prize cases. The question was raised in those cases whether we had the right to confiscate the property of persons resident in the rebel States who might be non-combatants or loyal men. The Court decided that 'all persons residing within this territory (the rebellious region) whose property may be used to increase the revenues of the hostile power, are in this contest liable to be treated as enemies, though not foreigners.' This decision defines the status of persons in the rebellion region bello flagranti, or while the war lasts. It calls all persons within that region enemies, because their 'property may be used to increase the revenues of the hostile power.' Could their property be so used after the defeat of the rebellious power? The decision does not assume to determine that question. Nor could it come within the province of the Court to decide what might at some future time be the condition and status of loyal men at the South.

It is said that in accordance with this decision all persons in the rebellious States are to be treated as alien enemies, and the deduction is hastily made that as to them all the Constitution, like any treaty, or compact, with foreign States, is, by the fact of rebellion, annulled. Aside from the fact that the Constitution is not a compact, and when rightly understood cannot be confounded with a compact, such a conclusion is at war with that essential principle of our Government, which denies to any body of men the right to absolve their unwilling fellow citizens from their allegiance, that is, denies the right of secession. Such citizens, whose will is overpowered by force, have never proved false to their fealty. The Constitution is still theirs; they are still parties to it; and their rights are still sacred under it.

That no such conclusion is warranted by the decision above referred to, will still further appear from the following considerations:—Our dealings with foreign nations are regulated by the principles of international law, and, according to that law, war abrogates all treaties between belligerents, as of course. But international law supposes the belligerents to be of equal and independent sovereignty. This is the very point in dispute in our contest with the rebellion. We deny to the rebellion the attribute of independent sovereignty, as we deny it to every one of the States included in the rebellion. Our Constitution is, in no sense, a treaty between sovereign States. It is an organic law, establishing a nation, ordained by the people of the whole country. Therefore, only such persons under it as voluntarily wage war upon it, can be strictly called enemies: only such persons, on the defeat of the rebellion, will be liable to be treated as enemies. As to all men who have not participated in the rebellion, it is not easy to see how war, rebellion, usurpation, or any power on earth can destroy their rights under the Constitution.

III. THEORY OF THE CONSTITUTION AND COMMON SENSE.

Reconstruction, then, must come, as the Union came, by the action of the people within the territorial limits of each recreant State. That it will so come is, in a manner, assured and made certain by the action of Kentucky, Missouri, Virginia, and Tennessee. Surely, we cannot expect the political action of an oppressed minority, in any one of the rebel States, to anticipate the National forces sent for their deliverance. The armed combinations in those States have overborne all opposition, and, during the past two years, have wielded the complete powers of a military despotism. The Southern confederacy is a monstrous usurpation in each and every rebel State. The United States is intent on dethroning that usurpation, for the purpose of restoring, to every man who asks it, the rights guaranteed to him by the Constitution of his fathers; and for the equal purpose of asserting its rightful powers as the National Government under the Constitution. The present Administration, then, has taken the only course possible to be taken without open and flagrant violation of the Constitution, which is the sole and sufficient warrant for the war. For this course Abraham Lincoln is entitled to the gratitude of the people. His conscientious policy has been the salvation of the Republic, maintaining its integrity against armed rebellion, on the one hand, and, on the other hand, saving it from destructives whose zeal in a noble cause has often blinded their minds to the higher claims of the Nation: in whose existence, nevertheless, that cause alone has promise of success.

But, it is asked, does not rebellion affect the institution of slavery? Not as a State institution, so far as the municipal law of any State is concerned. That the slaves of rebels may properly be confiscated, as other property, seems not only reasonable and right, but also in accordance with well-settled decisions of the Supreme Court. Moreover, the Constitution gives to Congress the power to prescribe the punishment of treason, and undoubtedly the Supreme Court will hold the Confiscation Act under that power to be constitutional and valid.

But does not the Emancipation Proclamation operate to confer freedom on all slaves within the rebel States? This question must likewise be brought to the Supreme Court for adjudication. If the Proclamation can be shown to have the qualities of a legislative act, doubtless it will operate as a statute of freedom to all slaves within the districts named in it. But it must be remembered that the Executive cannot make law. The Proclamation, as an edict of the military commander, can only operate upon the condition of such slaves as are in a position to take advantage of its terms. As such military edict, therefore, it might be of no force outside of the actual military lines of the United States armies.

But the fact of freedom to many thousands of slaves by reason of this war, and the inevitable speedy breaking down of the institution of slavery as one of the consequences to slaveholders of their mad folly, are beyond dispute, and assure us of the wise Providence of Him who maketh even the wrath of man to praise Him, and the remainder of wrath He will restrain.