Monday, August 31, 2009

Have the Rebel States Committed Suicide?

Pending the bill for the abolition of slavery in the District of Columbia, Mr. Thomas of Massachusetts, made an able speech upon the very difficult question of what shall be done with the seceded States when the rebellion is crushed. This is a grave question which should be decided in the light of justice and law and according to the usages of civilized society, light from all quarters should be sought. Mr. Thomas’ is the concervative [sic] view. We cannot agree with him in all respects, but are entirely willing he should be heard:

Mr. Thomas, of Massachusetts, made a speech in the course of which he said: – The solution of the difficult problems of right and duty involved in the present state of affairs must be found in the careful study of the principles of the constitution and the just and logical application of them to this new condition of things. It is by no narrow and rigid construction of the words of the constitution that the powers and duties of Congress on these subjects are to be ascertained. Every provision must be fairly construed in view of the great objects the constitution was ordained to effect, and with the full recognition of the powers resulting from clear implication as well as express grant. In my humble judgment there has been and is now but one issue before the country, and this is whether the constitution of the United States shall be the supreme law of the land. That constitution was formed by the people of the United States. It acts not upon the States, nor though the States upon us as citizens of the several States, but directly upon us as citizens of the United States, claiming on the one hand our allegiance, and giving to us on the other its protection. – The doctrines as to the supremacy of the national government within its sphere, and of the reserved rights of the States, are elementary. – Between them there is no necessary conflict. Each is the complement of the other; both vital parts of that political system under whose admirable distribution and adjustment of powers the people of the United States have had for seventy years incomparably the best and most beneficent government the world has ever known; a government now imperiled, not by reason of any inherent defect or any want of wisdom or foresight in its founders; not because we have outgrown its provisions; not because it is behind the age, but because it has fallen upon an age not worthy of it, which has failed to appreciate the spirit of wisdom, prudence and moderation in which it was founded. Such being the relation of the government of the United States to its citizens and to the States, the first question that arises is, how far this relation is affected by the fact that several of the States have assumed, by ordinances of secession (so-called), to separate themselves from the Union. There is not a clause or word in the constitution which looks to separation. It has careful provisions for its amendment, none for its destruction; capacity for expansion, none for contraction; a door for new States to come in, none for old or new ones to go out. An ordinance of secession has no legal meaning or force, is wholly inoperative and void. The constitution and the laws and treaties made under it, the people have declared “shall be the supreme law of the land, and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.” The act of secession, therefore, cannot change in the least degree the legal relation of the State to the Union. No provision of the constitution of the United States, no law or treaty of the United States can be abrogated or impaired thereby. No citizen of the United States residing in the Seceded States is, by such ordinance of secession, deprived of the just protection of or exempted from any of his duties to the United States. In contemplation of law the reciprocal duties of protection and allegiance remain unaffected. After the act of secession, the province and duty of the government of the United States are the same, according to the full measures of its ability, as before to enforce in every part of the Union, and over every inch of its territory, the constitution and laws of the United States.

It is the necessary result of these principles that no State can abdicate or forfeit the rights of its citizens to the protection of the constitution of the United States or the privileges and blessings of the Union which that constitution secures and makes perpetual. The primary, paramount allegiance of every citizen of the United States is to the nation, and the State authorities can no more impair that allegiance than a county court or a village constable. It is also the plain and necessary conclusion, from the principles before stated, that a State cannot commit treason. Under the constitution of the United States persons only can commit treason. The persons who for the time being hold the offices under a State government may individually commit treason, by the acts of the State officers, transcending their authority and in conflict with the constitution of the United States, involve in their guilt no man who has not himself levied war against the United States or adhered to their enemies, giving them aid and comfort. As a State cannot commit the crime of treason, it cannot concur a forfeiture of its powers and functions as the penalty of treason. The punishment provided for traitors is the result of judicial trial, conviction and judgment. How to indict a State, the constitution of the court, the mode of trial, the form of judgment, and process of execution yet exists in gremio legis. The majority of the voters of a State cannot deprive the minority of the right secured to them by the constitution of the United States. Some of these rights may be kept in abeyance. Their exercise may be overborne by a [superior] physical force. – They may sleep, but it is not the sleep of death. They are integral parts of the constitution, and can only perish when the constitution perishes. There is nothing in the doctrines of nullification or cession more disloyal to the constitution, more fatal to the Union, than this doctrine of State suicide. It is the gospel of anarchy, the philosophy of dissolution. Nor by carrying out this doctrine of the destruction of forfeiture of the State organization would anything be gained for the cause of freedom. Slavery exists by the local municipal law, and would not be abolished unless you go one step further and hold that with the loss of the State organization the institutions laws and civil relations of the States perish. Now, in case of conquest, even though the people of the conquered territory change their allegiance, their relations to each other and their rights of property remain undisturbed. The modern usage of nations, which has become law, would be violated if private property should be generally confiscated and private rights nulled. (U. S. vs. Porcheman, 7 Peters, 51; 3 Phillemore, p. 743) When States were reduced to Territories the national government could not abolish slavery therein, except under the right of eminent domain, and by giving just compensation. The rebel States are still members of the Union, foregoing for a time its privileges, but subject to its duties, bound to it by a cord which the sword of successful revolution can alone sever.

What then, it may be asked, is the legal character of the great insurrection? The answer is it is a rebellion of citizens of the United States against the government of the United States; an organized effort to subvert and overthrow its authority, and to establish another government in its stead. He only is the enemy of the United States who is committing treason by levying war against the United States or [giving aid and] comfort to those who do. The loyal faithful subject of the United States, wherever on the soil of his country he may have his home, is not the enemy of his country. No subtlety or logic, no ingenuity of legal construction, no misapplication of the laws of international war to this contest can change the nature of things, can convert loyalty into treason, or devotion into hostility. If there be to-day in Tennessee, or Georgia, or South Carolina, even a loyal subject of the United States “faithful among the faithless found,” the Government is not at war with him. While using the powers and appliances of war for the purpose of subduing the rebellion we are by no means acting without the pale of the Constitution. We are seeking domestic tranquility by the sword the Constitution has placed in our hands. In the path of war, as of peace, the Constitution is our guide and our light – the cloud by day, the pillar of fire by night. The recognition of the “belligerent rights” of the rebels by foreign Powers can, as between the sovereign and his subjects have no other or further effect. Such recognition (if known to the law of nations) proceeds upon the ground that the revolution is not accomplished, and that the connection is not dissolved. Had this been done, the recognition would have been their separate national existence. In my humble judgment the “seceded States” so called, and the people of those states are today integral parts of the Union, over whom, when the conflict of arms ceases, the Constitution of the United States, and the laws made under it, will resume their peaceful sway. Traitors may perish, some institutions may perish, the nation will remain and the States will remain essential parts of the body politic. “The body is one, and hath many members, and all the member of that body being many, are one body.” With this brief and imperfect development of the principles involved in the great controversy, I proceed to a more direct consideration of the subjects of confiscation and emancipation.

No purpose, however humane, beneficial or attractive can divert our steps from the plain, straight path of sworn duty. What is writ is writ. In seeking to change it by force of arms we become the rebels we are striving to subdue. The people do not desire a bitter and remorseless struggle over the dead body of the constitution. We may raise armies and navies and pour out like water the treasure and life blood of people, but we can neither think nor act wisely, live well or do well for the republic, unless we keep clearly and always in view the end of all our labors and sacrifices, the Union of our fathers and the constitution, which is its bond. No thoughtful man can believe there is a possibility of reconstructing the Union on any other basis, or that it is within the province of the Congress in any other by the peaceful way of amendment to made [sic] the effort. The propositions for confiscation include the entire property of the rebels, real and personal, for life and in fee. The mind instinctively shrinks from a proposition like this. It relucts [sic] to include in one “fell swoop” a whole people. It asks anxiously if no consideration is to be had for different degrees of guilt; if the same measure is to be meted to those who organized the rebellion and those who have been forced into it; if no consideration is to be given to the fact that allegiance and protection are reciprocal duties and that for the past ten months the national government has found itself incapable of giving protection to its loyal subjects in the “seceding States,” neither defending them nor giving them arms to defend themselves, and that, deprived of our protection and incapable of resistance, they have yielded only to superior force; if a wise government is to forget the nature of man and the influences of birth, of soil, of home, of society, and of State, by which his opinions are insensibly moulded, and that this pestilent heresy of the right of secession, fatal as it is now seen to be, not only to the existence of good government but of social order itself has been a cardinal article in the faith of a large portion of the people in the Southern States, and that they have been induced by the arts and sophistries, and falsehoods of unprincipled leaders to believe that their future safety and well being required the exercise of the right? Those leaders should atone for the crime by the just penalty of the law. “But you cannot,” says Burk, “indict a whole people; you cannot apply to them the ordinary rules of criminal jurisprudence.” To state the proposition to confiscate the property of eleven States is to confute it; is to shock our common sense and sense of justice; is to forget not only the ties of history and of kindred, but those of a common humanity; is to excite the indignation of the civilized world, and invoke the interposition of all Christian governments. The acts of general confiscation proposed would defeat the great end the government has in view; the restoration of order, union and obedience to law. Apart from the injustice and impolicy of these acts of sweeping confiscation, I have not been able to find in the constitution the requisite authority to pass them.

After some further remarks, at length, on confiscation, he proceeded to inquire how far, if at all, the powers of Congress are enlarged by the existence of this rebellion, and the use of the appliances of war to subdue it. The exceptions growing out of the military exigencies and measured and governed by them, cannot be foreseen and provided for by legislation, but must be left, where the law of nations leaves them, with the military commander. It is in the exercise of irresponsible power that the nicest sense of justice and the greatest caution and forbearance are demanded. In suppressing a rebellion so atrocious, marked by such fury and hate, against a government felt only in its blessings, forbearance sometimes seems to us weakness, and vengeance the noblest of virtues. But, in our calmer moments, we hear the Divine voice, “Vengeance is mine; I will repay.” I conclude what I have to say on this branch of the subject with the remark that in substance and effect, the bills before the House seek the permanent forfeiture and confiscation of property, real and personal, without the trial of the offender. I am unable to see how under the constitution, that result can be reached. I proceed to the question of the deepest interest involved in this discussion – the emancipation of slaves in the seceding States. This plainly is not a question of present military necessity, but one affecting the permanent structure of the government, and involving material changes in the constitution. This can be done in one of two ways – in the method the constitution points out, or by successful revolution on the part of the free States and the entire subjugation of the slave States. No man can foresee to-day what policy a severe and protracted struggle may render necessary. It is sufficient to say that into such a war of conquest and extermination the people of the United States have no present disposition to enter. They have too thorough a conviction of the capacity of the Government to subdue the rebellion by the means the constitution sanctions to be desirous of looking beyond its pale. But the question arises, how far the existence of the rebellion confers upon the Congress any new power over the relation of master and slave. Strictly speaking no new power is conferred upon any department of the Government by war or rebellion; but it may have powers to be used in those exigencies which are dormant in time of peace. Though the power may exist, there is with prudent and humane men, no desire to use it. Nothing but the direst extremity would excuse the use of a power fraught with so great perils to both races; and the glorious triumphs of our arms, envincing our capacity to subdue the rebellion without departure from the usages of civilized warfare. Nor would an act of the national government liberating the slaves within a State, having the consent of the State, and providing the compensation for the masters, militate with the rule. Conventio vincit legem. The consent of the State would relieve the difficulty. In my judgment, it would be impracticable for the legislature, even if it had the power, to anticipate by any general statute or the exigencies or prescribe the rules for the exercise of this power. The Legislature and the people will be content to leave the matter to the sound discretion and sound patriotism of the magistrate selected to execute the laws. – To avoid misconstruction, I desire to say that the power of Congress over slavery in this District is absolute, and that no limitation exists in the letter or spirit of the constitution or the acts of cession. All that is requisite for abolishing slavery here, is just compensation to the master. Whoever else may falter, I must stand by the constitution I have sworn to support. I am not wise enough to build a better. I am not rash enough to experiment upon a nation’s life. There is to [us], no hope of “one country” but in this system of many States and one nation, working in their respective spheres as if the Divine hand had moulded and set them in motion. To this system the integrity of the States is as essential as that of the central power. Their life is one life. A consolidated government for this vast country would be essentially a despotic government, democratic in name, but kept buoyant by corruption and efficient by the sword.

– Published in The Burlington Weekly Hawk-Eye, Burlington, Iowa, Saturday, April 26, 1862, p. 1

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