The proprietor is the dominus or lord, and in republican states the lord is society, or the public, and the domain is held for the common or public good of all.All political rights are held from society, or the dominus, and therefore it is the elective franchise is held from society, and is a civil right, as distinguished from a natural, or even a purely personal right.
As there is no domain without a lord or dominus, territory alone cannot possess any political rights or franchises, for it is not a domain.In the American system, the dominus or lord is not the particular State, but the United States, and, the domain of the whole territory, whether erected into particular States or not, is in the United States alone.The United States do not part with the dominion of that portion of the national domain included within a particular State.The State holds the domain not separately but jointly, as inseparably one of the United States:
separated, it has no dominion, is no State, and is no longer a joint sovereign at all, and the territory that it included falls into the condition of any other territory held by the United States not erected into one of the United States.
Lawyers, indeed, tell us that the eminent domain is in the particular State, and that all escheats are to the State, not to the United States.All escheats of private estates, but no public or general escheats.But this has nothing to do with the public domain.The United States are the dominus, but they have, by the constitution, divided the powers of government between a General government and particular State governments, and ordained that all matters of a general nature, common to all the States, should be placed under the supreme control of the former, and all matters of a private or particular character under the supreme control of the latter.The eminent domain of private estates is in the particular State, but the sovereign authority in the particular State is that of the United States expressing itself through the State government.The United States, in the States as well as out of them, is the dominus, as the States respectively would soon find if they were to undertake to alienate any part of their domain to a foreign power, or even to the citizens or subjects of a foreign State, as is also evident from the fact that the United States, in the way prescribed by the constitution, may enlarge or contract at will the rights and powers of the States.The mistake on this point grows out of the habit of restricting the action of the United States to the General government, and not recollecting that the United States govern one class of subjects through the General government and another class through State governments, but that it is one and the same authority that governs in both.
The analogy borrowed from the Roman constitution, as far as applicable, proves the reverse of what is intended.The dominus of the sacred territory was the city, or the Roman state, not the sacred territory itself.The territory received the tenant, and gave him as tenant the right to a seat in the senate; but the right of the territory was derived not from the domain, but from the dominus, that is, the city.But the city could revoke its grant, as it practically did when it conferred the privileges of Roman citizenship on the provincials, and gave to plebeians seats in the senate.Moreover, nothing in Roman history indicates that to the validity of a senatus consultum it was necessary to count the vacant domains of the sacred territory.The particular domain must, under the American system, be counted when it is held by a State, but of itself alone, or even with its population, it is not a State, and therefore as a State domain is vacant and without any political rights or powers whatever.
To argue that the territory and population once a State in the Union must needs always be so, would be well enough if a State in the Union were individually a sovereign state; for territory, with its population not subject to another, is always a sovereign state, even though its government has been subverted.But this is not the fact, for territory with its population does not constitute a State in the Union; and, therefore, when of a State nothing remains but territory and population, the State has evidently disappeared.It will not do then to maintain that State suicide is impossible, and that the States that adopted secession ordinances have never for a moment ceased to be States in the Union, and are free, whenever they choose, to send their representatives and senators to occupy their vacant seats in Congress.They must be reorganized first.
There would also be some embarrassment to the government in holding that the States that passed the secession ordinance remain, notwithstanding, States in the Union.The citizens of a State in the Union cannot be rebels to the United States, unless they are rebels to their State; and rebels to their State they are not, unless they resist its authority and make war on it.
