The government and the small politicians, who usually are the most influential with all governments, should remember that none of the secessionists, however much in error they have been, have committed the moral crime of treason.They held, with the majority of the American people, the doctrine of State sovereignty, and on that doctrine they had a right to secede, and have committed no treason, been guilty of no rebellion.That was, indeed, no reason why the government should not use all its force, if necessary, to preserve the national unity and the integrity of the national domain; but it is a reason, and a sufficient reason, why no penalty of treason should be inflicted on secessionists or their leaders, after their submission, and recognition of the sovereignty of the United States as that to which they owe allegiance.None of the secessionists have been rebels or traitors, except in outward act, and there can, after the act has ceased, be no just punishment where there has been no criminal intent.Treason is the highest crime, and deserves exemplary punishment; but not where there has been no treasonable intent, where they who committed it did not believe it was treason, and on principles held by the majority of their countrymen, and by the party that had generally held the government, there really was no treason.Concede State sovereignty, and Jefferson Davis was no traitor in the war he made on the United States, for he made none till his State had seceded.He could not then be arraigned for his acts after secession, and at most, only for conspiracy, if at all, before secession.
But, if you permit all to vote in the re-organization of the State who, under the old electoral law, have the elective franchise, you throw the State into the hands of those who have been disloyal to the Union.If so, and you cannot trust them, the remedy is not in disfranchising the majority, but in prohibiting re-organization, and in holding the territorial people still longer under the provisional government, civil or military.The old electoral law disqualifies all who have been convicted of treason either to the State or the United States, and neither Congress nor the Executive can declare any others disqualified on account of disloyalty.But you must throw the State into the hands of those who took part, directly or indirectly, in the rebellion, if you reconstruct the States at all, for they are undeniably the great body of the territorial people in all the States that seceded.These people having submitted, and declared their intention to reconstruct the State as a State in the Union, you must amend the constitution of the United States, unless they are convicted of a disqualifying crime by due process of law, before you can disfranchise them.It is impossible to reconstruct any one of the disorganized States with those alone, or as the dominant party, who have adhered to the Union throughout the fearful struggle, as self-governing States.
The State, resting on so small a portion of the people, would have no internal strength, no self-support, and could stand only as upheld by federal arms, which would greatly impair the free and healthy action of the whole American system.
The government attempted to do it in Virginia, Louisiana, Arkansas, and Tennessee, before the rebellion was suppressed, but without authority and without success.The organizations, effected at great expense, and sustained only by military force, were neither States nor State governments, nor capable of being made so by any executive or congressional action.If the disorganized States, as the government held, were still States in the Union, these organizations were flagrantly revolutionary, as effected not only without, but in defiance of State authority; if they had seceded and ceased to be States, as was the fact, they were equally unconstitutional and void of authority, because not created by the free suffrage of the territorial people, who alone are competent to construct or reconstruct a state.
If the Unionists had retained the State organization and government, however small their number, they would have held the State, and the government would have been bound to recognize and to defend them as such with all the force of the Union.The rebellion would then have been personal, not territorial.But such was not the case.The State organization, the State government, the whole State authority rebelled, made the rebellion territorial, not personal, and left the Unionists, very respectable persons assuredly, residing, if they remained at home, in rebel territory, traitors in the eye of their respective States, and shorn of all political status or rights.Their political status was simply that of the old loyalists, or adherents of the British crown in the American war for Independence, and it was as absurd to call them the State, as it would have been for Great Britain to have called the old Tories the colonies.
The theory on which the government attempted to re-organize the disorganized States rested on two false assumptions: first, that the people are personally sovereign; and, second, that all the power of the Union vests in the General government.The first, as we have seen, is the principle of so-called "squatter sovereignty," embodied in the famous Kansas-Nebraska Bill, which gave birth, in opposition, to the Republican party of .The people are sovereign only as the State, and the State is inseparable from the domain.The Unionists without the State government, without any State organization, could not hold the domain, which, when the State organization is gone, escheats to the United States, that is to say, ceases to exist.The American democracy is territorial, not personal.
The General government, in time of war or rebellion, is indeed invested, for war purposes, with all the power of the Union.
