The

Harris of the State of New York, and was afterwards reported from the Judiciary Committee of that body; but it was left with the unfinished business, when the late Congress expired on the fourth of March. The opposition to this proposition, so far as I understand it, assumes two forms: first, that these States are always to be regarded as States, with State rights, and therefore cannot be governed by Congress; and, secondly, that, if any government is to be established over them, it must be simply a military government, with a military governor, appointed by the President, as is the case with Tennessee and North Carolina. But State rights are as much disturbed by a military government as by a Congressional government. local government is as much set aside in one case as in the other. If the President, within State limits, can proceed to organize a military government to exercise all the powers of the State, surely Congress can proceed to organize a civil government within the same limits for the same purpose; nor can any pretension of State Rights be effective against Congress more than against the President. Indeed, the power belongs to Congress by a higher title than it belongs to the President: first, because a civil government is more in harmony with our institutions, and, wherever possible, is required; and, secondly, because there are provisions of the Constitution under which this power is clearly derived.

Assuming, then, that the pretension of State Rights is as valid against one form of government as against the other, and still further assuming, that, in the case of military governments, this pretension is practically overruled by the President at least, we are brought again to consider the efficacy of this pretension when advanced against Congressional governments.

It is argued that the Acts of Secession are all inoperative and void, and that therefore the States continue precisely as before, with their local constitutions, laws, and institutions in the hands of

traitors, but totally unchanged, and ready to be quickened into life by returning loyalty. Such, I believe, is a candid statement of the pretension for State Rights against Congressional governments, which, it is argued, cannot be substituted for the State governments.

In order to prove that the Rebel States continue precisely as before, we are reminded that Andrew Johnson continued to occupy his seat in the Senate after Tennessee had adopted its Act of Secession and embarked in rebellion, and that his presence testified to the fact that Rebel Tennessee was still a State of the Union. No such conclusion is authorized by the incident in question. There are two principles of Parliamentary law long ago fixed: first, that the power once conferred by an election to Parliament is irrevocable, so that it is not affected by any subsequent change in the constituency; and, secondly, that a member, when once chosen, is a member for the whole kingdom, becoming thereby, according to the words of an early author, not merely knight or burgess of the county or borough which elected him, but knight or burgess of England. If these two principles are not entirely inapplicable to our political system, then the seat of Andrew Johnson was not in any respect affected by the subsequent madness of his State, nor can the legality of his seat be any argument for his State.

We are also reminded that during the last session of Congress two Senators from Virginia represented that State in the Senate; and the argument is pressed, that no such representation would be valid, if the State government of Virginia was vacated. This is a mistake.

Two things are established by the presence of these Senators in the National Senate : first, that the old State government of Virginia is extinct, and, secondly, that a new government has been set up in its place. It was my fortune to listen to one of these Senators while he earnestly denounced the idea *See Cushing, Parliamentary Law, p. 284.

It is true, beyond question, that the Acts of Secession are all inoperative and void against the Constitution of the United States. Though matured in successive conventions, sanctioned in various forms, and maintained ever since by bloody war, these acts-no matter by what name they may be called-are all equally impotent to withdraw an acre of territory or a single inhabitant from the rightful jurisdiction of the United States. But while thus impotent against the United States, it does not follow that they were equally impotent in the work of self-destruction. Clearly, the Rebels, by utmost efforts, could not impair the National jurisdiction; but it remains to be seen if their enmity did not act back with fatal rebound upon those State very Rights in behalf of which they commenced their treason.

STATE SUICIDE.

Ir is sometimes said that the States themselves committed suicide, so that as States they ceased to exist, leaving their whole jurisdiction open to the occupation of the United States under the Constitution. This assumption is founded on the fact, that, whatever may be the existing governments in these States, they are in no respect constitutional, and since the State itself is known by the government, with which its life is intertwined, it must cease to exist constitutionally when its government no longer exists constitutionally. Perhaps, however, it would be better to avoid the whole question of the life or death of the State, and to content ourselves with an inquiry into the condition of its government. It is not easy to say what constitutes that entity which we call a State; nor is the discussion much advanced by any theory with regard to it. To my mind it seems a topic fit for the old schoolmen or a modern de

bating society; and yet, considering the part it has already played in this discussion, I shall be pardoned for a brief allu

sion to it.

There are well-known words which ask and answer the question, “What constitutes a State?" But the scholarly poet was not thinking of a "State" of the American Union. Indeed, this term is various in its use. Sometimes it stands for civil society itself. Sometimes it is the general name for a political community, not unlike "nation" or "country," - as where our fathers, in the Resolution of Independence, which preceded the Declaration, spoke of "the State of Great Britain." Sometimes it stands for the government, as when Louis XIV., at the height of his power, exclaimed, "The State, it is I"; or when Sir Christopher Hatton, in the famous farce of "The Critic," ejaculates,

“Oh, pardon me, if my conjecture 's rash, But I surmise - the State Some danger apprehends."

Among us the term is most known as the technical name for one of the political societies which compose our Union. Of course, when used in the latter restricted sense, it must not be confounded with the same term when used in a different and broader sense. But it is obvious that some persons attribute to the one something of the qualities which can belong only to the other. Nobody has suggested, I presume, that any "State" of our Union has, through rebellion, ceased to exist as a civil society, or even as a political community. It is only as a State of the Union, armed with State rights, or at least as a local government, which annually renews itself, as the snake its skin, that it can be called in question. But it is vain to challenge for the technical "State," or for the annual government, that immortality which belongs to civil society. The one is an artificial body, the other is a natural body; and while the first, overwhelmed by insurrection or war, may change or die, the latter can change or die only with the extinction

of the community itself, whatever may be its name or its form.

It is because of confusion in the use of this term that there has been so much confusion in the political controversies where it has been employed. But nowhere has this confusion led to greater absurdity than in the pretension which has been recently made in the name of State Rights, as if it were reasonable to attribute to a technical "State" of the Union that immortality which belongs to civil society.

From approved authorities it appears that a "State," even in a broader signification, may lose its life. Mr. Phillimore, in his recent work on International Law, says:-"A State, like an individual, may die," and among the various ways, he says, "by its submission and the donation of itself to another country." * But in the case of our Rebel States there has been a plain submission and donation of themselves, effective, at least, to break the continuity of government, if not to destroy that immortality which has been claimed. Nor can it make any difference, in breaking this continuity, that the submission and donation, constituting a species of attornment, were to enemies at home rather than to enemies abroad,

to Jefferson Davis rather than to Louis Napoleon. The thread is snapped in one case as much as in the other.

But a change of form in the actual government may be equally effective. Cicero speaks of a change so complete as "to leave no image of a State behind." But this is precisely what has been done throughout the whole Rebel region: there is no image of a constitutional State left behind. Another authority, Aristotle, whose words are always weighty, says, that, the form of the State being changed, the State is no longer the same, as the harmony is not the same when we modulate out of the Dorian mood into the Phrygian. But if ever an unlucky people modulated out of one mood into another, it was our Rebels, when they underPhillimore's International Law, Vol. I.

p. 147.

took to modulate out of the harmonies of the Constitution into their bloody discords.

Without stopping further for these diversions, I content myself with the testimony of Edmund Burke, who, in a striking passage, which seems to have been written for us, portrays the extinction of a political community; but I quote his eloquent words rather for suggestion than for authority:

"In a state of rude Nature there is no such thing as a people. A number of men in themselves have no collective capacity. The idea of people is the idea of a corporation. It is wholly artificial, and made, like all other legal fictions, by common agreement. What the particular nature of that agreement was is collected from the form into which the particular society has been cast. Any other is not their covenant. When men, therefore, break up the original compact or agreement which gives its corporate form and capacity to a State, they are no longer a people; they have no longer a corporate existence; they have no longer a legal coactive force to bind within, nor a claim to be recognized abroad. They are a number of vague, loose individuals, and nothing more. With them all is to begin again. Alas! they little know how many a weary step is to be taken before they can form themselves into a mass which has a true politic personality." *

If that great master of eloquence could be heard, who can doubt that he would blast our Rebel States, as senseless communities who have sacrificed that corporate existence which makes them living, component members of our Union of States?

STATE FORFEITURE.

BUT again it is sometimes said, that the States, by their flagrant treason, have forfeited their rights as States, so as to be civilly dead. It is a patent and indisputable fact, that this gigantic treason was inaugurated with all the forms of

Burke's Appeal from the New to the Old Whigs.

law known to the States; that it was carried forward not only by individuals, but also by States, so far as States can perpetrate treason; that the States pretended to withdraw bodily in their corporate capacities; that the Rebellion, as it showed itself, was by States as well as in States; that it was by the governments of States as well as by the people of States; and that, to the common observer, the crime was consummated by the several corporations as well as by the individuals of whom they were composed. From this fact, obvious to all, it is argued, that, since, according to Blackstone, "a traitor hath abandoned his connection with society, and hath no longer any right to the advantages which before belonged to him purely as a member of the community," by the same principle the raitor State is no longer to be regarded as a member of the Union. But it is not necessary, on the present occasion, to insist on the application of any such principle to States.

STATE ABDICATION.

AGAIN it is said, that the States by their treason and rebellion, levying war upon the National Government, have abdicated their places in the Union; and here the argument is upheld by the historio example of England, at the Revolution of 1688, when, on the flight of James II. and the abandonment of his kingly duties, the two Houses of Parliament voted, that the monarch, "having violated the fundamental laws, and having withdrawn himself out of the kingdom, had abdicated the government, and that the throne had thereby become vacant." But it is not necessary for us to rely on any allegation of abdication, applicable as it may be.

stitute theory for fact. On this important question I discard all theory, whether it be of State suicide or State forfeiture or State abdication, on the one side, or of State rights, immortal and unimpeachable, on the other side. Such discussions are only endless mazes in which a whole senate may be lost. And in discarding all theory, I discard also the question of de jure, - whether, for instance, the Rebel States, while the Rebellion is flagrant, are de jure States of the Union, with all the rights of States. It is enough, that, for the time being, and in the absence of a loyal government, they can take no part and perform no function in the Union, so that they cannot be recognized by the National Government. The reason is plain. There are in these States no local functionaries bound by constitutional oaths, so that, in fact, there are no constitutional functionaries; and since the State government is necessarily composed of such functionaries, there can be no State government. Thus, for instance, in South Carolina, Pickens and his associates may call themselves the governor and legislature, and in Virginia, Letcher and his associates may call themselves governor and legislature; but we cannot recognize them as such. Therefore to all pretensions in behalf of State governments in the Rebel States I oppose the simple FACT, that for the time being no such governments exist. The broad spaces once occupied by those governments are now abandoned and vacated. That patriot Senator, Andrew Johnson, faithful among the faithless, the Abdiel of the South, began his attempt to reorganize Tennessee by an Address, as early as the 18th of March, 1862, in which he made use of these words:

-

"I find most, if not all, of the offices, both State and Federal, vacated, either by actual abandonment, or by the action of the incumbents in attempting to subordinate their functions to a power in hostility to the fundamental law of the State and subversive of her national allegiance."

In employing the word "vacated," Mr.

Johnson hit upon the very term which, in the famous resolution of 1688, was held to be most effective in dethroning King James. After declaring that he had abdicated the government, it was added, "that the throne had thereby become vacant," on which Macaulay happily remarks: :

"The word abdication conciliated politicians of a more timid school. To the real statesman the simple important clause was that which declared the throne vacant; and if that clause could be carried, he cared little by what preamble it might be introduced." *

And the same simple principle is now in issue. It is enough that the Rebel States be declared vacated, as in fact they are, by all local government which we are bound to recognize, so that the way is open to the exercise of a rightful jurisdiction.

TRANSITION TO RIGHTFUL GOVERN

MENT.

AND here the question occurs, How shall this rightful jurisdiction be established in the vacated States? Some there are, so impassioned for State rights, and so anxious for forms even at the expense of substance, that they insist upon the instant restoration of the old State governments in all their parts, through the agency of loyal citizens, who meanwhile must be protected in this work of restoration. But, assuming that all this is practicable, as it clearly is not, it attributes to the loyal citizens of a Rebel State, however few in numbers, it may be an insignificant minority, a power clearly inconsistent with the received principle of popular government, that the majority must rule. The seven voters of Old Sarum were allowed to return two members of Parliament, because this place, once a Roman fort, and afterwards a sheepwalk, — many generations before, at the early casting of the House of Commons, had been entitled to this

• Macaulay's History of England, Vol. II.

p. 624.

representation; but the argument for State Rights assumes that all these rights may be lodged in voters as few in number as ever controlled a rotten borough of England.

Pray, admitting that an insignificant minority is to organize the new government, how shall it be done? and by whom shall it be set in motion? In putting these questions I open the difficulties. As the original government has ceased to exist, and there are none who can be its legal successors, so as to administer the requisite oaths, it is not easy to see how the new government can be set in motion without a resort to some revolutionary proceeding, instituted either by the citizens or by the military power, unless Congress, in the exercise of its plenary powers, should undertake to organize the new jurisdiction.

But every revolutionary proceeding is to be avoided. It will be within the recollection of all familiar with our history, that our fathers, while regulating the separation of the Colonies from the parent country, were careful that all should be done according to the forms of law, so that the thread of legality should continue unbroken. To this end the Continental Congress interfered by a supervising direction. But the Tory argument in that day denied the power of Congress as earnestly as it denies this power now. Mr. Duane, of the Continental Congress, made himself the mouthpiece of this denial :-

"Congress ought not to determine a point of this sort about instituting government. What is it to Congress how justice is administered? You have no right to pass the resolution, any more than Parliament has. How does it appear that no favorable answer is likely to be given to our petitions ?" *

In spite of this argument, the Congress of that day undertook, by formal resolu tions, to indicate the process by which the new governments should be constitut ed.t

John Adams's Works, Vol. II. p. 490. ↑ Ibid. Vol. III. pp. 17, 19, 45, 46.