the american republic-第50节
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ubmits； and peace returns； the vanquished should be treated with gentleness and love。 No rancor should remain； no vengeance should be sought； they who met in mortal conflict on the battle…field should be no longer enemies； but embrace as comrades； as friends； as brothers。 None but a coward kicks a fallen foe； a brave people is generous； and the victors in the late war can afford to be generous generously。 They fought for the Union； and the Union has no longer an enemy； their late enemies are willing and proud to be their countrymen； fellow…citizens； and friends； and they should look to it that small politicians do not rob them in the eyes of the world； by unnecessary and ill…timed severity to the submissive； of the glory of being； as they are； a great； noble； chivalric； generous； and magnanimous people。
338 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 gener… 339 ally 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 340 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 341 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 342 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 1856。 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。 This is the war power。 But； though apparently unlimited； the war power is yet restricted to war purposes； and expires by natural limitation when peace returns；； and peace returns； in a civil war； when the rebels have thrown down their arms and submitted to the national authority； and without any formal declaration。 During the war； or while the rebellion lasts； it can suspend the civil courts； the civil laws； the State constitutions； any thing necessary to the success of the 343 warand of the necessity the military authorities are the judges； but it cannot abolish； abrogate； or reconstitute them。 On the return of peace they revive of themselves in all their vigor。 The emancipation proclamation of the President； if it emancipated the slaves in certain States and parts of States； and if those whom it emancipated could not be re…enslaved； did not anywhere abolish slavery； or change the laws authorizing it； and if the Government should be sustained by Congress or by the Supreme Court in counting the disorganized States as States in the Union； the legal status of slavery throughout the Union； with the exception of Maryland； and perhaps Missouri； is what it was before the war。*
The Government undoubtedly supposed； in the reconstructions it attempted； that it was acting under the war power； but as reconstruction can never be necessary for war purposes； and as it is in its very nature a work of peace； incapable of being effected by military force； since its validity depends entirely on its being the free action of the territorial people to be reconstructed； the General government had and could have； with regard to it； only its ordinary
* This was the case in August； 1865。 It may be quite otherwise before these pages see the light。
344 peace powers。 Reconstruction is jure pacis； not jure belli。
Yet such illegal organizations； though they are neither States nor State governments； and incapable of being legalized by any action of the Executive or of Congress； may； nevertheless； be legalized by being indorsed or acquiesced in by the territorial people。 They are wrong； as are all usurpations； they are undemocratic； inasmuch as they attempt to give the minority the power to rule the majority； they are dangerous inasmuch as th
