Atlantic Monthly, Vol. 12, August, 1863, No. 70 by Various

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We have been accustomed to extol the wisdom of our fathers, in framing
and establishing such a form of government; but our highest praises have
been too small. We have hitherto had but a partial conception of their
wisdom. We knew not the terrible test to which their work was to be
exposed. After the long discipline of the Revolutionary War, and the
experience of the weakness and impending anarchy of the Confederation,
they understood, far better than we, the dangers to which every
government is liable, from within and from without. And we are just now
beginning to see, that, in the Constitution they adopted, they not only
provided for the interests of peace, but for the dangers and emergencies
of war. Brief sentences, hardly noticed before, now throw open their
doors like a magazine of arms, ready for use in the hour of peril. And
while we shall come out of this struggle, and the political contest
that will follow it, without impairing any of the rights of the States,
the Federal Government _restored_ will stand before the world in a
majesty of strength of which we have before had no conception.

The questions evolved by the war are already attracting public
attention. It is well that they should do so. The peace and prosperity
of the country in future years depend upon their solution. They are so
interwoven that a mistake in regard to one may involve us in other
errors. The power of the Government so to remove the cause of the
present rebellion as to prevent its recurrence, if it have any such
power, is one which it is imperatively bound to exercise,--else all the
treasure and blood expended in quelling it will be wasted. Has it any
such power? Can Slavery be exterminated? And can the Rebel States be
held as conquests, and be restored only upon condition of being forever
free? It is proposed briefly to discuss these questions.

EMANCIPATION.

There are those who believe that the President's Proclamation will cease
to be of any force at the close of the war, and that no slaves will have
any right to their freedom by it except such as may be actually
liberated by the military authorities.

There are others, who hold that the Proclamation has the force of
law,--that by it every slave within the designated territory has now a
legal right to his liberty,--and that, if the military power does not
secure that right to him _during the war_, he may successfully appeal to
the civil power _afterwards_.

If the Proclamation is a law, it must be conceded, that, like all the
laws of war, it will cease to be in force when the war is closed. But
if, like a legislative act, it confers actual rights on the slaves,
whether they are able to secure them in fact or not, then those _rights_
are not lost, though the law cease to exist. On the other hand, if it
confers no actual rights on any who are beyond its reach,--if it is
merely an _offer_ of freedom to all who can come and receive it,--then
those only who do receive it while the offer continues will have any
rights by it when it has ceased to be in force.

The position of Mr. Adams on this subject seems to have been
misunderstood. When his remarks in Congress are carefully examined, it
will be found that he did not claim that the proclamation of a military
commander would operate, like a statute, to confer the right of freedom
upon all the slaves in an invaded country. But he asserted a general
principle of international law,--that the commander of an invading army
is not bound to recognize the municipal laws of the country,--that he
may treat all as freemen, though some are slaves. And he claimed, that,
in case of a servile war in this country, our army would have a right to
suppress the insurrection by giving freedom to the insurgents. In regard
to the effect of such a proclamation upon those not liberated by the
military power, he expressed no opinion.

The precedents usually cited are not any more satisfactory. In Hayti,
and in the South-American republics, emancipation became an established
fact by the action of the civil power. In each case a proclamation by
the military power was the initial step; but the consummation was
attained by the fact that the same power afterwards became dominant in
civil, as well as in military affairs.

Conceding, then, that the Proclamation is but a declaration of the
war-policy, designed and adapted to secure a still higher end,--the
preservation and perpetuity of our free institutions,--it is still
claimed that the Government has the right to pursue this policy until
Slavery is abolished, _and forever prohibited_, within all the Rebel
States.

Though we speak of the Rebellion as an "insurrection," it has assumed
such proportions that we are in a state of actual war. Nor does it make
any difference that it is a _civil_ war. It has just been decided by
the Supreme Court of the United States, _that we have the same rights
against the people and States in rebellion_, by the law of nations, that
we should have against _alien enemies_. The property of non-combatants
is liable to confiscation, as _enemies'_ property; and it makes no
difference that some of them are _personally_ loyal. All the inhabitants
of the Rebel States have the rights of _enemies_ only. The recent cases
of the Brilliant, Hiawatha, and Amy Warwick settle this beyond all
question. There was some difference of opinion among the judges, but
only on the question whether this condition _preceded_ the Act of
Congress of July, 1861,--a majority holding that it did, commencing with
the proclamation of the blockade. So that it cannot be denied that we
may treat the Rebel States as _enemies_, and adopt all measures against
them _which any belligerents engaged in a just war may adopt_.

And no principle of the law of nations is more universally admitted than
this,--that the party in the right, after the war is commenced, may
continue to carry it on until the enemy shall submit to such terms as
will be a sufficient indemnity for all the losses and expenses caused by
it, _and will prevent another war in the future_. And to this end he may
conquer and hold in subjection people and territory, until such terms
are submitted to. And until then, the state of war continues. The right
to impose such terms as will _secure peace in the future_ is one of the
fundamental principles of international law.

"Of the absolute international rights of States," says Mr. Wheaton, "one
of the most essential and important, and that which lies at the
foundation of all the rest, is _the right of self-preservation_. This
right necessarily involves all other incidental rights which are
essential as means to give effect to the principal end."

"The end of a just war," says Vattel, "is to avenge, _or prevent_,
injury."

"If _the safety of the State_ lies at stake, our precaution and
foresight cannot be extended too far. Must we delay to arrest our ruin
until it has become inevitable?"

"Where the end is lawful, he who has the right to pursue that end has,
of course, a right to employ all the means necessary for its
attainment."

"When the conqueror has totally subdued a nation, he undoubtedly may, in
the first place, do himself justice respecting the object which had
given rise to the war, and indemnify himself for the expenses and
damages sustained by it; he may, according to the exigency of the case,
subject the nation to punishment by way of example; and he may, _if
prudence require it, render her incapable of doing mischief with the
same ease in future_."

"Every nation," says Chancellor Kent, "has an undoubted right to provide
for its own safety, and to take due precaution against _distant_, as
well as impending danger."

Our rights _as belligerents_, therefore, are ample for our security in
time to come. The Rebel States will not cease to be enemies by being
defeated and exhausted and disabled from continuing active hostilities.
They have invoked the laws of war, and they must abide the decision of
the tribunal to which they have appealed. We may hold them _as enemies_
until they submit to such reasonable terms of peace as we may demand.
Whether we shall require any indemnity for the vast expenditures and
losses to which we have been subjected is a question of great magnitude;
but it is of little importance compared with that of guarding against a
recurrence of the Rebellion, by removing _the cause_ of it. It would be
worse than madness to restore them to all their former rights under the
government they have done their utmost to destroy, and at the same time
permit them to retain a system that would surely involve us or our
children in another struggle of the same kind.

Slavery and freedom cannot permanently coexist under the same
government. There is an inevitable, perpetual, irrepressible conflict
between them. The present rebellion is but the culmination of this
conflict, long existing,--transferred from social and political life to
the camp and the battle-field. _In the new arena, we have all the rights
of belligerents in an international war._ Slavery has taken the sword;
let it perish by the sword. If we spare it, its wickedness will be
exceeded by our folly. As victors, the world concedes our right to
demand, for our own future peace, as the only terms of restoration, not
only the abolition of Slavery in all the Rebel States, but its
prohibition in all coming time. It cannot be, that, with the terrible
lessons of these passing years, we shall be so utterly destitute of
wisdom and prudence as to leave our children exposed to the dangers of
another rebellion, after entailing upon them the vast burdens of this,
by our national debt.

It has been said, that, if Slavery should be abolished, the States could
afterwards reestablish it. This is claimed, on the ground that every
State may determine for itself the character of its own domestic
institutions. The right to do so has been conceded to some of the new
States.

But it should be remembered that this right has been, to establish
Slavery _by bringing in slaves from the old States_,--not by taking
_citizens of the United States_, and reducing _them_ to slavery. If one
such citizen can be enslaved, then can any other; and the very
foundations of the Federal Government can be overturned by a State. For
a government that cannot protect _its own citizens_ from loss of
citizenship by being chattellized is no government at all.

Citizenship is a reciprocal relation. The citizen owes allegiance; the
government owes protection. When a person is naturalized, he takes the
oath of allegiance. Does he got nothing in return? Can a State annul all
the rights which the Federal Government has conferred? Then, indeed,
would it be better for those who come to our shores to remain citizens
of the old nations; for _they_ could protect them, but _we_ cannot.
Then, to be a citizen of the United States--a privilege we had thought
greater than that of Roman citizenship when that empire was in its
glory--is a privilege which any State may annul at its pleasure!

The power and position of a nation depend upon the number, wealth,
intelligence, and power of its citizens. And the nation, in order to
employ and develop its resources, must have free scope for the use of
its powers. No State has a right to block the path of the United States,
or in any way to "retard, impede, or burden it, in the execution of its
powers." For this reason, if a citizen is wealthy enough to lend money
to the Federal Government, a State cannot _tax his scrip_ to the amount
of one cent. But, if the doctrine contended for by some is sound, then
it may take _the citizen himself_, confiscate the whole of his property,
blot out his citizenship, and make a chattel of him, and the Federal
Government can afford him no protection! Among all the doctrines that
Slavery has originated in this country, there is none more monstrous
than this.

But this is not a question of any practical importance at this time.
There is no danger that Slavery will ever be tolerated where it has been
once abolished. It may go into new fields; it seldom returns to those
from which it has been driven. The institutions of learning and religion
that follow in the path of freedom, if they find a congenial soil, are
not likely to be supplanted by the dark and noxious exotics of ignorance
and barbarism.

And besides, as we have already seen, it is our right, as one of the
conditions of restoration, to provide for the _perpetual prohibition_ of
Slavery within the Rebel States. This, like the Ordinance of 1787, will
stand as an insurmountable barrier in all time to come. And the security
it will afford will be even more certain. For, while there may be a
difference of opinion in regard to the effect of a law of Congress
relating to existing Territories, there is no doubt that conditions
imposed at the time upon the admission of new States, or the restoration
of the Rebel States, will be of perpetual obligation.

RIGHTS OF REBEL STATES.

On this subject there are two theories, each of which has advocates
among our most eminent statesmen.

By some it is claimed that the Rebels have lost all rights as citizens
of States, and are in the condition of the inhabitants of unorganized
territories belonging to the United States,--and that, having forfeited
their rights, they can never be restored to their former position,
except by the consent of the Federal Government. This consent may be
given by admitting them as new States, or restoring them as old,--the
Government having the right in either case to annex terms and
conditions.

There are others who contend that the Rebel States, though in rebellion,
have lost none of their rights as States,--that the moment they submit
they may choose members of Congress and Presidential electors, and
demand, and we must concede, the same position they formerly held. This
theory has been partially recognized by the present Administration, but
not to an extent that precludes the other from being adopted, if it is
right.

If the people of the States which have seceded, as soon as they submit,
have an absolute right to resume their former position in the
Government, with their present constitutions upholding Slavery, it
certainly will be a great, if not an insurmountable, obstacle to the
adoption of those measures which may be necessary to secure our peace in
the future. That they have no such right, it is believed may be made
perfectly clear.

If we triumph, we shall have all the rights which, by the laws of
nations, belong to conquerors in a just war. In a civil war, the rights
of conquest may not be of the same nature as in a war between different
nations; but that there are such rights in all wars has already been
stated on the highest authority. If a province, having definite
constitutional rights, revolts, and attempts to overthrow the power of
the central government, it would be a strange doctrine, to claim, that,
after being subdued, it had risked and lost nothing by the undertaking.
No authority can be found to sustain such a proposition. A rebellion
puts everything at risk. Any other doctrine would hold out encouragement
to all wicked and rebellious spirits. If they revolt, they know that
everything is staked upon the chances of success. Everything is lost by
defeat. By the laws of war, long established among the nations,--laws
which the Rebel States have themselves invoked,--if they fail, they will
have no right to be restored, except upon such terms as our Government
may prescribe. The right to make war, conferred by the Constitution,
carries with it all the rights and powers incident to a war, necessary
for its successful prosecution, and essential to prevent its recurrence.

But without resorting to the extraordinary powers incident to a state of
war, the same conclusion, in regard to the effect of a rebellion by a
State Government, results from the relations which the States sustain to
the Federal Government. Though they cannot escape its jurisdiction,
their position, _as States_, is one which may be forfeited and lost.

It has been objected that this doctrine is equivalent to a recognition
of the right of Secession, because it concedes the power of any one
State to withdraw from the Union. But the fallacy of this objection is
easily demonstrated.

The Federal Government does not emanate from the States, but directly
from the people. The relation between them is that _of protection_ on
the one hand and _allegiance_ on the other. This relation cannot be
dissolved by either party, unless by voluntary or compulsory
expatriation. It subsists alike in States and Territories, not being
dependent upon any local government. The Rebels claim the right to
dissolve this relation, and to become free from and independent of the
Federal Government, though retaining the same territory as before. We
deny any such right, and hold, that, though they may forfeit their
rights _as a State_, they are still bound by, and under the jurisdiction
of, the Federal Government. This jurisdiction, though absolute in all
places, is not the same in all.

In the District of Columbia, and in all unorganized territories, the
jurisdiction of the Federal Government is exclusive in its _extent_, as
well as in its _nature_. It must protect the inhabitants in _all_ their
rights,--for there is no other power to protect them. They owe
allegiance to it, and to no other.

The inhabitants of the _organized_ territories, though under the general
jurisdiction of the Federal Government, are, to some extent, under the
jurisdiction of the Territorial Governments. Each is bound to protect
them in certain things; they are bound to support and obey each in
certain things.

The people of a State are also under the absolute jurisdiction of the
Federal Government in all matters embraced in the Constitution. They owe
it unqualified allegiance and support in those things. But they are
also, in some matters, under the jurisdiction of the State Government,
and owe allegiance to that. There are many matters over which both have
jurisdiction, and in which the citizens have a right to look to each, or
both, for protection. The courts of each issue writs of _habeas corpus_,
and give the citizens their liberty, unless there is legal cause for
their custody or restraint.

Now, if a State Government forfeits all right to the allegiance and
support of its citizens, they are not thereby absolved from their
allegiance to the Federal Government. On the contrary, the jurisdiction
of the Federal Government is thereby enlarged; for it is then the only
Government which the citizens are bound to obey. Take, for illustration,
the State of Arkansas. By seceding, the State Government forfeited all
claim to the obedience of the citizens. The inhabitants no longer owe it
any allegiance. If loyal, they will not obey it, except as compelled by
force. But they still owe allegiance to the United States Government.
And there being no other Government which they are bound to obey, they
are in the same condition as before the State was admitted into the
Union, or any Territorial Government was organized.

The same is true of South Carolina. For, though it was an independent
State before the Constitution was adopted, its citizens voluntarily
yielded up that position, and became subject to the Federal Government,
claiming the privileges and assuming the liabilities of a higher
citizenship. And if, by reason of its rebellion, their State Government
has forfeited its claim upon them, and its right to rule over them, they
owe no allegiance to any except the Government of the United States.

But it is argued by some, that a State, once admitted into the Union,
cannot forfeit its rights as a State under the Constitution, because it
cannot, as such, be guilty of treason; that the inhabitants may all be
traitors, and the State Government secede, and engage in a war against
the Republic, and yet retain all its rights intact.

A State, in the meaning of public law, has been defined to be a body of
persons _united together_ in one community, for the defence of their
rights. They do not constitute a State until _organized_. If the
organization ceases to exist, they are no longer a State. If the State
organization becomes despotic, and the inhabitants overthrow it by a
revolution, it then ceases to exist. The people are remitted to their
original rights, and must organize a new State.

A State, as such, may be guilty of treason. Crimes may be committed by
organized bodies of men. Corporations are often convicted, and punished
by fines, or by a forfeiture of all corporate rights. And though we have
no provision for putting a State on trial, it may, as a State, be
guilty. Treason is defined by the Constitution to be "levying war
against the United States." This is just what South Carolina, as a
State, is doing. Not only the people, but _the State Government_, has
revolted. The people owe it no allegiance. It is their duty, not to
support, but to _oppose_ it. The Federal Government owes it no
recognition. It has the right to destroy and exterminate it. A State
Government in rebellion has no rights under the Constitution. _It is
itself a rebellion_, and must necessarily cease to exist when the
rebellion is suppressed.

And when the State Government which has revolted shall be conquered and
overthrown, there will then be no South Carolina in existence. If there
were loyal people enough there, bond or free, to rise up and overthrow
it, they would be no more bound to revive the old Constitution, with its
tyrannical provisions, than were our fathers to return to the British
Government. Such a revolution is inaugurated in that State, by loyal
men, to overthrow the despotic power of the State Government. If the
State Government had remained loyal, it might have called on the Federal
Government. But by seceding it has justified the Federal Government in
aiding or organizing a revolution against it, for its utter overthrow
and extinction.

It is true, indeed, the idea prevails that there is still, somehow, a
State of South Carolina, besides that which is in rebellion. But the
State must exist _in fact_, or it has no existence. There is no such
thing as a merely theoretical State, separate and different from the
actual. The revolted States are the same States that were once loyal.
And when some loyal citizens in each of them, with the aid of the
Federal Government, have overthrown and destroyed them, the ground will
be cleared for the formation of new States, or the _reorganization_ of
the old; and they may be admitted or restored, upon such conditions as
may be deemed wise and prudent, to promote and secure the future peace
and welfare of the whole country.

There is no evidence that loyal persons in the Rebel States claim or
desire to uphold the existence of those States, under their present
constitutions, with the system of Slavery. But if there are any such
persons, their wishes are not to override the interests of the Republic.
It is their misfortune to reside in States that have revolted; and all
their losses, pecuniary and political, are chargeable to those States,
and not to the Federal Government. If they are so blind as to suppose
that their losses will be increased by emancipation, _that_, also, will
be chargeable to the rebellion of those States. _Their_ loyalty does not
save those States from being treated as enemies; it does not prevent
_their own_ condition from being determined by that of their States. As
it is well known, a portion of their property has been confiscated by an
Act of Congress, on the ground that they are, in part, responsible for
the rebellion of those States. The theory, therefore, that such loyal
men constitute loyal States, still existing, in distinction from the
States that have rebelled, is utterly groundless. On this point we
cannot do better than quote from the opinion of the Supreme Court of the
United States in a case already referred to, sustaining the belligerent
legislation of Congress.

"In organizing this rebellion, _they have acted as States_, claiming to
be sovereign over all persons and property within their respective
limits, and claiming the right to absolve their citizens from their
allegiance to the Federal Government. Several of these States have
combined to form a new Confederacy, claiming to be acknowledged by the
world as a sovereign State. Their right to do so is now being decided by
wager of battle. The ports and territory of each of these States are
held in hostility to the General Government. It is no loose, unorganized
insurrection, having no defined boundary or possession. It has a
boundary, marked by lines of bayonets, and which can be crossed only by
force. South of this line is enemy's territory, because it is claimed
and held in possession by an organized, hostile, and belligerent power.
All persons residing within this territory, whose property may be used
to increase the revenues of the hostile power, are in this contest
liable to be treated as enemies."

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