Shall their identity be revived and preserved, or shall they be new States, regardless of that identity ? There can be no question that the work to be done was that of restoration, not of creation; no tribe should perish from Israel, no star be struck from the firmament of the Union.Every inhabitant of the fallen States, and every citizen of the United States must desire them to be revived and continued with their old names and boundaries, and all true Americans wish to continue the constitution as it is, and the Union as it was.Who would see old Virginia, the Virginia of revolutionary fame, of Washington, Jefferson, Madison, of Monroe, the "Old Dominion," once the leading State of the Union, dead without hope of resurrection? or South Carolina, the land of Rutledge, Moultrie, Laurens, Hayne, Sumter, and Marion? There is something grating to him who values State associations, and would encourage State emulation and State pride, in the mutilation of the Old Dominion and the erection within her borders of the new State called West Virginia.States in the Union are not mere prefectures, or mere dependencies on the General government, created for the convenience of administration.They have an individual, a real existence of their own, as much so as have the individual members of society.
They are free members, not of a confederation indeed, but of a higher political community, and reconstruction should restore the identity of their individual life, suspended for a moment by secession, but capable of resuscitation.
These States had become, indeed, for a moment, territory under the Union; but in no instance had they or could they become territory that had never existed as States.The fact that the territory and people had existed as a State, could with regard to none of them be obliterated, and, therefore, they could not be erected into absolutely new States.The process of reconstructing them could not be the same as that of creating new States.In creating a new State, Congress, ex necessitate, because there is no other power except the national convention competent to do it, defines the boundaries of the new State, and prescribes the electoral people, or who may take part in the preliminary organization but in reconstructing States it does neither, for both are done by a law Congress is not competent to abrogate or modify, and which can be done only by the United States in convention assembled, or by the State itself after its restoration.The government has conceded this, and, in part, has acted on it.It preserves, except in Virginia, the old boundaries, and recognizes, or rather professes to recognize the old electoral law, only it claims the right to exclude from the electoral people those who have voluntarily taken part in the rebellion.
The work to be done in States that have seceded is that of reconstruction, not creation; and this work is not and cannot be done, exclusively nor chiefly by the General government, either by the Executive or by Congress.That government can appoint military, or even provisional governors, who may designate the time and place of holding the convention of the electoral people of the disorganized State, as also the time and place of holding the elections of delegates to it, and superintend the elections so far as to see the polls are opened, and that none but qualified electors vote, but nothing more.All the rest is the work of the territorial electoral people themselves, for the State within its own sphere must, as one of the United States, be a self-governing community.The General government may concede or withhold permission to the disorganized State to reorganize, as it judges advisable, but it cannot itself reorganize it.If it concedes the permission, it must leave the whole electoral people under the preexisting electoral law free to take part in the work of reorganization, and to vote according to their own judgment.
It has no authority to purge the electoral people, and say who may or may not vote, for the whole question of suffrage and the qualifications of electors is left to the State, and can be settled neither by an act of Congress nor by an Executive proclamation.
If the government theory were admissible, that the disorganized States remain States in the Union, the General government could have nothing to say on the subject, and could no more interfere with elections in any one of them than it could with elections in Massachusetts or New York.But even on the doctrine here defended it can interfere with them only by way of general superintendence.The citizens have, indeed, lost their political rights, but not their private rights.Secession has not dissolved civil society, or abrogated any of the laws of the disorganized State that were in force at the time of secession.
The error of the government is not in maintaining that these laws survive the secession ordinances, and remain the territorial law, or lex loci, but in maintaining that they do so by will of the State, that has, as a State, really lapsed.They do so by will of the United States, which enacted them through the individual State, and which has not in convention abrogated them, save the law authorizing slavery, and its dependent laws.
