The Commonwealth. — 1866-06-16 (London, England)

ARE THE LATE "CONFEDERATE STATES," STATES OR TERRITORIES OF THE UNITED STATES. (To the Editor of the Commonwealth.) Sir,—As regards the question of restoration in America one of the great points in despite between die parties is, whether or no the State Governments have ceased to exist in consequence of the rebellion. The President and his supporters affirm that the States still exist; that the States, as States, have never been out of the Union; whilst the other party contend that the people of those States voluntarily surrendered their Constitutional rights and privileges, destroyed their own State Governments, declared themselves r,ut of the Union, annulled the Constitutional Compact between themselves, the other States, and the general government by their treasonable acts, and, so to speak, committed State-suicide, thus reducing those parts of the American domain to the condition of territories. To speak of them now as States is a mere habit, a courtesy convenient from long usage, but that from a constitutional point of view they are in the same condition as Arizona, Nebraska or Dakota. The Radical Republicans apparently maintain the doctrine that a state can commit treason. This position is denied by their opponents who say that a people may commit treason but that a State cannot.  I will now refer to some of the arguments that have been adduced in favour of the position that the Southern States by the act of rebellion committed constitutional felo de se. There is no question about the legitimate control and authority of Congress over the territories; the point in dispute is as to whether it is right to consider the lately rebellious States as such. The Constitution is very explicit as regards the authority of Congress over the territories.  "Sec. 3-2 of Art. 4.  "The Congress shall have power to dispose of, and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular State."  Mr, Sumner in his speech in the Senate relied much upon analogy. Certain States, he argued, are disloyal, have no local government, and consequently from the necessity of the case, they lapse under the authority of the Congress according to the analogies of the territories. The following extract from the New York Herald's report of the proceedings of the House of Representatives, in January last will show the mode of reasoning adopted by a member from Pennsylvania. "Mr. Broomall (rep.) of Pa., said a conquered people have no rights civil or political. The yictor may exact all the guarantees necessary to prevent the recurrence of hostilities, and the conqueror is the sole judge of the guarantees. In civil war the conquered can be treated as the conqueror pleases." "Mr. Niblack of Indianna inquired whether the States lately in rebellion were not now States in the Union."  "Mr. Broomall replied that the organized communities of the South were not, in his opinion, in the Union. If he had thought so he would not have voted for the resolution to raise a committee of reconstruction. His position was that the government has a right to pursue that policy which it may deem best, unembarrassed by any rights of rebels. Any system of reconstruction that did not effectually guarantee the rights of the Union men of the South would not meet with his support." Mr. Ward, a Republican representative from New York, said that in his opinion the States lately in rebellion had the right only of the criminal who pleaded to the Judge for mercy. But the best Republican argument that I have seen on this point is that advanced by Senate Davis.  "The suggestion that the constitutions survive the governments is at once absurd and dangerous. The government ceased to exist because ' they disowned their subordination to the United States in point of law. Our arms expelled them as usurpations in point of fact. The constitutions were constitutions of those governments and of nothing else. If they did not constitute those governments they constituted nothing. A constitution of nothing is nothing. A constitution which does not constitute, is a contradiction in terms. Such are the absurdities of this new form of Southern constitutional mataphysics ! " Our ordinary language is elliptical. We speak of a constitution, but that means nothing till we add, of wkat. We mean a constitution of government; and the moment we say what we mean, the folly of a constitntion surviving the government is apparent. When the rebellion usurped power in the States, the State governments ceased to exist; the constitutions became dead forms; the line of official transmission of powers was broken; there ceased to be any person designated to renew the functions of government, and they could never be renewed till the people constituted anew the governments, or congress, in executing its guarantee, directed such governments to be constituted. For a government is certain men charged with certain powers. A constitution of government is the law creating the powers, and designating the men to execute them ; and without the men, the government and the constitution are alike nonentities. "But the view is also dangerous. For if the Constitutions continue in force, then the Representatives and Senators elected under them are entitled to appear in their seats, require their names to be called, and to vote on the simple production of their certficates. It is not necessary that Congress should recognise governments in those States; for the old governments which it has heretofore recognised continue, and to recognise others is to oust them by resolution. This has always been the view of the democratic allies of the rebels; but it is now for the first time presented for the approval of the Republicans. The President had not though of this view when he made the prohibition of slavery a condition of reorganization; and if he did not include negro suffrage in the conditions, it was not because he had not as much power but less inclination to do it." This, then, is the way the President's opponents reason when they wish to show that the old state governments of the rebellious States are now constitutionally defunct. The preceeding extracts, I presume, contain the gist of everything that has been said, and probably of everything that can be said in favour of the assumption, that those States have lapsed into the condition or status of Territories. In a future letter I will inquire what they have to say in support of their second position based upon this, namely,  that being Territories it is the duty of Congress on their readmission to the Union to insist on negro suffrage in order to carry out that provision of the constitution which says that Congress shall gaurantee to every State a Republican form of government. Yours respectfully, H. W.