第 45 节
作者:公主站记      更新:2021-04-30 17:05      字数:9322
  the city could revoke its  grant; as it practically did when it conferred the privileges of  Roman citizenship on the provincials; and gave to plebeians seats  in the senate。  Moreover; nothing in Roman history indicates that  to the validity of a senatus consultum it was necessary to count  the vacant domains of the sacred territory。  The particular  domain must; under the American system; be counted when it is  held by a State; but of itself alone; or even with its  population; it is not a State; and therefore as a State domain is  vacant and without any political rights or powers whatever。
  To argue that the territory and population 303                                            once a State in the  Union must needs always be so; would be well enough if a State in  the Union were individually a sovereign state; for territory;  with its population not subject to another; is always a sovereign  state; even though its government has been subverted。  But this  is not the fact; for territory with its population does not  constitute a State in the Union; and; therefore; when of a State  nothing remains but territory and population; the State has  evidently disappeared。  It will not do then to maintain that  State suicide is impossible; and that the States that adopted  secession ordinances have never for a moment ceased to be States  in the Union; and are free; whenever they choose; to send their  representatives and senators to occupy their vacant seats in  Congress。  They must be reorganized first。
  There would also be some embarrassment to the government in  holding that the States that passed the secession ordinance  remain; notwithstanding; States in the Union。  The citizens of a  State in the Union cannot be rebels to the United States; unless  they are rebels to their State; and rebels to their State they  are not; unless they resist its authority and make war on it。   The authority of the State in the Union is a legal authority; and  the citizen in obeying 304                        it is disloyal neither to the State nor to  the Union。  The citizens in the States that made war on the  United States did not resist their State; for they acted by its  authority。  The only men; on this supposition; in them; who have  been traitors or rebels; are precisely the Union men who have  refused to go with their respective States; and have resisted;  even with armed force; the secession ordinances。  The several  State governments; under which the so…called rebels carried on  the war for the destruction of the Union; if the States are in  the Union; were legal and loyal governments of their respective  States; for they were legally elected and installed; and  conformed to their respective State constitutions。  All the acts  of these governments have been constitutional。  Their entering  into a confederacy for attaining a separate nationality has been  legal; and the debts contracted by the States individually; or by  the confederacy legally formed by them; have been legally  contracted; stand good against them; and perhaps against the  United States。  The war against them has been all wrong; and the  confederates killed in battle have been murdered by the United  States。  The blockade has been illegal; for no nation can  blockade its own ports; and the captures and seizures under 305                                                             it;  robberies。  The Supreme Court has been wrong in declaring the war  a territorial civil war; as well as the government in acting  accordingly。  Now; all these conclusions are manifestly false and  absurd; and therefore the assumption that the States in question  have all along been States in the Union cannot be sustained。
  It is easy to understand the resistance the Government offers to  the doctrine that a State may commit suicide; or by its own act  abdicate its rights and cease to be a State in the Union。  It is  admissible on no theory of the constitution that has been widely  entertained。  It is not admissible on Mr。 Calhoun's theory of  State sovereignty; for on that theory a State in going out of the  Union does not cease to be a State but simply resumes the powers  it had delegated to the General government。  It cannot be  maintained on Mr。 Madison's or Mr。 Webster's theory; that the  States prior to the Union were severally sovereign; but by the  Union were constituted one people; for; if this one people are  understood to be a federal people; State secession would not be  State suicide; but State independence; and if understood to be  one consolidated or centralized people; it would be simply  insurrection or rebellion against the national  306                                                authority;  laboring to make itself a revolution。  The government seems to  have understood Mr。 Madison's theory in both sensesin the  consolidated sense; in declaring the secessionists insurgents and  rebels; and in the federal sense; in maintaining that they have  never seceded; and are still States in the Union; in full  possession of all their political or State rights。  Perhaps; if  the government; instead of borrowing from contradictory theories  of the constitution which have gained currency; had examined in  the light of historical facts the constitution itself; it would  have been as constitutional in its doctrine as it has been loyal  and patriotic; energetic and successful in its military  administration。
  Another reason why the doctrine that State secession is State  suicide has appeared so offensive to many; is the supposition  entertained at one time by some of its friends; that the  dissolution of the State vacates all rights and franchises held  under it。  But this is a mistake。  The principle is well known  and recognized by the jurisprudence of all civilized nations;  that in the transfer of a territory from one territorial  sovereign to another; the laws in force under the old sovereign  remain in force after the change; till abrogated; or others are  enacted 307         in their place by the new sovereign; except such as are  necessarily abrogated by the change itself of the sovereign; not;  indeed; because the old sovereign retains any authority; but;  because such is presumed by the courts to be the will of the new  sovereign。  The principle applies in the case of the death of a  State in the Union。  The laws of the State are territorial; till  abrogated by competent authority; remain the lex loci; and are in  full force。  All that would be vacated would be the public rights  of the State; and in no case the private rights of citizens;  corporations; or laws affecting them。
  But the same conclusion is reached in another way。  In the lapse  of a State or its return to the condition of a Territory; there  is really no change of sovereignty。  The sovereignty; both before  and after; is the United States。  The sovereign authority that  governs in the State government; as we have seen; though  independent of the General government; is the United States。  The  United States govern certain matters through a General  government; and others through particular State governments。  The  private rights and interests created; regulated; or protected by  the particular State; are created; regulated; or protected by the  United States; as much and as plenarily as 308                                            if done by the General  government; and the State laws creating; regulating; or protecting  them can be abrogated by no power known to the constitution; but  either the State itself; or the United States in convention legally  assembled。  If this were what is meant by the States that have  seceded; or professed to secede; remaining States in the Union;  they would; indeed; be States still in the Union; notwithstanding  secession and the government would be right in saying that no  State can secede。  But this is not what is meant; at least not  all that is meant。  It is meant not only that the private rights  of citizens and corporations remain; but the citizens retain all  the public rights of the State; that is; the right to  representation in Congress and in the electoral college; and the  right to sit in the convention; which is not true。
  But the correction of the misapprehension that the private rights  and interests are lost by the lapse of the State may remove the  graver prejudices against the doctrine of State suicide; and  dispose loyal and honest Union men to bear the reasons by which  it is supported; and which nobody has refuted or can refute on  constitutional grounds。  A Territory by coming into the Union  becomes a State; a State by going out of the Union becomes a  Territory。
  CHAPTER XIII。
  RECONSTRUCTION。
  The question of reconstructing the States that seceded will be  practically settled before these pages can see the light; and  will therefore be considered here only so far as necessary to  complete the view of the constitution of the United States。  The  manner in which the government proposed to settle; has settled;  or will settle the question; proves that both it and the American  people have only confused views of the rights and powers of the  General government; but imperfectly comprehend the distinction  between the legislative and executive d