The Executive, as commander-in-chief of the army, may ex necessitate, pace it ad interim under a military governor, but he cannot appoint even a provisional civil governor till Congress has created the office and given him authority to fill it; far less can be legally give instructions to the civil governor as to the mode or manner of reconstructing the disorganized State, or decide who may or may not vote in the preliminary reorganization.
The Executive could do nothing of the sort, even in regard to a Territory never erected into a State.It belongs to Congress, not to the Executive, to erect Territorial or provisional governments, like those of Dacotah, Colorado, Montana, Nebraska, and New Mexico; and, Congress, not the executive, determines the boundaries of the Territory, passes the enabling act, and defines the electoral people, till the State is organized and able to act herself.Even Congress, in reconstructing and restoring to life and vigor in the Union a disorganized State, has nothing to say as to its boundaries or its electoral people, nor any right to interfere between parties in the State, to throw the reconstructed State into the hands of one or another party.All that Congress can insist on is, that the territorial people shall reconstruct with a government republican in form; that its senators and representatives in Congress, and the members of the State legislature, and all executive and judicial officers of the State shall be bound by oath or affirmation to support and defend the constitution of the United States.In the whole work the President has nothing to do with reconstruction, except to see that peace is preserved and the laws are fully executed.
It may be at least doubted that the Executive has power to proclaim amnesty and pardon to rebels after the civil war has ceased, and ceased it has when the rebels have thrown down their arms and submitted; for his pardoning power is only to pardon after conviction and judgment of the court: it is certain that he has no power to proscribe or punish even traitors, except by due process of law.When the war is over he has only his ordinary peace powers.He cannot then disfranchise any portion of the electoral people of a State that seceded, even though there is no doubt that they have taken part in the rebellion, and may still be suspected of disloyal sentiments.Not even Congress can do it, and no power known to the constitution till the State is reconstructed can do it without due process of law, except the national convention.Should the President do any of the things supposed, he would both abuse the power he has and usurp power that he has not, and render himself liable to impeachment.There are many things very proper, and even necessary to be done, which are high crimes when done by an improper person or agent.The duty of the President, when there are steps to be taken or things to be done which he believes very necessary, but which are not within his competency, is, if Congress is not in session, to call it together at the earliest practicable moment, and submit the matter to its wisdom and discretion.
It must be remembered that the late rebellion was not a merely personal but a territorial rebellion.In such a rebellion, embracing eleven States, and, excluding slaves, a population of at least seven millions, acting under an organized territorial government, preserving internal civil order, supporting an army and navy under regularly commissioned officers, and carrying on war as a sovereign nation--in such a territorial rebellion no one in particular can be accused and punished as a traitor.The rebellion is not the work of a few ambitious or reckless leaders, but of the people, and the responsibility of the crime, whether civil or military, is not individual, but common to the whole territorial people engaged in it; and seven millions, or the half of them, are too many to ban to exile, or even to disfranchise Their defeat and the failure of their cause must be their punishment.The interest of the country, as well the sentiment of the civilized world--it might almost be said the law of nations--demands their permission to return to their allegiance, to be treated according to their future merits, as an integral portion of the American people.
The sentiment of the civilized world has much relaxed from its former severity toward political offenders.It regards with horror the savage cruelties of Great Britain to the unfortunate Jacobites, after their defeat under Charles Edward, at Culloden, in , their barbarous treatment of the United Irishmen in , and her brutality to the mutinous Hindoos in -'; the harshness of Russia toward the insurgent Poles, defeated in their mad attempts to recover their lost nationality; the severity of Austria, under Haynau, toward the defeated Magyars.The liberal press kept up for years, especially in England and the United States, a perpetual howl against the Papal and Neapolitan governments for arresting and imprisoning men who conspired to overthrow them.Louis Kossuth was no less a traitor than Jefferson Davis, and yet the United States solicited his release from a Turkish prison, and sent a national ship to bring him hither as the nation's guest.The people of the United States have held from the first "the right of insurrection," and have given their moral support to every insurrection in the Old or New World they discovered, and for them to treat with severity any portion of the Southern secessionists, who, at the very worst, only acted on the principles the nation had uniformly avowed and pronounced sacred, would be regarded, and justly, by the civilized world as little less than infamous.
Not only the fair fame, but the interest of the Union forbids any severity toward the people lately in arms against the government.
