title can be derived, it would be competent for the Confederacy to cede Texas to the new Emperor of Mexico or to Napo leon, and neither of those monarchs, in accepting the grant, would violate the rules of international law. Rights which can be acquired by conquest can also be acquired by grant, and by setting up the former title to the region reoccupied by our arms, we estop ourselves to deny the validity of any cession by which the confederate government may see fit to purchase recognition and aid abroad.

It is well settled in the law of nations that when a state is dismembered or destroyed, and its territory distributed to other powers, the new sovereign takes the title cum onere. In other words, if a state wrest territory from a neighbor, the public debt of the latter, which was a charge upon the district taken from him, becomes the debt of the conqueror. If he destroy the whole state, and annex the territory to his own dominions, he is bound to provide for its whole debt. This principle was remarkably illustrated in the great changes in the map of Europe which took place during the career of the first Napoleon. When France annexed to herself Geneva and the petty Italian States she assumed their debt. When the little princes of Germany were mediatized, and the confederation of the Rhine was formed, their debts were distributed among the states constructed out of their dominions. The King of Westphalia received his kingdom upon the same terms. In the peace of Tilsit, and the treaty of Paris, the principle was recognized. And when the allied sovereigns at Paris and Vienna reconstructed Europe on the theory that the changes made by Napoleon were the acts of a usurper, the public debt contracted by him and by the monarchs whom he created was recognized and provided for. More recently, at the conclusion of the last Italian war, this principle was applied in the extension of the dominion of Sardinia and France. In many of these cases states were destroyed, dismembered, or reconstructed by the purest exercise of

the right of conquest, so that they furnish a striking and conclusive illustration of the rule.

If, therefore, we claim that, in subduing the rebellion and recovering our own territory, we destroy the States, and hold their territory by the right of conquest, we shall become liable for a vast debt. In the first place, there will be the debt of the States contracted before the rebellion. To this must be added the debt contracted by them to carry on the war, and finally the debt of the confederate government. We can evade the former liability only by repudiating the principle, which is so well settled in public law. The war debts of the State and confederate governments would present a somewhat different question. It would be urged in our behalf that they were illegally contracted, and therefore void. But it would be answered to this argument that, by setting up a title by conquest, we had recognized the independence of the States as existing before we conquered them. If they are now independent enough to be conquered, they are certainly competent to contract debts to protect that independence.

There can be little doubt that the foreign holders of State and confederate bonds would press their claims upon the government of the United States. They would urge in their behalf the precedents furnished by the treaties mentioned above, and they would be sustained in their position by the publicists of Europe. It would be difficult for us to repudiate a principle so well settled and so just. To admit it would add an insufferable burden to the liabilities of the country.

There would be no escape from the dilemma but a war, which might prove a greater calamity than either.

In truth, the project of holding the South as conquered territory, if adopted by the Government, could hardly fail to give rise to foreign intervention. It would be difficult for England and France to resist the demand made upon them by those of their citizens who

hold the Southern debt. They might well represent to the United States that they could not permit the annihilation of governments indebted to their subjects, whose interests they are bound to protect. To these material reasons they would add considerations similar to those so often addressed to Austria upon the occupation of Northern Italy. They would point out that the attempt to hold a territory, jure belli, against the will of its inhabitants, and to govern it as a conquest, is a standing menace to the tranquillity of other states. They would remind us of the well-known antecedents of our own government upon this point, and they would observe that it has been the effort of European diplomacy for the past twenty years to put an end to such occupations. In a remonstrance of this character they would have precedent and principle on their side, and there can be little doubt that they would proceed to enforce their views by military measures.

Such are some of the objections to the reasoning which holds the recovered districts of the South to be conquered territory. It is false in theory and dangerous in practice. It degrades the war for the Union into a war of subjugation. It contradicts the action of every department of the Government since the war began. It menaces us with an enormous debt, and affords to foreign powers a fair pretext to intervene against us. Other difficulties might be suggested. But enough has been already said to point out the mischief which this policy, if adopted, will produce.

The President's policy of reconstruction recognizes the States as existing, but disorganized. He regards their governments as 'subverted,' and announces the purpose to protect and defend new governments for them when ever they shall be able to comply with his terms. In appointing military governors for Tennessee, North-Carolina, and Louisiana, he has followed the precedent of California cited above. And it is manifest that he, as commander-in

chief, must decide when those officers shall cease to perform their functions. But it is far from being true that in exercising the right to decide this, he is subject to no restriction. We have already seen the clear and simple rule which can be deduced from well-settled principles. It remains to contrast with that the singular scheme which is announced to the country in the amnesty proclamation—a scheme as novel as it is remarkable for the broad claim of executive power which it embodies.

The President assumes that it is his office to determine which is the lawful government of a State. This is, in a certain sense, true. It was held by the Supreme Court of the United States, in the case which arose out of the Dorr rebellion, that that tribunal was bound by the recognition of the charter government by the executive department. But it does not follow that every such recognition is lawful. In certain stated cases the question may come before the Presi dent, and must be settled by him. In others it may arise in the halls of Congress, as in passing upon the creden tials of a member elect. Or it may be first presented before a judicial tribunal. But wherever it comes up, it must be decided according to law. To suppose that there is no rule for such cases would leave the question to the caprice of the different departments of the gov ernment, which might apply very different rules to cases alike in principle. The President indeed seems to contemplate some such conflict between himself and the houses of Congress, for he carefully excepts from his promise of recog nition the question of the right to be represented, which he holds to be a question for the houses themselves. It might thus happen that a half dozen State governments should spring up in the South, protected by federal arms and federal resources, which Congress might yet refuse to recognize. Now it is precisely this state of things which the Supreme Court held to be impossible, in the case of the Dorr rebellion. They

deemed the decision of the executive binding upon them; and if upon courts, why not upon Congress sitting to adjudicate upon the rights of a claimant of a seat? It was not held in that case that the President's recognition made the charter government legal; but it was assumed that he had recognized it because it was in fact legal. If he should choose to recognize a government based upon usurpation, it may be that the court would be bound by his act, but the act itself would still be a violation of his official duty. The country has not yet forgotten the indignation with which Mr. Buchanan was denounced when he recognized officers in Kansas alleged to have been chosen by fraudulent voting.

It is apparent then that, in recognizing a State government, the President does not create. He simply determines whether an organization is legally entitled to be considered a government. Let us then see what evidence he requires to satisfy him that the claimants are the duly elected officers of a State.

He does not require any evidence that any considerable part of the territory of the State is reoccupied by our arms. It is plain that he regards it as immaterial whether the new government can govern in the whole, in half, or in a mere fragment of its territorial jurisdiction. He considers a vote of one tenth of that cast at the last Presidential election sufficient to prove that the rebel occupation and government has ceased. And he holds that that proportion of the voting population can exercise the sovereign power vested in the people of the State. This proportion appears to be arbitrarily chosen. There seems to be no reason why it should not be one fifth or one fiftieth. Had he fixed upon one half, there would have been a seeming though unreal recognition of the right of a majority to govern. As it is, there is no apparent principle upon which the

rule is based.

It is sufficiently difficult to understand whence the President derives the

right to establish so singular a test for a State government. But this is the least remarkable part of his plan. He requires of this fraction of the people which he regards as vested with the sovereignty of a State, an oath, not prescribed by any law, before they can exercise that sovereignty. This oath is not simply an oath of allegiance. Such an oath, if exacted by Congress, might be regarded as a ceremony qualifying the person taking it to act as an elector, and could not be considered an unreasonable preliminary to the surrender of the temporary authority of the military governor. He demands, in addition to this, an oath to support certain of his measures, the legality of which has been denied, and the policy of which is gravely doubted. Nor is this all. He requires that the State governments thus created shall not 'contravene' the policy of those measures. In other words, he ingrafts upon the State constitutions a part of the acts of his administration, and that part concerning which he himself seems to have most doubted, and which has called forth the greatest opposition in the country.

It is one of the most surprising features of this political epoch, that we are obliged to seriously discuss such claims of executive power. If the President may impose these terms upon the return of States to their accustomed order, he may impose any which may occur to him. So far as any legal objections are concerned, he might equally well require an oath of allegiance to himself as a qualification for voting. He assumes to exercise over States which he admits to exist, a vastly greater power than Congress ever sought to wield over territories. If the precedents afforded by Florida, Louisiana, and California are of any significance, the people inhabiting territory ceded to us by foreign powers are more free to establish their own governments than are the people of the States of Louisiana, Florida, or Tennessee. There are those who hold that the people of the States occupied by the

voting population equal to about one fifty-sixth of the vote cast in the Northern States alone, in 1860, or about one third less than that cast in the city of New-York alone. The representatives of sixty-seven thousand five hundred voters would wield one quarter of the power needful to choose the chief magistrate of thirty-one millions of people.

It is unnecessary to work out in detail the monstrous inequalities to which the complete success of Mr. Lincoln's scheme would give rise. It is needless to characterize the scheme itself. If it be, as he says, the best which the President can devise, it is the most striking illustration in all history of the cynical aphorism 'with how little wisdom the world is ruled.' But while this plan is utterly indefensible in theory and practice, it is hardly open to the accusation of intentional wrong. The design to subvert the government would be clothed in craftier guise. The palpable absurdity of the policy seems to acquit its author of dishonest purposes.

Such are some of the legal and practical difficulties which belong to the leading plans of reconstruction which have been discussed. They are not all. The pages of a number of this magazine would not suffice to set forth in full the objections to which they are liable. The error which lies at their root is, that they attempt to reorganize State governments in accordance with the will of the Federal Government, instead of in obedience to the wishes of their people. In our form of political society this is simply impossible. Establish what conditions you will for pacification, create what institutions you choose, they must fall with the withdrawal of the power which crea

ted them, unless they have the assent of the people. It is not only a violation of the principles of the Constitution to seek to impose laws upon an unwilling State. It is a blunder in statesmanship, a confession of incapacity to administer the American system of government. A republican statesman will strive to direct the people against the evils which he seeks to remove. An arbitrary ruler reforms by force, and compels acquiescence in his policy by armed power.

There seems but one way to cure the disorder of the State. So long as armed rebellion excludes us from our rightful jurisdiction, the strong hand of military power must defend our rights and assail the organization which menaces the integrity of our empire. The resources of the United States, if wisely used, are sufficient to conquer the armies of the South, and to restore the flag to its ancient limits. As we win back State after State, their people must be permitted to set in motion the governments which have been subverted. If they find themselves free to exercise the right of self-government, without interference from the United States, there is no danger that they will refuse to avail themselves of so fortunate an opportunity, or to adopt reforms required by the spirit of the age. But if they are at liberty to govern themselves in such way only as a majority in the North may see fit, it will be vain to expect a lasting peace. We may be able to hold them in subjection, but in governing them by force we shall cease to be a republic. There is always war, said a great writer, between the conquerors and the conquered. Etiam in pace, belli tamen jura servantur.'