Page:The American Law Review, Volume 1, 1867.pdf/264

Rh It may be atrocious, subjectively considered, that those who participated in the rebellion, even though they may not have undergone trial and sentence for their treason, should now share in the government of the whole country, or should have rights in the government of the State which are denied to others who desired the success of the national cause, or that anybody should be willing to pay advances made to promote the rebellion by anybody else. It may be that there is no prospect that out of the resources of the Southern States a sufficient proportion will be devoted by the local authorities to the education of the negro population. It may be that by such possibilities the national credit is exposed to deterioration, and that the freedman cannot be as secure in the enjoyment of life, liberty, and property as others; and it may be, that, as a consequence, the expectations held out to "the national creditor and the national freedman" by the General Government, or by somebody else at the North, would be more or less exposed to disappointment.

But we may be fully satisfied of the rule of abstract justice in regard to these matters, and yet, unless these requirements can also be referred to the will of some actual person having the power to establish them, there is no law applicable to these matters. The ethical fitness of the rule which the radical view would include may be admitted in every particular. But the rule has not been shown to be connected with the will of any possessor of supreme power whatever. The radical view fails, therefore, so far as it proposes only to apply the constitution as law.

We do not care to inquire here, whether the radical policy is not to bring about this very connection between the measures desired and the will of a possessor of supreme political power, or whether those who support it do not assume that such a person is found in the General Government. But, by entertaining the possibility of this, the question of reconstruction becomes one respecting the Constitution as an object of political knowledge. This we shall consider hereafter. We have been, and are still, limiting ourselves to the consideration of the question as a legal one only; and have regarded the radical policy only as it may call for the application of existing law, and accept the written constitution as law, and the war as for the enforcement of that constitution and that law. We are taking up the radical view of the law enforced by the war.

The radical view, however, is not supposed to be based solely on