Footnote 93: (return) Ibid., pp. 361, 369.

Footnote 94: (return) Elliott's "Debates," vol. iii, p. 114.

Footnote 95: (return) Ibid., p. 71.

[pg 177]

CHAPTER XII.

Coercion the Alternative to Secession.-Repudiation of it by the Const.i.tution and the Fathers of the Const.i.tutional Era.-Difference between Mr. Webster and Mr. Hamilton.

The alternative to secession is coercion. That is to say, if no such right as that of secession exists-if it is forbidden or precluded by the Const.i.tution-then it is a wrong; and, by a well settled principle of public law, for every wrong there must be a remedy, which in this case must be the application of force to the State attempting to withdraw from the Union.

Early in the session of the Convention which formed the Const.i.tution, it was proposed to confer upon Congress the power "to call forth the force of the Union against any member of the Union failing to fulfill its duty under the articles thereof." When this proposition came to be considered, Mr. Madison observed that "a union of the States containing such an ingredient seemed to provide for its own destruction. The use of force against a State would look more like a declaration of war than an infliction of punishment, and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound. He hoped that such a system would be framed as might render this recourse unnecessary, and moved that the clause be postponed." This motion was adopted nem. con., and the proposition was never again revived.96 Again, on a subsequent occasion, speaking of an appeal to force, Mr. Madison said: "Was such a remedy eligible? Was it practicable?... Any government for the United States, formed on the supposed practicability of using force against the unconst.i.tutional proceedings of the States, would prove as visionary and fallacious as the government of Congress."97 Every proposition looking in any way to the same or a similar object was promptly rejected by the convention. George Mason, of Virginia, said of such a proposition: "Will not the citizens of the invaded State a.s.sist one another, until they rise as one man and shake off the Union altogether?"98

[pg 178]

Oliver Ellsworth, in the ratifying Convention of Connecticut, said: "This Const.i.tution does not attempt to coerce sovereign bodies, States, in their political capacity. No coercion is applicable to such bodies but that of an armed force. If we should attempt to execute the laws of the Union by sending an armed force against a delinquent State, it would involve the good and bad, the innocent and guilty, in the same calamity."99

Mr. Hamilton, in the Convention of New York, said: "To coerce the States is one of the maddest projects that was ever devised.... What picture does this idea present to our view? A complying State at war with a non-complying State: Congress marching the troops of one State into the bosom of another ... Here is a nation at war with itself. Can any reasonable man be well disposed toward a government which makes war and carnage the only means of supporting itself-a government that can exist only by the sword?... But can we believe that one State will ever suffer itself to be used as an instrument of coercion? The thing is a dream-it is impossible."100

Unhappily, our generation has seen that, in the decay of the principles and feelings which animated the hearts of all patriots in that day, this thing, like many others then regarded as impossible dreams, has been only too feasible, and that States have permitted themselves to be used as instruments, not merely for the coercion, but for the destruction of the freedom and independence of their sister States.

Edmund Randolph, Governor of Virginia, although the mover of the original proposition to authorize the employment of the forces of the Union against a delinquent member, which had been so signally defeated in the Federal Convention, afterward, in the Virginia Convention, made an eloquent protest against the idea of the employment of force against a State. "What species of military coercion," said he, "could the General Government adopt for the enforcement of obedience to its demands? Either an army sent into the heart of a delinquent State, or blocking up its ports. Have we lived to this, then, that, in order to suppress and exclude tyranny, it is necessary to render the most affectionate friends the most bitter [pg 179] enemies, set the father against the son, and make the brother slay the brother? Is this the happy expedient that is to preserve liberty? Will it not destroy it? If an army be once introduced to force us, if once marched into Virginia, figure to yourselves what the dreadful consequence will be: the most lamentable civil war must ensue."101

We have seen already how vehemently the idea of even judicial coercion was repudiated by Hamilton, Marshall, and others. The suggestion of military coercion was uniformly treated, as in the above extracts, with still more abhorrence. No principle was more fully and firmly settled on the highest authority than that, under our system, there could be no coercion of a State.

Mr. Webster, in his elaborate speech of February 16, 1833, arguing throughout against the sovereignty of the States, and in the course of his argument sadly confounding the ideas of the Federal Const.i.tution and the Federal Government, as he confounds the sovereign people of the States with the State governments, says: "The States can not omit to appoint Senators and electors. It is not a matter resting in State discretion or State pleasure.... No member of a State Legislature can refuse to proceed, at the proper time, to elect Senators to Congress, or to provide for the choice of electors of President and Vice-President, any more than the members can refuse, when the appointed day arrives, to meet the members of the other House, to count the votes for those officers and ascertain who are chosen."102 This was before the invention in 1877 of an electoral commission to relieve Congress of its const.i.tutional duty to count the vote. Mr. Hamilton, on the contrary, fresh from the work of forming the Const.i.tution, and familiar with its principles and purposes, said: "It is certainly true that the State Legislatures, by forbearing the appointment of Senators, may destroy the national Government."103

It is unnecessary to discuss the particular question on which these two great authorities are thus directly at issue. I do not contend that the State Legislatures, of their own will, have a [pg 180] right to forego the performance of any Federal duty imposed upon them by the Const.i.tution. But there is a power beyond and above that of either the Federal or State governments-the power of the people of the State, who ordained and established the Const.i.tution, as far as it applies to themselves, reserving, as I think has been demonstrated, the right to rea.s.sume the grants of power therein made, when they deem it necessary for their safety or welfare to do so. At the behest of this power, it certainly becomes not only the right, but the duty, of their State Legislature to refrain from any action implying adherence to the Union, or partnership, from which the sovereign has withdrawn.

Footnote 96: (return) "Madison Papers," pp. 732, 761.

Footnote 97: (return) Ibid., p. 822.

Footnote 98: (return) Ibid., p. 914.

Footnote 99: (return) Elliott's "Debates," vol. ii, p. 199.

Footnote 100: (return) Ibid., pp. 232, 233.

Footnote 101: (return) Elliott's "Debates," vol. iii, p. 117.

Footnote 102: (return) "Congressional Debates," vol. ix, Part I, p. 566.

Footnote 103: (return) "Federalist," No. lix.

CHAPTER XIII.

Some Objections considered.-The New States.-Acquired Territory.-Allegiance, false and true.-Difference between Nullification and Secession.-Secession a Peaceable Remedy.-No Appeal to Arms.-Two Conditions noted.

It would be only adding to a superabundance of testimony to quote further from the authors of the Const.i.tution in support of the principle, unquestioned in that generation, that the people who granted-that is to say, of course, the people of the several States-might resume their grants. It will require but few words to dispose of some superficial objections that have been made to the application of this doctrine in a special case.

It is sometimes said that, whatever weight may attach to principles founded on the sovereignty and independence of the original thirteen States, they can not apply to the States of more recent origin-const.i.tuting now a majority of the members of the Union-because these are but the offspring or creatures of the Union, and must of course be subordinate and dependent.

This objection would scarcely occur to any instructed mind, though it may possess a certain degree of specious plausibility for the untaught. It is enough to answer that the entire equality of the States, in every particular, is a vital condition of their union. Every new member that has been admitted into [pg 181] the partnership of States came in, as is expressly declared in the acts for their admission, on a footing of perfect equality in every respect with the original members. This equality is as complete as the equality, before the laws, of the son with the father, immediately on the attainment by the former of his legal majority, without regard to the prior condition of dependence and tutelage. The relations of the original States to one another and to the Union can not be affected by any subsequent accessions of new members, as the Const.i.tution fixes those relations permanently, and furnishes the normal standard which is applicable to all. The Boston memorial to Congress, referred to in a foregoing chapter, as prepared by a committee with Mr. Webster at its head, says that the new States "are universally considered as admitted into the Union upon the same footing as the original States, and as possessing, in respect to the Union, the same rights of sovereignty, freedom, and independence, as the other States."

But, with regard to States formed of territory acquired by purchase from France, Spain, and Mexico, it is claimed that, as they were bought by the United States, they belong to the same, and have no right to withdraw at will from an a.s.sociation the property which had been purchased by the other parties.

Happy would it have been if the equal rights of the people of all the States to the enjoyment of territory acquired by the common treasure could have been recognized at the proper time! There would then have been no secession and no war.

As for the sordid claim of ownership of States, on account of the money spent for the land which they contain-I can understand the ground of a claim to some interest in the soil, so long as it continues to be public property, but have yet to learn in what way the United States ever became purchaser of the inhabitants or of their political rights.

Any question in regard to property has always been admitted to be matter for fair and equitable settlement, in case of the withdrawal of a State.

The treaty by which the Louisiana territory was ceded to the United States expressly provided that the inhabitants thereof should be "admitted, as soon as possible, according to the principles [pg 182] of the Federal Const.i.tution, to the enjoyment of all the rights, advantages, and immunities of citizens of the United States."104 In all other acquisitions of territory the same stipulation is either expressed or implied. Indeed, the denial of the right would be inconsistent with the character of American political inst.i.tutions.

Another objection made to the right of secession is based upon obscure, indefinite, and inconsistent ideas with regard to allegiance. It a.s.sumes various shapes, and is therefore somewhat difficult to meet, but, as most frequently presented, may be stated thus: that the citizen owes a double allegiance, or a divided allegiance-partly to his State, partly to the United States: that it is not possible for either of these powers to release him from the allegiance due to the other: that the State can no more release him from his obligations to the Union than the United States can absolve him from his duties to his State. This is the most moderate way in which the objection is put. The extreme centralizers go further, and claim that allegiance to the Union, or, as they generally express it, to the Government-meaning thereby the Federal Government-is paramount, and the obligation to the State only subsidiary-if, indeed, it exists at all.

This latter view, if the more monstrous, is at least the more consistent of the two, for it does not involve the difficulty of a divided allegiance, nor the paradoxical position in which the other places the citizen, in case of a conflict between his State and the other members of the Union, of being necessarily a rebel against the General Government or a traitor to the State of which he is a citizen.

As to true allegiance, in the light of the principles which have been established, there can be no doubt with regard to it. The primary, paramount allegiance of the citizen is due to the sovereign only. That sovereign, under our system, is the people-the people of the State to which he belongs-the people who const.i.tuted the State government which he obeys, and which protects him in the enjoyment of his personal rights-the people who alone (as far as he is concerned) ordained and established [pg 183] the Federal Const.i.tution and Federal Government-the people who have reserved to themselves sovereignty, which involves the power to revoke all agencies created by them. The obligation to support the State or Federal Const.i.tution and the obedience due to either State or Federal Government are alike derived from and dependent on the allegiance due to this sovereign. If the sovereign abolishes the State government and ordains and establishes a new one, the obligation of allegiance requires him to transfer his obedience accordingly. If the sovereign withdraws from a.s.sociation with its confederates in the Union, the allegiance of the citizen requires him to follow the sovereign. Any other course is rebellion or treason-words which, in the cant of the day, have been so grossly misapplied and perverted as to be made worse than unmeaning. His relation to the Union arose from the membership of the State of which he was a citizen, and ceased whenever his State withdrew from it. He can not owe obedience-much less allegiance-to an a.s.sociation from which his sovereign has separated, and thereby withdrawn him.

Every officer of both Federal and State governments is required to take an oath to support the Const.i.tution, a compact the binding force of which is based upon the sovereignty of the States-a sovereignty necessarily carrying with it the principles just stated with regard to allegiance. Every such officer is, therefore, virtually sworn to maintain and support the sovereignty of all the States.

Military and naval officers take, in addition, an oath to obey the lawful orders of their superiors. Such an oath has never been understood to be eternal in its obligations. It is dissolved by the death, dismissal, or resignation of the officer who takes it; and such resignation is not a mere optional right, but becomes an imperative duty when continuance in the service comes to be in conflict with the ultimate allegiance due to the sovereignty of the State to which he belongs.

A little consideration of these plain and irrefutable truths would show how utterly unworthy and false are the vulgar taunts which attribute "treason" to those who, in the late secession of the Southern States, were loyal to the only sovereign [pg 184] ent.i.tled to their allegiance, and which still more absurdly prate of the violation of oaths to support "the Government," an oath which n.o.body ever could have been legally required to take, and which must have been ignorantly confounded with the prescribed oath to support the Const.i.tution.

Nullification and secession are often erroneously treated as if they were one and the same thing. It is true that both ideas spring from the sovereign right of a State to interpose for the protection of its own people, but they are altogether unlike as to both their extent and the character of the means to be employed. The first was a temporary expedient, intended to restrain action until the question at issue could be submitted to a convention of the States. It was a remedy which its supporters sought to apply within the Union; a means to avoid the last resort-separation. If the application for a convention should fail, or if the State making it should suffer an adverse decision, the advocates of that remedy have not revealed what they proposed as the next step-supposing the infraction of the compact to have been of that character which, according to Mr. Webster, dissolved it.

Secession, on the other hand, was the a.s.sertion of the inalienable right of a people to change their government, whenever it ceased to fulfill the purposes for which it was ordained and established. Under our form of government, and the cardinal principles upon which it was founded, it should have been a peaceful remedy. The withdrawal of a State from a league has no revolutionary or insurrectionary characteristic. The government of the State remains unchanged as to all internal affairs. It is only its external or confederate relations that are altered. To term this action of a sovereign a "rebellion," is a gross abuse of language. So is the flippant phrase which speaks of it as an appeal to the "arbitrament of the sword." In the late contest, in particular, there was no appeal by the seceding States to the arbitrament of arms. There was on their part no invitation nor provocation to war. They stood in an att.i.tude of self-defense, and were attacked for merely exercising a right guaranteed by the original terms of the compact. They neither tendered nor accepted any challenge to the wager of [pg 185] battle. The man who defends his house against attack can not with any propriety be said to have submitted the question of his right to it to the arbitrament of arms.

Two moral obligations or restrictions upon a seceding State certainly exist: in the first place, not to break up the partnership without good and sufficient cause; and, in the second, to make an equitable settlement with former a.s.sociates, and, as far as may be, to avoid the infliction of loss or damage upon any of them. Neither of these obligations was violated or neglected by the Southern States in their secession.

Footnote 104: (return) Ray's "Louisiana Digest," vol. i, p. 24.

CHAPTER XIV.

Early Foreshadowings.-Opinions of Mr. Madison and Mr. Rufus King.-Safeguards provided.-Their Failure.-State Interposition.-The Kentucky and Virginia Resolutions.-Their Endors.e.m.e.nt by the People in the Presidential Elections of 1800 and Ensuing Terms.-South Carolina and Mr. Calhoun.-The Compromise of 1833.-Action of Ma.s.sachusetts in 1843-'45.-Opinions of John Quincy Adams.-Necessity for Secession.

From the earliest period, it was foreseen by the wisest of our statesmen that a danger to the perpetuity of the Union would arise from the conflicting interests of different sections, and every effort was made to secure each of these cla.s.ses of interests against aggression by the other. As a proof of this, may be cited the following extract from Mr. Madison's report of a speech made by himself in the Philadelphia Convention on the 30th of June, 1787:

"He admitted that every peculiar interest, whether in any cla.s.s of citizens or any description of States, ought to be secured as far as possible. Wherever there is danger of attack, there ought to be given a const.i.tutional power of defense. But he contended that the States were divided into different interests, not by their difference of size, but by other circ.u.mstances; the most material of which resulted from climate, but princ.i.p.ally from the effects of their having or not having slaves. These two causes concurred in forming the great division of interests in the [pg 186] United States. It did not lie between the large and small States; it lay between the Northern and Southern; and, if any defensive power were necessary, it ought to be mutually given to these two interests."105

Mr. Rufus King, a distinguished member of the Convention from Ma.s.sachusetts, a few days afterward, said, to the same effect: "He was fully convinced that the question concerning a difference of interests did not lie where it had hitherto been discussed, between the great and small States, but between the Southern and Eastern. For this reason he had been ready to yield something, in the proportion of representatives, for the security of the Southern.... He was not averse to giving them a still greater security, but did not see how it could be done."106

The wise men who formed the Const.i.tution were not seeking to bind the States together by the material power of a majority; nor were they so blind to the influences of pa.s.sion and interest as to believe that paper barriers would suffice to restrain a majority actuated by either or both of these motives. They endeavored, therefore, to prevent the conflicts inevitable from the ascendancy of a sectional or party majority, by so distributing the powers of government that each interest might hold a check upon the other. It was believed that the compromises made with regard to representation-securing to each State an equal vote in the Senate, and in the House of Representatives giving the States a weight in proportion to their respective population, estimating the negroes as equivalent to three fifths of the same number of free whites-would have the effect of giving at an early period a majority in the House of Representatives to the South, while the North would retain the ascendancy in the Senate. Thus it was supposed that the two great sectional interests would be enabled to restrain each other within the limits of purposes and action beneficial to both.

The failure of these expectations need not affect our reverence for the intentions of the fathers, or our respect for the means which they devised to carry them into effect. That they were [pg 187] mistaken, both as to the maintenance of the balance of sectional power and as to the fidelity and integrity with which the Congress was expected to conform to the letter and spirit of its delegated authority, is perhaps to be ascribed less to lack of prophetic foresight, than to that over-sanguine confidence which is the weakness of honest minds, and which was naturally strengthened by the patriotic and fraternal feelings resulting from the great struggle through which they had then but recently pa.s.sed. They saw, in the sufficiency of the authority delegated to the Federal Government and in the fullness of the sovereignty retained by the States, a system the strict construction of which was so eminently adapted to indefinite expansion of the confederacy as to embrace every variety of production and consequent diversity of pursuit. Carried out in the spirit in which it was devised, there was in this system no element of disintegration, but every facility for an enlargement of the circle of the family of States (or nations), so that it scarcely seemed unreasonable to look forward to a fulfillment of the aspiration of Mr. Hamilton, that it might extend over North America, perhaps over the whole continent.