THE GREAT TRUTH ESTABLISHED THAT THE CONSTITUTION IS A COMPACT BETWEEN SOVEREIGN STATES THE GOVERNMENT OF THE UNITED STATES IS STRICTLY A FEDERAL GOVERNMENT EACH STATE FOR ITSELF HAS THE RIGHT TO JUDGE OF INFRACTIONS AS WELL AS THE MODE AND MEASURE OF REDRESS THE RIGHT OF A STATE TO WITHDRAW FROM THE UNION UPON BREACH OF THE COMPACT BY OTHER PARTIES TO IT SPRINGS FROM THE VERY NATURE OF THE GOVERNMENT THE COMPACT WAS BROKEN BY THIRTEEN STATES OF THE UNION WEBSTER, STORY, TUCKER, RAWLE, DE TOCQUEVILLE, WADE, GREELEY AND LINCOLN UPON THIS RIGHT TO WITHDRAW OR SECEDE IN SUCH CASE.
MR. STEPHENS. We are then, it seems, by the assent of all, brought to the conclusion, that the Constitution of the United States was formed by separate, distinct, and Sovereign States. This is the conclusion to which we are all, however willingly or reluctantly, compelled to come at last, not only by the testimony of witnesses of the highest order, and by the decisions of the judicial tribunal of the highest authority, the Supreme Court of the United States, Chief Justice Marshall at its head, but by the everlasting records themselves, by all the great facts of our history, which can never be obliterated or effaced.
We have seen that the Union existing between these States, anterior to the formation of the new Constitution, was a Compact, or as Judge Marshall expressed it, nothing but "a league" between Sovereign States.
We have seen that in remodelling the Articles of the old Confederation, it was not the object, or design of any of the parties, to change the nature or character of that Union; but only to make it more perfect, by an enlargement of the delegation of powers conferred upon the Government thereby established with such changes in its organic structure, touching the mode and manner of exercising them, as might be thought best to attain the object of their delegation.
We have also seen, both by the instrument itself, and by the understanding of all the parties at the time; that this was what was done by the adoption of the present Constitution, and nothing more. In other words we have seen, and come to the conclusion from a review of all the facts, that the Constitution, as the Articles of Confederation, is a Compact between "the Sovereign members of the Union" under it, as General Jackson styles the States.
With these essential points first settled, beyond dispute or question, we are now prepared to go a step further and approach the end of our immediate and important inquiry, touching the nature and character of the Government, so formed and constituted, and to see clearly where, under it, Paramount or ultimate Sovereignty necessarily resides.
That the Government of the United States is a Confederated Republic, or Confederacy, of some sort, and not a Consolidated Government, is now no longer a matter of investigation or question. Whatever other characteristics. peculiar or anomalous, it possesses, it is beyond doubt, cavil, or dispute, Federal in its nature and character.
That it presents, in its structure, several new features, wholly unknown in all former Confederacies of which the world's history furnishes examples, all admit. This was well understood at the time of its formation, as well as ever since. No exactly similar model is to be found amongst all the nations of the earth, or in the annals of mankind, in the past or present. But we have seen the model which was in the minds of its authors at the time it was framed, and which formed the basis of their conceptions and designs. That was the model of a Confederated Republic given by Montesquieu. This model was not only in the minds of the Convention which framed the Constitution, but in the minds of all the Conventions of the States which adopted it. This has been shown from the proceedings of those bodies. That model exhibited several small Republics so united into a larger one, for foreign and inter State purposes, as to present themselves in joint Combination to the world, as one Nation, while as between themselves each one retained unimpaired its own inherent, innate Sovereignty and Nationality.* This was the ideal before all the States of this Union, at the time of the formation of the Constitution. According to this model, which was as far as the wisdom of men then had gone in forming Governments for the preservation of free institutions, and to prevent the principle of universal Monarchical Rule, the action of the larger and conventional State or Nation, so formed for external or foreign purposes, was confined in its internal operations exclusively to the integral members of the Union or Confederation. No power was conferred upon this joint agent of all to interfere, in any way or under any circumstances, with the individual citizens of the separate Republics.
* Montesquieu, vol. i, Book ix, ch. i, p 154.
But a new idea had for sometime been in embryo. It was then struggling into birth. Jefferson's brain had first felt the impulse of its quickening life. The framers of the Constitution saw its star, as the wise men of the
East saw the star of Bethlehem. They did homage to it, even in the manger, where it then lay in its swaddlings, as the political Messiah just born for the regeneration of the down trodden Peoples of the Earth. That idea was to apply a new principle to the model before them,, to improve upon it by a division of its Powers, and by extending its operations without changing the basis upon which it was formed. It was simply for these separate Republics: to empower their joint agent, the artificial or conventional Nation of their own creation, to act, in the discharge of its limited functions, directly upon their citizens respectively, and to organize these functions into separate; departments, Executive, Judicial and Legislative, as their own separate systems were organized. This, it is true, was a new and a grand development in the progress of the science of Government, which, of all sciences, unfortunately for mankind, is the slowest in progress.
But this was the idea this the design, and this was just what was done.
The great object was to obviate the difficulties and the evils, so often arising in all former Federal Republics, of resorting to force against separate members, when derelict in the discharge of their obligations under the terms and covenants of their Union. Difficulties of this sort had already been felt under their own Confederation, which they were convened to remedy. Some States had failed to meet the requisitions upon them for their quota of taxes to pay the common expenses, and to sustain the common public credit. By the laws of Nations, the Confederates of States thus derelict, had the clear right to compel a fulfilment of their solemn obligations, though the very act of doing it would necessarily have put an end to the Confederation. The question of coercion in the collection of unpaid requisitions, on the part of some of the States, had been raised during the old Confederation. Jefferson saw that this would be necessary if that system could not be amended. All, however, saw that a resort to force, in such cases, would result in war which might become general, and the loss of the liberties of all might, perhaps, ensue. This newly born idea presented an easy solution of the whole vexed question. It was adopted, by the Parties agreeing in the Compact itself, that in the collection of the taxes for the common defence and general welfare, and in some other cases, this common agent of all the members of the Confederacy, should act directly upon the individual citizens of each, within the sphere of its specific and limited powers, and with a complete machinery of functions, for this purpose, similar to their own. This is the whole of it.
It is this exceedingly simple, but entirely new feature, in Confederated Republics, which has so puzzled and bewildered so many in this as in other countries, as to the nature and character of the United States Government. It is this feature, in the American plan, which struck the learned and philosophic De Tocqueville, who, of all foreigners, seems most deeply to have studied our institutions, and to have become most thoroughly imbued with their spirit and principles.
On this point he says:
"This Constitution, which may at first be confounded with the Federal Constitutions which have preceded it. rests, in truth, upon a wholly novel theory, which may be considered as a great discovery in modern political science. In all the Confederations which preceded the American Constitution of 1789, the allied States, for a common object, agreed to obey the injunctions of a Federal Government; but they reserved to themselves the right of ordaining and enforcing the execution of the laws of the Union. The American States, which combined, in 1789, agreed, that the Federal Government should not only dictate, but should execute its own enactments. In both cases, the right is the same, but the exercise of the right is different; and this difference produced the most momentous consequences."*
* De Tocqueville's Democracy in America, vol. i, p. 198.
In all this he is perfectly right. The principle thus introduced was a new one. It was unknown to the old world. Unknown to Plato, Aristotle, Cicero, Grotius, Puffendorf, or Montesquieu. It was, indeed, a grand discovery. The honor, the glory of this discovery, was reserved for this Continent, and for those who had first proclaimed the great truth that all "Governments derive their just powers from, the consent of the governed." From this simple discovery, did, indeed, follow the most momentous consequences. From it sprang that unparalleled career of prosperity and greatness which marked our history under its beneficent operations for nearly three quarters of a century!
These momentous consequences in rapid growth and development, and the unsurpassed happiness and prosperity, resulted from this simple, but wonderful improvement made by the Fathers, in 1787, upon Montesquieu's model of a Confederated Republic. This new feature, however, in the workmanship of their master-hands has been what has caused so much confusion in the minds of many as so the nature and character of the Government. They do not seem to understand how this new feature is consistent with a strictly Federal System. The difficulty with them seems to arise entirely from the fact, that none such ever existed before. They have no specific name for this new development or discovery in the science of Government. Hence* the great variety of sentiments in the several State Conventions, some calling it a consolidated Government, and some of its friends styling it a mixed Government partly Federal and partly National Federal in its formation and National in its operation. Of this class was Mr. Madison. And hence, also, some in later times have styled it a Compositive Government.*
* Wheaton's Elements of International Law, p. 12.
A little analysis and generalization may enable us to bring order out of this confusion. In one sense it is a National Government. In this, however, there is nothing new or peculiar in the Government established by the New Constitution. In the same sense in which it is National, and none other, was the old Confederation National. The United States, under that, we have seer was called and properly called a Nation, for certain purposes. For the same purposes, and in the same sense, and none other, may they now properly be called a Nation. Their present Government is National in the same sense in which the Governments of all Confederated Republics are National, and none other. The very object in forming all Confederated Republics is to create a new and an entirely artificial or conventional State or Nation, which springs from their joint Sovereignties, and which has no existence apart from them, and which is but the Corporate Agent of all those Sovereignties creating it, and through which alone they are to be known to Foreign Powers, during the continuance of the Confederation. This Conventional Nation is but a Political Corporation. It has no original or inherent powers whatever. All its powers are derived all are specific all are limited all are delegated all may be resumed all may be forfeited by misuser, as well as non-user. It is created by the separate Republics forming it. They are the Creators. It is but their Creature subject to their will and control. They barely delegate the exercise of certain Sovereign powers to their common agent, retaining to themselves, separately, all that absolute, ultimate Sovereignty, by which this common agent, with all its delegated powers, is created. This is the basis, and these are the principles, upon which all Confederated Republics are constructed. The new Conventional State or Nation thus formed is brought into being by the will of the several States or Nations forming it, and by the same will it may cease to exist, as to any or all of them, while the separate Sovereignties of its Creators may survive, and live on forever.
A Government so constructed, being itself founded on Compact between distinct Sovereign States, is necessarily Federal in its nature, while it at the same time gives lone national character and position amongst the other Powers of the world, to all the Parties constituting it! In this sense, all Confederated Governments are both Federal *and National. The Government of the United States is no exception to the rule. In this sense, Washington, Jefferson, and Jackson, spoke of the United States under the Constitution as a Nation, as well as a Confederated Republic. In this sense, it is properly styled by all a Nation. This was the idea symbolized in the motto, "E pluribus unum."* One from many. That is, one State or Nation one Federal Republic from many Republics, States, or Nations. This is what is meant by the Nation when properly applied to the United States. It is not the whole people, in the aggregate constituting one body united on the principles of a social Compact, but that conventional State which springs from and is dependent upon the several State Sovereignties creating it, as in all other cases of Confederated Republics. The bare fact that it operates on the individual citizens of the several States, in specified cases, and has in its organization the requisite functions for this purpose, does not change, in the least, the nature of the Government, if this arrangement is agreed upon in the Compact between the Sovereign Parties to it. That depends entirely upon the great fact which we were so long in establishing, that the Government itself, with all its powers as well as machinery, was founded upon Compact between separate and distinct Sovereign States. If this be so, as has been conclusively established, then the Government, so constructed, must of necessity be Federal, and purely Federal, in its character. This character is not changed by the adoption of any machinery, for its practical workings, which may be thus agreed upon. For it is perfectly competent for independent and Sovereign Nations, by treaty or compact, to make any agreement they please touching the enforcement of such treaties, or the terms of such compacts, over their respective citizens or subjects, and by such agencies as they may please jointly to agree upon, without the least impairment whatever of their respective Sovereignties.
* "E PLURIBUS UNUM, [L.] One composed of many; the motto of the United States, consisting of many States confederated." Noah Webster, LL,. D.
"E PLURIBUS UNUM, [L., one of many.] The motto of the United States; the allusion being to the formation of one Federal Government out of several independent States." Joseph E. Worcester, LL. D.
The great question, therefore, in this investigation was, is the Constitution a Compact between Sovereignties? If so, the Government established by it is purely, entirely, and thoroughly Federal in its nature, and no more National in any sense than all former Federal Republics.
All those features in its operations directly upon individuals, instead of upon States, which give rise to ideas of Nationality, or of its being of a mixed nature, spring themselves from the Federal Compact. Ours, therefore, is a pure Confederated Republic, upon the model of Montesquieu, with the new principle referred to incorporated into the system, without changing, in the least, the basis of its organization at least, so thought the Fathers by whom it was established. It is true we have as yet no apt distinctive word in political nomenclature, by which to characterize this specific distinctive improvement in the purely Federal system. This only shows the barrenness of language. Actualities often precede nomenclature. And, hence, De Tocqueville, perceiving this in our system, said of it, that "the new word, which ought to express this novel thing, does not yet exist." "The human understanding," says he, "more easily invents new things than new words, and we are hence constrained to employ many improper and inadequate expressions." No truer remark was ever made about the Government of the United States. All the difficulty or confusion on the subject, however, relates only to the name. It is one of nomenclature, and not substance. That stands out perfectly distinct in all its features, however unlanguaged it, with these features, may yet be. This want of a suitable name applies, also, only to its specific character, that name which will perfectly characterize its specific difference from other Confederacies, ancient or modern. There is no difficulty as to the proper generic term applicable to it. That is unquestionably Federal. Its genus, with all the incidents of the class, is a Federal or Confederated Republic. That is fixed by the fact that it is founded upon Compact Confederation between distinct Sovereign Powers.
What makes any Government Federal, but the fact that it springs, with all its powers and functions, of whatever character, from covenants and agreements between the Sovereign contracting parties creating it? And is it not as competent for a Sovereign State to agree, that the Federal agent or Government shall act upon her citizens in specified cases, as it is for her to agree, that the same agent or Government may act upon herself? may pass edicts of equal force and obligation upon her, which she is equally bound by the Compact to execute by her own machinery of lawn? Where is the difference What makes the Union between any States Federal is not the manner of its action, but the Fdus, the Covenant, the Convention, the Compact upon which it is founded!
So much for the nature of the Government of the United States, and the terms by which it may be characterized.
Where, under the system so constituted, does Sovereignty reside? This is now the great and last question. It must reside somewhere. It must reside, as all admit, with the people somewhere. Does it reside with the whole people in mass of all the States together, or with the people of the several States separately? That is the only question. The whole subject is narrowed down to this: Where, in this country, resides that Paramount authority that can rightfully make and unmake Constitutions? In all Confederated Republics, according to Montesquieu, Vattel, and Burlamaqui, it remains with the Sovereign States so Confederated. Is our Confederated Republic an exception to this rule? If so, how does it appear? Is there any thing in its history, anterior to the present Compact of Union, that shows it to be an exception? Certainly not; for the Sovereignty of each State was expressly retained in the first Articles of Union. Is there then any thing in the present Compact itself that shows that it was surrendered by them in that? If so, where is the clause bearing that import? None can be found! Again: if it was thereby surrendered, to whom was it surrendered? to whom did it pass? Did it pass to all the people of the United States? Of course not; for not one particle of power of any sort, much less Sovereignty, is delegated in the Constitution to the people of the United States. All powers therein delegated are to the States in their Sovereign character, under the designation of United States. Is it then surrendered to the United States jointly? Certainly not, for one of the main objects in forming the Compact, as before stated, and as clearly appears from the instrument itself, was, to preserve and perpetuate separate State existence. The guarantee to this effect, from the very words used, implies their Sovereignty. There can be no such thing as a perfect State without Sovereignty. It certainly is not parted with by any express terms in that instrument. If it be surrendered thereby it must be by implication only. But how can it be implied from any words or phrases in that instrument? If carried by implication, it must be on the strange assumption that it is an incident only of some one or all of those specific and specially enumerated powers expressly delegated. This cannot be, as that would be making the incident greater than the object, the shadow more solid than the substance. For Sovereignty is the highest and greatest of all political powers. It is itself the source as well as embodiment of all political powers, both great and small, proceed and emanate from it. All the great powers specifically and expressly delegated in the Constitution, such as the power to declare war and make peace; to raise and support armies, to tax and lay excise duties, etc., are themselves but the incidents of Sovereignty. If this great embodiment of all powers was parted with, why were any minor specifications made? Why any enumeration? Was not such specification or enumeration both useless and absurd?
All the implications are the other way. The bare fact that all the powers parted with by the States were delegated only, as all admit, necessarily implies that the greater power delegating still continued to exist.
If, then, this ultimate absolute Sovereignty did reside with the several States separately, as without question it did, up to the formation of the Constitution; and if, in the Constitution, Sovereignty is not parted with by the States in express terms; if, as Mr. Webster said, in 1839, there is not a word about Sovereignty in it; and if, further, this greatest of all political powers cannot justly be claimed as an incident to lesser ones, and thereby carried by implication; then, of course, was it not, most clearly, still retained and reserved to the people of the several States in that mass of residuary rights, in the language of Mr. Jefferson, which was expressly reserved in the Constitution itself?
It is true it was not so expressly reserved in the Constitution at first, because it was deemed, as the debates in the Federal Convention, as well as the State Conventions, clearly show, wholly unnecessary; so general was the understanding that it could not go, by inference or implication, from any thing in the Constitution; or in other words, that it could not be surrendered without express terms to that effect. The general understanding was the universally acknowledged principle in public law, that nothing is held good against Sovereignty by implication. But to quiet the apprehensions of Patrick Henry, Samuel Adams, and the Conventions of a majority of the States, this reservation of Sovereignty was soon after put in the Constitution amongst other amendments, in plain and unequivocal language. So cautious and guarded were the men of that day that the Government had hardly commenced operations before all inferences that had been drawn against the reserved Sovereignty of the States, from the silence of the Constitution, in this particular and some others, were fully rebutted by several amendments, proposed by the States, in Congress assembled, at their first session. These amendments were preceded by a preamble, which shows that they were both declaratory and restrictive in their object. Here is what was done:
"The Conventions of a number of the States, having, at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution;
"Resolved, by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, That the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States, all, or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution."*
* Hickey's Constitution, p. 33; United States Statutes at Large, vol. i, p. 97.
The language of one of the amendments then proposed, on the subject we are now upon, is as follows: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people."
This amendment, which was promptly agreed to by the States unanimously, declares that all powers not delegated were reserved to the States respectively; this, of course, includes, in the reservation, Sovereignty, which is the source of all powers, those delegated as well as those reserved. This reservation Mr. Samuel Adams said, we have seen in the Massachusetts Convention, was consonant with the like reservation in the first Articles of Confederation. And such was the universal understanding at the time. Most of the other amendments,* then proposed, were likewise agreed to by the States, but not unanimously.
* See Appendix D.
Can any proposition within the domain of reason be clearer, from all these facts, than that the Sovereignty of the States, that great Paramount authority which can rightfully make and unmake Constitutions, resides still with the States? Does not this declaratory amendment, added to the original covenant in the Constitution, which provides for its own amendment, show this beyond all doubt or question? Why were further amendments to it to be submitted to the States for their ratification before they could be binding, but upon the indisputable principle or postulate that Sovereignty, which alone has control of all such matters, still resides with the States severally? There is, my dear sirs, no answer to this.
The Government of the United States, however NEW some of its features are in the machinery of its operation, is no exception to the general rule, applicable to all Federal Republics, as to where the ultimate absolute Sovereign or Paramount authority resides. According to that rule, in all of them, it is retained by the Parties to the Compact. Such was the case in the model of Montesquieu. Such is the case in all Confederacies of this character, according to Vattel, as we have seen. Such is, necessarily, the case in our system, built upon these models. All unions of separate States, under Compacts of this sort, are founded upon the same essential basis. Sovereignty, with us, therefore, upon these fixed and indisputable principles, now resides, as I said before, just where it did in 1776 just where it did in 1778 and just where it did in 1787: that is, with the people of the several States of the Federal Union. This Sovereignty, so residing with them, is the Paramount authority to which allegiance is due. Allegiance, a word brought from the Old World, of Latin origin, from ligo, to bind, means the obligation which every one owes to that Power in the State, to which he is indebted for the protection of his rights of person and property. Allegiance and Sovereignty, as we have seen, are reciprocal.* "To whatever Power a citizen owes allegiance, that Power is his Sovereign." To what Power are the citizens of the several States indebted for protection of person and property, in all the relations of life, for the regulation of which Governments are instituted? Certainly not to the Federal Government. That Government, in its operations, has no right to interfere, in any way whatever, with the citizens of the several States, but in a few exceptional cases; and then, not for protection, but in the enforcement of laws, which the State would have been bound, by her plighted faith, to execute herself, had not this new feature been introduced into the Federal system. The Government of the United States, in its internal polity, is known to the citizens of the several States only by its requisitions upon individuals, instead of States, except in a very few specified cases. In its National character, it gives ample protection abroad. This was one of its main objects. In its postal arrangements, it furnishes many conveniences, for which it is duly paid. In these particulars, there is no difference between the Constitution and the first Articles of Confederation. But it was no part of the objects of either to afford protection to the citizens of the States, respectively, in all those relations of life which mark the internal polity of different States and Nations. These, now, as before, all depend upon the Sovereign will of the States. This Sovereign will fixes the status of the various elements of Society, as well as their rights. In the States, severally, remains the great right of Eminent Domain, which reserves to them complete jurisdiction and control over the rights of person and property of their entire population. With them remains, untrammelled, the power to establish codes of laws civil, military, and criminal: They may punish for what crimes they please, and as they please, and the Government of the United States cannot interfere. To their own Legislatures, their own Judiciaries, their own Executives, their own laws, established by their own Paramount authority, do all the citizens of all the States look for whatever protection and security they receive, possess, or enjoy, in all the civil relations of life. In all such matters as require that protection to which allegiance is due, the Government of the United States is unknown to them.
* Ante, p. 25.
It is true that the States did covenant, in the Constitution, that no State should "pass any law, making any thing but gold and silver coin a legal tender in the payment of debts; pass any bill of attainder, or ex post facto law, or law impairing the obligation of contracts;" but this, in no wise, changes the principle. Those provisions were put in by each State, to protect the rights of her citizens against the unjust legislation of other States, and not against her own legislation. By the Constitution, the citizens of each State have all the privileges and immunities of all the citizens of the several States. in their intercourse with each other. Hence, the propriety and wisdom of these provisions. It is, in itself, only a negative protection, and such as each State provided, in the Compact, for the protection of her own citizens, in other States, against the acts of the other States, and not against their own. It was inserted from no such view as that the citizens of the several States were to look to the Federal Government for that protection, in ally sense, which is the foundation of all allegiance. The guarantee of rights, in the amendments to the Constitution, such as the right to bear arms, freedom from arrest, etc., apply, exclusively, to the Federal Government. They were but bulwarks, thrown around the citadel of State Rights, to protect the citizens of the respective States from the exercise of unjust powers over them by the General Government. They were not inserted with any view of protecting the citizens of the respective States from the action of their own State Governments.
On the several State authorities, therefore, are all the citizens, of all the States, under our system, entirely dependent for the protection of all those civil rights and franchises, for which, mainly, human societies are organized, and for which, mainly, Governments are instituted by men. To this several State authority, when properly expressed, is the allegiance proper of every citizen due. This is his Sovereign.
These things being so, I think I have made It very clearly appear, why I acted as I did, in going with my State, and obeying her high behest, when she resumed the Sovereign Powers she had delegated to the United States, by entering into a Compact of Union with them in 1788, and asserted her right to be a free and independent State, which she was acknowledged to be by George the Third of England, in the treaty of peace, in 1783.
The rightfulness of this act, on the part of the State, is not now the question. We will come to that presently. What the question now is, was it not the duty of all her citizens to go with her in her solemn Resolve? Was not every one bound to do so, or become guilty of incivism, the highest of all political offences against the society of which one is a member? Would not every one, refusing to obey the mandate of the State, in such case have subjected himself to her laws against treason to her Sovereignty? In that case, could the United States, either de jure or de facto, have saved him or afforded him any protection whatever against the prescribed penalty? By the very terms of the Compact, if that was still in force, if he had escaped, and gone into another State, he would, necessarily, upon demand, have been delivered up to the State for trial and punishment! But in point of fact, the United States had not an officer, civil or military, within the State. All had retired, either voluntarily or by compulsion. Not an emblem even of their authority was to be found within her borders. To whose authority then could any citizen look for any sort of protection, but the authority of the State? Was not obedience both proper and due to that authority which alone could afford proper protection, both de jure and de facto?
Now as to the rightfulness of the State's thus resuming her Sovereign powers! In doing it she seceded from that Union, to which, in the language of Mr. Jefferson, as well as General Washington, she had acceded as a Sovereign State. She repealed her ordinance by which she ratified and agreed to the Constitution and became a party to the Compact under it. She declared herself no longer bound by that Compact, and dissolved her alliance with the other parties to it. The Constitution of the United States, and the laws passed in pursuance of it, were no longer the supreme law of the people of Georgia, any more than the treaty with France was the supreme law of both countries, after its abrogation, in 1798, by the same rightful authority which had made it in the beginning.
In answer to your question, whether she could do this without a breach of her solemn obligations, under the Compact, I give this full and direct answer: she had a perfect right so to do, subject to no authority, but the great moral law which governs the intercourse between Independent Sovereign Powers, Peoples, or Nations. Her action was subject to the authority of that law and none other. It is the inherent right of Nations, subject to this law alone, to disregard the obligations of Compacts of all sorts, by declaring themselves no longer bound. in any way by then. This, by universal consent, may be rightfully done, when there has been a breach of the Compact by the other party or parties. It was on this principle, that the United States abrogated their treaty with France, in 1798. The justifiableness of the act depends, in every instance, upon the circumstances of the case. The general rule is, if all the other States the Parties to the Confederation faithfully comply with their obligations, under the Compact of Union, no State would be morally justified in withdrawing from a Union so formed, unless it were necessary for her own preservation. Self-preservation is the first law of nature, with States or Nations, as it is with individuals.
But in this case the breach of plighted faith was not on the part of Georgia, or those States which withdrew or attempted to withdraw from the Union. Thirteen of their Confederates had openly and avowedly disregarded their obligations under that clause of the Constitution which covenanted for the rendition of fugitives from service, to say nothing of the acts of several of them, in a like open and palpable breach of faith, in the matter of the rendition of fugitives from justice. These are facts about which there can be no dispute. Then, by universal law, as recognized by all Nations, savage as well as civilized, the Compact, thus broken by some of the Parties, was no longer binding upon the others. The breach was not made by the seceding States. Under the circumstances, and the facts of this case, therefore, the legal as well as moral right, on the part of Georgia, according to the laws of Nations and nature, to declare herself no longer bound by the Compact, and to withdraw from the Union under it, was perfect and complete. These principles are too incontestably established to be questioned, much less denied, in the forum of reason and justice.
Hence the broad and unqualified admission of Mr. Webster, that, if the Constitution was a Compact between Sovereign States, the right to secede followed as a matter of course. This right comes not from any thing in the Constitution, but from the great law of Nations, governing all Compacts between Sovereigns. His language, you recollect, was: "where Sovereign communities are parties, there is no essential difference between a Compact, a Confederation, and a League. They all equally rest on the plighted faith of the Sovereign party. A League, or Confederacy, is but a subsisting or continuing treaty."
"If, in the opinion of either party," he added, "it be violated, such party may say that he will no longer fulfil its obligations on his part, but will consider the whole League, or Compact at an end, although it might be one of its stipulations that it should be perpetual."*
* Ante, p. 309.
The right of a State to secede from the Union upon this principle of the laws of Nations was fully admitted by Mr. Webster, if it be true that the Constitution is a Compact between States; and that too when, even in the opinion of any Party to it, the Compact had been broken on the other side. But in this case there is no question as to the fact of the breach on the other side.
Judge Story, who strove so hard to establish the position that the Government of the United States is a National Government proper, and not Federal, is equally explicit in his admission as to the right of Secession, if it be true that the Constitution is a Compact between States. On this point there is no disagreement between him and Mr. Webster. Judge Story first states the position of Judge Tucker, in his Commentaries on the Constitution, as follows:
"It is a Federal Compact. Several Sovereign and independent States may unite themselves together by a perpetual Confederation, without each ceasing to be a perfect State. They will, together, form a Federal Republic The deliberations in common will offer no violence to each member, though they may in certain respects put some constraint on the exercise of it in virtue of voluntary engagements. The extent, modifications, and objects of the Federal authority are mere matters of discretion. So long as the separate organization of the members remains, and, from the nature of the Compact, must continue to exist, both for local and domestic, and for Federal purposes, the Union is, in fact as well as in theory, an association of States, or a Confederacy."
Story on the Constitution, vol. i, Book 3, Sec. 311.
This is Story's statement of Tucker's position. It is substantially correct. He afterwards comments on it, as follows:
"The obvious deductions, which may be, and indeed have been drawn, from considering the Constitution as a Compact between the States, are, that it operates as a mere treaty, or convention between them, and has an obligatory force upon each State no longer than it suits its pleasure, or its consent continues;, that each State has a right to judge for itself in relation to the nature, extent, and obligations of the instrument, without being at all bound by the interpretation of the Federal Government, or by that of any other State; and that each retains the power to withdraw from the Confederacy, and to dissolve the connection, when such shall be its choice; and may suspend the operations of the Federal Government, and nullify its acts within its own territorial limits, whenever, in its own opinion, the exigency of the case may require. These conclusions may not always be avowed; but they flow naturally from the doctrines which we have under consideration. They go to the extent of reducing the Government to a mere Confederacy during pleasure; and of thus presenting the extraordinary spectacle of a nation existing only at the will of each of its constituent parts."*
* Story on the Constitution, vol. i, Book 3, Sec. 321.
In this, Judge Story fully admits the right of a State to withdraw or secede from the Union, if the Constitution be a Compact between the States as States, even without an open breach of the Compact by the Confederates. He says, it is an obvious deduction from the fact of its being a Government founded on Compact; too clear and logical to give room for doubt or question. He was too thoroughly versed in the laws of nations to raise a point even on this conclusion, if the premises as to the Constitution being a Compact between States be correct. Hence his labored argument in assault upon the premises. Hence his utmost efforts were put forth, with what success we have seen, to show that the States were never Sovereign, and that the Constitution is not a Compact between States, but that it is a social Compact between all the people of the United States in mass as one nation. However extraordinary, in the opinion of Judge Story, would be the spectacle of a nation existing only at the will of each of its constituent parts, yet just such a nation ours is, according to his own frank admission, if it be true that the Constitution is founded upon Compact between Sovereign States, (and this, by common consent between us, is a question now no longer open for consideration.)
Our "Nation," such as it is, is indeed a most extraordinary and wonderful spectacle! This we have abundantly seen in the course of our present investigation; and if Judge Story had more profoundly studied its nature and character, he might have been much more profoundly struck with many even more extraordinary features in it than that one to which he here specially refers.
That one has nothing in it more extraordinary than every other Federal Republic that ever existed. Montesquieu saw in such systems nothing more extraordinary than that under them the world had been saved from universal monarchical rule.
This right of a State to consider herself no longer bound by a Compact which, in her judgment, has been broken by her Confederates, and to secede from a Union, formed as ours was, has nothing about it, either new or novel. It is incident to all Federal Republics. It is not derived from the Compact itself. It does not spring from it at all. It is derived from the same source that the right is derived to abrogate a treaty by either or any of the parties to it. That is seldom set forth in the treaty itself; and yet it exists, whether it be set forth or not. So in any Federal Compact whatever, the parties may or may not expressly provide for breaches of it. But where no such provision is made, the right exists by the same laws of Nations which govern in all matters of treaties or conventions between Sovereigns. The admission of the right of Secession, under this law, on the part of the several States of our Union, by Mr. Webster and Judge Story, if it be true that the Constitution is a Compact between the States, might be considered ample authority, in answer to your question on that point; since the conclusion, to which we arrived, that it is such a Compact.
But I do not mean to let it rest barely on this.
I maintain that such was the general understanding of the parties to the Constitution at the time it was adopted, as well as that such is its true exposition.
"Contemporanea Expositio est optima et fortissima in Lege." "The best and surest mode of expounding an instrument is by referring to the time when, and circumstances under which, it was made."*
* 2 Inst. ii, Broom's Legal Maxims, p. 300.
First, then, I maintain that it is a necessary incident of that Sovereignty which was believed to be reserved to the States severally, in the original Constitution, but which reservation, to quiet the apprehensions of the more cautious, was immediately after inserted in express terms, by way of amendment. It was expressly reserved in the ratifications of Virginia, New York, and Rhode Island. These ratifications were received by the other States, which fixes the construction of all at the time. Moreover, the Government was formed, or to be formed, according to the very terms of the Constitution, by the Secession of nine States at least from their former Union, which was declared to be perpetual, and to which their faith was plighted in the most solemn manner, that no changes in the Articles of their Union should ever be made without the unanimous consent of its thirteen members. What is there in the history of the times or in the acts of the parties, which goes to show that the same general opinion, as to the Sovereign right to secede, did not continue to exist in reference to the present Constitution, which required no pledge as to its perpetuity?
Secondly. It is very clear that Mr. Jefferson believed in this
right. This, the Kentucky Resolutions fully establish. The large majority by
which he was elected, after the fierce contest of 1800, shows that the same
opinion must have been then very generally entertained. Even Mr. Hamilton must
have believed that this right was incident to the system; for in his urgent
appeals to Mr. Jefferson, as early as 1790, for his influence with members of
Congress, in aid of the bill for the assumption of the State debts, he
presented the strong reason, that if that measure should not pass, there was
great danger of a Secession of the members from the creditor States,
which would end in "a separation of the States."* He was then connected
with the Government. He was Secretary of the Treasury. Would he have urged such
an argument if he had not believed that those States had a right to withdraw?
Moreover, his letter to Mr. Gouverneur Morris, of the 27th of February, 1802,
shows very clearly, taken in connection with his whole career, that he did not
believe that the Government of the United States had any inherent Sovereign
power whatever. He looked upon the system as radically defective in this
particular. "Perhaps," says he in this letter, "no man in the United States has
sacrificed or done more for the present Constitution than myself; and
contrary to all my anticipations of its fate, as you know from the very
beginning. I am still laboring to prop the frail and worthless
fabric. Yet I have the murmurs of its friends no less than the curses of
its foes, for my reward."** The worthlessness of the fabric, in his opinion,
consisted, as we know, in the want of the energy of a consolidation of the
Sovereignties of the several States in one single grand Republic, which he had
at first insisted upon in the Federal Convention of 1787. When that failed, he
did give the Federal plan agreed upon a zealous and patriotic support. He
contributed greatly to its adoption by the States. But he never had confidence
in its durability. He thought it would go to pieces by State disintegration.
His belief and conviction of the want of power on the part of the General
Government, as formed to prevent such
disintegration, is shown from all that he said in the New York State Convention, when the Constitution was before that body, and what he wrote on the same subject in the Federalist afterwards.
* Randall's Life of Jefferson, vol. i, p. 609.
** Works of Hamilton, vol. vi, p. 530.
But, thirdly. One of the earliest, if not the earliest, commentators on the Constitution, not as a politician, but as a jurist and publicist, was Judge Tucker, Professor of Law in the University of William and Mary, in Virginia. In his edition of Blackstone's Commentaries, there is an appendix by him to the first volume, of considerable length, devoted to the consideration of Governments generally, and particularly the Constitution of the United States. He wrote in 1803. He held, as we have seen, that the Constitution was a Federal Compact between States. And while no more devoted friend to the Union under the Constitution perhaps ever lived, he yet was forced, from this indisputable fact, to what Story said was an obvious deduction that is, that the right of Secession, on the part of any one or more of the States, was a necessary incident from the very nature of the system. His language is this:
"The Constitution of the United States, then, being that instrument by which the Federal Government hath been created, its powers defined and limited, and the duties and functions of its several departments prescribed, the Government, thus established, may be pronounced to be a Confederate Republic, composed of several Independent and Sovereign Democratic States, united for their common defence and security against foreign Nations, and for the purposes of harmony and mutual intercourse between each other; each State retaining an entire liberty of exercising, as it thinks proper, all those parts of its Sovereignty which are not mentioned in the Constitution, or Act of Union, as parts that ought to be exercised in common."
"In becoming a member of the Federal Alliance, established between the American States by the Articles of Confederation, she expressly retained her Sovereignty and Independence. The constraints, put upon the exercise of that Sovereignty by those Articles, did not destroy its existence. * * *
"The Federal Government, then, appears to be the organ through which the united Republics communicate with foreign Nations, and with each other. Their submission to its operation is voluntary; its councils, its engagements, its authority, are theirs, modified and united. Its Sovereignty is an emanation from theirs, not a flame, in which they have been consumed, nor a vortex, in which they are swallowed up. Each is still a perfect State, still Sovereign, still independent, and still capable, should the occasion require, to resume the exercise of its functions, as such, in the most unlimited extent. * * *
"But, until the time shall arrive, when the occasion requires a resumption of the rights of Sovereignty by the several States (and far be that period removed, when it shall happen), the exercise of the rights of Sovereignty by the States, individually, is wholly suspended or discontinued in the cases before mentioned; nor can that suspension ever be removed, so long as the present Constitution remains unchanged, but by the dissolution of the bonds of union; an event which no good citizen can wish, and which no good or wise administration will ever hazard."*
* Tucker's Blackstone, vol. i, Appendix, pp. 170, 171, 175, 185.
A clearer or truer exposition of this feature of the Constitution of the United States was never made in fewer words. This exposition went to the country with the sanction of his high authority, and was not gainsayed or controverted by any writer of distinction, that I am aware of, until Chancellor Kent's Commentaries appeared in 1826, and Story's, in 1833. I do not mean to say that no one of that class of politicians, barely, who figured during the Administration of the elder Adams, denied this right; but that no jurist or publicist of eminence denied it up to that time. Chancellor Kent goes into no argument. He barely deals, as Mr. Motley does, in assertion. This, we have seen, will not do. But, meanwhile, Mr. Rawle, an eminent jurist of Pennsylvania, wrote an elaborate work upon the Constitution, which was published in 1825. He was United States District Attorney under Washington, and had been offered, by him, the Attorney-Generalship of the United States. He was, also, a firm supporter of the Administration of the elder Adams. This shows the character of the man, and the authority with which his opinions should be received. His investigations brought him to the same conclusion to which Judge Tucker had come. That conclusion is expressed by him in the following language:
"Having thus endeavored to delineate the general features of this peculiar and invaluable form of Government, we shall conclude with adverting to the principles of its cohesion, and to the provisions it contains for its own duration and extension.
"The subject cannot, perhaps, be better introduced than by presenting, in its own words, an emphatical clause in the Constitution:
"'The United States shall guarantee, to every State in the Union, a Republican form of Government; shall protect each of them against invasion; and, on application of the Legislature, or of the Executive, when the Legislature cannot be convened, against domestic violence.'
"The Union is an association of the people of Republics; its preservation is calculated to depend on the preservation of those Republics. The principle of representation, although, certainly, the wisest and best, is not essential to the being of a Republic; but, to continue a member of the Union, it must be preserved; and, therefore, the guarantee must be so construed. It depends on the State itself, to retain or abolish the principle of representation; because it depends on itself, whether it will continue a member of the Union. To deny this right, would be inconsistent with the principles on which all our political systems are founded; which is, that the people have, in all cases, a right to determine how they will be governed.
"This right must be considered as an ingredient in the original composition of the General Government, which, though not expressed, was mutually understood; and the doctrine, heretofore presented to the reader, in regard to the indefeasible nature of personal allegiance, is so far qualified, in respect to allegiance to the United States. It was observed that it was competent for a State to make a Compact with its citizens, that the reciprocal obligations of protection and allegiance might cease on certain events; and it was further observed that allegiance would necessarily cease on the dissolution of the society to which it was due. * * *
"The Secession of a State from the Union depends on the will of the people of such State. The people, alone, as we have already seen, hold the power to alter their Constitution. The Constitution of the United States is, to a certain extent, incorporated into the Constitutions of the several States, by the act of the people. The State Legislatures have only to perform certain organical operations in respect to it. To withdraw from the Union, comes not within the general scope of their delegated authority. There must be an express provision to that effect inserted in the State Constitutions. This is not, at present, the case with any of them, and it would, perhaps, be impolitic to confide it to them. A matter, so momentous, ought not to be intrusted to those who would have it in their power to exercise it lightly and precipitately, upon sudden dissatisfaction or causeless jealousy, perhaps, against the interests and the wishes of a majority of their constituents.
"But in any manner by which a Secession is to take place, nothing is more certain than that the act should be deliberate, clear, and unequivocal. The perspicuity and solemnity of the original obligation require correspondent qualities in its dissolution. The powers of the General Government cannot be defeated or impaired by an ambiguous or implied Secession on the part of the State, although a Secession may, perhaps, be conditional. The people of the State may have some reasons to complain in respect to acts of the General Government; they may, in such cases, invest some of their own officers with the power of negotiation, and may declare an absolute Secession in case of their failure. Still, however, the Secession must in such case be distinctly and peremptorilly declared to take place on that event, and in such case as in the case of an unconditional Secession the previous ligament with the Union would be legitimately and fairly destroyed. But, in either case, the people is the only moving power."*
* Rawle, pp. 302, 303.
"Under the Articles of Confederation the concurrence of nine States was requisite for many purposes. If five States had withdrawn from that Union, it would have been dissolved. In the present Constitution there is no specification of numbers after the first formation. It was foreseen that there would be a natural tendency to increase the number of States with the increase of population then anticipated, and now so fully verified. It was also known, though it was not avowed, that a State might withdraw itself. The number would therefore be variable." * * *
Rawle, p. 304
"To withdraw from the Union is a solemn, serious act Whenever it may appear expedient to the people of a State, it must be manifested in a direct and unequivocal manner. If it's ever done indirectly, the people must refuse to elect Representatives, as well as to suffer their Legislature to re-appoint Senators. The Senator whose time had not yet expired, must be forbidden to continue in the exercise of his functions.
"But without plain, decisive measures of this nature, proceeding from the only legitimate source, the people, the United States cannot consider their Legislative powers over such States suspended, nor: their Executive or Judicial powers any way impaired, and they would not be obliged to desist from the collection of revenue, within such State.
"As to the remaining States, among themselves, there is no opening for a doubt.
"Secessions may reduce the number to the smallest integer admitting combination. They would remain united under the same principles and regulations, among themselves, that now apply to the whole. For a State cannot be compelled by other States to withdraw from the Union, and, therefore, if two or more determine to remain united, although all the others desert them, nothing can be discovered in the Constitution to prevent it.
The consequences of an absolute Secession cannot be mistaken, and they would be serious and afflicting.
"The Seceding State, whatever might be its relative magnitude, would speedily and distinctly feel the loss of the aid and countenance of the Union. The Union, losing a proportion of the National revenue, would be entitled to demand from it a proportion of the National debt. It would be entitled to treat the inhabitants and the commerce of the separated State, as appertaining to a foreign country. In public treaties already made, whether commercial or political, it could claim no participation, while foreign powers would unwillingly calculate, and slowly transfer to it, any portion of the respect and confidence borne towards the United States."*
* Rawle, pp. 305, 306.
Mr. Rawle came to the same logical conclusion upon the subject of Secession that Judge Tucker had come to. He also distinctly asserts that it was known at the time, though not avowed, that a State might withdraw itself. "It was mutually understood," he says. He was a living actor in the scenes.
Fourthly. It is upon the grounds or assumption that this was the general understanding of the nature of the Government at the time, that we can account for the triumphant success of Mr. Jefferson, in 1800, on the principles of the Virginia and Kentucky Resolutions of 1798-99, and Mr. Madison's Report, referred to before. It is in accordance with this general understanding that we can account for Mr. Hamilton's strong reason for Mr. Jefferson's co-operation in the matter just stated.
It is in accordance with the same general understanding that we can account for what I have seen it stated was the action of the Massachusetts Legislature in 1803, on the acquisition of Louisiana. That State, it is said, then declared, by solemn resolve, "That the annexation of Louisiana to the Union, transcends the Constitutional power of the Government of the United States. It formed a new Confederacy to which the States united by the former Compact are not bound to adhere."
Whether this Resolution ever was, in fact, passed by the Massachusetts Legislature, or not, I have not been able to ascertain with absolute certainty. Perhaps you, Judge, know whether the statement which has been, so generally made be true or not?
JUDGE BYNUM. I am unable to give any information on the subject.
MR. STEPHENS. Well, be that as it may, the Legislature of Massachusetts, in 1844, did, without question, pass a series of Resolutions upon the annexation of Texas, of which the following is a part:
"Resolved, * * That the project of the annexation of Texas, unless arrested on the threshold, may drive these States into a dissolution of the Union."
On the same subject, on the 22d of February, 1845, the same body adopted another series of Resolutions, in which the following occurs:
"Resolved, * * * and as the powers of Legislation granted in the Constitution of the United States to Congress, do not embrace the case of the admission of a foreign State, or foreign territory, by Legislation, into the Union, such an act of admission would have no binding force whatever on the people of Massachusetts."
Here are authentic copies of each of these sets of Resolutions.* They are not at all inconsistent with those said to have been passed on a similar subject in 1803. These Resolutions show clearly the understanding of Massachusetts as late as 1844-45, of the nature of the Compact of our Union. Though she did not see fit to exercise her right to secede or withdraw, she nevertheless unmistakably asserted her right to do so under circumstances then existing, by asserting that she would not be bound by the anticipated action of the General Government in the matter of the annexation of Texas.
* See also Lunt's History of the Origin of the War, pp. 467-8.
Moreover, it is in strict accordance with this general understanding that several of the Eastern States, upon the call of Massachusetts, assembled by their deputies in the well-known New England or Hartford Convention, in December, 1814.* These States, it is well known, were greatly disaffected towards the Federal Administration. It was during our last war with Great Britain. They conceived their interest to be improperly sacrificed by the policy pursued in the conduct of the war. The Convention was called to devise some course to be taken by these States for a redress of their common grievances. They did nothing, however, but issue an address setting forth their grievances, and appoint a delegation to present them, with their views, to the Federal authorities at Washing. ton; and provide for another Convention to take further action in the premises. This address went into a very full review of the nature of the Government. In it the following principles are set forth:
Niles's Register, vol. vii, p. 161.
* Niles's Register, vol. vii, p. 269.
"It is as much the duty of the State authorities to watch over the rights reserved, as of the United States to exercise the powers which are delegated."
Further on this language occurs:
"But in cases of deliberate, dangerous and palpable infractions of the Constitution, affecting the Sovereignty of a State and liberties of the people, it is not only the right, but the duty of such a State to interpose its authority for their protection in the manner best calculated to secure that end. When emergencies occur which are either beyond the reach of the judicial tribunals, or too pressing to admit of the delay incident to their forms, States which have no common umpire must be their own judges, and execute their own decisions."
Niles's Register, vol. vii, p 306.
To this document are signed, amongst others, the venerable names of Nathan Dane, George Cabot, Zephenia Swift, James Hillhouse, and Harrison G. Otis. Dane was the founder of the Professorship of Law in the Cambridge University, and was the author of the Abridgment of American Law, so often quoted by Judge Story, as well as the author of the celebrated ordinance for the government of the North-western Territory, in 1787. That these States did intend to secede and withdraw from the Union, unless their grievances complained of were redressed, there can be no doubt, and that these eminent jurists thought then that they had a right to do so, is equally clear.
The news, however, of the treaty of peace which had been signed at Ghent, on the 24th day of December, 1814, was soon after received in this country, and put an end to all other proceedings under this movement of these States.
But what is remarkable in the history of that controversy is, that in no debate in Congress were the fundamental doctrines of this address called in question, so far as I have been able to discover. Mr. Madison, then President, made no allusion, in his message to Congress, to this movement. Niles's Register contains six able leading editorial articles against this Convention and its proceedings, but in none of them is the right of the States to withdraw from the Union, if they choose to do so, questioned. It is true, the Convention was generally odious, at the time, to the people of a large majority of the States, and has been ever since. This was from the fact that the threatened Secession was in time of war, and a war which had been undertaken mainly, at the instance of these States, in defence of their shipping and navigating interests. It is also true, that some journalists and partisans of the day did charge the movement to be treasonable. But what have not partisan journalists and public speakers, in times of excitement, charged to be treasonable! Almost every matter in the administration of Government, that does not suit their own peculiar views and notions. This charge was not made by any of the officials of the Government, that I am aware of, and what I mean to say is, that the right of a State to withdraw from the Union was never denied or questioned, that I am aware of, by any jurist, publicist, or statesman of character and standing, until Kent's Commentaries appeared, in 1826, nearly forty years after the Government had gone into operation! From the weight of evidence, therefore, the conclusion follows, that in the opinion of the fathers generally, as well as of the great mass of the people throughout the country, the right existed. It has been stated by high authority, that "the right of Secession" is not a plant of Southern origin" "it first sprung up in the North."* A more accurate statement would be that it was not sectional but continental in its origin. It was generally recognized in all parts of the Union during the earlier days of the Republic.
* Mr. Buchanan History of his Administration, p. 86.
Fifthly and lastly, this right, so apparent to all clear and unbiassed minds from all the facts connected with the history and nature of the Government, is fully and clearly recognized by all foreign writers and publicists who have made our institutions their study. Prominent in this class stands De Tocqueville, before alluded to. On this point he says:
"However strong a Government may be, it cannot easily escape from the consequences of a principle which it has once admitted as the foundation of its Constitution. The Union was formed by the voluntary agreement of the States; and these, in uniting together, have not forfeited their Nationality, nor have they been reduced to the condition of one and the same people. If one of the States chose to withdraw its name from the contract, it would be difficult to disprove its right of doing so, and the Federal Government would have no means of maintaining its claims directly, either by force or by right."*
* De Tocqueville's Democracy in America, vol. 1, p. 498.
To the name of De Tocqueville, the names of many of the most eminent writers in Europe, upon our institutions, might be added. Why, however, multiply authorities of this sort to show either the unprejudiced judgment of foreign writers upon the subject, or the general understanding of all parties in this country, during the earlier and better days of the Republic? Men of great ability of our own day-men, who stand high in the Republican ranks at this time, who had and have no sympathy with the late Southern movement, are fully committed to the rightfulness of that movement. Mr. Lincoln himself was fully committed to it. Besides him, I refer you to but two others of this class, now prominent actors in public affairs. They are Senator Wade, of Ohio, at this time the Vice President of the United States, and Mr. Greeley, of the New York Tribune, who is "a power behind the throne greater than the throne itself."
Mr. Wade, in the Senate of the United States, on the 23d of February, 1855, used the following language: I read from the Appendix to the Congressional Globe, 2d Session, 33d Congress, page 214.
"Who is to be judge, in the last resort, of the violation of the Constitution of the United States by the enactment of a law? Who is the final arbiter? The General Government, or the States in their Sovereignty? Why, sir, to yield that point, is to yield up all the rights of the States to protect their own citizens, and to consolidate this Government into a miserable despotism. I tell you, sir, whatever you may think of it, if this bill pass, collisions will arise between the Federal and State jurisdictions conflicts more dangerous than all the wordy wars which are got up in Congress conflicts in which the States will never yield; for the more you undertake to load them with acts like this, the greater will be their resistance."
Again, he says, in the same speech:
"I said there were States in this Union whose highest tribunals had adjudged that bill to be unconstitutional, and that I was one of those who believed it unconstitutional: that my State believed it unconstitutional; and that, under the old Resolutions of 1798 and 1799, a State must not only be the judge of that, but of the remedy in such a case."
This is enough to show that he put himself At that time squarely upon the old States' Rights State Sovereignty Jeffersonian platform. of 1798 and 1799. Judge Story has told us what the obvious deductions from these principles are.
Let us now see what Mr. Greeley says. I read from the American Conflict, vol. i, page 359. It is taken from the editorial of his own paper, the Tribune, issued as late as the 9th day of November, 1860.
"The telegraph informs us that most of the Cotton States are meditating a withdrawal from the Union, because of Lincoln's election. Very well: they have a right to meditate, and meditation is a profitable employment of leisure. We have a chronic, invincible disbelief in Disunion as a remedy for either Northern or Southern grievances. We cannot see any necessary connection between the alleged disease and this ultra-heroic remedy; still, we say, if any one sees fit to meditate Disunion, let him do so unmolested. That was a base and hypocritic row that was once raised at Southern dictation, about the ears of John Quincy Adams, because he presented a petition for the dissolution of the Union. The petitioner had a right to make the request; it was the Member's duty to present it. And now, if the Cotton States consider the value of the Union debatable, we maintain their perfect right to discuss it. Nay: we hold, with Jefferson, to the unalienable right of communities to alter or abolish forms of government that have become oppressive or injurious; and, if the Cotton States shall decide that they can do better out of the Union than in it, we insist on letting them go in peace. The right to secede may be a revolutionary one, but it exists nevertheless; and we do not see how one party can have a right to do what another party has a right to prevent. We must ever resist the asserted right of any State to remain in the Union, and nullify or defy the laws thereof; to withdraw from the Union is quite another matter. And, whenever a considerable section of our Union shall deliberately resolve to go out, we shall resist all coercive measures designed to keep it in. We hope never to live in a Republic, whereof one section is pinned to the residue by bayonets.
But, while we thus uphold the practical liberty, if not the abstract right, of Secession, we must insist that the step be taken, if it ever shall be, with the deliberation and gravity befitting so momentous an issue. Let ample time be given for reflection; let the subject be fully canvassed before the people; and let a popular vote be taken in every case, before Secession is decreed. Let the people be told just why they are asked to break up the Confederation; let them have both sides of the question fully presented; let them reflect, deliberate, then vote; and let the act of Recession be the echo of an unmistakable popular fiat. A judgment thus rendered, a demand for separation so backed, would either be acquiesced in without the effusion of blood, or those who rushed upon carnage to defy and defeat it, would place themselves clearly in the wrong."*
* Greeley's American Conflict, vol. i, p. 359.
What better argument could I make to show the rightfulness of Secession, if the Southern States of their own goodwill and pleasure chose to resort to it, even for no other cause than Mr. Lincoln's election, than is herein set forth in his own pointed, strong, and unmistakable language?'It is true, he waives all questions of Compact between the States. He goes deeper into fundamental principles, and plants the right upon the eternal truths announced in the Declaration of Independence. That is bringing up principles which I have not discussed, not because I do not indorse them as sound and correct, to the word and letter, but because it was not necessary for my purpose. Upon these immutable principles the justifiableness of Georgia in her Secession Ordinance of the 19th of January, 1861, will stand clearly established for all time to come. For if; with less than one hundred thousand population, she was such a people in 1776 as had the unquestionable right to alter and change their form of Government as they pleased, how much more were they such a people, with more than ten times the number, in 1861? The same principle applies to all the States which quit the old and joined the new Confederation. Mr. Greeley here speaks of the Union as a Confederation, and not a Nation. This was, perhaps, the unconscious utterance of a great truth when the true spirit was moving him.
The State of Georgia did not take this step, however, in withdrawing from the Confederation, without the most thorough discussion. It is true it was not a dispassionate discussion. Men seldom, if ever, enter into such discussions with perfect calmness, or even that degree. of calmness with which all such subjects ought to be considered. But the subject was fully canvassed before the people. Both sides were strongly presented. In the very earnest remonstrance against this measure made by me, on the 14th of November, 1860, to which you have alluded, was an appeal equally earnest for just such a vote as he suggests in order that the action of the State on the subject might be "the echo of an unmistakable, popular fiat." On the same occasion I did say, in substance, just what he had so aptly said before, that the people of Georgia, in their Sovereign capacity, had the right to secede if they chose to do so, and that in this event of their so determining to do, upon a mature consideration of the question, that I should bow in submission to the majesty of their will so expressed!
This, when so said by me, is what it seems was "the dead fly in the ointment" of that speech; so sadly, "marring its general perfume." This was "the distinct avowal of the right of the State to overrule my personal convictions and plunge me," as he says, "into treason to the Nation!"*
* American Conflict, vol. i, page 343. Also ante, p. 22.
Was not the same "dead fly in the ointment" of his article of the 9th of November, only five days before's And if going with my State, in what he declared she had a perfect right to do, plunged me into treason to the Nation, is he not clearly an accessory before the fact by a rule of construction not more strained than that laid down in the trial of State cases by many judges not quite so notoriously infamous as Jeffreys? By a rule not more strained than that which would make out treason in the act itself! But I do not admit the rule in its application either to the accessory or the principal.
Now in relation to Mr. Lincoln. He himself, in 1848, announced the same general principles as above announced by Mr. Greeley in 1860. On the 12th day of January, 1848, Mr. Lincoln, in the House of Representatives, made a speech which I heard. Here is that speech. In it he used this language. I read from the Appendix to the Congressional Globe, First Session, Thirtieth Congress, page 94.
"Any people any where, being inclined and having the power, have the right to rise up and shake off the existing Government, and form a new one that suits them better. This is a most valuable, a sacred right a right which, we hope and believe, is to liberate the world. Nor is this right confined to cases in which the whole people of an existing Government may choose to exercise it. Any portion of such people that can, may revolutionize, and make their own of so much of the territory as they inhabit. More than this, a majority of any portion of such people may revolutionize, putting down a minority, intermingled with, or near about them, who may oppose their movements. Such minority was precisely the case of the Tories of our own Revolution. It is a quality of revolutions not to go by old lines, or old laws; but to break up both, and make new ones."
Even if Secession was but a revolutionary right, and did not spring at all from the nature of the Compact between the States, Mr. Lincoln here distinctly admits the right, a "most valuable and sacred right" as one of a revolutionary character. If this be a sacred right, even in this view, how, in the language of Mr. Greeley, can there exist any legal or moral right anywhere else to prevent its exercise? There cannot be two antagonistic rights! Rights, like truths, always fit as between themselves! They never jar, impinge, or collide!
Thus the moral and political worlds, when rightly administered, present the same beauty and symmetry which pervade the physical in all its parts, extending throughout creation; and in the practical workings of all their parts, produce a perfect concord and harmony, not unlike that symphony of the spheres in the material universe which has gone forth from the time the most distant stars raised the grand chorus in the morning of their birth!
You thus have, gentlemen, a very full review of the grounds upon which my convictions of duty, in regard to the right of Secession, were founded. They arose from my understanding of the nature of the Government of the United States, and where, under the system, that Paramount authority resides, to which ultimate allegiance is due. The conclusion to which I came was, that this ultimate Paramount authority had never been parted with by the States that, from the nature of the Federal Government, and from the very terms of the Compact between the States, this Sovereign power was reserved to them, severally. If I erred in that conclusion, you see I erred with many of the brightest intellects, ablest statesmen, and purest patriots of this as well as other countries.
But even if I erred with them on this point, we see it fully and clearly admitted, by very high authority in the ranks of modern Republicanism, that it does nevertheless still there reside, according to the great fundamental principles of the American Revolution! In either view, was I not fully justified in the course I took?
I will not ask your judgment upon the matter, however clearly I may think that this exposition of my course shows that I acted rightly and patriotically. I know full well that you have been too thoroughly schooled in different opinions for any one reasonably to expect so radical a change of them in so short a time. Men's opinions or convictions upon such questions do not so readily or easily change. Truths of this character do not bring forth their fruits in a day. They must have time to germinate, grow, and develop, first.
It is better, therefore, to leave these questions for the verdict of posterity for the enlightened and unimpassioned judgment of mankind. By this, we or our memories must all abide. All that any of us can do in the premises is, to see to it that all the facts, as well as a true account of our actions, shall be transmitted to that august tribunal. This is the work of history. The only anxiety I have on the matter is, that this work shall be faithfully performed that the record shall be rightly put up. This being done, I entertain no apprehensions as to the verdict and judgment upon it hereafter to be rendered. From these opposing and conflicting principles, however, as I said in the beginning, the war sprung. These were the latent but real causes.
Now, then, if it is agreeable, we will proceed to consider that immediate and exciting question which brought these organic principles into such terrible physical conflict in the inauguration of the war.
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