The Rise and Fall of the Confederate Government Volume I Part 14

I shall add but two other citations. They are from speeches of John Marshall, afterward the most distinguished Chief Justice of the United States-who has certainly never been regarded as holding high views of State rights-in the Virginia Convention of 1788. In the first case, he was speaking of the power of the States over the militia, and is thus reported:

"The State governments did not derive their powers from the General Government; but each government derived its powers from the people, and each was to act according to the powers given it. Would any gentleman deny this?... Could any man say that this power was not retained by the States, as they had not given it away? For (says he) does not a power remain till it is given away? The State Legislatures had power to command and govern their militia before, and have it still, undeniably, unless there be something in this Const.i.tution that takes it away....

"He concluded by observing that the power of governing the militia was not vested in the States by implication, because, being possessed of it antecedently to the adoption of the Government, and not being divested of it by any grant or restriction in the Const.i.tution, they must necessarily be as fully possessed of it as ever they had been, and it could not be said that the States derived any powers from that system, but retained them, though not acknowledged in any part of it."85

In the other case, the special subject was the power of the Federal judiciary. Mr. Marshall said, with regard to this: "I [pg 166] hope that no gentleman will think that a State can be called at the bar of the Federal court. Is there no such case at present? Are there not many cases, in which the Legislature of Virginia is a party, and yet the State is not sued? Is it rational to suppose that the sovereign power shall be dragged before a court?"86

Authorities to the same effect might be multiplied indefinitely by quotation from nearly all the most eminent statesmen and patriots of that brilliant period. My limits, however, permit me only to refer those in quest of more exhaustive information to the original records, or to the "Republic of Republics," in which will be found a most valuable collection and condensation of the teaching of the fathers on the subject. There was no dissent, at that period, from the interpretation of the Const.i.tution which I have set forth, as given by its authors, except in the objections made by its adversaries. Those objections were refuted and silenced, until revived, long afterward, and presented as the true interpretation, by the school of which Judge Story was the most effective founder.

At an earlier period-but when he had already served for several years in Congress, and had attained the full maturity of his powers-Mr. Webster held the views which were presented in a memorial to Congress of citizens of Boston, December 15, 1819, relative to the admission of Missouri, drawn up and signed by a committee of which he was chairman, and which also included among its members Mr. Josiah Quincy. He speaks of the States as enjoying "the exclusive possession of sovereignty" over their own territory, calls the United States "the American Confederacy," and says, "The only parties to the Const.i.tution, contemplated by it originally, were the thirteen confederated States." And again: "As between the original States, the representation rests on compact and plighted faith; and your memorialists have no wish that that compact should be disturbed, or that plighted faith in the slightest degree violated."

It is satisfactory to know that in the closing year of his life, when looking retrospectively, with judgment undisturbed by [pg 167] any extraneous influence, he uttered views of the Government which must stand the test of severest scrutiny and defy the storms of agitation, for they are founded on the rock of truth. In letters written and addresses delivered during the Administration of Mr. Fillmore, he repeatedly applies to the Const.i.tution the term "compact," which, in 1833, he had so vehemently repudiated. In his speech at Capon Springs, Virginia, in 1851, he says:

"If the South were to violate any part of the Const.i.tution intentionally and systematically, and persist in so doing year after year, and no remedy could be had, would the North be any longer bound by the rest of it? And if the North were, deliberately, habitually, and of fixed purpose, to disregard one part of it, would the South be bound any longer to observe its other obligations?...

"How absurd it is to suppose that, when different parties enter into a compact for certain purposes, either can disregard any one provision, and expect, nevertheless, the other to observe the rest!...

"I have not hesitated to say, and I repeat, that, if the Northern States refuse, willfully and deliberately, to carry into effect that part of the Const.i.tution which respects the restoration of fugitive slaves, and Congress provide no remedy, the South would no longer be bound to observe the compact. A bargain can not be broken on one side, and still bind the other side."87

The principles which have been set forth in the foregoing chapters, although they had come to be considered as peculiarly Southern, were not sectional in their origin. In the beginning and earlier years of our history they were cherished as faithfully and guarded as jealously in Ma.s.sachusetts and New Hampshire as in Virginia or South Carolina. It was in these principles that I was nurtured. I have frankly proclaimed them during my whole life, always contending in the Senate of the United States against what I believed to be the mistaken construction of the Const.i.tution taught by Mr. Webster and his adherents. While I honored the genius of that great man, and held friendly [pg 168] personal relations with him, I considered his doctrines on these points-or rather the doctrines advocated by him during the most conspicuous and influential portions of his public career-to be mischievous, and the more dangerous to the welfare of the country and the liberties of mankind on account of the signal ability and magnificent eloquence with which they were argued.

Footnote 80: (return) Elliott's "Debates," vol. i, p. 239; "Madison Papers," pp. 1119-1124.

Footnote 81: (return) "Madison Papers," p. 1184.

Footnote 82: (return) "Federalist," No. lx.x.xi.

Footnote 83: (return) "Federalist," No. lx.x.xiv.

Footnote 84: (return) Ibid., No. lx.x.xv.

Footnote 85: (return) Elliott's "Debates," vol. iii, pp. 389-391.

Footnote 86: (return) Elliott's "Debates," vol. iii, p. 503.

Footnote 87: (return) Curtis's "Life of Webster," chap. x.x.xvii, vol. ii, pp. 518, 519.

CHAPTER XI.

The Right of Secession.-The Law of Unlimited Partnerships.-The "Perpetual Union" of the Articles of Confederation and the "More Perfect Union" of the Const.i.tution.-The Important Powers conferred upon the Federal Government and the Fundamental Principles of the Compact the same in both Systems.-The Right to resume Grants, when failing to fulfill their Purposes, expressly and distinctly a.s.serted in the Adoption of the Const.i.tution.

The Right of Secession-that subject which, beyond all others, ignorance, prejudice, and political rancor have combined to cloud with misstatements and misapprehensions-is a question easily to be determined in the light of what has already been established with regard to the history and principles of the Const.i.tution. It is not something standing apart by itself-a factious creation, outside of and antagonistic to the Const.i.tution-as might be imagined by one deriving his ideas from the political literature most current of late years. So far from being against the Const.i.tution or incompatible with it, we contend that, if the right to secede is not prohibited to the States, and no power to prevent it expressly delegated to the United States, it remains as reserved to the States or the people, from whom all the powers of the General Government were derived.

The compact between the States which formed the Union was in the nature of a partnership between individuals without limitation of time, and the recognized law of such partnerships is thus stated by an eminent lawyer of Ma.s.sachusetts in a work intended for popular use:

"If the articles between the partners do not contain an agreement that the partnership shall continue for a specified time, it [pg 169] may be dissolved at the pleasure of either partner. But no partner can exercise this power wantonly and injuriously to the other partners, without making himself responsible for the damage he thus causes. If there be a provision that the partnership shall continue a certain time, this is binding."88

We have seen that a number of "sovereign, free, and independent" States, during the war of the Revolution, entered into a partnership with one another, which was not only unlimited in duration, but expressly declared to be a "perpetual union." Yet, when that Union failed to accomplish the purposes for which it was formed, the parties withdrew, separately and independently, one after another, without any question made of their right to do so, and formed a new a.s.sociation. One of the declared objects of this new partnership was to form "a more perfect union." This certainly did not mean more perfect in respect of duration; for the former union had been declared perpetual, and perpetuity admits of no addition. It did not mean that it was to be more indissoluble; for the delegates of the States, in ratifying the former compact of union, had expressed themselves in terms that could scarcely be made more stringent. They then said:

"And we do further solemnly plight and engage the faith of our respective const.i.tuents, that they shall abide by the determinations of the United States in Congress a.s.sembled, on all questions which, by the said confederation, are submitted to them; and that the articles thereof shall be inviolably observed by the States we respectively represent; and that the Union shall be perpetual."89

The formation of a "more perfect union" was accomplished by the organization of a government more complete in its various branches, legislative, executive, and judicial, and by the delegation to this Government of certain additional powers or functions which had previously been exercised by the Governments of the respective States-especially in providing the [pg 170] means of operating directly upon individuals for the enforcement of its legitimately delegated authority. There was no abandonment nor modification of the essential principle of a compact between sovereigns, which applied to the one case as fully as to the other. There was not the slightest intimation of so radical a revolution as the surrender of the sovereignty of the contracting parties would have been. The additional powers conferred upon the Federal Government by the Const.i.tution were merely transfers of some of those possessed by the State governments-not subtractions from the reserved and inalienable sovereignty of the political communities which conferred them. It was merely the inst.i.tution of a new agent who, however enlarged his powers might be, would still remain subordinate and responsible to the source from which they were derived-that of the sovereign people of each State. It was an amended Union, not a consolidation.

It is a remarkable fact that the very powers of the Federal Government and prohibitions to the States, which are most relied upon by the advocates of centralism as incompatible with State sovereignty, were in force under the old Confederation when the sovereignty of the States was expressly recognized. The General Government had then, as now, the exclusive right and power of determining on peace and war, making treaties and alliances, maintaining an army and navy, granting letters of marque and reprisal, regulating coinage, establishing and controlling the postal service-indeed, nearly all the so-called "characteristic powers of sovereignty" exercised by the Federal Government under the existing Const.i.tution, except the regulation of commerce, and of levying and collecting its revenues directly, instead of through the interposition of the State authorities. The exercise of these first-named powers was prohibited to the States under the old compact, "without the consent of the United States in Congress a.s.sembled," but no one has claimed that the Confederation had thereby acquired sovereignty.

Entirely in accord with these truths are the arguments of Mr. Madison in the "Federalist," to show that the great principles of the Const.i.tution are substantially the same as those of the Articles of Confederation. He says:

[pg 171]

"I ask, What are these principles? Do they require that, in the establishment of the Const.i.tution, the States should be regarded as distinct and independent sovereigns? They are so regarded by the Const.i.tution proposed.... Do these principles, in fine, require that the powers of the General Government should be limited, and that, beyond this limit, the States should be left in possession of their sovereignty and independence? We have seen that, in the new Government as in the old, the general powers are limited; and that the States, in all unenumerated cases, are left in the enjoyment of their sovereign and independent jurisdiction."

"The truth is," he adds, "that the great principles of the Const.i.tution proposed by the Convention may be considered less as absolutely new, than as the expansion of principles which are found in the Articles of Confederation."90

In the papers immediately following, he establishes this position in detail by an a.n.a.lysis of the princ.i.p.al powers delegated to the Federal Government, showing that the spirit of the original instructions to the Convention had been followed in revising "the Federal Const.i.tution" and rendering it "adequate to the exigencies of government and the preservation of the Union."91

The present Union owes its very existence to the dissolution, by separate secession of its members, of the former Union, which, as we have thus seen, as to its organic principles, rested upon precisely the same foundation. The right to withdraw from the a.s.sociation results, in either case, from the same principles-principles which, I think, have been established on an impregnable basis of history, reason, law, and precedent.

It is not contended that this right should be resorted to for insufficient cause, or, as the writer already quoted on the law of partnership says, "wantonly and injuriously to the other partners," without responsibility of the seceding party for any damage thus done. No a.s.sociation can be dissolved without a likelihood of the occurrence of incidental questions concerning common property and mutual obligations-questions sometimes of a complex and intricate sort. If a wrong be perpetrated, in such case, it is a matter for determination by the means usually [pg 172] employed among independent and sovereign powers-negotiation, arbitration, or, in the failure of these, by war, with which, unfortunately, Christianity and civilization have not yet been able entirely to dispense. But the suggestion of possible evils does not at all affect the question of right. There is no great principle in the affairs either of individuals or of nations that is not liable to such difficulties in its practical application.

But, we are told, there is no mention made of secession in the Const.i.tution. Mr. Everett says: "The States are not named in it; the word sovereignty does not occur in it; the right of secession is as much ignored in it as the procession of the equinoxes." We have seen how very untenable is the a.s.sertion that the States are not named in it, and how much pertinency or significance in the omission of the word "sovereignty." The pertinent question that occurs is, Why was so obvious an attribute of sovereignty not expressly renounced if it was intended to surrender it? It certainly existed; it was not surrendered; therefore it still exists. This would be a more natural and rational conclusion than that it has ceased to exist because it is not mentioned.

The simple truth is, that it would have been a very extraordinary thing to incorporate into the Const.i.tution any express provision for the secession of the States and dissolution of the Union. Its founders undoubtedly desired and hoped that it would be perpetual; against the proposition for power to coerce a State, the argument was that it would be a means, not of preserving, but of destroying, the Union. It was not for them to make arrangements for its termination-a calamity which there was no occasion to provide for in advance. Sufficient for their day was the evil thereof. It is not usual, either in partnerships between men or in treaties between governments, to make provision for a dissolution of the partnership or a termination of the treaty, unless there be some special reason for a limitation of time. Indeed, in treaties, the usual formula includes a declaration of their perpetuity; but in either case the power of the contracting parties, or of any of them, to dissolve the compact, on terms not damaging to the rights of the other parties, is not the less clearly understood. It was not necessary in the Const.i.tution [pg 173] to affirm the right of secession, because it was an attribute of sovereignty, and the States had reserved all which they had not delegated.

The right of the people of the several States to resume the powers delegated by them to the common agency, was not left without positive and ample a.s.sertion, even at a period when it had never been denied. The ratification of the Const.i.tution by Virginia has already been quoted, in which the people of that State, through their Convention, did expressly "declare and make known that the powers granted under the Const.i.tution, being derived from the people of the United States, may be resumed by them, whensoever the same shall be perverted to their injury or oppression, and that every power not granted thereby remains with them and at their will."92

New York and Rhode Island were no less explicit, both declaring that "the powers of government may be rea.s.sumed by the people whenever it shall become necessary to their happiness."93

These expressions are not mere obiter dicta, thrown out incidentally, and ent.i.tled only to be regarded as an expression of opinion by their authors. Even if only such, they would carry great weight as the deliberately expressed judgment of enlightened contemporaries, but they are more: they are parts of the very acts or ordinances by which these States ratified the Const.i.tution and acceded to the Union, and can not be detached from them. If they are invalid, the ratification itself was invalid, for they are inseparable. By inserting these declarations in their ordinances, Virginia, New York, and Rhode Island, formally, officially, and permanently, declared their interpretation of the Const.i.tution as recognizing the right of secession by the resumption of their grants. By accepting the ratifications with this declaration incorporated, the other States as formally accepted the principle which it a.s.serted.

I am well aware that it has been attempted to construe these declarations concerning the right of the people to rea.s.sume their delegations of power-especially in the terms employed by Virginia, "people of the United States"-as having reference to [pg 174] the idea of one people, in ma.s.s, or "in the aggregate." But it can scarcely be possible that any candid and intelligent reader, who has carefully considered the evidence already brought to bear on the subject, can need further argument to disabuse his mind of that political fiction. The "people of the United States," from whom the powers of the Federal Government were "derived," could have been no other than the people who ordained and ratified the Const.i.tution; and this, it has been shown beyond the power of denial, was done by the people of each State, severally and independently. No other people were known to the authors of the declarations above quoted. Mr. Madison was a leading member of the Virginia Convention, which made that declaration, as well as of the general Convention that drew up the Const.i.tution. We have seen what his idea of "the people of the United States" was-"not the people as composing one great body, but the people as composing thirteen sovereignties."94 Mr. Lee, of Westmoreland ("Light-Horse Harry"), in the same Convention, answering Mr. Henry's objection to the expression, "We, the people," said: "It [the Const.i.tution] is now submitted to the people of Virginia. If we do not adopt it, it will be always null and void as to us. Suppose it was found proper for our adoption, and becoming the government of the people of Virginia, by what style should it be done? Ought we not to make use of the name of the people? No other style would be proper."95 It would certainly be superfluous, after all that has been presented heretofore, to add any further evidence of the meaning that was attached to these expressions by their authors. "The people of the United States" were in their minds the people of Virginia, the people of Ma.s.sachusetts, and the people of every other State that should agree to unite. They could have meant only that the people of their respective States who had delegated certain powers to the Federal Government, in ratifying the Const.i.tution and acceding to the Union, reserved to themselves the right, in event of the failure of their purposes, to "resume" (or "rea.s.sume") those powers by seceding from the same Union.

[pg 175]

Finally, the absurdity of the construction attempted to be put upon these expressions will be evident from a very brief a.n.a.lysis. If the a.s.sertion of the right of rea.s.sumption of their powers was meant for the protection of the whole people-the people in ma.s.s-the people "in the aggregate"-of a consolidated republic-against whom or what was it to protect them? By whom were the powers granted to be perverted to the injury or oppression of the whole people? By themselves or by some of the States, all of whom, according to this hypothesis, had been consolidated into one? As no danger could have been apprehended from either of these, it must have been against the Government of the United States that the provision was made; that is to say, the whole people of a republic make this declaration against a Government established by themselves and entirely subject to their own control, under a Const.i.tution which contains provision for its own amendment by this very same "whole people," whenever they may think proper! Is it not a libel upon the statesmen of that generation to attribute to their grave and solemn declarations a meaning so vapid and absurd?

To those who argue that the grants of the Const.i.tution are fatal to the reservation of sovereignty by the States, the Const.i.tution furnishes a conclusive answer in the amendment which was coeval with the adoption of the instrument, and which declares that all powers not delegated to the Government of the Union were reserved to the States or to the people. As sovereignty was not delegated by the States, it was necessarily reserved. It would be superfluous to answer arguments against implied powers of the States; none are claimed by implication, because all not delegated by the States remained with them, and it was only in an abundance of caution that they expressed the right to resume such parts of their unlimited power as was delegated for the purposes enumerated. As there be those who see danger to the perpetuity of the Union in the possession of such power by the States, and insist that our fathers did not intend to bind the States together by a compact no better than "a rope of sand," it may be well to examine their position. From what have dangers to the Union arisen? Have they sprang from too great restriction on the exercise of the granted [pg 176] powers, or from the a.s.sumption by the General Government of power claimed by implication? The whole record of our Union answers, from the latter only.

Was this tendency to usurpation caused by the presumption of paramount authority in the General Government, or by the a.s.sertion of the right of a State to resume the powers it had delegated? Reasonably and honestly it can not be a.s.signed to the latter. Let it be supposed that the "whole people" had recognized the right of a State of the Union, peaceably and independently, to resume the powers which, peaceably and independently, she had delegated to the Federal Government, would not this have been potent to restrain the General Government from exercising its functions to the injury and oppression of such State? To deny that effect would be to suppose that a dominant majority would be willing to drive a State from the Union. Would the admission of the right of a State to resume the grants it had made, have led to the exercise of that right for light and trivial causes? Surely the evidence furnished by the nations, both ancient and modern, refutes the supposition. In the language of the Declaration of Independence, "All experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed." Would not real grievances be rendered more tolerable by the consciousness of power to remove them; and would not even imaginary wrongs be embittered by the manifestation of a purpose to make them perpetual? To ask these questions is to answer them.

The wise and brave men who had, at much peril and great sacrifice, secured the independence of the States, were as little disposed to surrender the sovereignty of the States as they were anxious to organize a General Government with adequate powers to remedy the defects of the Confederation. The Union they formed was not to destroy the States, but to "secure the blessings of liberty to ourselves and our posterity."

Footnote 88: (return) Parsons, "Rights of a Citizen," chap. xx, section 3.

Footnote 89: (return) Ratification appended to Articles of Confederation. (See Elliott's "Debates," vol. i, p. 113.)

Footnote 90: (return) "Federalist," No. xl.

Footnote 91: (return) Ibid., Nos. xli-xliv.

Footnote 92: (return) See Elliott's "Debates," vol. i, p. 360.