WAS SECESSION TREASON?
A few more words, and we shall be in a condition to answer the question
which stands at the head of this chapter. Being a legal question, it will
depend entirely upon the constitutional right the Southern States may have
had to withdraw from the Union, without reference to considerations of
expediency, or of moral right; these latter will be more appropriately
considered, when we come to speak of the causes which impelled the
Southern States to the step. I have combated many of the arguments
presented by the other side, but a few others remain to be noticed.
It has been said, that, admitting that the Constitution was a federal
compact, yet the States did in fact cede away a part of their sovereignty,
and from this the inference has been deduced, that they no longer remained
sovereign for the purpose of recalling the part, which had been ceded
away. This is a question which arises wholly under the laws of nations. It
is admitted, that the States were independent sovereignties, before they
formed the Constitution. We have only, therefore, to consult the
international code, to ascertain to what extent the granting away of a
portion of their sovereignty affected the remainder. Vattel, treating of
this identical point, speaks as follows: "Several sovereign and
independent States may unite themselves together by a perpetual
confederacy, without ceasing to be, each individually, a perfect State.
They will, together, constitute a federal republic; their joint
deliberations will not impair the sovereignty of each member, though they
may, in certain respects, _put some restraint upon the exercise of it_, in
virtue of _voluntary_ engagements." That was just what the American States
did, when they formed the Federal Constitution; they put some voluntary
restraint upon their sovereignty, for the furtherance of a common object.
If they are restrained, by the Constitution, from doing certain things,
the restraint was self-imposed, for it was they who ordained, and
established the instrument, and not a common superior. They, each, agreed
that they would forbear to do certain things, if their copartners would
forbear to do the same things. As plain as this seems, no less an
authority than that of Mr. Webster has denied it; for, in his celebrated
argument against Mr. Calhoun, already referred to, he triumphantly
exclaimed, that the States were not sovereign, because _they were
restrained of a portion of their liberty by the Constitution_. See how he
perverts the whole tenor of the instrument, in his endeavor to build up
those manufactories of which we spoke in the last chapter. He says:
"However men may think this ought to be, the fact is, that _the people of
the United States_ have chosen to _impose control_ on State sovereignty.
There are those, doubtless, who wish that they had been left without
restraint; but the Constitution has ordered the matter differently. To
make war, for instance, is an exercise of sovereignty, but, the
Constitution declares that no State shall declare war. To coin money is
another act of sovereign power; but no State is at liberty to coin money.
Again, the Constitution says, that no sovereign State shall be so
sovereign, as to make a treaty. These prohibitions, it must be confessed,
are a control on the State sovereignty of South Carolina, as well as of
the other States, which does not arise from her feelings of honorable
justice."
Here we see, plainly, the germ of the monstrous heresy that has riven the
States asunder, in our day. The "people of the United States," a common
superior, ordained and established the Constitution, says Mr. Webster, and
imposed restraints upon the States! However some might wish they had been
left without restraint, the Constitution has "_ordained it differently_!"
And the ostrich stomach of the North received, and digested this monstrous
perversion of the plainest historical truth, in order that the spindle
might whirr on, and the shuttle dance from side to side of the loom.
Following the idea of Mr. Webster, that the people of the United States
gave constitutional law to the States, instead of receiving it from them,
Northern writers frequently ask, in what part of the Constitution, is the
doctrine of secession found? In no part. It was not necessary to put it
there. The States who formed the instrument, delegated certain powers to
the Federal Government, retaining all others. Did they part, with the
right of secession? Could they have parted with it, without consenting to
a merger of their sovereignty? And so far from doing this, we have seen
with what jealous care they protested against even the implication of such
a merger, in the 10th amendment to the Constitution. If the power was not
parted with, by explicit grant, did it not remain to them, even before the
10th amendment was adopted, and still more, if possible, after it was
adopted?
To make it still more apparent, that the common understanding among the
Fathers of the Constitution was, that this right of secession was
reserved, it is only necessary to refer to what took place, during the
transition from the old to the new government. The thirteen original
States seceded, as we have seen, from the Articles of Confederation, not
unanimously, or all together, but one by one, each State acting for
itself, without consulting the interests, or inclinations of the others.
One of the provisions of those Articles was as follows: "Every State shall
abide by the determination of the United States, in Congress assembled, in
all questions, which, by this Confederation, are submitted to them; and
the Articles of this Confederation shall be inviolably observed by every
State, and the Union shall be _perpetual_; nor shall any alteration, at
any time hereafter, be made in any of them, unless such alteration be
agreed to, in a Congress of the United States, and be afterward confirmed
_by the legislature of every State_."
Now, it is a pertinent, and instructive fact, that no similar provision of
perpetuity was engrafted in the new Constitution. There must have been a
motive for this--it could not have been a mere accidental omission--and
the motive probably was, that the Convention of 1787 were ashamed to
attempt, a second time, to bind sovereign States, by _a rope of sand_,
which they, themselves, were in the act of pulling asunder. It was in
accordance with this understanding, that both New York and Virginia, in
their ratifications of the new Constitution, expressly reserved to
themselves the right of secession; and no objection was made to such
conditional ratifications. The reservations made by these States enure, as
a matter of course, to the benefit of all the States, as they were all to
go into the new Union, on precisely the same footing.
In the extract from Mr. Webster's speech, which has been given above, it
is alleged among other things, that the States are not sovereign, because
they cannot make treaties; and this disability also has been urged as an
argument against secession. The disability, like others, was self-imposed,
and, as any one may see, was intended to be binding on the States only so
long as the contract which they were then forming should endure. The
Confederate States respected this obligation while they remained in the
Federal Union. They scrupulously forbore from contracting with each other
until they had resumed, each for itself, their original sovereignty; they
were then not only free to contract with each other, but to do and perform
all the other acts enumerated by Mr. Webster; the act of declaring war
included, even though this war should be against their late confederates.
The truth is, the more we sift these arguments of our late enemies, the
less real merit there appears in them. The facts of history are too
stubborn, and refuse to be bent to conform to the new doctrines. We see it
emblazoned on every page of American history for forty years, that the
Constitution was a compact between the States; that the Federal Government
was created, by, and for the benefit of the States, and possessed and
could possess no other power than such as was conferred upon it by the
States; that the States reserved to themselves all the powers not granted,
and that they took especial pains to guard their sovereignty, in terms, by
an amendment to the Constitution, lest, by possibility, their intentions
in the formation of the new government, should be misconstrued.
In the course of time this government is perverted from its original
design. Instead of remaining the faithful and impartial agent of all the
States, a faction obtains control of it, in the interests of some of them,
and turns it, as an engine of oppression, against the others. These
latter, after long and patient suffering, after having exhausted all
their means of defence, within the Union, withdraw from the agent the
powers which they had conferred upon him, form a new Confederacy, and
desire "to be let alone." And what is the consequence? They are denounced
as rebels and traitors, armies are equipped, and fleets provided, and a
war of subjugation is waged against them. What says the reader? Does he
see rebellion and treason lurking in the conduct of these States? Are
they, indeed, in his opinion, in face of the record which he has
inspected, so bereft of their sovereignty, as to be incapable of defending
themselves, except with halters around the necks of their citizens?
Let us examine this latter question of halters for a moment. The States
existed before the Federal Government; the citizens of the States owed
allegiance to their respective States, and to none others. By what process
was any portion of this allegiance transferred to the Federal Government,
and to what extent was it transferred? It was transferred by the States,
themselves, when they entered into the federal compact, and not by the
individual citizens, for these had no power to make such a transfer.
Although it be admitted, that a citizen of any one of the States may have
had the right to expatriate himself entirely--and this was not so clear a
doctrine at that day--and transfer his allegiance to another government,
yet it is quite certain, that he could not, _ex mero motu_, divide his
allegiance. His allegiance then was transferred to the Federal Government,
by his State, whether he would or not.
Take the case of Patrick Henry, for example. He resisted the adoption of
the Federal Constitution, by the State of Virginia, with all the energies
of an ardent nature, solemnly believing that his State was committing
suicide. And yet, when Virginia did adopt that Constitution, he became, by
virtue of that act, a citizen of the United States, and owed allegiance to
the Federal Government. He had been born in the hallowed old Commonwealth.
In the days of his boyhood he had played on the banks of the Appomattox,
and fished in its waters. As he grew to man's estate, all his cherished
hopes and aspirations clustered around his beloved State. The bones of his
ancestors were interred in her soil; his loves, his joys, his sorrows
were all centred there. In short, he felt the inspiration of patriotism,
that noble sentiment which nerves men to do, and dare, unto the death, for
their native soil. Will it be said, _can_ it be said, without revolting
all the best feelings of the human heart, that if Patrick Henry had lived
to see a war of subjugation waged against his native State, he would have
been a traitor for striking in her defence? Was this one of the results
which our ancestors designed, when they framed the federal compact? It
would be uncharitable to accuse them of such folly, and stupidity, nay of
such cruelty. If this doctrine be true, that secession is treason, then
our ancestors framed a government, which could not fail to make traitors
of their descendants, in case of a conflict between the States, and that
government, let them act as they would.
It was frequently argued in the "Federalist," and elsewhere, by those who
were persuading the States to adopt the Federal Constitution, that the
State would have a sufficient guarantee of protection, in the love, and
affection of its citizens--that the citizen would naturally cling to his
State, and side with her against the Federal Government--that, in fact, it
was rather to be apprehended that the Federal Government would be too
weak, and the States too strong, for this reason, instead of the converse
of the proposition being true. It was not doubted, in that day, that the
primary and paramount allegiance of the citizen was due to his State, and,
that, in case of a conflict between her and the Federal Government, his
State would have the right to withdraw his allegiance, from that
Government. If it was she who transferred it, and if she had the right to
transfer it, it follows beyond question, that she would have the right to
withdraw it. It was not a case for the voluntary action of the citizen,
either way; he could not, of his own free will, either give his allegiance
to the Federal Government, or take it away.
If this be true, observe in what a dilemma he has been placed, on the
hypothesis that secession is treason. If he adheres to the Federal
Government, after his State has withdrawn his allegiance from that
Government, and takes up arms against his State, he becomes a traitor to
his State. If he adheres to his State, and takes up arms against the
Federal Government, he becomes a traitor to that Government. He is thus a
traitor either way, and there is no helping himself. Is this consistent
with the supposed wisdom of the political Fathers, those practical, common
sense men, who formed the Federal Constitution?
The mutations of governments, like all human events, are constantly going
on. No government stands still, any more than the individuals of which it
is composed. The only difference is, that the changes are not quite so
obvious to the generation which views them. The framers of the
Constitution did not dare to hope that they had formed a government, that
was to last forever. Nay, many of them had serious misgivings as to the
result of the _experiment_ they were making. Is it possible, then, that
those men so legislated, as to render it morally certain, that if their
experiment should fail, their descendants must become either slaves or
traitors? If the doctrine that secession is treason be true, it matters
not how grievously a State might be oppressed, by the Federal Government;
she has been deprived of the power of lawful resistance, and must regain
her liberty, if at all, like other enslaved States, at the hazard of war,
and rebellion. Was this the sort of experiment in government, that our
forefathers supposed they were making? Every reader of history knows that
it was not.