CHAPTER IV.

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.

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