SECESSION.
The doctrine that a State has a right to secede and carry with it its
population and domain, has been effectually put down, and the unity and
integrity of the United States as a sovereign nation have been
effectively asserted on the battle-field; but the secessionists, though
disposed to submit to superior force, and demean themselves henceforth
as loyal citizens, most likely hold as firmly to the doctrine as before
finding themselves unable to reduce it to practice, and the Union
victory will remain incomplete till they are convinced in their
understandings that the Union has the better reason as well as the
superior military resources. The nation has conquered their bodies,
but it is hardly less important for our statesmen to conquer their
minds and win their hearts.
The right of secession is not claimed as a revolutionary right, or even
as a conventional right. The secessionists disclaim revolutionary
principles, and hold that the right of secession is anterior to the
convention, a right which the convention could neither give, nor take
away, because inherent in the very conception of a sovereign State.
Secession is simply the repeal by the State of the act of accession to
the Union; and as that act was a free, voluntary act of the State, she
must always be free to repeal it. The Union is a copartnership; a
State in the Union is simply a member of the firm, and has the right to
withdraw when it judges it for its interest to do so. There is no
power in a firm to compel a copartner to remain a member any longer
than be pleases. He is undoubtedly holden for the obligations
contracted by the firm while he remains a member; but for none
contracted after he has withdrawn and given due notice thereof.
So of a sovereign State in the Union. The Union itself, apart from the
sovereign States that compose it, is a mere abstraction, a nullity, and
binds nobody. All its substance and vitality are in the agreement by
which the States constitute themselves a firm or copartnership, for
certain specific purposes, and for which they open an office and
establish an agency under express instructions for the management of
the general affairs of the firm. The State is held jointly and
severally for all the legal obligations of the Union, contracted while
she is in it but no further; and is free to withdraw when she pleases,
precisely as an individual may withdraw from an ordinary business firm.
The remaining copartners have no right of compulsion or coercion
against the seceding member, for he, saving the obligations already
contracted, is as free to withdraw as they are to remain.
The population is fixed to the domain and goes with it; the domain is
attached to the State, and secedes in the secession of the State.
Secession, then, carries the entire State government, people, and
domain out of the Union, and restores ipso facto the State to its
original position of a sovereign State, foreign to the United States.
Being an independent sovereign State, she may enter into a new
confederacy, form a new copartnership, or merge herself in some other
foreign state, as she judges proper or finds opportunity. The States
that seceded formed among themselves a new confederacy, more to their
mind than the one formed in 1787, as they had a perfect right to do,
and in the war just ended they were not rebels nor revolutionists, but
a people fighting for the right of self-government, loyal citizens and
true patriots defending the independence and inviolability of their
country against foreign invaders. They are to be honored for their
loyalty and patriotism, and not branded as rebels and punished as
traitors.
This is the secession argument, which rests on no assumption of
revolutionary principles or abstract rights of man, and on no
allegation of real or imaginary wrongs received from the Union, but
simply on the original and inherent rights of the several States as
independent sovereign States. The argument is conclusive, and the
defence complete, if the Union is only a firm or copartnership, and the
sovereignty vests in the States severally. The refutation of the
secessionists is in the facts adduced that disprove the theory of State
sovereignty, and prove that the sovereignty vests not in the States
severally, but in the States united, or that the Union is sovereign,
and not the States individually. The Union is not a firm, a
copartnership, nor an artificial or conventional union, but a real,
living, constitutional union, founded in the original and indissoluble
unity of the American people, as one sovereign people. There is,
indeed, no such people, if we abstract the States, but there are no
States if we abstract this sovereign people or the Union. There is no
Union without the States, and there are no States without the Union.
The people are born States, and the States are born United States. The
Union and the States are simultaneous, born together, and enter alike
into the original and essential constitution of the American state.
This the facts and reasonings adduced fully establish.
But this one sovereign people that exists only as organized into
States, does not necessarily include the whole population or territory
included within the jurisdiction of the United States. It is restricted
to the people and territory or domain organized into States in the
Union, as in ancient Rome the ruling people were restricted to the
tenants of the sacred territory, which had been surveyed, and its
boundaries marked by the god Terminus, and which by no means included
all the territory held by the city, and of which she was both the
private proprietor and the public sovereign. The city had vast
possessions acquired by confiscation, by purchase, by treaty, or by
conquest, and in reference to which her celebrated agrarian laws were
enacted, and which have their counterpart in our homestead and kindred
laws. In this class of territory, of which the city was the private
owner, was the territory of all the Roman provinces, which was held to
be only leased to its occupants, who were often dispossessed, and their
lands given as a recompense by the consul or imperator to his disbanded
legionaries. The provincials were subjects of Rome, but formed no part
of the Roman people, and had no share in the political power of the
state, till at a late period the privileges of Roman citizens were
extended to them, and the Roman people became coextensive with the
Roman empire. So the United States have held and still hold large
territorial possessions, acquired by the acknowledgment of their
independence by Great Britain, the former sovereign, the cession of
particular states, and purchase from France, Spain, and Mexico. Till
erected into States and admitted into the Union, this territory, with
its population, though subject to the United States, makes no part of
the political or sovereign territory and people of the United States.
It is under the Union, not in it, as is indicated by the phrase
admitting into the Union--a legal phrase, since the constitution
ordains that "new States may be admitted by the Congress into this
Union."
There can be no secession that separates a State from the national
domain, and withdraws it from the territorial sovereignty or
jurisdiction of the United States; yet what hinders a State from going
out of the Union in the sense that it comes into it, and thus ceasing
to belong to the political people of the United States?
If the view of the constitution taken in the preceding chapters be
correct, and certainly no facts tend to disprove it, the accession of a
Territory as a State in the Union is a free act of the territorial
people. The Territory cannot organize and apply for admission as a
State, without what is called an "enabling act" of Congress or its
equivalent; but that act is permissive, not mandatory, and nothing
obliges the Territory to organize under it and apply for admission. It
may do so or not, as it chooses. What, then, hinders the State once in
the Union from going out or returning to its former condition of
territory subject to the Union? The original States did not need to
come in under an enabling act, for they were born States in the Union,
and were never territory outside of the Union and subject to it. But
they and the new States, adopted or naturalized States, once in the
Union, stand on a footing of perfect equality, and the original States
are no more and no less bound than they to remain States in the Union.
The ratification of the constitution by the original States was a free
act, as much so as the accession of a new State formed from territory
subject to the Union is a free act, and a free act is an act which one
is free to do or not to do, as he pleases. What a State is free to do
or not to do, it is free to undo, if it chooses. There is nothing in
either the State constitution or in that of the United States that
forbids it.
This is denied. The population and domain are inseparable in the
State; and if the State could take itself out of the Union, it would
take them out, and be ipso facto a sovereign State foreign to the
Union. It would take the domain and the population out of the Union,
it is conceded and even maintained, but not therefore would it take
them out of the jurisdiction of the Union, or would they exist as a
State foreign to the Union; for population and territory may coexist,
as Dacota, Colorado, or New Mexico, out of the Union, and yet be
subject to the Union, or within the jurisdiction of the United States.
But the Union is formed by the surrender by each of the States of its
individual sovereignty, and each State by its admission into the Union
surrenders its individual sovereignty, or binds itself by a
constitutional compact to merge its individual sovereignty in that of
the whole. It then cannot cease to be a State in the Union without
breach of contract. Having surrendered its sovereignty to the Union,
or bound itself by the constitution to exercise its original
sovereignty only as one of the United States, it can unmake itself of
its state character, only by consent of the United States, or by a
successful revolution. It is by virtue of this fact that secession is
rebellion against the United States, and that the General government,
as representing the Union, has the right and the duty to suppress it by
all the forces at its command.
There can be no rebellion where there is no allegiance. The States in
the Union cannot owe allegiance to the Union, for they are it, and for
any one to go out of it is no more an act of rebellion than it is for a
king to abdicate his throne. The Union is not formed by the surrender
to it by the several States of their respective individual sovereignty.
Such surrender could, as we have seen, form only an alliance, or a
confederation, not one sovereign people; and from an alliance, or
confederation, the ally or confederate has, saving its faith, the
inherent right to secede. The argument assumes that the States were
originally each in its individuality a sovereign state, but by the
convention which framed the constitution, each surrendered its
sovereignty to the whole, and thus several sovereign states became one
sovereign political people, governing in general matters through the
General government, and in particular matters through particular or
State governments. This is Mr. Madison's theory, and also Mr.
Webster's; but it has been refuted in the refutation of the theory that
makes government originate in compact. A sovereign state can,
undoubtedly, surrender its sovereignty, but can surrender it only to
something or somebody that really exists; for to Surrender to no one or
to nothing is, as has been shown, the same thing as not to surrender at
all; and the Union, being formed only by the surrender, is nothing
prior to it, or till after it is made, and therefore can be no
recipient of the surrender.
Besides, the theory is the reverse of the fact. The State does not
surrender or part with its sovereignty by coming into the Union, but
acquires by it all the rights it holds as a State. Between the original
States and the new States there is a difference of mode by which they
become States in the Union, but none in their powers, or the tenure by
which they hold them. The process by which new States are actually
formed and admitted into the Union, discloses at once what it is that
is gained or lost by admission. The domain and population, before the
organization of the Territory into one of the United States, are
subject to the United States, inseparably attached to the domain of the
Union, and under its sovereignty. The Territory so remains, organized
or unorganized, under a Territorial Government created by Congress.
Congress, by an enabling act, permits it to organize as a State, to
call a convention to form a State constitution, to elect under it, in
such way as the convention ordains, State officers, a State
legislature, and, in the way prescribed by the Constitution of the
United States, senators and representatives in Congress. Here is a
complete organization as a State, yet, though called a State, it is no
State at all, and is simply territory, without a single particle of
political power. To be a State it must be recognized and admitted by
Congress as a State in the Union, and when so recognized and admitted
it possesses, in union with the other United States, supreme political
sovereignty, jointly in all general matters, and individually in all
private and particular matters.
The Territory gives up no sovereign powers by coming into the Union,
for before it came into the Union it had no sovereignty, no political
rights at all. All the rights and powers it holds are held by the
simple fact that it has become a State in the Union. This is as true
of the original States as of the new States; for it has been shown in
the chapter on The United States, that the original British sovereignty
under which the colonies were organized and existed passed, on the fact
of independence, to the States United, and not to the States severally.
Hence if nine States had ratified the constitution, and the other four
had stood out, and refused to do it, which was within their competency,
they would not have been independent sovereign States, outside of the
Union, but Territories under the Union.
Texas forms the only exception to the rule that the States have never
been independent of the Union. All the other new States have been
formed from territory subject to the Union. This is true of all the
States formed out of the Territory of the Northwest, and out of the
domain ceded by France, Spain, and Mexico to the United States. All
these cessions were held by the United States as territory immediately
subject to the Union, before being erected into States; and by far the
larger part is so held even yet. But Texas was an independent foreign
state, and was annexed as a State without having been first subjected
as territory to the United States. It of course lost by annexation its
separate sovereignty. But this annexation was held by many to be
unconstitutional; it was made when the State sovereignty theory had
gained possession of the Government, and was annexed as a State instead
of being admitted as a State formed from territory belonging to the
United States, for the very purpose of committing the nation to that
theory. Its annexation was the prologue, as the Mexican war was the
first act in the secession drama, and as the epilogue is the
suppression of the rebellion on Texan soil. Texas is an exceptional
case, and forms no precedent, and cannot be adduced as invalidating the
general rule. Omitting Texas, the simple fact is, the States acquire
all their sovereign powers by being States in the Union, instead of
losing or surrendering them.
Our American statesmen have overlooked or not duly weighed the facts in
the case, because, holding the origin of government in compact, they
felt no need of looking back of the constitution to find the basis of
that unity of the American people which they assert. Neither Mr.
Madison nor Mr. Webster felt any difficulty in asserting it as created
by the convention of 1787, or in conceding the sovereignty of the
States prior to the Union, and denying its existence after the
ratification of the constitution. If it were not that they held that
the State originates in convention or the social compact, there would
be unpardonable presumption on the part of the present writer in
venturing to hazard an assertion contrary to theirs. But, if their
theory was unsound, their practical doctrine was not; for they
maintained that the American people are one sovereign people, and Mr.
Quincy Adams, an authority inferior to neither, maintained that they
were always one people, and that the States hold from the Union, not
the Union from the States. The States without the Union cease to exist
as political communities: the Union without the States ceases to be a
Union, and becomes a vast centralized and consolidated state, ready to
lapse from a civilized into a barbaric, from a republican to a despotic
nation.
The State, under the American system, as distinguished from Territory,
is not in the domain and population fixed to it, nor yet in its
exterior organization, but solely in the political powers, rights, and
franchises which it holds from the United States, or as one of the
United States. As these are rights, not obligations, the State may
resign or abdicate them and cease to be a State, on the same principle
that any man may abdicate or forego his rights. In doing so, the State
breaks no oath of allegiance, fails to fulfil no obligation she
contracted as a State: she simply forgoes her political rights and
franchises. So far, then, secession is possible, feasible, and not
unconstitutional or unlawful. But it is, as Mr. Sumner and others have
maintained, simply State suicide. Nothing hinders a State from
committing suicide, if she chooses, any more than there was something
which compelled the Territory to become a State in the Union against
its will.
It is objected to, this conclusion that the States were, prior to the
Union, independent sovereign States, and secession would not destroy
the State, but restore it to its original sovereignty and independence,
as the secessionists maintain. Certainly, if the States were, Prior to
the Union, sovereign States; but this is precisely what has been denied
and disproved; for prior to the Union there were no States. Secession
restores, or reduces, rather, the State to the condition it was in
before its admission into the Union; but that condition is that of
Territory, or a Territory subject to the United States, and not that of
an independent sovereign state. The State holds all its political
rights and powers in the Union from the Union, and has none out of it,
or in the condition in which its population and domain were before
being a State in the Union.
State suicide, it has been urged, releases its population and territory
from their allegiance to the Union, and as there is no rebellion where
there is no allegiance, resistance by its population and territory to
the Union, even war against the Union, would not be rebellion, but the
simple assertion of popular sovereignty. This is only the same
objection in another form. The lapse of the State releases the
population and territory from no allegiance to the Union; for their
allegiance to the Union was not contracted by their becoming a State,
and they have never in their State character owed allegiance to the
United States. A State owes no allegiance to the United States, for it
is one of them, and is jointly sovereign. The relation between the
United States and the State is not the relation of suzerain and
liegeman or vassal. A State owes no allegiance, for it is not subject
to the Union; it is never in their State capacity that its population
and territory do or can rebel. Hence, the Government has steadily
denied that, in the late rebellion, any State as such rebelled.
But as a State cannot rebel, no State can go out of the Union; and
therefore no State in the late rebellion has seceded, and the States
that passed secession ordinances are and all along have been States in
the Union. No State can rebel, but it does not follow therefrom that
no State can secede or cease to exist as a State: it only follows that
secession, in the sense of State suicide, or the abdication by the
State of its political rights and powers, is not rebellion. Nor does
it follow from the fact that no State has rebelled, that no State has
ceased to be a State; or that the States that passed secession
ordinances have been all along States in the Union.
The secession ordinances were illegal, unconstitutional, not within the
competency of the State, and therefore null and void from the
beginning. Unconstitutional, illegal, and not within the competency of
the State, so far as intended to alienate any portion of the national
domain and population thereto annexed, they certainly were, and so far
were void and of no effect; but so far as intended to take the State
simply as a State out of the Union, they were within the competency of
the State, were not illegal or unconstitutional, and therefore not null
and void. Acts unconstitutional in some parts and constitutional in
others are not wholly void. The unconstitutionality vitiates only the
unconstitutional parts; the others are valid, are law, and recognized
and enforced as such by the courts.
The secession ordinances are void, because they were never passed by
the people of the State, but by a faction that overawed them and
usurped the authority of the State. This argument implies that, if a
secession ordinance is passed by the people proper of the State, it is
valid; which is more than they who urge it against the State suicide
doctrine are prepared to concede. But the secession ordinances were in
every instance passed by the people of the State in convention legally
assembled, therefore by them in their highest State capacity--in the
same capacity in which they ordain and ratify the State constitution
itself; and in nearly all the States they were in addition ratified and
confirmed, if the facts have been correctly reported, by a genuine
plebiscitum, or direct vote of the people. In all cases they were
adopted by a decided majority of the political people of the State, and
after their adoption they were acquiesced in and indeed actively
supported by very nearly the whole people. The people of the States
adopting the secession ordinances were far more unanimous in supporting
secession than the people of the other States were in sustaining the
Government in its efforts to suppress the rebellion by coercive
measures. It will not do, then, to ascribe the secession ordinances to
a faction. The people are never a faction, nor is a faction ever the
majority.
There has been a disposition at the North, encouraged by the few Union
men at the South, to regard secession as the work of a few ambitious
and unprincipled leaders, who, by their threats, their violence, and
their overbearing manner, forced the mass of the people of their
respective States into secession against their convictions and their
will. No doubt there were leaders at the South, as there are in every
great movement at the North; no doubt there were individuals in the
seceding States that held secession wrong in principle, and were
conscientiously attached to the Union; no doubt, also, there were men
who adhered to the Union, not because they disapproved secession, but
because they disliked the men at the head of the movement, or because
they were keen-sighted enough to see that it could not succeed, that
the Union must be the winning side, and that by adhering to it they
would become the great and leading men of their respective States,
which they certainly could not be under secession. Others sympathized
fully with what was called the Southern cause, held firmly the right of
secession, and hated cordially the Yankees, but doubted either the
practicability or the expediency of secession, and opposed it till
resolved on, but, after it was resolved on, yielded to none in their
earnest support of it. These last comprised the immense majority of
those who voted against secession. Never could those called the
Southern leaders have carried the secession ordinances, never could
they have carried on the war with the vigor and determination, and with
such formidable armies as they collected and armed for four years,
making at times the destiny of the Union well nigh doubtful, if they
had not had the Southern heart with them, if they had not been most
heartily supported by the overwhelming mass of the people. They led a
popular, not a factious movement.
No State, it is said again, has seceded, or could secede. The State is
territorial, not personal, and as no State can carry its territory and
population out of the Union, no State can secede. Out of the
jurisdiction of the Union, or alienate them from the sovereign or
national domain, very true; but out of the Union as a State, with
rights, powers, or franchises in the Union, not true. Secession is
political, not territorial.
But the State holds from the territory or domain. The people are
sovereign because attached to a sovereign territory, not the domain
because held by a sovereign people, as was established by the analysis
of the early Roman constitution. The territory of the States
corresponds to the sacred territory of Rome, to which was attached the
Roman sovereignty. That territory, once surveyed and consecrated,
remained sacred and the ruling territory, and could not be divested of
its sacred and governing character. The portions of the territory of
the United States once erected into States and consecrated as ruling
territory can never be deprived, except by foreign conquest or
successful revolution, of its sacred character and inviolable rights.
The State is territorial, not personal, and is constituted by public,
not by private wealth, and is always respublica or commonwealth, in
distinction from despotism or monarchy in its oriental sense, which is
founded on private wealth, or which assumes that the authority to
govern, or sovereignty, is the private estate of the sovereign. All
power is a domain, but there is no domain without a dominus or lord.
In oriental monarchies the dominus is the monarch; in republics it is
the public or people fixed to the soil or territory, that is, the
people in their territorial, and not in their personal or genealogical
relation. The people of The United States are sovereign only within
the territory or domain of the United States, and their sovereignty is
a state, because fixed, attached, or limited to that specific
territory. It is fixed to the soil, not nomadic. In barbaric nations
power is nomadic and personal, or genealogical, confined to no
locality, but attaches to the chief, and follows wherever he goes. The
Gothic chiefs hold their power by a personal title, and have the same
authority in their tribes on the Po or the Rhone as on the banks of the
Elbe or the Danube. Power migrates with the chief and his people, and
may be exercised wherever he and they find themselves, as a Swedish
queen held when she ordered the execution of one of her subjects at
Paris, without asking permission of the territorial lord. In these
nations, power is a personal right, or a private estate, not a state
which exists only as attached to the domain, and, as attached to the
domain, exists independently of the chief or the government. The
distinction is between public domain and private domain.
The American system is republican, and, contrary to what some
democratic politicians assert, the American democracy is territorial,
not personal; not territorial because the majority of the people are
agriculturists or landholders, but because all political rights,
powers, or franchises are territorial. The sovereign people of the
United States are sovereign only within the territory of the United
States. The great body of the freemen have the elective franchise, but
no one has it save in his State, his county, his town, his ward, his
precinct. Out of the election district in which he is domiciled, a
citizen of the United States has no more right to vote than has the
citizen or subject of a foreign state. This explains what is meant by
the attachment of power to the territory, and the dependence of the
state on the domain. The state, in republican states, exists only as
inseparably united with the public domain; under feudalism, power was
joined to territory or domain, but the domain was held as a private,
not as a public domain. All sovereignty rests on domain or
proprietorship, and is dominion. The proprietor is the dominus or lord,
and in republican states the lord is society, or the public, and the
domain is held for the common or public good of all. All political
rights are held from society, or the dominus, and therefore it is the
elective franchise is held from society, and is a civil right, as
distinguished from a natural, or even a purely personal right.
As there is no domain without a lord or dominus, territory alone cannot
possess any political rights or franchises, for it is not a domain. In
the American system, the dominus or lord is not the particular State,
but the United States, and, the domain of the whole territory, whether
erected into particular States or not, is in the United States alone.
The United States do not part with the dominion of that portion of the
national domain included within a particular State. The State holds
the domain not separately but jointly, as inseparably one of the United
States: separated, it has no dominion, is no State, and is no longer a
joint sovereign at all, and the territory that it included falls into
the condition of any other territory held by the United States not
erected into one of the United States.
Lawyers, indeed, tell us that the eminent domain is in the particular
State, and that all escheats are to the State, not to the United
States. All escheats of private estates, but no public or general
escheats. But this has nothing to do with the public domain. The
United States are the dominus, but they have, by the constitution,
divided the powers of government between a General government and
particular State governments, and ordained that all matters of a
general nature, common to all the States, should be placed under the
supreme control of the former, and all matters of a private or
particular character under the supreme control of the latter. The
eminent domain of private estates is in the particular State, but the
sovereign authority in the particular State is that of the United
States expressing itself through the State government. The United
States, in the States as well as out of them, is the dominus, as the
States respectively would soon find if they were to undertake to
alienate any part of their domain to a foreign power, or even to the
citizens or subjects of a foreign State, as is also evident from the
fact that the United States, in the way prescribed by the constitution,
may enlarge or contract at will the rights and powers of the States.
The mistake on this point grows out of the habit of restricting the
action of the United States to the General government, and not
recollecting that the United States govern one class of subjects
through the General government and another class through State
governments, but that it is one and the same authority that governs in
both.
The analogy borrowed from the Roman constitution, as far as applicable,
proves the reverse of what is intended. The dominus of the sacred
territory was the city, or the Roman state, not the sacred territory
itself. The territory received the tenant, and gave him as tenant the
right to a seat in the senate; but the right of the territory was
derived not from the domain, but from the dominus, that is, the city.
But the city could revoke its grant, as it practically did when it
conferred the privileges of Roman citizenship on the provincials, and
gave to plebeians seats in the senate. Moreover, nothing in Roman
history indicates that to the validity of a senatus consultum it was
necessary to count the vacant domains of the sacred territory. The
particular domain must, under the American system, be counted when it
is held by a State, but of itself alone, or even with its population,
it is not a State, and therefore as a State domain is vacant and
without any political rights or powers whatever.
To argue that the territory and population once a State in the Union
must needs always be so, would be well enough if a State in the Union
were individually a sovereign state; for territory, with its population
not subject to another, is always a sovereign state, even though its
government has been subverted. But this is not the fact, for territory
with its population does not constitute a State in the Union; and,
therefore, when of a State nothing remains but territory and
population, the State has evidently disappeared. It will not do then
to maintain that State suicide is impossible, and that the States that
adopted secession ordinances have never for a moment ceased to be
States in the Union, and are free, whenever they choose, to send their
representatives and senators to occupy their vacant seats in Congress.
They must be reorganized first.
There would also be some embarrassment to the government in holding
that the States that passed the secession ordinance remain,
notwithstanding, States in the Union. The citizens of a State in the
Union cannot be rebels to the United States, unless they are rebels to
their State; and rebels to their State they are not, unless they resist
its authority and make war on it. The authority of the State in the
Union is a legal authority, and the citizen in obeying it is disloyal
neither to the State nor to the Union. The citizens in the States that
made war on the United States did not resist their State, for they
acted by its authority. The only men, on this supposition, in them,
who have been traitors or rebels, are precisely the Union men who have
refused to go with their respective States, and have resisted, even
with armed force, the secession ordinances. The several State
governments, under which the so-called rebels carried on the war for
the destruction of the Union, if the States are in the Union, were
legal and loyal governments of their respective States, for they were
legally elected and installed, and conformed to their respective State
constitutions. All the acts of these governments have been
constitutional. Their entering into a confederacy for attaining a
separate nationality has been legal, and the debts contracted by the
States individually, or by the confederacy legally formed by them, have
been legally contracted, stand good against them, and perhaps against
the United States. The war against them has been all wrong, and the
confederates killed in battle have been murdered by the United States.
The blockade has been illegal, for no nation can blockade its own
ports, and the captures and seizures under it, robberies. The Supreme
Court has been wrong in declaring the war a territorial civil war, as
well as the government in acting accordingly. Now, all these
conclusions are manifestly false and absurd, and therefore the
assumption that the States in question have all along been States in
the Union cannot be sustained.
It is easy to understand the resistance the Government offers to the
doctrine that a State may commit suicide, or by its own act abdicate
its rights and cease to be a State in the Union. It is admissible on
no theory of the constitution that has been widely entertained. It is
not admissible on Mr. Calhoun's theory of State sovereignty, for on
that theory a State in going out of the Union does not cease to be a
State but simply resumes the powers it had delegated to the General
government. It cannot be maintained on Mr. Madison's or Mr. Webster's
theory, that the States prior to the Union were severally sovereign,
but by the Union were constituted one people; for, if this one people
are understood to be a federal people, State secession would not be
State suicide, but State independence; and if understood to be one
consolidated or centralized people, it would be simply insurrection or
rebellion against the national authority, laboring to make itself a
revolution. The government seems to have understood Mr. Madison's
theory in both senses--in the consolidated sense, in declaring the
secessionists insurgents and rebels, and in the federal sense, in
maintaining that they have never seceded, and are still States in the
Union, in full possession of all their political or State rights.
Perhaps, if the government, instead of borrowing from contradictory
theories of the constitution which have gained currency, had examined
in the light of historical facts the constitution itself, it would have
been as constitutional in its doctrine as it has been loyal and
patriotic, energetic and successful in its military administration.
Another reason why the doctrine that State secession is State suicide
has appeared so offensive to many, is the supposition entertained at
one time by some of its friends, that the dissolution of the State
vacates all rights and franchises held under it. But this is a
mistake. The principle is well known and recognized by the
jurisprudence of all civilized nations, that in the transfer of a
territory from one territorial sovereign to another, the laws in force
under the old sovereign remain in force after the change, till
abrogated, or others are enacted in their place by the new sovereign,
except such as are necessarily abrogated by the change itself of the
sovereign; not, indeed, because the old sovereign retains any
authority, but, because such is presumed by the courts to be the will
of the new sovereign. The principle applies in the case of the death
of a State in the Union. The laws of the State are territorial, till
abrogated by competent authority, remain the lex loci, and are in full
force. All that would be vacated would be the public rights of the
State, and in no case the private rights of citizens, corporations, or
laws affecting them.
But the same conclusion is reached in another way. In the lapse of a
State or its return to the condition of a Territory, there is really no
change of sovereignty. The sovereignty, both before and after, is the
United States. The sovereign authority that governs in the State
government, as we have seen, though independent of the General
government, is the United States. The United States govern certain
matters through a General government, and others through particular
State governments. The private rights and interests created,
regulated, or protected by the particular State, are created,
regulated, or protected by the United States, as much and as plenarily
as if done by the General government, and the State laws creating,
regulating, or protecting them can be abrogated by no power known to
the constitution, but either the State itself, or the United States in
convention legally assembled. If this were what is meant by the States
that have seceded, or professed to secede, remaining States in the
Union, they would, indeed, be States still in the Union,
notwithstanding secession and the government would be right in saying
that no State can secede. But this is not what is meant, at least not
all that is meant. It is meant not only that the private rights of
citizens and corporations remain, but the citizens retain all the
public rights of the State, that is, the right to representation in
Congress and in the electoral college, and the right to sit in the
convention, which is not true.
But the correction of the misapprehension that the private rights and
interests are lost by the lapse of the State may remove the graver
prejudices against the doctrine of State suicide, and dispose loyal and
honest Union men to bear the reasons by which it is supported, and
which nobody has refuted or can refute on constitutional grounds. A
Territory by coming into the Union becomes a State; a State by going
out of the Union becomes a Territory.