CHAPTER XII.

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contracted after he has withdrawn and given due notice thereof.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.

The American Republic: Its Constitution, Tendencies, and Destiny · 第 12 / 15 章