CHAPTER XI.

The Right of Secession.--The Law of Unlimited Partnerships.--The

"Perpetual Union" of the Articles of Confederation and the "More

Perfect Union" of the Constitution.--The Important Powers

conferred upon the Federal Government and the Fundamental

Principles of the Compact the same in both Systems.--The Right

to resume Grants, when failing to fulfill their Purposes,

expressly and distinctly asserted in the Adoption of the

Constitution.

The Right of Secession--that subject which, beyond all others,

ignorance, prejudice, and political rancor have combined to cloud with

misstatements and misapprehensions--is a question easily to be

determined in the light of what has already been established with regard

to the history and principles of the Constitution. It is not something

standing apart by itself--a factious creation, outside of and

antagonistic to the Constitution--as might be imagined by one deriving

his ideas from the political literature most current of late years. So

far from being against the Constitution or incompatible with it, we

contend that, if the right to secede is not prohibited to the States,

and no power to prevent it expressly delegated to the United States, it

remains as reserved to the States or the people, from whom all the

powers of the General Government were derived.

The compact between the States which formed the Union was in the nature

of a partnership between individuals without limitation of time, and the

recognized law of such partnerships is thus stated by an eminent lawyer

of Massachusetts in a work intended for popular use:

"If the articles between the partners do not contain an

agreement that the partnership shall continue for a specified

time, it may be dissolved at the pleasure of either partner. But

no partner can exercise this power wantonly and injuriously to

the other partners, without making himself responsible for the

damage he thus causes. If there be a provision that the

partnership shall continue a certain time, this is binding."[88]

We have seen that a number of "sovereign, free, and independent" States,

during the war of the Revolution, entered into a partnership with one

another, which was not only unlimited in duration, but expressly

declared to be a "perpetual union." Yet, when that Union failed to

accomplish the purposes for which it was formed, the parties withdrew,

separately and independently, one after another, without any question

made of their right to do so, and formed a new association. One of the

declared objects of this new partnership was to form "a more perfect

union." This certainly did not mean more perfect in respect of duration;

for the former union had been declared perpetual, and perpetuity admits

of no addition. It did not mean that it was to be more indissoluble; for

the delegates of the States, in ratifying the former compact of union,

had expressed themselves in terms that could scarcely be made more

stringent. They then said:

"And we do further _solemnly plight and engage the faith of our

respective constituents_, that they shall abide by the

determinations of the United States in Congress assembled, on

all questions which, by the said confederation, are submitted to

them; and that the articles thereof shall be _inviolably

observed_ by the States we respectively represent; and that _the

Union shall be perpetual_."[89]

The formation of a "more perfect union" was accomplished by the

organization of a government more complete in its various branches,

legislative, executive, and judicial, and by the delegation to this

Government of certain additional powers or functions which had

previously been exercised by the Governments of the respective

States--especially in providing the means of operating directly upon

individuals for the enforcement of its legitimately delegated authority.

There was no abandonment nor modification of the essential principle of

a _compact_ between sovereigns, which applied to the one case as fully

as to the other. There was not the slightest intimation of so radical a

revolution as the surrender of the sovereignty of the contracting

parties would have been. The additional powers conferred upon the

Federal Government by the Constitution were merely transfers of some of

those possessed by the State governments--not subtractions from the

reserved and inalienable sovereignty of the political communities which

conferred them. It was merely the institution of a new agent who,

however enlarged his powers might be, would still remain subordinate and

responsible to the source from which they were derived--that of the

sovereign people of each State. It was an amended Union, not a

consolidation.

It is a remarkable fact that the very powers of the Federal Government

and prohibitions to the States, which are most relied upon by the

advocates of centralism as incompatible with State sovereignty, were in

force under the old Confederation when the sovereignty of the States was

expressly recognized. The General Government had then, as now, the

exclusive right and power of determining on peace and war, making

treaties and alliances, maintaining an army and navy, granting letters

of marque and reprisal, regulating coinage, establishing and controlling

the postal service--indeed, nearly all the so-called "characteristic

powers of sovereignty" exercised by the Federal Government under the

existing Constitution, except the regulation of commerce, and of levying

and collecting its revenues directly, instead of through the

interposition of the State authorities. The exercise of these

first-named powers was prohibited to the States under the old compact,

"without the consent of the United States in Congress assembled," but no

one has claimed that the Confederation had thereby acquired sovereignty.

Entirely in accord with these truths are the arguments of Mr. Madison in

the "Federalist," to show that the great principles of the Constitution

are substantially the same as those of the Articles of Confederation. He

says:

"I ask, What are these principles? Do they require that, in the

establishment of the Constitution, the States should be regarded

as distinct and independent sovereigns? They _are_ so regarded

by the Constitution proposed.... Do these principles, in fine,

require that the powers of the General Government should be

limited, and that, beyond this limit, the States should be left

in possession of their sovereignty and independence? We have

seen that, in the new Government as in the old, the general

powers are limited; and that the States, in all unenumerated

cases, are left in the enjoyment of their sovereign and

independent jurisdiction."

"The truth is," he adds, "that the great principles of the Constitution

proposed by the Convention may be considered _less as absolutely new,

than as the expansion of principles which are found in the Articles of

Confederation_."[90]

In the papers immediately following, he establishes this position in

detail by an analysis of the principal powers delegated to the Federal

Government, showing that the spirit of the original instructions to the

Convention had been followed in revising "the Federal Constitution" and

rendering it "adequate to the exigencies of government and the

preservation of the Union."[91]

The present Union owes its very existence to the dissolution, by

separate secession of its members, of the former Union, which, as we

have thus seen, as to its _organic principles_, rested upon precisely

the same foundation. The right to withdraw from the association results,

in either case, from the same principles--principles which, I think,

have been established on an impregnable basis of history, reason, law,

and precedent.

It is not contended that this right should be resorted to for

insufficient cause, or, as the writer already quoted on the law of

partnership says, "wantonly and injuriously to the other partners,"

without responsibility of the seceding party for any damage thus done.

No association can be dissolved without a likelihood of the occurrence

of incidental questions concerning common property and mutual

obligations--questions sometimes of a complex and intricate sort. If a

wrong be perpetrated, in such case, it is a matter for determination by

the means usually employed among independent and sovereign

powers--negotiation, arbitration, or, in the failure of these, by war,

with which, unfortunately, Christianity and civilization have not yet

been able entirely to dispense. But the suggestion of possible evils

does not at all affect the question of right. There is no great

principle in the affairs either of individuals or of nations that is not

liable to such difficulties in its practical application.

But, we are told, there is no mention made of secession in the

Constitution. Mr. Everett says: "The States are not named in it; the

word sovereignty does not occur in it; the right of secession is as much

ignored in it as the procession of the equinoxes." We have seen how very

untenable is the assertion that the States are not named in it, and how

much pertinency or significance in the omission of the _word_

"sovereignty." The pertinent question that occurs is, Why was so obvious

an attribute of sovereignty not expressly renounced if it was intended

to surrender it? It certainly existed; it was not surrendered; therefore

it still exists. This would be a more natural and rational conclusion

than that it has ceased to exist because it is not mentioned.

The simple truth is, that it would have been a very extraordinary thing

to incorporate into the Constitution any express provision for the

secession of the States and dissolution of the Union. Its founders

undoubtedly desired and hoped that it would be perpetual; against the

proposition for power to coerce a State, the argument was that it would

be a means, not of preserving, but of destroying, the Union. It was not

for them to make arrangements for its termination--a calamity which

there was no occasion to provide for in advance. Sufficient for their

day was the evil thereof. It is not usual, either in partnerships

between men or in treaties between governments, to make provision for a

dissolution of the partnership or a termination of the treaty, unless

there be some special reason for a limitation of time. Indeed, in

treaties, the usual formula includes a declaration of their

_perpetuity_; but in either case the power of the contracting parties,

or of any of them, to dissolve the compact, on terms not damaging to the

rights of the other parties, is not the less clearly understood. It was

not necessary in the Constitution to affirm the right of secession,

because it was an attribute of sovereignty, and the States had reserved

all which they had not delegated.

The right of the people of the several States to resume the powers

delegated by them to the common agency, was not left without positive

and ample assertion, even at a period when it had never been denied. The

ratification of the Constitution by Virginia has already been quoted, in

which the people of that State, through their Convention, did expressly

"declare and make known that the powers granted under the Constitution,

being derived from the people of the United States, _may be resumed by

them_, whensoever the same shall be perverted to their injury or

oppression, and that every power not granted thereby remains with them

and at their will."[92]

New York and Rhode Island were no less explicit, both declaring that

"the powers of government _may be reassumed by the people_ whenever it

shall become necessary to their happiness."[93]

These expressions are not mere _obiter dicta_, thrown out incidentally,

and entitled only to be regarded as an expression of opinion by their

authors. Even if only such, they would carry great weight as the

deliberately expressed judgment of enlightened contemporaries, but they

are more: they are parts of the very acts or ordinances by which these

States ratified the Constitution and acceded to the Union, and can not

be detached from them. If they are invalid, the ratification itself was

invalid, for they are inseparable. By inserting these declarations in

their ordinances, Virginia, New York, and Rhode Island, formally,

officially, and permanently, declared their interpretation of the

Constitution as recognizing the right of secession by the resumption of

their grants. By accepting the ratifications with this declaration

incorporated, the other States as formally accepted the principle which

it asserted.

I am well aware that it has been attempted to construe these

declarations concerning the right of _the people_ to reassume their

delegations of power--especially in the terms employed by Virginia,

"people of the United States"--as having reference to the idea of _one

people_, in mass, or "in the aggregate." But it can scarcely be possible

that any candid and intelligent reader, who has carefully considered the

evidence already brought to bear on the subject, can need further

argument to disabuse his mind of that political fiction. The "people of

the United States," from whom the powers of the Federal Government were

"derived," _could have been_ no other than the people who ordained and

ratified the Constitution; and this, it has been shown beyond the power

of denial, was done by the people of _each State_, severally and

independently. No other _people_ were known to the authors of the

declarations above quoted. Mr. Madison was a leading member of the

Virginia Convention, which made that declaration, as well as of the

general Convention that drew up the Constitution. We have seen what

_his_ idea of "the people of the United States" was--"not the people as

composing one great body, but the people as composing thirteen

sovereignties."[94] Mr. Lee, of Westmoreland ("Light-Horse Harry"), in

the same Convention, answering Mr. Henry's objection to the expression,

"We, the people," said: "It [the Constitution] is now submitted to _the

people of Virginia_. If we do not adopt it, it will be always null and

void as to us. Suppose it was found proper for our adoption, and

becoming the government of _the people of Virginia_, by what style

should it be done? Ought we not to make use of the name of the people?

No other style would be proper."[95] It would certainly be superfluous,

after all that has been presented heretofore, to add any further

evidence of the meaning that was attached to these expressions by their

authors. "The people of the United States" were in their minds the

people of Virginia, the people of Massachusetts, and the people of every

other State that should agree to unite. They _could_ have meant only

that the people of their respective States who had delegated certain

powers to the Federal Government, in ratifying the Constitution and

_acceding_ to the Union, reserved to themselves the right, in event of

the failure of their purposes, to "resume" (or "reassume") those powers

by _seceding_ from the same Union.

Finally, the absurdity of the construction attempted to be put upon

these expressions will be evident from a very brief analysis. If the

assertion of the right of reassumption of their powers was meant for the

protection of _the whole people_--the people in mass--the people "in the

aggregate"--of a consolidated republic--against whom or what was it to

protect them? By whom were the powers granted to be perverted to the

injury or oppression of the whole people? By themselves or by some of

the States, all of whom, according to this hypothesis, had been

consolidated into one? As no danger could have been apprehended from

either of these, it must have been against the _Government_ of the

United States that the provision was made; that is to say, the whole

people of a republic make this declaration against a Government

established by themselves and entirely subject to their own control,

under a Constitution which contains provision for its own amendment by

this very same "whole people," whenever they may think proper! Is it not

a libel upon the statesmen of that generation to attribute to their

grave and solemn declarations a meaning so vapid and absurd?

To those who argue that the grants of the Constitution are fatal to the

reservation of sovereignty by the States, the Constitution furnishes a

conclusive answer in the amendment which was coeval with the adoption of

the instrument, and which declares that all powers not delegated to the

Government of the Union were reserved to the States or to the people. As

sovereignty was not delegated by the States, it was necessarily

reserved. It would be superfluous to answer arguments against implied

powers of the States; none are claimed by implication, because all not

delegated by the States remained with them, and it was only in an

abundance of caution that they expressed the right to resume such parts

of their unlimited power as was delegated for the purposes enumerated.

As there be those who see danger to the perpetuity of the Union in the

possession of such power by the States, and insist that our fathers did

not intend to bind the States together by a compact no better than "a

rope of sand," it may be well to examine their position. From what have

dangers to the Union arisen? Have they sprang from too great restriction

on the exercise of the granted powers, or from the assumption by the

General Government of power claimed by implication? The whole record of

our Union answers, from the latter only.

Was this tendency to usurpation caused by the presumption of paramount

authority in the General Government, or by the assertion of the right of

a State to resume the powers it had delegated? Reasonably and honestly

it can not be assigned to the latter. Let it be supposed that the "whole

people" had recognized the right of a State of the Union, peaceably and

independently, to resume the powers which, peaceably and independently,

she had delegated to the Federal Government, would not this have been

potent to restrain the General Government from exercising its functions

to the injury and oppression of such State? To deny that effect would be

to suppose that a dominant majority would be willing to drive a State

from the Union. Would the admission of the right of a State to resume

the grants it had made, have led to the exercise of that right for light

and trivial causes? Surely the evidence furnished by the nations, both

ancient and modern, refutes the supposition. In the language of the

Declaration of Independence, "All experience hath shown that mankind are

more disposed to suffer, while evils are sufferable, than to right

themselves by abolishing the forms to which they are accustomed." Would

not real grievances be rendered more tolerable by the consciousness of

power to remove them; and would not even imaginary wrongs be embittered

by the manifestation of a purpose to make them perpetual? To ask these

questions is to answer them.

The wise and brave men who had, at much peril and great sacrifice,

secured the independence of the States, were as little disposed to

surrender the sovereignty of the States as they were anxious to organize

a General Government with adequate powers to remedy the defects of the

Confederation. The Union they formed was not to destroy the States, but

to "secure the blessings of liberty to ourselves and our posterity."

[Footnote 88: Parsons, "Rights of a Citizen," chap. xx, section 3.]

[Footnote 89: Ratification appended to Articles of Confederation. (See

Elliott's "Debates," vol. i, p. 113.)]

[Footnote 90: "Federalist," No. xl.]

[Footnote 91: Ibid., Nos. xli-xliv.]

[Footnote 92: See Elliott's "Debates," vol. i, p. 360.]

[Footnote 93: Ibid., pp. 361, 369.]

[Footnote 94: Elliott's "Debates," vol. iii, p. 114.]

[Footnote 95: Ibid., p. 71.]

The Rise and Fall of the Confederate Government, Volume 1 · 第 11 / 25 章