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.]