Coercion the Alternative to Secession.--Repudiation of it by the
Constitution and the Fathers of the Constitutional
Era.--Difference between Mr. Webster and Mr. Hamilton.
The alternative to secession is coercion. That is to say, if no such
right as that of secession exists--if it is forbidden or precluded by
the Constitution--then it is a wrong; and, by a well settled principle
of public law, for every wrong there must be a remedy, which in this
case must be the application of force to the State attempting to
withdraw from the Union.
Early in the session of the Convention which formed the Constitution, it
was proposed to confer upon Congress the power "to call forth the force
of the Union against any member of the Union failing to fulfill its duty
under the articles thereof." When this proposition came to be
considered, Mr. Madison observed that "a union of the States containing
such an ingredient seemed to provide for its own destruction. The use of
force against a State would look more like a declaration of war than an
infliction of punishment, and would probably be considered by the party
attacked as a dissolution of all previous compacts by which it might be
bound. He hoped that such a system would be framed as might render this
recourse unnecessary, and moved that the clause be postponed." This
motion was adopted _nem. con._, and the proposition was never again
revived.[96] Again, on a subsequent occasion, speaking of an appeal to
force, Mr. Madison said: "Was such a remedy eligible? Was it
practicable?... Any government for the United States, formed on the
supposed practicability of using force against the unconstitutional
proceedings of the States, would prove as visionary and fallacious as
the government of Congress."[97] Every proposition looking in any way to
the same or a similar object was promptly rejected by the convention.
George Mason, of Virginia, said of such a proposition: "Will not the
citizens of the invaded State assist one another, until they rise as one
man and shake off the Union altogether?"[98]
Oliver Ellsworth, in the ratifying Convention of Connecticut, said:
"This Constitution does not attempt to coerce _sovereign bodies,
States_, in their political capacity. No coercion is applicable to such
bodies but that of an armed force. If we should attempt to execute the
laws of the Union by sending an armed force against a delinquent State,
it would involve the good and bad, the innocent and guilty, in the same
calamity."[99]
Mr. Hamilton, in the Convention of New York, said: "To coerce the States
is one of the maddest projects that was ever devised.... What picture
does this idea present to our view? A complying State at war with a
non-complying State: Congress marching the troops of one State into the
bosom of another ... Here is a nation at war with itself. Can any
reasonable man be well disposed toward a government which makes war and
carnage the only means of supporting itself--a government that can exist
only by the sword?... But can we believe that one State will ever suffer
itself to be used as an instrument of coercion? The thing is a dream--it
is impossible."[100]
Unhappily, our generation has seen that, in the decay of the principles
and feelings which animated the hearts of all patriots in that day, this
thing, like many others then regarded as impossible dreams, has been
only too feasible, and that States have permitted themselves to be used
as instruments, not merely for the coercion, but for the destruction of
the freedom and independence of their sister States.
Edmund Randolph, Governor of Virginia, although the mover of the
original proposition to authorize the employment of the forces of the
Union against a delinquent member, which had been so signally defeated
in the Federal Convention, afterward, in the Virginia Convention, made
an eloquent protest against the idea of the employment of force against
a State. "What species of military coercion," said he, "could the
General Government adopt for the enforcement of obedience to its
demands? Either an army sent into the heart of a delinquent State, or
blocking up its ports. Have we lived to this, then, that, in order to
suppress and exclude tyranny, it is necessary to render the most
affectionate friends the most bitter enemies, set the father against the
son, and make the brother slay the brother? Is this the happy expedient
that is to preserve liberty? Will it not destroy it? If an army be once
introduced to force us, if once marched into Virginia, figure to
yourselves what the dreadful consequence will be: the most lamentable
civil war must ensue."[101]
We have seen already how vehemently the idea of even _judicial_ coercion
was repudiated by Hamilton, Marshall, and others. The suggestion of
_military_ coercion was uniformly treated, as in the above extracts,
with still more abhorrence. No principle was more fully and firmly
settled on the highest authority than that, under our system, there
could be no coercion of a State.
Mr. Webster, in his elaborate speech of February 16, 1833, arguing
throughout against the sovereignty of the States, and in the course of
his argument sadly confounding the ideas of the Federal Constitution and
the Federal Government, as he confounds the sovereign people of the
States with the State governments, says: "The States _can not_ omit to
appoint Senators and electors. It is not a matter resting in State
discretion or State pleasure.... No member of a State Legislature can
refuse to proceed, at the proper time, to elect Senators to Congress, or
to provide for the choice of electors of President and Vice-President,
any more than the members can refuse, when the appointed day arrives, to
meet the members of the other House, to count the votes for those
officers and ascertain who are chosen."[102] This was before the
invention in 1877 of an electoral commission to relieve Congress of its
constitutional duty to count the vote. Mr. Hamilton, on the contrary,
fresh from the work of forming the Constitution, and familiar with its
principles and purposes, said: "It is certainly true that the State
Legislatures, by forbearing the appointment of Senators, may destroy the
national Government."[103]
It is unnecessary to discuss the particular question on which these two
great authorities are thus directly at issue. I do not contend that the
State Legislatures, of their own will, have a right to forego the
performance of any Federal duty imposed upon them by the Constitution.
But there is a power beyond and above that of either the Federal or
State governments--the power of the people of the State, who ordained
and established the Constitution, as far as it applies to themselves,
reserving, as I think has been demonstrated, the right to reassume the
grants of power therein made, when they deem it necessary for their
safety or welfare to do so. At the behest of this power, it certainly
becomes not only the right, but the duty, of their State Legislature to
refrain from any action implying adherence to the Union, or partnership,
from which the sovereign has withdrawn.
[Footnote 96: "Madison Papers," pp. 732, 761.]
[Footnote 97: Ibid., p. 822.]
[Footnote 98: Ibid., p. 914.]
[Footnote 99: Elliott's "Debates," vol. ii, p. 199.]
[Footnote 100: Ibid., pp. 232, 233.]
[Footnote 101: Elliott's "Debates," vol. iii, p. 117.]
[Footnote 102: "Congressional Debates," vol. ix, Part I, p. 566.]
[Footnote 103: "Federalist," No. lix.]