Secession and constitutional liberty, in which is shown the right of a nation to secede from a compact of federation and that such right is necessary to constitutional liberty and a surety of union

Front matter

Class xQ!3_2i Book

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C.OWRIGKT DEPOSfr.

Preface

"Mr. Bryce . . . intimated ... a decided doubt whether the conflict in question would, as an historical episode and incident in the great evolutionary record, hereafter loom up in the same large proportions it always must bear in the minds of those of the American generations directly concerned in it. . . . The issues, he more than hinted, were in his judgment of no great fundamental importance . . . I . . . failed ... to concur in Mr. Bryce's judgment; for the more I reflected . . . the more I felt convinced that, as the years rolled by . . . the conflict he had referred to as now forgotten in Europe would assume ever larger world-proportions and become matter of more careful general study. In a word, our American Civil War would, when the final verdict is rendered, . . . become an accepted episode of . . . worldwide moment."*

"Hardly any problem affecting the future of humanity is more important than the type and character which the great Republic of the West is hereafter destined to assume."!

If one accepts Mr. Adams's estimate of the moment of "our Civil War" (and to reject it consistently one must also widely differ from Mr. Lecky), how can the discussion of a political doctrine, the cause of so momentous an episode, be, as the former designates it, "academic"?

The word is used by him (and by others) to characterize a

* Charles Francis Adams, "Trans-Atlantic Historical Solidarity," pp. 12, 13; Oxford, 1913.

t Lecky, "Democracy and Liberty," p. 209.

question which has lost interest for "practical" men, — having been settled by force, — and, so used, is a narcotic to prolong the sleep of Liberty. Academic! If this question be "academic," what of that which developed into the Revolution of '76? It is a far cry indeed from a time when a theory of government, unaccompanied by oppression, aroused colonies, probably as free as any in the world's history, to rebellion,* to a time when a question involving (if Mr. Lecky be correct) "the future of humanity" has become "academic." Can a people so change? Or is man so constituted, alicni appctcns, sui profusus, that where a thousand men will cheerfully give life for a shred of the cheapest sentiment, for an airy nothing of belief at once unknowable and incredible, for a rag of vanity, scarce a score can live in respect for their own or their neighbour's rights?

"Then was the time to tell of virtue being raised from the dungeon, where priests and tyrants had confined her ; and that science had been courted from the skies to meet her ; then was the time to talk of restoring the golden age, without being laughed at ; and many seemed to believe that a political millennium was about to commence." f

"It was possible to break old traditions, to revise institutions, and to think out a new philosophy to fit an infant society. . . . It was a marvelous opportunity; to the student of history and human institution- it seems incredible that it ever could have been offered. The men who founded this republic recognized that opportunity and tried to use it." +

Its most distinguished contemporary ( for he may fairly be so called) had written not long before:

"Je congois . . . qu'on ne doit trouver sur la terre que tres-peu de republiques. Les hommes sont rarement dignes de se gouverner eux-memes. Ce bonheur ne doit appartenir qu' a des petits peuples, qui se cachent dans les iles, ou entre des montagnes, comme des lapins qui se dcrobent aux animaux

* Appendix 45. t Fisher Ames. $ "War, and Other Essays," by William Graham Sumner.

carnassiers ; mais, a la longue, ils sont decouverts et devores." *

The words and work of "the men who founded this republic" show the countervailing principle upon which they worked. "Si une republique est petite, elle est detruite par une force etrangere; si elle est grande, elle se detruit par un vice interieur . . . aussi il y a grande apparence que les hommes auraient ete a la fin obliges de vivre tou jours sous le gouvernement d'un seul, s'ils n'avient imagine une maniere de constitution qui a tous les avantages interieurs du gouvernement republicain et la force exterieure du monarchique. Je parle de la republique federative." f It is not necessary to adopt that exaggerated tone of reverence, fashionable among us, as to either the men or their work. That they were actuated by the usual aims and ambitions of mankind their proceedings amply show. Yet, also, they were capable of estimating what their task meant. Before Mr. Lecky, they felt that their work "affected the future of humanity." Hamilton begins The Federalist:

"You are called upon to deliberate on a new constitution for the United States of America. The subject speaks its own importance; comprehending in its consequences, nothing less than the existence of the UNION, the safety and welfare of the parts of which it is composed, the fate of an empire, in many respects the most interesting in the world. It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not, of establishing good government from reflection and choice, or whether they are forever destined to depend, for their political constitutions, on accident and force. If there be any truth in the remark, the crisis, at which we are arrived, may with propriety be regarded as the era in which that decision is to be made; and a wrong election of the part we shall act, may, in this view, deserve to be considered as the general misfortune of mankind."

♦Voltaire, "Dictionnaire Philosophique."

t Montesquieu, "De 1'Esprit des Lois." Book 9, Chap. 1.

From the inaugural of Washington to the ephemeral newspaper letter of the period, the same note of free choice, of government founded, not upon force, bat free assent, and instituted for "the safety and welfare of the parts which composed" the Union, is everywhere struck, — the more significantly that many of the leaders preferred a government more consolidated and coercive than they were able to achieve. 1

Was it all a fairy tale? Men had died happy that the eyes of Liberty, opened to their dying kiss as they broke the hedge of bayonets, would never again be closed by force or fraud. Little more than a hundred years later, within the easy span of two lives, indeed, while one then born might conceivably still be living, we are told that discussion of the most vital point of this moment" ms matter is "academic," in that it has been settled by war; i. r., that "the question whether societies of men are really capable or not of establishing good governments from reflection and choice, or whether they are forever destined to depend, for their political constitutions, on accident and force," has been decided by force.

Not only does the word "academic" thus restore those political ideals which the men of the Constitution supposed themselves to have shattered: it denies the teaching of history, throughout which force appears as the arbiter of the moment, indeed, yet fundamentally episodic. Reason, organically slow — reacting againsl force only when the ill effects of the latter become so general as to be inevitably obvious to the lower average of the majority mind -finally confirms or annuls its judgment: as nature, in the physical world, renders once more fertile the debris of its own convulsions. The principle is written throughout human progress. Without it there could not have been progress.

It is true that,

"During the war, necessity" [or what was considered such] "took the place of the Constitution, and we see the written guarantees of liberty grow dim in the smoke of battle. . . . There is no statute of limitation in the law of cause and effect, and the usurpations of the war and Reconstruction days are the fundamental causes of the existing conditions to-day." *

The immediate results of a war may be readily pointed out : "Our Civil War may serve as an example . . . Think of the doctrines which were set aside as false, and of the others which were established as true ... of the constitutional principles which were permanently stamped as heretical or orthodox." f

"A strong government was needed ; and that fact has opened the way for Congress to interfere with private business, for instance in changing the tariff . . . much more frequently and extensively . . . Another significant fact is that the old controversy about internal improvements has died away since our government was centralised by war; and much money is wasted under that pretext by Congress." J

Yet, in a larger sense, there is "a statute of limitation in the law of cause and effect."

Political, like physical, disease, if within a nation's recuperative strength, permits recovery; if not, a people (as such) dies, — to be succeeded by a healthier organism.

From this point of view, then, inquiry cannot be "academic," unless the doctrine of secession has been effectively denied by reason, finally confirming the decree of force. But nothing could be more absurd than this supposition; a vast majority of those citizens upon whose intelligent understanding of the past must depend the welfare of the future do not even know what that doctrine is, still less the facts for, or against, it.

Although a voluminous literature on the subject might indicate that reason has already held its session, it may be said that even a true issue between the opposing doctrines has not been fully made up. Confusion of thought, political and ethical sophistry, and falsification of fact have made a Lernean marsh, wherein hydra-headed error is yet to be destroyed before the point is even attained where honest and informed divergence of opinion is generally possible.

* Franklin Pierce, "Federal Usurpation" ; N. Y., 1908. t William Graham Sumner, "War."

t Frederick May Holland, "Liberty in the 19th Century"; N. Y., 18^9. Cf. Appendix 6.

When Sir James Fitzjames Stephen can say: "The Constitution no doubt did leave unsolved the great question as to the right of secession. The question whether or not, under the Constitution, construed as a legal document, the States had a right to secede, is about as ingenious a puzzle as anyother question as to the meaning of a studiously ambiguous document," * discussion of it can scarcely be academic from this point of view.

Still less is it from that of sentiment. Force, attempting to destroy, preserves a creed, — allying reason with emotion, with admiration for fortitude, with pity for misfortune, with gratitude for self-devotion, with all that satisfies the human craving for excitement and hero-worship.

That lamp has gloriously, yet dangerously, lit the advance of humanity despite, and because, of force.

Though the historian should, with Tacitus, write sine ira, he cannot do so upon this subject for the reason given by that author, quorum causas procul habeo. To no man are the titledeeds of his liberty afar off

"for free liking Is yharnit our all othir thing."

If he does so, it can only be upon less personal, more philosophic ground, viz.: the necessary acceptance of human error and wrong. Yet, if, remembering human infirmity, he must write sine ira, even of those who falsify the charter of freedom, it does not follow that he should write without gratitude of those who have withstood the attempt. In just so much as that infirmity is a palliative to anger in recording evil, it correlatively enhances gratitude to those who "know the cost of the gift, but open the hand."

Mr. Judah P. Benjamin, apostrophizing the seceding Southern Senators, said :

* "Essay on The Federalist."

"When in after days the story of the present shall be written, when history shall have passed her stern sentence . . . your names will derive fresh lustre . . . And when your children shall hear repeated the familiar tale it will be with glowing cheek and kindling eye, their very soul will stand a tip-toe as their sires are named and they will glory in their lineage from men of spirit as generous and of patriotism as high spirited as ever illustrated or adorned the American Senate. ,, *

The prophecy may scarce be said to have been fulfilled — excepting in so far as regards filial feelings. The "iniquity of oblivion hath scattered her poppy." Yet it does so over the just and the unjust. That "stern sentence of history" is so soon forgotten; perhaps so little worth! Chance, roguery, ignorance, on the bench with justice, juggle the laurel and the pillory. Need one care which is decreed his name? "He knows the cost of the gift, but opens his hand;" and, for the rest, "What have I said amiss that the Athenians applaud mer

Yet, even in this aspect, the question is not "academic." In this aspect it is farthest from being "academic." The import of the stern sentence of history concerns the judges, not the careless shades, its subject.

"The noblest human work, nobler even than literature and science, is broad civil liberty, well secured and wisely handled." t

Without this, arts, sciences, literature, are but palliations — when not aggravations, — of degradation.

* February 4, 1861. t F. Lieber. 1—2

When Liberty grows dim, what is best

Then becomes worst, what loveliest most deformed.

And civil liberty to be "well secured and wisely handled," must have its roots in the truth of history. False ideals, mean admirations, repay those who follow them with destruction. Justice to predecessors is inexorably mingled with the happiness of posterity.

If, then, reason has not said its last word, then but for one reason can further discussion be "academic"; viz., that like Livy's Rome, the commonwealth ad heec tempora, quibus nee vitia nostra, nee remedia pati possumus, perventuni est. We have not yet reached the point at which our political vices have become unbearable. When one perceives the ever-swelling myths in which avarice and political advantage have enveloped false causes and characters, the growing tendency to transmute the idea upon which free democratic political institutions are necessarily founded, viz.: that the average citizen is capable of taking care of himself, into the underlying principle of despotism, viz.: that the average citizen must be taken care of by government ; * when one perceives the already too evident results, one may not indeed avoid the fear that we are near the point where we are unable to bear their remedies.

"The object of Tacitus," as Coleridge says, "was to demonstrate the desperate consequences of the loss of liberty on the minds and hearts of men"; he may have written sine ira, but he wrote "with despair in his breast breathed into many lines of his melancholy annals." I But he was looking backward. Looking forward, one may still say : "Quod futurum sit, plane nescio, spes tandem una est, aliquando po pulton romannni niajorum simile fore." Cicero's hope proved vain for the Roman ; the American people may yet return to the political ideals of their forefathers — "when the .American spirit was in its youth . . . liberty, sir, was then the primary object." %

In conclusion, though in so intricate an impeach, the assertion of Bayle may scarce be fully supported ; "Que les verites

* v. John Taylor of Caroline, "P. & S."; especially Appendix 6a.

t Lieber.

t Patrick Henry.

historiques peuvent etre poussees a un degre de certitude plus indubitable que ne Test le degre de certitude a quoi Ton fait parvenir les verites geometriques ; bien entendu que Ton considerera ces deux sortes de verites selon le genre de certitude qui leur est propre," it is not a little if one may only say with Bacon : "In those things wherein I have erred, I am sure, I have not prejudiced the right with litigious arguments.' ,

The author acknowledges with gratitude the courteous and helpful efficiency of Mr. Luther E. Hewitt, Librarian of the Bar Association of Philadelphia. From New England friends, for anything herein asserted if untrue, he asks forgiveness. Let them not be aggrieved by truth. In either case,

" — One may maintain Peace sure with piety, though it come from Spain."

Note: It has been thought unnecessary to append a bibliographical apparatus. The evidence upon which the determination of the subject should depend is extant in the instrument of the Constitution, the records of the acts and proceedings of the representatives of the people in the official bodies, the Conventions and Congresses of the time; it is of undisputed authenticity, not of unreasonable bulk, easy of access. (To think that records of a people's freedom, not veiled in the mist of years, but before the ink with which they were written had faded, should have so successfully been perverted, is indeed a counsel of despair!) It has seemed unnecessary to enumerate expository works, able and authoritative as are many of them, further than as cited; when, it is hoped, they are indicated sufficiently for reference and acknowledgment.

January, 1917. B. S.

November 15, 19 18.

P.S. — This work, then about to issue from the press, was withheld when the United States entered on the war with Germany. One does not discuss family troubles while a burglar is trying the door. The worst of it is, dissenting members will consider it equally poor taste to discuss them amid the rejoicing of victory — or at any other time.

Tunc etiam Cassandra.

At least the sentiments as to the rights of self government of small nations, sacredness of treaties, etc., which to-day, polished up as good as new, adorn the speeches of statesmen and make beautiful the feet of the editor upon the newspaper — these at least illuminate the study of that League of Nations which existed in these United States. Coleridge deplores that the study of history, like the lantern at a ship's stern, but serves to light the wastes traversed ; but possibly some reflected light may coldly furnish forth the prospect of that "League of Nations," our to-day's political panacea. It at least serves to show, though possibly the patient never believes, that there is no panacea in government or medicine. That, as James Fitzjames Stephen says : "Democracy has, as such, no definite or assignable relation to liberty. The degree in which the governing power interferes with individuals depends upon the size of the country, the closeness with which the people are packed, the degree in which they are made conscious by actual experience of their dependence upon each other, their national temper, and the like. The form of government has very little to do with the matter." (v. also Appendices 36A & 45, p. 391.)

Chapter I Statement Of The Doctrine Of Secession

The Confederate government, asking recognition from France, made to M. Thouvenel, Minister of Foreign Affairs, July 21, 1862, through its Commissioner, Mr. Slidell, the following statement, viz. :

"Their [the United States] first union was formed by a compact of sovereign and independent states upon covenants and conditions expressly stipulated in a written instrument called the Constitution.

"In that Union the States constituted the units or integers and were bound to it only because the people of each accorded to it in their separate capacities through the acts of their representatives. That Confederacy was designed to unite under one Government two great and diverse social systems, under the one or the other of which all the States might be classified. As these two social systems were unequally represented in the common Government, it was sought to protect one against a warfare which might be urged by the other through the forms of law by carefully designed restrictions and limitations upon the power of the majority in the common Government. Without such restrictions and limitations it is known historically that the Union could not have been formed originally. But the dominant majority, which at last proved to be sectional in its character, not only used the machinery of Government which they wielded to plunder the minority through unequal legislation in the shape of protective tariffs and appropriations made for their own benefit ; but proceeding from step to step, they waged through the forms of law a war upon the social system of the slaveholding States and threatened, when fully armed with political power, to use the

Government itself to disturb the domestic peace of those States. Finding that the covenants and conditions upon which the Union was formed were not only persistently violated, but that the common Government itself, then entirely in the hands of a sectional majority, was to be used for the purpose of warring upon the domestic institution which it was bound by express stipulations to protect, thirteen of the slaveholding States felt it to be due to themselves to withdraw from a Union when the conditions upon which it was formed either had been or were certainly about to be violated."

This statement lays the groundwork of the doctrine of Secession in the assertion that "Their first union was formed by a compact of sovereign and independent states ... In that Union the States constituted the units or integers and were bound to it only because the people of each accorded to it in their separate capacities," etc. Having done this, it passes to a recital of injuries suffered, which, if true, afford justification for exercising the "natural" right of resistance, or revolution, but, in themselves, give no Constitutional right of "secession." "Secession" is not a (so-called) "natural" right. It may be established only upon precedent and law.

The "Declaration of the Immediate Causes which induce and justify the Secession of South Carolina" develops the doctrine in full; and, being published by the authority of the Convention which enacted the Ordinance of Secession of that State, may serve as the official statement of the doctrine. After reciting the Declaration of Independence and the Treaty acknowledging the same, it proceeds :

"Thus were established the two great principles asserted by the Colonies, namely : the right of a State to govern itself; and the right of a people to abolish a Government when it becomes destructive of the ends for which it was instituted. And concurrently with the establishment of these principles, was the fact, that each Colony became and was recognized by the Mother Country as a free, sovereign and independent state. . . . We hold that the Government thus established [i. c, by the Constitution] is subject to the two great principles

STATEMENT OF THE DOCTRINE OF SECESSION 23

asserted in the Declaration of Independence; and we hold further, that the mode of its formation subjects it to a third principle, namely: the law of compact. We maintain that in every compact between two or more parties, the obligation is mutual; that the failure of one of the contracting parties to perform a material part of the agreement entirely releases the obligation of the other; and that where no arbiter is provided, each party is remitted to his own judgment to determine the fact of failure, with all its consequences/ '

The doctrine of Secession depends upon these principles of law ; the first two peculiarly American in their establishment ; the other a long-established principle of international law, and, as such, applicable to all peoples. It is then necessary to ascertain if the "Union was formed by a compact of sovereign and independent States upon covenants and conditions expressly stipulated" (in a written instrument called the Constitution) before inquiring whether, this being so, "the mode of its formation subjects it to a third principle, namely : . . . that in every compact between two or more parties, the obligation is mutual; that the failure of one of the contracting parties to perform a material part of the agreement entirely releases the obligation of the other ; and that where no arbiter is provided, each party is remitted to his own judgment to determine the fact of failure with all its consequences."

Chapter II

Was "the Union formed by a compact of sovereign and independent States"?

This question necessarily deals with four political periods, — the Colonial, and those of the Declaration of Independence, the Confederation, and the creation of the Constitution.

Colonial conditions may be briefly stated. It is not seriously denied that, prior to the Declaration of Independence, the British Colonies in America were without political connection save in their common dependence on Great Britain, and in brief local confederacy for particular purposes. 2

"The thirteen colonies, as we all know, were independent commonwealths with respect to each other. They had little sympathy and a great deal of jealousy. They came into a union with each other upon terms which were stipulated and defined in the Constitution, but they united only unwillingly and under the pressure of necessity. " *

The question to be discussed, then, arises with the act which declared their independence of Great Britain.

On the 15th of May, 1776, the convention of Virginia passed the following resolutions :

"... The king's representative in this Colony hath not only withheld all the powers of government from operating for our safety, but, having retired on board an armed ship, is carrying on a piratical and savage war against us, tempting our slaves, by every artifice, to resort to him, and training and employing them against their masters. In this state of extreme danger, we have no alternative left but an abject sub-

* William Graham Sumner, "The Conquest of the United States by Spain."

mission to the will of those overbearing tyrants, or a total separation from the crown and government of Great Britain, uniting and exerting the strength of all America for defence, and forming alliances with foreign powers for commerce and aid in war. Wherefore, appealing to the SEARCHER OF HEARTS for the sincerity of former declarations expressing our desire to preserve the connexion with that nation, and that we are driven from that inclination by their wicked councils, and the eternal laws of self-preservation :

"Resolved, unanimously, That the delegates appointed to represent this Colony in the General Congress, be instructed to propose to that respectable body, to declare the United Colonies free and independent States, absolved from all allegiance to, or dependence upon, the crown or parliament of Great Britain ; and that they give the assent of this Colony to such declaration, and to whatever measures may be thought proper and necessary by the Congress for forming foreign alliances, and a confederation of the colonies, at such time and in the manner as to them shall seem best ; Provided, the power of forming government for, and the regulations of the internal concerns of each Colony, be left to the respective colonial legislatures.

"Resolved, unanimously, That a committee be appointed to prepare a Declaration of Rights, and such a plan of government as will be most likely to maintain peace and order in this Colony, and secure substantial and equal liberty to the people. "

In accordance with this,

"In Congress, Friday, June 7, 1776, the delegates from Virginia moved, in obedience to instructions from their constituents, that the Congress should declare that these United Colonies are, and of right ought to be, free and independent states . . . and a Confederation be formed to bind the colonies more closely together. " *

♦Jefferson, "Autobiography," "Jefferson's Works," edited by H. B. Washington. Vol. I, p. 12; N. Y., 1853.

The ensuing resolution of Congress (the real Declaration), precedent to the Declaration of Independence, is as follows :

"Resolved that these United Colonies are, and of right ought to be free and independent states, that they are absolved from all allegiance to the British Crown; and that all political connexion between them and the state of Great Britain is, and ought to be, totally dissolved.''

The same phraseology obtains in "the Declaration of Independence," which continues:

"and that as free and independent states, they have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent states may of right do."

In the Virginia Resolutions is unequivocally to be perceived a State (i. e., "Nation") declaring its injuries, its readiness to confederate with other States for a certain purpose, and reserving to itself self-government under that confederation. The phraseology of the ensuing resolution of Congress and Declaration of Independence is strictly in consonance with this declaration and with the consequences which would naturally ensue from precedent conditions, viz.: that each colony, being severally a dependency on Great Britain and unconnected with any other power, upon becoming independent of that country became a "free and independent state." The sequence of events, the phraseology, the legal consequence, and actual results are thus in entire agreement. The former do not indicate the latter to be that the colonies became a "free and independent state." 3

"Whilst the Colonies enjoyed the protection of the parent country . . . against foreign danger; and were coerced by its . . . control, against conflict among themselves, they continued independent of each other. . . .

"The Congress finding . . . that the popular voice began to call for an entire and perpetual dissolution of the political ties which had connected them with G. B. proceeded on the memorable 4th of July, 1776, to declare the thirteen Colonies independent States.

"During the discussions of this solemn Act, a Committee consisting of a Member from each colony had been appointed to prepare and digest a form of Confederation for the future management of the common interests which had hitherto been left to the discretion of Congress guided by the exigencies of the contest, and by the known intentions or occasional instruction of the Colonial Legislatures." *