This book is included in the Unexplained Shortages & The End Of The World As We Know It section.
Can a State Secede?
Sovereignty in its Bearing Upon Secession &
States Rights
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CAMBRIDGE: DAKIN & METCALF: 1865
PREFACE
If apology or explanation is due for
adding another contribution to the pamphlet literature of the day, it is to be
found, if at all, in this. We are in the midst of war. Every loyal man believes
that the contest will soon be ended with the suppression of a causeless
rebellion. Everybody is, accordingly, discussing, what is then to be done with
the "seceded States?" The difficulty in settling this grows out of the nature of
our government. In deciding it, it is idle to indulge in theories which are not
based upon the Constitution, the only recognized bond of the Union. In the
following pages is an attempt, through the history and analysis of this
instrument, to dispose of the question which lies at the bottom of the
discussion, whether, and how far, a state can
secede? If this is settled in one way, it disposes of most of the other
questions which have been raised upon the subject. The only reward one can
propose to himself, for such a work, is the hope that it may aid some honest
inquirer who has been able to devote less time to the subject, in determining,
in the light of the Constitution, what may be done with the "seceded States"
when the rebellion is crushed.
Cambridge, February, 1865
Sovereignty & Secession
We hear so many and such conflicting opinions, every day, upon the relative and
respective powers and duties of the State and National governments, that an
effort to reach some satisfactory solution of the questions involved in these
discussions may not seem to be ill-timed, nor wholly destitute of interest,
though the topic should prove to be trite, or, in its nature, dry and abstruse.
Theories of severing States from the Union
The subject derives a new and additional interest from the condition in which
the United States will, according to the theory of some writers, stand to the
seceded States, in respect to their being in or
out of the Union, when the rebellion shall have been crushed, and its armies no
longer regarded as belligerents. If, as Mr. Calhoun insisted would be the
effect, and many politicians of the North have also maintained, a State, by
seceding, is out of the Union, or, to borrow the language of the former, such
act "would place the State beyond the pale of her federal relations, and,
thereby, all control on the part of the other States over her; she would stand
to them simply in the relation of a foreign State, divested of all federal
connection, and having none other between them but those belonging to the law of
nations." The problem of a re-formation or, restoration of the Union is one of
infinite difficulty and embarrassment.
If, to carry this thought a little further, the theory which some contend for is
sound, -- that the United States government was the creation of the several
States, with limited powers derived wholly from these States, while each of them
retained its own sovereignty as to all matters not expressly delegated to the
United States, -- it is not easy to see by what means the government of the
latter could have acquired the power, or its equivalent the right, to dictate
the course of any one of these States upon the subjects which it had thus
reserved to itself. It would be making the thing created superior to the power
which created it. The aggregate powers acquired would be greater than the sum of
those, collectively, which had been conferred. If we assume, in order to give
full force to the argument, that the States clothed the United States with
sovereign and supreme power as to all subjects matter, of a national concern,
which they originally delegated to the federal government, on what ground can it
be maintained, as some seem to contend, that it should or might control or
dictate what shall be, properly, the domestic policy of these States? If it is
placed upon the ground that for any reason, such as a forfeiture for some breach
or violation of condition or duty, some new compact may be imposed, into which
the offending State may be compelled to enter before it is permitted to share in
the care, protection, and benefits of the General government, it assumes that
such State is in fact out of the Union; and the question then arises, on what
ground any other State, or the United States, in its character of a body
politic, has a right to complain, if such State chooses to remain separate and
apart rather than to comply with the proffered terms? These questions are put
hypothetically, in order to show to what the argument tends, and not with a view
of sustaining a position which, it is hoped, the following pages will succeed in
showing to be unsound and untenable.
Before, however, undertaking to consider the question in its more direct bearing
upon the mode and feasibility of reconstructing,
as it is called, the Federal Union, one ought to understand upon what grounds
the advocates for the right of secession rest their claims, in order that he may
arrive at a satisfactory conclusion upon the matters involved in the controversy
which these advocates have raised. This is the more necessary, from the
earnestness and seeming sincerity with whish many of its advocates insist that
the solecism of a right in a State to secede from a part or the whole of its own
people is to be found in the history and language of the Constitution itself.
And this, it should be borne in mind, is something altogether distinct from what
would be an act of revolution, which lies wholly outside of the Constitution,
and does not enter into this discussion.
The Question to be considered, stated.
If the claims upon the one side or the other of this question are analyzed, it
is believed that they will be found to resolve themselves into this: Is the
United States a sovereignty in itself, deriving its powers and functions from
the people; or is it the minister and agent only o the several State
sovereignties which coextend, geographically, with the limits of territory over
which the government of the United States exercises its function?
Difficulty in the Doctrine of Double Sovereignty.
The existence of a double sovereignty over the same extent or reign of
territory, to be exercised by two coordinate and mainly independent organisms of
government, is difficult to be conceived of by those who have formed their
notions upon the models of European monarchies. This is especially so to an
Englishman, whose ideas of sovereignty in a government are borrowed from the
oneness and omnipotence of Parliament. If he so far overcomes the difficulty as
to solve the apparent mystery of the distinct sovereignties of the States, he is
in danger of contenting himself with this step in the analysis, and of drawing
therefrom the by no means necessarily legitimate inference that the ultimate
sovereignty of the larger body politic is resolvable into those of the several
minor bodies which go to make up the larger one, so far as its geographical
limits and relations are concerned.
Grounds of English Sympathy with Secession.
And it may be that we do an unintentional injustice to the English people in the
indignation which has been so generally awakened, on the part of the loyal
States, by the misplaced sympathy which the oligarchy of England have lavished
upon the cause of the rebellion in this country, by not allowing for the error
into which so many of them have fallen as to the character of the government
under which we live. If -- as the agents of that rebellion abroad have
persistently urged upon the public mind through their willing organs, the
English press -- the contest in which we are engaged is an attempt on the part
of a large State to coerce a smaller one, it perhaps should not be wondered at
that a sympathy should have been awakened for the weaker party. But when we
consider that such an assumption is utterly without foundation, or well grounded
pretense, it is often difficult to determine how far this sympathy of certain
classes in England is the result of honest ignorance of facts which are
accessible to all, or is but another illustration of that homely adage, "None
are so blind as those who won't see."
How far ignorance may serve as an apology for those of our neighbors just across
the line, who pretend that invading the soil of Vermont by an armed force, and
robbing, plundering, and murdering her citizens, is not an infringement of the
sovereignty of the United States, because Vermont is herself an independent
State, is a question which those, who can suppose such ignorance to exist, may
perhaps be prepared to answer.
We have been led to speak the more freely of this from having become satisfied
that there were honest and even profound writers in England, who have failed to
master the seemingly complex character of our State and General governments, by
mistaking the relations of sovereignty between them. Such was the case, we
conceive, with the late Mr. Austin, the learned and able professor of
jurisprudence in the London University. In the sixth lecture in the first volume
of his works he attempts to explain the operation of what is so familiar to
almost every one in this country, -- the check and limitation to legislation
which is found in the existence of a fundamental law or constitution; and, in
the next place, the character of the General and State governments and their
relations to each other, in which he is either unfortunate in his use of terms
in conveying his ideas, or he found it a problem which he was unable to solve.
He ventures, however, to go no further than a belief
on his part that he may have been right, when he states, as his own
doctrine, upon one page of his work, what is substantially the dogma of
secession, and on the next assumes that the ultimate sovereignty of the United
States, considered as a whole, is made up of the ultimate sovereignties in the
people of several States, taken collectively and in the aggregate. We refer to
the views of this writer, as we gather them from his lectures, with no wish to
ad anything to their vagueness and indistinctness, and are willing, from his
experience, to suppose that there may be a difficulty, in the mind of a stranger
to our system, to comprehend clearly the nature as well as forms of our
government.
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