Some Objections considered.—The New States.—Acquired Territory.—Allegiance, false and true.—Difference between Nullification and Secession.—Secession a Peaceable Remedy.—No Appeal to Arms.—Two Conditions noted.

It would be only adding to a superabundance of testimony to quote further from the authors of the Constitution in support of the principle, unquestioned in that generation, that the people who granted—that is to say, of course, the people of the several States—might resume their grants. It will require but few words to dispose of some superficial objections that have been made to the application of this doctrine in a special case.

It is sometimes said that, whatever weight may attach to principles founded on the sovereignty and independence of the original thirteen States, they can not apply to the States of more recent origin—constituting now a majority of the members of the Union—because these are but the offspring or creatures of the Union, and must of course be subordinate and dependent.

This objection would scarcely occur to any instructed mind, though it may possess a certain degree of specious plausibility for the untaught. It is enough to answer that the entire equality of the States, in every particular, is a vital condition of their union. Every new member that has been admitted into the partnership of States came in, as is expressly declared in the acts for their admission, on a footing of perfect equality in every respect with the original members. This equality is as complete as the equality, before the laws, of the son with the father, immediately on the attainment by the former of his legal majority, without regard to the prior condition of dependence and tutelage. The relations of the original States to one another and to the Union can not be affected by any subsequent accessions of new members, as the Constitution fixes those relations permanently, and furnishes the normal standard which is applicable to all. The Boston memorial to Congress, referred to in a foregoing chapter, as prepared by a committee with Mr. Webster at its head, says that the new States "are universally considered as admitted into the Union upon the same footing as the original States, and as possessing, in respect to the Union, the same rights of sovereignty, freedom, and independence, as the other States."

But, with regard to States formed of territory acquired by purchase from France, Spain, and Mexico, it is claimed that, as they were bought by the United States, they belong to the same, and have no right to withdraw at will from an association the property which had been purchased by the other parties.

Happy would it have been if the equal rights of the people of all the States to the enjoyment of territory acquired by the common treasure could have been recognized at the proper time! There would then have been no secession and no war.

As for the sordid claim of ownership of States, on account of the money spent for the land which they contain—I can understand the ground of a claim to some interest in the soil, so long as it continues to be public property, but have yet to learn in what way the United States ever became purchaser of the inhabitants or of their political rights.

Any question in regard to property has always been admitted to be matter for fair and equitable settlement, in case of the withdrawal of a State.

The treaty by which the Louisiana territory was ceded to the United States expressly provided that the inhabitants thereof should be "admitted, as soon as possible, according to the principles of the Federal Constitution, to the enjoyment of all the rights, advantages, and immunities of citizens of the United States."¹⁰⁴ In all other acquisitions of territory the same stipulation is either expressed or implied. Indeed, the denial of the right would be inconsistent with the character of American political institutions.

Another objection made to the right of secession is based upon obscure, indefinite, and inconsistent ideas with regard to allegiance. It assumes various shapes, and is therefore somewhat difficult to meet, but, as most frequently presented, may be stated thus: that the citizen owes a double allegiance, or a divided allegiance—partly to his State, partly to the United States: that it is not possible for either of these powers to release him from the allegiance due to the other: that the State can no more release him from his obligations to the Union than the United States can absolve him from his duties to his State. This is the most moderate way in which the objection is put. The extreme centralizers go further, and claim that allegiance to the Union, or, as they generally express it, to the Government—meaning thereby the Federal Government—is paramount, and the obligation to the State only subsidiary—if, indeed, it exists at all.

This latter view, if the more monstrous, is at least the more consistent of the two, for it does not involve the difficulty of a divided allegiance, nor the paradoxical position in which the other places the citizen, in case of a conflict between his State and the other members of the Union, of being necessarily a rebel against the General Government or a traitor to the State of which he is a citizen.

As to true allegiance, in the light of the principles which have been established, there can be no doubt with regard to it. The primary, paramount allegiance of the citizen is due to the sovereign only. That sovereign, under our system, is the people—the people of the State to which he belongs—the people who constituted the State government which he obeys, and which protects him in the enjoyment of his personal rights—the people who alone (as far as he is concerned) ordained and established the Federal Constitution and Federal Government—the people who have reserved to themselves sovereignty, which involves the power to revoke all agencies created by them. The obligation to support the State or Federal Constitution and the obedience due to either State or Federal Government are alike derived from and dependent on the allegiance due to this sovereign. If the sovereign abolishes the State government and ordains and establishes a new one, the obligation of allegiance requires him to transfer his obedience accordingly. If the sovereign withdraws from association with its confederates in the Union, the allegiance of the citizen requires him to follow the sovereign. Any other course is rebellion or treason—words which, in the cant of the day, have been so grossly misapplied and perverted as to be made worse than unmeaning. His relation to the Union arose from the membership of the State of which he was a citizen, and ceased whenever his State withdrew from it. He can not owe obedience—much less allegiance—to an association from which his sovereign has separated, and thereby withdrawn him.

Every officer of both Federal and State governments is required to take an oath to support the Constitution, a compact the binding force of which is based upon the sovereignty of the States—a sovereignty necessarily carrying with it the principles just stated with regard to allegiance. Every such officer is, therefore, virtually sworn to maintain and support the sovereignty of all the States.

Military and naval officers take, in addition, an oath to obey the lawful orders of their superiors. Such an oath has never been understood to be eternal in its obligations. It is dissolved by the death, dismissal, or resignation of the officer who takes it; and such resignation is not a mere optional right, but becomes an imperative duty when continuance in the service comes to be in conflict with the ultimate allegiance due to the sovereignty of the State to which he belongs.

A little consideration of these plain and irrefutable truths would show how utterly unworthy and false are the vulgar taunts which attribute "treason" to those who, in the late secession of the Southern States, were loyal to the only sovereign entitled to their allegiance, and which still more absurdly prate of the violation of oaths to support "the Government," an oath which nobody ever could have been legally required to take, and which must have been ignorantly confounded with the prescribed oath to support the Constitution.

Nullification and secession are often erroneously treated as if they were one and the same thing. It is true that both ideas spring from the sovereign right of a State to interpose for the protection of its own people, but they are altogether unlike as to both their extent and the character of the means to be employed. The first was a temporary expedient, intended to restrain action until the question at issue could be submitted to a convention of the States. It was a remedy which its supporters sought to apply within the Union; a means to avoid the last resort—separation. If the application for a convention should fail, or if the State making it should suffer an adverse decision, the advocates of that remedy have not revealed what they proposed as the next step—supposing the infraction of the compact to have been of that character which, according to Mr. Webster, dissolved it.

Secession, on the other hand, was the assertion of the inalienable right of a people to change their government, whenever it ceased to fulfill the purposes for which it was ordained and established. Under our form of government, and the cardinal principles upon which it was founded, it should have been a peaceful remedy. The withdrawal of a State from a league has no revolutionary or insurrectionary characteristic. The government of the State remains unchanged as to all internal affairs. It is only its external or confederate relations that are altered. To term this action of a sovereign a "rebellion," is a gross abuse of language. So is the flippant phrase which speaks of it as an appeal to the "arbitrament of the sword." In the late contest, in particular, there was no appeal by the seceding States to the arbitrament of arms. There was on their part no invitation nor provocation to war. They stood in an attitude of self-defense, and were attacked for merely exercising a right guaranteed by the original terms of the compact. They neither tendered nor accepted any challenge to the wager of battle. The man who defends his house against attack can not with any propriety be said to have submitted the question of his right to it to the arbitrament of arms.

Two moral obligations or restrictions upon a seceding State certainly exist: in the first place, not to break up the partnership without good and sufficient cause; and, in the second, to make an equitable settlement with former associates, and, as far as may be, to avoid the infliction of loss or damage upon any of them. Neither of these obligations was violated or neglected by the Southern States in their secession.

Footnote 104: (return)

Ray's "Louisiana Digest," vol. i, p. 24.