The American Republic
THE doctrine that a State has a right to secede and carry with it its population and domain, has been effectually put down, and the unity and integrity of the United States as a sovereign nation have been effectively asserted on the battle-field; but the secessionists, though disposed to submit to superior force, and demean themselves henceforth as loyal citizens, most likely hold as firmly to the doctrine as before finding themselves unable to reduce it to practice, and the Union victory will remain incomplete till they are convinced in their understandings that the Union has the better reason as well as the superior military resources. The nation has conquered their bodies, but it is hardly less important for our statesmen to conquer their minds and win their hearts.
The light of secession is not claimed as a revolutionary right, or even as a conventional right. The secessionists disclaim revolutionary principles, and hold that the right of secession is anterior to the convention, a right which the convention could neither give nor take away, because inherent in the very conception of a sovereign State. Secession is simply the repeal by the State of the act of accession to the Union; and as that act was a free, voluntary act of the State, she must always be free to repeal it. The Union is a copartnership; a State in the Union is simply a member of the firm, and has the right to withdraw when it judges it for its interest to do so. There is no power in a firm to compel a copartner to remain a member any longer than he pleases. He is undoubtedly holden for the obligations contracted by the firm while he remains a member; but for none contracted after he has withdrawn and given due notice thereof.
So of a sovereign State in the Union, The Union itself, apart from the sovereign States that compose it, is a mere abstraction, a nullity, and binds nobody. All its substance and vitality are in the agreement by which the States constitute themselves a firm or copartnership, for certain specific purposes, and for which they open an office and establish an agency under express instructions for the management of the general affairs of the firm. The State is held jointly and severally for all the legal obligations of the Union, contracted while she is in it, but no further; and is free to withdraw when she pleases, precisely as an individual may withdraw from an ordinary business firm. The remaining copartners have no right of compulsion or coercion against the seceding member, for he, saving the obligations already contracted, is as free to withdraw as they are to remain.
The population is fixed to the domain, and goes with it; the domain is attached to the State, and secedes in the secession of the State. Secession, then, carries the entire State, government, people, and domain, out of the Union, and restores ipso facto the State to its original position of a sovereign State, foreign to the United States. Being an independent sovereign State, she may enter into a new confederacy, form a new copartnership, or merge herself in some other foreign state, as she judges proper or finds opportunity. The States that seceded formed among themselves a new confederacy, more to their mind than the one formed in 1787, as they had a perfect right to do, and in the war just ended they were not rebels nor revolutionists, but a people fighting for the right of self-government, loyal citizens and true patriots defending the independence and inviolability of their country against foreign invaders. They are to be honored for their loyalty and patriotism, and not branded as rebels and punished as traitors.
This is the secession argument, which rests on no assumption of revolutionary principles or abstract rights of man, and on no allegation of real or imaginary wrongs received from the Union, but simply on the original and inherent rights of the several States as independent sovereign States. The argument is conclusive, and the defence complete, if the Union is only a firm or copartnership, and the sovereignty vests in the States severally. The refutation of the secessionists is in the facts adduced that disprove the theory of State sovereignty, and prove that the sovereignty vests not in the States severally, but in the States united, or that the Union is sovereign, and not the States individually. The Union is not a firm, a copartnership, nor an artificial or conventional union, but a real, living, constitutional union, founded in the original and indissoluble unity of the American people, as one sovereign people. There is, indeed, no such people, if we abstract the States, but there are no States if we abstract this sovereign people or the Union. There is no Union without the States, and there are no States without the Union. The people are born States, and the States are born United States; The Union and the States are simultaneous, born together, and enter alike into the original and essential constitution of the American state. This the facts and reasonings adduced fully establish.
But this one sovereign people that exists only as organized into States, does not necessarily include the whole population or territory included within the jurisdiction of the United States. It is restricted to the people and territory or domain organized into States in the Union, as in ancient Rome the ruling people were restricted to the tenants of the sacred territory, which had been surveyed, and its boundaries marked by the god Terminus, and which by no means included all the territory held by the city, and of which she was both the private proprietor and the public sovereign. The city had vast possessions acquired by confiscation, by purchase, by treaty, or by conquest, and in reference to which her celebrated agrarian laws were enacted, and which have their counterpart in our homestead and kindred laws. In this class of territory, of which the city was the private owner, was the territory of all the Roman provinces, which was held to be only leased to its occupants, who were often dispossessed, and their lands given as a recompense by the consul or imperator to his disbanded legionaries. The provincials were subjects of Rome, but formed no part of the Roman people, and had no share in the political power of the state, till at a late period the privileges of Roman citizens were extended to them, and the Roman people became coextensive with the Roman empire. So the United States have held and still hold large territorial possessions, acquired by the acknowledgment of their independence by Great Britain, the former sovereign, the cession of particular states, and purchase from France, Spain, and Mexico. Till erected into States and admitted into the Union, this territory, with its population, though subject to the United States, makes no part of the political or sovereign territory and people of the United States. It is under the Union, not in it, as is indicated by the phrase admitting into the Union – a legal phrase, since the constitution ordains that “new States may be admitted by the Congress into this Union.”
There can be no secession that separates a State from the national domain, and withdraws it from the territorial sovereignty or jurisdiction of the United States; yet what hinders a State from going out of the Union in the sense that it comes into it, and thus ceasing to belong to the political people of the United States?
If the view of the constitution taken in the preceding chapters be correct, and certainly no facts tend to disprove it, the accession of a Territory as a State in the Union is a free act of the territorial people. The Territory cannot organize and apply for admission as a State, without what is called an “enabling act” of Congress or its equivalent; but that act is permissive, not mandatory, and nothing obliges the Territory to organize under it and apply for admission. It may do so or not, as it chooses. What, then, hinders the State once in the Union from going out or returning to its former condition of territory subject to the Union? The original States did not need to come in under an enabling act, for they were born States in the Union, and were never territory outside of the Union and subject to it. But they and the new States, adopted or naturalized States, once in the Union, stand on a footing of perfect equality, and the original States are no more and no less bound than they to remain States in the Uni on. The ratification of the constitution by the original States was a free act, as much so as the accession of a new State formed from territory subject to the Union is a free act, and a free act is an act which one is free to do or not to do, as he pleases. What a State is free to do or not to do, it is free to undo, if it chooses. There is nothing in either the State constitution or in that of the United States that forbids it.
This is denied. The population and domain are inseparable in the State; and if the State could take itself out of the Union, it would take them out, and be ipso facto a sovereign State foreign to the Union. It would take the domain and the population out of the Union, it is conceded and even maintained, but not therefore would it take them out of the jurisdiction of the Union, or would they exist as a State foreign to the Union; for population and territory may coexist, as Dacota, Colorado, or New Mexico, out of the Union, and yet be subject to the Union, or within the jurisdiction of the United States.
But the Union is formed by the surrender by each of the States of its individual sovereignty, and each State by its admission into the Union surrenders its individual sovereignty, or binds itself by a constitutional compact to merge its individual sovereignty in that of the whole. It then cannot cease to be a State in the Union without breach of contract. Having surrendered its sovereignty to the Union, or bound itself by the constitution to exercise its original sovereignty only as one of the United States, it can unmake itself of its state character, only by consent of the United States, or by a successful revolution. It is by virtue of this fact that secession is rebellion against the United States, and that the General government, as representing the Union, has the right and the duty to suppress it by all the forces at its command. There can be no rebellion where there is no allegiance. The States in the Union cannot owe allegiance to the Union, for they are it, and for any one to go out of it is no more an act of rebellion than it is for a king to abdicate his throne. The Union is not formed by the surrender to it by the several States of their respective individual sovereignty. Such surrender could, as we have seen, form only an alliance, or a confederation, not one sovereign people; and from an alliance, or confederation, the ally or confederate has, saving its faith, the inherent right to secede. The argument assumes that the States were originally each in its individuality a sovereign state, but by the convention which framed the constitution, each surrendered its sovereignty to the whole, and thus several sovereign states became one sovereign political people, governing in general matters through the General government, and in particular matters through particular or State governments. This is Mr. Madison’s theory, and also Mr. Webster’s; but it has been refuted in the refutation of the theory that makes government originate in compact. A sovereign state can, undoubtedly, surrender its sovereignty, but can surrender it only to something or somebody that really exists; for to surrender to no one or to nothing is, as has been shown, the same thing as not to surrender at all, and the Union, being formed only by the surrender, is nothing prior to it, or till after it is made, and therefore can be no recipient of the surrender.
Besides, the theory is the reverse of the fact. The State does not surrender or part with its sovereignty by coming into the Union, but acquires by it all the rights it holds as a State, Between the original States and the new States there is a difference of mode by which they become States in the Union, but none in their powers, or the tenure by which they hold them. The process by which new States are actually formed and admitted into the Union, discloses at once what it is that is gained or lost by admission. The domain and population, before the organization of the Territory into one of the United States, are subject to the United States, inseparably attached to the domain of the Union, and under its sovereignty. The Territory so remains, organized or unorganized, under a Territorial government created by Congress. Congress, by an enabling act, permits it to organize as a State, to call a convention to form a State constitution, to elect under it, in such way as the convention ordains. State officers, a State legislature, and, in the way prescribed by the Constitution of the United States, senators and representatives in Congress. Here is a complete organization as a State, yet, though called a State, it is no State at all, and is simply territory, without a single particle of political power. To be a State it must be recognized and admitted by Congress as a State in the Union, and when so recognized and admitted it possesses, in union with the other United States, supreme political sovereignty, jointly in all general matters, and individually in all private and particular matters. The Territory gives up no sovereign powers by coming into the Union, for before it came into the Union it had no sovereignty, no political rights at all. All the rights and powers it holds are held by the simple fact that it has become a State in the Union. This is as true of the original States as of the new States; for it has been shown in the chapter on The United States, that the original British sovereignty under which the colonies were organized and existed passed, on the fact of independence, to the States united, and not to the States severally. Hence if nine States had ratified the constitution, and the other four had stood out, and refused to do it, which was within their competency, they would not have been independent sovereign States, outside of the Union, but Territories under the Union.
Texas forms the only exception to the rule that the States have never been independent of the Union. All the other new States have been formed from territory subject to the Union. This is true of all the States formed out of the Territory of the Northwest, and out of the domain ceded by France, Spain, and Mexico to the United States. All these cessions were held by the United States as territory immediately subject to the Union, before being erected into States; and by far the larger part is so held even yet. But Texas was an independent foreign state, and was annexed as a State without having been first subjected as territory to the United States. It of course lost by annexation its separate sovereignty. But this annexation was held by many to be unconstitutional; it was made when the State sovereignty theory had gained possession of the Government, and was annexed as a State instead of being admitted as a State formed from territory belonging to the United States, for the very purpose of committing the nation to that theory. Its annexation was the prologue, as the Mexican war was the first act in the secession drama, and as the epilogue is the suppression of the rebellion on Texan soil. Texas is an exceptional case, and forms no precedent, and cannot be adduced as invalidating the general rule. Omitting Texas, the simple fact is, the States acquire all their sovereign powers by being States in the Union, instead of losing or surrendering them.
Our American statesmen have overlooked or not duly weighed the facts in the case, because, holding the origin of government in compact, they felt no need of looking back of the constitution to find the basis of that unity of the American people which they assert. Neither Mr. Madison nor Mr. Webster felt any difficulty in asserting it as created by the convention of 1787, or in conceding the sovereignty of the States prior to the Union, and denying its existence after the ratification of the constitution. If it were not that they held that the State originates in convention or the social compact, there would be unpardonable presumption on the part of the present writer in venturing to hazard an assertion contrary to theirs. But, if their theory was unsound, their practical doctrine was not; for they maintained that the American people are one sovereign people, and Mr. Quincy Adams, an authority inferior to neither, maintained that they were always one people, and that the States hold from the Union, not the Union from the States. The States without the Union cease to exist as political communities: the Union without the States ceases to be a Union, and becomes a vast centralized and consolidated state, ready to lapse from a civilized into a barbaric, from a republican to a despotic nation.
The State, under the American system, as distinguished from Territory, is not in the domain and population fixed to it, nor yet in its exterior organization, but solely in the political powers, rights, and franchises which it holds from the United States, or as one of the United States. As these are rights, not obligations, the State may resign or abdicate them and cease to be a State, on the same principle that any man may abdicate or forego his rights. In doing so, the State breaks no oath of allegiance, fails to fulfil no obligation she contracted as a State: she simply forgoes her political rights and franchises. So far, then, secession is possible, feasible, and not unconstitutional or unlawful. But it is, as Mr. Sumner and others have maintained, simply State suicide. Nothing hinders a State from committing suicide, if she chooses, any more than there was something which compelled the Territory to become a State in the Union against its will. It is objected to this conclusion that the States were, prior to the Union, independent sovereign States, and secession would not destroy the State, but restore it to its original sovereignty and independence, as the secessionists maintain. Certainly, if the States were, prior to the Union, sovereign States; but this is precisely what has been denied and disproved; for prior to the Union there were no States. Secession restores, or reduces, rather, the State to the condition it was in before its admission into the Union; but that condition is that of Territory, or a Territory subject to the United States, and not that of an independent sovereign state. The State holds all its political rights and powers in the Union from the Union, and has none out of it, or in the condition in which its population and domain were before being a State in the Union.
State suicide, it has been urged, releases its population and territory from their allegiance to the Union, and as there is no rebellion where there is no allegiance, resistance by its population and territory to the Union, even war against the Union, would not be rebellion, but the simple assertion of popular sovereignty. This is only the same objection in another form. The lapse of the State releases the population and territory from no allegiance to the Union; for their allegiance to the Union was not contracted by their becoming a State, and they have never in their State character owed allegiance to the United States. A State owes no allegiance to the United States, for it is one of them, and is jointly sovereign. The relation between the United States and the State is not the relation of suzerain and liegeman or vassal. A State owes no allegiance, for it is not subject to the Union; it is never in their State capacity that its population and territory do or can rebel. Hence, the Government has steadily denied that, in the late rebellion, any State as such rebelled.
But as a State cannot rebel, no State can go out of the Union; and therefore no State in the late rebellion has seceded, and the States that passed secession ordinances are and all along have been States in the Union. No State can rebel, but it does not follow therefrom that no State can secede or cease to exist as a State: it only follows that secession, in the sense of State suicide, or the abdication by the State of its political rights and powers, is not rebellion. Nor does it follow from the fact that no State has rebelled, that no State has ceased to be a State; or that the States that passed secession ordinances have been all along States in the Union.
The secession ordinances were illegal, unconstitutional, not within the competency of the State, and therefore null and void from the beginning. Unconstitutional, illegal, and not within the competency of the State, so far as intended to alienate any portion of the national domain and population thereto annexed, they certainly were, and so far were void and of no effect; but so far as intended to take the State simply as a State out of the Union, they were within the competency of the State, were not illegal or unconstitutional, and therefore not null and void. Acts unconstitutional in some parts and constitutional in others are not wholly void. The unconstitutionality vitiates only the unconstitutional parts; the others are valid, are law, and recognized and enforced as such by the courts.
The secession ordinances are void, because they were never passed by the people of the State, but by a faction that overawed them and usurped the authority of the State. This argument implies that, if a secession ordinance is passed by the people proper of the State, it is valid; which is more than they who urge it against the State suicide doctrine are prepared to concede. But the secession ordinances were in every instance passed by the people of the State in convention legally assembled, therefore by them in their highest State capacity – in the same capacity in which they ordain and ratify the State constitution itself; and in nearly all the States they were in addition ratified and confirmed, if the facts have been correctly reported, by a genuine plebiscitum, or direct vote of the people. In all cases they were adopted by a decided majority of the political people of the State, and after their adoption they were acquiesced in and indeed actively supported by very nearly the whole people. The people of the States adopting the secession ordinances were far more unanimous in supporting secession than the people of the other States were in sustaining the Government in its efforts to suppress the rebellion by coercive measures. It will not do, then, to ascribe the secession ordinances to a faction. The people are never a faction, nor is a faction ever the majority.
There has been a disposition at the North, encouraged by the few Union men at the South, to regard secession as the work of a few ambitious and unprincipled leaders, who, by their threats, their violence, and their overbearing manner, forced the mass of the people of their respective States into secession, against their convictions and their will. No doubt there were leaders at the South, as there are in every great movement at the North; no doubt there were individuals in the seceding States that held secession wrong in principle, and were conscientiously attached to the Union; no doubt, also, there were men who adhered to the Union, not because they disapproved secession, but because they disliked the men at the head of the movement, or because they were keen-sighted enough to see that it could not succeed, that the Union must be the winning side, and that by adhering to it they would become the great and leading men of their respective States, which they certainly could not be under secession. Others sympathized fully with what was called the Southern cause, held firmly the right of secession, and hated cordially the Yankees, but doubted either the practicability or the expediency of secession, and opposed it till resolved on, but, after it was resolved on, yielded to none in their earnest support of it. These last comprised the immense majority of those who voted against secession. Never could those called the Southern leaders have carried the secession ordinances, never could they have carried on the war with the vigor and determination, and with such formidable armies as they collected and armed for four years, making at times the destiny of the Union well nigh doubtful, if they had not had the Southern heart with them, if they had not been most heartily supported by the overwhelming mass of the people. They led a popular, not a factious movement.
No State, it is said again, has seceded, or could secede. The State is territorial, not personal, and as no State can carry its territory and population out of the Union, no State can secede. Out of the jurisdiction of the Union, or alienate them from the sovereign or national domain, very true; but out of the Union as a State, with rights, powers, or franchises in the Union, not true. Secession is political, not territorial. But the State holds from the territory or domain. The people are sovereign because attached to a sovereign territory, not the domain because held by a sovereign people, as was established by the analysis of the early Roman constitution. The territory of the States corresponds to the sacred territory of Rome, to which was attached the Roman sovereignty. That territory, once surveyed and consecrated, remained sacred and the ruling territory, and could not be divested of its sacred and governing character. The portions of the territory of the United States once erected into States and consecrated as ruling territory can never be deprived, except by foreign conquest or successful revolution, of its sacred character and inviolable rights.
The State is territorial, not persona], and is constituted by public, not by private wealth, and is always respublica or commonwealth, in distinction from despotism or monarchy in its oriental sense, which is founded on private wealth, or which assumes that the authority to govern, or sovereignty, is the private estate of the sovereign. All power is a domain, but there is no domain without a dominus or lord. In oriental monarchies the dominus is the monarch; in republics it is the public or people fixed to the soil or territory, that is, the people in their territorial, and not in their personal or genealogical relation. The people of the United States are sovereign only within the territory or domain of the United States, and their sovereignty is a state, because fixed, attached, or limited to that specific territory. It is fixed to the soil, not nomadic. In barbaric nations power is nomadic and personal, or genealogical, confined to no locality, but attaches to the chief, and follows wherever ho goes. The Gothic chiefs hold their power by a personal title, and have the same authority in their tribes on the Po or the Rhone as on the banks of the Elbe or the Danube. Power migrates with the chief and his people, and may be exercised whereever he and they find themselves, as a Swedish queen held when she ordered the execution of one of her subjects at Paris, without asking permission of the territorial lord. In these nations, power is a personal right, or a private estate, not a state which exists only as attached to the domain, and, as attached to the domain, exists independently of the chief or the government. The distinction is between public domain and private domain.
The American system is republican, and, contrary to what some democratic politicians assert, the American democracy is territorial, not personal; not territorial because the majority of the people are agriculturists or landholders, but because all political rights, powers, or franchises are territorial. The sovereign people of the United States are sovereign only within the territory of the United States. The great body of the freemen have the elective franchise, but no one has it save in his State, his county, his town, his ward, his precinct Out of the election district in which he is domiciled, a citizen of the United States has no more right to vote than has the citizen or subject of a foreign state. This explains what is meant by the attachment of power to the territory, and the dependence of the state on the domain. The state, in republican states, exists only as inseparably united with the public domain; under feudalism, power was joined to territory or domain, but the domain was held as a private, not as a public domain. All sovereignty rests on domain or proprietorship, and is dominion. The proprietor is the dominus or lord, and in republican states the lord is society, or the public, and the domain is held for the common or public good of all. All political rights are held from society, or the dominus, and therefore it is the elective franchise is held from society, and is a civil right, as distinguished from a natural, or even a purely personal right.
As there is no domain without a lord or dominus, territory alone cannot possess any political rights or franchises, for it is not a domain.
In the American system, the dominus or lord is not the particular State, but the United States, and the domain of the whole territory, whether erected into particular States or not, is in the United States alone. The United States do not part with the dominion of that portion of the national domain included within a particular State. The State holds the domain not separately but jointly, as inseparably one of the United States: separated, it has no dominion, is no State, and is no longer a joint sovereign at all, and the territory that it included falls into the condition of any other territory held by the United States not erected into one of the United States.
Lawyers, indeed, tell us that the eminent domain is in the particular State, and that all escheats are to the State, not to the United States. All escheats of private estates, but no public or general escheats. But this has nothing to do with the public domain. The United States are the dominus, but they have, by the constitution, divided the powers of government between a General government and particular State governments, and ordained that all matters of a general nature, common to all the States, should be placed under the supreme control of the former, and all matters of a private or particular character under the supreme control of the latter. The eminent domain of private estates is in the particular State, but the sovereign authority in the particular State is that of the United States expressing itself through the State government. The United States, in the States as well as out of them, is the dominus, as the States respectively would soon find if they were to undertake to alienate any part of their domain to a foreign power, or even to the citizens or subjects of a foreign State, as is also evident from the fact that the United States, in the way prescribed by the constitution, may enlarge or contract at will the rights and powers of the States. The mistake on this point grows out of the habit of restricting the action of the United States to the General government, and not recollecting that the United States govern one class of subjects through the General government and another class through State governments, but that it is one and the sajne authority that governs in both.
The analogy borrowed from the Roman constitution, as far as applicable, proves the reverse of what is intended. The dominus of the sacred territory was the city, or the Roman state, not the sacred territory itself. The territory received the tenant, and gave him as tenant the right to a seat in the senate; but the right of the territory was derived not from the domain, but from the dominus, that is, the city. But the city could revoke its grant, as it practically did when it conferred the privileges of Roman citizenship on the provincials, and gave to plebeians seats in the senate. Moreover, nothing in Roman history indicates that to the validity of a senatus consultum it was necessary to count the vacant domains of the sacred territory. The particular domain must, under the American system, be counted when it is held by a State, but of itself alone, or even with its population, it is not a State, and therefore as a State domain is vacant and without any political rights or powers whatever.
To argue that the territory and population once a State in the Union must needs always be so, would be well enough if a State in the Union were individually a sovereign state; for territory, with its population not subject to another, is always a sovereign state, even though its government has been subverted. But this is not the fact, for territory with its population does not constitute a State in the Union; and, therefore, when of a State nothing remains but territory and population, the State has evidently disappeared. It will not do then to maintain that State suicide is impossible, and that the States that adopted secession ordinances have never for a moment ceased to be States in the Union, and are free, whenever they choose, to send their representatives and senators to occupy their vacant seats in Congress. They must be reorganized first.
There would also be some embarrassment to the government in holding that the States that passed the secession ordinance remain, notwithstanding, States in the Union. The citizens of a State in the Union cannot be rebels to the United States, unless they are rebels to their State; and rebels to their State they are not, unless they resist its authority and make war on it. The authority of the State in the Union is a legal authority, and the citizen in obeying it is disloyal neither to the State nor to the Union, The citizens in the States that made war on the United States did not resist their State, for they acted by its authority. The only men, on this supposition, in them, who have been traitors or rebels, are precisely the Union men who have refused to go with their respective States, and have resisted, even with armed force, the secession ordinances. The several State governments, under which the so-called rebels carried on the war for the destruction of the Union, if the States are in the Union, were legal and loyal governments of their respective States, for they were legally elected and installed, and conformed to their respective State constitutions. All the acts of these governments have been constitutional. Their entering into a confederacy for attaining a separate nationality has been legal, and the debts contracted by the States individually, or by the confederacy legally formed by them, have been legally contracted, stand good against them, and perhaps against the United States. The war against them has been all wrong, and the confederates killed in battle have been murdered by the United States. The blockade has been illegal, for no nation can blockade its own ports, and the captures and seizures under it, robberies. The Supreme Court has been wrong in declaring the war a territorial civil war, as well as the government in acting accordingly. Now, all these conclusions are manifestly false and absurd, and therefore the assumption that the States in question have all along been States in the Union cannot be sustained.
It is easy to understand the resistance the Government offers to the doctrine that a State may commit suicide, or by its own act abdicate its rights and cease to be a State In the Union. It is admissible on no theory of the constitution that has been widely entertained. It is not admissible on Mr. Calhoun’s theory of State sovereignty, for on that theory a State in going out of the Union does not cease to be a State, but simply resumes the powers it had delegated to the General government. It cannot be maintained on Mr. Madison’s or Mr. Webster’s theory, that the States prior to the Union were severally sovereign, but by the Union were constituted one people; for, if this one people are understood to be a federal people, State secession would not be State suicide, but State independence; and if understood to be one consolidated or centralized people, it would be simply insurrection or rebellion against the national authority, laboring to make itself a revolution. The government seems to have understood Mr. Madison’s theory in both senses – in the consolidated sense, in declaring the secessionists insurgents and rebels, and in the federal sense, in maintaining that they have never seceded, and are still States in the Union, in full possession of all their political or State rights. Perhaps, if the government, instead of borrowing from contradictory theories of the constitution which have gained currency, had examined in the light of historical facts the constitution itself it would have been as constitutional in its doctrine as it has been loyal and patriotic, energetic and successful in its military administration.
Another reason why the doctrine that State secession is State suicide has appeared so offensive to many, is the supposition entertained at one time by some of its friends, that the dissolution of the State vacates all rights and franchises held under it. But this is a mistake. The principle is well known and recognized by the jurisprudence of all civilized nations, that in the transfer of a territory from one territorial sovereign to another, the laws in force under the old sovereign remain in force after the change, till abrogated, or others are enacted in their place by the now sovereign, except such as are necessarily abrogated by the change itself of the sovereign; not, indeed, because the old sovereign retains any authority, but because such is presumed by the courts to be the will of the new sovereign. The principle applies in the case of the death of a State in the Union. The laws of the State are territorial, till abrogated by competent authority, remain the lex loci, and are in full force. All that would be vacated would be the public rights of the State, and in no case the private rights of citizens, corporations, or laws affecting them.
But the same conclusion is reached in another way. in the lapse of a State or its return to the condition of a Territory, there is really no change of sovereignty. The sovereignty, both before and after, is the United States. The sovereign authority that governs in the State government, as we have seen, though independent of the General government, is the United States. The United States govern certain matters through a General government, and others through particular State governments. The private rights and interests created, regulated, or protected by the particular State, are created, regulated, or protected by the United States, as much and as plenarily as if done by the General government, and the State laws creating, regulating, or protecting them can be abrogated by no power, known to the constitution, but either the State itself, or the United States in convention legally assembled. If this were what is meant by the States that have seceded, or professed to secede, remaining States in the Union, they would, indeed, be States still in the Union, notwithstanding secession, and the government would be right in saying that no State can secede. But this is not what is meant, at least not all that is meant. It is meant not only that the private rights of citizens and corporations remain, but the citizens retain all the public rights of the State, that is, the right to representation in Congress and in the electoral college, and the right to sit in the convention, which is not true. But the correction of the misapprehension that the private rights and interests are lost by the lapse of the State may remove the graver prejudices against the doctrine of State suicide, and dispose loyal and honest Union men to hear the reasons by which it is supported, and which nobody has refuted or can refute on constitutional grounds. A Territory by coming into the Union becomes a State; a State by going out of the Union becomes a Territory.