The right of the government to govern the Territories in regard to private and particular rights and interests, is derived from no express grant of power, and is held only ex necessitate--the United States owning the domain, and there being no other authority competent to govern them. But, as in the case of all powers held ex necessitate, the power is restricted to the absolute necessity in the case. What are called Territorial governments, to distinguish them from the State governments, are only provisional governments, and can touch private rights and interests no further than is necessary to preserve order and prepare the way for the organization and installation of a regular State government. Till then the law governing private rights is the law that was in force, if any such there was, when the territory became by purchase, by conquest, or by treaty, attached to the domain of the United States.
Hence the Supreme Court declared unconst.i.tutional the ordinance of 1787, prohibiting slavery in what was called the territory of the Northwest, and the so-called Missouri Compromise, prohibiting slavery north of the parallel 36 30". The Wilmot proviso was for the same reason unconst.i.tutional. The General government never had and has not any power to exclude slavery from the Territories, any more than to abolish it in the States. But slavery being a local inst.i.tution, sustained neither by the law of nature nor the law of nations, no citizen migrating from a slave State could carry his slaves with him, and hold them as slaves in the Territory. Rights enacted by local law are rights only in that locality, and slaves carried by their masters into a slave State even, are free, unless the State into which they are carried enacts to the contrary. The only persons that could be held as slaves in a Territory would be those who were slaves or the children of those who were slaves in the Territory when it pa.s.sed to the United States. The whole controversy on, slavery in the Territories, and which culminated in the civil war, was wholly unnecessary, and never could have occurred had the const.i.tution been properly understood and adhered to by both sides. True, Congress could not exclude slavery from the Territory, but neither could citizens migrating to them hold slaves in them; and so really slavery was virtually excluded, for the inhabitants in nearly all of them, not emigrants from the States after the cession to the United States, were too few to be counted.
The General government has power to establish a uniform rule of naturalization, to which all the States must conform, and it was very proper that it should have this power, so as to prevent one State from gaining by its naturalization laws an undue advantage over another; but the General government has itself no power to naturalize a single foreigner, or in any case to say who shall or who shall not be citizens, either of a State or of the United States, or to declare who may or may not be electors even of its own officers. The convention ordains that members of the house of representatives shall be chosen by electors who have the qualifications requisite for electors of the most numerous branch of the State legislature, but the State determines these qualifications, and who do or do not possess them; that the senators shall be chosen by the State legislatures, and that the electors of President and Vice-President shall be appointed in such manner as the respective State legislatures may direct. The whole question of citizenship, what shall or shall not be the qualifications of electors, who shall or shall not be freemen, is reserved to the States, as coming under the head of personal or private rights and franchises. In practice, the exact line of demarcation may not always have been strictly observed either by the General government or by the State governments; but a careful study of the const.i.tution cannot fail to show that the division of powers is the division or distinction between the public and general relations and interests, rights and duties of the people, and their private and particular relations and interests, rights and duties. As these two cla.s.ses of relations and interests, rights and duties, though distinguishable, are really inseparable in nature, it follows that the two governments are essential to the existence of a complete government, or to the existence of a real government in its plenitude and integrity. Left to either alone, the people would have only an incomplete, an initial, or inchoate government. The General government is the complement of the State governments, and the State governments are the complement of the General government.
The consideration of the powers denied by the convention to the General government and to the State governments respectively, will lead to the same conclusion. To the General government is denied expressly or by necessary implication all jurisdiction in matters of private rights and interests, and to the State government is denied all jurisdiction in right, or interests which extend, as has been said, beyond the boundaries of the State. "No State shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money, emit bills of credit, make any thing but gold and silver coin a tender in the payment of debts; pa.s.s any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any t.i.tle of n.o.bility. No State shall, without the consent of Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws and the net produce of all duties and imposts laid by any State on imports and exports shall be for the use of the treasury of the United States, and all such laws shall be subject to the revision and control of Congress.
No State shall, without the consent of Congress, lay any duty of tonnage, keep troops or ships-of-war in time of peace, enter into any agreement or compact with another State or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay."
The powers denied to the States in some matters which are rather private and particular, such as bills of attainder, ex post facto laws, laws impairing the obligation of contracts, granting t.i.tles of n.o.bility, are denied equally to the General government. There is evidently a profound logic in the const.i.tution, and there is not a single provision in it that is arbitrary, or anomalous, or that does not harmonize dialectically with the whole, and with the real const.i.tution of the American people. At first sight the reservation to the State of the appointment of the officers of the militia might seem an anomaly; but as the whole subject of internal police belongs to the State, it should have some military force at its command. The subject of bankruptcies, also, might seem to be more properly within the province of the State, and so it would be if commerce between the several States had not been placed under Congress, or if trade were confined to the citizens of the State and within its boundaries; but as such is not the case, it was necessary to place it under the General government, in order that laws on the subject might be uniform throughout the Union, and that the citizens of all the States, and foreigners trading with them, should be placed on an equal footing, and have the same remedies. The subject follows naturally in the train of commerce, for bankruptcies, as understood at the time, were confined to the mercantile cla.s.s, bankers, and brokers; and since the regulation of commerce, foreign and inter-state, was to be placed under the sole charge of the General government, it was necessary that bankruptcy should be included. The subject of patents is placed under the General government, though the patent is a private right, because it was the will of the convention that the patent should be good in all the States, as affording more encouragement to science and the useful arts than if good only within a single State, or if the power were left to each State to recognize or not patents granted by another. The right created, though private in its nature, is Yet general or common to all the States in its enjoyment or exercise.
The division of the powers of government between a General government and particular governments, rendered possible and practicable by the original const.i.tution of the people themselves, as one people existing and acting through State organizations, is the American method of guarding against the undue centralism to which Roman imperialism inevitably tends; and it is far simpler and more effective than any of the European systems of mixed governments, which seek their end by organizing an antagonism of interests or cla.s.ses. The American method demands no such antagonism, no neutralizing of one social force by another, but avails itself of all the forces of society, organizes them dialectically, not antagonistically, and thus protects with, equal efficiency both public authority and private rights. The General government can never oppress the people as individuals, or abridge their private rights or personal freedom and independence, because these are not within its jurisdiction, but are placed in charge, within each State, of the State government, which, within its sphere, governs as supremely as the General government: the State governments cannot weaken the public authority of the nation or oppress the people in their general rights and interests, for these are withdrawn from State jurisdiction, and placed under charge of a General government, which, in its sphere, governs as supremely as the State government. There is no resort to a system of checks and balances; there is no restraint on power, and no systematic distrust of power, but simply a division of powers between two co-ordinate governments, distinct but inseparable, moving in distinct spheres, but in the same direction, or to a common end. The system is no invention of man, is no creation of the convention, but is given us by Providence in the living const.i.tution of the American people. The merit of the statesmen of 1787 is that they did not destroy or deface the work of Providence, but accepted it, and organized the government in harmony with the real orders the real elements given them. They suffered themselves in all their positive substantial work to be governed by reality, not by theories and speculations. In this they proved themselves statesmen, and their work survives; and the republic, laugh as sciolists may, is, for the present and future, the model republic--as much so as was Rome in her day; and it is not simply national pride nor American self-conceit that p.r.o.nounces its establishment the beginning of a new and more advanced order of civilization; such is really the fact.
The only apparently weak point in the system is in the particular States themselves. Feudalism protected the feudal aristocracy effectively for a time against both the king and the people, but left the king and the people without protection against the aristocracy, and hence it fell. It was not adequate to the wants of civil society, did not harmonize all social elements, and protect all social and individual rights and interests, and therefore could not but fail. The General government takes care of public authority and rights; the State protects private rights and personal freedom as against the General government: but what protects the citizens in their private rights, their personal freedom and independence, against the particular State government? Universal suffrage, answers the democrat. Armed with the ballot, more powerful than the sword, each citizen is able to protect himself. But this is theory, not reality. If it were true, the division of the powers of government between two co-ordinate, governments would be of no practical importance. Experience does not sustain the theory, and the power of the ballot to protect the individual may be rendered ineffective by the tyranny of party.
Experience proves that the ballot is far less effective in securing the freedom and independence of the individual citizen than is commonly pretended. The ballot of an isolated individual counts for nothing.
The individual, though armed with the ballot, is as powerless, if he stands alone, as if he had it not. To render it of any avail he must a.s.sociate himself with a party, and look for his success in the success of his party; and to secure the success of his party, he must give up to it his own private convictions and free will. In practice, individuals are nothing individually, and parties are every thing.
Even the suppression of the late rebellion, and the support of the Administration in doing it, was made a party question, and the government found the leaders of the party opposed to the Republican party an obstacle hardly less difficult to surmount than the chiefs of the armies of the so-called Confederate States.
Parties are formed, one hardly knows how, and controlled, no one knows by whom; but usually by demagogues, men who have some private or personal purposes, for which they wish, through party to use the government. Parties have no conscience, no responsibility, and their very reason of being is, the usurpation and concentration of power.
The real practical tendency of universal suffrage is to democratic, instead of an imperial, centralism. What is to guard against this centralism? Not universal suffrage, for that tends to create it; and if the government is left to it, the government becomes practically the will of an ever shifting and irresponsible majority. Is the remedy in written or paper const.i.tutions? Party can break through them, and by making the judges elective by party, for short terms, and re-eligible, can do so with impunity. In several of the States, the dominant majority have gained the power to govern at will, without any let or hindrance. Besides, const.i.tutions can be altered, and have been altered, very nearly at the will of the majority. No mere paper const.i.tutions are any protection against the usurpations of party, for party will always grasp all the power it can.
Yet the evil is not so great as it seems, for in most of the States the principle of division of powers is carried into the bosom of the State itself; in some States further than in others, but in all it obtains to some extent. In what are called the New England States, the best governed portion of the Union, each town is a corporation, having important powers and the charge of all purely local matters--chooses its own officers, manages its own finances, takes charge of its own poor, of its own roads and bridges, and of the education of its own children. Between these corporations and the State government are the counties, that take charge of another cla.s.s of interests, more general than those under the charge of the town, but less general than those of the State. In the great central and Northwestern States the same system obtains, though less completely carried out. In the Southern and Southwestern States, the town corporations hardly exist, and the rights and interests of the poorer cla.s.ses of persons have been less well protected in them than in the Northern and Eastern States. But with the abolition of slavery, and the lessening of the influence of the wealthy slaveholding cla.s.s, with the return of peace and the revival of agricultural, industrial, and commercial prosperity, the New England system, in its main features, is pretty sure to be gradually introduced, or developed, and the division of powers in the State to be as effectively and as systematically carried out as it is between the General government and the particular or State governments. So, though universal suffrage, good as far as it goes, is not alone sufficient, the division of powers affords with it a not inadequate protection.
No government, whose workings are intrusted to men, ever is or can be practically perfect--secure all good, and guard against all evil. In all human governments there will be defects and abuses, and he is no wise man who expects perfection from imperfection. But the American const.i.tution, taken as a whole, and in all its parts, is the least imperfect that has ever existed, and under it individual rights, personal freedom and independence, as well as public authority or society, are better protected than under any other; and as the few barbaric elements retained from the feudal ages are eliminated, the standard of education elevated, and the whole population Americanized, moulded by and to the American system, it will be found to effect all the good, with as little of the evil, as can be reasonably expected from any possible civil government or political const.i.tution of society.
CHAPTER XII.
SECESSION.
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 a.s.serted 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 right 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 be 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 n.o.body. All its substance and vitality are in the agreement by which the States const.i.tute 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 a.s.sumption 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, const.i.tutional 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 const.i.tution 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 G.o.d 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 cla.s.s 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 const.i.tution 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 const.i.tution 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 Union.
The ratification of the const.i.tution 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 const.i.tution 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 const.i.tutional 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 const.i.tution 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 a.s.sumes that the States were originally each in its individuality a sovereign state, but by the convention which framed the const.i.tution, 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 const.i.tution, to elect under it, in such way as the convention ordains, State officers, a State legislature, and, in the way prescribed by the Const.i.tution 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 pa.s.sed, on the fact of independence, to the States United, and not to the States severally.
Hence if nine States had ratified the const.i.tution, 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 unconst.i.tutional; 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 const.i.tution to find the basis of that unity of the American people which they a.s.sert. Neither Mr.
Madison nor Mr. Webster felt any difficulty in a.s.serting 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 const.i.tution. 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 a.s.sertion 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 unconst.i.tutional 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 a.s.sertion 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 va.s.sal. 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 pa.s.sed 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 pa.s.sed secession ordinances have been all along States in the Union.
The secession ordinances were illegal, unconst.i.tutional, not within the competency of the State, and therefore null and void from the beginning. Unconst.i.tutional, 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 unconst.i.tutional, and therefore not null and void. Acts unconst.i.tutional in some parts and const.i.tutional in others are not wholly void. The unconst.i.tutionality vitiates only the unconst.i.tutional 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 pa.s.sed 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 pa.s.sed 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 pa.s.sed by the people of the State in convention legally a.s.sembled, therefore by them in their highest State capacity--in the same capacity in which they ordain and ratify the State const.i.tution 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 ma.s.s 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 ma.s.s 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 a.n.a.lysis of the early Roman const.i.tution. 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 personal, and is const.i.tuted 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 a.s.sumes 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 he goes. The Gothic chiefs hold their power by a personal t.i.tle, 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 wherever 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 a.s.sert, 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.