Volume I Part 14 (1/2)
I shall add but two other citations. They are from speeches of John Marshall, afterward the most distinguished Chief Justice of the United States-who has certainly never been regarded as holding high views of State rights-in the Virginia Convention of 1788. In the first case, he was speaking of the power of the States over the militia, and is thus reported:
”The State governments did not derive their powers from the General Government; but each government derived its powers from the people, and each was to act according to the powers given it. Would any gentleman deny this?... Could any man say that this power was not retained by the States, as they had not given it away? For (says he) does not a power remain till it is given away? The State Legislatures had power to command and govern their militia before, and have it still, undeniably, unless there be something in this Const.i.tution that takes it away....
”He concluded by observing that the power of governing the militia was not vested in the States by implication, because, being possessed of it antecedently to the adoption of the Government, and not being divested of it by any grant or restriction in the Const.i.tution, they must necessarily be as fully possessed of it as ever they had been, and it could not be said that the States derived any powers from that system, but retained them, though not acknowledged in any part of it.”85
In the other case, the special subject was the power of the Federal judiciary. Mr. Marshall said, with regard to this: ”I [pg 166] hope that no gentleman will think that a State can be called at the bar of the Federal court. Is there no such case at present? Are there not many cases, in which the Legislature of Virginia is a party, and yet the State is not sued? Is it rational to suppose that the sovereign power shall be dragged before a court?”86
Authorities to the same effect might be multiplied indefinitely by quotation from nearly all the most eminent statesmen and patriots of that brilliant period. My limits, however, permit me only to refer those in quest of more exhaustive information to the original records, or to the ”Republic of Republics,” in which will be found a most valuable collection and condensation of the teaching of the fathers on the subject. There was no dissent, at that period, from the interpretation of the Const.i.tution which I have set forth, as given by its authors, except in the objections made by its adversaries. Those objections were refuted and silenced, until revived, long afterward, and presented as the true interpretation, by the school of which Judge Story was the most effective founder.
At an earlier period-but when he had already served for several years in Congress, and had attained the full maturity of his powers-Mr. Webster held the views which were presented in a memorial to Congress of citizens of Boston, December 15, 1819, relative to the admission of Missouri, drawn up and signed by a committee of which he was chairman, and which also included among its members Mr. Josiah Quincy. He speaks of the States as enjoying ”the exclusive possession of sovereignty” over their own territory, calls the United States ”the American Confederacy,” and says, ”The only parties to the Const.i.tution, contemplated by it originally, were the thirteen confederated States.” And again: ”As between the original States, the representation rests on compact and plighted faith; and your memorialists have no wish that that compact should be disturbed, or that plighted faith in the slightest degree violated.”
It is satisfactory to know that in the closing year of his life, when looking retrospectively, with judgment undisturbed by [pg 167] any extraneous influence, he uttered views of the Government which must stand the test of severest scrutiny and defy the storms of agitation, for they are founded on the rock of truth. In letters written and addresses delivered during the Administration of Mr. Fillmore, he repeatedly applies to the Const.i.tution the term ”compact,” which, in 1833, he had so vehemently repudiated. In his speech at Capon Springs, Virginia, in 1851, he says:
”If the South were to violate any part of the Const.i.tution intentionally and systematically, and persist in so doing year after year, and no remedy could be had, would the North be any longer bound by the rest of it? And if the North were, deliberately, habitually, and of fixed purpose, to disregard one part of it, would the South be bound any longer to observe its other obligations?...
”How absurd it is to suppose that, when different parties enter into a compact for certain purposes, either can disregard any one provision, and expect, nevertheless, the other to observe the rest!...
”I have not hesitated to say, and I repeat, that, if the Northern States refuse, willfully and deliberately, to carry into effect that part of the Const.i.tution which respects the restoration of fugitive slaves, and Congress provide no remedy, the South would no longer be bound to observe the compact. A bargain can not be broken on one side, and still bind the other side.”87
The principles which have been set forth in the foregoing chapters, although they had come to be considered as peculiarly Southern, were not sectional in their origin. In the beginning and earlier years of our history they were cherished as faithfully and guarded as jealously in Ma.s.sachusetts and New Hamps.h.i.+re as in Virginia or South Carolina. It was in these principles that I was nurtured. I have frankly proclaimed them during my whole life, always contending in the Senate of the United States against what I believed to be the mistaken construction of the Const.i.tution taught by Mr. Webster and his adherents. While I honored the genius of that great man, and held friendly [pg 168] personal relations with him, I considered his doctrines on these points-or rather the doctrines advocated by him during the most conspicuous and influential portions of his public career-to be mischievous, and the more dangerous to the welfare of the country and the liberties of mankind on account of the signal ability and magnificent eloquence with which they were argued.
Footnote 80: (return) Elliott's ”Debates,” vol. i, p. 239; ”Madison Papers,” pp. 1119-1124.
Footnote 81: (return) ”Madison Papers,” p. 1184.
Footnote 82: (return) ”Federalist,” No. lx.x.xi.
Footnote 83: (return) ”Federalist,” No. lx.x.xiv.
Footnote 84: (return) Ibid., No. lx.x.xv.
Footnote 85: (return) Elliott's ”Debates,” vol. iii, pp. 389-391.
Footnote 86: (return) Elliott's ”Debates,” vol. iii, p. 503.
Footnote 87: (return) Curtis's ”Life of Webster,” chap. x.x.xvii, vol. ii, pp. 518, 519.
CHAPTER XI.
The Right of Secession.-The Law of Unlimited Partners.h.i.+ps.-The ”Perpetual Union” of the Articles of Confederation and the ”More Perfect Union” of the Const.i.tution.-The Important Powers conferred upon the Federal Government and the Fundamental Principles of the Compact the same in both Systems.-The Right to resume Grants, when failing to fulfill their Purposes, expressly and distinctly a.s.serted in the Adoption of the Const.i.tution.
The Right of Secession-that subject which, beyond all others, ignorance, prejudice, and political rancor have combined to cloud with misstatements and misapprehensions-is a question easily to be determined in the light of what has already been established with regard to the history and principles of the Const.i.tution. It is not something standing apart by itself-a factious creation, outside of and antagonistic to the Const.i.tution-as might be imagined by one deriving his ideas from the political literature most current of late years. So far from being against the Const.i.tution or incompatible with it, we contend that, if the right to secede is not prohibited to the States, and no power to prevent it expressly delegated to the United States, it remains as reserved to the States or the people, from whom all the powers of the General Government were derived.
The compact between the States which formed the Union was in the nature of a partners.h.i.+p between individuals without limitation of time, and the recognized law of such partners.h.i.+ps is thus stated by an eminent lawyer of Ma.s.sachusetts in a work intended for popular use:
”If the articles between the partners do not contain an agreement that the partners.h.i.+p shall continue for a specified time, it [pg 169] may be dissolved at the pleasure of either partner. But no partner can exercise this power wantonly and injuriously to the other partners, without making himself responsible for the damage he thus causes. If there be a provision that the partners.h.i.+p shall continue a certain time, this is binding.”88
We have seen that a number of ”sovereign, free, and independent” States, during the war of the Revolution, entered into a partners.h.i.+p with one another, which was not only unlimited in duration, but expressly declared to be a ”perpetual union.” Yet, when that Union failed to accomplish the purposes for which it was formed, the parties withdrew, separately and independently, one after another, without any question made of their right to do so, and formed a new a.s.sociation. One of the declared objects of this new partners.h.i.+p was to form ”a more perfect union.” This certainly did not mean more perfect in respect of duration; for the former union had been declared perpetual, and perpetuity admits of no addition. It did not mean that it was to be more indissoluble; for the delegates of the States, in ratifying the former compact of union, had expressed themselves in terms that could scarcely be made more stringent. They then said:
”And we do further solemnly plight and engage the faith of our respective const.i.tuents, that they shall abide by the determinations of the United States in Congress a.s.sembled, on all questions which, by the said confederation, are submitted to them; and that the articles thereof shall be inviolably observed by the States we respectively represent; and that the Union shall be perpetual.”89