body. I stated, further, that, if the question was asked of some politician, who had not considered the subject with sufficient accuracy, where the supreme power resided in our governments, he would answer, that it was vested in the State constitutions. This opinion approaches near the truth, but does not reach it; for the truth is, that the supreme, absolute, and uncontrollable authority remains with the people. I mentioned, also, that the practical recognition of this truth was reserved for the honor of this country. I recollect no constitution founded on this principle; but we have witnessed the improvement, and enjoy the happiness of seeing it carried into practice. The great and penetrating mind of Locke seems to be the only one that pointed towards even the theory of this great truth. His "When I made the observation that some politicians would say the supreme power was lodged in our State constitutions, I did not suspect that the honorable gentleman from Westmoreland (Mr. Findley) was included in that description; but I find myself disappointed; for I imagined his opposition would arise from another consideration. position is, that the supreme power resides in the States, as governments; and mine is, that it resides in the people, as the fountain of government; that the people have not that the people meant not and that the people ought not - to part with it to any government whatsoever. In their hands it remains secure. They can delegate it in such proportions, to such bodies, on such terms, and under such limitations, as they think proper. I agree with the members in opposition, that there cannot be two sovereign powers on the same subject. "I consider the people of the United States as forming one great community; and I consider the people of the different States as forming communities, again, on a lesser scale. From this great division of the people into distinct communities, it will be found necessary that different proportions of legislative powers should be given to the governments, according to the nature, number and magnitude of their objects." 7 § 29. Judicial Decisions as to the Nature of the Constitution. The construction put upon the Constitution by the Federal Judiciary has been uniform in favor of this position. Six years after the adoption of the Constitution, a majority of the Supreme 7 Elliot's Debates on the Federal Constitution, vol. ii, pp. 455, 456. See also Wilson's Works, vol. i, p. 347 and the quotation from Madison, supra, § 14. Court held that they had jurisdiction of a suit against a State by a citizen of another State. The dissenting judge conceded that "the United States are sovereign as to all the powers of the government actually surrendered;" and as regards "the special objects of authority of the general Government, wherein the separate sovereignties of the States are blended in one common. mass of supremacy.” 2 Of the majority, two held that the States had relinquished so much of their sovereignty as exempted them from suit.3 Chief Justice Jay said that the Federal Constitution had the same effect upon the people of the United States as a State Constitution upon the people of a State.1 Wilson held that the question for decision was this: "Do the people of the United States form a nation?"5 which he resolved in the affirmative: "Whoever considers, in a combined and comprehensive view, the general texture of the Constitution, will be satisfied that the people of the United States intended to form themselves into a nation for national purposes. They instituted for such purposes a national government, complete in all its parts, with powers legislative, executive, and judiciary, and in all those powers extending over the whole nation.” 6 Later came the opinion of Chief Justice Marshall, who said:"To the formation of a league, such as was the Confederation, the State sovereignties were certainly competent. But when, in order to form a more perfect union,' it was deemed necessary to change this alliance into an effective government, possessing great and sovereign powers, and acting directly on the people, the necessity of referring it to the people, and of deriving its powers directly from them, was felt and acknowledged." " "That the United States form, for many and for most important purposes, a single nation, has not yet been denied. § 29 1 Chisholm v. Georgia, 2 Dallas, 419, A.D. 1793. 2 Justice Iredell, ibid., 435. See also his opinion in Penhallow v. Doane's Administrators, 3 Dallas, 54, 94. 3 Justice Blair, ibid., p. 452. Justice Cushing, ibid., p. 468. "Every State Constitution is a compact made by and between the citizens of a State to govern them In war, we are one people. In making peace, we are one people. In all commercial regulations, we are one and the same people. In many other respects, the American people are one; and the government which is alone capable of controlling and managing their interests in all these respects, is the government of the Union. It is their government, and in that character they have no other." 8 "Reference has been made to the political situation of these States anterior to its formation. It has been said that they were sovereign, were completely independent, and were connected with each other only by a league. This is true. But when these allied sovereigns converted their league into a government, when they converted their Congress of ambassadors deputed to deliberate on their common concerns, and to recommend measures of general utility, into a legislature, empowered to enact laws on the most interesting subjects, the whole character in which the States appear underwent a change, the extent of which must be determined by a fair consideration of the instrument by which that change was effected."9 Even so strong an advocate of States' rights as Chief Justice Taney said, in the Dred Scott case: "The new government was not a mere change in a dynasty, or in a form of government, leaving the nation or sovereignty the same, and clothed with all the rights, and bound by all the obligations of the preceding one. But when the present United States came into existence under the new government, it was a new political body, a new nation, then for the first time taking its place in the family of nations." 10 Finally, after the conclusion of the Civil War, the Supreme Court said, speaking through Chief-Justice Chase : "The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States." 11 § 30. Justification for Belief in Legality of Secession. Yet cogent as seem these arguments and precedents to members of a generation educated under the influence of the decisions of 8 Cohen v. Virginia, 6 Wheaton, 264, 413, 414, A.D. 1821. 9 Gibbons v. Ogden, 9 Wheaton, 1, 187, A.D. 1824. 10 Dred Scott v. Sandford, 19 Howard, 393, 441. 11 Texas v. White, 7 Wallace, 700, 725, quoted supra, § 20; White v. Cannon, 6 Wall. 443, 450; White v. Hart, 13 Wall. 646, 650; Williams v. Bruffy, 96 U. S. 173; Keith v. Clark, 97 U. S. 454. the Supreme Court, which have, with but short periods of reaction, steadily extended the powers of the Federal government, there is no foundation for the opprobrium heaped upon the Confederates by the supporters of the Union during the Civil War and the subsequent period of Reconstruction. Nothing is more unjust than to charge with perjury men who, like Davis, Lee and Stephens, after having sworn to support the Constitution, some of them after opposition to secession, joined their fellow citizens in their own States in waging war upon the national government. They honestly believed that the Constitution justified such action. They were supported by doctrines laid down by publicists as § 30. The edition of Blackstone, by St. George Tucker, published in 1803, was usually recognized as an authority throughout the South previous to the Civil War. The publishers paid the editor $4,000 for his work, a large sum even for these times, and which shows the esteem with which he was regarded by his contemporaries. The editor was at one time Judge of the Virginia Court of Appeals, and later Judge of the District Court of the United States for the Eastern District of that State. He was the stepfather of John Randolph of Roanoke; and his own descendants have served the country with distinction. "The Federal Government, then, appears to be the organ through which the United Republics communicate with foreign nations, and with each other. Their submission to its operation is voluntary; its councils, its engagements, its authority are theirs, modified and united. Its Sovereignty is an emanation from theirs, not a flame, in which they have been consumed, nor a vortex, in which they are swallowed up. Each is still a perfect State, still Sovereign, still independent, and still capable, should the occasion require, to resume the exercise of its functions, as such, in the most unlimited extent." "But, until the time shall arrive, when the occasion requires a resumption of the rights of Sovereignty by the several States (and far be that period removed, when it shall happen,) the exercise of the rights of Sovereignty by the States, individually, is wholly suspended or discontinued in the cases before mentioned: nor can that suspension ever be removed, so long as the present Constitution remains unchanged, but by the dissolution of the bonds of the union; an event which no good citizen can wish, and which no good or wise administration will ever hazard." Tucker's Blackstone, vol. i, Appendix, pp. 170, 171, 175, 187. The first treatise on the Constitution of the United States was by William Rawle, one of the leaders of the Philadelphia bar, at the time when the phrase, "sharper than a Philadelphia lawyer," first came into use. He was appointed United States Attorney for that district by General Washington. "Having thus endeavored to delineate the general features of this peculiar and invaluable form of Government, we shall conclude with adverting to the principles of its cohesion, and to the provisions it contains for its own duration and extension. The subject cannot, perhaps, be better introduced than by presenting, in its own words, an emphatical clause in the Constitution. The United States shall guarantee, to every State in the Union, a Republican form of Government; shall protect each of them against well as statesmen 2 of authority in the North as well as the South. During the whole of the nineteenth century down to the sur See 2 The opinions of a number of statesmen on the subject are quoted in § 31, infra. Southern writers have also appealed to John Quincy Adams as supporting the legality of the right of secession. The passage cited evidently recognizes not the legal right, but the moral right of secession, in case of a gross violation of the rights of the seceding section, which must be conceded by all who adopt the principles of the Declaration of Independence. Adams' Jubilee of the Constitution. The writer has been able to find but one case decided before the war in which the legality of secession was discussed. That was State ex. rel. McCready v. Hunt, 2 Hill, S. C. Law, 1, decided in 1834, which is sometimes published separately in a volume entitled The Book of Allegiance. There, the Supreme Court of South Carolina held void, by a majority of two to one, the statute of that State passed in December 1833, in pursuance of the ordinance nullifying the Force Bill, which prescribed to the officers of the militia an oath of allegiance to the State. Judge O'Neall and Judge Johnson held (pp. invasion; and, on application of the Legislature, or of the Executive, when the Legislature cannot be convened, against domestic violence.' The Union is an association of the people of Republics; its preservation is calculated to depend on the preservation of those Republics. The principle of representation, although, certainly, the wisest and best, is not essential to the being of a Republic; but, to continue a member of the Union, it must be preserved; and, therefore, the guarantee must be so construed. It depends on the State itself, to retain or abolish the principle of representation; because it depends on itself, whether it will continue a member of the Union. To deny 209, 215, 223, 226, 248), that allegiance was due to both the United States and the State, that the convention had no power to transfer allegiance, and that the statute prescribing the new oath was invalid, because not recognizing the United States, as prescribed by the Federal Constitution, Article VI., and as differing from the oath prescribed by the State Constitution. Judge Harper (at p. 248) dissented in an opinion, holding the oath constitutional, upon the ground that the United States were a confederacy only; and that allegiance was due to the State alone. His opinion contains a strong argument in favor of the right of secession. Nullification is discussed infra, § 33. It is claimed by the author of The Republic of Republics, Bernard J. Sage (4th ed., at p. 33), that Rawle and Tucker, who, as has been shown above, support the legality of secession, "were text-books at West Point when Davis and Lee were cadets there." The present commanding officer at West Point has, however, informed the writer that this is untrue. this right, would be inconsistent with the principles on which all our political systems are founded; which is, that the people have, in all cases, a right to determine how they will be governed. This right must be considered as an ingredient in the original composition of the General Government, which, though not expressed, was mutually understood; and the doctrine, heretofore presented to the reader, in regard to the indefeasible nature of personal allegiance, is so far qualified, in respect to allegiance to the United States. It was observed that it was competent for a State to make a Compact with its citizens, that the reciprocal obligations of protection and allegiance might cease on certain events; |