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CHAPTER IV.

SECESSION AND COERCION.

T is incontrovertible that the federal system is states united, and that these must always be sovereign, and superior to the governments they create. It is equally plain that the "national unity," the "absolute supremacy " of "the government," and the allegiance of the states thereto, which are asserted by the Massachusetts school, are absurd and pernicious, as well as traitorous falsehoods.

This "federal system" is precisely what Montesquieu and other publicists happily call a "republic of republics." Natural persons by social compact form the society called the state, which is a republic. Such state is a moral or political person, as contradistinguished from a natural one. For mutual protection, and general government, it joins other such political persons in federal compact, thus forming the "republic of republics," or "union of states," as the federal instrument characterizes the system formed by it. "Community of communities," "confederation of republics,' "united states," etc., etc., are other phrases of public writers, signifying the same political system.

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Natural persons, then, form states, while these, as political persons, form the federation called "the United States." The constitution contemplates these political bodies as solely the sources of power, and of elective right. Every voter acts for the state, and gets his special endowment of authority to vote from her alone. She settles the matter, as a sovereign, in her organic law. Hence we see

that the representatives are elected by the states, as are the senators and the president; and that all of these, together with the officers they appoint, are "the government of the . . . states" under "the constitution of the . . . states."

Omitting from the above constitutional phrases the participial adjective, which, with the sense of joined or associated, qualifies or describes states, we easily distinguish between the political entities that form the federal system, and their mere qualities; and see that the only nation we have, or can have, is self-united or associated

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states the system being properly described as a "republic of republics," or a "union of states."

No Constitutional Coercion of States. Our states being equal and voluntarily joined, the constitution being the expression of their will, and the federal government being their agency, in the very nature of things no coercive power over them could be derived from the constitution. Moreover, if they were once voluntary parties, they could not have become involuntary ones, without their own action; for they have the sole power of amendment [see Art. V.], and, to cap the climax, the fathers were unanimous in excluding the power of coercion from the federal compact, and, out of abundance of caution, guarding against it by amendment, all of which will be hereafter fully shown. Buchanan, Lincoln, and others argued that the recent exertion of federal force against certain states was not coercion of states, but was military coercion of persons, banded to oppose the federal laws, or, in other words, the putting down of a rebellion; but such views are dignified by calling them weak sophistry. For the said states acted as bodies in making the constitution; they moved as such in seceding; and they warred as such in resisting coercion. And, in each case, they respectively exercised that right of command over the citizens which results from the social compact, binding each to obey the collective will; and which is sovereignty itself. On the other hand, the federal functionaries were fighting to enforce an ordinance which the state had originally ordained, but had repealed, and made it treasonable to obey, namely, the ordinance of ratification, which, as to the said state and her citizens, gave to the said constitution, and the resultant government, their only possible validity and warrant.

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The only Basis of Coercion. -To coerce a state is unconstitutional; but it is equally true that the precedent of coercing states is established, and that it is defensible under the law of nations. If this be correct, all will agree that such ultima ratio should be placed at once on its own ground, and its limits defined, so that our constitution may be vindicated and held sacred in the future, and the conscience of the people of the victorious states be relieved of the charge of violating the "supreme law of the land," in coercing the states that ordained it, and killing their people for defending them; for nothing can more demoralize, and finally demonize, the people, individually and collectively, than the consciousness of having committed such crimes, the determined enjoyment of the fruits thereof, and the constant making of false excuses to their consciences and to the world.

Where the constitution does not provide a treaty stipulation or

conventional rule, by which to settle a question arising among or between our states, the law of nations is to be resorted to, for the constitution only displaces such law pro tanto. This law would, if the federal compact were annulled, at once govern all questions among our states, just as it now does those arising among the states of Europe. The truth is, the purpose of the federal compact was the settlement of such international questions as it provides for and closes, such questions having been, as long as they were open and debatable, international ones. And it may be well to observe here, that the word "states," used in the constitution to designate the contracting powers that ratify and make it, is used in juxtaposition with, and has the identical meaning of, the word "states," that signifies the powers of Europe [see Art. III., § 2; Art. XI., amendments]; and it is absurd to suppose that Massachusetts, New York, or Virginia, in making a constitution of government, deprived herself of statehood or nationality, when she merely declared her will, which remained in her, and parted with no portion of her own being; and when her name, description and essentials, were, after associating, entirely unchanged. Neither the constitution nor history warrants the restricted meaning vulgarly given in our country to the word "states." Accurately speaking, it was nations or states that federated, and thereby formed our "community of communities," or "republic of republics."

In seceding, the Southern commonwealths exercised an indisputable right, though they acted with impolicy, and erred in ignoring the operation of international law. In higher politics - those of nations in their dealings with one another-acts become precedents, and make rules of law. So, in the case before us, the successful coercion of states made a precedent, and established a law. As secession affected the interest of the adhering states, questions arose for them to consider; and, treating the matter as one in foro conscientiæ, they could cogently reason that the case of a seceding state, to make her secession justifiable under the jus gentium, should contain the same ingredient that makes a homicide one of self-defence the previous "retreat to the wall."

The Southern commonwealths were really fighting for constitutional liberty, which, under the circumstances, they thought seriously imperilled, and likely to be preserved by secession. Earl Russell's assertion was true, that "the South fought for independence, the North for empire." The wish of the former for constitutional liberty and independence was manifested by their adopting the federal constitution, with scarcely a change. Secession was justifiable if there was no other mode of self-preservation, or remedy for wrongs; for self

preservation was the first law of nature to states as well as persons. But they had not properly come to this last resort, as we shall see, by noting the unpleaded pleas of the states that remained united pleas under the jus gentium.

1st. These had the right to assume that Providence intended, as our fathers did, that all the territory between British America and Mexico should be under one political system, and they had a right (not under the constitution, which the state voluntarily made, and could voluntarily abandon, but) under the jus gentium to prevent or to cure disruption.

2d. They had the right to object to the establishment of a contiguous foreign state or federation, with its necessary rivalry, and antagonistic interests and policy, and the inevitable and ever-recurring international troubles.

3d. They could complain that, in spite of constitutional engagements, as well as in disregard of the respect due to the fathers, secession should be resorted to before exhausting all the remedies contemplated and provided for in the constitution, or arising out of the circumstances; especially as Congress, the Supreme Court, and a numerical majority of about 1,000,000 popular votes, were on the side of conservatism against a weak president, and could make the remedies efficient. This alone was justification enough under the jus gentium for the adhering states to coerce back the seceding ones.

And other pleas might have been made - as to the territory occupied by the new states, as to forts, armaments, public property, etc., as well as the federal debt. In all these cases, precision of pleading and absolute sufficiency, were unnecessary, for states are to judge for themselves, in the last resort, as to subjects of complaint and cases of war; and our states in their federal constitution, provided no mode of settlement or tribunal for such matters, so that the law of nations was the only resort for rules of action.

And here it is well to observe that while the seceding states acted with impolicy, and were wrong in the respects and to the degree mentioned, the coercing ones were gravely to blame for the original causes of the trouble for constant and manifold aggressions and acts of injustice; and, finally, for their non-conciliatory and uncompromising spirit, and their disinclination to resort to diplomatic expedients under the law of nations to avoid so awful a recourse as war, which, if it can be avoided with honor and integrity, is a most heinous crime. And, moreover, a party demanding justice before any tribunal, must himself have sought to do justice.

Our System as thus Modified. The precedent, then, may be

considered as established (not in the constitutional, but) in the international part of our law and politics, that all other means of getting justice, and preserving self-government and statehood, must be exhausted before secession is allowable. But it is as republics that states are to be held in, or coerced back to, the union; for the great end always in view is the preservation of constitutional liberty, as established in the states, under the guidance of the fathers; and this necessitates absolute self-government of the people as organized.

These, then, may be considered as the cardinal principles of our system, as it stands at present: 1. We have states self-associated for their self-protection and self-government. 2. Their status is that of

sovereign political bodies, known to the law of nations, and described in the constitution as states. 3. Being republics or self-governing peoples, they must, according to the law of their nature, govern themselves, not in any qualified sense, but absolutely. 4. Their governments, state and federal, are agencies, and subordinate to them. 5. The federal agency has the joint authority of the states to govern their citizens within certain limits, and wield the coercive means entrusted to it; but there is but one rule of duty for it, i. e. the constitution, which each member of the agency is sworn strictly to observe, and which cannot be disregarded without perjured usurpation. 6. The states must remain in the union, till the last remedy the constitution affords against injustice, and loss of self-government and statehood, has been resorted to. 7. When constitutional means are exhausted, or show themselves to be vain, any means of self-preservation is justifiable to a state, for it is according to the first law of nature. 8. If secession be the remedy a state finally determines on, it affords the occasion for diplomacy or war, as among other nations.

Two Important Ideas. 1. Suppose given states, then, to have gone through the forms of secession: the adhering ones, without denying either the fact or the right of secession, may, for the sake of the argument (i. e. the ultima ratio), concede that the former are out of the union, proceed to fight them as foreign states, amenable to the jus gentium, and enforce their return-controlling and using therefor, the federal agency and its forces; while, on the other hand, the coerced states cannot invoke, as against such coercion, the constitution they have abandoned.

2. Upon such basis, the coercion of states is not inconsistent with the federal compact. But the states victorious in the recent war, claimed that the acts of secession were null; and that they resorted to constitutional coercion. By these pleas they simply convicted themselves of warring upon states in the union, of violating the constitution, and of causing flagrant usurpation and perjury on the part

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