The Right of Secession Defended by Northern Writers
by George L. Christian
A distinguished English writer says:
I believe the right of secession is so clear, that if the South had wished to do so, for no better reasons than it could not bear to be beaten in an election, like a sulky school-boy out of temper at not winning a game, and had submitted the question of its right to withdraw from the Union to the decision of any court of law in Europe, she would have carried her point.
Indeed, the decision of this question might, with propriety, and doubtless would, have rested for all time on the principles enunciated in the Virginia and Kentucky resolutions of 1798 and '99, and the report of Mr. Madison on these resolutions. The Virginia resolutions and report were drawn by Mr. Madison, the "father of the Constitution"; and those of Kentucky by Mr. Jefferson, the author of the Declaration of Independence.
These principles, emanating from these "master-builders," would as we have said, have settled the rights of the States on this question forever, but for the fact, as Mr. Henry Cabot Lodge, of Massachusetts, tells us, that the North was controlled by expediency, and not by principle, in the consideration of them. These resolutions, when adopted by Virginia and Kentucky, were sent to the Northern Legislatures for their concurrence; and the distinguished Senator from Massachusetts, from whom we are quoting says in terms, in his Life of Webster, that when the resolutions were thus submitted, "they were not opposed on constitutional grounds, but only on those of expediency and hostility to the revolution they were considered to embody." That they did not, and could not, cite any constitutional principle as ground for their rejection, only they held that the revolution involved in their application was at that time inexpedient. In other words, it did not pay the New England States to endorse the principles of those resolutions then; but when they thought they were being oppressed by the Federal Government a few years later (as we shall presently see), they were not only ready to endorse these resolutions, but actually threatened to secede from the Union.
But I wish to advance a step further in the argument, and inquire: Where the doctrine of secession originated? and What distinguished Northern statesmen have said of the right, both before and since the war?
Here we may properly add the clear statement of an able Northern writer, who declares his opinion (presently to be quoted in full) that at the time the Constitution was accepted by the States, there was not a man in the country who doubted the right of each and every State peaceably to withdraw from the Union. In fact, we may at once answer our first inquiry by saying that the doctrine of secession originated in neither section, but was recognized at the first as underlying the Constitution and accepted by all parties. In confirmation of this view, but particularly with respect to the region of its earliest, most frequent, most emphatic and most threatening assertion, we proceed to show further, that a recent Northern writer has used this language: "A popular notion is that the State-rights -- secession or disunion doctrine -- was originated by Calhoun, and was a South Carolina heresy. But that popular notion is wrong. According to the best information I have been able to acquire on the subject, the State-rights, or secession doctrine, was originated by Josiah Quincy, and was a Massachusetts heresy."
This writer says Quincy first enunciated the doctrine in opposing the bill for the admission of what was then called the "Orleans Territory" (now Louisiana) in 1811, when he declared that "if the bill passed and that territory was submitted, the act would be subversive of the Union, and the several States would be freed from their federal bonds and obligations; and that, as it will be the right of all (the States), so it will be the duty of some to prepare definitely for a separation, amicably if they can, violently if they must."
Whilst this author may be right in characterizing the development of the doctrine, and fixing this right as a "Massachusetts heresy," he is wrong in fixing upon its first progenitor, and in saying that the date of its birth was as late as 1811; for in 1803, one Colonel Timothy Pickering, a senator from Massachusetts, and Secretary of State in the Cabinet of John Adams, complaining of what he called "the oppression of the aristocratic Democrats of the South," said:
I will not despair; I will rather anticipate a new confederacy.... That this can be accomplished without spilling one drop of blood I have little doubt.... It must begin with Massachusetts. The proposition would be welcomed by Connecticut; and could we doubt of New Hampshire? But New York must be associated; and how is her concurrence to be obtained? She must be made the center of the confederacy. Vermont and New Jersey would follow, of course; and Rhode Island of necessity.
In 1814, the Hartford Convention was called and met in consequence of the opposition of New England to the war then pending with Great Britain. Delegates were sent to this Convention by the Legislatures of Massachusetts, Rhode Island, and Connecticut, and several counties and towns from other Northern States also sent representatives. This Convention, after deliberating with closed doors on the propriety of withdrawing the States represented in it from the Union, published an address, in which it said, among other things, "If the Union be destined to dissolution... it should, if possible, be the work of peaceable times and deliberate consent.... Whenever it shall appear that the causes are radical and permanent, a separation by equitable arrangement will be preferable to an alliance by constraint among nominal friends, but real enemies."
In 1839, ex-President John Quincy Adams, in an address delivered by him in New York, said:
The indissoluble link of union between the people of the several States of this confederated nation is, after all, not in the right, but in the heart. If the day should ever come (may Heaven avert it) when the affections of the people of these States shall be alienated from each other, the bonds of political association will not long hold together parties no longer attached by the magnetism of consolidated interests and kindly sympathies; and far better will it be for the people of the disunited States to part in friendship with each other than to be held together by constraint.
This same man presented to Congress the first petition ever presented in that body for a dissolution of the Union.
Mr. William Rawle, a distinguished lawyer and jurist of Pennsylvania, in his work on the Constitution, says, "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 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."
In the case of the Bank of Augusta against Earle, 13 Peters, 590-592, it was decided by the Supreme Court of the United States the same year in which Mr. John Quincy Adams made his speech above quoted from that "They are sovereign States.... We think it well settled (says the Court) that by the law of comity among nations a corporation created by one sovereign is permitted to make contracts in another, and to sue in its courts, and that the same law of comity prevails among the several sovereignties of this Union."
Shortly after the nomination of General Taylor, a petition was actually presented in the Senate of the United States, "asking Congress to devise means for the dissolution of the Union." And the votes of Messrs. Seward and Hale were recorded in favor of its reception.
In 1844, the Legislature of Massachusetts attempted to coerce the President and Congress by the use of this language: "The project of the annexation of Texas, unless arrested on the threshold, may tend to drive these States (New England) into a dissolution of the Union."
Daniel Webster (the great "expounder of the Constitution," as he is called), notwithstanding his famous reply to Mr. Hayne, delivered in 1830, in which he so ingeniously denied the right of a State to determine for itself when its constitutional powers were infringed, and also that the Constitution was a compact between sovereign States, and contended that the power to determine the constitutionality of the laws of Congress was lodged only in the Federal Government, in a speech delivered at Capon Springs, Virginia, in 1851, used this language:
If the South were to violate any part of the Constitution intentionally and systematically, and persist in so doing from year to 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 is it 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?... A bargain cannot be broken on one side and still bind the other.
He said, in a speech delivered at Buffalo, N.Y., during the same year:
The question, fellow-citizens (and I put it to you as the real question) -- the question is, Whether you and the rest of the people of the great State of New York and of all the States, will so adhere to the Union -- will so enact and maintain laws to preserve that instrument -- that you will not only remain in the Union yourselves, but permit your Southern brethren to remain in it and help to perpetuate it.
How different is the language above quoted from Mr. Webster in his Capon Springs speech from the proposition as stated by Mr. Lincoln in his first inaugural, when he says, "One party to a contract may violate it -- break it, so to speak -- but does it not require all to lawfully rescind it?" But, what more could be expected of Mr. Lincoln, when it is well known that he held that the relation of the States to the Union was the same as that which the counties bear to the States of which they respectively form a part?
Those who deny the right of secession are fond of quoting as their authority extracts from Mr. Webster's reply to Mr. Hayne, made in 1830. It is worthy of note that the Capon Springs and Buffalo speeches were made in 1851; and these last are the product of his riper thinking -- his profounder reflections. He had evidently learned much about the Constitution in the twenty-one years that had intervened, and in his maturer years, was indeed speaking as a statesman, and not only as an advocate, as he did in 1830.
But it is all-important to remember that Mr. Webster nowhere in this whole speech refers to the right of secession. His whole argument in this connection, is against the right of nullification, another and very different thing; but one which, as we will presently show, was actually being exercised by fourteen out of the sixteen Free States in 1861.
In 1855, Senator Benjamin F. Wade, of Ohio (afterwards, as we know, one of the most notorious South-haters), said in a speech delivered in the United States Senate, "Who is the judge in the last resort of the violation of the Constitution of the United States by the enactment of a law? Who is the final arbiter, the General Government or the States in their sovereignty? Why, sir, to yield that point is to yield up all the rights of the States to protect their own citizens, and to consolidate this government into a miserable despotism." And he further said on the 18th of December, 1860, "I do not so much blame the people of the South, because I think they have been led to believe that we to-day, the dominant party, who are about to take the reins of government, are their mortal foes, and stand ready to trample their institutions under foot." And notwithstanding the expression of these sentiments, we know, as we say, that this man became one of the most ardent supporters of the "miserable despotism" established by Abraham Lincoln, and became the second officer in that "despotism" on the assassination of Mr. Lincoln.
On the 9th of November, 1860, Mr. Horace Greeley, the great apostle of the Republican party, and who was often referred to during Mr. Lincoln's administration as the "power behind the throne -- greater than the throne itself" -- said in his paper, the New York Tribune:
If the Cotton States consider the value of the Union debatable, we maintain their perfect right to discuss it; nay, we hold with Jefferson, to the inalienable right of communities to alter or abolish forms of government that have become oppressive or injurious: and if the Cotton States decide that they can do better out of the Union than in it, we insist on letting them go in peace. The right to secede may be a revolutionary one, but it exists nevertheless; and we do not see how one party can have a right to do what another party has a right to prevent.
On the 17th of December, 1860, just three days before the secession of South Carolina, he again said in the Tribune, "If it [the Declaration of Independence] justified the secession from the British Empire of three millions of colonists in 1776, we do not see why it would not justify the secession of five millions of Southrons from the Federal Union in 1861. If we are mistaken on this point, why does not some one attempt to show wherein and why?" Again, on February the 23rd, five days after the inauguration of President Davis at Montgomery, he said:
We have repeatedly said, and we once more insist, that the great principle embodied by Jefferson in the Declaration of American Independence -- that governments derive their just powers from the consent of the governed -- is sound and just, and if the Slave States, the Cotton States, or the Gulf States only, choose to form an independent nation, they have a clear moral right to do so.
And we know that this man was one of the foremost of our oppressors during the war, although his kindness to Mr. Davis and others after the war, we think, showed that he knew he had done wrong. And yet, he had the audacity (and may we not justly add mendacity, too?) to say, after the war, that he never at any moment of his life had "imagined that a single State, or a dozen States, could rightfully dissolve the Union." Comment is surely unnecessary.
On November the 9th, 1860, the New York Herald said, "Each State is organized as a complete government, holding the purse and wielding the sword; possessing the right to break the tie of the confederation as a nation might break a treaty, and to repel coercion as a nation might repel invasion.... Coercion, if it were possible, is out of the question." Both President Buchanan and his Attorney-General, the afterwards famous Edwin M. Stanton, decided about the same time that there was no power under the Constitution to coerce a seceding State.
But this "Massachusetts heresy," as the writer before quoted from calls the right of secession, was not only entertained, as we have shown, at the North before the war, but has been expressed in the same section in no uncertain terms long since the war. In an article by Benjamin J. Williams, Esq., a distinguished writer of Massachusetts, entitled "Died for Their State," and published in the Lowell Sun of June 5th, 1886, he says, among other things:
When the original thirteen Colonies threw off their allegiance to Great Britain, they became independent States, independent of her and of each other....
The recognition was of the States separately, each by name, in the treaty of peace which terminated the war of the Revolution. And that this separate recognition was deliberate and intentional, with the distinct object of recognizing the States as separate sovereignties, and not as one nation, will sufficiently appear by reference to the sixth volume of Bancroft's History of the United States. The Articles of Confederation between the States declared, that "each State retains its sovereignty, freedom and independence." And the Constitution of the United States, which immediately followed, was first adopted by the States in convention, each State acting for itself, in its sovereign and independent capacity, through a convention of its people. And it was by this ratification that the Constitution was established, to use its own words, "between the States so ratifying the same." It is then a compact between the States as sovereigns, and the Union created by it is a federal partnership of States, the Federal Government being their common agent for the transaction of the Federal business within the limits of the delegated powers.
This able writer then illustrates the compact between the States by the principles of law governing ordinary co-partnerships, just as Mr. Webster did. And he then says:
Now, if a partnership between persons is purely voluntary, and subject to the will of its members severally, how much more so is one between sovereign States? and it follows that, just as each, separately, in the exercise of its sovereign will, entered the Union, so may it separately, in the exercise of that will, withdraw therefrom. And further, the Constitution being a compact, to which the States are parties, "having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode of measure and redress," as declared by Mr. Jefferson and Mr. Madison in the celebrated resolutions of '98, and the right of secession irresistibly follows.
But aside from the doctrine either of partnership or compact, upon the ground of State sovereignty pure and simple, does the right of secession impregnably rest.
We have quoted thus fully from this writer not only because he is a Northern man, but because he has stated both the facts and the principles underlying the formation of the Union, and the rights of the States therein, with an accuracy, clearness and force, that cannot be surpassed.
But again: In his Life of Webster, published in 1899, Mr. Henry Cabot Lodge, from whom we have before quoted, and who is at this time one of the distinguished senators from Massachusetts, uses this language in speaking of Mr. Webster's reply to Mr. Hayne. He says:
The weak places in his [Webster's] armor were historical in their nature. It was probably necessary (at all events Mr. Webster felt it to be so) to argue that the Constitution at the outset was not a compact between the States, but a national instrument, and to distinguish the cases of Virginia and Kentucky in 1799, and of New England in 1814, from that of South Carolina in 1830. The former point he touched upon lightly; the latter he discussed ably, eloquently and at length. Unfortunately the facts were against him in both instances.
And in this connection, Mr. Lodge then uses this language:
When the Constitution was adopted by the votes of the States at Philadelphia, and accepted by the votes of the States in popular convention, it is safe to say that there was not a man in the country, from Washington and Hamilton on the one side to George Clinton and George Mason on the other, who regarded the new system as anything but an experiment entered into by the States, and from which each and every State had the right to peaceably withdraw -- a right which was very likely to be exercised.
Mr. James C. Carter, now of New York, but a native of New England, and perhaps the most distinguished lawyer in this country to-day, in a speech delivered by him at the University of Virginia, in 1898, said:
I may hazard the opinion that if the question had been made not in 1860, but in 1788, immediately after the adoption of the Constitution, whether the Union as formed by that instrument could lawfully treat the secession of a State as rebellion, and suppress it by force, few of those who participated in forming that instrument would have answered in the affirmative.
This article was extracted from Hunter McGuire and George L. Christian, Confederate Cause and Conduct in the War Between the States (Richmond, Virginia: L.H. Jenkins, Inc., 1907). Click HERE to purchase this title.