Mandeville, LA – The Question on a lot of people’s minds is actually one that our revisionist history pretends to answer with impunity: Is secession legal? This book, written 7 years before the first ramblings of “indivisibility” would be heard from Jackson, along with the works of Taylor & St George’s Tucker, the Of Presidencies of Jefferson and Madison answer unequivocally “yes!” As Rawle puts it herein…
“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 principle on which all our political systems are founded”
OF THE PERMANENCE OF THE UNION.
Quassata respublica multa perderet et ornamenta dignitatis et præsidia stabilitatis suæ. Oratio pro Marcello.
HAVING thus endeavoured 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 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 people of each pledge themselves to preserve that form of government in all. Thus each becomes responsible to the rest, that no other form of government shall prevail in it, and all are bound to preserve it in every one.
But the mere compact, without the power to enforce it, would be of little value. Now this power can be no where so properly lodged, as in the Union itself. Hence, the term guarantee, indicates that the United States are authorized to oppose, and if possible, prevent every state in the Union from relinquishing the republican form of government, and as auxiliary means, they are expressly authorized and required to employ their force on the application of the constituted authorities of each state, “to repress domestic violence.” If a faction should attempt to subvert the government of a state for the purpose of destroying its republican form, the paternal power of the Union could thus be called forth to subdue it.
Yet it is not to be understood, that its interposition would be justifiable, if the people of a state should determine to retire from the Union, whether they adopted another or retained the same form of government, or if they should, with the, express intention of seceding, expunge the representative system from their code, and thereby incapacitate themselves from concurring according to the mode now prescribed, in the choice of certain public officers of the United States.
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 this right would be inconsistent with the principle 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; and it was further observed, that allegiance would necessarily cease on the dissolution of the society to which it was due.
The states, then, may wholly withdraw from the Union, but while they continue, they must retain the character of representative republics. Governments of dissimilar forms and principles cannot long maintain a binding coalition. “Greece,” says Montesquieu, “was undone as soon as the king of Macedon obtained a seat in the amphyctionic council.” 1 It is probable, however, that the disproportionate force as well as the monarchical form of the new confederate had its share of influence in the event. But whether the historical fact supports the theory or not, the principle in respect to ourselves is unquestionable.
We have associated as republics. Possessing the power to form monarchies, republics were preferred and instituted. The history of the ancient, and the state of the present world, are before us. Of modern republics, Venice, Florence, the United Provinces, Genoa, all but Switzerland have disappeared. They have sunk beneath the power of monarchy, impatient at beholding the existence, of any other form than its own. An injured province of Turkey, recalling to its mind the illustrious deeds of its ancestors, has ventured to resist its oppressors, and with a revival of the name of Greece, a hope is entertained of the permanent institution of another republic. But monarchy stands by with a jealous aspect, and fearful lest its own power should be endangered by the revival of the maxim, that sovereignty can ever reside in the people, affects a cold neutrality, with the probable anticipation that it will induce to barbarian success. Yet that gallant country, it is trusted, will persevere. An enlightened people, disciplined through necessity, and emboldened even by the gloom of its prospects, may accomplish what it would not dare to hope. 2
This abstract principle, this aversion to the extension of [r]epublican freedom, is now invigorated and enforced by an alliance avowedly for the purpose of overpowering all efforts to relieve mankind from their shackles. It is essentially and professedly the exaltation of monarchies over republics, and even over every alteration in the forms of monarchy, tending to acknowledge or secure the rights of the people. The existence of such a combination warrants and requires that in some part of the civilized world, the republican system should be able to defend itself. But this would be imperfectly done, by the erection of separate, independent, though contiguous governments. They must be collected into a body, strong in proportion to the firmness of its union; respected and feared in proportion to its strength. The principle on which alone the Union is rendered valuable, and which alone can continue it, is the preservation of the republican form.
Not a word in the Constitution is intended to be inoperative, and one so significant as the present was not lightly inserted. The United States are therefore bound to carry it into effect whenever the occasion arises, and finding as we do, in the same clause, the engagement to protect each state against domestic violence, which can only be by the arms of the Union, we are assisted in a due construction of the means of enforcing the guaranty. If the majority of the people of a state deliberately and peaceably resolve to relinquish the republican form of government, they cease to be members of the Union. If a faction, an inferior number, make such an effort, and endeavour to enforce it by violence, the case provided for will have arisen, and the Union is bound to employ its power to prevent it.
The power and duty of the United States to interfere with the particular concerns of a state are not, however, limited to the violent efforts of a party to alter its constitution. If from any other motives, or under any other pretexts, the internal peace and order of the state are disturbed, and its own powers are insufficient to suppress the commotion, it becomes the duty of its proper government to apply to the Union for protection. This is founded on the sound principle that those in whom the force of the Union is vested, in diminution of the power formerly possessed by the state, are bound to exercise it for the good of the whole, and upon the obvious and direct interest that the whole possesses in the peace and tranquillity of every part. At the same time it is properly provided, in order that such interference may not wantonly or arbitrarily take place; that it shall only be, on the request of the state authorities: otherwise the self-government of the state might be encroached upon at the pleasure of the Union, and a small state might fear or feel the effects of a combination of larger states against it under colour of constitutional authority; but it is manifest, that in every part of this excellent system, there has been the utmost care to avoid encroachments on the internal powers of the different states, whenever the general good did not imperiously require it.
No form of application for this assistance is pointed out, nor has been provided by any act of congress, but the natural course would be to apply to the president, or officer for the time being, exercising his functions. No occasional act of the legislature of the United States seems to be necessary, where the duty of the president is pointed out by the Constitution, and great injury might be sustained, if the power was not promptly exercised.
In the instance of foreign invasion, the duty of immediate and unsolicited protection is obvious, but the generic term invasion, which is used without any qualification, may require a broader construction.
If among the improbable events of future times, we shall see a state forgetful of its obligation to refer its controversies with another state to the judicial power of the Union, endeavour by force to redress its real or imaginary wrongs, and actually invade the other state, we shall perceive a case in which the supreme power of the Union may justly interfere; perhaps we may say is bound to do so.
The invaded state, instead of relying merely on its own strength for defence, and instead of gratifying its revenge by retaliation, may prudently call for and gratefully receive the strong arm of the Union to repel the invasion, and reduce the combatants to the equal level of suitors in the high tribunal provided for them. In this course, the political estimation of neither state could receive any degradation. The decision of the controversy would only be regulated by the purest principles of justice, and the party really injured, would be certain of having the decree in its favour carried into effect. It rests with the Union, and not with the states separately or individually, to increase the number of its members. 3 The admission of another state can only take place on its own application. We have already seen, that in the formation of colonies under the denomination of territories, the habit has been, to assure to them their formation into states when the population should become sufficiently large. On that event, the inhabitants acquire a right to assemble and form a constitution for themselves, and the United States are considered as bound to admit the new state into the Union, provided its form of government be that of a representative republic. This is the only check or control possessed by the United States in this respect.
If a measure so improbable should occur in the colony, as the adoption of a monarchical government, it could not be received into the Union, although it assumed the appellation of a state, but the guaranty of which we have spoken, would not literally apply — the guaranty is intended to secure republican institutions to states, and does not in terms extend to colonies. As soon, however, as a state is formed out of a colony, and admitted into the Union, it becomes the common concern to enforce the continuance of the republican form. There can be no doubt, however, that the new state may decline to apply for admission into the Union but it does not seem equally clear, that if its form of government coincided with the rules already mentioned, its admission could be refused. The inhabitants emigrate from the United States, and foreigners are permitted to settle, under the express or implied compact, that when the proper time arrives, they shall become members of the great national community, without being left to an exposed and unassisted independence, or compelled to throw themselves into the arms of a foreign power. It would seem, however, that the constitution adopted, ought to be submitted to the consideration of congress, but it would not be necessary that this measure should take place at the time of its formation, and it would be sufficient if it were presented and approved at the time of its admission. The practice of congress has not, however, corresponded with these positions, no previous approbation of the constitution has been deemed necessary.
It must also be conceded, that the people of the new state retain the same power to alter their constitution, that is enjoyed by the people of the older states, and provided such alterations are not carried so far as to extinguish the republican principle, their admission is not affected.
The secession of a state from the Union depends on the will of the people of such state. The people alone as we have already seen, bold the power to alter their constitution. The Constitution of the United States is to a certain extent, incorporated into the constitutions or the several states by the act of the people. The state legislatures have only to perform certain organical operations in respect to it. To withdraw from the Union comes not within the general scope of their delegated authority. There must be an express pro- vision to that effect inserted in the state constitutions. This is not at present the case with any of them, and it would perhaps be impolitic to confide it to them. A matter so momentous, ought not to be entrusted to those who would have it in their power to exercise it lightly and precipitately upon sudden dissatisfaction, or causeless jealousy, perhaps against the interests and the wishes of a majority of their constituents.
But in any manner by which a secession is to take place, nothing is more certain than that the act should be deliberate, clear, and unequivocal. The perspicuity and solemnity of the original obligation require correspondent qualities in its dissolution. The powers of the general government cannot be defeated or impaired by an ambiguous or implied secession on the part of the state, although a secession may perhaps be conditional. The people of the state may have some reasons to complain in respect to acts of the general government, they may in such cases invest some of their own officers with the power of negotiation, and may declare an absolute secession in case of their failure. Still, however, the secession must in such case be distinctly and peremptorily declared to take place on that event, and in such case — as in the case of an unconditional secession, — the previous ligament with the Union, would be legitimately and fairly destroyed. But in either case the people is the only moving power.
A suggestion relative to this part of the subject has appeared in print, which the author conceives to require notice.
It has been laid down that if all the states, or a majority of them, refuse to elect senators, the legislative powers of the Union will be suspended. 4
Of the first of these supposed cases there can be no doubt. If one of the necessary branches of legislation is wholly withdrawn, there can be no further legislation, but if a part, although the greater part of either branch should be withdrawn it would not affect the power of those who remained.
In no part of the Constitution is a specific number of states required for a legislative act. Under the articles of confederation the concurrence of nine states was requisite for many purposes. If five states had withdrawn from that Union, it would have been dissolved. In the present Constitution there is no specification of numbers after the first formation. It was foreseen that there would be a natural tendency to increase the number of states with the increase of population then anticipated and now so fully verified. It was also known, though it was not avowed, that a state might withdraw itself The number would therefore be variable.
In no part of the Constitution is there a reference to any proportion of the states, except in the two subjects of amendments, and of the choice of president and vice-president.
In the first case, two-thirds or three-fourths of the several states is the language used, and it signifies those proportions of the several states that shall then form the Union.
In the second, there is a remarkable distinction between the choice of president and vice president, in case of an equality of votes for either.
The house of representatives, voting by states, is to select one of the three persons having the highest number, for president, a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary for the choice.
The senate not voting by states, but by their members individually, as in all other cases, selects the vice president from the two persons having the highest number on the list. A quorum for this purpose shall consist of two-thirds of the whole number of senators, and a majority is sufficient for the choice.
Now, if by the omission of the legislators of more than one third of the states, there were no senators from such states, the question would arise whether the quorum is predicated of the states represented, or of all the states, whether represented or not.
The former opinion is most consistent with the general rule, that we should always prefer a construction that will support, to one that has a tendency to destroy an instrument or a system. Other causes than design on the part of a state legislature, may be imagined to occasion some states to be unrepresented in the senate at the moment.
It seems to be the safest, and is possibly the soundest construction, to consider the quorum as intended to be composed of two-thirds of the then existing senators.
But we may pursue the subject somewhat further.
To withdraw from the Union is a solemn, serious act. Whenever it may appear expedient to the people of a state, it must be manifested in a direct and unequivocal manner. If it is ever done indirectly, the people must refuse to elect representatives, as well as to suffer their legislature to re-appoint senators. The senator whose time had not yet expired, must be forbidden to continue in the exercise of his functions.
But without plain, decisive measures of this nature, proceeding from the only legitimate source, the people, the United States cannot consider their legislative powers over such states suspended, nor their executive or judicial powers any way impaired, and they would not be obliged to desist from the collection of revenue within such state.
As to the remaining states among themselves, there is no opening for a doubt.
Secessions may reduce the number to the smallest integer admitting combination. They would remain united under the same principles and regulations among themselves that now apply to the whole. For a state cannot be compelled by other states to withdraw from the Union, and therefore, if two or more determine to remain united, although all the others desert them, nothing can be discovered in the Constitution to prevent it.
The consequences of an absolute secession cannot be mistaken, and they would be serious and afflicting.
The seceding state, whatever might be its relative magnitude, would speedily and distinctly feel the loss of the aid and countenance of the Union. The Union losing a proportion of the national revenue, would be entitled to demand from it a proportion of the national debt. It would be entitled to treat the inhabitants and the commerce of the separated state, as appertaining to a foreign country. In public treaties already made, whether commercial or political, it could claim no participation, while foreign powers would unwillingly calculate, and slowly transfer to it, any portion of the respect and confidence borne towards the United States.
Evils more alarming may readily be perceived. The destruction of the common hand would be unavoidably attended with more serious consequences than the mere disunion of the parts.
Separation would produce jealousies and discord, which in time would ripen into mutual hostilities, and while our country would be weakened by internal war, foreign enemies would be encouraged to invade with the flattering prospect of subduing in detail, those whom, collectively, they would dread to encounter.
Such in ancient times was the fate of Greece, broken into numerous independent republics. Rome, which pursued a contrary policy, and absorbed all her territorial acquisitions in one great body, attained irresistible power.
But it may be objected, that Rome also has fallen. It is true; and such is the history of man. Natural life and political existence alike give way at the appointed measure of time, and the birth, decay, and extinction of empires only serve to prove the tenuity and illusion of the deepest schemes of the statesman, and the most elaborate theories of the philosopher. Yet it is always our duty to inquire into, and establish those plans and forms of civil association most conducive to present happiness and long duration: the rest we must leave to Divine Providence, which hitherto has so graciously smiled on the United States of America.
We may contemplate a dissolution of the Union in another light, more disinterested but not less dignified, and consider whether we are not only bound to ourselves but to the world in general, anxiously and faithfully to preserve it.
The first example which has been exhibited of a perfect self-government, successful beyond the warmest hopes of its, authors, ought never to be withdrawn while the means of preserving it remain.
If in other countries, and particularly in Europe, a systematic subversion of the political rights of man shall gradually overpower all rational freedom, and endanger all political happiness, the failure of our example should not be held up as a discouragement to the legitimate opposition of the sufferers; if, on the other hand, an emancipated people should seek a model on which to frame their own structure; our Constitution, as permanent in its duration as it is sound and splendid in its principles, should remain to be their guide.
In every aspect therefore which this great subject presents, we feel the deepest impression of a sacred obligation to preserve the union of our country; we feel our glory, our safety, and our happiness, involved in it; we unite the interests of those who coldly calculate advantages with those who glow with what is little short of filial affection; and we must resist the attempt of its own citizens to destroy it, with the same feelings that we should avert the dagger of the parricide.
This work cannot perhaps be better concluded than with a quotation from the valedictory address of one whose character stamps inestimable value on all that lie has uttered, and whose exhortations on this subject, springing from the purest patriotism and the soundest wisdom, ought never to be forgotten or neglected. 5
In this address Washington expressed himself as follows: —
“The name of American, which belongs to you in your national capacity, must always exalt the just pride of patriotism, more than any appellation derived from local discriminations. With slight shades of difference, you have the same religion, manners, habits, and political principles — you have in a common cause fought and triumphed together; the independence and liberty you possess, are the work of joint counsels, and joint efforts, of common dangers, sufferings, and successes.
“But these considerations, however powerfully they address themselves to your sensibility, are greatly outweighed by those which apply more immediately to your interest. Here every portion of our country finds the most commanding motives for carefully guarding and preserving the union of the whole.
“The North in an unrestrained intercourse with the South, protected by the equal laws of a common government, finds in the productions of the latter, great additional resources of maritime and commercial enterprise, and precious materials of manufacturing industry.
“The South, in the same intercourse, benefiting by the same agency of the North, sees its agriculture grow and its commerce expand. Turning partly into its own channels the seamen of the North, it finds its particular navigation invigorated, and while it contributes in different ways to nourish and increase the general mass of the national navigation, it looks forward to the protection of a maritime strength, to which itself is unequally adapted. The East in a like intercourse with the West, already finds, and in the progressive improvement of interior communications by land and water, will more and more find, a valuable vent for the commodities which it brings from abroad or manufactures at home. The West derives from the East supplies requisite to its growth and comfort, and what is perhaps of still greater consequence, it must of necessity owe the secure enjoyment of indispensable outlets for its own productions, to the weight, influence, and the future maritime strength of the Atlantic side of the Union, directed by an indissoluble community of interest as one nation. Any other tenure by which the West can hold this essential advantage, whether derived from its own separate strength, or from an apostate and unnatural connexion with any foreign power, must be intrinsically precarious.
“While, then, every part of our country thus feels an immediate and particular interest in union, all the parts combined cannot fail to find in the united mass of means and efforts, greater strength, greater resource, proportionably greater security from external danger, a less frequent interruption of their peace by foreign nations, and what is of inestimable value, they must derive from union an exemption from those broils and wars between themselves which so frequently afflict neighbouring countries, not tied together by the same government, which their own rivalships alone would be sufficient to produce, but which opposite foreign alliances, attachments, and intrigues, would stimulate and embitter. Hence, likewise, they will avoid the necessity of those overgrown military establishments, which, under any form of government are inauspicious to liberty, and which are to be regarded as particularly hostile to republican liberty. In this sense, it is that your union ought to be considered as a main prop of your liberty, and that the love of the one ought to endear to you the preservation of the other.
“These considerations speak a persuasive language to every reflecting and virtuous mind, and exhibit the continuance of the Union as a primary object of patriotic desire. Is there a doubt whether a common government can embrace so large a sphere? Let experience solve it. To listen to mere speculation in such a case were criminal. We are authorised to hope that a proper organization of the whole, with the auxiliary agency of governments for the respective subdivisions, will afford a happy issue to the experiment. With such powerful and obvious motives to union, affecting all parts of our country, while experience shall not have demonstrated its impracticability, there will always be reason to distrust the patriotism of those who in any quarter may endeavour to weaken its hands.”
2. Since this passage was written, the affairs of Greece have assumed somewhat of a different aspect. The Turkish fleet has been accidentally destroyed by the combined powers, and the French have landed a body of men, with an apparent intention to promote the independence of this afflicted country.
3. There is, however, a restriction on this point, which must be noticed. No state can be formed or erected within the jurisdiction of any other state, nor can any state be formed by the junction of two or more states or parts of states, without the consent of the legislatures of the states concerned as well as of congress.
4. It is with great deference that the author ventures to dissent from this part of the opinion of the learned chief justice of the Supreme Court in the, case of Cohen v. Virginia, 6 Wheaton, 390. it was not the point in controversy, and seems to have been introduced in that flow of luminous discussion for which he is so remarkable, by way of answer to part of the arguments of counsel. Every thing that falls from such a quarter excites to reflection, and the opinion having gone forth to the world; it seems a duty on him who professes to take a general view of the Constitution, to notice whatever may in his apprehension amount to the slightest error in principle.
5. Some doubts having been entertained whether this address was not written by another hand, it is due to the memory of this great man to mention, that by the researches of The Pennsylvania Historical society, it has been fully ascertained that it was the entire work of the president.