THE SECESSION OF 1861 FOUNDED UPON LEGAL RIGHT From The Original Gray Book, Sons Of Confederate Veterans, By E. W. R. Ewing, A. M., LL., B., LL., D., Historian-in-Chief. Author of Legal and Historical Status of the Dred Scott Decision Secesion rested upon fundamental law. The secession from the United States be several States of the South in 1861, which led to the war between the Confederacy and the Federal Government aided by the remaining States, was within constitutional right found in that greatest governmental instrument, the Constitution of the United States. That secession was the extreme means, in the sense that the right of revolution as such a means is sometimes justified, for the purpose of preserving the sacredness and blessings of written constitutional government, and for these purposes only. Now brush the cobwebs and preconceived notions from the mental vision and let us measure by the sternest logic and the strictest of universally recognized rules these sweeping premises, standards of conduct for which our fathers fought and for which many gave their lives and for which our mothers made the most supreme sacrifices. First, then exactly do we mean by secession? We are to examine specific conduct, not the mere academic definition of the word secession. The question before us is: What is meant by the secession of certain States in the Southern part of the United States in 1861? For the purpose of finding the legal ground upon which those Southern States acted, it is immaterial whether we regard the acts comprehended by the word secession in this connection as accomplished (sic) or attempted secession, but it is interesting to recall that those in the exercise of the chief functions of the Federal Government and a large part of Northern people generally insisted in 1861 (contrary to prior Northern doctrine and practice) that no Southern State could secede, could not get out of the Union; while four years later, after the South had worn out her swords and had broken her bayonets, and her brave boys were mostly asleep beneath the golden rods of the summer and the withering leaves of somber winter, the same pro-Union people generally and the functionaries of the United States Government were sordid and cruel in holding that the seceding States were out of the Union and as sovereign and independent States had ceased to function as units of the Union! So to avoid confusion of thought upon this point it may be assumed without fear of successful contradiction that the seceding States were at least de facto out of the Union. That a course of conduct does not reach its final goal is no evidence that it was not legally taken. So the secession here under consideration may be broadly and correctly defined as the act or acts of the Southern States, each exercising what we call its sovereign political powers, the purpose of which was to sever allegiance to and connection with the Union. The Union was and yet is the relation between each State and a sovereignty known as the United States (or the Federal Government) which was created by and which exists by the authority of that wonderful, written instrument known as the Constitution of the United States. Hence secession was the act of a State as such by which it at least sought to become and for a time was de facto independent of the United States, out of the Union, just as each colony became by revolution independent of and out of the British Empire back in 1776. Mr. Lincoln who was at the time as President the chief executive of the United States took the position that no State could withdraw and become completely independent. So as the Southern States one by one persisted in the secession course Mr. Lincoln sent Federal troops into the South to reestablish where broken and to maintain Federal authority–not to free the slaves or affect in the least slavery. To resist this invasion by armed force the seceding States raised troops to defend the newly asserted independence, just as the colonies did back in 1776 with regard to Great Britain, the Southern States organizing in the meantime a central government known as the Confederate States of America. Thus the war came on apace. Then since secession was either a withdrawal or an effort to withdraw from the Union, to become completely independent of the government of the United States, our first inquiry must be: What is the relation of each State to the Union? In finding this relation we necessarily define the government of the United States, also called the Federal Government. The first thing we discover, as just intimated, when we come to see exactly what the American Union is, when we really discern the universally acknowledged fundamental of all fundamentals regarding its existence, is that the Constitution is the one source of its power and authority, the sole source of its vitality; and so outside or minus this Constitution there would be no Union, no United States of America. This great, basal truth is one of the settled and established facts concerning our American government. In 1816, when Marshall of Virginia and Story of Massachusetts, two great constitutional lawyers, were members of the bench, the Supreme Court of the United State, the entire bench concurring said: The government, then, of the United States can claim no powers which are not granted to it by the Constitution, and the powers actually granted must be such as are expressly given, or given by necessary implication. (1 Wheaton (U. S. Report), 326.) In 1906 Mr. Justice Brewer, speaking for that same court, said: As heretofore stated the constant declaration of this court from the beginning is that this government (of the United States) is one of enumerated powers. Then as showing the place where that enumeration is found the court in 1906 quoted with entire approval the words from the decision, as written by Story of Massachusetts in 1816, the United States can claim no powers which are not granted to it by the Constitution. This fact, a most basil truth, is found not alone in the decisions of the courts; but it is the great principle by which all departments of the Federal Government are admittedly controlled. It is the practical fact in all the activities of the general government. There is another similarly fundamental truth, practical fact: The United States government does not enjoy spontaneous or original or inherent sovereignty; all of its sovereign powers are delegated. This fact is just as universally and as practically recognized as the other. The of government of the United States is one of delegated, limited, and enumerated powers, is one of the hundreds of statements of this truth repeated by the Supreme Court in case of the United States vs. Harris (106 U. S. (SUPREME Court Reports), 635.). There is a dispute whether the States created the Federal Government, delegated to it powers it has, or whether it is the creature of the whole people of the United States acting as a great sovereign political unit. It appears to me, since the Constitution went from its framers back to the States, back to each separate State for its independent action, too clear for argument that it is the creature of the States, particularly since three-fourths of the States had to approve it before it became operative and three-fourths may now amend it. (Constitution, Art. V. ). And all the more that this must be true when we recall that at the formation of the Federal Government and before the ratification of the Constitution, thirteen dependent became thirteen independent States; that is, in other words, before the ratification of the Constitution each State had a right to govern itself by its own authority and laws, without any control by any other power on earth. (Ware vs Hilton, 3 Dallas, 199; McTivaine vs Coxe, 4 Cranch, 212; Manchester vs Mass., 139 U. S. 257; Johnson vs McIntosh, 8 Wheaton, 395; Shivley vs Bowlby, 152 U. S. 14 (Or 44)) But we need not stop to debate this question here or let it bother us in considering secession. At the time of secession we had a certain kind of government, the same we have now, in fact; and however it was created we know that the universally admitted facts are that the Federal Government gets its vital breath from the Constitution; that all its powers are enumerated in that Constitution and are delegated through it. Regardless of from whom or from what delegated, this fact of the delegation from some other completely sovereign power is an important one in considering secession. Many errors have been made by confusing the powers of the United States as they might be under the general nature of sovereignty with what they really are under the limited and delegated sovereignty it really has. The government of the United States has no inherent common law prerogative and it has no power to interfere in the personal or social relations of citizens by virtue of authority deducible from the general nature of sovereignty, as a recognized law authority correctly states the actual practical and accepted fact. (39 Cyc. 694). Then the United States being a government of limited powers, lacking any power over very many subjects which must be controlled or produce chaotic confusion, it follows that the powers or sovereignty wherein the United States is limited, which were never entrusted to it, must rest somewhere. As summarized by a leading law authority, deduced from universally admitted decisions, here is full government in America: The powers of sovereignty in the United States are divided between the government of the Union and those of the States. They are each sovereign with the respect to the objects committed to it, and neither sovereign with respect to the objects committed to the other. (26 Ruling Case Law, 1417). Here is the same truth in the language of the justices of the supreme court of Massachusetts: It was a bold, wise and successful attempt to place the people under two distinct governments, each sovereign and independent within its own sphere of action, and dividing the jurisdiction between them, not by territorial limits, and not by the relation of superior and subordinate, but by classifying the subjects of government and designating those over which each has entire and independent jurisdiction,. (14 Gray (Mass. Reports), 616.) In 1904 the Supreme Court of the United States stated the same fact in these words: In this republic there id a dual system of government, National and State, and each within its own domain is supreme. (Matter of Heff, 197 U. S. 505). In an opinion written for the court by Mr. Justice Day of Ohio, the same high court in 1917 said; The maintenance of the authority of the States over matters purely local is as essential to the preservation of our institutions as is the conservation of the supremacy of the Federal powers in all matters entrusted to the Nation by the Federal Constitution. In interpreting the Constitution it must never be forgotten that the Nation is made up of States to which are entrusted the powers of local government. And to them and the people the powers not expressly delegated to the National Government are reserved. The power of the States to regulate their purely internal affairs by such laws as seem wise to the local authority is inherent and has never been suredered (sic) to the general government. (Hammer V. Dagenhart, 247 U. S. 275). Then, it is clear and certain, the Union is one of States—States each of which is as absolutely and independently sovereign with reference to the objects or affairs not committed to the government of the United States as is the United States with reference specific, delegated and enumerated objects and affairs within its jurisdiction solely by virtue of the Constitution. And don’t forget the distinction: the sovereignty of the United States is delegated; that of each state is inherent. Hence some light upon the sovereignty of the State may rightly be had from a consideration of the nature of sovereignty in general. These all-important facts were well understood and recognized by the seceding States in 1861. The war of 1861 to 1865 did not change the nature of our government or abate in the least the dignity of the inherent sovereignty of each State. Over and again the Supreme Court of the United States finds it necessary to emphasize this truth. Many persons are under the erroneous impression that in any and all cases of unreconcilable conflict between the United States and a State over any and all subjects the decision and action of the United States becomes the supreme law of the land. Nay, not so, as the above evidence proves to any open mind. And I earnestly desire that particularly our young men and women of the South will bear this governmental fact in mind when considering the secession by Southern States in 1861. And this, too, by all means: Each State has a most vital attribute the United States has not under the law of the Constitution. Without the States or in case of an ignored or otherwise abrogated Constitution, the United States as a government, the Union, ceases to exist. On the other hand, in the words of the Supreme Court in 1868 when there certainly were no pro-secessionists on the bench: The people of each State compose a State, having its own government and endowed with all the functions essential to separate and independent existence. (Lane County V. Oregon, 7 Wallace, 71; Texas v. White, ID. 725; Pollock Vs. Farmers’ &c., 157 U. S. 560; N. B. Co. V. U. S., 193 U. S. 348.) There you are! Don’t stop to quarrel as to who or what created this situation, this peculiar and dual government, this distinctively American government. These definitions and illustrations state that it as it was as soon as the Constitution superseded the Articles of Confederation, as it was at secession, as it is. The results of the was for independence of the Confederacy somewhat dulled the usual conception of the reality, of the dignity, of the real nature of State sovereignty; and my earnest hope is that we shall from now on swing back to the true grasp of what the American States each is, to that universal understanding which the States had when the Constitution was adopted, for, after all, again it must be remembered, that the greatest instrument is construed in the light of the contemporaneous history and existing conditions at its formation and adoption. That which it meant when adopted, it means now, said the Supreme Court in Scott V. Sanford, 19 Howard, 426, a rule followed universally. (See, among many, Missouri v. Illinois, 180 U. S. 219; In re Debts, 158 U. S. 591; S. C. V. U. S., 199 U. S. 450.) Now, aside from its practical bearing upon the problems which arise today and those which will press for solution tomorrow, here is the bearing of all this upon the historical interpretation of secession: If the delegated powers of the Federal Government are perverted by those exercising them, or misused or non-used, or powers not granted are assumed, persistently, endangering the domestic peace of a State, and this condition is backed and encouraged by a great bulk of opinion in other States and aided and abetted by laws of those other States, what is to be done by the suffering State? What would have been the answer to this question by any State, north or South at the formation of the United States? Meet the issue squarely. Grant that such a condition has arisen, were are we? Such a condition existing, there remain the sovereign powers of the State, the admittedly undelegated and inherent sovereignty, having all the machinery of local government adequate when not thus obstructed for the protection of the domestic peace, for the defense of the property and lives of its citizens, endowed with all the functions essential to separate and independent existence, and thus equipped, thus endowed, mind you, under and pursuant to the Constitution, according to the fundamental law. Fundamental law because constitutionally recognized and guaranteed, notwithstanding the inherent powers of each State are not derived from the Constitution. In the light of the contemporaneous history and existing conditions, to this question what would have been the answer of the people of any State when they insisted at ratification upon and obtained the Tenth Amendment: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. The answer must be that each State would have said that thus guarded the constitution left to it, in the event of the conditions which I have assumed, the right to defend the admitted inherent sovereignty by any means adequate for that purpose. The Constitution is a written instrument. As such its meaning does not alter. That which it meant when adopted it means now. The Constitution is to be interpreted by what was the condition of the parties to it when it was formed, by their objects and purposes in forming it, and by the actual recognition in it of the dissimilar institutions of the States. There is another fundamental rule followed in the interpretation of the Constitution, and that is that light is found in declarations by the States when ratifying that instrument, in imparting to the United States the breath of life which it would never have had but for the action of three-fourths of the States concerned. So we go to the debates of the ratifying conventions and to the views of those who adopted the Constitution and get all the light possible from contemporaneous history and existing conditions. (For leading authorities see 4 Ency. U. S. Court Reports, pages 36 and 41.) One great mistake too many make in examining the legal justification of secession is to see it too exclusively in the light of today an under the brighter conditions subsequent to that war. Such an error is fatal to a just estimate of secession. The question is: Did the States think they were getting into an entangling alliance from which, come whatever woe might befall, they could not withdraw? Do the light from ratifying conventions, the views of those who ratified the Constitution, and the weight of contemporary history indicate that the State meant forever to surrender for whatever domestic evil might result some of their most important attributes of sovereignty? I don’t see how any open minded and sincere mind can in the light of the great bulk of the evidence upon these questions relating to the formation and vitalization of the United States believe that under any interpretation of the Constitution that instrument was meant to take from the States or from a State forever the invaluable right of resuming the delegated sovereignty when in the wisdom of the people of a State such a resumption (that is, secession) appeared necessary for domestic peace and to protect and make effective the undelegated sovereignty. Mr. Justice Catron, of the Supreme Court of the United States, quoting from the famous Federalist in favor of State power, said: These remarks were made to quiet the fears of the people, and to clear up doubts on the meaning of the Constitution then before them for adoption by the State conventions. (License Cases, 5 Howard, 607.) The great bulk of the people of the several then totally independent States were afraid of the centralized power about to be loaned to the United States Government; and the right to resume the delegated powers should the experiment become unhappy was the great reason which brought the States to embark upon the venture. They were sure they had fixed the fundamental documents so that they might legally, constitutionally and morally rightly get out if any State so desired. Some of the ratifying conventions, sought to make doubly sure, Virginia, for instance, interpreting the Constitution as part of her ratification, said: The powers granted under the Constitution * * * may be resumed by the people whensoever the same shall be perverted to their injury or oppression. New York followed by Rhode Island, as part of the res gestae, with reference to the powers delegated to the Federal said that the powers of government may be resumed by the people whenever it shall become necessary to their happiness. Applying with such evidence a proper reasoning deducible from the general nature of sovereignty, it follows that the existence of a sovereignty endowed with all the functions essential to separate and independent existence must have the attribute of self-defense. The right of self-defense implies the right to choose the method. That is not sovereignty which has not the right of self-preservation. Sovereignty without the right of self-determined existence is unthinkable. Sovereignty must be dignified by all that the word implies. As men whose intentions require no concealment generally employ the words which most directly and aptly express the ideas they intend to convey, the enlightened patriots who framed our Constitution, and the people who adopted it, must be understood to have intended what they have said, correctly said Chief Justice Marshall in Gibbons v. Ogden (9 Wheaton, 188. See also Kidd v. Pearson, 128 U. S. 20; McPherson v. Blacker, 146 U. S. 36; Hodges v. U. S. 16.) There can be no such thing as limited sovereignty. There is division of sovereign powers; and that is the condition under and by virtue of the Constitution in this country. But sovereignty is a self-explanatory word and meant at secession exactly what it meant at the adoption of the Constitution. Shortly before leaving the bench in 1915 Mr. Justice Hughes of New York prepared the opinion in Kennedy v. Becker (241 U. S. 563). As thus prepared this opinion was subsequently adopted and delivered by Chief Justice White as the unanimous opinion of the Supreme Court. Concerning the power of the State of New York to control lands which were the subject of a treaty between Robert Morris and the Seneca Nation of Indians in 1797, the court says: But the existence of the sovereignty of the State was understood, and this conception involved all that was necessarily implied in that sovereignty, whether fully appreciated or not. Upon that impregnable position stood each seceding State in 1861. In the South we are coming too much to whisper that our fathers did their duty as they saw it. we should be calling to the world from the housetop that our Confederate fathers were RIGHT. For historical truth we should speak in no uncertain terms in the schools, should sound the facts in trumpet-blasts wherever the subject is under consideration; we should let the world know that those fathers are entitled to as much glory for their defense of their wives, their children. The domestic peace of their State by wielding the inherent sovereignty to recall the delegated and misused sovereignty, as in the defense of that delegated sovereignty against a European foe, a defense which the South rendered gladly in our war with Spain* and which she rendered so brilliantly in our war with Germany that the right of local self-government might not perish from the earth! To ensure domestic tranquility—one of the reasons assigned in the preamble as the grounds for the establishment of the Constitution of the United States—to better safeguard the lives of the women and children of the South: to avert a destruction of some of the State’s most important inherent powers, —in short, to escape imminent disaster the most vital and basal human rights, the seceding States faced one or two courses of action, short of the most servile submission to the greatest wrongs: they must either withdraw from the Union; or, remaining in the Union resort to armed force against northern States and the Federal Government. But the situation at that day can best be appreciated when we consider the constitutional facts here briefly outlined in the immediate light of what constituted the imminent disaster, the ominous peril which shrouded the South in increasing gloom. There is not space here, unfortunately, to discuss those power causes of that secession.** those causes are too inadequately presented in text-books and too little taught even in the South. The production of this work, however, by the Sons of Confederate Veterans is one among other happy signs of a revival in the interest of historical truth. The truth and the whole truth, is the battle cry of the great organization of which I have the honor to be Historian-in-Chief,—a cry uttered from the soul of sincerity and without the least thought or purpose of animosity or bitterness. In the interest of history, for we do teach the children something about the great war which followed secession, and to be just to our Confederate fathers we must have a fuller grasp of the fundamental legal grounds of secession and of the weighty causes which moved the South—not that she believed in secession at will but solely and as an extreme measure—to resume certainly de facto the sovereignty delegated to the United States. When the causes of secession are considered in the light of constitutional fundamentals herein outlined, we more readily avoid the illogical contention sometimes met which insists that the results of the war settled the question against the secessionists. Well, well !! It is axiomatic that war settles no great question! Didn’t the better thinking part of the world gladly agree to reverse the decision of a great question Germany thought she had settled forever by a decisive war? And didn’t that reversal of the work of gory, cruel brute force restore to wronged and outraged France suffering Alsace-Loraine? Ah, and more: America justly poured out her blood and lavished her gold in that great world war just closing to help establish for the benefit of all peoples upon which rest our separation from Great Britain and the de facto secession of the Southern States: the inalienable (the Constitution calls it unalienable) right of a people to break away from an objectionable and hurtful government!! There will never be another Southern secession. Nobody thinks of it as a remedy for anything now: and no part of this Union will ever dare repeat the northern nullification of the Constitution to avoid the evils of which—and not to destroy the Union and not to protect or to perpetuate negro slavery—secession became the remedy to preserve the sacred binding power of a written Constitution without which the Union perishes certainly; and again because the Federal Government will never again be as limp and spineless and complacent in defending the South against such evils as nullification and other wrongs by northern States and some northern people, to escape all of which our fathers found secession the one probably bloodless remedy, justified by fundamental constitutional law, and the one available remedy with honor. I consider the foundation of the Constitution as laid on this ground that all powers not delegated to the United States, by the Constitution, nor prohibited by it to the states, are reserved to the states or to the people. To take a single step beyond the boundaries thus specially drawn around the powers of Congress is to take possession of a boundless field of power not longer susceptible of any definition. (Opinion on the Constitutionality of a National Bank, February 15, 1791) Thomas Jefferson
Posted on: Thu, 26 Jun 2014 00:17:08 +0000
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