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The American Republic

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The population is fixed to the domain and goes with it; the
domain is attached to the State, and secedes in the secession of
the State. Secession, then, carries the entire State government,
people, and domain out of the Union, and restores ipso facto the
State to its original position of a sovereign State, foreign to
the United States. Being an independent sovereign State, she may
enter into a new confederacy, form a new copartnership, or merge
herself in some other foreign state, as she judges proper or
finds opportunity. The States that seceded formed among
themselves a new confederacy, more to their mind than the one
formed in 1787, as they had a perfect right to do, and in the war
just ended they were not rebels nor revolutionists, but a people
fighting for the right of self-government, loyal citizens and
true patriots de fending the independence and inviolability of
their country against foreign invaders. They are to be honored
for their loyalty and patriotism, and not branded as rebels and
punished as traitors.

This is the secession argument, which rests on no assumption of
revolutionary principles or abstract rights of man, and on no
allegation of real or imaginary wrongs received from the Union,
but simply on the original and inherent rights of the several
States as independent sovereign States. The argument is
conclusive, and the defence complete, if the Union is only a firm
or copartnership, and the sovereignty vests in the States
severally. The refutation of the secessionists is in the facts
adduced that disprove the theory of State sovereignty, and prove
that the sovereignty vests not in the States severally, but in
the States united, or that the Union is sovereign, and not the
States individually. The Union is not a firm, a copartnership,
nor an artificial or conventional union, but a real, living,
constitutional union, founded in the original and indissoluble
unity of the American people, as one sovereign people. There is,
indeed, no such people, if we abstract the States, but there are
no States if we abstract this sovereign people or the Union.
There is no Union without the States, and there are no States
without the Union. The people are born States, and the States
are born United States. The Union and the States are
simultaneous, born together, and enter alike into the original
and essential constitution of the American state. This the facts
and reasonings adduced fully establish.

But this one sovereign people that exists only as organized into
States, does not necessarily include the whole population or
territory included within the jurisdiction of the United States.
It is restricted to the people and territory or domain organized
into States in the Union, as in ancient Rome the ruling people
were restricted to the tenants of the sacred territory, which had
been surveyed, and its boundaries marked by the god Terminus, and
which by no means included all the territory held by the city,
and of which she was both the private proprietor and the public
sovereign. The city had vast possessions acquired by
confiscation, by purchase, by treaty, or by conquest, and in
reference to which her celebrated agrarian laws were enacted, and
which have their counterpart in our homestead and kindred laws.
In this class of territory, of which the city was the private
owner, was the territory of all the Roman provinces, which was
held to be only leased to its occupants, who were often
dispossessed, and their lands given as a recompense by the consul
or imperator to his disbanded legionaries. The provincials were
subjects of Rome, but formed no part of the Roman people, and had
no share in the political power of the state, till at a late
period the privileges of Roman citizens were extended to them,
and the Roman people became coextensive with the Roman empire.
So the United States have held and still hold large territorial
possessions, acquired by the acknowledgment of their independence
by Great Britain, the former sovereign, the cession of particular
states, and purchase from France, Spain, and Mexico. Till
erected into States and admitted into the Union, this territory,
with its population, though subject to the United States, makes
no part of the political or sovereign territory and people of the
United States. It is under the Union, not in it, as is indicated
by the phrase admitting into the Union--a legal phrase, since the
constitution ordains that "new States may be admitted by the
Congress into this Union."

There can be no secession that separates a State from the
national domain, and withdraws it from the territorial
sovereignty or jurisdiction of the United States; yet what
hinders a State from going out of the Union in the sense that it
comes into it, and thus ceasing to belong to the political people
of the United States?

If the view of the constitution taken in the preceding chapters
be correct, and certainly no facts tend to disprove it, the
accession of a Territory as a State in the Union is a free act of
the territorial people. The Territory cannot organize and apply
for admission as a State, without what is called an "enabling act"
of Congress or its equivalent; but that act is permissive, not
mandatory, and nothing obliges the Territory to organize under it
and apply for admission. It may do so or not, as it chooses.
What, then, hinders the State once in the Union from going out or
returning to its former condition of territory subject to the
Union? The original States did not need to come in under an
enabling act, for they were born States in the Union, and were
never territory outside of the Union and subject to it. But they
and the new States, adopted or naturalized States, once in the
Union, stand on a footing of perfect equality, and the original
States are no more and no less bound than they to remain States
in the Union. The ratification of the constitution by the
original States was a free act, as much so as the accession of a
new State formed from territory subject to the Union is a free
act, and a free act is an act which one is free to do or not to
do, as he pleases. What a State is free to do or not to do, it
is free to undo, if it chooses. There is nothing in either the
State constitution or in that of the United States that forbids
it.

This is denied. The population and domain are inseparable in the
State; and if the State could take itself out of the Union, it
would take them out, and be ipso facto a sovereign State foreign
to the Union. It would take the domain and the population out of
the Union, it is conceded and even maintained, but not therefore
would it take them out of the jurisdiction of the Union, or would
they exist as a State foreign to the Union; for population and
territory may coexist, as Dacota, Colorado, or New Mexico, out of
the Union, and yet be subject to the Union, or within the
jurisdiction of the United States.

But the Union is formed by the surrender by each of the States of
its individual sovereignty, and each State by its admission into
the Union surrenders its individual sovereignty, or binds itself
by a constitutional compact to merge its individual sovereignty
in that of the whole. It then cannot cease to be a State in the
Union without breach of contract. Having surrendered its
sovereignty to the Union, or bound itself by the constitution to
exercise its original sovereignty only as one of the United States,
it can unmake itself of its state character, only by consent of
the United States, or by a successful revolution. It is by
virtue of this fact that secession is rebellion against the
United States, and that the General government, as representing
the Union, has the right and the duty to suppress it by all the
forces at its command.

There can be no rebellion where there is no allegiance. The
States in the Union cannot owe allegiance to the Union, for they
are it, and for any one to go out of it is no more an act of
rebellion than it is for a king to abdicate his throne. The
Union is not formed by the surrender to it by the several States
of their respective individual sovereignty. Such surrender
could, as we have seen, form only an alliance, or a
confederation, not one sovereign people; and from an alliance, or
confederation, the ally or confederate has, saving its faith, the
inherent right to secede. The argument assumes that the States
were originally each in its individuality a sovereign state, but by
the convention which framed the constitution, each surrendered
its sovereignty to the whole, and thus several sovereign states
became one sovereign political people, governing in general
matters through the General government, and in particular matters
through particular or State governments. This is Mr. Madison's
theory, and also Mr. Webster's; but it has been refuted in the
refutation of the theory that makes government originate in
compact. A sovereign state can, undoubtedly, surrender its
sovereignty, but can surrender it only to something or somebody
that really exists; for to Surrender to no one or to nothing is,
as has been shown, the same thing as not to surrender at all; and
the Union, being formed only by the surrender, is nothing prior
to it, or till after it is made, and therefore can be no
recipient of the surrender.

Besides, the theory is the reverse of the fact. The State does
not surrender or part with its sovereignty by coming into the
Union, but acquires by it all the rights it holds as a State.
Between the original States and the new States there is a
difference of mode by which they become States in the Union, but
none in their powers, or the tenure by which they hold them. The
process by which new States are actually formed and admitted into
the Union, discloses at once what it is that is gained or lost by
admission. The domain and population, before the organization of
the Territory into one of the United States, are subject to the
United States, inseparably attached to the domain of the Union,
and under its sovereignty. The Territory so remains, organized
or unorganized, under a Territorial Government created by
Congress. Congress, by an enabling act, permits it to organize
as a State, to call a convention to form a State constitution, to
elect under it, in such way as the convention ordains, State
officers, a State legislature, and, in the way prescribed by the
Constitution of the United States, senators and representatives
in Congress. Here is a complete organization as a State, yet,
though called a State, it is no State at all, and is simply
territory, without a single particle of political power. To be a
State it must be recognized and admitted by Congress as a State
in the Union, and when so recognized and admitted it possesses,
in union with the other United States, supreme political
sovereignty, jointly in all general matters, and individually in
all private and particular matters.

The Territory gives up no sovereign powers by coming into the
Union, for before it came into the Union it had no sovereignty,
no political rights at all. All the rights and powers it holds
are held by the simple fact that it has become a State in the
Union. This is as true of the original States as of the new
States; for it has been shown in the chapter on The United States,
that the original British sovereignty under which the colonies
were organized and existed passed, on the fact of independence,
to the States United, and not to the States severally. Hence if
nine States had ratified the constitution, and the other four had
stood out, and refused to do it, which was within their
competency, they would not have been independent sovereign
States, outside of the Union, but Territories under the Union.

Texas forms the only exception to the rule that the States have
never been independent of the Union. All the other new States
have been formed from territory subject to the Union. This is
true of all the States formed out of the Territory of the
Northwest, and out of the domain ceded by France, Spain, and
Mexico to the United States. All these cessions were held by the
United States as territory immediately subject to the Union,
before being erected into States; and by far the larger part is
so held even yet. But Texas was an independent foreign state,
and was annexed as a State without having been first subjected as
territory to the United States. It of course lost by annexation
its separate sovereignty. But this annexation was held by many
to be unconstitutional; it was made when the State sovereignty
theory had gained possession of the Government, and was annexed
as a State instead of being admitted as a State formed from
territory belonging to the United States, for the very purpose of
committing the nation to that theory. Its annexation was the
prologue, as the Mexican war was the first act in the secession
drama, and as the epilogue is the suppression of the rebellion on
Texan soil. Texas is an exceptional case, and forms no
precedent, and cannot be adduced as invalidating the general
rule. Omitting Texas, the simple fact is, the States acquire all
their sovereign powers by being States in the Union, instead of
losing or surrendering them.

Our American statesmen have overlooked or not duly weighed the
facts in the case, because, holding the origin of government in
compact, they felt no need of looking back of the constitution to
find the basis of that unity of the American people which they
assert. Neither Mr. Madison nor Mr. Webster felt any difficulty
in asserting it as created by the convention of 1787, or in
conceding the sovereignty of the States prior to the Union, and
denying its existence after the ratification of the constitution.
If it were not that they held that the State originates in
convention or the social compact, there would be unpardonable
presumption on the part of the present writer in venturing to
hazard an assertion contrary to theirs. But, if their theory was
unsound, their practical doctrine was not; for they maintained
that the American people are one sovereign people, and Mr. Quincy
Adams, an authority inferior to neither, maintained that they
were always one people, and that the States hold from the Union,
not the Union from the States. The States without the Union
cease to exist as political communities: the Union without the
States ceases to be a Union, and becomes a vast centralized and
consolidated state, ready to lapse from a civilized into a
barbaric, from a republican to a despotic nation.

The State, under the American system, as distinguished from
Territory, is not in the domain and population fixed to it, nor
yet in its exterior organization, but solely in the political
powers, rights, and franchises which it holds from the United
States, or as one of the United States. As these are rights, not
obligations, the State may resign or abdicate them and cease to
be a State, on the same principle that any man may abdicate or
forego his rights. In doing so, the State breaks no oath of
allegiance, fails to fulfil no obligation she contracted as a
State: she simply forgoes her political rights and franchises.
So far, then, secession is possible, feasible, and not
unconstitutional or unlawful. But it is, as Mr. Sumner and
others have maintained, simply State suicide. Nothing hinders a
State from committing suicide, if she chooses, any more than
there was something which compelled the Territory to become a
State in the Union against its will.

It is objected to, this conclusion that the States were, prior to
the Union, independent sovereign States, and secession would not
destroy the State, but restore it to its original sovereignty and
independence, as the secessionists maintain. Certainly, if the
States were, Prior to the Union, sovereign States; but this is
precisely what has been denied and disproved; for prior to the
Union there were no States. Secession restores, or reduces,
rather, the State to the condition it was in before its admission
into the Union; but that condition is that of Territory, or a
Territory subject to the United States, and not that of an
independent sovereign state. The State holds all its political
rights and powers in the Union from the Union, and has none out
of it, or in the condition in which its population and domain
were before being a State in the Union.

State suicide, it has been urged, releases its population and
territory from their allegiance to the Union, and as there is no
rebellion where there is no allegiance, resistance by its
population and territory to the Union, even war against the
Union, would not be rebellion, but the simple assertion of
popular sovereignty. This is only the same objection in another
form. The lapse of the State releases the population and
territory from no allegiance to the Union; for their allegiance
to the Union was not contracted by their becoming a State, and
they have never in their State character owed allegiance to the
United States. A State owes no allegiance to the United States,
for it is one of them, and is jointly sovereign. The relation
between the United States and the State is not the relation of
suzerain and liegeman or vassal. A State owes no allegiance, for
it is not subject to the Union; it is never in their State
capacity that its population and territory do or can rebel.
Hence, the Government has steadily denied that, in the late
rebellion, any State as such rebelled.

But as a State cannot rebel, no State can go out of the Union;
and therefore no State in the late rebellion has seceded, and the
States that passed secession ordinances are and all along have
been States in the Union. No State can rebel, but it does not
follow therefrom that no State can secede or cease to exist as a
State: it only follows that secession, in the sense of State
suicide, or the abdication by the State of its political rights
and powers, is not rebellion. Nor does it follow from the fact
that no State has rebelled, that no State has ceased to be a
State; or that the States that passed secession ordinances have
been all along States in the Union.

The secession ordinances were illegal, unconstitutional, not
within the competency of the State, and therefore null and void
from the beginning. Unconstitutional, illegal, and not within
the competency of the State, so far as intended to alienate any
portion of the national domain and population thereto annexed,
they certainly were, and so far were void and of no effect; but
so far as intended to take the State simply as a State out of the
Union, they were within the competency of the State, were not
illegal or unconstitutional, and therefore not null and void.
Acts unconstitutional in some parts and constitutional in others
are not wholly void. The unconstitutionality vitiates only the
unconstitutional parts; the others are valid, are law, and
recognized and enforced as such by the courts.

The secession ordinances are void, because they were never passed
by the people of the State, but by a faction that overawed them
and usurped the authority of the State. This argument implies
that, if a secession ordinance is passed by the people proper of
the State, it is valid; which is more than they who urge it
against the State suicide doctrine are prepared to concede. But
the secession ordinances were in every instance passed by the
people of the State in convention legally assembled, therefore by
them in their highest State capacity--in the same capacity in
which they ordain and ratify the State constitution itself; and
in nearly all the States they were in addition ratified and
confirmed, if the facts have been correctly reported, by a
genuine plebiscitum, or direct vote of the people. In all cases
they were adopted by a decided majority of the political people
of the State, and after their adoption they were acquiesced in
and indeed actively supported by very nearly the whole people.
The people of the States adopting the secession ordinances were
far more unanimous in supporting secession than the people of the
other States were in sustaining the Government in its efforts to
suppress the rebellion by coercive measures. It will not do,
then, to ascribe the secession ordinances to a faction. The
people are never a faction, nor is a faction ever the majority.

There has been a disposition at the North, encouraged by the few
Union men at the South, to regard secession as the work of a few
ambitious and unprincipled leaders, who, by their threats, their
violence, and their overbearing manner, forced the mass of the
people of their respective States into secession against their
convictions and their will. No doubt there were leaders at the
South, as there are in every great movement at the North; no
doubt there were individuals in the seceding States that held
secession wrong in principle, and were conscientiously attached
to the Union; no doubt, also, there were men who adhered to the
Union, not because they disapproved secession, but because they
disliked the men at the head of the movement, or because they
were keen-sighted enough to see that it could not succeed, that
the Union must be the winning side, and that by adhering to it
they would become the great and leading men of their respective
States, which they certainly could not be under secession.
Others sympathized fully with what was called the Southern cause,
held firmly the right of secession, and hated cordially the
Yankees, but doubted either the practicability or the expediency
of secession, and opposed it till resolved on, but, after it was
resolved on, yielded to none in their earnest support of it.
These last comprised the immense majority of those who voted
against secession. Never could those called the Southern leaders
have carried the secession ordinances, never could they have
carried on the war with the vigor and determination, and with
such formidable armies as they collected and armed for four
years, making at times the destiny of the Union well nigh
doubtful, if they had not had the Southern heart with them, if
they had not been most heartily supported by the overwhelming
mass of the people. They led a popular, not a factious movement.

No State, it is said again, has seceded, or could secede. The
State is territorial, not personal, and as no State can carry its
territory and population out of the Union, no State can secede.
Out of the jurisdiction of the Union, or alienate them from the
sovereign or national domain, very true; but out of the Union as
a State, with rights, powers, or franchises in the Union, not
true. Secession is political, not territorial.

But the State holds from the territory or domain. The people are
sovereign because attached to a sovereign territory, not the
domain because held by a sovereign people, as was established by
the analysis of the early Roman constitution. The territory of
the States corresponds to the sacred territory of Rome, to which
was attached the Roman sovereignty. That territory, once
surveyed and consecrated, remained sacred and the ruling
territory, and could not be divested of its sacred and governing
character. The portions of the territory of the United States
once erected into States and consecrated as ruling territory can
never be deprived, except by foreign conquest or successful
revolution, of its sacred character and inviolable rights.

The State is territorial, not personal, and is constituted by
public, not by private wealth, and is always respublica or
commonwealth, in distinction from despotism or monarchy in its
oriental sense, which is founded on private wealth, or which
assumes that the authority to govern, or sovereignty, is the
private estate of the sovereign. All power is a domain, but
there is no domain without a dominus or lord. In oriental
monarchies the dominus is the monarch; in republics it is the
public or people fixed to the soil or territory, that is, the
people in their territorial, and not in their personal or
genealogical relation. The people of The United States are
sovereign only within the territory or domain of the United
States, and their sovereignty is a state, because fixed,
attached, or limited to that specific territory. It is fixed to
the soil, not nomadic. In barbaric nations power is nomadic and
personal, or genealogical, confined to no locality, but attaches
to the chief, and follows wherever he goes. The Gothic chiefs
hold their power by a personal title, and have the same authority
in their tribes on the Po or the Rhone as on the banks of the
Elbe or the Danube. Power migrates with the chief and his
people, and may be exercised wherever he and they find
themselves, as a Swedish queen held when she ordered the
execution of one of her subjects at Paris, without asking
permission of the territorial lord. In these nations, power is a
personal right, or a private estate, not a state which exists
only as attached to the domain, and, as attached to the domain,
exists independently of the chief or the government. The
distinction is between public domain and private domain.

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