CHAPTER XI.
The Right of Secession.—The Law of Unlimited Partnerships.—The "Perpetual Union" of the Articles of Confederation and the "More Perfect Union" of the Constitution.—The Important Powers conferred upon the Federal Government and the Fundamental Principles of the Compact the same in both Systems.—The Right to resume Grants, when failing to fulfill their Purposes, expressly and distinctly asserted in the Adoption of the Constitution.
The Right of Secession—that subject which, beyond all others, ignorance, prejudice, and political rancor have combined to cloud with misstatements and misapprehensions—is a question easily to be determined in the light of what has already been established with regard to the history and principles of the Constitution. It is not something standing apart by itself—a factious creation, outside of and antagonistic to the Constitution—as might be imagined by one deriving his ideas from the political literature most current of late years. So far from being against the Constitution or incompatible with it, we contend that, if the right to secede is not prohibited to the States, and no power to prevent it expressly delegated to the United States, it remains as reserved to the States or the people, from whom all the powers of the General Government were derived.
The compact between the States which formed the Union was in the nature of a partnership between individuals without limitation of time, and the recognized law of such partnerships is thus stated by an eminent lawyer of Massachusetts in a work intended for popular use:
"If the articles between the partners do not contain an agreement that the partnership shall continue for a specified time, it may be dissolved at the pleasure of either partner. But no partner can exercise this power wantonly and injuriously to the other partners, without making himself responsible for the damage he thus causes. If there be a provision that the partnership shall continue a certain time, this is binding."[88]
We have seen that a number of "sovereign, free, and independent" States, during the war of the Revolution, entered into a partnership with one another, which was not only unlimited in duration, but expressly declared to be a "perpetual union." Yet, when that Union failed to accomplish the purposes for which it was formed, the parties withdrew, separately and independently, one after another, without any question made of their right to do so, and formed a new association. One of the declared objects of this new partnership was to form "a more perfect union." This certainly did not mean more perfect in respect of duration; for the former union had been declared perpetual, and perpetuity admits of no addition. It did not mean that it was to be more indissoluble; for the delegates of the States, in ratifying the former compact of union, had expressed themselves in terms that could scarcely be made more stringent. They then said:
"And we do further solemnly plight and engage the faith of our respective constituents, that they shall abide by the determinations of the United States in Congress assembled, on all questions which, by the said confederation, are submitted to them; and that the articles thereof shall be inviolably observed by the States we respectively represent; and that the Union shall be perpetual."[89]
The formation of a "more perfect union" was accomplished by the organization of a government more complete in its various branches, legislative, executive, and judicial, and by the delegation to this Government of certain additional powers or functions which had previously been exercised by the Governments of the respective States—especially in providing the means of operating directly upon individuals for the enforcement of its legitimately delegated authority. There was no abandonment nor modification of the essential principle of a compact between sovereigns, which applied to the one case as fully as to the other. There was not the slightest intimation of so radical a revolution as the surrender of the sovereignty of the contracting parties would have been. The additional powers conferred upon the Federal Government by the Constitution were merely transfers of some of those possessed by the State governments—not subtractions from the reserved and inalienable sovereignty of the political communities which conferred them. It was merely the institution of a new agent who, however enlarged his powers might be, would still remain subordinate and responsible to the source from which they were derived—that of the sovereign people of each State. It was an amended Union, not a consolidation.
It is a remarkable fact that the very powers of the Federal Government and prohibitions to the States, which are most relied upon by the advocates of centralism as incompatible with State sovereignty, were in force under the old Confederation when the sovereignty of the States was expressly recognized. The General Government had then, as now, the exclusive right and power of determining on peace and war, making treaties and alliances, maintaining an army and navy, granting letters of marque and reprisal, regulating coinage, establishing and controlling the postal service—indeed, nearly all the so-called "characteristic powers of sovereignty" exercised by the Federal Government under the existing Constitution, except the regulation of commerce, and of levying and collecting its revenues directly, instead of through the interposition of the State authorities. The exercise of these first-named powers was prohibited to the States under the old compact, "without the consent of the United States in Congress assembled," but no one has claimed that the Confederation had thereby acquired sovereignty.
Entirely in accord with these truths are the arguments of Mr. Madison in the "Federalist," to show that the great principles of the Constitution are substantially the same as those of the Articles of Confederation. He says: