The American Republic: Its Constitution, Tendencies, and Destiny

by Orestes Augustus Brownson

The doctrine that a State has a right to secede and carry with it its population and domain, has been effectually put down, and the unity and integrity of the United States as a sovereign nation have been effectively asserted on the battle-field; but the secessionists, though disposed to submit to superior force, and demean themselves henceforth as loyal citizens, most likely hold as firmly to the doctrine as before finding themselves unable to reduce it to practice, and the Union victory will remain incomplete till they are convinced in their understandings that the Union has the better reason as well as the superior military resources. The nation has conquered their bodies, but it is hardly less important for our statesmen to conquer their minds and win their hearts.

The right of secession is not claimed as a revolutionary right, or even as a conventional right. The secessionists disclaim revolutionary principles, and hold that the right of secession is anterior to the convention, a right which the convention could neither give, nor take away, because inherent in the very conception of a sovereign State. Secession is simply the repeal by the State of the act of accession to the Union; and as that act was a free, voluntary act of the State, she must always be free to repeal it. The Union is a copartnership; a State in the Union is simply a member of the firm, and has the right to withdraw when it judges it for its interest to do so. There is no power in a firm to compel a copartner to remain a member any longer than be pleases. He is undoubtedly holden for the obligations contracted by the firm while he remains a member; but for none contracted after he has withdrawn and given due notice thereof.

So of a sovereign State in the Union. The Union itself, apart from the sovereign States that compose it, is a mere abstraction, a nullity, and binds nobody. All its substance and vitality are in the agreement by which the States constitute themselves a firm or copartnership, for certain specific purposes, and for which they open an office and establish an agency under express instructions for the management of the general affairs of the firm. The State is held jointly and severally for all the legal obligations of the Union, contracted while she is in it but no further; and is free to withdraw when she pleases, precisely as an individual may withdraw from an ordinary business firm. The remaining copartners have no right of compulsion or coercion against the seceding member, for he, saving the obligations already contracted, is as free to withdraw as they are to remain.

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 defending 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.