Memoirs of Service Afloat, During the War Between the States

by Raphael Semmes

CHAPTER IV.

WAS SECESSION TREASON?

A few more words, and we shall be in a condition to answer the question which stands at the head of this chapter. Being a legal question, it will depend entirely upon the constitutional right the Southern States may have had to withdraw from the Union, without reference to considerations of expediency, or of moral right; these latter will be more appropriately considered, when we come to speak of the causes which impelled the Southern States to the step. I have combated many of the arguments presented by the other side, but a few others remain to be noticed.

It has been said, that, admitting that the Constitution was a federal compact, yet the States did in fact cede away a part of their sovereignty, and from this the inference has been deduced, that they no longer remained sovereign for the purpose of recalling the part, which had been ceded away. This is a question which arises wholly under the laws of nations. It is admitted, that the States were independent sovereignties, before they formed the Constitution. We have only, therefore, to consult the international code, to ascertain to what extent the granting away of a portion of their sovereignty affected the remainder. Vattel, treating of this identical point, speaks as follows: “Several sovereign and independent States may unite themselves together by a perpetual confederacy, without ceasing to be, each individually, a perfect State. They will, together, constitute a federal republic; their joint deliberations will not impair the sovereignty of each member, though they may, in certain respects, put some restraint upon the exercise of it, in virtue of voluntary engagements.” That was just what the American States did, when they formed the Federal Constitution; they put some voluntary restraint upon their sovereignty, for the furtherance of a common object.

If they are restrained, by the Constitution, from doing certain things, the restraint was self-imposed, for it was they who ordained, and established the instrument, and not a common superior. They, each, agreed that they would forbear to do certain things, if their copartners would forbear to do the same things. As plain as this seems, no less an authority than that of Mr. Webster has denied it; for, in his celebrated argument against Mr. Calhoun, already referred to, he triumphantly exclaimed, that the States were not sovereign, because they were restrained of a portion of their liberty by the Constitution. See how he perverts the whole tenor of the instrument, in his endeavor to build up those manufactories of which we spoke in the last chapter. He says: “However men may think this ought to be, the fact is, that the people of the United States have chosen to impose control on State sovereignty. There are those, doubtless, who wish that they had been left without restraint; but the Constitution has ordered the matter differently. To make war, for instance, is an exercise of sovereignty, but, the Constitution declares that no State shall declare war. To coin money is another act of sovereign power; but no State is at liberty to coin money. Again, the Constitution says, that no sovereign State shall be so sovereign, as to make a treaty. These prohibitions, it must be confessed, are a control on the State sovereignty of South Carolina, as well as of the other States, which does not arise from her feelings of honorable justice.”

Here we see, plainly, the germ of the monstrous heresy that has riven the States asunder, in our day. The “people of the United States,” a common superior, ordained and established the Constitution, says Mr. Webster, and imposed restraints upon the States! However some might wish they had been left without restraint, the Constitution has “ordained it differently!” And the ostrich stomach of the North received, and digested this monstrous perversion of the plainest historical truth, in order that the spindle might whirr on, and the shuttle dance from side to side of the loom.

Following the idea of Mr. Webster, that the people of the United States gave constitutional law to the States, instead of receiving it from them, Northern writers frequently ask, in what part of the Constitution, is the doctrine of secession found? In no part. It was not necessary to put it there. The States who formed the instrument, delegated certain powers to the Federal Government, retaining all others. Did they part, with the right of secession? Could they have parted with it, without consenting to a merger of their sovereignty? And so far from doing this, we have seen with what jealous care they protested against even the implication of such a merger, in the 10th amendment to the Constitution. If the power was not parted with, by explicit grant, did it not remain to them, even before the 10th amendment was adopted, and still more, if possible, after it was adopted?

To make it still more apparent, that the common understanding among the Fathers of the Constitution was, that this right of secession was reserved, it is only necessary to refer to what took place, during the transition from the old to the new government. The thirteen original States seceded, as we have seen, from the Articles of Confederation, not unanimously, or all together, but one by one, each State acting for itself, without consulting the interests, or inclinations of the others. One of the provisions of those Articles was as follows: “Every State shall abide by the determination of the United States, in Congress assembled, in all questions, which, by this Confederation, are submitted to them; and the Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration, at any time hereafter, be made in any of them, unless such alteration be agreed to, in a Congress of the United States, and be afterward confirmed by the legislature of every State.”

Now, it is a pertinent, and instructive fact, that no similar provision of perpetuity was engrafted in the new Constitution. There must have been a motive for this—it could not have been a mere accidental omission—and the motive probably was, that the Convention of 1787 were ashamed to attempt, a second time, to bind sovereign States, by a rope of sand, which they, themselves, were in the act of pulling asunder. It was in accordance with this understanding, that both New York and Virginia, in their ratifications of the new Constitution, expressly reserved to themselves the right of secession; and no objection was made to such conditional ratifications. The reservations made by these States enure, as a matter of course, to the benefit of all the States, as they were all to go into the new Union, on precisely the same footing.

In the extract from Mr. Webster’s speech, which has been given above, it is alleged among other things, that the States are not sovereign, because they cannot make treaties; and this disability also has been urged as an argument against secession. The disability, like others, was self-imposed, and, as any one may see, was intended to be binding on the States only so long as the contract which they were then forming should endure. The Confederate States respected this obligation while they remained in the Federal Union. They scrupulously forbore from contracting with each other until they had resumed, each for itself, their original sovereignty; they were then not only free to contract with each other, but to do and perform all the other acts enumerated by Mr. Webster; the act of declaring war included, even though this war should be against their late confederates.