CHAPTER I

STATEMENT OF THE DOCTRINE OF SECESSION

THE Confederate government, asking recognition from France, made to M. Thouvenel, Minister of Foreign Affairs, July 21, 1862, through its Commissioner, Mr. Slidell, the following statement, viz.:

"Their [the United States] first union was formed by a compact of sovereign and independent states upon covenants and conditions expressly stipulated in a written instrument called the Constitution.

"In that Union the States constituted the units or integers and were bound to it only because the people of each accorded to it in their separate capacities through the acts of their representatives. That Confederacy was designed to unite under one Government two great and diverse social systems, under the one or the other of which all the States might be classified. As these two social systems were unequally represented in the common Government, it was sought to protect one against a warfare which might be urged by the other through the forms of law by carefully designed restrictions and limitations upon the power of the majority in the common Government. Without such restrictions and limitations it is known historically that the Union could not have been formed originally. But the dominant majority, which at last proved to be sectional in its character, not only used the machinery of Government which they wielded to plunder the minority through unequal legislation in the shape of protective tariffs and appropriations made for their own benefit; but proceeding from step to step, they waged through the forms of law a war upon the social system of the slaveholding States and threatened, when fully armed with political power, to use the

Government itself to disturb the domestic peace of those States. Finding that the covenants and conditions upon which the Union was formed were not only persistently violated, but that the common Government itself, then entirely in the hands of a sectional majority, was to be used for the purpose of warring upon the domestic institution which it was bound by express stipulations to protect, thirteen of the slaveholding States felt it to be due to themselves to withdraw from a Union when the conditions upon which it was formed either had been or were certainly about to be violated."

This statement lays the groundwork of the doctrine of Secession in the assertion that "Their first union was formed by a compact of sovereign and independent states . . . In that Union the States constituted the units or integers and were bound to it only because the people of each accorded to it in their separate capacities," etc. Having done this, it passes to a recital of injuries suffered, which, if true, afford justification for exercising the "natural" right of resistance, or revolution, but, in themselves, give no Constitutional right of "secession." "Secession" is not a (so-called) "natural" right. It may be established only upon precedent and law.

The "Declaration of the Immediate Causes which induce and justify the Secession of South Carolina" develops the doctrine in full; and, being published by the authority of the Convention which enacted the Ordinance of Secession of that State, may serve as the official statement of the doctrine. After reciting the Declaration of Independence and the Treaty acknowledging the same, it proceeds:

"Thus were established the two great principles asserted by the Colonies, namely: the right of a State to govern itself; and the right of a people to abolish a Government when it becomes destructive of the ends for which it was instituted. And concurrently with the establishment of these principles, was the fact, that each Colony became and was recognized by

the Mother Country as a free, sovereign and independent state.... We hold that the Government thus established [i. e., by the Constitution] is subject to the two great principles

STATEMENT OF THE DOCTRINE OF SECESSION 23

asserted in the Declaration of Independence; and we hold further, that the mode of its formation subjects it to a third principle, namely: the law of compact. We maintain that in every compact between two or more parties, the obligation is mutual; that the failure of one of the contracting parties to perform a material part of the agreement entirely releases the obligation of the other; and that where no arbiter is provided, each party is remitted to his own judgment to determine the fact of failure, with all its consequences."

The doctrine of Secession depends upon these principles of law; the first two peculiarly American in their establishment; the other a long-established principle of international law, and, as such, applicable to all peoples. It is then necessary to ascertain if the "Union was formed by a compact of sovereign and independent States upon covenants and conditions expressly stipulated" (in a written instrument called the Constitution) before inquiring whether, this being so, "the mode of its formation subjects it to a third principle, namely: . . . that in every compact between two or more parties, the obligation is mutual; that the failure of one of the contracting parties to perform a material part of the agreement entirely releases the obligation of the other; and that where no arbiter is provided, each party is remitted to his own judgment to determine the fact of failure with all its consequences."

CHAPTER II

THE DECLARATION

WAS "the Union formed by a compact of sovereign and independent States"?

This question necessarily deals with four political periods,— the Colonial, and those of the Declaration of Independence, the Confederation, and the creation of the Constitution.

Colonial conditions may be briefly stated. It is not seriously denied that, prior to the Declaration of Independence, the British Colonies in America were without political connection save in their common dependence on Great Britain, and in brief local confederacy for particular purposes.2

"The thirteen colonies, as we all know, were independent commonwealths with respect to each other. They had little sympathy and a great deal of jealousy. They came into a union with each other upon terms which were stipulated and defined in the Constitution, but they united only unwillingly and under the pressure of necessity.'

The question to be discussed, then, arises with the act which declared their independence of Great Britain.

On the 15th of May, 1776, the convention of Virginia passed the following resolutions:

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The king's representative in this Colony hath not only withheld all the powers of government from operating for our safety, but, having retired on board an armed ship, is carrying on a piratical and savage war against us, tempting our slaves, by every artifice, to resort to him, and training and employing them against their masters. In this state of extreme danger, we have no alternative left but an abject sub*William Graham Sumner, "The Conquest of the United States by Spain."

mission to the will of those overbearing tyrants, or a total separation from the crown and government of Great Britain, uniting and exerting the strength of all America for defence, and forming alliances with foreign powers for commerce and aid in war. Wherefore, appealing to the SEARCHER OF HEARTS for the sincerity of former declarations expressing our desire to preserve the connexion with that nation, and that we are driven from that inclination by their wicked councils, and the eternal laws of self-preservation :

"Resolved, unanimously, That the delegates appointed to represent this Colony in the General Congress, be instructed to propose to that respectable body, to declare the United Colonies free and independent States, absolved from all allegiance to, or dependence upon, the crown or parliament of Great Britain; and that they give the assent of this Colony to such declaration, and to whatever measures may be thought proper and necessary by the Congress for forming foreign alliances, and a confederation of the colonies, at such time and in the manner as to them shall seem best; Provided, the power of forming government for, and the regulations of the internal concerns of each Colony, be left to the respective colonial legislatures.

"Resolved, unanimously, That a committee be appointed to prepare a DECLaration of RIGHTS, and such a plan of government as will be most likely to maintain peace and order in this Colony, and secure substantial and equal liberty to the people."

In accordance with this,

"In Congress, Friday, June 7, 1776, the delegates from Virginia moved, in obedience to instructions from their constituents, that the Congress should declare that these United Colonies are, and of right ought to be, free and independent . and a Confederation be formed to bind the colonies more closely together." *

*Jefferson, "Autobiography," "Jefferson's Works," edited by H. B. Washington. Vol. I, p. 12; N. Y., 1853.