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CHAPTER XII.

Coercion the Alternative to Secession.-Repudiation of it by the Constitution and the Fathers of the Constitutional Era.-Difference between Mr. Webster and Mr. Hamilton.

THE alternative to secession is coercion. That is to say, if no such right as that of secession exists-if it is forbidden or precluded by the Constitution-then it is a wrong; and, by a well settled principle of public law, for every wrong there must be a remedy, which in this case must be the application of force to the State attempting to withdraw from the Union.

Early in the session of the Convention which formed the Constitution, it was proposed to confer upon Congress the power "to call forth the force of the Union against any member of the Union failing to fulfill its duty under the articles thereof." When this proposition came to be considered, Mr. Madison ob served that "a union of the States containing such an ingredient seemed to provide for its own destruction. The use of force against a State would look more like a declaration of war than an infliction of punishment, and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound. He hoped that such a system would be framed as might render this recourse unnecessary, and moved that the clause be postponed." This motion was adopted nem. con., and the proposition was never again revived.* Again, on a subsequent occasion, speaking of an appeal to force, Mr. Madison said: "Was such a remedy eligible? Was it practicable? . . . Any government for the United States, formed on the supposed practicability of using force against the unconstitutional proceedings of the States, would prove as visionary and fallacious as the government of Congress." Every proposition looking in any way to the same or a similar object was promptly rejected by the convention. George Mason, of Virginia, said of such a proposition: "Will not the citizens of the invaded State assist one another, until they rise as one man and shake off the Union altogether?" + *"Madison Papers," pp. 732, 761. + Ibid., p 822. Ibid., p. 914.

Oliver Ellsworth, in the ratifying Convention of Connecticut, said: "This Constitution does not attempt to coerce sovereign bodies, States, in their political capacity. No coercion is applicable to such bodies but that of an armed force. If we should attempt to execute the laws of the Union by sending an armed force against a delinquent State, it would involve the good and bad, the innocent and guilty, in the same calamity." *

Mr. Hamilton, in the Convention of New York, said: “To coerce the States is one of the maddest projects that was ever devised. . . . What picture does this idea present to our view? A complying State at war with a non-complying State: Congress marching the troops of one State into the bosom of another: . . . Here is a nation at war with itself. Can any reasonable man be well disposed toward a government which makes war and carnage the only means of supporting itself—a government that can exist only by the sword? . . . But can we believe that one State will ever suffer itself to be used as an instrument of coercion? The thing is a dream-it is impossible." +

Unhappily, our generation has seen that, in the decay of the principles and feelings which animated the hearts of all patriots in that day, this thing, like many others then regarded as impossible dreams, has been only too feasible, and that States have permitted themselves to be used as instruments, not merely for the coercion, but for the destruction of the freedom and independence of their sister States.

Edmund Randolph, Governor of Virginia, although the mover of the original proposition to authorize the employment of the forces of the Union against a delinquent member, which had been so signally defeated in the Federal Convention, afterward, in the Virginia Convention, made an eloquent protest against the idea of the employment of force against a State. "What species of military coercion," said he, "could the General Government adopt for the enforcement of obedience to its demands? Either an army sent into the heart of a delinquent State, or blocking up its ports. Have we lived to this, then, that, in order to suppress and exclude tyranny, it is necessary to render the most affectionate friends the most bitter * Elliott's "Debates," vol. ii, p. 199. Ibid., pp. 232, 233.

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1833] enemies, set the father against the son, and make the brother slay the brother? Is this the happy expedient that is to preserve liberty? Will it not destroy it? If an army be once introduced to force us, if once marched into Virginia, figure to yourselves what the dreadful consequence will be the most lamentable civil war must ensue." *

We have seen already how vehemently the idea of even judicial coercion was repudiated by Hamilton, Marshall, and others. The suggestion of military coercion was uniformly treated, as in the above extracts, with still more abhorrence. No principle was more fully and firmly settled on the highest authority than that, under our system, there could be no coercion of a State.

Mr. Webster, in his elaborate speech of February 16, 1833, arguing throughout against the sovereignty of the States, and in the course of his argument sadly confounding the ideas of the Federal Constitution and the Federal Government, as he confounds the sovereign people of the States with the State governments, says: "The States can not omit to appoint Senators and electors. It is not a matter resting in State discretion or State pleasure. . . . No member of a State Legislature can refuse to proceed, at the proper time, to elect Senators to Congress, or to provide for the choice of electors of President and Vice-President, any more than the members can refuse, when the appointed day arrives, to meet the members of the other House, to count the votes for those officers and ascertain who are chosen." This was before the invention in 1877 of an electoral commission to relieve Congress of its constitutional duty to count the vote. Mr. Hamilton, on the contrary, fresh from the work of forming the Constitution, and familiar with its principles and purposes, said: "It is certainly true that the State Legislatures, by forbearing the appointment of Senators, may destroy the national Government." +

It is unnecessary to discuss the particular question on which these two great authorities are thus directly at issue. I do not contend that the State Legislatures, of their own will, have a * Elliott's "Debates," vol. iii, p. 117.

"Congressional Debates," vol. ix, Part I, p. 566. ‡ “Federalist,” No. lix.

right to forego the performance of any Federal duty imposed upon them by the Constitution. But there is a power beyond and above that of either the Federal or State governments-the power of the people of the State, who ordained and established the Constitution, as far as it applies to themselves, reserving, as I think has been demonstrated, the right to reassume the grants of power therein made, when they deem it necessary for their safety or welfare to do so. At the behest of this power, it certainly becomes not only the right, but the duty, of their State Legislature to refrain from any action implying adherence to the Union, or partnership, from which the sovereign has withdrawn.

CHAPTER XIII.

Some Objections considered.-The New States.-Acquired Territory.-Allegiance, false and true.-Difference between Nullification and Secession.-Secession a Peaceable Remedy.-No Appeal to Arms.-Two Conditions noted.

It would be only adding to a superabundance of testimony to quote further from the authors of the Constitution in support of the principle, unquestioned in that generation, that the people who granted—that is to say, of course, the people of the several States-might resume their grants. It will require but few words to dispose of some superficial objections that have been made to the application of this doctrine in a special case.

It is sometimes said that, whatever weight may attach to principles founded on the sovereignty and independence of the original thirteen States, they can not apply to the States of more recent origin-constituting now a majority of the members of the Union-because these are but the offspring or creatures of the Union, and must of course be subordinate and dependent.

This objection would scarcely occur to any instructed mind, though it may possess a certain degree of specious plausibility for the untaught. It is enough to answer that the entire equality of the States, in every particular, is a vital condition of their union. Every new member that has been admitted into

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the partnership of States came in, as is expressly declared in the acts for their admission, on a footing of perfect equality in every respect with the original members. This equality is as complete as the equality, before the laws, of the son with the father, immediately on the attainment by the former of his legal majority, without regard to the prior condition of dependence and tutelage. The relations of the original States to one another and to the Union can not be affected by any subsequent accessions of new members, as the Constitution fixes those relations permanently, and furnishes the normal standard which is applicable to all. The Boston memorial to Congress, referred to in a foregoing chapter, as prepared by a committee with Mr. Webster at its head, says that the new States "are universally considered as admitted into the Union upon the same footing as the original States, and as possessing, in respect to the Union, the same rights of sovereignty, freedom, and independence, as the other States."

But, with regard to States formed of territory acquired by purchase from France, Spain, and Mexico, it is claimed that, as they were bought by the United States, they belong to the same, and have no right to withdraw at will from an association the property which had been purchased by the other parties.

Happy would it have been if the equal rights of the people of all the States to the enjoyment of territory acquired by the common treasure could have been recognized at the proper time! There would then have been no secession and no war.

As for the sordid claim of ownership of States, on account of the money spent for the land which they contain-I can understand the ground of a claim to some interest in the soil, so long as it continues to be public property, but have yet to learn in what way the United States ever became purchaser of the inhabitants or of their political rights.

Any question in regard to property has always been admitted to be matter for fair and equitable settlement, in case of the withdrawal of a State.

The treaty by which the Louisiana territory was ceded to the United States expressly provided that the inhabitants thereof should be "admitted, as soon as possible, according to the prin