Is Davis a Traitor: Or Was Secession a Constitutional Right Previous to the War of 1861? Annotated.

by Albert Taylor Bledsoe

The subjugation of the Southern States, and their acceptance of the terms dictated by the North, may, if the reader please, be considered as having shifted the Federal Government from the basis of compact to that of conquest; and thereby extinguished every claim to the right of secession for the future.

The sole object of this work is to discuss the right of secession with reference to the past; in order to vindicate the character of the South for loyalty, and to wipe off the charges of treason and rebellion from the names and memories of Jefferson Davis, Stonewall Jackson, Albert Sydney Johnston, Robert E. Lee, and of all who have fought or suffered in the great war of coercion.

they were, nevertheless, perfectly loyal to truth, justice, and the Constitution of 1787 as it came from the hands of the fathers.

If, when this right was practically asserted by the South, it had been conceded by the North, there would not have been even a pretext for the tremendous conflict which followed.

No one, at present, denies that the States had a right to secede from the Union formed by the old Articles of Confederation.

Yet, while that Union was standing and in favor with the people, the right of secession therefrom was vehemently denied. The reason of this is well stated by Mr. Madison in “The Federalist.” Having explained and vindicated the right of the States, or any portion of them, to secede from the existing Union, he adds: “The time has been when it was incumbent on all of us to veil the ideas which this paragraph exhibits. The scene has now changed, and with it the part which the same motives dictate.” (“The Federalist” No. xliii.)

That is to say, the time has been when it became all Americans, as patriots and worshippers of the existing Union, to veil the right of secession; but now it is the time to unveil this sacred right, and let the truth be seen!

Accordingly, the Convention of 1787 unveiled this right, and the States, one after another, seceded from the Union; though the Articles by which it was formed expressly declared that it should be “perpetual,” or last forever.

But having exercised the right of secession from one compact between the States, how could he veil that right under another compact between the same parties?

The first compact, says he, was made by the Legislatures of the States, and the second by the people themselves of the States. Hence, although the States had seceded from the first compact or Union, he supposed, or hoped, they would have no right to secede from the second. (“The Madison Papers,” p. 1184.)

The doc trine of secession was regarded by the reigning majority, as simply equivalent to the destruction of “the best Government the world had ever seen” or was ever likely to see. Hence, before the dread tribunal of the sovereign majority, the touch of secession was political death.

Thus, what the logic of Mr. Madison failed to accomplish, was achieved by the rhetoric of angry politicians and the passions of an infuriated majority; that is, the right of secession was veiled. The object of this little book is simply to appeal from the mad forum of passion to the calm tribunal of reason.

She still retains her moral wealth,—the glory of her Jacksons, her Sidney Johnsons, her Lees, her Davises, and of all who have nobly died or suffered in her cause. These are her imperishable jewels; and, since little else is left to her, these shall be cherished with the greater love, with the more enthusiastic and undying devotion.

It is conceded, both by Webster and Story, that if the Constitution is a compact to which the States are the parties, then the States have a right to secede from the Union at pleasure.

The obvious deductions which may be, and, indeed, have been, drawn from considering the Constitution a compact between States, are that it operates as a mere treaty or convention between them, and has an obligatory force no longer than suits its pleasure or its consent continues,” (“Commentaries on the Constitution,” vol. iii, p. 287, first published in 1833.)

I know something of that force; for, during the greater part of my life, I followed, with implicit confidence, those blind leaders of the blind, Mr. Justice Story and Daniel Webster.

Ever since the Declaration of Independence, there have been two great political parties in the United States; the one, regarding the American people as one nation, has labored to consolidate the Federal Union, while the other, attaching itself to the reserved rights of the States, has zealously resisted this tendency to consolidation in the central power.

Each party had, of course, its extreme wing. There were those who, unduly depressing the States, identified their relations to the central power with that of so many counties to a state, or of individuals to an ordinary political community. On the other hand, there were those who, from an extreme jealousy of the central authority, resolved the States into their original independence, or into their condition under the Articles of Confederation.

It was in 1833, for the first time in the history of the country, that it was solemnly asserted and argued, that the Constitution of the United States was not a compact between the States.

If it be a compact, say they, then the States had a right to secede. But it is not a compact; and hence secession is treason and rebellion.

The great fundamental questions, then, on which the whole controversy hinges, are, first, is the Constitution a compact? And, secondly, is a compact between the States?

But “this term accede,” asserts Mr. Webster, “is wholly out of place There is more importance than may, at first sight, appear in the introduction of this new word by the honorable mover of the resolutions.” “The people of the United States,” he continues, “used no such form of expression in establishing the present Government.” It is “unconstitutional language.” Such are a few of the bold, sweeping, and confident assertions of “the great expounder of the Constitution.”

For there lies the open record, with this very word accede, and this very application of the word, spread all over its ample pages in the most abundant profusion. No mode of expression is, indeed, more common with the fathers and the framers of the Constitution, while speaking of the act of its adoption, than this very phrase, “the accession of the States.” No household word ever fell more frequently or more familiarly from their lips.

Even Mr. Madison, “the father of the Constitution,” as by way of eminence he has long been called, used the expression “to accede” in the Convention of 1787, in order to denote the act of adopting “the new form of government by the States.”

“Our new Constitution,” says Franklin, who next to Washington was the most illustrious member of the Convention of 1787, “is now established with eleven States, and the accession of a twelfth is soon expected.” (Franklin’s Works, vol. v., page 400) And, finally, George Washington himself, who, watching the States as one after another adopted the new Constitution, says:— “If these, with the States eastward and northward of us, should accede to the Federal Government.” (The Writings of Washington, vol. ix., page 280).

Mr. Justice Story, is, in spite of his artificial theory of Constitution, a witness to the same fact. “The Constitution,” says he, “has been ratified by all the States; Rhode Island did not accede to it, until more than a year after it had been in operation;” just as if he had completely forgotten his own theory of the Constitution.

It is, no doubt, chiefly owing to the influence of language, in connection with the passions of men in a numerical majority, that the words and views of the fathers became so offensive to the Northern expounders of the Constitution.

When, from his high position in the Senate, Mr. Webster assured the people of the United States, that it is “unconstitutional language” to say “the States acceded to the Constitution;” he was no doubt religiously believed by the great majority of his readers and hearers. He was supposed to know all about the subject; and was, therefore, followed as the great guide of the people. But, as we have seen, he was profoundly ignorant of the facts of the case, about which he delivered himself with so much confidence.

Hence, if this word lays the foundation of secession, as Mr. Webster contended it does, that foundation was laid, not by Calhoun, but by the fathers of the Constitution itself, with “the father of his country” at their head.

So much for the first link in “the great expounder's” argument against the right of secession.

But the fact only shows that the Convention, when it first met, had the desire to establish the present day America a national government, rather than a federal one.

This resolution was passed before the Convention was fully assembled, and by the vote of only six States, a minority of the whole number.

After the members had arrived, and the Convention was full, the resolution in question was ...

The Convention, when filled up, changed the name of their offspring, calling it “the govern...

Nay, although the Convention positively refused to name it a national government, on the avowed ground that it did not express their views, yet has this name been eternally rung in our ears by the Northern School of politicians, and declaimers; just as if it had been adopted, instead of having been repudiated and rejected, as it was, by the authors of the Constitution.

In like manner Mr. Justice Story, in his “Commentaries, on the Constitution,” builds an argument on the name given to the new government “in the first resolution adopted by the convention,” without the slightest allusion to the fact that this resolution was afterwards reconsidered, and the name changed to that of “the government of the United States.”

rejected. The record says: “The first resolution ‘that a national government ought to be established,’ being taken up.”.... Mr. Ellsworth, seconded by Mr. Gorham, moves to alter it, so as to run that the government of the United States ought to consist, &c... This alteration he said, would drop the word national, and retain the proper title “the United States.” (Ibid. page 908) This motion was unanimously adopted by the Convention. (Ibid. page 909) That is, they unanimously rejected “the term national government,” and yet both Story and Webster build an argument on this term just as it had been retained by them!

Indeed, if Mr. Justice Story had desired to ascertain the truth in regard to the first resolution of the Convention, he might very easily have learned it from “Yates’ Minutes,” which were published before the first edition of his Commentaries.

The name ‘United States of America,’ “says the younger Story, “is an unfortunate one, and has, doubtless, led many minds into error. For it may be said, if the States do not form a confederacy, why are they called ‘United States?’ (The American Question, by William H. Story and Elliot's Debates, vol. 1., p. 42.) This name is, indeed, a most unfortunate one for the purpose of his argument, and for that of the whole school of politicians to which he belongs.

Was the constitution a compact? Was it a compact between the States, or to which the States were the parties? Was it a compact from which any State might recede at pleasure?

Mr. Calhoun very justly complains of this want of clearness and precision in the positions of his great antagonist. “After a careful examination,” says he, “of the notes which I took of what the Senator said, I am now at a loss to know whether, in the opinion of the Senator, our Constitution is a compact or not, though the almost entire argument of the Senator was directed to that point. At one time he would seem to deny directly and positively that it was a compact, while at another he would appear, in language not less strong, to admit that it was.”

He is very bold, and asserts that it is new language to call “the Constitution a compact.”

Mr. Gouverneur Morris, it is well known, was one of the most celebrated advocates for a strong national government in the Convention of 1787; and yet, in that assembly, he used the words—”He came here to form a compact for the good of America. He was ready to do so with all the States. He hoped and believed that all would enter into such a compact. If they would not, he would be ready to join with any States that would. But as the compact was to be voluntary, it is in vain for the Eastern States to insist on what the Southern States will never agree

Mr. Gerry, the representative of Massachusetts, says, “If nine out of thirteen (States) can dissolve the compact, six out of nine will be just as able to dissolve the new one hereafter.” Here again the new Constitution is called a compact.

“In the case of a union of people under one Constitution,” says Mr. Madison, while contending for the ratification of the new Constitution by the people, “the nature of the pact has always been understood to exclude such an interpretation.”

In the celebrated resolutions of Virginia, in 1798, Mr. Madison used these words, “That this assembly doth explicitly and peremptorily declare, that it views the powers of the Federal Government as resulting from the compact, to which the States are parties.”

Again, in his almost equally celebrated letter to Mr. Everett, in 1830, he calls the Constitution “a compact among the States in their highest sovereign capacity.” In the same letter Mr. Madison speaks of the States as “the parties to the Constitutional compact;” using the very expression which is so offensive to Mr. Webster's new “political grammar.”

The secret of this revolution will be found, as we shall soon prove, in the work of Mr. Justice Story, which work was not written in 1830. Indeed it was not published until 1833; but then the first volume, containing book III., chap. 3, was prepared, if not printed, before the speech of Mr. Webster, with whom the author was on the most intimate terms. It would have been well for the fame of Webster, in the eve of posterity, if he had more carefully examined such a question for himself.)

Mr. Chief Justice Jay, of the Supreme Court of the Union, in the case of “Chisholm vs. State of Georgia,” expressly declares that “the Constitution of the United States is a compact.”

Our Constitution of the United States,” says John Quincy Adams, the sixth President of the Republic, “and all our State Constitutions, have been voluntary compacts, deriving all their authority from the free consent of the parties to them.”