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

by Albert Taylor Bledsoe

He dwelt, particularly, on the words of the preamble, “We, the people of the United States,” to show that his most fatal objection to the new Constitution was well founded; and he added, “States are the characteristic and soul of a confederacy. If the States be not the agents of this compact, it must be one great consolidated government of the people of the United States.” He insisted that it would be so. But Patrick Henry, it should be remembered, was not a member of the Convention of 1787, and he was an enemy of the new Constitution. His mind was fertile and overflowing with objections. If he had known the history of the words, “We, the people of the United States,” as it appears in the debates of the Convention, which had not then been published, he would have seen, that “We, the people,” really meant “We, the States; or We, the Convention,” acting in the name and by the authority of the sovereign people of the several States.( See chap. x.)

In his reply to Mr. Henry, he explained the words “We, the people,” precisely as he had before explained them in the Federalist. He said: “The parties to it were the people, but not the people as composing one great society, but the people as composing thirteen sovereignties.” Again: “If it were a consolidated government,” said he, “the assent of a majority of the people would be sufficient to establish it. But it was to be binding on the people of a State only by their own separate consent.” This argument, founded on a well-known fact, was absolutely unanswerable.

The Federalist itself, the great political classic of America, has already furnished several such instances. It teaches us, as we have seen, that “each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others;” (no. xxxix) “and also that, in the establishment of the Constitution, the States are “regarded as distinct and independent sovereigns.” (xl) But this, it may be said, does not use the term compact. Very well. The same number of the Federalist, which says that the Constitution was to be established by each State, as a sovereign body, independent of all others, calls that Constitution “The Compact.”

Thus, according to Hamilton, the “thirteen distinct States” made compromises with each other, and adopted them as “the compacts “of the new Union!

Indeed, even Hamilton, the great consolidationist of his day, never dreamed of any other mode of adopting the new Constitution, than by “a decision of each State.”

The Convention of 1787 describes the Constitution formed by them as a Compact between the States.

Who ever heard of the Union of Massachusetts, or of New York, or of Virginia? The truth is, that this word is only applicable to a confederation of States;

Now this beautiful vase, so rich in its material and so exquisite in its workmanship, was presented to Mr. Webster in honor of his great speech of 1833; in which he demonstrated to the entire satisfaction of the New England universe, that it is absurd to call the Constitution “a compact,” or to speak of its “stipulations.”

The Constitution,” says Mr. Webster, in that speech, “is founded on compromises, and the most perfect and absolute good faith, In regard to every stipulation of this kind contained in it is indispensable to its preservation. Every attempt to accomplish even the best purpose, every attempt to grasp that which is regarded as an immediate good, in violation of these Stipulations, is full of danger to the whole constitution.”

All the stipulations,” says he, “contained in the Constitution in favor of the slave States ought to be fulfilled.” (Works, vol. v. 347)

Nor has the Federal Government the rightful power over anything in relation to the States; unless this power was granted by the States, and so became one of the stipulations in the new “Articles of Union,” as the Constitution is called throughout the debates in the Convention of 1787.

The Constitution, say they, is not “a compact between States,” it is “the supreme law,” as if the two things were utterly incompatible. But it is a rather unfortunate circumstance for this argument, that precisely the same language of authority is used in the old Articles of Confederation, which is universally admitted to have been a compact.

For, having specified the stipulations in this case, he proceeds to say, “I know no form of legislation which can strengthen this. I know no mode of recognition that can add a tittle to the weight of it. I listened respectfully to the resolutions of my friend from Tennessee. He proposed to recognize that stipulation with Texas. But any additional recognition would weaken the force of it; because it stands here on the ground of a contract, a thing done for a consideration. It is a law founded on a contract with Texas.” There is, then, after all, no incompatibility between a contract and a law! On the contrary, the very highest form of legislation may be that of a compact between sovereigns States. It was thus, that Texas came into the Union; and, in consideration of certain things promised to her, agreed to accept the Constitution of the United States as the supreme law of the land.

Each State, as it adopted the Constitution, virtually said to every other, I will abstain from the exercise of certain powers, and grant or delegate certain powers, according to all the stipulations of this instrument, provided you will do the same thing.

Again, in 1851, Mr. Webster says: “When the Constitution was framed, its framers, and the people who adopted it, came to a clear, express, unquestionable stipulation and compact.”

The truth is, that Mr. Webster had become alarmed at the condition of the country; because the North, which he had taught to deny that the Constitution is a compact, seemed resolved to reduce his theory to practice and give all its stipulations to the winds, provided they only stood in the way of their passions.

The spirit of the resolutions which are here so emphatically denounced by Mr. Webster, afterward seized whole States, and controlled their legislation. In fourteen of the Northern States, indeed, laws were enacted to prevent the execution of the law of Congress.

Mr. Webster has, in one of his speeches, laid down a principle which never has been, and never can be, controverted. He says: “I do not hesitate to say and repeat, that if the Northern States refuse willfully and deliberately to carry into effect that part of the Constitution which respects the restoration of fugitive slaves, the South would be no longer bound to keep the compact. A bargain broken on one side is broken on all sides.”

But the man who seeks place, or power, or popularity more than the truth, should indeed have a good memory.

Whereas the other, in his variations, is like the weathercock, which shifts with the breeze of the passing hour, and never finds a point of permanent rest.

Mr. Webster's real opinion, however, seems to have been that the Constitution was a compact between the States.

The absurdities flowing from the Doctrine that the Constitution is not a Compact between the States, but was made by the People of America as one Nation.

This argument alone, this reductio ad absurdum, is amply sufficient, unless I am greatly mistaken, to shatter that already shattered hypothesis.

Until then, there were many intelligent and well-informed persons, who did not believe that there was one individual in the United States capable of taking such a view of the Constitution, except among political preachers or parsons. Indeed, this doctrine, and the very illustration of it, was borrowed by Mr. Lincoln from the celebrated Preacher of Princeton, New Jersey. Compare Mr. Lincoln's speech with Dr. Hodge on “the State of the Country.”

The hypothesis that the people of America form one Nation.

The attempt of Mr. Justice Story to show, that the people of America formed one nation or State.

They have a common origin, a common psychology, a common physiology, and they are all subjects of the same great Ruler of the world. But this does not make all men “one people” in the political sense of the words.

But it is well known; that Virginia did so. “Virginia,” says Judge Story, “on the 29th June, 1776, (five days before the Declaration of Independence.) declared the government of the country as formally exercised under the crown of Great Britain, totally dissolved, and proceeded to form a new Constitution.” (Ibid.) Nay, she had already formed a new Constitution, in pursuance of her resolution of the 15th of the preceding month, and she adopted it on the 29th of June, 1776. Yet Virginia has never been regarded as tainted with treason, or rebellion, against the people of America, because she thus proclaimed her own separate independence, and established her own Constitution.

It has been said, that they were sovereign, were completely independent, and were connected with each other only by a league. This is true”

Each State retains its sovereignty, freedom, and independence.” Each State retains!

If they were not free and sovereign States before, if, on the contrary, they were one people, or nation, or political community, then it were absurd to speak of their union as an act of confederation.

It is asserted by the Supreme Court of the United States, as well as by Judge Story himself, that anterior to the adoption of the Constitution the States “were sovereign, were completely independent, and were connected only by a league.”

It is sufficient for every practical purpose, that when they came to adopt the new form of government, each State was a completely free, sovereign, and independent political community, and in that capacity acceded to the compact of the Constitution.

The attempt of Mr. Curtis to show that the people of America formed one nation, or political community.

“The people of the different colonies” were, says he, “in several important senses, one people.” (vol. i, page 9) This is true.

But, unfortunately, for this bold assertion, Mr. Curtis himself tells us, on the very next page of his work, that “on the same day on which the committee for preparing the Declaration of Independence was appointed, another committee, consisting of a member from each colony, was directed to prepare and digest the form of a confederation to be entered into between these colonies,” that is, after they should become free and independent States. “This committee, he continues, “reported a draft of Articles of Confederation on the 12th of July, &c.”

Women and minors are excluded, as well as some other classes, even in our American States.

infants, minors, married women,

Or, in other words, are not the terms State and People properly used as equivalent expressions? These words were, as we have already most abundantly seen, habitually used as convertible terms by the Convention of 1787.

The language of written contracts usually speaks of the parties in the third person, and not for them in the first person. Hence, they necessarily assume the imperative style; laying down what shall, and not saying what will, be done by them.

And yet, in the face of this obvious fact, he argues from the use of shall in the Constitution, that it is not what the State “determined and promised,” but what they were commanded to do! that it is not, and cannot be a compact between the States at all!

If any proposition, indeed, respecting the Constitution can be considered as unanswerably established, it is the doctrine of the Federalist, that the act by which it was ordained was “not a national, but a federal act;” having been ratified “by the people of America, not as individuals composing one nation, but as composing the distinct and independent States to which they belong;” (Federalist, xxxix) that the Constitution, “the compact,” was established by “the States regarded as distinct and independent sovereigns.” (Ibid. no xl) It is, then, on this clear, broad, immutable foundation, that the argument in favor of secession rests.

Argument in favor of Secession from the doctrine of reserved rights.

These rights are not derived from the Constitution at all; on the contrary, all the rights, powers, or authorities of the Constitution are derived from the States. And all the rights not delegated to the Federal Government by the States, are reserved to the States themselves,—the original fountains of all the powers of “the Constitution of the United States.”

Neither Marshall nor Hamilton, the author of the numbers of the Federalist just quoted, was ever suspected of a desire to lessen the authority of the Federal Union, or to magnify that of the States. Yet, as we have seen, both of them assume as an undeniable principle, that every power which is not delegated by the States to the Federal Union, is retained by them in full vigor.

“First, That it be explicitly declared that all powers not expressly delegated by the aforesaid Constitution, are reserved to the several States, to be by them exercised.”

In like manner, and for a like reason, Virginia recommended the following “Amendment to the Constitution. 1st. That each State in the Union shall respectively retain every power, jurisdiction, and right, which is not by this Constitution delegated to the Congress of the United States, or to the departments of the Federal Government.” (Ibid. vol. iii. Page 594) North Carolina urged the same amendment to the Constitution, and in precisely the same words as those employed by Virginia,

In the first amendment proposed by Pennsylvania, we find the following words: “All the rights of sovereignty, which are not by the said Constitution expressly and plainly vested in the Congress, shall be deemed to remain with, and shall be exercised by the several States in the Union.”

These recommendations, and others to the same effect, secured the tenth amendment to the Constitution of the United States: which is in these words: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, or to the people.”

Where, then, in that compact, did they delegate, surrender, or give away, the sacred right to resume the powers which they delegated to their agent, the Federal Government; or, in other words, the right to secede from the Union?