第76章

The authority of the State in the Union is a legal authority, and the citizen in obeying it is disloyal neither to the State nor to the Union.The citizens in the States that made war on the United States did not resist their State, for they acted by its authority.The only men, on this supposition, in them, who have been traitors or rebels, are precisely the Union men who have refused to go with their respective States, and have resisted, even with armed force, the secession ordinances.The several State governments, under which the so-called rebels carried on the war for the destruction of the Union, if the States are in the Union, were legal and loyal governments of their respective States, for they were legally elected and installed, and conformed to their respective State constitutions.All the acts of these governments have been constitutional.Their entering into a confederacy for attaining a separate nationality has been legal, and the debts contracted by the States individually, or by the confederacy legally formed by them, have been legally contracted, stand good against them, and perhaps against the United States.The war against them has been all wrong, and the confederates killed in battle have been murdered by the United States.The blockade has been illegal, for no nation can blockade its own ports, and the captures and seizures under it, robberies.The Supreme Court has been wrong in declaring the war a territorial civil war, as well as the government in acting accordingly.Now, all these conclusions are manifestly false and absurd, and therefore the assumption that the States in question have all along been States in the Union cannot be sustained.

It is easy to understand the resistance the Government offers to the doctrine that a State may commit suicide, or by its own act abdicate its rights and cease to be a State in the Union.It is admissible on no theory of the constitution that has been widely entertained.It is not admissible on Mr.Calhoun's theory of State sovereignty, for on that theory a State in going out of the Union does not cease to be a State but simply resumes the powers it had delegated to the General government.It cannot be maintained on Mr.Madison's or Mr.Webster's theory, that the States prior to the Union were severally sovereign, but by the Union were constituted one people; for, if this one people are understood to be a federal people, State secession would not be State suicide, but State independence; and if understood to be one consolidated or centralized people, it would be simply insurrection or rebellion against the national authority, laboring to make itself a revolution.The government seems to have understood Mr.Madison's theory in both senses--in the consolidated sense, in declaring the secessionists insurgents and rebels, and in the federal sense, in maintaining that they have never seceded, and are still States in the Union, in full possession of all their political or State rights.Perhaps, if the government, instead of borrowing from contradictory theories of the constitution which have gained currency, had examined in the light of historical facts the constitution itself, it would have been as constitutional in its doctrine as it has been loyal and patriotic, energetic and successful in its military administration.

Another reason why the doctrine that State secession is State suicide has appeared so offensive to many, is the supposition entertained at one time by some of its friends, that the dissolution of the State vacates all rights and franchises held under it.But this is a mistake.The principle is well known and recognized by the jurisprudence of all civilized nations, that in the transfer of a territory from one territorial sovereign to another, the laws in force under the old sovereign remain in force after the change, till abrogated, or others are enacted in their place by the new sovereign, except such as are necessarily abrogated by the change itself of the sovereign; not, indeed, because the old sovereign retains any authority, but, because such is presumed by the courts to be the will of the new sovereign.The principle applies in the case of the death of a State in the Union.The laws of the State are territorial, till abrogated by competent authority, remain the lex loci, and are in full force.All that would be vacated would be the public rights of the State, and in no case the private rights of citizens, corporations, or laws affecting them.

But the same conclusion is reached in another way.In the lapse of a State or its return to the condition of a Territory, there is really no change of sovereignty.The sovereignty, both before and after, is the United States.The sovereign authority that governs in the State government, as we have seen, though independent of the General government, is the United States.The United States govern certain matters through a General government, and others through particular State governments.The private rights and interests created, regulated, or protected by the particular State, are created, regulated, or protected by the United States, as much and as plenarily as if done by the General government, and the State laws creating, regulating, or protecting them can be abrogated by no power known to the constitution, but either the State itself, or the United States in convention legally assembled.If this were what is meant by the States that have seceded, or professed to secede, remaining States in the Union, they would, indeed, be States still in the Union, notwithstanding secession and the government would be right in saying that no State can secede.But this is not what is meant, at least not all that is meant.It is meant not only that the private rights of citizens and corporations remain, but the citizens retain all the public rights of the State, that is, the right to representation in Congress and in the electoral college, and the right to sit in the convention, which is not true.

But the correction of the misapprehension that the private rights and interests are lost by the lapse of the State may remove the graver prejudices against the doctrine of State suicide, and dispose loyal and honest Union men to bear the reasons by which it is supported, and which nobody has refuted or can refute on constitutional grounds.A Territory by coming into the Union becomes a State; a State by going out of the Union becomes a Territory.