upon which it was formed. These States did not formally secede, but of themselves, without assent of those Mr. Jefferson described as ‘co-parties with themselves to the compact,’ changed the conditions of union and altered the articles of agreement. Releasing themselves by their own motion, in most arbitrary, extra-judicial, extraconstitutional manner, of a covenant or injunction of the Constitution, because in their opinion it was unwise, they still, while thus in flagrante delicto, demanded obedience to the Constitution and laws on the part of the other cosignitories to the league of government. In the elections of 1860, on sectional issues and securing sectional ascendency, this rebellion against legitimate authority, this nullification, this assumption of a right to self-release from an imperative constitutional requirement, this setting up of private judgment, of individual or corporate whim, against statutory and organic law, an unbroken line of judicial precedents and the undisputed history of the formation of the Constitution, was sanctioned by the popular vote of the North and the election of President Lincoln, who had boldly declared that the States could not remain in union as they had originally agreed and stipulated. In that election, in direct antagonism to the opinions and covenants of the men who achieved our independence and framed and adopted the Constitution which made the Union, it was deliberately decided that the States could not exist together as slaveholding and non-slaveholding, and that ‘the irrepressible conflict’ between them must go on until ‘the relic of barbarism’ should be effaced from constitutions and laws.
That election divided the Union into fixed hostile geographical parties, strongly distinguished by institutions, traditions, opinions and productions and pursuits, the stronger struggling and by the popular verdict licensed to enlarge its powers, and the weaker to save its equality and rights. It placed in the hands of the stronger section, dominated by a fanatical spirit, the power to crush the weaker section and institutions,, to destroy at will the existing constitutional relation between the races, and to leave no alternative but reduction to provincial condition or resistance. With the ascendency previously acquired by territorial monopoly and government favoritism, it was now made certain that political power was centralized permanently in the North to the control and subjection of the South whenever the feelings or interests of the sections came into conflict. What the result would be it required no seer to prophesy.4
Secession the separate and legal act of the States.
It is not uncommon to confound the secession of a state, as a separate, independent, sovereign act, with the subsequent establishment of a confederacy or a common government, by the co-operative action of several States after they had seceded. A State, by virtue of its individual, sovereign right, demonstrated in this introductory chapter, repealed or withdrew its act of acceptance of the Constitution, as the basis or bond of union, and resumed the powers which had been delegated and enumerated in that instrument. This act of resumption of delegated powers, assertion of undelegated sovereignty, was not by the legislature. There is in our American system what is not found elsewhere, a power above that of the Federal or of the State government, the power of the people of a State, who ordained and established constitutions for and over themselves. No secret conspiracy was needed, no mask to conceal the features of the State, no secret place in which to concoct or consummate the designs. Everything was done in broad daylight, and inspection was invited to the accomplishment of what had been repeatedly avowed as the logical consequence of sectional supremacy. The people of the State—the only ‘people’ then known under our political system—had a regularly and lawfully constituted government, already in their hands and subject to their direction. They had a complete corps of administrative officers, an executive, a legislative, a judiciary, filling every department of a free, representative government, all holding office under State authority alone and wearing no badge of official subordination to any power. This government was complete in all its functions and powers, unchanged as to its internal affairs, altered only in its external or Federal relations, and law and order reigned in every portion of the State precisely as if no change had occurred. The secession was as valid as the act of ratification by which the State entered the Union. The secession, or withdrawal of a State from a league, had no revolutionary or insurrectionary character, and nothing which could be tortured into rebellion or treason except by ignorance or malignity.
Several States having openly, with most public declaration of purposes, withdrawn from the compact, they established a union, a confederacy of states, for themselves. The constitution was formed, adopted, ratified, in precisely the same manner and by the same forms and agencies as the Constitution of the United States came into being. Not a clause nor article interfered with the right of any Northern State or citizen. No assault was made upon property or institutions of any other people. The model of the Constitution of the Union, which had been respected, obeyed and revered by the Southern States, was followed, with only such changes as time and experience had demonstrated to be necessary for the states to retain their equality in the Union and have their guaranteed rights respected. There seemed no other alternative for the security of the domestic institutions of self-governing States—institutions over which neither the Federal government nor people outside the limits of such States had any control, and for which they had no moral or legal responsibility. Southern life was habitually denounced as utter ‘barbarism,’ and an institution of the remotest origin, sanctioned in the Old Testament and by the law of nations, and upheld for centuries by all civilized governments, and existing at the time of the Declaration of Independence in all the States, was held up to odium as ‘the sum of all villainies,’ and the Constitution, because of its explicit recognition and guarantee of this institution, was spurned as ‘a covenant with death and an agreement with hell.’ It was a logical and inevitable inference that the predominant and fanatical sentiment of the North should purge the country of such an ‘unmitigated crime’ by its speedy suppression, and that invested with, or arrogating supreme power, it should throw its irresistible weight in the sacrifice of Southern interests to a remorseless and destructive propagandism.
No one would now hazard the assertion that, if the Southern States had acquiesced in the result of the elections of 1860, the equality and rights of the Southern States could have continued unimpaired by the unfriendly action of the government at Washington and of the Northern States. We need not be left to conjecture as to what would have occurred, for a few years later—not during the frenzy of the war, but in the flush of victory and the strength of peace—we had a notable illustration of the insecurity of reliance upon the clearest constitutional prohibition. The Supreme Court, exercising its constitutional power and duty, gave an interpretation to the legal tender law that was not pleasing to Congress and certain moneyed interests. As a rebuke and remedy the court was reconstructed, the number of judges was increased, to reconsider and reverse the judgment, and this process President Harrison, speaking on a kindred subject in a political address in New York, characterized as ‘packing the court with men who will decide as Congress wants them to.’
Perhaps more conclusive proof of the insecurity of a minority and of unresisted tendency toward assumption of all power which may be supposed to be needed for the accomplishment of coveted ends, may be found in the reconstruction measures, which were deliberately purposed to punish ‘the rebels’ and to subject the white people to negro domination. Roger Foster, in his commentaries on the Constitution, 1896 (pp. 265-267), speaks of the dealings of Congress and the Federal government with the Southern States during the period of reconstruction. At his hands the story becomes a gloomy tale of vacillation, intimidation and fraud; but he tells it with plainness and directness and with more than his usual force. In his opinion ‘the validity of the acts of Congress’ is ‘open to investigation,’ and, ‘in view of the language of the Constitution, the decisions of the courts on cognate questions, and the action of Congress in other respects toward the States which were the seat of the insurrection, it seems impossible to find any justification for them in law, precedent or consistency. . . . The reconstruction acts must consequently be condemned as unconstitutional, founded on force, not law, and so tyrannical as to imperil the liberty of the entire nation should they be recognized as binding precedents.’ The change of sentiment in reference to John Brown is a startling revelation of the rapidity with which sectional and political hostility can pervert the judgment and the conscience. In October, 1859, this bold, bad man attempted his bloody foray into Virginia, fraught with most terrible consequences of spoliation of property, arson, insurrection,