BOOKS.
IS SECESSION A CONSTITUTIONAL RIGHT ?*
MOST English readers are inclined to treat with impatience arguments to show that secession is a violation of the American constitution. The time for such reasoning seems gone by. Legal acuteness is very well in its place, but at seasons of war or tumult the gown must proverbially make place for the sword, and constitutional subtleties will not unravel the knot which must be cut by harder weapons. Moreover, an examination into constitutional rights can rarely decide the matter in dispute. Acts which are clearly revolutionary may, for all that, deserve the highest praise. The Revolution of 1683 is not the less glorious because the assumption of the Conven- tion that the throne was vacant violated constitutional law, and few either of the Radicals, who deem the execution of Charles I. a justifiable measure, or of the Tories, who regarded it as a monstrous crime, would care to join issue on grounds either of precedent or of technical legality. Nor, on the other hand, is it a conclusive defence for the deeds either of rulers or of subjects to show that no con- stitutional form was broken. Crown, Lords, and Commons might each in turn exert rights contravening no precept recorded in Be Lolme or Blackstone, which might nevertheless upset the balance of English government. If, in 1832, the Peers had persisted in reject- ingreform, they would not have gained the verdict of posterity in their favour, by the mere plea that the House of Lords, if it had ruined the nation, had not broken a single legal precedent: and no one now cares to debate whether the founders of the American Republic were or were not justified by the doctrines of constitutional jurisprudence in holding taxation to be tyranny. Within certain limits, therefore, the ordinary feeling that at the present stage of the contest in Ame- rica pleadings for or against the right of secession savour rather of lawyer-like pedantry.than statesman-like philosophy, is well-founded. If the Southern leaders own they are revolutionists and rebels let them be tried by the tests applied to all other leaders in revolution. In such a case the inquiry must be, not are their acts constitutional, but can they be defended by considerations of justice and of utility ? But the position of ordinary rebels is exactly the one which the friends of secession have been reluctant to claim for their clients. These advocates have employed two not over consistent lines of defence. One form of apology assumes that Jefferson Davis is as much a rebel as was Washington; another, that when levying war against the Union he acts as legal a part as Hampden when re- fusing to pay ship-money. The latter has been the favourite form of argument with his English advocates, and the reason for the choice is easily detected. Technical pleas have great weight with a people specially prone to narrow great questions down to small issues, and which throughout its history has applied to constitutional rights the refinements of law, and based law itself rather on precedent than on principle. But something more was gained by the course pursued than mere coincidence with English habits of thought. It was a special object with those who pleaded the cause of the South not to bring into prominence the ultimate grounds of secession. Most revolu- tionists rather wish in urging their case to get free from the entangle- ments of legal argument. Neither Mansini nor Garibaldi would desire (even were it in their power) to show that the revolt of Italy could be defended by constitutional maxims. They are, if anything, too ready to rely on general considerations of abstract justice, and to point out that the true apology for their acts is to be found in the intolerable wrongs endured by their country. Not so the heroes of secession. Almost every plea which they could advance in common with other revolutionists would sooner or later bring into promi- nence the question of slavery. Those who had to address an English audience knew that this point must be kept in the background. The wisest plan, therefore, was to take their stand upon technical rights, and to strive to prove, not so much that Secessionists were justified in rebellion as that they were not rebels. This policy exactly suited those who in England, either from hatred to democracy, • American Disunion. By C. E. Rawlins. Robert Hardwick*. The American Union. Chapter 6.—J. Spence. Austin's Juritprudessce.
or from love of cotton, wished well to the Confederacy. If secession were a constitutional right there was some chance that the country might examine no further into the designs or character of the Southern leaders, but content with the assurance that the American constitution was not broken, hold foreigners freed from the duty of inquiring into the policy of men who kept within the laws of their own nation. When, therefore, the question whether secession is constitutional is urged on the 'wearied attention of the public, fairness requires them to recollect that it is Secessionists who started the inquiry, and that the judicious friends of the North, when they argue that secession is treason, do not, of course mean to imply that the mere fact that Mr. Davis is a rebel proves of itself that he is not a patriot, but that it does force him to defend his conduct on the same pleas by which other insurgents have defended theirs, and not to avoid in- quiries into character by putting his accusers out of court on a legal quibble.
There is, therefore, good cause why Mr. Rawlins should reopen a discussion which, under any other circumstances, would have been barred by lapse of time. His rejoinder to Mr. Spence is not, perhaps, the best which could have been made. He is in the position of a man of plain sense who replies to the speech of a trained advocate, and though in the right, is by no means sure of gaining the jury's verdict. His statements are not very clearly arranged, and their force, and even meaning, is not always apparent till put side by side with the alle- gations they are meant to contradict. Nevertheless, a sensible speaker, who keeps steadily hold of the facts to which he wishes to call attention, can often overthrow the ingenious efforts of the most wordy advocacy. As long as a practised orator flows on with unbroken fluency and assurance, his audience neither doubt his asser- tions nor scan critically the cogency of his arguments ; but when his plain-spoken rival shows that here a fact is misstated, there a 'quo- tation curtailed, or a conclusion scarcely proved, hearers begin to suspect the speaker whom they admired, and look for themselves into the truth of his allegations and weight of his reasons. Many persons will probably rea Mr. Rawlins without obtaining a perfect conviction that Mr. Spence has lost his case, but no one who has once perused the "American Disunion" will ever again read Mr. Spence's work with unsuspecting confidence. Thus when Mr. Spence, to take one of many examples, alleges that the term National Government, which appeared in what lie, with a slight inaccuracy, terms the first draft of the constitution, was struck out in the Convention, because "opposed to the intentions of the parties," guileless students think a great point has been made against the views of the Federal Govern- ment. But this impression is diminished when Mr. Rawlins states the simple fact that the omission of these words was occasioned by an alteration in the form of the sentence in which they were meant to be introduced, and that in the resolutions referred to the term "national" is applied twelve times to the judicial and legislative de- partments, whilst the very expression 'National Government," alleged to have been avoided-, is itself used twice. Such inaccuracies, leaning always to one side, are constantly pointed out by Mr. Spence's assailant. Madison is by a judicious curtailment made to express an opinion very nearly the opposite to that he entertained, and general references to various authorities enlist names on Mr. Spence's side which, when the reference is carefully examined, favour quite as much the views of his opponents as his own. We might, had we the space, go through the various quotations and arguments to which strong objections might be taken, but we prefer to examine carefully the opinions of one man whom Mr. Spence has by implication at least summoned as a witness in his favour. Mr. Austin speaks with an authority greater, perhaps, than that pos- sessed by any living jurist. The beautiful accuracy of his language and thought gives his words a significance out of comparison greater than that which can be attached to the opinions either of Mr. Motley or Mr. Spence. Writing, moreover, on the Constitution of America in 1832, when there were no circumstances, such as those which now bias the minds of even the most candid judges, his verdict on the !question at present in debate comes from the dead like the voice of judicial wisdom. In an elaborate disquisition on the nature of sovereignty, he has analyzed the constitution of the American Union, and his writings, whilst they expose some flaws in the ordinary arguments both of Federalists and Confederates, give, in our judg- ment, the death-blow to the theory that secession is constitutional. Mr. Spence knows what is gained by a great name, and refers, as it were casually, to Mr. Austin, who, as he says, and with truth, terms the Government of America a "subject minister." No more is said, and not a doubt would occur to the reader that the greatest of English writers on law favoured the heresies of Seces- sionists. In such a case we must do for our readers what Mr. Spence has not done for his, and let them hear Mr. Austin's own words. It should, however, be explained that the whole gist of his argument, unhappily too long for quotation, tends to show that the Government of America is different in kind from an ordinary Con- federacy, such, for example, as the Confederation of Germany or of Switzerland, as they existed in 1832; that it is, in his terms, "a composite state," not "a system of confederated states." "I be- lieve," he writes, "that the common Government, or the Govern- ment consisting of the Congress and the President of the United States, is merely a subject minister of the United States Govern- ments. I believe that none of the latter is properly supreme, even in the State or political society of which it is the immediate chief. And, lastly, I believe that the sovereignty of each of the States re- sides in the States' Governments, as forming one aggregate body; meaning by a State's Government, not its ordinary legislature, but the body of its citizens, which Ipoints its ordinary legialature, aud * Modern Love and Poenu of the English Roadside; with Poems and Ballads.
which, the Union apart, is proper y sovereign therein."
This passage goes to the root of the whole matter. Whoever reads the chapter of which it forms part will find a solution for more than one problem. Federalists occasionally represent Congress LS supreme. Confederates advance in their defence the doctrine of States sove- reignty. Mr. Austin shows that each view is incorrect. The ultimate sovereign of the-American Union is the body of States as forming one aggregate, convoked in the manner which the constitution prescribes. This body, and this alone, has power legally to sever the Union or to override the rights left to the States. Against its majesty the Con- federate leaders have rebelled. Whether their rebellion is or is not justifiable is another question, but no proof of what needed no demonstration—that Congress was not all-powerful—enables them to plead that they are exercising constitutional rights. The proof of their rebellion is probably now of little conqequence to them. Both parties in America will be equally forced to revolutionary measures, and the most salutary as well ag the most unconstitutional act of Congress would be to proclaim its own omnipotence. But their defenders will suffer in public estimation by having grounded a defence upon bad law. Mr. Spence has been called a judge when certainly no more than an advocate, and when open to. the grave suspicion of that lowest kind of advocacy which condescends to garble authorities.
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