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Secession an open question in 1861.

Remember, furthermore, that secession was an open question in 1861. No statute had ever declared, no executive had ever proclaimed, no court had held, it to be unconstitutional. The States had declared themselves to be free and independent. American sovereignty was hydra-headed, and each State had its own statute, defining and punishing treason against itself. No man could have an independent citizenship of the United States, but could only acquire citizenship of the federation by virtue of citizenship of one of the States. The eminent domain of the soil remained in the State, and to it escheated the property of the intestate and heirless dead. Was not this the sovereign that ‘had the right to command in the last resort’?

Tucker had so taught in his commentaries on Blackstone, writing [146] from old Williamsburg; so Francis Rawle, the eminent lawyer whom Washington had asked to be Attorney-General, writing on the Constitution, in Philadelphia; and so DeTocqueville, the most acute and profound foreign writer on American institutions.

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