[150]
Chapter 12:
- Coercion the alternative to secession -- repudiation of it by the Constitution and the fathers of the Constitutional era -- difference between Webster and Hamilton.
The alternative to secession is coercion. That is to say, if no such right as that of secession exists—if it is forbidden or precluded by the Constitution—then it is a wrong; by a well settled principle of public law, for every wrong there must be a remedy, which in this case must be the application of force to the state attempting to withdraw from the Union. Early in the session of the convention which formed the Constitution, it was proposed to confer upon Congress the power “to call forth the force of the Union against any member of the Union failing to fulfill its duty under the articles thereof.” When this proposition came to be considered, Madison observed that “a union of the States containing such an ingredient seemed to provide for its own destruction. The use of force against a State would look more like a declaration of war than an infliction of punishment, and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound. He hoped that such a system would be framed as might render this recourse unnecessary, and moved that the clause be postponed.” This motion was adopted nem. con., and the proposition was never again revived.1 Again on a subsequent occasion, speaking of an appeal to force, Madison said: “Was such a remedy eligible? Was it practicable? . . . Any government for the United States, formed on the supposed practicability of using force against the unconstitutional proceedings of the States, would prove as visionary and fallacious as the government of Congress.”2 Every proposition looking in any way to the same or a similar object was promptly rejected by the convention. George Mason of Virginia said of such a proposition: “Will not the citizens of the invaded State assist one another, until they rise as one man and shake off the Union altogether?”3 Oliver Ellsworth, in the ratifying convention of Connecticut, said: “This Constitution does not attempt to coerce sovereign bodies, States, in their political capacity. No coercion is applicable to such bodies but that of an armed force. If we should attempt to execute the laws of the Union by sending an armed force against a delinquent State, it would [151] involve the good and bad, the innocent and guilty, in the same calamity.”4 Hamilton, in the convention of New York, said: “To coerce the States is one of the maddest projects that was ever devised. . . . What picture does this idea present to our view? A complying State at war with a non-complying State: Congress marching the troops of one State into the bosom of another: . . . Here is a nation at war with itself. Can any reasonable man be well disposed toward a government which makes war and carnage the only means of supporting itself—a government that can exist only by the sword? . . . But can we believe that one State will ever suffer itself to be used as an instrument of coercion? The thing is a dream—it is impossible.”5 Unhappily, our generation has seen that, in the decay of the principles and feelings which animated the hearts of all patriots in that day, this thing, like many others then regarded as impossible dreams, has been only too feasible, and that states have permitted themselves to be used as instruments, not merely for the coercion, but for the destruction of the freedom and independence of their sister states. Edmund Randolph, governor of Virginia, although the mover of the original proposition to authorize the employment of the forces of the Union against a delinquent member, which had been so signally defeated in the federal convention, afterward, in the Virginia convention, made an eloquent protest against the idea of the employment of force against a state. “What species of military coercion,” said he, “could the General Government adopt for the enforcement of obedience to its demands? Either an army sent into the heart of a delinquent State, or blocking up its ports. Have we lived to this, then, that, in order to suppress and exclude tyranny, it is necessary to render the most affectionate friends the most bitter enemies, set the father against the son, and make the brother slay the brother? Is this the happy expedient that is to preserve liberty? Will it not destroy it? If an army be once introduced to force us, if once marched into Virginia, figure to yourselves what the dreadful consequence will be: the most lamentable civil war must ensue.”6 We have seen already how vehemently the idea of even judicial coercion was repudiated by Hamilton, Marshall, and others. The suggestion of military coercion was uniformly treated, as in the above extracts, with still more abhorrence. No principle was more fully and finally settled on the highest authority than that, under our system, there could be no coercion of a state. [152] Webster, in his elaborate speech of February 16, 1833, arguing throughout against the sovereignty of the states, and in the course of his argument sadly confounding the ideas of the federal Constitution and the federal government, as he confounds the sovereign people of the states with the state governments, says: “The States can not omit to appoint Senators and electors. It is not a matter resting in State discretion or State pleasure. .. . No member of a State Legislature can refuse to proceed, at the proper time, to elect Senators to Congress, or to provide for the choice of electors of President and Vice-President, any more than the members can refuse, when the appointed day arrives, to meet the members of the other House, to count the votes for those officers and ascertain who are chosen.”7 This was before the invention in 1877 of an electoral commission to relieve Congress of its constitutional duty to count the vote. Hamilton, on the contrary, fresh from the work of forming the Constitution, and familiar with its principles and purposes, said: “It is certainly true that the State Legislatures, by forbearing the appointment of Senators, may destroy the national Government.”8 It is unnecessary to discuss the particular question on which these two great authorities are thus directly at issue. I do not contend that the state legislatures, of their own will, have a right to forego the performance of any federal duty imposed upon them by the Constitution. But there is a power beyond and above that of either the federal or state governments—the power of the people of the state, who ordained and established the Constitution, as far as it applies to themselves, reserving, as I think has been demonstrated, the right to reassume the grants of power therein made, when they deem it necessary for their safety or welfare to do so. At the behest of this power, it certainly becomes not only the right, but the duty, of their state legislature to refrain from any action implying adherence to the Union, or partnership, from which the sovereign has withdrawn.
