Legal justification of the South in secession.2]
|J. L. M. Curry|
Legal justification of the South in secession.the Southern States have shared the fate of all conquered peoples. The conquerors write their history. Power in the ascendant not only makes laws, but controls public opinion. This precedent should make the late Confederates the more anxious to keep before the public the facts of their history, that impartial writers may weigh and properly estimate them in making up the verdict of an unbiased posterity. Besides, as they have been the objects of persistent misrepresentation, and authentic records have been perverted to their prejudice, their descendants are liable to receive and hold opinions hostile and derogatory to their fathers. In this series of volumes, pertaining to the history of the Confederate States, all concerned wish to disclaim in advance any wish or purpose to reverse the arbitrament of war, to repeal the late amendments to the Constitution, to revive African slavery, or secession as a State right or remedy; or to organize any party, or cultivate an opinion, which, directly or indirectly, shall inculcate disloyalty to the Union, or affect the allegiance of citizens to the Federal government. Let it be stated, once for all, that this argument as to the right of the South to be protected in property in slaves and the exclusive right of a State to be the final judge of the powers of the general government and to apply suitable remedies, is based on the Constitution and the rights of the  States as they existed in 1860.1 The amendments made, since that year, in Federal and State constitutions, put an entirely new and different phase on the subjects discussed, for these changes have expurgated slavery and secession from our institutions. Our sole object is to present the Southern side of the controversy as it existed in 1860 and to vindicate it from accusations and aspersions which are based on ignorance and injustice. As the South is habitually condemned and held criminal for seeking to perpetuate a great wrong, it is well to inquire and investigate who was responsible for the state of things which precipitated and prolonged the crisis of 1860-1865. If the act of secession cannot be justified the Southern people will be stigmatized as a brave and rash people deluded by bad men who attempted in an illegal and wicked manner to overthrow the Union. Painfully are we conscious of the disadvantages in any effort to vindicate the motives and principles and conduct of the Southern States and secure a rehearing and readjudication of a suit which seems to have been settled adversely by the tribunal of public opinion. We have a right to ask of our fellow citizens and of the world a patient and fair hearing while we present anew the grounds of our action. We challenge the closest scrutiny of facts and arguments, and if they cannot be disproved and refuted, justice and honesty demand a modification or reversal of the adverse judgment. Few writers seem to comprehend the underlying idea of secession, or the reasons for the establishment of the Southern Confederacy. Swayed by passion or political and sectional animosity, they ignore the primary facts in our origin as a government, the true principles of the Constitution, the flagrant nullifications of the Northern States; and, when they philosophize, conclusions are drawn from false premises and hence injustice is done. Too often, in the endeavor to narrate the deeds of and since the war, prejudiced and  vicious statements as to character and motives have been accepted and acted on as verifiable or undeniable facts. In deciding upon the rightness or wrongness of secession, in passing judgment upon the Confederate States, it is essential to proper conclusions that the condition of affairs in 1860 be understood and that clear and accurate notions be had of the nature and character of the Federal government and of the rights of the States under the constitutional compact. And here, at the threshold, one is confronted by dogmas which are substituted for principles, by preconceived opinions which are claimed to be historical verities, and by sentimentality which closes the avenues to the mind against logic and demonstration. To a student of our political and constitutional history it is strange how stubborn historical facts are quietly set aside and inferences and assumptions are used as postulates for huge governmental theories. These errors are studiously perpetuated, for in prescribed courses of reading in civics and history are books full of grossest misstatements teaching sectional opinions and latitudinous theories, while works which present opposite and sounder views are vigorously excluded. State rights is perhaps the best term, although not precise or definite in its signification, for suggesting the view of the Constitution and of Federal powers, as held by the Southern States. During the administration of General Washington, those who were in favor of protecting the reserved rights of the States against threatened or possible encroachment of the delegated powers assumed the name of the Republican party, but were often called the State Rights party.2 There is no ultimate nor authoritative appeal  for determining the political differences between the North and South except the Constitution, but some preliminary inquiries, answers to which will be suggestive and argumentative, may aid in understanding and interpreting that instrument. Our Constitution is not a mere temporary expedient. It exists in full force until changed by an explicit and authentic act, as prescribed by the instrument, and in its essential features is for all time, for it contains the fundamental principles of all good government, of all free representative institutions. Among these requisites, unalterable by changing conditions of society, are individual liberty, freedom of labor, of human development, rights of conscience, equality of the States, distribution of political powers into independent executive, legislative and judicial departments, and a careful restriction of those powers to public uses only, the healthy action of concurrent majorities, a careful safe-guarding that the power which makes the laws and the power which applies them shall not be in the same hands, and local self-government. The people are ultimately the source of all political power, and the powers delegated are in trust, alterable or terminable only in a legitimate and prescribed manner. Changes cannot be made to conform to a supposed moral sense, or to new environments, neither by the ‘fierce democracy,’ nor by the action of a department, nor by a combination of all departments. To obtain a correct comprehension of the dignity and power of the States it is well to consider them as they emerged from their colonial condition, having waged a tedious and successful war against the mother country, having achieved separate independence and established a  new form of government, a federal union of concurrent majorities, under a written constitution. The American colonies have not had sufficient importance ascribed to them for their agency in achieving civil and religious liberty; and, with their rights and powers as separate governments, as the potential forerunners of our constitutional, representative, federal republic. The institutions founded in this western world, in the essential elements of law and freedom, were far in advance of contemporary transatlantic institutions. The relations they sustained to one another and to the controlling English government, their large measure of local administration, must be clearly comprehended to do them justice for what they wrought out and to understand what character and power they preserved as States in the government of their creation under the Federal constitution. Their precise political condition prior to the Revolution cannot be obscured. The colonies were separate in the regulation of domestic concerns, in home affairs, but sustained a common relation to the British empire. The colonists were fellow subjects, owed allegiance to the same crown, had all the rights, privileges and liabilities of every other British subject.3 The inhabitants of one colony owed no obedience to the laws, were not under the jurisdiction of any other colony; were under no civil obligation to bear arms or pay taxes, or in any wise to contribute to the support or defense of another, and were wholly distinct and separate from all others in political functions, in political rights, and in political duties. In so far as all the colonists were one people and had common rights, it was the result of their mutual relation to the same sovereign, of common dependence on the same head, and not any result of a relation between themselves.  There was neither alliance nor confederacy between the colonies. When hostilities between Great Britain and the colonies became imminent, because of adverse imperial legislation and the unlimited claim of the right of taxation, and united effort was obvious and imperative, to relieve themselves from the burdens and injustice of the laws and the claims of a distant government, the colonies, each acting for itself, and not conjointly with any other, sent deputies to a general congress, and when the body assembled each colony had a single vote, and on all questions of general concern they asserted and retained their equality. The Congresses of 1774, 1775 and 1776 were occasional and not permanent bodies, claimed no sovereign authority, had no true governmental powers, and seldom assumed to go beyond deliberation, advice and recommendation. When under stress of war and the danger of or impossibility of delay they acted as a de facto government, their acts were valid, had the force and effect of law only by subsequent confirmation or tacit acquiescence. The common oppressions and dangers were strong incentives to concert of action and to assent and submission to what was done for resistance to a common enemy. There never was any pretense of authority to act on individuals, and in all acts reference was had to the colonies, and never to the people, individually or as a nation. Virginia made a declaration on the 12th of June, 1776, renouncing her colonial dependence on Great Britain and separating herself forever from that kingdom. On the 29th of June, in the same year, she performed the highest function of independent sovereignty by adopting and ordaining a constitution, prescribing an oath of fealty and allegiance for all who might hold office under her authority, and that remained as the organic law of the Old Dominion until 1829. The Declaration of Independence, subsequently on the  4th of July, was an act of Congress declaring absolution of the colonies from allegiance to the crown and government of Great Britain and that they were ‘free and independent States.’ The Congress which made this Declaration was appointed by the colonies in their separate and distinct capacity. They voted on its adoption in their separate character, each giving one vote by all its own representatives who acted in strict obedience to specific instructions from their respective colonies, and the members signed the Declaration in that way. The members had authority to act in the name of their own colony and not of any other, and were representatives only of the colony which appointed them. Judge Story, in his ‘Commentaries on the Constitution,’ reasons upon this instrument as having the effect of making the colonies ‘one people,’ merging their existence as separate communities into one nation. The Declaration of Independence is often quoted as an authoritative political document defining political rights and duties, as on a parity with the Constitution, and as binding parties and people and courts and States by its utterances. The platform of the Republican party in 1856 and 1860 affirms the principles of this Declaration to be essential to the preservation of our republican institutions, the Constitution and the rights of the States, when, in truth and in fact, its main and almost its sole object was to declare and justify the separation from, and the independence of, the British crown. In no sense was the paper or the act intended as a bill of rights, or to enunciate the fundamental principles of a republic, or to define the status of the colonies, except in their relation to the mother country. No true American will underrate the significance or the importance of the act of separation from a foreign empire, or hold otherwise than with the highest respect the reasons which our fathers gave in vindication of their momentous and courageous action. Refusing to be subject to the authority of the crown and  the parliament was a heroic undertaking dictated by the loftiest patriotism and a genuine love of liberty. Putting into the minds and hearts of our ancestors more far reaching and prescient purposes than they possessed will not magnify their virtues nor enhance their merit. They met the issues presented with the sagacity of statesmen and were not guilty of the folly of propagandism of the French revolutionists, a few years later. The colonies being distinct and separate communities, with sovereignty vested in the British crown, when the tie which bound them to that sovereignty was severed, upon each colony respectively was devolved that sovereignty and each emerged from provincial dependence into an independent and sovereign State. A conclusive proof of the relation of the colonies to one another and to the revolutionary government is to be found in the recommendation in 1776 for the passing of laws for the punishment of treason, and it was declared that the crime should be considered as committed against the colonies individually and not against them all as united together. The joint expression of separate wills in reference to continued union with England expressed no opinion and suggested no action on the subject of a common government, or of forming a closer union. It completed the severance of the rapidly disuniting ties which bound to the government across the seas. Some of the colonies, prior to the 4th of July, had declared their independence and established State constitutions, and now all, by a more public and stronger and more effective affirmation, united in doing what had by some been separately resolved upon. Ceasing to be dependent communities involved no change in relations with one another beyond what was necessarily incident to separation from the parent country. The supremacy which had previously existed in Great Britain, separately over each colony and not jointly over all, having ceased, each became a free and independent State, taking to herself  what applied to and over herself. The Declaration of Independence is not a form of government, not an enumeration of popular rights, not a compact between States, but was recognized in its fullest demands, when, in 1782, Great Britain acknowledged New Hampshire, Massachusetts, New York, South Carolina, Georgia and the other colonies to be ‘free, sovereign and independent States.’ Stress is laid on the revolutionary government and on the Declaration of Independence by those who are anxious to establish the theory of a national or consolidated government, reducing the States to mere dependencies upon central power. As has been shown, the contention, derived from those sources, is without legal or historical foundation; but the temporary government, largely for war purposes, was superseded by the Articles of Confederation, which, because of the reluctance of the States to delegate their powers, did not become obligatory until 1781, as their ratification by all the States was a condition precedent to their having any binding force. These articles, in explicit terms, incapable of misinterpretation, declare that ‘each State retains its sovereignty, freedom and independence and every power, jurisdiction and right, which is not by this confederation expressly delegated to the United States in Congress assembled.’ There can be no mistake here as to the reservation of entire freedom, entire independence, entire sovereignty. These were retained without qualification or limitation, and the use of the word ‘retains’ is the clearest assertion that these unsurrendered prerogatives were possessed under the previous government. This historical review was not necessary except argumentatively as throwing light on the real facts, and as raising the strong presumption, to be rebutted only by irrefragable proof, that a state once sovereign has not voluntarily surrendered that ultimate supreme power of self-government or self-existence. While in a colonial  condition the people of the several States were in no proper political sense a nation, or ‘one people;’ by the declaration and the treaty of peace each State became a complete sovereignty within its own limits; the revolutionary government was a government of the States as such through Congress as the common agent, and by the Articles of Confederation each state expressly reserved its entire sovereignty and independence. In all this succession of history there was no trend to consolidation and the most conspicuous; feature was the jealous retention by the States of their separate sovereignty.
Equality and sovereignty of the States.In forming the Constitution of the United States, from whose ratification our ‘more perfect union’ resulted. did the States surrender their equality and sovereignty and transfer to a central government the powers and rights which in all previous history had been so carefully maintained? This is the crucial question determining the right of the Southern States in 1860 and 1861 to secede from the Union and to establish for their own defense and welfare a new federal union. Obviously this question should be approached and considered and decided. not by prejudice, or passion or sectionalism, or interest, or expediency, or wishes of men; but by the Constitution, in its proper meaning as to rights and powers delegated and rights and powers reserved. Whether secession was wise or unwise, expedient or inexpedient, approved or disapproved by a majority of the States, or of the inhabitants, has no relevancy, nothing whatever to do with this discussion. The naked matter is one of right. Was there a supremacy in Congress, or in any other department of the government of the Union, or did the States assert and retain their sovereignty, as against the world? The States were not created by the government of the  Union, but antedated and created that organism. Our systems of government are singularly complex and hence unintelligible to many foreigners. There are two divisions of power—that between the people and their governments, and that between the State governments and the government of the Union. The system is compounded of the separate governments of the several States and the one common government of all the members of the Union, called the government of the United States. Each was formed by written constitutions; those of the several States by the people of each acting separately and in their sovereign character, and that of the United States by the same, acting in the same character. but jointly and in concert instead of separately. Both governments derive their power from the same source and were ordained and established by the same authority. These governments are co-ordinate and there is a subordination of both to the people of the respective states. Limited rights are delegated by the people to their governments, or trustees, and all the residue of the attributes of sovereignty are retained. The division of the powers into such as are delegated specifically to the common and joint government of all the States, to be exercised for the benefit and safety of each and all; and the reservation of all to the States respectively, to be exercised through the separate governments, is what makes ours a system of governments. Taking all the parts together, the people of forty-four independent and sovereign States, confederated by a solemn constitutional compact into one great federal community, with a system of government, in all of which powers are separated into the great primary divisions of the constitution-making and the law-making powers; those of the latter class being divided between the common and joint government of all the States, and the separate and local governments of each State respectively; and finally the powers of both distributed among three separate and independent departments—legislative,  executive and judicial—present, in the whole, a political system as remarkable for its grandeur as it is for its novelty and refinement of organization. （Calhoun's Works, 112, 113, 199.) Under the English form of government, this division with limitations is unknown and parliament is supreme. Madison, in the Federalist, says: ‘The Federal and State governments are, in fact, but different agents and trustees of the people, instituted with different powers and designed for different purposes.’ Hamilton says: ‘In the compound republics of America, the power surrendered by the people is first divided between two distinct governments, and the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other at the same time that each will be controlled by itself.’ The Union is not the primary social or political relation of those who formed it. The State governments were already organized and were adequate to all the purposes of their municipal concerns. The Federal government was established only for such purposes as the State governments and the confederation could not sufficiently answer, namely, the common purpose of all the States. The people of the States, not as a unit, not in the aggregate, but separately, hold in themselves all governmental power. One portion they granted to the State governments; another to the government of the Union, and the residue they retained undelegated in themselves. The grants were in trust for their benefit, and created the division of political power between the Federal and the State governments, which division constitutes the gist and sum total of the controversy between the government at Washington and the seceding States. During and soon after a war waged for eight years to resist a claim to legislate for them locally and internally, inferred from parliamentary supremacy, the colonies or  states constructed two unions and established in both a division of power bearing a strong similitude to that upon which they were willing to have continued their union with England; namely: yielding to her the regulation of war, peace, and commerce, and retaining for themselves local and internal legislation. The first union ‘retains’ to the States the sovereignty and rights not delegated to the United States; the second ‘reserves’ to the States the powers not delegated to the United States. The first confers upon Congress almost all the powers of importance bestowed by the second, except that of regulating commerce, the second only extends the means for executing the same powers by bestowing on Congress a limited power of taxation; but these means were by neither intended to supersede nor defeat those ends retained or reserved by both. By the first, unlimited requisitions to meet ‘the charges of war and all other expenses for the common defense and general welfare’ were to be made by Congress upon the States. By the second, Congress is empowered to lay taxes, under certain restrictions, to ‘provide for the common defense and general welfare.’ A sovereign or absolute right to dispose of these requisitions or taxes without any restriction is not given to Congress by either. The general terms used in both are almost literally the same and, therefore, they must have been used in both under the same impression of their import and effect. （Taylor's Construction Construed, 55.) An obiter dictum of Justice Miller, of the Supreme court, gives point to the value of restrictions and of enforcing them. ‘To lay with one hand the power of the government on the property of the citizen, and with the other to bestow it upon favored individuals to aid private enterprises and build up private fortunes is none the less a robbery because it is done under the favor of the law.’
The Constitution made by States.As everything in this discussion depends on the Constitution it seems prudent to state with some particularity its origin, its establishment and its terms. The confederation was found to be inadequate to the ends of an effective government. The states adopted conflicting and even hostile commercial regulations and trade suffered from these embarrassments. The legislature of Virginia, impressed with the necessity of a government of larger powers, appointed in 1786 commissioners to meet commissioners from other States, at Annapolis, to prepare for adoption by the States a uniform plan of commercial regulations. Some met and recommended to their respective legislatures to appoint delegates to meet in general convention at Philadelphia for the purpose of reforming the government as the interests of the States might require. Congress approved the recommendation and suggested a convention of delegates to be appointed by the several States to meet in Philadelphia and to report to Congress and the several legislatures such alteration of the Articles of Confederation as shall, when agreed to in Congress and confirmed by the States, render the federal constitution adequate to the exigencies of government and the preservation of the Union. Accordingly, the convention was composed of deputies appointed by the States, and they voted as States. Madison, in recording their action, on agreeing to the Constitution, says: ‘It passes in the affirmative, all the States concurring.’ It was transmitted to the several State legislatures to be by them submitted to State conventions and each State for itself ratified at different times, without concert of action, except in the result to be ascertained. As the jurisdiction of a State was limited to its own territory, its ratification was limited to its own people. The Constitution got its validity, its vitality, not from the inhabitants as constituting one great nation, nor from the people of all the States considered as one people,  but from the concurrent action of a prescribed number of States, each acting separately and pretending to no claim or right to act for or control other States. That each of these States had the right to decline to ratify and remain out of the Union for all time to come, no sane man will deny. Rhode Island and North Carolina did, in the undoubted exercise of an undisputed right, refuse to enter the compact until after the government was organized and Washington entered upon his duties as president. ‘The assent and ratification of the people,’ says Madison, ‘not as individuals composing an entire nation, but as composing the distinct and independent States to which they belong, are the sources of the Constitution. It is, therefore, not a national but a federal compact.’ Virginia, in her ratification as a distinct, sovereign community, had said: ‘The delegates do, in the name and in behalf of the people of Virginia, declare and make known that the powers granted under the Constitution, being derived from the people of the United States, may be resumed by them whensoever the same shall be perverted to their injury or oppression, and that every power not granted thereby remains with them and at their will.’ （5 Bulletin of the Bureau of Rolls, 145.) Calhoun's Works, 248-251. Maryland declared that nothing in the Constitution ‘warrants a construction that the States do not retain every power not expressly relinquished by them and vested in the general government of the Union.’ New York more explicitly said: ‘That the powers of government may be reassumed by the people whenever it should become necessary to their happiness, that every power, jurisdiction and right which is not by the said Constitution clearly delegated to the Congress of the United States or the departments of the government thereof, remains to the people of the several States, or to their respective State governments, to whom they may have granted the same; and that those clauses in the  said Constitution, which declare that Congress shall not have or exercise certain powers, do not imply that Congress is entitled to any powers not given by the said Constitution; but such clauses are to be construed either as exceptions to certain specified powers or as inserted merely for greater caution.’ Rhode Island lingered until 1790, and then adopted the cautious phraseology of New York, specifying certain rights and declaring that they shall not be abridged or violated and that the proposed amendments would speedily become a part of the Constitution, gave her assent to the compact, but declared that ‘the powers of government may be reassumed by the people, whenever it shall become necessary to their happiness.’ （5 Bureau of Rolls, 140-145, 190, 191, 311.) Other States showed equal concern and jealousy. Besides the clear assertion on the part of ratifying States of the right to reassume delegated powers, a larger number were so apprehensive and distrustful of federal encroachment, so jealous in the maintenance of their respective rights, that they attached bills of rights to their assent, or proposed amendments to restrict the general government; the incorporation of which into the Constitution was earnestly insisted upon. It has now been demonstrated that with jealous vigilance the States retained their separateness as sovereign communities in all the forms of political existence through which they passed. That they adopted their separate State constitutions in their sovereign character is indisputable. That the deputies who framed the federal constitution were appointed by the several States each on its own authority; that they voted in the convention by States; that their votes were counted by States; that when framed the instrument was submitted to the people of the several States for their independent ratification; that the States ratified and adopted, each for itself, as distinct sovereign communities; that the Constitution had no binding force over a State or its citizens  except in consequence of this adoption; that it was valid as a covenant of union, the federal compact, only as between the States so ratifying the same; are facts alike incontestable. All these acts were by the States and for the States, without any participation on the part of the people regarded in the aggregate as forming a nation. Our controversy arose, not so much from these historical incidents (although historians, judges, editors and congressmen have denied or misinterpreted them all) as from the import and effect and construction of the agreement so formally and cautiously made. Did the act of ratification of itself, or does the Constitution in its grants, divest the States of their character as separate political communities and merge them all into one nation, one American people? The Constitution superseded the Articles of Confederation because the parties to those articles agreed that it should be so. If they have not so agreed, the articles are still binding on the States. In point of fact the Constitution did become obligatory as a compact of government by the voluntary and separate ratification and adoption of the several states. Massachusetts and New Hampshire, in their ratification, call the Constitution a compact, and the federal Union must be so, or the result of a compact, because sovereign States would not otherwise have agreed and expressed their agreement. Some made provisos, others suggested amendments, which make plain the intention of the fathers in entering the Union. The apprehensions of consolidation were so strong that to guard against such a possible evil, provisions to prevent were incorporated in the acts of assent. The right to resume surrendered powers, as affirmed by three of the States, has been mentioned. Massachusetts, South Carolina, New Hampshire and Virginia were so alarmed at the liability to absorption of unsurrendered powers, that they proposed an amendment to the effect that each State shall respectively retain every power, jurisdiction  and right which had not been delegated in the Constitution. This was modified and adopted in regular constitutional form and is known as the Ninth article. All the suggestions were in the nature of limitations and restrictions, showing distrust of centralization and a determined purpose to preserve from invasion or impairment the rights of the States. It was felt that time and experience would show the wisdom of changes and of adaptations to new environments, and thus it was wisely provided that amendments might be made but should be valid only ‘when ratified by the legislatures of three-fourths of the several States, or by conventions in three-fourths thereof.’ As the States only could make a constitution, so three-fourths of them, as separate political corporations, could amend the instrument. The favorite theory of many, that the States were merged into the government of the Union, into an aggregated unit, is an assumption totally irreconcilable with the fact that this same people can neither alter nor amend their government. When that essential function has to be performed, it is indispensable to summon into new life and activity those very State sovereignties, which, by the supposition, lost their individual power and vitality by the very act creating the instrument which they are required to amend. Had the Constitution originated from the people inhabiting the territories of the whole Union, its amendment would have remained to them, as the amendment of a State constitution belongs to the people of a State. But as such a body of associated people is a myth, a figment of the brain, the power of amendment is left in the hands of the existing bodies politic, the creators of the Constitution and of the Union. The positive supervising power bestowed by the compact upon the State governments and the people over the whole Federal government flatly contradicts the idea that the same compact designed constructively  to bestow a supervising power upon Congress, or other department, over the State governments. The government was organized in 1789 and assumed its place among the nations of the earth. Soon, amendments proposed by the ratifying States were submitted, as the Constitution prescribed, to the respective States and adopted by them. These amendments have no direct relation to the immediate objects for which the Union was formed, and, with few exceptions, were intended to guard against improper constructions of the Constitution, or the abuse of the delegated powers, or to protect the government itself in the exercise of its proper functions. They sought to guard the people and the States against Federal usurpation, and one of them Jefferson pronounced ‘the corner stone of the Constitution.’ The ninth amendment prohibits a construction by which the rights retained by the people shall be denied or disparaged by the enumeration, but the tenth, in language that tyranny cannot pervert or dispute, ‘reserves to the States respectively or to the people the powers not delegated to the United States, nor prohibited to the States.’ Could any language more conclusively show the ultimate authority of the States, or that the general government has no more right to enforce its decisions against those of the several States where they disagree as to the extent of their respective powers than the latter have of enforcing their decisions in like cases? This reservation was incorporated from a caution deemed unnecessary and excessive by some, because such a reservation is of the very essence and structure of the Constitution, but it has been vindicated as a marked demonstration of the wisdom and sagacity of the fathers. Instead of receiving powers the States had bestowed them, and in confirmation of their original authority most carefully reserved every right they had not relinquished. The powers reserved by those who possessed them, the distinct people of each State, are those  not delegated or prohibited, and were intended to remove a suspicion of a tendency in the Constitution toward consolidation which had been vigorously charged by some of those who had opposed the ratification. It cannot be reiterated too often that the people do not derive their rights from government. In England, Magna Charta and other franchises were granted by kings and residuary rights remain in and with the government; here, ungranted rights remain with the grantors and these are the people of the States.
Relation of States to the Union under the Constitution.We are now prepared to consider the action of the South which rested upon the relation which the States and the Federal government bore to each other. What the South maintained was that the Union, or general government, emanated from the people of the several States, acting in their separate and sovereign capacity, as distinct political communities; that the Constitution being a compact to which each State was a party for the purpose of good government and the protection of life, liberty and property, the several States had the right to judge of infractions of the Constitution, or of the failure of the common government to subserve its covenanted ends, and to interpose by secession or otherwise for protecting the great residuary mass of undelegated powers, and for maintaining within their respective limits the authorities, rights and liberties appertaining to them. The third Virginia resolution of 1798, drawn by Madison, puts this very clearly—‘That this assembly doth explicitly and perempiorily declare that it views the powers of the Federal government as resulting from the compact to which the States and parties, as limited by the plain sense and intention of the instrument constituting that compact; as no further valid than they are authorized by the grants enumerated in the compact; and that  in case of a deliberate, palpable and dangerous exercise of other powers not granted by the said compact, the States, who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits the authorities, rights and liberties appertaining to them.’ The States, in adopting the Constitution and surrendering many attributes of sovereignty, might have surrendered all their powers and even their separate existence. Were they guilty of this felo de se, or did each retain the equal right to judge of the failure of the government to accomplish stipulated objects as well as of the mode and measure of redress, and the means of protecting its citizens? We have held that the obvious and chief purpose of the Constitution was to invest the Federal government with such powers only as equally affected the members of the community called the Union and to leave to the States all remaining powers. The greater part of the powers delegated to the general government relate directly or indirectly to two great divisions of authority; the one pertaining to the foreign relations of the country, the other of an internal character; the purposes for which the Constitution was formed being power, security and respectability without, and peace, tranquillity and harmony within. Mr. Calhoun, in early political life, stated clearly our dual system. The American Union is a democratic federal republic—a political system compounded of the separate governments of the several States and of one common government of all the States, called the government of the United States. The powers of each are sovereign, and neither derives its powers from the other. In their respective spheres neither is subordinate to the other, but co-ordinate; and, being co-ordinate, each has the right of protecting its own powers from the encroachments of the other, the two combined forming one entire and separate government The line of demarkation between  the delegated powers to the Federal government and the powers reserved to the States is plain, inasmuch as all the powers delegated to the general government are expressly laid down, and those not delegated are reserved to the States unless specially prohibited. Much is said and written in praise of the British constitution, but, in large degree, it is intangible and indefinable. It exists in no exact form, except as contained in Magna Charta, Petition of Right and some other muniments of liberty. Elsewhere it is to be searched for in usage, tradition, precedent and public opinion, and chiefly consists in direct parliamentary control of the responsible heads of the great departments of state. Knowing how illusory and deceptive were constitutional guarantees, which existed only in repealable statutes or the varying will of parliament, our ancestors preferred to repose on fixed definitions and asserted rights, embodied in organic law, having more dignity, permanence and sacredness than a mere municipal or statutory regulation. In proportion as power was liable to be abused, it was thought wise to impose and strengthen checks and restraints. If the judgment of the governing body be the only limit to its powers, then there is nothing to control that judgment or to correct its errors. The minority is relegated to the uncertain remedy of rebellion or revolution. Restrictions, however clear and ascertainable, if there be no right or power to enforce, will end in legislative omnipotence which makes useless a written constitution. True liberty demands severe restraints to prevent degeneracy into license and needs a discipline to be compelled by some exterior authority. It is absurd to make one's rights contingent upon the conscience or reason of another. There is but one safe rule to be adopted by those intrusted with ecclesiastical or civil power—if you do not wish to hurt me, put it out of your power to do so. If a government, or a department of a government, can interpret finally its own powers,  or take without hindrance what powers it pleases, then it may as well have had originally all powers, without the mockery of a verbal limitation. Mr. Jefferson deprecated ‘usurpation of the powers retained by the States, interpolations into the compact, and direct infractions of it,’ and as late as 1825, solemnly asserted that though a dissolution of the Union would be a great calamity, submission to a government of unlimited powers would be a greater. Under our written Constitution, the powers of the government were distributed among several co-ordinate departments and instead of being left to be scrambled for were defined with such precision that generally each may ascertain its own, unless blinded by ambition or partisanship or selfishness. The jurisdiction of each is limited to certain enumerated objects, and this division, with checks and balances, was to prevent the evils Jefferson deplored, and which have always attended irresponsible and ill-defined authority. As the written Constitution, with all its superiority to unwritten usage, is not self-executory, the practical and vital question continually arises, who is to guard and enforce its limitations and who is the ultimate arbiter in case of dangerous infractions? The famous Kentucky resolutions of 1798, drawn by Jefferson, affirm that the States composing the Union are not united on the principle of unlimited submission to their general government; that each State, while delegating certain definite powers to that government, reserved the residuary mass of right to their own self-government, and that the government created by the compact to which each State acceded as a State and is an integral party, was not made the exclusive or final judge of the powers delegated to itself, since that would have made its discretion and not the Constitution the measure of its powers. In 1799 he reaffirmed the declaration and added that the principle that the general government was the exclusive judge of the powers delegated to it stopped nothing short of despotism.  The favorite allegation of consolidationists is that the Constitution and the laws made in pursuance thereof are the supreme law of the land. No one questions that statement, but what is the Constitution, what laws are in pursuance thereof? The consequent assumption is that the Supreme court is the safe referee and the final judge. In all questions of a judicial nature of which the court has lawful cognizance, it is the final judge and interpreter, and there is no power in the government to which the court belongs to reverse its decisions or resist its authority, but the jurisdiction of the Federal courts is limited and the Federal judiciary is only a department of the government whose acts are called in question. Numerous instances of usurped powers might occur which the form of the Constitution could never draw within the control of the judicial department. The Supreme court might assume jurisdiction over subjects not allowed by the Constitution and there is no power in the general government to gainsay it. Charles Sumner, associated in the Northern mind with John Brown, as a semi-inspired apostle, spoke in 1854 in lofty scorn of according to the Supreme court the ‘power of fastening such interpretation as they see fit upon any part of the Constitution—adding to it, or subtracting from it, or positively varying its requirements—actually making and unmaking the Constitution; and to their work all good citizens must bow as of equal authority with the original instrument.’ Sometimes the court is divided, the dissenting judges possessing by universal concession the greater wisdom, more legal learning and ability; sometimes, not bound by its own judgment, the court reverses its decisions and stands on both sides of a question. ‘If the court itself be not constrained by its own precedents how can co-ordinate branches under oath to support the Constitution,’ and the creating States, ‘like the court itself, called incidentally to interpret the Constitution, be constrained by them?’ Sometimes to procure a reversal it  is held that the court by action of Congress may hereafter be constituted differently, and we have a memorable precedent of the enlargement of the court and of the appointment of additional justices, whose opinions were well known in advance, in order to secure a reversal of the legal tender decision. Jefferson, in 1820, saw how by the silent and potential influence of judicial interpretation, the government was in great danger, and he wrote to Thomas Ritchie: ‘The judiciary of the United States is the subtle corps of sappers and miners constantly working underground to undermine the foundations of our confederated fabric * * * a judiciary independent of a king or executive alone is a good thing, but independence of the will of the nation is a solecism, at least in a republican government.’ The powers reserved in the tenth amendment are not only reserved against the Fed eral government in whole, but against each department, the judicial as well as the legislative and executive. Otherwise the Federal sphere is supreme and the spheres of the States are subordinate. It cannot be tolerated for a moment that the Supreme court has the right to modify every power inhering in the State governments, or undelegated by the people, so as to exempt its own action from their influence. That would be to concentrate absolute sovereignty in the court. If the Federal government, in its entirety, has no authority in the last resort to judge of the extent of its own powers, how can a single department, even the Supreme court, have this authority? What folly for the States to reserve powers against the Federal government, if that government, in whole or in part, has the ultimate decision as to what was reserved! To the Supreme court all the jurisdiction which properly belongs is cheerfully yielded, but in it no more than in the other departments can be safely reposed the trust of ascertaining, defining or limiting the undelegated powers of the States.  History is said to be constantly repeating itself. This assumption of the Federal government, through all or either of the departments, to decide, ultimately and authoritatively, upon the character and extent of the grants and limitations of the Constitution, upon the powers it possesses, is a claim of absolute sovereignty and is not distinguishable from the unrepublican theory of the Divine Right, as expounded by Filmer and other such writers. Reduced to its real significance, it is practically what was asserted by the ‘Holy Alliance’ of 1815, when certain European sovereigns, under a kind of approved orthodox despotism, assumed the prerogative to perpetuate existing dynasties, to suppress rebellions and revolutions, and to crush out civil and religious liberty. This alliance insisted that governments did not derive their authority or legitimacy from the assent of the people; that all who asserted such political heresies were outlaws and traitors; that constitutions have no legitimate source except absolute power; that governments grant or withhold what they please; that every movement in opposition to the ‘powers that be’ is a monster to be crushed, and that all resistance to oppression is involved in the same anathema, however legitimate or defensible. There are some who see and concede the unreasonableness of making the discretion of a majority in Congress the measure of the powers granted or withheld in the Constitution, and that this nullifies the limitations and guarantees of the compact, and they recognize the necessity of resistance and interposition where reserved rights have been trampled on. Declining to accept the State rights theory, they have, under the stress of the necessity of not leaving wrongs unrighted and guarantees disregarded, suggested that the true remedy is an appeal to the ‘sober second thought’ of the people, or that failing, to a popular uprising to overthrow the offending government. This is the logical fallacy of begging the question. What people? En masse? No such people politically  ever existed. The people who offended? Who will convince them of their error?
When self the wavering balance shakes,Rebellion or revolution assumes that the acts complained of were done by legitimate authority, in due course of procedure, according to valid forms. That is the gist of the question in issue. If successful, rebellion becomes `right; if unsuccessful, it is treason. It is not an appeal to reason, justice, morality, law, but to brute force. It belongs to the slave and is the mere right of selfpreser-vation. It is a travesty on freedom, on constitutions, on civilizations. Might can never make right. It is great only in the service of righteousness. Were Satan omnipotent, he would be none the less Satan, rather all the more the incarnation of evil, in potent antagonism to the good. Our fathers do not deserve such a reproach. They were not guilty of such folly. With a prescient statesmanship, far beyond their times, they made adequate protection for the rights and liberties of posterity and made not their maintenance dependent on avoirdupois, or the fluctuating will of an interested or fanatical populace.
It's rarely right adjusted.