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infraction of it justifying such a course is admitted. One party has the power of interpreting for itself, and may perform or not perform. But the other party has just the same right of interpretation, and may insist upon a strict fulfilment of the stipulations, and punish non-performance in the only mode which the nature of the case admits. The right to punish non-performance shows that there is no right to refuse further compliance. For these reasons, among others, some treaties contain a clause providing that the treaty, or perhaps certain provisions of it, may be terminated on notice for that purpose. If, then, the Constitution were a compact to which each of the States is a party, being the sole judge of its wrongs and of the modes of redress, so that one State, judging that it was injured, should determine to secede as a measure of redress; each and every of the other States would have an equal right to judge and determine that the seceding State was not injured by the alleged grievance, but that they were severally and jointly aggrieved by the attempted secession and refusal further to comply with the obligations of the compact, and that the proper mode and means of redress for that injury was war, jointly and severally waged against the seceding party. This seems, practically, to be the state of things at the present time. Some of the parties determine that they will attempt to secede. They repeal their ratifications (which, by the way, are not subject to repeal); appropriate to their own use so much of the common property as is within their borders; fire upon an unarmed vessel carrying supplies to one of the forts belonging to the general government; reduce the fort by a bombardment sustained by seven thousand men, more or less, against some seventy in the occupation of it;- and then they say, “All we want is to be let alone.” At the same time they are investing another fort, and threatening destruction to it and its defenders if it is not surrendered. The other parties to the compact determine that they are aggrieved by these proceedings, and will resist the attempt; and they also resort to gunpowder, shot, and shells, on their part, as stringent legal and equitable powers, whereby to regain possession, and to compel restitution and specific performance of the compact. President Lincoln thereupon issues his proclamation, calling for militia to execute the laws and suppress the insurrection ; and this, according to the Message before us, constitutes a declaration of war. Furthermore, viewed as a compact or treaty between States, it is what is termed a “transitory convention,” and cannot be revoked, rescinded, or annulled, repudiated or seceded from, by any State, on account of its nature.
“General compacts between nations,”
says Mr. Wheaton, “may be divided into what are called transitory conventions, and treaties properly 50 termed. The first are perpetual in their nature, so that, being once carried into effect, they subsist independent of any change in the sovereignty and form of government of the contracting parties; and although their operation may, in some cases, be suspended during war, they rewive on the return of peace, without any express stipulation. Such are treaties of cession, boundary, or exchange of territory, or those which treate a permanent servitude in favor of one nation within the territory of another.”—Wheaton's Elements of International Law, 6th ed., p. 332, Sect. 9.
On the theory of compact, the Constitution contains an agreement of each State with the other States, that the government organized under it, for the benefit of all the States, may exercise certain rights within the limits of each State, by an occupation of the soil, for the uses and purposes for which the government is established. It confers, by agreement and grant, a power of eminent domain; a right to take lands for forts, arsenals, navy-yards, military roads, and other public uses; a right of occupation within the waters of each State by A naval force when necessary; a right on land and water for the collection of customs; a right of taxation, and of collecting
the taxes by sales of lands and goods; a right to have courtr
houses, to hold courts, to reverse the judgments of the State courts in certain instances, and to execute final process against persons and property. These grants of rights to occupy, take, possess, use, tax, try, judge, reverse, and do final execution within the limits of every State, show a permanent servitude of a most extensive character; the United States, representing all the States, being the dominant, and each State a servient party. From their very nature these rights and powers cannot be resumed or revoked at the pleasure of any State, or of any number of States less than the whole. And it may be added that they impair, somewhat effectually, the supposed absolute sovereignty of the separate States. Civil war may suspend the exercise of these rights and powers, but it does not annul or take them away. It has been urged by the advocates of secession, that the tenth amendment of the Constitution, which provides “that the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people,” sustains their positions. If it were shown that the States had a right of seceding from the Union before there was any Union to secede from, there would be some foundation for this suggestion, as it is quite clear that no right of secession was granted to the United States; and the conclusion would follow, that it was among the rights reserved. But the supposition of an existing right to rescind a particular contract before the contract is entered into, of the existence of a right to secede from a Union which is not formed and may not exist, and then a reservation of this right of secession by a general declaration, after the Union was formed, that powers not granted were reserved, is simply an absurdity. There could be no right of secession until there was something to secede from. Such a right could come into existence only upon or after the creation of the Union which was to be broken up by the exercise of it; and it is preposterous, therefore, to say it was a right reserved to the States by
the general reservation of all powers not granted or prohibited,
ago States in Congress assembled.” The change in the phraseolo Ogy of the reservation, or declaration, may be worthy of note. o Now if this earlier, and in terms much more ample reservation, || || found in those Articles, did not include a right of secession it from the Confederation, upon alleged grave violation of the powers conferred upon Congress by that instrument, still less so can the tenth amendment of the Constitution sustain any such o right to judge of infractions of the Constitution, and to withso draw by virtue of the powers reserved. And this leads us to o a concluding and conclusive argument to show the perpetuity o: of the Union as established by the Constitution, and according o to the Constitution, even if that instrument is supposed to have to: the character of a compact. o We have thus far endeavored to show that there was no o right of secession from the Union established by the Articles o: of Confederation, and that there is no such right under the s: Constitution, upon general principles applicable to such ino struments, whether regarded as compacts or as organic laws. o We now proceed to make assurance doubly sure upon this o point, by specific citations from the express language of the o Articles, and of the Constitution itself, and from official docuo ments connected with their adoption, which admit of no miso: apprehension. so The Articles of Confederation expressly, explicitly, and in o the most emphatic manner, established a “Perpetual Union ” so between the States. As prepared and submitted to the States
| for ratification, they were entitled “Articles of Confederation
and Perpetual Union.” And the closing part of the last of the Articles is : —
“And the Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them, unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State.”
The Articles having been agreed upon in Congress on the 15th of November, 1777, on the 17th of the same month that body transmitted copies to the several States, for the consideration of their respective legislatures, accompanied by circular letters, in which it was represented that, “to form a permanent union accommodated to the opinion and wishes of so many States, differing in habits, produce, commerce, and internal police, was found to be a work which nothing but time and reflection, conspiring with a disposition to conciliate, could mature and accomplish.” In recommending them to the immediate and dispassionate attention of the legislatures of the several States, it was said:—
“Let them be candidly reviewed, under a sense of the difficulty of combining in one general system the various sentiments and interests of a continent divided into so many sovereign and independent communities, – under a conviction of the absolute necessity of uniting all our councils, and all our strength, to maintain and defend our common liberties; let them be examined with a liberality becoming brethren and fellow-citizens surrounded by the same imminent dangers, contending for the same illustrious prize, and deeply interested in being forever bound and connected together by ties the most intimate and indissoluble.”
Still further: — The closing recommendation, of set purpose, it would seem, to show again that the union was to be perpetual, repeats the title: —
“And to each respective Legislature it is recommended to invest its delegates with competent powers, ultimately, in the name and behalf of