318 ART. IV.-ON AMERICAN SECESSION AND THE secession of the Confederate States from the American Union is a fact which cannot be denied, but a question exists in the minds of many men whether this act be illegal or not. The Northern States maintain that the act of secession is an act of rebellion, and therefore illegal; the Southern States maintain the contrary-each justifies its views by an appeal to arms, which, after all, cannot really decide the question upon its merits. The object of the following observations is to place the matter in a clearer light. Is secession rebellion? To decide this question we must first ascertain what is the legal definition of the term rebellion, and next whether the Secessionist falls within such definition or not? Vattel, in his Droit des Gens, liv. 3. s. 288, says, "The name of rebels is given to all subjects who unlawfully take up arms against the ruler of the society, whether their view be to deprive him of the supreme authority or to resist his commands in some particular instance, and to impose conditions on him." Jacobs (Law Dictionary) says it is "the taking up of arms traitorously against the king by his subjects." Bouvier, in his American Law Dictionary, adopts, with slight modifications the definitions of Vattel and Jacobs. The principle of these definitions is to be found in the writings of Hale, Hawkins, Staundforde, and other English lawyers of repute, under the title "High Treason;" also in the Corpus Juris Civilis, under the title " Ad Legem Juliam Majestatis." The celebrated German jurist, Feuerbach, in his work Lehrbuch des Peinlichen Rechts, sect. 162 and seq., thus describes rebellion: "Hochverrath (perduellio) ist die Handlung eines Staats unterthaus, welcher an sich und in der rechtswidrigen Absicht des Handelnden darauf gerichtet ist, das daseyn des Staats oder solche Einrichtungen desselben, welche durch das Wesen des Staats überhaupt bestimmt sind, zu vernichten.” He wrote a special work on this subject. The Italian jurist, P. M. Renazzi, in his Synopsis Elementorum Juris Criminalis, lib. 4, sec. 38, speaking of rebellion, says:"Duo autem ad hujusmodi crimen contrahendum requiruntur, tum ut quid fiat adversus principem vel populum, qui magestate præditus sit, seu polleat summo imperio; tum ut fiat ab eo, qui illi subditus sit sive naturâ, quia natus in ejusdem territorio, sive jure, quia in civitatem receptus, aut bello subactus." See also the Code Penal of France; the Penal Code of New York, s. 8; and Livingston's Code, tit. "Treason," to the like effect. The American law on treason and rebellion does not differ essentially from its English source. This principle runs through all the definitions, that to constitute rebellion there must be a sovereign authority on the one hand, and a subject on the other, making warlike resistance with intent to subvert such authority. Assuming these definitions of rebellion to be sufficiently correct and uniform, the next inquiry is whether the Secessionist falls within them or not. It is clear that none but natural persons can be rebels; artificial ones cannot. States are bodies politic, and therefore moral or artificial persons (Vattel, liv. præl., ss. 1 & 4); and that the states of North America, both individually and unitedly, are such, is put by American judicial decision, and the opinions of American jurists, beyond dispute. (1 Marsh, Dec. 177; 3 Dall. 447; U. S. v. Tingey, 5 Pet. 115; U. S. v. Baker, Paines R. 156.) Hence the term "Rebel States" applied to the secessionist states by the Northern ones in their official correspondence and documents involves a legal error. It also involves a legal absurdity in this, that every rebel implies a capacity not only of being indicted for the offence of rebellion, but also, in case of conviction, of being hung or otherwise executed for the same; which, in the case of an artificial a state, is simply impossible. person like The question of rebellion, therefore, is one referring not to the state, but to the individual as the criminal; the question of secession from the Union refers to the state rather than the individual; and the question whether a Secessionist (that is, he who combines with others to bring about secession of the States from the Federation) be a rebel or not depends upon the doctrine of state sovereignty. Secession is the withdrawal of a State from the Federation, and if that State be a sovereign power, the act of secession is a sovereign act incapable, as hereafter shown, of legal limitation, and may be exercised by the sovereign power at its option. A federal compact to which sovereigns are parties may be terminated by any one of them at pleasure, and any question arising therefrom, being a question between sovereign powers, must be settled by international law, and not by the jus civile, or law of a state. There has long existed in America a political party or section who maintain the dogma of an American nationality, one and indivisible, springing from the whole people of the Union, in opposition to those who assert that the nationality is a composite nationality, springing from a federation of sovereign states; or, as Mr. Wheaton terms it, in his Elements of International Law, p. 57, a " composite state springing from a league." That the latter position is the true one will be proved by the following short historical sketch of the growth of state sovereignty, and by the nature of the federation itself. The reader is requested to notice particularly the position assumed by the States, in reference to the three great events of American history, viz., the Act of Independence; the Articles of Confederation of 1777, and the Federal Constitution of 1788, and to judge for himself whether such position was other than that of sovereign independent powers. Before the outbreak of the American revolution, the colonies ma were subject to the British crown and laws, and so far the American subjects by the act of insurrection became rebels. Then came the Act of Independence-an act of the States, and not of individuals, and it was achieved, according to Bancroft (c. 70), in this wise-On the 1st July, 1776, the resolution of independence was proposed in congress of delegates of all the States at Philadelphia. It was sustained by only nine of the thirteen States. The delegates of New York State, though present, refused to vote, and withheld their concurrence to a subsequent period. The vote of South Carolina was "unanimously in the negative. Pennsylvania voted also negatively by a jority of four to three of its delegates; and Delaware was equally divided by its two delegates present. The resolution was then reported upon, but the determination upon it was "put off" to the following day, when the dissenting colonies were thus "squared." The voting was taken afresh. Delaware's third member, who had been absent, was whipped up," and voted for the Declaration, thus giving a majority of one to that state. Two out of the four Pennsylvanian delegates who voted against the Declaration on the first, stayed away on the second, and thus enabled the three in minority on the first, to be in majority in the voting on the second. South Carolina," for the sake of unanimity, came round," but New York never voted at all, nor did she on the fourth (two days after) vote for the Declaration of Independence. This Declaration was signed by the different delegates, who affixed their signatures opposite the names of their respective states. Thus Benjamin Franklin and his eight colleagues, delegated by Pennsylvania, put their names opposite the name of that state; Thomas Jefferson and his six colleagues, delegated by Virginia, signed opposite the name of Virginia; and so on with the rest of the states. 66 In 1776 arose that grand political division of parties into Federalists and Anti-federalists, which has prevailed with varying strength and intensity to the present day. The VOL. XV.-NO. XXX. Y Federalists (see 5 Marshall's Life of Washington, p. 33) sought to aggrandize the power of the central government of the federation at the expense of the power of the several states governments. The Anti-federalists, as their opponents, maintained state independence and sovereignty against central aggrandizement. The opinions of the Federalists are exemplified by Mr. Justice Story, in his work on the American Constitution, sec. 211. He there asserts, that this Declaration of Independence" was "not an act done by the state governments nor by persons "chosen by them, but by the whole people of the United "Colonies, by the instrumentality of their representatives. "The separate independence and individual sovereignty of "the several states were never thought of by the enlightened "band of patriots who framed this Declaration." Mr. J. Quincy Adams, in his oration of the 4th of July, 1831, Dr. Rush, and many others, have maintained the like opinions. Their object was to prove the establishment of one great indivisible nationality by the Declaration of Independence, thus aiming a blow, in limine, at the independent sovereignty of the several states. But to maintain that the Act of Independence was an Act of the "whole people of the United Colonies," viewed as a unit or indivisible whole, is to contend against fact. First, the Declaration itself was that of the "representatives of the several United States of America in general congress assembled," declaring that those states were "free and independent states;" and that, as free and independent states, they had full power to levy war, &c., "and to do all other things which independent states may of right do." In support of which declaration they "mutually pledge each other." The representatives signed the Declaration as representatives of the states opposite their signatures, and which delegated them so to act, and in no other capacity-certainly not as representatives of other states which never authorised them to sign. The expression "United States," means states in union, and simply implies a combination or composition of states. |