otherwise, should attempt to control the marshal or other authorized officer or agent of the United States, in any respect, in the custody of his prisoner, it would be his duty to resist it, and to call to his aid any force that might be necessary to maintain the authority of law against illegal interference."

CHAPTER IV

SECESSION: COERCION OF STATES: RECONSTRUCTION

IN the foregoing chapters there has been set forth the view that in 1789 the establishment of a national, sovereign State, as distinguished from a League of independent Commonwealths, was intended, and that though in form, and in the belief of its creators, deriving its life from a voluntary agreement between sovereign States, the union then effected was regarded as one from which its commonwealth members might not legally secede. But, though this was, as we believe, the view generally held at the time the new government was inaugurated, assertions of both a constitutional and an ethical right on the part of the States to withdraw at will were soon made. In the First Congress, Pierce Butler of South Carolina threatened secession. In 1795 plans for separation were begun in Kentucky and western Pennsylvania, but these latter were, as Alexander Johnston says, the product rather of frontier freedom than the result of a theory of state sovereignty.1 In 1795 also there appeared in the "Connecticut Courant" a series of articles urging a separation of the northern from the southern States.

1 Lalor's "Cyclopedia Pol. Science," Article "Secession."

In September, 1799, Jefferson prepared a draft of a reply which he thought should be made to the States that had repudiated the Virginia and Kentucky Resolutions, in which he said: "We are willing to sacrifice to this [the Union] every thing but the right of selfgovernment in these important points which we have never yielded, in which alone we see liberty, safety, and happiness; that not at all disposed to make every measure of error or of wrong a cause of secession, we are willing to look on with indulgence, and to wait with patience, etc." At another time he wrote: “We should never think of separation but for repeated and enormous violations." In the above expressions the rightfulness of secession was certainly implied and its possibility suggested. It is a remarkable fact also that, in the first two formal analyses of the federal Constitution by lawyers, it was held that the right of secession had not been abandoned by the individual States. The first of these analyses or commentaries was by St. George Tucker, an eminent judge in Virginia and stepfather of Randolph of Roanoke, and was published as an appendix to the first volume of an edition of Blackstone's Commentaries which appeared in 1803. After developing the view that the Constitution is a compact between the States, he declared: "The Federal Government, then, appears to be the organ through which the United Republics communicate with foreign nations, and with each other. Their submission to its operation is voluntary; its councils, its engagements, its authority, are theirs, modified and united. Its sovereignty is an emanation from theirs, not a flame in which they have been con

sumed, nor a vortex in which they are swallowed up. Each is still a perfect State, still sovereign, still independent, and still capable, should the occasion require, to resume the exercise of its functions, as such, in the most unlimited extent.”

Tucker's opinions upon this point were repeated in 1825 by Rawle in his "View of the Constitution." In that work he said: "The States may wholly withdraw from the Union, but while they continue they must retain the character of representative republics." He went on to say, however, that this right of secession might only be exercised by the "people," that is, in constituent assembly, and not by the legislature, unless that body were expressly given that authority by the constitution of the State. And he added: “But in any manner by which a secession is to take place, nothing is more certain than that the act should be deliberate, clear, and unequivocal; and in such case the previous ligament with the Union would be legitimately destroyed."

In 1811 Representative Quincy declared upon the floor of the House that it was his deliberate opinion that should the bill providing for the admission of Louisiana as a State become a law, the Union would be virtually dissolved, and that not only would the States be thus released from all moral obligations, but that "as it will be the right of all, so it will be the duty of some to prepare definitely for a separation, amicably if they can, violently if they must." During the operation of the Embargo Act and the War of 1812 there were many threats of secession from the New England States, culminating in the assem

bling of the Hartford Convention.1 In this meeting the possibility of a dissolution of the Union was discussed, and in the report that was made its moral rightfulness in cases of extreme oppression was asserted, but it does not conclusively appear either that actual immediate secession was there urged, or the doctrine declared that secession was more than a revolutionary right.

In the period from 1838 to 1845 the opposition to the proposed annexation of Texas led to declarations in New England that such an act would justify secession; and, on the other hand, in the South, the threat "Texas or Disunion" was frequently heard. From this time on, threats of secession on the part of the Southern States became increasingly numerous, until in 1861 they were finally attempted to be put into execution.

From the foregoing paragraphs it will have appeared that the theory of secession, both as a constitutional and as a revolutionary right, and actual threats of its exercise, played a part in the constitutional history of the United States from the first years of its existence. This important point is to be noticed, however, that in no one instance did any department or public official of the Federal Government fail, in case of threatened or actual conflict between state and federal law or authority, to assert the supremacy of the Federal Government. Jackson, himself, who did indeed refuse in one instance to enforce a judgment of the Supreme Court of the United States in which a law or laws of the State of Georgia had been declared void, upheld in the most emphatic

1 Cf. von Holst, "Const. Hist. U. S.," I, p. 190 et seq.

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