and it was further observed that allegiance would necessarily cease on the dissolution of the society to which it was due. The States may then wholly withdraw from the Union; but while they continue they must retain the character of representative republics." Rawle on the Constitution, pp. 288, 290, A. D. 1825.

"The secession of a State from the Union depends on the will of the people of such State. The people, alone, as we have already seen, hold the power to alter their Constitution. The Constitution of the United States is, to a certain extent, incorporated into the Constitutions of the several States, by the act of the people. The State Legislatures have only to perform certain organical operations in respect to it. To withdraw from the Union, comes not within the general scope of their delegated authority. There must be an express provision to that effect inserted in the State Constitutions. This is not, at present, the case with any of them, and it would, perhaps, be impolitic to confide it to them. A matter, so momentous, ought not to be intrusted to those who would have it in their power to exercise it lightly and precipitately, upon sudden dissatisfaction or causeless jealousy, perhaps against the interests and the wishes of a majority of their constituents. 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. The perspicuity and solemnity of the original obligation require correspondent qualities in its dissolution. The powers of the General Government cannot be defeated or impaired by an ambiguous or implied Secession on the part of the State, although a Secession may, perhaps, be conditional. The people of the State may have some reasons to complain in respect to acts of the General Government; they may, in such cases, invest

some of their own officers with the power of negotiation, and may declare an absolute Secession in case of their failure. Still, however, the Secession must in such case be distinctly and peremptorily declared to take place on that event, and in such case as in the case of an unconditional Secession- the previous ligament with the Union would be legitimately and fairly destroyed. But, in either case, the people is the only moving power." Ibid, 295, 296.

"In no part of the Constitution is a specific number of States required for a legislative act. Under the Articles of Confederation, the concurrence of nine States was requisite for many purposes. If five States had withdrawn from that Union, it would have been dissolved. In the present Constitution there is no specification of numbers after the first formation. It was foreseen that there would be a natural tendency to increase the number of States with the increase of population then anticipated, and now so fully verified. It was also known, though it was not avowed, that a State might withdraw itself. The number would therefore be variable." Ibid.

297.

"To withdraw from the Union is a solemn, serious act. Whenever it may appear expedient to the people of a State, it must be manifested in a direct and unequivocal manner. If it is ever done indirectly, the people must refuse to elect Representatives, as well as to suffer their Legislature to re-appoint Senators. The Senator whose time had not yet expired, must be forbidden to continue in the exercise of his functions. But without plain, decisive measures of this nature, proceeding from the only legitimate source, the people, the United States cannot consider their Legislative powers over such States suspended, nor their Executive or Judicial powers any way impaired, and they would not be obliged to desist from the collection of

3

revenue, within such State. As to the remaining States, among themselves, there is no opening for a doubt. Secessions may reduce the number to the smallest integer admitting combination. They would remain united under the same principles and regulations, among themselves, that now apply to the whole. For a State cannot be compelled by other States to withdraw from the Union, and, therefore, if two or more determine to remain united, although all the others desert them, nothing can be discovered in the Constitution to prevent it. The consequences of an absolute Secession cannot be mistaken, and they would be serious and afflicting. The Seceding State, whatever might be its relative magnitude, would speedily and distinctly feel the loss of the aid and countenance of the Union. The Union, losing a proportion of the National revenue, would be entitled to demand from it a proportion of the National debt. It would be entitled to treat the inhabitants and the commerce of the separated States, as appertaining to a foreign country. In public treaties already made, whether commercial or political, it could claim no participation, while foreign powers would unwillingly calculate, and slowly transfer to it, any portion of the respect and confidence borne towards the United States. Evils more alarming may readily be perceived. The destruction of the common bond would be unavoidably attended with more serious consequences than the mere disunion of the parts. Separation would produce jealousies and discord, which in time would ripen into mutual hostili

ties; and while our country would be weakened by internal war, foreign enemies would be encouraged to invade, with the flattering prospect of subduing in detail those whom collectively they would dread to encounter." Ibid, pp. 298, 299.

3 As late as 1893, in a book written by a Senator from Massachusetts, is the remarkable statement: "When the Constitution was adopted by the votes of States at Philadelphia, and accepted by the votes of States in popular conventions, it is safe to say that there was not a man in the country, from Washington and Hamilton on the one side to George Clinton on the other, who regarded the new system as anything but an experiment entered upon by the States, and from which each and every State had the right peaceably to withdraw, a right which was very likely to be exercised. When the Virginia and Kentucky resolutions appeared, they were not opposed on constitutional grounds." (Henry Cabot Lodge, Life of Daniel Webster, pp. 176, 177.) That the latter statement by Senator Lodge is as erroneous as the first is shown by the citations in § 32.

4 See The Prize Cases, 2 Black, 635; Wm. Alexander's Cotton, Wall., 404; Muller v. U. S., 11 Wall., 268; Tyler v. Defrees, 11 Wall., 331.

5 An indictment against Jefferson Davis was quashed by Chief-Justice Chase, Dec. 5, 1868, upon the ground that the Fourteenth Amendment was a bar. Judge Underwood dissented. Subsequently all indictments against Davis were dismissed on account of the procla

No attempt was

mation of general amnesty, Dec. 25, 1868. (Chase's Decisions, vol. i, 122-124). The only trial for treason in connection with the Civil War was that of Greathouse, Harpending and Rubey, for fitting out a Confederate privateer. They were convicted and sentenced to fine and impris onment, but subsequently pardoned. (U. S. v. Greathouse, 2 Abbott, p. 364; Greathouse's Case, ibid., p. 382. See also U. S. v. Greiner, 24 Law Rep. (14 Law Rep. N. S.) 91.) This subject and that of the trials before military commissions will be discussed subsequently.

6 The trial of the officers of the Savannah in the U.S. Circuit Court, S. D. N. Y., in October, 1861, where the jury disagreed, is well worth reading. In 1862, the captain of the Jefferson Davis was found guilty of piracy and sentenced to death by the United States Court at Philadelphia, but a threat of reprisals prevented his execution. (Davis, Rise and Fall of the Confederate Government. vol. ii, pp. 11, 12.

"That a state, or any other great portion of the people, suffering under long and intolerable oppressions, and having tried all constitutional remedies without the hope of redress, may have a natural right, when their happiness can be no otherwise secured, and when they can do so without greater injury to others, to absolve themselves from their obligations

to the government, and appeal to the last resort, need not, on the present occasion, be denied. The existence of this right must depend upon the causes which may justify its exercise. It is the ultima ratio, which presupposes that the proper appeals to all other means of redress have been made in good faith, and which can never be rightfully resorted to unless it be unavoidable. It is not the right of the state, but of the individual, and of all the individuals in the state. It is the right of mankind generally to secure, by all means in their power, the blessings of liberty and happiness; but when, for these purposes, any body of men have voluntarily associated themselves under a particular form of government, no portion of them can dissolve the association without acknowledging the correlative right in the remainder to decide whether that dissolution can be permitted consistently with the general happiness. In this view, it is a right dependent upon the power to enforce it. Such a right, though it may be admitted to pre-exist, and cannot be wholly surrendered, is necessarily subjected to limitations in all free governments, and in compacts of all kinds, freely and voluntarily entered into, and in which the interest and welfare of the individual become identified with those of the community of which he is a member. In compacts