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alienable, and indefeasible right to reform, alter, or abolish it, in such manner as shall be judged most conducive to the public weal.”
Now, the authors of this declaration evidently intended by it to assert for “a majority of the community” either a legal or a revolutionary right. If it was the latter, why confine to a majority a right which belongs to one man or a hundred men as perfectly as to a million, or to a majority of all the citizens ?
Again: unless by the term majority be meant that which is greater, not in numbers, but in force, the clause, as declaratory of a revolutionary right, is absurd. Nature knows no majority but that of force. The majorities, of wbich we hear so much, of the male adult citizens invested with the suffrage, are matters of positive regulation. Does Nature determine the age at which a citizen becomes an adult citizen ? or does she confine the exercise of the suffrage to males only?
As, however, that use of the word majority is unprecedented, it is clear that the words referred to were intended to assert a legal right. But if the right belongs to a majority to alter or abolish the existing form of government as a legal right, it must be to a majority of the electors, acting in pursuance of some law passed according to the forms of the Constitution. No other majority and no other people are known to the laws, nor could the action of any other majority or any other people be denominated legal. I conclude, therefore, that the clause refers merely to the ordinary and accepted modes of amending or repealing Constitutions, leaving a choice of them to the existing government.
That the words referred to have been generally considered objectionable, as liable to misconstruction, may be inferred from the fact that, although a great number of the Constitutions formed in other States have copied the Virginia declaration, not one of them has ever retained those words. One instance will suffice. The Vermont Bill of Rights declares “ that the community” — not “a majority of the community," as in that of Virginia — “ hath an indubitable, inalienable, and indefeasible right,” &c.1
1 See also the Constitutions of Connecticut, 1818; Alabama, 1819; Mississippi, 1832; Tennessee, 1834 ; Arkansas, 1836 ; Pennsylvania, 1838; Florida, 1839; Texas, 1845; Kentucky, 1850; and Oregon, 1857,- in which the same omission is observable.
§ 246. In the Rhode Island Constitution, framed in 1842, is found the following declaration :
“In the words of the Father of his Country, we declare, that the basis of our political systems is the right of the people to make and alter their Constitutions of government; but that the Constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all.'”
So, also, to a similar effect, is a clause in the Maryland Constitution of 1851, which declares,
“ That all government of right originates from the people, is founded in compact only, and instituted solely for the good of the whole; and they have at all times, according to the mode prescribed in this Constitution, the unalienable right to alter, reform, or abolish their form of government, in such manner as they may deem expedient."
In these two Constitutions there is no declaration of the right of revolution, those clauses which are usually so worded as to assert that right being, in these, confined by restrictive clauses, so as to make the right involved a mere legal right to alter or abolish forms of government in modes appointed by law.
It is obvious — recurring to the clause in the Rhode Island Constitution — that, if a form of government remains unaltered until " changed by an explicit and authentic act of the whole people,” it will remain so forever, unless the modes and instrumentalities employed to effect the change are appointed and regulated by positive law. The whole people cannot meet in Convention. No declaration of their will can be explicit, no representation of them by a few can be authentic, unless made and authorized through some organ empowered to utter their voice.
In the Maryland declaration it is difficult to give any effect at all to the concluding words, " in such manner as they may deem expedient.” Referring to the debates preceding the adoption of the section, it is apparent that the effect of inserting the clause restricting alterations of the Constitution “ to the mode prescribed in this Constitution," was not well considered. Striking out from the clause, as it now reads, the restrictive words, it conforms closely to those inserted in so many of our Constitutions of which I have before spoken. As Maryland had suffered from revolutionary attempts to alter her Constitution, her Convention desired to narrow within safe limits that important right. It therefore inserted the restrictive words, but-neglected to strike out those which are significant only as declaratory of the old revolutionary right, thus seeming to negative its own intention. The only construction that can be given to the section which will allow all of its parts to stand, is to refer the clause, “ in such manner as they may deem expedient,” to the words “ alter” and “reform,” and not to the nearer word “abolish.” It would then mean that the people have an inalienable right, in the mode prescribed in the Constitution, to alter or reform the same in such manner as they may deem expedient that is, make such changes therein as they please — or the right wholly to abolish it. Thus, by a sacrifice of grammatical accuracy, the work of the Convention is redeemed from self-contradiction.
$ 247. (c). The last variety of Conventions which I shall mention consists of those exceptional bodies by which were engineered, first, the so-called secession of certain slave States from our Union in 1860 and 1861; and secondly, the reconstruction of those States preparatory to a resumption of their normal relations to the Union in 1864, 1865, and 1866.
The States concerned, in the order in which their ordinances of secession were passed, were South Carolina, Mississippi, Florida, Alabama, Georgia, Louisiana, Texas, Arkansas, Virginia, Tennessee, and North Carolina — the ordinance of the first having been passed in December, 1860, and that of the last in May, 1861.
It is not my purpose to enter fully upon the history of the Secession Conventions, since the view I take of them renders only a few of the leading facts relating to the call of these bodies important.
The Secession Conventions were called avowedly to effect, by revolutionary means, the disruption of the American Union, established by the war of Independence, and confirmed by the Federal Constitution of 1789. The election of Mr. Lincoln upon a platform deemed menacing to the interests of those States, was the wrong, to redress which the rupture of their constitutional relations to their sister States was attempted. By concert among the leading men of the South, and perhaps in pursuance of a long cherished purpose, Conventions were called in
every State but one above named, as soon after the announcement of Mr. Lincoln's election as the popular attachment to the existing government could be made to give way to a desire for Southern Independence. Tennessee called no Convention, but as her legislature assumed to act as a Convention, and in that capacity passed a pretended Ordinance of Secession, I have reckoned that body amongst the Secession Conventions.
248. The mode of calling these Conventions was as follows: The legislatures of many of the States meeting, by law, not far from the time of the Presidential election, the friends of secession easily secured the passage of Acts calling Conventions in those States. Where those bodies were not soon to assemble, it became necessary to prevail upon the governors of the States to call extra sessions of their legislatures - a thing easily accomplished, as most of those officers were ardent champions of the secession cause, and perhaps, for that reason, had been chosen to fill their respective places. When assembled, these bodies found little difficulty in falling in with the current and calling Conventions, generally declaring the object of them to be to consider the “relations between the government of the United States, the people and governments of the different States, and the government and people ” of the State concerned, " and to adopt such measures for vindicating the sovereignty of the State and the protection of its institutions” as should appear to be demanded. In most of the States, the question of calling those Conventions was not submitted to the people, though in Tennessee and North Carolina it was so submitted, and was voted down, the electors in the latter State, nevertheless, at the same time, with a singular inconsistency, electing delegates as required, but choosing such as favored the Union. The Convention met, and at its first session refused to vote an Ordinance of Secession; but, after the bombardment of Fort Sumter, the cause of the Union appearing hopeless, the same body was reassembled, and voted the State out of the Union unanimously!
In Texas, the Governor, Houston, refused to call the legisla1 Act calling the Missouri Convention of 1861, sec. 7. That Missouri did not secede was probably no fault of the pro-slavery legislature which passed this Act.
ture together, but some sixty of the conspirators against the Union, signed a document convening that body, and a Convention was thereupon called, and an Ordinance of Secession passed. In Alabama the Convention was called by Governor Moore, in pursuance of an Act of the legislature, passed in anticipation of the election of a Republican to the office of President of the United States, authorizing and requiring him on the happening of that contingency to call a Convention, to take such steps as should protect the power and interests of the State.
In none of these States were the Ordinances of Secession submitted to the people, save in Texas, Tennessee, and Virginia, and in those cases they were submitted under systems of fraud and violence ingeniously contrived to insure, as they did insure, the adoption of the ordinances, at all events.
§ 249. Admitting, however, that the Secession Conventions were all called in pursuance of the legislative authority of their respective States, they are nevertheless to be set down as Revolutionary Conventions for two reasons :
1. The legislatures calling them transcended their constitutional authority in so doing. The Constitution of the United States was a part of the Constitution of each of those States, and all the State officers, legislative, executive, and judicial, were bound by oath to support it. In taking steps to overturn that Constitution and to disrupt the Union, every member of the State legislatures calling Conventions with the ulterior purpose of passing secession ordinances in any event, was entering upon a course of revolution, and became guilty of perjury and treason.
2. The Secession Conventions did not confine themselves to the recommending, or even to the enacting of changes in their several State Constitutions, which, as we have seen, is the utmost limit of the powers of Constitutional Conventions; but they severally assumed general powers of administration and government. Many, and perhaps all of them, overhauled their State Constitutions ; but they did more, — they appropriated moneys out of the State treasuries, raised troops, and appointed officers, with a view to an armed conflict with the United States, should the latter dispute their right to secede. When the convention of delegates which met at Montgomery, Alabama, to frame a Constitution for the Confederacy of the seceding States,