Section:
A Constitutional History of Secession
By John Remington Graham
On November 27, 1688, King James II met in London with the House of Lords, which then sat as a Magnum Concilium, -- i. e., a council of titled nobility and reverend bishops summoned to give advice the Crown in a season of grave crisis. England was in a state of upheaval against repeated acts of royal misgovernment and repeated infractions of fundamental law. William of Orange, a prince of royal blood, marched his troops forward, and the King's armies melted without offering resistance. The lords temporal and spiritual advised the King to grant pardons with liberality, to meet for negotiations with the William of Orange, to call a free Parliament, and to endorse constitutional reforms which were by then long overdue. The King failed to act upon this advice. He fled from the realm, and joined his Queen and royal heir, Prince James Edward Stuart, at the Palais de St-Germain in France.
A number of eminent peers and subjects then met with William of Orange, who issued a writ calling for the election and assembling of a Convention Parliament which met and deliberated. On January 25, 1689, a body calling itself the House of Commons passed a resolution which read,
“That King James the Second, having endeavoured to subvert the constitution of the kingdom by breaking the original compact between the between the King and people, and by the advice of Jesuits and other wicked persons having violated the fundamental laws and withdrawn himself from the kingdom, hath abdicated the government, and that the throne is thereby vacant.”
On February 12, 1689, the House of Lords agreed. On February 13, 1689, the Crown was tendered to and accepted by William of Orange and his wife Mary who thereby became King William III and Queen Mary II of England. The occasion was commemorated by Acts of the Convention Parliament of 1689, and later by the Act of Settlement in 1701. These several organic statutes instituted constitutional reforms and established a new succession of the Crown which, excluding the heirs of James II, has continued without interruption to the present day. Had it not been for this transformation of government, fondly called the Glorious Revolution, there would have been no lawful government in England over the past three hundred years, King George III could not have proclaimed British government in Canada in 1763 or conceded American independence in 1783, Queen Victoria could not have given her royal sanction to the British North America Act of 1867, nor would there be any legal order in Canada today, and Elizabeth II would not presently be Queen of Great Britain and Canada. Yet the transfer of the Crown from James II to William and Mary occurred contrary to all ordinary forms of law existing at the time.
By constitutional custom, only the King of right by royal blood could assemble a lawful Parliament. The lawful King did not call the Convention Parliament of 1689.
The accession of William and Mary was predicated on the abdication of James II. But James II never abdicated in fact, and claimed to be Kind until his death, as he undeniably was by ordinary forms of law.
And even if James II had abdicated in some constructive sense, his son was his lawful heir, and would immediately have become King in his place. The accession of William and Mary was, therefore, an unlawful event, yet it was authorized by the extraordinary forms of English constitutional law. Sir William Blackstone described the constitutional custom upon which the Crown has ever since rested:
“If, therefore, any future prince should endeavor to subvert the constitution by breaking the original compact between King and people, should violate the fundamental laws, and should withdraw himself from the kingdom, we are now authorized to declare that this juncture of circumstances would amount to an abdication, and the throne would thereby be rendered vacant. But it is not for us to say that any one or two of these ingredients would amount to such a situation, for there our precedent would fail us. In these, therefore, or other circumstances which a fertile imagination may furnish, it behooves us to be silent too, leaving for future generations, whenever the necessity and the safety of the whole shall require it, the exertion of those inherent but latent powers of society which no climate, no time, no constitution, no contract can ever destroy or diminish.”1
We may define the principle of the Glorious Revolution as a constitutional custom prevailing over all organic statutes, and all customs and conventions of fundamental law in Great Britain: -- in extraordinary circumstances easier to illustrate from history than to define in the abstract, there may be a peaceful transformation of government, even if contrary to existing forms of law, by means of a convention of the people and estates of the kingdom, assembled in as orderly way as possible by a distinguished prince or the natural leaders of the realm for the purpose of reassuming the attributes of sovereign power, repairing or ordaining the constitution so as to make it operable, and resettling the government of the land. This principle contemplates a revolution which is peaceable, necessary, and beneficial, -- a revolution which, however ironic it may seem, is authorized by the constitution itself.
Another striking case of this kind occurred in the independence of Rhode Island from the British Empire,2 wholly apart from the independence of the United States. On May 4, 1776, the legislature and governor of Rhode Island met in an extraordinary assembly, and adopted a statute which strikingly resembles the first Act of the Convention Parliament which transferred the Crown from James II to William and Mary. The statute recited that George III had broken the compact between the King and people, and ordained that thenceforward all writs would issue and all laws would be passed, not in the name of the Crown, but in the name of the governor and company of Rhode Island. Not a shot was fired. The next day courts opened and business was conducted as usual. The event was a perfect recurrence of the Glorious Revolution.
Several other States individually seceded from the British Empire. In Virginia, the house of burgesses adjourned and issued writs of election for a convention which met in the name of the People, and assumed all the attributes of sovereignty. And on June 29, 1776, this convention proclaimed a formal constitution of the Commonwealth, whereof the preamble recited the wrongs done by or in the name of George III, then totally dissolved the government previously exercised by the Crown over Virginia. The event was, again, a perfect recurrence of the Glorious Revolution.3
The first written constitution of the United States was the Articles of Confederation, which were adopted by the legislatures all thirteen States. The 13th article of the Confederation ordained, “The articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration 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.”
Once the pressures of the War for American Independence were removed by the restoration of peace, the Confederation proved to be unworkable. Requisitions by Congress upon the several States became massively delinquent. Without adequate resources in the treasury of the Confederation, the enemies of the United States were tempted to take territory which could not be defended, and it was not possible even to pay the interest due on loans which had been advanced by the friends of the United States. Attempts were made to give Congress limited powers of taxation and to facilitate the reckoning and collection of requisitions. But every proposed amendment to the articles was blocked by Rhode Island, whereupon the Confederation began to flounder, and the United States fell into mortal danger.
At length the Philadelphia Convention was called to frame more effective articles of Union. Rhode Island, which had blocked all previous attempts at constitutional reform, did not even bother to send delegates. Everybody knew that a new constitution would not be adopted by the legislatures of all thirteen States. In order to deal with this problem, the framers adopted Article VII of the United States Constitution says, “The Ratification of the Conventions of nine States shall be sufficient to the Establishment of this Constitution between the States so ratifying the Same.” The critical debate on this clause was on July 23, 1787, and in this debate the rationale of the framers is made clear.4 In each State, there was to be a convention of the people, modeled after the Convention Parliament of 1689, which could exercise sovereign power to secede from the old Confederation, and join the new Union. And since each State acting by such a convention could secede from the old Confederation and join a new Union, each State necessarily enjoyed the reserved right, by means of such a convention, to secede from the new Union whenever extraordinary circumstances might make such a revolutionary but peaceable and lawful act necessary. In the Virginia Convention of 1788, a young lawyer and politician by the name of John Marshall, who later became Chief Justice of the United States, articulated the principle as it was understood by all, -- “It is the people who give the power, and can take it back.”5 It is difficult to believe that John Marshall actually conceded the right of a State to secede from the Union when the United States Constitution was adopted. Yet he did endorse the right of a State to secede from the Union as an antidote to abuse of power by the Federal government, and the same right of secession was also conceded in those days even by such prominent federalists as Alexander Hamilton6 and James Madison.7
Before the fateful year 1860, the strongest movement for secession from the United States was agitated in New England. The War of 1812 was imposed by Southern politicians upon the States of New England, which had no desire for such an encounter with Great Britain and Canada. Not only was the war unjust and unnecessary, it was poorly managed to such an extent that the States of New England saw the need to provide for their own defense and negotiate a separate peace with the British Empire. The ultimate aggravation was a proposal by the secretary of war to conscript armies for an invasion of Canada, which was regarded, not only as oppressive, but unconstitutional. For in Article I, Section 8 of the United States Constitution, Congress is granted powers to raise armies for any and all military purposes, and call forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions, subject to important rights of the several States. If Congress could conscript armies, the elaborate limitations and reservations on the militia would be pointless. And the power to raise armies was actually intended by the framers as a power to raise regular troops by enlistment only and never by conscription, and the power to regulate and calling forth the militia was actually intended by the framers as the exclusive yet an ample means of compelling citizens to render military service.8 These principles, now beyond the comprehension of most Americans today, were then clearly understood by the people of New England, for the militia of those States had already disobeyed the President and refused to serve for invasion of Canada, and the general population was not about to be drafted into the armies of the Union for any similar purpose.
In response to the crisis, the legislature of Massachusetts invited the States of New England to meet in a convention similar to the First Continental Congress which had met before the American Revolution to petition the King for redress of grievances. Delegates from Vermont, New Hampshire, Massachusetts, Connecticut, and Rhode Island met in Hartford, Connecticut, on December 14, 1814, and deliberated until January 5, 1815, when they promulgated their report and resolutions.9 Notwithstanding the florid denials of Daniel Webster in his reply to Robert Hayne some years later in the United States Senate,10 the Hartford Convention met to consider secession from the Union, and actually concluded and urged that secession from the Union might be the best course. It is no less true that the Hartford Convention, not the Battle of New Orleans, brought the War of 1812 to an end, and restored peace between the United States and the British Empire.
New England, in any event, has a secessionist tradition as good as anything ever heard of beneath the Mason-Dixon Line and the River Ohio. Today, there are those who, for reasons highly interesting, dream of a Second Vermont Republic and even a Union of Vermont, New Hampshire, and Maine independent of both the United States and Canada. These dreams are worthy to contemplate, because we Americans are losing our local distinctness and character in an homogenized culture and government which has been imposed on us. But the people of Vermont, New Hampshire, and Maine must recall that this homogenized culture and government is the result of the consolidation of the United States from the American Civil War.
It will here be fitting to reflect on the words of Alexander Stephens, the great Southern statesman who served as Vice President of the Confederate States, yet died in office as Governor of Georgia so beloved across the country that, upon his passing, the flag of the Union was lowered to half mast here at this statehouse in Montpelier, Vermont. On June 5, 1865, as he lingered in prison in Boston harbor, Stephens wrote these moving words in his diary:
“The people of the South conscientiously believed that the old Union was a compact between sovereign and independent States. Only certain powers named in the Constitution had been delegated by the States separately to the central government. Among these was not ultimate sovereignty, this being retained by the States separately in the reserved powers. Each State had the right to withdraw from the central government the powers delegated by repealing the ordinance that conferred them, and herself resuming their full exercise as a free, independent, and sovereign State, such as she was when the compact of the Union under the Constitution was formed. These principles and doctrines the great majority cherished as sacred and as underlying the whole framework of American constitutional liberty. Thousands who disapproved of secession as a measure did not question it as a matter of right. The war waged by the central government against the States, striking at their sovereignty, and causing as it would, if successful, their complete subjugation, these people considered unconstitutional, monstrously aggressive, and utterly destructive of everything dear to them as freemen.”11
In order to see again this vision of the United States as understood by our founding fathers, you must understand the errors underlying the decision of the United States Supreme Court in Texas v. White, 7 Wallace 700 (1869).
After the Confederate surrenders, the defeated South was divided into military districts and placed under martial law as conquered territories of the United States. And in this setting the military governor of Texas brought suit in the name of the State, invoking the original jurisdiction of the United States Supreme Court, and seeking an injunction enjoining those holding certain bonds held by the State before the war but sold by the secessionist government during hostilities from negotiating them further, and directing return of those bonds to the public treasury of Texas. In order to invoke original jurisdiction, Texas had to be a State of the Union. A motion was made to dismiss the complaint on grounds that Texas was not then a State.
Chief Justice Salmon P. Chase denied the motion, and allowed the case to proceed. The old Confederation, he said, was by express terms “perpetual,” which is perfectly true. And the new Union, he noted, was made by express terms “a more perfect Union.” Which is also true beyond doubt. And because, under the United States Constitution, there is a perpetual Union made more perfect, Chase claimed that we have an “indestructible Union of indestructible States.” Therefore, he concluded, Texas always and still was a State, and original jurisdiction could be invoked. But, Chase held, Texas was usurped from 1861-1865, and thus the bonds were not really sold at all. The opinion is pure sophistry which contradicts itself, resting on pleas that Texas was indestructible yet insane, sovereign yet incompetent to act.
The refutation of this sophistry is not so difficult. The old Confederation was perpetual as a corporation is sometimes said to be perpetual, which means that it exists unlimited by a term of years, and so will exist until lawfully dissolved. And the old Confederation was, after all, dissolved, and it was dissolved without the consent of all the States, even though the articles stipulated that amendment required assent of all the States. The new Union is undoubtedly more perfect, because it was established by the people in each of the several States, sitting in convention to exercise sovereign power which can create or abolish any government or union, whereas the old Confederation was established only by legislatures which did not have sovereign power but were bound by constitutions which the people in convention had established in the several States. Under the intended meaning of the United States Constitution, then, a right of secession was actually reserved to the several States. This American legacy has been taken from us, and we must reclaim it.
We are fortunate in that, upon this continent, in our own time, only a short distance from where we gather today, the baneful legacy of the American Civil War has been given a judicial rebuke, and the results have been edifying, signaling hope to our children, grandchildren, and great grandchildren.
Most of us know something of the antagonisms which erupted during the last quarter of the 20th century between French-speaking and English-speaking citizens in Canada. These antagonisms grew out of overcentralization of the Dominion, arraying nine provinces of Anglo-Canada against Quebec as the geopolitical bastion of French Canada. There was a clash of two civilizations not unlike that which erupted in the United States in 1860 and 1861 between the North and the South. The result was a powerful separatist movement in Quebec which repeatedly elected governments to govern the province, and offered two referendums on independence, in the second of which the vote for secession from the Union nearly carried.
The question then arose whether the Constitution of Canada permits secession of a province from the Confederation. Under the organic statutes, there is no express right or formal mechanism for secession. But Canada is blessed by the customs and conventions of the British Constitution which were conveyed to the Dominion by the preamble of the British North America Act of 1867, including the principle of the Glorious Revolution on which the Crown rests: in extraordinary circumstances, the constitutional right of the people to free, peaceable, and orderly reformation of the government, even if contrary to the usual forms of fundamental law, might take the form of secession from the Union. Accordingly, in the Reference on certain Questions concerning the Secession of Quebec from Canada, [1998] 2 S. C. R. 217, the Queen's judges advised that the people of Quebec enjoy a constitutional right to aspire for independence, and a constitutional right to enjoy a free and peaceable referendum on independence at public expense whenever their elected government determines; that, if in such a referendum the people of Quebec vote by clear majority on a clear proposition for independence, the government of Canada will have a constitutional duty to negotiate terms of separation, nor may the government of Canada in such a situation threaten or use force of arms to resist secession; and that, if negotiations fail, and the government of Quebec unilaterally proceeds to independence which is recognized by other nations of the earth, a new constitutional order will then be established.
The consequences of this judgment have been remarkable. The antagonisms between Anglo-Canada and Quebec have essentially evaporated. The people of Quebec have reacted to the concession of their rights within the Union by electing a federalist government. By operation of moral causes, the Canadian Confederation waxes strong.
There is no reason why in due course of time we also cannot enjoy such a rebirth of authentic constitutional government in the United States. A right of secession was ordained by our forefathers as a shield protecting the distinctive civilizations across our continent. And it is particularly meaningful that this timeless and indispensable principle should be asserted again here in Vermont, allowing her priceless culture and heritage to be transmitted without blemish to the next generation.