How can anyone read these words of a noted Founding Father of this Republic of Republics, these United States, and dare assert that secession is un-American;, It must be pointed out here that Tucker unequivocally states that the obligation to preserve the government under the Constitution is no greater than the obligation to preserve the government under the Articles of Confederation. If the people of the sovereign states had the right and power to abolish the government under the Articles of Confederation, they also retain that same right under the Constitution. Tucker makes it plain and clear, secession is a right of "we the people" of the sovereign states. We are the final authority on how we are to be governed, not the Federal Supreme Court, Federal Congress, or the president. We the people of the sovereign states have the ultimate authority, and therefore the ultimate check, upon abuses of our civil liberties by the Federal government. All of this was true at the time of Tucker's writings. Unfortunately, Lincoln and the armies of Northern aggression changed everything.
We have now addressed the first question, viz, Was the right of secession abandoned after the adoption of the Federal Constitution? According to St. George Tucker, a noted jurist and Founding Father, the answer is-no. We now press on to the next question: Was the right of secession a theory dreamed up by slaveholders to protect their slave property? Again, let us look to the writings of St. George Tucker for the answer to this question from a Southern point of view.
"Whilst America hath been the land of promise to Europeans, and their descendants, it hath been the vale of death to millions of the wretched sons of Africa."12 These are not the words of a Northern "bleeding-heart" abolitionist pining away for the liberation of Southern slaves. These are the words of one of the South's staunchest defenders of the right of secession, St. George Tucker. Tucker first proposed the gradual elimination of slavery in a 1796 pamphlet titled A Dissertation on Slavery: With a Proposal for the Gradual Abolition of It, in the State of Virginia. This pamphlet was incorporated as an appendix in his edition of Blackstone's Commentaries on the Laws of England, published in 1803.
Tucker was one of many eminent Southerners, such as George Washington, Thomas Jefferson, Patrick Henry, James Monroe and others, who were vocal opponents of slavery. His credentials as an abolitionist began with his publication of the aforementioned tract in 1796. Here we see an early advocate of the right of secession also securing for himself a place as a vocal opponent of both the African slave trade and of slavery itself. As noted historian Clyde N. Wilson states:
Like many of the great Southerners of the early republic, Tucker considered Negro slavery an undesirable element of the American body politic, and hoped for its eventual elimination, though, like Jefferson, and later Lincoln, he felt that emancipation would best be followed by removal of the freed people from American society.
Perhaps the most important things about Tucker's essay for later times are the following: it shows the potential in the South for constructively addressing the most difficult issue in American society before the time when it became necessary to defend against outside control; and, it demonstrates that Tucker's state rights understanding of the Constitution is not merely a rationalization in defense of slavery, a misunderstanding that is a mainstay of conventional accounts of American
Indeed, as Dr. Wilson notes, the State's Rights view of the Constitution is often seen as merely a "rationalization in the defense of slavery." Defenders of the strict construction (State's Rights) view of the Constitution are often ridiculed as using "code words" for the defense of slavery. In other words, the defense of the state's right of secession is viewed as only a stratagem in the defense of the institution of slavery. Yet, when we look at early Southern history, we see that those who worked for the abolition of slavery also believed in the State's Rights concept of American government. Although vilified by today's liberal establishment, the concept of limited government with the right of self-government in the hands of "we the people" of the sovereign states was never a theory promulgated for the defense of slaveholders. As demonstrated, both Southern slaveholders and Southern abolitionists held to the State's Rights concept of American government.
Tucker opened his anti-slavery pamphlet with a denunciation of the existence of slavery in a country supposedly founded upon the principle of equal freedom. Not only did Tucker condemn the institution of slavery, he also condemned the unequal application of civil liberties according to "particular complection." This fact alone would mark St. George Tucker as an American political philosopher 150 years ahead of his time. Tucker states:
The genial light of liberty, which bath shone with unrivalled lustre on the former [Europeans in America], hath yielded no comfort to the latter [Africans in America], but to them bath proved a pillar of darkness, whilst it bath conducted the former to the most enviable state of human existence. Whilst we were offering up vows at the shrine of Liberty, and sacrificing hecatombs upon her altars; whilst we swore irreconcilable hostility to her enemies, and hurled defiance in their faces; whilst we adjured the God of Hosts to witness our resolution to live free, or die, and imprecated curses on their heads who refused to unite with us in establishing the empire of freedom; we were imposing upon our fellow men, who differed in complexion from us, a slavery, ten thousand times more cruel than the utmost extremity of those grievances and oppressions, of which we complained. Such are the inconsistencies of human nature; such the blindness of those who pluck not the beam out of their own eyes, whilst they can espy a moat, in the eyes of their brother; such that partial system of morality which confines rights and injuries, to particular complexions; such the effect of that self-love which justifies, or condemns, not according to principle, but to the agent.14
From the very beginning of his treatise, Tucker is willing to take a very unpopular stand on two related subjects. He not only condemns slavery and the slave trade in America, but also condemns the denial of civil liberties to those of "particular complexions." These were bold statements for anyone in the early part of the nineteenth century. Continuing his attack on the institution of slavery, Tucker makes sure that his readers understand that slavery and the slave trade were not unique to the South. Tucker is not to be numbered among the self-deprecating Southern scalawags who never miss a chance to condemn the South while praising the North. Tucker understands that the institution of slavery is a universal curse and not something particular to the South.
As Tucker notes, the institution of slavery had an early beginning in America, and the result of that beginning would have ramifications for later generations of Americans. He also explains why slavery was more successful in the South than in the North:
The climate of the northern states [being] less favourable to the constitution of the natives of Africa than the southern, proved alike unfavourable to their propagation, and to the increase of their numbers by importants. As the southern colonies advanced in population, not only importations increased there, but Nature herself, under a climate more congenial to the African constitution, assisted in multiplying the blacks in those parts, no less than in diminishing their numbers in the more rigorous climates to the north.... The great increase of slavery in the southern, in proportion to the northern states in the union, is therefore not attributable, solely, to the effect of sentiment, but to natural causes.15
In his treatise against slavery, Tucker describes three forms of slavery: (1) Political slavery. Political slavery exists when a nation has been conquered by another nation. Tucker states that the "subjection of one nation or people, to the will of another, constitutes the first species of slavery."16 In a state of political slavery, the people of the subjugated nation are denied the right to live under a government by the consent of the governed. The day-by-day existence of each member of society may be relatively free, yet it is the government and not the people who has the ultimate authority. (2) Civil slavery. Civil slavery exists any time the government encroaches upon the liberties of the citizens more than is absolutely necessary for the maintenance
of normal society. According to Tucker, this happens "whenever the laws of a state respect the form, or energy of the government, more than the happiness of the citizen."17 Here, Tucker is following the principle laid down by James Madison in Federalist Paper number 43, in which Madison states, [T] he safety and happiness of a society are the objects at which all political institutions must be sacrificed." When a government becomes more concerned with its own well-being than it is with the well-being of its citizens, a condition of civil slavery exists. Tucker also notes that civil slavery exists any time laws are unequally enforced or any time there is "inequality of rights or privileges between the subjects or citizens of the same state." (3) Domestic slavery. Domestic slavery is a condition in which "one man is subject to be directed by another in all his actions.""' According to Tucker, domestic slavery combines all the disadvantages of the other forms of slavery plus all other disadvantages associated with being under the total control of another person.
It should be obvious that Tucker's efforts in opposition to slavery are much different from the rantings of the Radical Abolitionists. For one thing, Tucker does not attempt to place blame for the institution of slavery on one section or one group of people in America. He logically accepts the fact that slavery and the slave trade are part of the American experience both North and South. Although a vocal opponent of the institution, he does not attack those around him who are in possession of slaves. Most important of all, he understands that slavery can exist in many forms and that no one is ever far removed from being a slave. Certainly, there are some forms of slavery that are more tolerable than others; nevertheless, as an American, Tucker rejects all forms of slavery. This then was the crying need during the two decades prior to the War for Southern Independence as well as for our day. If, in an effort to do good by destroying domestic slavery we only set the stage for the civil slavery of all citizens, what have we accomplished? Remember, the citizens of Nazi Germany, Communist Russia, or Mao's China were civil slaves. Just because they were not bought and sold by local masters is no reason to rejoice in their condition. Would we want our children to be slaves to their state?
Tucker's appeal for the abolition of slavery in America is tempered by warnings against Radical Abolition. Tucker, being fully aware of the prejudice of his day, is an advocate of gradual emancipation and colonization. Tucker explains the need for pursuing the gradual emancipation of slaves and how they should be prepared for that freedom:
The extirpation of slavery from the United States is a task equally arduous and momentous. To restore the blessing of liberty to near a million of oppressed individuals, who have groaned under the yoke of bondage, and to their descendants, is an object, which those who trust in Providence, will be convinced would not be unaided by the divine Author of our being, should we invoke his blessing upon our endeavours. Yet human prudence forbids that we should precipitately engage in a work of such hazard as a general and simultaneous emancipation. The mind of man must in some measure be formed for his future condition. The early impressions of obedience and submission, which slaves have received among us, and the no less habitual arrogance and assumption of superiority, among the whites, contribute, equally, to unfit the former for freedom, and the latter for equality.... Unfit for their new condition, and unwilling to return to their former laborious course, they would become the caterpillars of the earth, and the tigers of the human race)`-'
As we can see from what Tucker is writing, freeing slaves is not something to be done with little or no forethought. Preparation for life after slavery is necessary if the newly freed people are to survive as a free people. Tucker also advocates a form of compensation for slaveholders as a means of promoting the elimination of slavery. Tucker states his reasons for the necessity of compensation:
The laws have sanctioned this species of property [slaves]. Can the laws take away the property of an individual without his own consent, or without a Just compensation.... Creditors also, who have trusted their debtors upon faith of this visible property will be defrauded. If justice demands the emancipation of the slave, she also, under these circumstances, seems to plead for the owner and for his creditor.ZO
In the preceding discussion, we have reviewed the work of a noble Southerner and American. As we have seen, St. George Tucker was a firm advocate of the right of secession by the people of the sovereign state, an open opponent of the institution of slavery in its several different forms, and an early advocate of equality of civil liberty for all free men. Tucker, a Southerner, was not the only noted constitutional scholar who believed in the right of secession by the people of the sovereign states. Let us now proceed to look at the work of a Northerner who also shared Tucker's views.
As has already been noted, William Rawle of Pennsylvania wrote one of the first textbooks on the United States Constitution in 1825. From this work, we can ascertain how this Northerner felt about the issue of secession. Also, some Americans may find it amazing that a Northerner would be president of a Southern abolition organization. Yet, as demonstrated in preceding chapters, before the advent of the Radical Abolitionists, Northerners and Southerners worked together for the elimination of slavery. As president of the Maryland Society for Promoting the Abolition of Slavery, Rawle worked with like-minded Americans for a peaceful end of slavery. Yet, as we will see, Rawle was also a dedicated advocate of the right of secession. In Chapter 31 of his textbook on the Constitution he described how any state of the United States could legally secede from the Union. This very textbook was used at the United States Military Academy at West Point both as a textbook and as a reference book for several years.
The first edition of Rawle's book is a concise volume of 347 pages consisting of thirty-one chapters and four appendices. The year after Rawle's book was it was reviewed by the eminently respected Boston, Massachusetts, journal, the North American Reoiew.21 As noted, Rawle's book contained one chapter which gave unambiguous direction on how and under what circumstances a state could secede from the Union. Having been reviewed in a leading American journal in 1826, almost forty years after the adoption of the Federal Constitution, if secession was considered to be treasonous or un-American, certainly the political commentators of Boston would have sounded the alarm. Yet, not one word of opposition was written about Rawle's view on secession. With the exception of taking issue with Rawle's view on how the presidential election should be held, the reviewer offered much praise for Rawle's book in a cordial report. In his summation the reviewer noted, "To those, who are desirous of studying the noblest monument of human wisdom, the Constitution of the United States, we recommend the treatise of Mr. Rawle as a safe and intelligent guide" [emphasis added].22 Not only was Rawle's book warmly reviewed when it first appeared in print, but twenty-eight years later, it was still being recommended. In his book, On Civil Liberty and Self- Government, Francis Lieber, LL.D., recommended Rawle's book (among others) to his students and former students as a guide in constitutional issues.23 It should be noted that Rawle's book was recommended by a Boston journal thirty-four years before Southern secession and by a leading Northern jurist only seven years before Southern secession. If secession is un-American, treasonous, or a slaveholders' scheme, why did a Northern journal and a Northern jurist both recommend Rawle's book which acknowledged this right?
As to who has the right to make and unmake a government, Rawle unequivocally states, "A moral power equal to and of the same nature with that which make, alone can destroy.... So the people may, on the same principle, at any time alter or abolish the constitution they have formed."24 But how can the American people "alter or abolish" a government? Is this to be a great democratic experience of the American nation? Hardly so! The act of altering or abolishing is, according to Rawle, to be done by the same power "which made" the constitution, that is, the state. "It [ratification of the Constitution] was not the simple act of a homogeneous body of men, either large or small. It was to be the act of many independent states, though in a greater degree the act o
f the people set in motion by those states; it was to be the act of the people of each state and not of the people at large."25
We find in Rawle's examination of the Constitution his theory of how the people of a state would initiate its secession from the Union. Rawle always recurs to the idea that the people within the sovereign community (that is, the state) have the right to determine their own political destiny. As Rawle states:
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... . Still, however, the secession must in such case be distinctly and peremptorily declared to take place on that event.... But in either case the people is the only moving power.26
Myths of American Slavery Page 18
