The Error Of Secessionists
John William Noell of Missouri
United States House of Representatives, January 20 1860

The questions which I propose to discuss have been discussed by some gentlemen on this side of the House without interruption on the part of other members. I trust that I shall be permitted to make my remarks without interruption.

Mr. Clerk, I propose to discuss several propositions, which I will now state.

1. That the Federal Government is a compact between the States, not as organized State governments, but in their highest sovereign capacity as communities of people.

2. That the powers of the various departments of the Federal Government have been arranged with special reference to the reserved rights of the States and people, and means are thereby provided for the protection of both.

3. That in case of any attempted or actual infraction or violation of those rights, the protection and remedy are to be sought through the means provided by the Constitution, and not by secession or nullification.

4. That in case all these remedies are appealed to and fail, and our grievances shall become so enormous that revolution and the overthrow of the Government are preferable to further submission, then we may resort to the ultima ratio of all people under every form of government - to overthrow by force the existing, and establish a new government to secure our safety and happiness.

5. That it is against the true policy of the South to dissolve the Union or secede from it; and that on the real question that divides parties, the South always did hold, and will continue to hold, under this Government, all the power necessary for her security, protection and equality.

I have already disclaimed on this floor, for myself and my constituents, the extreme views expressed by some gentlemen who are acting with the Democratic organization. That disclaimer was incidental and informal. Many gentlemen on this side of the House have, since then, with a zeal and ability worthy of a better cause, pressed those doctrines upon the country. If no attempt is made to meet them on the Democratic side, it might be construed into an admission that they were part of the Democratic creed. In order that the country may not be misled, I will now, in a more formal manner, attempt to place before the House my opinions on these vital questions, and sustain them with the best reasoning I can command.

Sir, the dogma that each State, and the people of each State, are to be the sole and exclusive judge to determine when the rights of a State or her citizens have been violated by the Federal Government, and that such State is to determine the mode and measure of redress for such violation, in the sense for which it is contended here, is, in my opinion a fatal heresy. It is, in my judgment, founded on a misapprehension of the true theory of the national Government, and its adequacy to protect the rights of the States and the people.

Sir, I maintain the true theory of the Federal Government to be, that within the scope of its powers, it is the government of each and every one of the States, as fully and completely as each separate State government within the scope of the reserved powers is the government of such State. Each is supreme within its own sphere. The State has no more right to encroach upon the rights and prerogatives of the Federal Government than has the Federal Government the right to encroach upon the rights and prerogatives of the State government or the people. They are coordinate departments of the same system - the one invested by the conjoint sovereignties of all the Staes with national powers; the other invested by the separate sovereignty of the particular State with all other powers of government. The adoption of the national Constitution by all of the States, operated to that extent as an amendment or change of each State constitution, by which certain powers before that time vested in the State authorities, were transferred to, and vested in, the national Government. The General Government is no less a State government, for all the States within its sphere of powers, than is each State government the government of the particular State. This proposition is established in two ways: First, by the mode of its formation; second, by the peculiar features of the Government itself.

As to the mode of its formation. It was not framed by the then existing organized State governments. The then existing organized State governments could only act by their then constituted authorities - by their Legislatures and by their Executives. If the States had acted through their existing organizations in framing the Federal Government, the result could not have been a Government, but a treaty or league. Such treaty or league, according to the laws of nations, may always be entered into by independent sovereigns through their constituted authorities. But then such league could only affect them as States. It would not reach the individuals of which the State is composed. Therefore, this plan of league was repudiated for most obvious reasons. The people of each State, acting in their highest sovereign capacity, independent of the State constitutions already existing, and by an authority paramount to, and which created such constitutions, met in convention, by their representatives; not as a solid mass of the whole people, without reference to the States, but as the people of the several States, and framed the Constitution of the Federal Government. Such was Mr. Jefferson's understanding. Mr. Jefferson says, volume 1, page 78:

"The fundamental defect of the Confederation was, that Congress was not authorized to act immediately on the people, and by its own officers. Their power was only requisitory, and these requisitions were addressed to the several Legislatures, to be by them carried into execution, without other coercion than the moral principle of duty."

Acting in this high sovereign capacity, they withdrew from the State authorities the exercise of certain sovereign powers, and vested the same in the General Government.

So much for the mode of its formation. I come now to the second ground of proof - that is, the peculiar features of the Government.

First. This body, which represents all the people of a whole Union by a system of equal representation, is intended to embody the national sentiment as a whole. Here all revenue measures must originate. Here the Executive, in any attempt to encroach on the rights of the people as a nation, is held at arms' length. No ambitious scheme can be carried out by the Executive without the consent of the people's Representatives here, who hold the purse strings. In this body, too, when a contingency happens, (that no candidate for President receives a majority of all the electoral votes,) must the election of that officer at last be made? And how, sir? Not in our usual form of deciding by a majority of members, but by giving to each State, great and small, an equal weight. In a country so diversified as ours, having our North and South, our East and West, our various and conflicting interests, it is not probable that an intensely sectional President would ever be elected by this House, when three candidates are brought before it.

Here is a great conservative principle, intended to protect the States. It was placed there by design in order to provide against some of the evils which many of us now so seriously apprehend, not the least of which is the election of a sectional President. We come to the Senate, the peculiar representative of State sovereignty. No law can be passed without the concurrence of a majority of all the States represented in the Senate. The popular may pass what laws they please through their own body. Perhaps the Representatives of five or six large States, if they were identified in interest, might get a bill through here destructive of the rights and interests of the other States; but when it goes over to the Senate, it meets the representatives of the States, a majority of whom must agree to it before it can become a law. This body likewise holds a check on the executive. It must not only agree to all revenue measures before they can become laws, but, sir, no treaty with foreign nations is of any validity till ratified by a majority of the States. The great public functionaries of the Government appointed by the Executive must all be confirmed by the Senate, so conservative in its character.

Next we take the Executive. He represents a mixed basis of State and popular sovereignty, and when his election is brought to the House he represents the people in their capacity of citizens of the several equal States, each having equal power in his election. While conservative elements enter into his election he is at the same time guarded by coordinate departments of the Government stil more conservative. He is sworn to support the Constitution and armed with the veto power. This power is not creative - therefore its exercise never has an active operation to bring forward or carry through bad or unjust laws - but is negative. The power of the veto is to protect against hasty or unconstitutional legislation.

Last, though not least, we come to the Federal judiciary. its constitution is peculiar. The judges are nominated by the President himself, representing both people and States through the form of his election. But still they cannot be judges until they are confirmed in the Senate by a majority of the States.

Thus it will be seen that the judges of the Federal judiciary are, by the mode of their appointment, placed in an eminently conservataive position. When once appointed, they are far above the influence or reach of either the executive or legislative departments. They hold their offices for life. They are placed in that independent position that no motives can exist for bending to either executive or legislative control. When the people of the several States, acting in their hightest sovereign capacity framed and adopted this Constitution, entered into this compact, they provided for their own protection in the peculiarities with which they invested its various departments. All voluntarily agreed, in their highest sovereign capacity, that this Government should perform certain national functions which, before that time, these same several communities of sovereign people had confided separately to their several State governments.

Such being the theory of our Government, the question arises, when there is a conflict of jurisdiction between the Federal and State governments, who is to decide the boundary line of that jurisdiction? On the one hand it is contended that each State must determine this question for itself; on the other hand it is contended that such a construction would render the General Government utterly powerless to perform its functions. If the Federal Union is a mere league or treaty between independednt sovereignties, then the former construction would undoubtedly be correct, but, at the same time, would be precisely such an arrangement as existed under the old Articles of Confederation. Now, I have already stated that the States, by and through their then existing organizations, did not create the Federal Union, but that the people of the several separate States, in their sovereign character, framed the Government, and provided, in the balances of its various departments, and its conservative State-rights features, for their own joint and several protection. It remains only to inquire what the people of the several States did agree to in this compact. I take the ground that they agreed that all questions not sufficient to justify revolution should be determined either by the Federal judiciary or by a convention of all the States - such a convention as framed the Constitution. The second clause of the sixth article of the Constitution provides as follows:

"This Constitution, and the laws of the United States made in pursuance thereof, and all treaties made, or which shall be made under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the consitution or laws of any State to the contrary notwithstanding."

This is a clear and unequivocal agreement by the sovereign people of each State, that within the sphere of its constitutional powers the laws of the United States are the paramount laws of the land. Within the range of these powers, then, the allegiance of each citizen binds him when a conflict arises, in any such case as this, to obey the laws of the General, not the State government; and in this he owes a sole and exclusive allegiance to the General Government. There can be and will be no dispute on this point. Still, it does not answer the question. We must go to other sections of the compact for that answer. The first clause of the second section of article three, provides as follows:

"The judicial power shall extend to all cases in law or equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority," &c.

Now, it must be remembered that this provision is part of the voluntary compact, and can no more be repudiated than any other part of the Constituion. If, then, this provision, giving the Federal judiciary jurisdiction in all cases arising under the Constitution or laws of Congress, is, in the language of article six, the paramount law of the land, which it was agreed by all parties should override State constitutions and State laws, how can the conclusion be avoided, that in all cases not amounting to the necessity of revolution, this is the arbiter that must decide? It is objected that this section applies to cases in law or equity; that State rights may be encroached upon without making a case. I imagine, when closely examined, this technical answer will be found to have no substantial force.

First, there is no system of legislation that Congress could enter upon out of which cases cannot be readily made for the Federal courts. If it is intended to reach an unconstitutional tariff, a refusal to pay the impost, in some form that would authorize a suit, would bring up that question. All such legislation acts upon individual rights, and makes cases for the courts. If Congress should attempt to discriminate in its territorial legislation between the citizens of the different States, that, in every instance, will make cases for the Federal courts, as in the Dred Scott case and numbers of cases under the fugitive slave law which have arisen in the free States. Massachusetts, holding that the fugitive slave act, depriving a slave of the right of a trial by jury in the place where the master apprehends him, is unconstitutional, enacts her personal liberty bills, under which the master is deprived of his slave, or the Federal authorities resisted. If the acts of the State officers amount to crimes, they are indicted and tried in the Federal courts, or the master brings a civil action for damages. On the trial they justify under state laws, and on the ground that the fugitive slave law is unconstitutional.

The Federal courts take up the question and decide it, thereby enforcing obedience on the part of the citizens of Massachusetts to this paramonnt Constitution and law. If, sir, it did not possess this character of supremacy, I would like to know from whence you would derive the right to compel obedience. If the question as to the power of Congress on this subject, or the question as to when Congress exceeded its constitutional powers, was left to the government of Massachusetts to decide; there is but little doubt how it would be decided. Fortunately for us, the compact into which Massachusetts entered took from her Legislature, her people, and her judiciary, the decision of that question, and placed It in the juridiction of an independent common umpire, upon which all agreed, and which, from its organization, was intended by the people of the several States as a barrier against the encroachments both of the Federal and local governments, upon the powers and rights of each other.

Should questions of power arise betweew the two governments, State and Federal, of such vital importance, and of such character that the Federal judiciary could not take hold of them, then,in order to avoid a revolution, I would say, as Mr. Jefferson said, that it must be decided by a convention of the States to supply an omission of the Constitution. Mr. Jefferson, in a letter to Major Cartright, in June, 1824, uses this language:

"With respect to our State and Federal governments, I do not think their relations correctly understood by foreigners. They generally suppose the former subordinate to the latter. But this is not the case. They are coordinate departments of one simle and integral whole. To the State governments are reserved all legislation and admistration in affairs which concern their own citizens only; and to the Federal Government is given whatever concerns foreigners, or the citizens of other States; these functions alone being made Federal. The one is the domestic, the other the foreign branch of the same government; neither having control of the other, but within its own department. There are one or two exceptions only to this partition of power. But you may ask, if the two departments should claim each the same subject of power, where is the common umpire to decide ultimately between them? In cases of but little importance or urgency, the prudence of both parties will keep them aloof from the forbidden ground; but, if it can neither be avoided nor compromised, a convention of the States must be called to ascribe the doubtful power to that department which they may think best."

While I am not prepared to say, with Mr. Jefferson, that such a convention would be necessary in a question between State and Federal Governments, as such, though perhaps it might be, yet there are two propositions clearly maintained in this letter with which I agree. First, that the Federal and State governments are coOrdinate departments of the same Government, each supreme within its own sphere; and second, that a convention of the States would have the power to settle such a question if the necessity occurred. The class of cases here referred to by Mr. Jefferson does not belong to the same tribe about which we quarrel so much. We quarrel over those laws which we say are unconstitutional, as affecting individual rights in the States or Territories. Those to which Mr. Jefferson refers are only such as arise between the General and State governments in their character of sovereigns, and not operating on individuals. So far as I know, Mr. Jefferson never questioned the power of the Federal judiciary to decide all constitutional questions affecting the rights of individuals in the different States, under the Constitution and laws of the General Government.

While sir, I deny the right of the States, or the people of a particular State, to determine for themselves when their rights are violated by the General Government, and to fix upon the measure of redress, in the sense in which that right iS claimed as a ground of secession, I admit the right in another sense. The States have a right to determine this question for the purpose of interposing for their own protection under and within the forms provided by the Constitution. The people of a State, or of all or any part of the States, have a right to determine for themselves the time when their grievances become so intolerable that revolution and the overthrow of the Government, as to themselves, is preferable to longer submission. This is the right of every people, founded in an overwhelming necessity, and is to be resorted to when all peaceful, lawful modes of redress fail. This is not a constitutional right, but an inalienable, paramount right, rising above all constituitions and is to be maintained by force.

Herein lies the error of secessionists. The right to determine, and the measure of redress which they claim, is not that which the Constitution tolerates or the natura1 law recognizes. This heresy, if I may be allowed the expression, has grown up in this country mainly upon an erroneous construction of the celebrated Virginia resolutions of 1798. I subscribe heartily to the real doctrine of those resolutions, as construed and understood at the time. That the excitement which then pervaded the country may have given to the resolutions a tone and phraseology more pointed and violent than they would have assumed under other circumstances, may well be admitted. Still, like the great Magna Charta of England, they will forever remain the bulwark of our liberty. Men may wrest them, like they do the Scriptures, to their own detruction, but that does not detract from their value. I propose, briefly, to review those resolutions, and show the House their real object and meaning. The third resolution of the series is that mainly relied on to sustain the doctrine of secession or nullification. It reads as follows:

"That this assembly doth explicitly and peremptorily declare that it views the powers of the Federal Government as resulting from the compact to which the States are parties, as limited by the plain sense and intention of the instrument constituting that compact; as no further valid than they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the States who are parties thereto have the right, and are in duty bound, to interpose for arresting the progress of the evil and for maintaining within their respcctive limits the authorities, rights, and liberties appertaining to them."

Here, sir, is the doctrine laid down very clearly that, in case of a deliberate, (that is, a premeditated,) a palpable, (that is a clear, unmistakable,) and dangerous exercise of powers not granted, the States may interpose for arresting the progress of the evil, &c. The language clearly implies that such interposition as is here meant must be made by the States, whenever,in their judgement, it becomes necessary. But what kind of interposition is this, the necessity of which is to be determined by the States? Surely not an interpositiOn that would go to the extent of nullifying a law or withdrawing from the Union. If they withdraw, the right of interposing at once ceases. That would be to break up the whole relation; not interposing because of the relation between Federal and State Government. Nor does it mean to interpose the physical or legal power of the State, in a conflict with the General Government. To determine the kind of interposition that is meant, we must look at another resolution, the last of the series. It is as follows:


The Congressional Globe, The Official Proceedings of Congress, Published by John C. Rives, Washington, D. C.
Thirty-Sixth Congress, 1st Session,
New Series...No. 34, Saturday, January 21, 1860, pages 535-539.