# The Doctrine of State Rights

The President of the Confederacy's posthumous defense of states' rights, published in The North American Review, Vol. 150, No. 399 (Feb., 1890), pp. 205–219.
​To do justice to the motives which actuated the soldiers of the Confederacy, it is needful that the cause for which they fought should be fairly understood; for no degree of skill, valor, and devotion can sanctify service in an unrighteous cause.
We revere the memory of Washington, not so much for his achievements in arms as for his self-abnegation and the unfaltering devotion with which he defended the inalienable rights of the people of all the United States. This made him "first in peace, first in war, and first in the hearts of his countrymen," and for this the great English poet wrote: "But one were worthy of the name of Washington." Yet he was what no Southern soldier in the war between the States could, with truth, be called—a rebel—and, without much extravagance in the figure, was said to have fought the battles of the Revolution with a halter round his neck. Had there been no inalienable rights, or had they not been violated, he could not rightfully have been absolved from his allegiance to the crown, or conscientiously have felt that he had not broken his faith as subject to the lawful powers of the British Government, in taking up arms against it.
In 1776 thirteen of the British colonies in America sent delegates to a general congress, who there, for the colonies they represented, made the declaration "that these united colonies are, and of right ought to be, free and independent states." Therefore these, like other British colonies in America, were dependencies of Great Britain; and to justify their declaration of independence, a formidable arraignment of the king for his violation of their mutual obligations and rights was submitted to the judgment of mankind. It has been customary among us annually to read this declaration to admiring audiences; and what ​American has raised his voice against the conclusion deduced? The permeating principle was that every people had the right to alter or abolish their government when it ceased to answer the ends for which it was instituted. Each State decided to exercise that right, and all of the thirteen united to sustain it. Great Britain denied the existence of the asserted right and a long war ensued. After a heavy sacrifice of life and treasure, the Treaty of Paris was negotiated in 1783, by which Great Britain recognized the independence of the States separately, not as one body politic, but severally, each one being named in the act of recognition.
In the year succeeding the Declaration of Independence—i. e., 1777—the thirteen States by which it had been made sent delegates to a general congress, and they agreed to "certain articles of confederation and perpetual union between the States" they represented, and that "the style of the confederacy shall be the United States of America." That no purpose existed to consolidate the States into one body politic is manifest from the terms of the second article, which was: "Each State retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right which is not by this confederation expressly delegated to the United States in congress assembled." The meaning of this article is quite plain, if it be borne in mind that under the confederation the congress was of States, each having one vote only, irrespective of population or the number of delegates in attendance, and the expressly-delegated powers were such as it was agreed that the congress of the States might use, all else being reserved to the States separately. Under these Articles of Confederation the war of the Revolution was conducted.
In the face of the Declaration of Independence, and of the Articles of Confederation, and of the Treaty of Paris, he who denies that in 1783 each State was a sovereign, free, and independent community must have much hardihood or little historical knowledge.
After the independence had been gained for which so much was risked and no little lost, when the condensing pressure of war was removed, the fact became apparent that it was impracticable to administer the general affairs of the Union without the possession of additional powers. In 1787 a convention met to amend the Articles of Confederation, and ended by proposing a new form of government which was to be submitted to the States, ​and, if ratified by nine of them, should go into effect as between the States so ratifying it. If only nine consented, what was to become of the other four, and what of the plighted faith to a perpetual union? We are not left to speculation with different numbers; the case did actually occur. Eleven States ratified; two refused: what was to be done? The expedient of raising an army to coerce North Carolina and Rhode Island into an acceptance of the Constitution or new form of government seems not to have occurred to any one of that day, and the situation was especially embarrassing because the thirteenth article provided that the union should be perpetual, and that no alteration should be made in any of the Articles of Confederation, "unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislature of every State."
An easy escape from the dilemma was found; it was to disregard the pledges and prohibitions of Article Thirteen, secede from the confederation styled the United States of America, and form a new government with the same style as the old one. It was anticipated that some of the State legislatures would not confirm this procedure; therefore it was provided by the last article of the proposed new Constitution that the "ratification of the conventions of nine States" should suffice for its establishment "between the States so ratifying the same." It will be observed that the new Constitution was to be submitted for ratification to a higher authority than the Congress and State legislatures, viz., to conventions of the people of the States, the recognized form in which State sovereignty was represented. Mr. Madison, in the forty-third number of The Federalist, notices as a defect of the confederation that it had received no higher sanction than legislative ratification; hence, as provided in the last article of the new Constitution, it was to be submitted to our highest political authority—conventions of the people of the respective States.
That was the supreme authority which, according to the American theory, could alter or abolish their government, and by which, nine States concurring, it was proposed to dissolve the "perpetual union" of the confederation and establish a new one among themselves. In this connection the distinguished member from Massachusetts remarked: "If nine out of thirteen [States] can dissolve the compact, six out of nine will be just as able to dissolve the future one hereafter."
​Mr. Madison, in The Federalist, to the question, "On what principle the confederation, which stands in the solemn form of a compact among the States, can be superseded without the unanimous consent of the parties to it?" answers: "By recurring to the absolute necessity of the case; to the great principle of self-preservation; to the transcendent law of nature and of nature's God, which declares that the safety and happiness of society are the objects at which all political institutions aim, and to which all such institutions must be sacrificed."
Thus the matter stood when the Constitution to form a more perfect union was adopted, not, as has been most unjustifiably asserted, by the people of the United States in mass, but by the people of the States, each acting in its own convention and ratifying at different dates, the first being December 7, 1787, the last May 29, 1790. In view of facts so generally known, or (if not so) accessible to every reader of American history, it is surprising that some have contended that the Union was formed by the people of the United States as one body politic.
Though the States by a voluntary compact created a general government and delegated to it enumerated powers, reserving all else to themselves, it has been attempted to deduce from these limited grants a supremacy for the agent over the States, and, consequently, to deny to the States of the Union the sovereignty they possessed as States of the confederation. No one has attempted to show by what grant of the Constitution it can be claimed that the States have surrendered their sovereignty, and it seems absurd to assume that by implication the great object for which our fathers staked all save honor could have been lost. But they were too watchful to leave the question open for argument. Therefore, though the body of the instrument was thought by its framers to be sufficiently explicit in its limitation of the powers of the general government to those expressly delegated, yet, in an abundance of caution, almost contemporaneously with the ratification of the compact, two amendments were proposed and adopted in the following words:
"Article IX. The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.
"Article X. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
​Consolidationists, with more zeal than reason, have argued that the last two words in the tenth amendment referred to the whole people. But this is surely untenable; the only people known to the system were the people of a State or commonwealth; they only had been represented in the Congress or in the convention which framed the Constitution. To them that instrument had been submitted; by them it had been ratified. The expression fairly construed must mean the State governments, and the people of each State who held rights they had reserved from the control of their State government. Furthermore, the obvious purpose being to guard against the usurpation of undelegated power, it would have been worse than superfluous by reservation to provide protection for the whole people against themselves.
In claiming sovereignty for the States I must not be understood as meaning the State governments. When the word State is used, it means the people of an organized community. The founders of the American Republic never conferred or intended to confer sovereignty upon either State or Federal governments.
If the people of the States, in forming a Federal Union, transferred their sovereignty, or any part of it, to whom was the transfer made? Not to the people of the United States in the aggregate, for there was no such political body. The Articles of Confederation in their front declared that each State retained its sovereignty, freedom, and independence; that could only mean the people in their organic character. In like manner the original constitution of Massachusetts declared: "The people inhabiting the territory formerly called the Province of Massachusetts Bay do hereby solemnly and mutually agree with each other to form themselves into a free, sovereign, and independent body politic, or State, by the name of The Commonwealth of Massachusetts." In the debates of the convention which formed the Constitution, as they are found reported in Elliott's "Debates," there is abundant proof that the men who prepared the instrument recognized sovereignty as belonging to the people of the individual States; that there was no purpose to transfer it to the Federal Government, or to regard it as being divisible. The States intrusted to the Federal Government, as their agent, some of the functions of sovereignty, but the performance of these by authority of the people of the States did not involve a violation of a cardinal feature in the American theory; that sovereignty ​belonged alone to the people, and the resolutions of ratification of the Constitution by the States show whether the purpose was to transfer the power or only to authorize its use.
The usual form of ratification was as in the following examples: "The delegates of the people of the State of New Hampshire, in the name and behalf of the people of the State of New Hampshire," etc., and "the delegates of the people of Virginia, for and in behalf of the people of Virginia," etc., do assent to and ratify the said Constitution for the United States of America.
As had been done by Massachusetts, New Hampshire, and South Carolina in ratifying the Constitution, Virginia required certain amendments as a more explicit guarantee against consolidation, and accompanied the proposition with the following declaration: "That the powers granted under the Constitution, being derived from the people of the United States, may be resumed by them whenever the same shall be perverted to their injury or oppression, and that every power not granted thereby remains with them," etc., etc. For whom were the delegates commissioned to speak? Only for the people of Virginia. By whom had grants been made? By the States severally, and the assertion could only mean that to each of them all undelegated power remained. Indeed, there was no other repository from which it could have been drawn; therefore no other in which it could have been said to remain.
New York was the eleventh State to assent to the compact of union, and her ratification was made more than seven months after that of Delaware, and was accompanied by a declaration of the principles on which her assent was given, from which the following extract is made: "That the powers of government may be reassumed by the people whensoever it shall become necessary to their happiness: that every power, jurisdiction, and right which is not, by the said Constitution, clearly delegated to the Congress of the United States, or the departments of the government thereof, remains to the people of the several States, or to their respective State governments, to whom they may have granted the same," etc.
Here, even more distinctly than before, is answered the question as to who were the people by whom the powers might be reassumed. Provision had been made for several modes of amending the Constitution by the joint action of the States, and if it had ​been the will of all the States to reform, or even to dissolve, the government, they would not have been obstructed, as they were under the Confederation, by a pledge to perpetual union or by a prohibition against any alteration of the Constitution except by unanimous consent of the States. Therefore, unless the right to reassume was asserted as belonging to any State being a party to the compact, the declaration was useless and seemingly without an object. Reassumption is the correlative of delegation.
By the published debates of the general convention of 1787 which prepared the Constitution, and of the State conventions to which it was severally submitted for approval or rejection as each should decide, and by the resolutions of ratification, it is clearly demonstrated that they did not surrender their dearly-bought, most prized sovereignty, freedom, and independence, or commit the absurdity of attempting to delegate inalienable rights.
At that early period sectional rivalry was manifested, and some of the most influential advocates of the new Union felt the lurking danger of faction and sought to provide against it by means consistent with the perpetuity of the Union. Faction, with the tendency of majorities to oppress minorities, was the recognized cause of failure in former federations and republics. To protect the United States from that evil, it was sought to secure a balance of power between the North and the South, by so organizing the two houses of Congress that neither section would have a majority in both. The purpose was good, but the calculation was bad, so that in a not-distant future the North, as a section, had a majority in both houses of Congress and in the electoral colleges for the choice of the President. Party did for many years control faction; and principles, independent of latitude and longitude, formed the cement of political parties. Thus it was, as late as 1853, that that true patriot and friend of the Constitution, Franklin Pierce, could conscientiously say that, politically, he knew no North, no South, no East, no West.
The wise statesmen who formed the plan for the new Union of 1787–90, with admirable caution, required a material barrier to check majorities from aggression under the influence of self interest and lust of dominion. They could not have been certain that their method of preserving the balance of power between the sections would be permanently successful. What, then, was the remedy in case of violated compact and aggression upon ​served rights? None was stated, but the proposition to authorize the employment of force against a delinquent State was denounced on all sides of the convention and rejected without a division. In the original draft of the Constitution the term "national government" was written: to this expression Mr. Ellsworth objected, and moved to drop the word "national" and retain the proper title, "the United States"; which motion was unanimously adopted by the convention. Both the coercion of a State and the use of the term "national government" were emphatically condemned by the framers of the Constitution.
A compact was made between independent States by which expressly-enumerated powers were delegated to a government instituted for their common benefit, which was a partnership without limitation. No mode of terminating it was specified, but Mr. Madison, than whom none was better informed of the opinions and purposes of the members of the convention, in the number of The Federalist heretofore quoted (which was an argument to justify secession from the confederation) wrote:
"It is an established doctrine on the subject of treaties that all articles are mutually conditions of each other; that a breach of any one article is a breach of the whole treaty; and that a breach committed by either of the parties absolves the others, and authorizes them, if they please, to pronounce the compact violated and void. Should it unhappily be necessary to appeal to these delicate truths for a justification for dispensing with the consent of particular States to a dissolution of the Federal pact, will not the complaining parties find it a difficult task to answer the multiplied and important infractions with which they may be confronted? The time has been when it was incumbent on us all to veil the ideas which this paragraph exhibits."
It is unfortunate that the convention should have thought proper to veil the delicate truth and did not in plain terms announce the right of a State to secede from the Union whenever it should cease to answer the ends for which it was established, viz., to insure domestic tranquillity and promote the general welfare. Our past history distinctly shows how reluctant any State would be to sever her connection with the Union; and may it not reasonably be inferred that, if the right to withdraw had been recognized, there would have been additional care not to give just cause for the exercise of that right?
Though not expressed, the existence of the right was often asserted and rarely, if ever, denied anterior to 1861. It cannot be said that it was then for the first time formally asserted and ​therefore for the first time denied. The acquisition of Louisiana in 1803 created much dissatisfaction in the New England States, the reason of which was expressed by an eminent citizen of Massachusetts, who said that "the influence of our part of the Union must be diminished by the acquisition of more weight at the other extremity." ("Life of Cabot," by Lodge, page 334.)
In 1811, on the bill for the admission of Louisiana as a State of the Union, the Hon. Josiah Quincy, member of Congress from Massachusetts, said: "If this bill passes, it is my deliberate opinion that it is virtually a dissolution of this Union; that it will free the States from their moral obligation; and as it will be the right of all, so it will be the duty of some, definitely to prepare for a separation—amicably if they can, violently if they must."
The Hartford Convention assembled in December, 1814. From their published report the following extract is made: "If the Union be destined to dissolution by reason of the multiplied abuses of bad administration, it should, if possible, be the work of peaceable times and deliberate consent. . . . Whenever it shall appear that the causes are radical and permanent, a separation by equitable arrangement will be preferable to an alliance by constraint among nominal friends, but real enemies."
In 1844 the measures taken for the annexation of Texas evoked threats of a dissolution of the Union. The Legislature of Massachusetts adopted a resolution declaring that "the Commonwealth of Massachusetts, faithful to the compact between the people of the United States, according to the plain meaning and intent in which it was understood by them, is sincerely anxious for its preservation; but that it is determined, as it doubts not the other States are, to submit to undelegated powers in no body of men on earth"; and that "the project of the annexation of Texas, unless arrested on the threshold, may tend to drive these States into a dissolution of the Union."
The examples cited are sufficient to show that secession was not a new idea in 1861, and that its assertion was not of Southern origin. Before leaving the subject, it may in general terms be stated that the doctrine of State rights is not that of a section, but is that of a minority, seeking the protection of State sovereignty from the real or supposed aggression of a usurping majority. In vain have we asked by what clause of the ​Constitution the States surrendered their sovereignty and, by consequence, a State lost its right to secede; and the nearest approach we have had to an answer has been the inquiry, Where is the right of a State to secede set forth in the Constitution? This marks either an evasion of the issue or extreme ignorance of the history of the Union. The States delegated all the rights and powers which the general government possesses, and they agreed with each other that no State should exercise certain functions which were intrusted to the Federal Government as their agent; therefore it seems not less than puerile to ask from what part of the Constitution the right or power of a State was derived. Every power, function, or right which the States did not agree to delegate to their common agent remained with them. No one of ordinary information and intelligence can deny that the States were sovereign, free, and independent when they entered into the compact of Union. If they had not been sovereigns, they would not have been competent to form that treaty; and as none have even attempted to show where or how their sovereignty was lost, it must be regarded as among the reserved powers of the States, and hence, still being sovereigns, they had the same legal power and right to secede from the Union which they had exercised in acceding to it.
The declared purpose of the Union was to promote the genral welfare, and to secure to posterity the blessings of liberty, which the States had achieved by the sacrifices of the Revolution. The men who negotiated the compact for a "more perfect union" of the States were not visionaries or optimists, but profound students of the world's history, from which they had learned the tendency of free government to breed faction and of majorities to oppress minorities, resulting in the lamentable wreck of past federations and the loss of the liberty they were formed to secure. To guard against that danger, the representation of the States in the two houses of Congress was to be apportioned so as to secure a balance of power—i. e., so as to prevent either the North or the South from having a majority in both houses. The plan failed; the North got a majority in both houses, and history repeated itself. Under the power of Congress to levy duties on imports "to pay the debts and provide for the common defence and general welfare of the United States," duties were levied not merely for revenue, but avowedly to protect domestic ​manufactures from foreign competition. As the manufactories were mainly at the North and the exports from the South, this measure to increase the price of imports for the benefit of domestic manufacturers at the North was usurping an undelegated power, by sectional discrimination, in disregard of the obligation to establish justice and promote the general welfare. It was a twofold injustice to the South, by increasing the cost of its imports and diminishing the value of its exports in the markets of exchange. In this connection I will quote from Mr. Benton, a statesman of long experience and close observation, and not particularly friendly to the South. He says: "Under Federal legislation the exports of the South have been the basis of the Federal revenue." He names four Southern States as contributing three-fourths of the annual expense of the Federal Government, and adds:
"Of this great sum annually furnished by them, nothing, or next to nothing, is returned to them in the shape of government expenditures. That expenditure flows in an opposite direction—it flows northwardly in one uniform, uninterrupted, and perennial stream. This is the reason why wealth disappears from the South and rises up from the North. Federal legislation does all this. . . . No tariff has ever yet included Virginia, the two Carolinas, and Georgia, except to increase the burthens imposed upon them."
It has, in modern times, been asserted by some in high position, if not of high authority, that the will of the majority was the law of the land. Not so thought the men who formed the Constitution. They sought through every conceivable device to protect minorities from the despotism which majorities are ever prone to inflict, and I must insist that while each State retained its sovereignty it had a shield against the despotism of a majority in its power to withdraw to the precincts of its own dominion; and this, if the majority were heedless of every appeal to justice and their compact, was the only remedy which seems to have been left. De Tocqueville, in his "Democracy in America," Vol. I., page 301, writes:
"The majority in that country exercise a prodigious actual authority and a moral influence which is scarcely less preponderant; no obstacles exist which can impede or so much as retard its progress, or which induce it to heed the complaints of those whom it crushes upon its path."
Mr. Madison, in the Virginia Convention of 1788, said:
"Turbulence, violence, and abuse of power by the majority trampling on the rights of the minority have produced factions and commotions which in republics ​have, more frequently than any other cause, produced despotism. If we go over the whole history of ancient and modern republics, we shall find their destruction to have generally resulted from these causes."
In 1861 all the plans proposed to restrain the majority had failed. The dangers which had been described as belonging to the condition we were in had to be met. The South, by her representatives in the two houses of Congress, tried, by select committees, to find some possible means of giving security to the Southern States short of adopting the last resort, secession.
The committee of the Senate organized in January, 1861, of which the writer of this article was a member, sought diligently to find some basis of adjustment on which a majority of the members representing the three political divisions of the Senate could agree. These divisions were known as the Radicals of the North, the Conservatives of the Middle States, and the Ultras of the South. The venerable Senator of Kentucky, Mr. Crittenden, had offered the resolutions which were referred to the committee. Mr. Douglas, Senator from Illinois, after the failure of the committee to agree upon anything, called the attention of the Senate to the fact that it was not the Southern members, naming particularly Toombs and Davis, who obstructed measures for pacification, but the Northern men, who had objected to everything, and on whom he then called for a statement of what they proposed to do, to which no answer was made. Exulting in the result of their recent election, feeling power and forgetting right, they yet dared not avow the evil purpose which they contemplated. One State had already withdrawn from the Union, and events in others were moving with accelerated velocity to the same conclusion; yet the men who were soon to be most vociferous in declarations of love for the Union were silent when words might have been effectual to save it. It had been but a few years since a hearing had been refused to abolitionist lecturers in New England; but now the eminent orator, Wendell Phillips, exulting in the terrible faction which was ruling in the North, said: "It does not know its own face and calls itself national; but it is not national—it is sectional. The Republican party is a party of the North, pledged against the South."
Mr. Seward, he of the irrepressible conflict, who was regarded as the power behind the throne of the incoming administration, was a member of the committee above referred to; ​but he sat in the Senate silent under the challenge of Mr. Douglas, and allowed the language of Mr. Phillips to go for what it was worth.
For the first time in the history of the country a sectional candidate for the Presidency had been elected. A majority of the Presidents had been Southern men, but none of them had been elected as such. They had always been nominated by a party coextensive with the Union, and voted for in all the States; but Mr. Lincoln had been put forth on purely sectional grounds and did not receive a single Southern vote. He had announced that the Union could not continue to exist half slave and half free. What then? Was the Union to be dissolved? Was slavery to be introduced into the Northern or to be abolished in the Southern States? The declaration was an offence against the Constitution, and neither branch of the proposition could be executed without a palpable violation of it. Many of the States had passed what were called personal-liberty laws, in direct violation of the constitutional obligation to return fugitives held to service or labor under the laws of another State, which Mr. Webster in his great oration in Virginia said, if persisted in, would be destructive to the compact of Union.
The right of the South equally with the people of other sections to occupy, with every species of property known to any State, the common territory of the United States, was denied by the North, under the specious and wholly untenable plea that to take slaves to the territories would be the extension of slavery. Though the argument was upon a false basis, it served the purpose of inflaming the Northern mind. At the South the proposition to forbid a citizen who should migrate to the common territory of the United States from taking his slave with him was considered an offensive and unjust denial of equality in the Union, and as such, but not because of any money interest in the question, an intense excitement was created by it.
The serious troubles in Kansas were followed by the double-dyed crime of John Brown's invasion of Virginia. He came fresh from the Kansas school, and was fulfilling Mr. Seward's prophecy that abolitionism would invade the South. Though the avowed purpose of the invasion was to disturb domestic tranquillity, which it was one of the proclaimed objects of the Union to secure, arson and murder were its ​accompaniments. When Brown was tried with due formality, sentenced, and executed according to the laws of the land, inasmuch as his crimes had been committed with open hostility to the South, he was canonized at the North and a hymn to his memory became the marching song of the declared enemies of the South. For some years the abolition faction had borne upon its banner "No union with slave-holders," though, as has been before stated, when the first Union was formed all of the States recognized slave property by their laws. It was common among demagogues in later times to excite prejudice against that species of property by describing it as a chattel, though it never was more than a life-long right to service and labor, and that, with the right of increase, was all which could be the subject of purchase and sale. Without further reciting violations of the compact which rendered it void, suffice it to say that seven of the States, deliberately acting in the highest form of procedure,—i. e., by convention of the people,—did pass ordinances of secession just as they had formerly passed ordinances of accession by resolutions of ratification of the Constitution of the United States.
Now we have reached the point of inquiry as to what was the moral duty of a citizen of a seceding State in 1861.
It is not proposed to discuss any question arising out of subsequent events. It had, so far as I know, in all the earlier periods of our history been uniformly held that allegiance was primarily due to the State of which the individual was a citizen, and that allegiance to the United States resulted from the fact that the State to which each individual belonged was by compact a member of the Union.
When the Southern States had, in the recognized mode of expressing their sovereign will,—that is, by convention of the people of the State,—resumed the grants made by them as parties to the Federal compact, they, following the precedent of 1787, formed a new union styled the Confederate States of America.
The wish of all, and the general expectation, was that the separation should be peaceable. For this purpose one of the first acts of the Confederate Government was to send commissioners to the United States Government to adjust all questions which would naturally arise in a dissolution of partnership. Our overtures were rejected, as I feared they would be, for the question was ever ringing in my ears, "If we let the South go, where will we ​get a revenue?" With continued assurance of peaceful intention the Federal Government made ready for war.
At the call of their States, the people of the South, with unexampled unanimity, volunteered to defend their hearths, their altars, and their inalienable rights. Gray-haired sires and beardless sons were in the same ranks; but preparation had not been made to arm and equip them, and they had little more than their brave breasts to offer, for defence against threatened invasion. Vainly had the South relied on the Constitution as a shield; it was crushed by the mailed hand of a factious majority—the evil which Mr. Madison, in the tenth number of the Federalist, described as that which had covered with opprobrium federation as a form of government.
I make no excusatory plea that the men "thought they were right" when, at the call of their sovereign State, they staked all save honor in defence of the rights their fathers left them. If they were not right, then patriotism is an empty name, and he who looks death in the face under its sacred inspiration may be a traitor. If it be treason for a citizen to defend the State under whose protection he lives, even against the Federal Government, the Constitution has placed him in the cruel dilemma of being, in the event of conflict between his State and the United States, necessarily compelled to commit treason against one or the other. This surely cannot be the condition to which our fathers reduced us when they entered into the compact of union. Allegiance is everywhere due to the sovereign only. That sovereign, under the American system, is the People—the People of the State to which the individual belongs; the People who constitute the State government which he obeys; the People who alone, as far as he is concerned, ordained and established the Federal Constitution; the People who never delegated their sovereignty, and therefore retain the power to revoke all agencies created by them.
If the sovereign abolishes the State government and ordains and establishes a new one, the obligation of obedience requires the citizen to transfer his allegiance accordingly: there may be joint, but cannot be divided, allegiance; and this fact controlled the action of officers of the army and navy of the United States when continuance in the Federal service came in conflict with the ultimate allegiance due from each to the sovereign State to which he belonged.
Jefferson Davis.