§ 6. “To Unite in One Indissoluble Federal Commonwealth.”

All the words included in this expression, except “Indissoluble,” occur in the covering clauses of the Imperial Act, and they will be duly noted in the order in which they appear there. “Indissoluble” is found in the preamble only and therefore demands a detailed notice at this stage. A brief allusion to the presence of the word in the preamble and its absence from the body of the Act has already been made (see note § 3, “Affirmations of the preamble”), but it is now necessary to enter upon a more extended discussion and explanation of the principle of indissolubility.

NULLIFICATION AND SECESSION.—The omission from the Constitution of the United States of an express declaration of the permanence and indestructibility of the Union led to the promulgation of the disastrous doctrines of nullification and secession, which were not finally exploded until the Civil War of 1862–4 forever terminated the controversy. The Kentucky and Virginia Resolutions, drafted by Jefferson (1798), and adopted by the Legislatures of those States, in protest against the Alien and Sedition Laws passed by the Federal Congress, contained the germ of the fatal and insidious contention that the Union was merely a compact among the States; that the States severally had the right to resist any breach of the compact, and to pronounce that a Legislative Act of the Federal Congress in excess of its powers, and encroaching on the rights of the States, was a nullity to be followed, if necessary, by resistance, revolution, and bloodshed.

This political heresy was afterwards (1828–33) elaborated by Hayne and Calhoun, both in their debates with Daniel Webster, and in a series of addresses formulating their views of the relations which the States and the general Government bore to each other. In October, 1832, a State Convention was held in South Carolina, at which it was declared and ordained by the people of the State that the several Acts of Congress purporting to impose duties on the importation of foreign commodities were unauthorized by the Constitution of the United States, and were, therefore, utterly null and void. This was the first serious experiment in nullification by any State. The State Legislature of South Carolina followed up the ordinances of the State Convention by passing several Acts intended to give effect to the declaration of nullification, by authorizing the citizens of the State to refuse to obey the Federal law which had been declared null and void. The President of the Republic, General Jackson, issued a proclamation to the people of South Carolina, requiring them to obey the Federal law, and he followed up his proclamation by calling out the Federal troops. Hayne, the Governor of the State, responded by mustering and drilling 20,000 volunteers. Jackson is said to have sent a private message to Calhoun threatening that he would hang him higher than Haman if nullification were not abandoned. An armed conflict between the State and the Union was only averted by a compromise, according to which Congress passed a new tariff law redressing some of the grievances complained of; and the controversy for the time was terminated.

Each side, says Foster (Constitution, I. p. 154), claimed a victory. Calhoun's policy had been successful, and the result encouraged his successors when they put to the test their claim to the right of secession from the Union. The contest was resumed in a more dangerous shape on 20th December, 1860, when a Convention of the people of South Carolina was held, at which an ordinance of secession was adopted in the following terms:—

“An ordinance to dissolve the union between the State of South Carolina and other States united with her under the compact entitled ‘The Constitution of the United States of America.’ We the people of the State of South Carolina in Convention assembled do declare and ordain and it is hereby declared and ordained that the Ordinance

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adopted by us in Convention on the 23rd of May, 1788, whereby the Constitution of the United States was ratified, and also all other Acts and part of Acts of the Federal Constitution, are hereby repealed, and the Union now subsisting between South Carolina and other States under the name of the United States of America is hereby dissolved.”

This ordinance of secession was followed up by a declaration of independence, which alleged that the Union was dissolved, and that South Carolina had resumed her position amongst the nations of the world as a free, sovereign, and independent State. The example of South Carolina was afterwards followed by the States of Mississippi, Florida, Alabama, Georgia, Louisiana, and Texas. A Congress of seceding States was held at Montgomery, Alabama, at which a provisional Constitution was adopted and a provisional Government was formed. The Confederate Constitution was in many respects similar to that of the United States. In April, 1861, the provisional Government was called upon to give orders relating to Fort Sumter, a fortification still held by the United States, but situated within the territory of one of the Confederate States; the militia of South Carolina were directed to attack the fort, and the Civil war began. Four other States, Virginia, North Carolina, Tennessee and Arkansas, then seceded from the Union and joined the Confederacy. During the progress of the Civil war the Provisional Constitution was for a considerable time unaltered, but in February, 1862, a formal instrument of Government was adopted, which contained a few deviations from the Constitution of the United States.

“The trial of the wager of battle lasted more than five years. The dispute as to the construction of the Constitution was too mighty to be decided in a Court of Justice. The South had appealed to the final argument: in imitation of the Gallic Brennus, she had thrown her sword into the scale. To her surprise the North, less timid than the Romans, followed her example, and the weapon of the latter proved the heavier. The result determined the character of the Constitution for all time and compelled the conquered to consent to amendments which eradicated the evil (slavery) that had been the cause of the fraternal discord. No amendment which disclaimed the right of secession was written into the great Charter; pen and ink were not needed to express what had been stamped upon it by blood and iron.” (Foster, Comment. on the Constit. I., p. 185.)

The war was declared ended in August, 1866. Although the Federal Constitution was not amended by the insertion of a new clause explicitly stating that the Union was a permanent form of Government, several State Constitutions, including those of seven of the rebellious States, were amended by the introduction of provisions expressly repudiating the right of secession. In the case of the rebellious States, no doubt, the amendment was carried through the pressure and coercion of the victorious army of the North; but it was also adopted in several new States, where no such influence prevailed.

It was at a fearful cost that the principle was thus, once and for all, placed beyond the region of doubt that the United States form a perpetual union of indestructible States. This view received direct judicial sanction in the leading case of Texas v. White, 7 Wall. 700, which came before the Supreme Court in 1868. The question raised in that case was whether the State of Texas, by framing in Constitutional Convention the ordinance of secession, and by passing through its legislature Acts to give effect to such ordinance ceased to be a State of the Union, and whether its citizens ceased to be citizens of the United States.

“The union of the States never was a purely artificial and arbitrary relation… It received definite form and character and sanction by the Articles of Confederation. By these the Union was solemnly declared to be ‘perpetual.’ And when these Articles were found to be inadequate to the exigencies of the country the Constitution was ordained to form a more perfect union. It is difficult to convey the idea of indissoluble unity more clearly than by these words. What can be indissoluble if a perpetual union, made more perfect, is not? But the perpetuity and indissolubility of the Union by no means implies the loss of distinct and individual existence or of the right of self-government by the States.… It may be not unreasonably said that the preservation of the States and the maintenance of their governments are as much within the design and care of the Constitution as the preservation of the Union; that the Constitution in all its provisions looks to an indestructible union composed of indestructible States. When,

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therefore, Texas became one of the United States she entered into an indissoluble relation. … There was no place for reconsideration or revocation except through revolution or through the consent of the States. Considered therefore as transactions under the Constitution the ordinance of secession adopted by the Convention and ratified by a majority of the citizens of Texas was absolutely null and utterly without operation in law. The obligations of the State as a member of the Union and of every citizen of the State as a citizen of the United States remained perfect and unimpaired. The State did not cease to be a State nor her citizens to be citizens of the Union.” (Per Chase, C.J., in Texas v. White, 7 Wall. 700.) Boyd's Const. Cases, p. 555.

The triumphant Federalists in the United States did not propose any amendment of the Constitution to remove doubts on the question raised by lawyers and revolutionary publicists. They denied that there was any doubt as to the perpetual duration of the Union. To propose an amendment declaring it indissoluble, after it had been so settled by the sword, would have been equal to an admission that such a doubt existed.

CANADA.—The Constitution of Canada does not contain any clause declaring the perpetuity or indissolubility of the Dominion. That Constitution is embodied in an Imperial Act, and, save with respect to certain matters of detail not affecting the fundamental features of the scheme, it can only be altered by the Imperial Parliament. No general power to amend the Constitution has been granted to the Parliament and people of Canada. Should they require to modify any constitutional provision, not within the jurisdiction of the Dominion, an application has to be made to the Imperial Parliament to effect the required legislation. Consequently, the Dominion is absolutely indissoluble so far as the Parliament and people of Canada are concerned. The Imperial Parliament, which created it, could at any time dissolve it. No clause in the Imperial Act declaring the Dominion indissoluble could have interfered with or limited the supreme sovereign power by which the Dominion was created. Nothing is more certain than that “a Parliament cannot so bind its successors, by the terms of any statute, as to limit the discretion of a future Parliament, and thereby disable the Legislature from entire freedom of action at any future time, when it might be needful to invoke the interposition of Parliament to legislate for the public welfare.” (Todd, Parliamentary Government in the British Colonies, 2nd ed. p. 243.)

These considerations explain the circumstance that the Canadian Constitution contains no reference to the durability, or otherwise, of the Dominion. They do not account for the fact that, whilst the indissolubility of the Commonwealth is not affirmed by any clause in the Imperial Act, it is recited as an accepted principle in the preamble. Why was it placed in the preamble? The only reason which can be suggested, is that the Australian Parliament and people have a general power to amend the Constitution, and it may have been considered wise and prudent that, coupled with a right so great and important, there should be a reminder, placed in the fore-front of the deed of political partnership between the federating colonies, that the union, sealed by Imperial Parliamentary sanction, was intended by the contracting parties to be a lasting one, and that no alteration should be suggested or attempted inconsistent with the continuity of the Commonwealth as an integral part of the British Empire.