The Glorious Revolution of 1688 and the Origins of Southern Constitutionalism

From the 2004 Abbeville Institute Summer School

On April 10^th, 1606, King James I of England (and VI of Scotland) granted letters of patent to Sir Thomas Gates and others, thereby establishing two companies for the settlement of colonies along the Atlantic coast of North America, which was then called Virginia in honour of the Virgin Queen, Elizabeth I. The London Company, later known as the Virginia Company, was authorized to settle toward the south, while the Plymouth Company was authorized to settle during certain degrees of latitude to the north. The first colony established within the jurisdiction of the Virginia Company was at Jamestown on the York Peninsula off Chesapeake Bay on the 24^th of May, 1607. Later, the Virginia Company granted letters patent to Pilgrim Fathers who sailed on the Mayflower in September and arrived at Cape Cod on the 9^th of November, 1620. This second group of colonists was outside the jurisdiction of the Virginia Company and could not lawfully settle near Plymouth Rock where, given the time of the year, they had been forced to land for the success of their mission. So, on the 11^th of November, 1620, forty-one freemen met in an extraordinary convention aboard ship to frame and sign a constitution of government which came to be known as the Mayflower Compact:

“In the name of God, Amen. We, whose names are underwritten, the loyal subjects of our dread Sovereigne Lord, King James, by the grace of God, of Great Britaine, France and Ireland king, defender of the faith, etc. having undertaken, for the glory of God, and advancement of the Christian faith, and honour of our king and country, a voyage to plant the first colony in the Northerne parts of Virginia, doe by these presents solemnly and mutually in the presence of God and one of another, covenant and combine ourselves together into a civill body politick, for our better ordering and preservation, and furtherance of the ends aforesaid; and by virtue hereof to enacte, constitute, and frame such just and equall laws, ordinances, acts, constitutions and offices, from time to time, as shall be thought most meete and convenient for the generall good of the Colonie unto which we promise all due submission and obedience.”[1]

Now, the Mayflower Compact sounds very pious and respectable, but it really was a revolutionary act. Yet, it was a peaceable act, upon the ordinance of a convention of the people, meeting under the protection of the common law, and in deference to the very king whose grants of lawful jurisdiction they willfully disobeyed. The instrument was promulgated, ironically enough, in keeping with a constitutional custom which allowed them, under those circumstances, to disregard existing forms of law and establish a new government. The reality of this constitutional custom became manifest in a particularly noteworthy way sixty-eight years after the signing of the Mayflower Compact. I am, of course, referring to that conjuncture of events which historians fondly call The Glorious Revolution. Essentially, King James II was guilty of a large number of constitutional abuses, and this led to the landing of troops from Europe under the Prince of Orange, who was a prince of royal blood. Indeed, he was the son-in-law of the King, whose daughter Mary was married to William of Orange. William advanced his troops forward and the royal armies simply melted away. The House of Lords met as a Magnum Concilium (Great Council), on November 27^th, 1688, and they advised His Majesty to grant free pardons with liberality, to call a free Parliament, and to submit to constitutional reforms that were then long-overdue. James refused to do so. He and his family fled to France, where they became very useful guests of King Louis XIV. A number of eminent peers and subjects then met with William of Orange, who issued a write calling for the election and assembly of a Convention Parliament, which met and deliberated. On the 28^th of January, 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 this Kingdom, by breaking the Original Contract between King and People; and, by the Advice of Jesuits, and other wicked Persons, having violated the fundamental Laws; and having withdrawn himself out of the Kingdom; has abdicated the Government; and that the Throne is thereby vacant.”[2]

On February 12^th, the House of Lords agreed, and on February 13^th, 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. The occasion was commemorated by acts of the Convention Parliament in 1689, and the Act of Settlement in 1701. These several organic statutes instituted constitutional reforms and established a new royal succession of the crown excluding the heirs of James II, which has continued to the present day. Had it not been for this transformation of government, fondly called the Glorious (or Bloodless) Revolution, there would have been no lawful government in England over the past 300 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. Queen Elizabeth 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 that time. By constitutional custom, only the king, by right of royal blood, could assemble a lawful Parliament. The 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 and claimed to be king until his death, as he undeniably was by ordinary forms of law. Even if James II had abdicated, his son was his lawful heir and would have immediately become king in his place. So, the accession of William and Mary was an unlawful event, and yet it was authorized by extraordinary forms of the English constitution. Sir William Blackstone described the constitutional custom upon which the crown has rested ever since:

“If, therefore, any future prince should endeavour 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 authorised 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 in other circumstances, which a fertile imagination may furnish, since both law and history are silent, it becomes us to be silent too; leaving to future generations, whenever necessity and safety of the whole shall require it, the exertion of those inherent (though latent) powers of society, which no climate, no time, no constitution, no contract, can ever destroy or diminish.”[3]

And so, we can define the principle of the Glorious Revolution, or the constitutional custom upon which the crown rests, as a constitutional custom prevailing over all organic statutes and all conventions and customs 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 ordinary forms of law, by means of a convention of the people and estates of the kingdom, and assembled in as orderly a 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. The principle of the Glorious Revolution has surfaced again and again in history. Noteworthy are circumstances in which Rhode Island became independent of the British Empire, wholly apart from the independence of the United States. On the 4^th of May, 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 transferring the crown from James II to William and Mary. The statute recited that George III had broken the compact between king and people and ordained that thenceforward all writs would issue and all laws 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 reenactment of the Glorious Revolution.

Several other States individually seceded from the British Empire. In Virginia, the House of Burgesses adjourned, met as an irregular temporary legislature, and issued writs of election for a convention which met in the name of the people and assumed all the attributes of a sovereignty. On the 29^th of June, 1776, this convention proclaimed a formal constitution of the commonwealth whereof the preamble recited 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 another perfect recurrence to the Glorious Revolution. The first written constitution of the United States, the Articles of Confederation, which was adopted by the legislatures of all thirteen States, ordained in its thirteenth article:

“And the Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter 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 American War for Independence were removed by the restoration of peace, the Articles proved to be unworkable. Requisitions made by Congress upon the several States became massively delinquent. Without an adequate treasury of the Confederation, enemies of the United States were tempted to take territories which could not be defended. It was not possible to pay even the interest on the national debt, on loans that had been advanced by friends of the United States in Europe. (This isn’t strictly true; Congress, led by Robert Morris, pretended to be out of money in order to justify its demands for a taxing power). 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. The people believed the Confederation was floundering and the U.S. was in mortal danger, but there was nothing in the existing forms of law which allowed necessary amendments to the Articles. Therefore, a resort was had to the principle of the Glorious Revolution. The Philadelphia Convention was called to frame more effective articles of union. Rhode Island didn’t even send delegates, and everybody knew that the new Constitution could not be adopted by the legislatures of all thirteen States. In order to get around that problem, the Framers adopted Article VII, which largely goes unnoticed: “The ratification of the conventions of nine states, shall be sufficient for the establishment of this Constitution between the states so ratifying the same.” The critical debate on this clause in the Philadelphia Convention was on the 23^rd of July, 1787, wherein the rationale of the Framers is made pretty clear. In each State there was to be a convention of the people modeled after the Convention Parliament of 1689, meaning a convention of delegates elected for the special purpose of exercising sovereign power – the power in law to do anything not naturally impossible, the power to abolish one legal order and erect another, and yes, the power to secede from the old confederation and establish a new union. Since each State, acting by such a convention, could secede from the old confederation, notwithstanding any provision in the Articles of Confederation, each State necessarily enjoyed a reserved right by means of such conventions, 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 by the name of John Marshall (who later became Chief Justice of the United States) articulated the principle as it was then understood by all: “It is the people that give power, and can take it back.”[4] The same right of secession was expressly and publicly conceded in those days by such ardent Federalists as Alexander Hamilton, Edmund Pendleton, and James Madison. When the U.S. Constitution was adopted following the Philadelphia Convention, the right of the people, in convention, to secede from the Union was declared in the ordinances of several States. Before the fateful year 1860, the strongest movement for secession from the Union 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. The war 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 also unconstitutional, because allowing Congress the power of conscription would make pointless the Constitution’s limitations and reservations concerning Congress’s power over the militia. The power to raise armies was intended by the Framers to extend only to the raising of regular troops by enlistment, never by conscription. The power to regulate and call forth the militia was intended as the exclusive means of compelling citizens to render military service. Reacting 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, and Rhode Island all met in Hartford, Connecticut on December 14^th, 1814, where they deliberated until January 5^th, 1815, when they promulgated their Report and Resolutions. Notwithstanding the florid denials of Daniel Webster in his reply to Robert Hayne some years later in the United States Senate, the Hartford Convention met to consider secession from the Union and actually concluded 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.

While the Hartford Convention has been largely overlooked or left unmentioned (if not actually concealed), most students of history have at least heard of the Nullification Crisis in South Carolina. From the Presidency of George Washington, there had been some dispute over whether Congress was constitutionally limited in levying tariffs or import duties solely to raise revenue, or if they could also levy such taxes to regulate commerce in order to achieve desired effects beyond the activities of trade. Throughout the antebellum period, revenues of the United States were raised principally by tariffs, but occasionally tariffs were imposed to protect domestic manufacturing and agriculture from foreign competition. The idea was that protectionism would allow the country to become a self-sufficient common market within a strong Union. The theory was plausible enough until the so-called Tariff of Abominations, which was raised not to raise revenues or promote industry, but to engineer the election of Andrew Jackson as President. The original plan was to set rates so high that the incumbent John Quincy Adams would veto the bill, then blame Adams for failing to protect industries in the Mid-Atlantic States, whose electoral votes Jackson sought. To the surprise of all, Adams signed the bill. John Randolph of Roanoke asserted that the bill referred to “manufactures of no sort or kind, but the manufacture of a President of the United States.” Still benefiting from his image as the hero of New Orleans, Andrew Jackson was elected anyway, and under this elicit manipulation of power to tax imports, duties were raised as high as 50% ad valorem on an expanded list of dutiable items.

The Tariff of Abominations triggered a recession in the Southern States. The problem became serious but was addressed successfully by a constitutional process which saved the Union. The people of South Carolina met in convention, and on the 24^th of November, 1832, adopted an ordinance which declared the Tariff unconstitutional and threatened secession from the Union if the obnoxious tariffs were not repealed or if the Federal government attempted to enforce them within the State. President Jackson issued a proclamation denouncing the resistance as treason and threatening to send Federal troops to South Carolina. The legislature of the State passed resolutions defying Federal authority and prepared armed forces to meet armies of the Union at the border. Daniel Webster and John Caldwell Calhoun faced each other in a memorable oratorical encounter in the United States Senate while Henry Clay engineered a compromise tariff which expanded the list of duty-free goods and gradually reduced duties over the next decade to a level no higher than required for raising revenue – 20% ad valorem on an agreed list. Thereupon the crisis passed and the Union waxed strong again.

Next came the War of Southern Independence. The question of causes leads us into murky waters; it will thus be important to identify what the causes were not. Slavery was not the cause, for there was in the Old South a powerful abolition movement, and this movement, fathered by Thomas Jefferson and fostered by James Madison, was highly prestigious and influential. By contrast, the abolition movement in the North became so enfeebled by pathetic eccentricity that it had to be reinvigorated by James Birney of Alabama, who, after freeing his slaves, moved to New York to lead the Liberty Party as their candidate for President in 1840 and 1844. Nowhere in any of the Northern States during the antebellum period was there ever a debate over slavery so important and eloquent as that held during the proceedings of the Virginia House of Delegates in 1832. The often-magnificent speeches in this debate were published in newspapers in Richmond at the time and have since been conveniently preserved for interested scholars.[5] Noteworthy about these proceedings is that Southern abolitionists were dominant and carried important votes, including a resolution which lamented “the great evils arising from the condition of the coloured population of this Commonwealth.” Southern abolitionists made no further progress at that juncture only because of great uncertainty about how to proceed with emancipation of slaves en masse. In one of his noted speeches before the War, Abraham Lincoln said of slavery: “If all earthly power were given me, I should not know what to do, as to the existing institution.” He did not know what to do because in those days nobody really knew what to do to make abolition humane, practical, and beneficial. There was only one solution, as even Lincoln himself saw, which was gentle nudging and letting time pass. Moreover, the issue agitated between the North and the South was not so much slavery itself as the extension of slavery into the territories. But the whole question dissolves into insignificance when it is appreciated that in 1860, there was no real possibility that slavery could or would expand into the territories, for the institution was prohibited in the territories by geography and modernization. Nor were planters in the Dixie States interested in moving West, although they were free by law to do so. There were in 1860 exactly seventeen slaves in all the Federal territories, two of them in Kansas (which entered the Union the next year without slavery), and the rest in Nebraska. There were no slaves at all in any of the territories eventually claimed by the Confederate States. We all know that considerable uproar was generated by the infamous opinion of Chief Justice Roger B. Taney in Dred Scott v. Sandford in 1857, yet most students fail to understand that before the case reached the highest court in the land, Dred Scott and his family had actually been freed by a Southern court based upon a large and respectable body of Southern jurisprudence under which thousands of slaves had been liberated. Most of the people, not only in the North but in the South as well, thought that Scott and his family should be freed, and that he and his family were freed by their master almost immediately after the Dred Scott ruling was handed down. How, therefore, could the question of slavery have ignited the Civil War?

Secession was not the cause of the War for Southern Independence, for while it is true that there was a strong secessionist tradition in the Southern States, the same was also true of the Northern States. In fact, an important text used for instruction at the U.S. Military Academy at West Point during the antebellum period was written by a distinguished Northern lawyer who freely conceded the right of a State to secede from the Union.[6] When the guns opened fire on Fort Sumter, there was a conscious belief all over the country, that under the United States Constitution a State had a right to secede from the Union. Many Northern newspapers editorialized in 1860 and 1861 that Southern States should be allowed to withdraw from the Union in peace. Less than two weeks after the election of Abraham Lincoln as President of the United States, the Cincinnati Daily Press trumpeted: “We believe that the right of any member of this confederacy to dissolve its political relations with others and assume an independent position is absolute.” Particularly striking were editorials that soon followed in New York City: “If the Cotton States decide that they can do better out of the Union,” said the New York Tribune, “we insist on letting them go in peace. The right to secede may be a revolutionary right, but it exists nevertheless.” The New York Herald added: “Each State is organized as a complete government possessing the right to break the tie of the confederation. Coercion, if it were possible, is out of the question.” The day after Jefferson Davis was inaugurated as Provisional President of the Confederate States, the Detroit Free Press editorialized: “An attempt to subjugate the seceded States, even if successful, could produce nothing but evil; evil unmitigated in character and appalling in extent.” A month later the New York Times observed: “There is a growing sentiment throughout the North in favour of letting the Gulf States go.” How could there be a civil war about which both sides agreed?

Many want to believe that the war was caused by the oppression of the Southern States through the imposition of unjust tariffs. The idea has a sophisticated sound, but is not supported by the facts. The day before James Buchanan was inaugurated as the last antebellum President, all lingering protective tariffs were abolished, and the only tariffs allowed were limited to raising revenues of the Union, 20% ad valorem, on an agreed list. The Southern States had never asked for more concessions and were willing to live with something short of that ideal. Not only were there no protective tariffs in 1860, there were also no Federal taxes on income or exports. Commercial ships carrying Southern cotton to Europe were amply protected by the United States Navy. So, unjust protective tariffs could not have and did not cause an eruption of hostilities. None of the conventional theories explain the American Civil War.

In order to appreciate why the war broke out, it is necessary to understand a view advanced by Henry Clay Dean, a Copperhead Democrat and later an important leader in the Northern peace movement, Alexander Del Mar, a distinguished economist and monetary historian of the postbellum age, and Charles A. Lindbergh Sr., a populist congressman from my beloved Minnesota known for his opposition to the Federal Reserve Act of 1913. These three men advanced a bold and terrible thesis which may be briefly restated. The divisive antagonisms finally erupting in the War Between the States were not unfortunate political accidents, nor the result of some inexorable momentum of events. Those antagonisms, rather, were deliberately agitated during the 1850’s by great international banking houses with a preconceived motive of provoking secession. The secession was to be used as a pretext for a bloody and expensive war of conquest which was actually launched and carried out. The war was planned as a brutal slaughter, as it tragically became. The war was planned to generate a stupendous national debt, mostly represented by bonds, and such a debt was in fact generated. The private interests acquiring those bonds planned to secure the passage of legislation enabling them to convert the paper by them acquired in financing a war, into a new and dominant system of banking and currency under their leadership and control. These private interests fully succeeded in their sinister plans and set up a huge financial empire centered on Wall Street, from which they have ever since clandestinely governed the United States. Such is the thesis advanced by Dean, Del Mar, and Lindbergh, and I think this thesis is, in the last analysis, the best available explanation for why this war broke out. In any event, given the way things have played out on the state of history, the constitutional right to secede from the Union has become a solemn legacy of the defeated armies of the Confederate States and a timeless gift from those gallant soldiers, not only to subsequent generations of Southerners (if they are worthy of it), but more importantly to whomever is worthy of it among the nations of the earth. It is fitting here 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, beloved across the country for his devotion to the Union. On June 5^th, 1865, as he lingered in prison in Boston harbour, Stephens wrote these moving words in his diary:

“[The people of the South] conscientiously  believed  that  the  old  Union was  a  compact  between  Sovereign  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  absolute  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  Sovereign  State,  such  as  she  was  when  the compact or 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 Secession as a measure of policy did not question it as a matter of right. The war waged by the Central Government against these States, striking at their Sovereignty and causing as it would, if successful, their complete subjugation, these people considered unconstitutional, monstrously aggressive, and utterly destructive to everything dear to them as freemen.”[7]

In order to see this vision of the Founding Fathers of the United States, you must understand the errors underlying the decision of the Supreme Court in Texas v. White. After the Confederate surrenders, the defeated South was divided into military districts and placed under martial law as conquered territories of the United States. In this setting, the military governor of Texas brought suit in the name of the State, invoking the original jurisdiction[8] 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 the conflict from negotiating them further and directing the 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 the grounds that Texas was not 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 was perfectly true. And the new Union, he noted, was made by express terms “more perfect,” which is also true beyond doubt. Therefore, the United States Constitution established a perpetual union made more perfect. Thus, Chase claimed, we have an “an indestructible Union, composed of indestructible States.”[9] Therefore, he concluded, Texas always and still was a State and original jurisdiction could be invoked. But, Chase held, Texas had been usurped from 1861 to 1865, and thus the bonds were not really sold at all.

The opinion is pure sophistry which contradicts itself, resting upon pleas that Texas was indestructible yet was 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. The old confederation was dissolved. Not only was it dissolved, it was dissolved without the consent of all the States, even though the Articles stipulated that amendment required assent of all the States.[10] The new Union is undoubtedly more perfect, because it was established by the people of each of the several States sitting in convention to exercise sovereign power, which can create or abolish any government or union. In contrast, the old confederation was established only by legislatures which did not have sovereign power and were bound by constitutions which the people had established by conventions in the several States.  Under the intended meaning of the Constitution, then, the right of secession was actually reserved to the several States but to be exercised by the people in convention. Chase’s conclusion is a spectacular non-sequitur in history and law, but there must have been an overwhelming fatefulness in his mind. The country had a population of about 31 million, had suffered 1 million casualties in combat, and had probably lost another 400,000 from starvation. This enormous conflict had cost approximately three-fourths of the assessed value of all taxable property in the United States in 1860 and had multiplied the national debt fifty-three times in only four years. Chase, as Lincoln’s Secretary of the Treasury, had arranged the financing of this monstrous tragedy. Under the circumstances he could not write the truth, so he wrote something else.

We are fortunate in that, upon this continent and in our time, the baneful legacy of the American Civil War has been given a judicial rebuke, and the results have been edifying, signaling hope for our children, grandchildren, and great-grandchildren. Most of us know something about the antagonisms which erupted during the last quarter of the 20^th century between French-speaking and English-speaking citizens of Canada. These antagonisms grew out of excessive consolidation of the dominion, arraying nine provinces of Anglo-Canada against Quebec as the geo-political bulwark of French Canada. There was a clash of two civilisations not unlike that which occurred in the United States between the North and the South. The result was a powerful separatist movement in Quebec which repeatedly elected governments and offered two referendums on independence, in the second of which the vote for secession very nearly prevailed. The question then arose whether, under the constitution of Canada, it is possible for a province to secede from the confederation. Under the organic statutes there is no express right or formal mechanism for secession, but Canada is blessed with customs and conventions of the British constitution which were conveyed to the Dominion by the preamble of the original British North America Act of 1867, including the principle of the Glorious Revolution or the principle upon which the crown rests. In extraordinary circumstances, the constitutional right of the people to free, peaceable, and orderly reformation of government even if contrary to usual forms of fundamental law, might take the form of secession from the union. Accordingly, in Reference Regarding Certain Questions Concerning the Secession of Quebec, the Queen’s judges advised that the people of Quebec enjoy a constitutional right to aspire for independence and a constitutional right to a free and peaceable referendum on independence at public expense whenever their elected government so determines, and that if, in such a referendum the people of Quebec vote in the affirmative by a clear majority on a clear proposition for independence, the government of Canada will have a constitutional duty to negotiate terms of separation. In such a situation, the government of Canada may not threaten or use force of arms to resist secession. If the negotiations fail and the government of Quebec then unilaterally proceeds to independence which is recognized by the other nations of the earth, a new constitutional order will thereupon be established. The consequences of this judgement have been exactly the opposite of what a superficial observer might suppose. 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. The union now waxes strong and Canada is loyal to the crown from sea to sea. It might first appear that the right of secession will bring anarchy to a federal union, yet by operation of moral causes the right of secession, which is the essence of Southern constitutionalism, has exactly the reverse effect. This is a point that was stressed by John C. Calhoun in his famous debate with Daniel Webster during the Nullification Crisis in 1833.[11] In commenting upon the union of Southern States established in 1861, Lord Acton said:

“When the Confederacy was established on the right of secession, the recognition of that right implied that there should never be occasion for its exercise. To say that particular contingencies shall justify separation is the same thing as to say that the Confederate government is bound within certain limits, under certain conditions, and by certain laws. It is a distinct repudiation of the doctrine that the minority can enforce no rights, and the majority can commit no wrong. It is like passing from the dominion of an able despot into a constitutional kingdom.”[12]

[1]https://www.ushistory.org/documents/mayflower.htm

[2]https://www.british-history.ac.uk/commons-jrnl/vol10/p14

[3]Blackstone’s Commentaries on the Laws of England, Vol. I, (1^st edition, 1765), 238. https://archive.org/details/BlackstoneVolumeI/page/n253/mode/2up

[4]Marshall to the Virginia Convention, 10 June 1788. See Elliot’s Debates, Volume 3, 233. https://memory.loc.gov/cgi-bin/query/r?ammem/hlaw:@field(DOCID+@lit(ed00311))

[5]Once such speech is that given by Thomas Jefferson Randolph, the eldest grandson of Thomas Jefferson, on 21 January. https://archive.org/details/speechofthomasjr32rand/page/n1/mode/2up

[6]See William Rawle, A View of the Constitution of the United States, 296-297, 302.

[7]Recollections of Alexander H. Stephens: His Diary Kept When a Prisoner at Fort Warren, Boston Harbour, 1865, 165-166. https://archive.org/details/recollectionsofa5455step/page/164/mode/2up

[8]See Article II, Section 2, paragraph 2. https://www.law.cornell.edu/constitution/articleiii#section2

[9]https://scholar.google.com/scholar_case?case=1134912565671891096&hl=en&as_sdt=6&as_vis=1&oi=scholarr

[10]See Article XIII.

[11]“Speech in Reply to Daniel Webster on the Force Bill,” 26 February 1833. The Papers of John C. Calhoun, Volume XII, 133-135. https://archive.org/details/papersofjohnccal0012unse/page/133/mode/2up Calhoun made a similar argument (using Roman examples) in his February 15-16 speech on the Force Bill. See Ibid., 90-91.

[12]John Dahlberg, Lord Acton, Historical Essays And Studies (London: Macmillan and Co., 1919), 141. https://archive.org/details/in.ernet.dli.2015.79915/page/n153/mode/2up

John Graham

John Remington Graham is an attorney with decades of experience in the fields of constitutional, environmental, and criminal litigation. He served as a federal public defender; special counsel to Brainerd, Minnesota; and Crow Wing County attorney. He has a great many publishing credits in constitutional law and history, and also forensic medicine and science. He has lectured on constitutional law and legal history in the United States and Canada. Graham was also cofounding professor of law at Hamline University in Minnesota.Graham received both a bachelor of arts in philosophy and a law degree from the University of Minnesota. Graham, his wife, and children have lived in Minnesota and Quebec.

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