Confedera

§ 57. The Swiss Confederation, as remodelled by the Swiss federal pact of 1815, consists of a union between the tion. then twenty-two Cantons of Switzerland; the object of which is known as the Right of Secession, soon supplanted the impracticable theory of Nullification. The right of secession was contended for as a constitutional right, binding on the rest of the Union whenever exercised by a State. No American questions the moral right of forcible revolution,- that is, the right of any part of a nation to appeal to force against a government, whenever a case justifying such a course shall arise, or doubts the right of a government to suppress a revolution by force. But, in the attempt at secession in 1861, the movement was not put on the ground of a revolution, to be justified or condemned by the moral considerations by which revolutions are always to be judged, but on the ground of the exercise of a strictly legal right, by each State, which the general government is bound in law to respect. The reasoning upon which this theory rests is, that a State is supreme over the republic; for the doctrine is not only that, in a question of the limits of jurisdiction between a State and the republic, each State is the final and conclusive judge, but, further, that a State may withdraw, at any time, on the mere exercise of its discretion, the republic having no further right than to ascertain whether the State has acted. Such a doctrine as this, put in force by a large number of States, admitted of no practical solution but that which comes from the conflict of arms.

Slavery formed, in the main, the test of disloyalty. Every slave State was involved in the rebellion, with the exception of three border States, Maryland, Kentucky, and Missouri, where there was a good deal of free labor, and in which the government was able to keep its military force, and where the union influence was strong. A rebel State itself was often divided geographically, as to loyalty, by the same test of slavery. In the western part of Virginia and eastern part of Tennessee, where there were few slaves, the people were loyal by a vast majority, and resisted the secession of their States, and furnished large bodies of troops for the Union armies. The same state of things existed, though in a less degree, in the upper and mountainous parts of North Carolina, Georgia, and Alabama. In some of the States, especially in South Carolina, there was unquestionably a large majority for secession: but, in other States, the majority was doubtful, sometimes generally believed to be loyal; and, in such cases, the ordinance of secession was either not put to a popular vote, or put to vote under circumstances that prevented a fair expression of opinion. By one means or another, eleven States were thrown into rebellion by the use of the political machinery of the States.

The ground taken by the government was simple. The principle of the Constitution is asserted in these plain words: "This Constitution, and the laws of the United States, which shall be made in pursuance thereof, shall be the supreme law of the land, any thing in the constitution and the laws of any State to the contrary notwithstanding." The ordinances of secession were treated as void. Each citizen was held to his direct allegiance to the republic, a breach of which was treason, for which no action of his State, in whatever form conceived, could furnish any justification. Where the rebellion could be put down by civil force, that alone was exerted. Where military force was necessary, it was resorted to.

The States in rebellion organized a central government, which they called the Confederate States of America. In its details, it was a copy of the Constitution of the United States; but the language was carefully changed throughout, in order to alter the basis from that of a government created by the whole people to that of a kind of central agency delegated by sovereign and independent States. For “United

declared to be the preservation of their freedom, independence, and security against foreign attack, and of domestic order and tranquillity. The several Cantons guaranty to each other their States," or "Union," was substituted, in their constitution, "Confederate States," with the phrase added, "each State acting in its sovereign and independent character;" and the words, “form a more perfect union, provide for the common defence, and promote the general welfare," were stricken out; and for "granted" was everywhere substituted "delegated;" and other changes made, to carry out the same theory. It prohibited the passing of any law "denying or impairing the right of property in negro slaves." The Confederate Government became at once firmly established in the eleven States, organized in all its parts, and assumed the position of an independent nation. It punished as treason loyalty to the United States of any persons within its assumed limits. It treated as a war of invasion any attempt of the United States to exercise authority within the eleven States. When the United States refused to give up the national fort at the entrance of Charleston harbor (Fort Sumter), it was reduced by bombardment; and, when the United States attempted to restore its civil authority by the use of military force, the Confederacy declared war, and issued letters of marque. The United States did not, of course, declare war; for there was no body-politic against which to declare it, the very existence of the Confederate government being treason; and the separate States could not be regarded as capable of performing any function in hostility to the United States. The state of things was treated as a rebellion of individuals, risen to the dimensions of a war. It was met by the exercise of the powers of war on the part of the United States, practically, and for the purpose of suppressing the insurrection. The government did, in practice, treat the rebels as belligerents, while the war lasted; holding them as prisoners of war, making use of exchanges and other practices of war. This was from necessity, to prevent retaliation, and from humanity. No general status of belligerency was conceded to them by law; but the legal status of each person engaged in the rebellion was that of a criminal under the municipal law. When the rebellion was subdued, and its chief armies, under Lee and Johnston, were about to surrender, the leaders of the rebellion attempted to make some terms of peace between the Confederate authorities and the United States; but the course pursued by the government was in strict adherence to the principle upon which the secession had been dealt with from the beginning. The United States could recognize no authority, either of a State or of confederated States, capable even of making a surrender. It would deal only with each army before it, and accept its separate surrender to the commander of the Union army opposed to it, as a military act. The surrender of all the rebel armies left the confederacy simply to collapse. Neither its existence nor its disappearance was noticed legally by the United States.

The course pursued by the government as to individuals was this: All who had surrendered as prisoners of war, or who had been held or actually treated as such, were not to be proceeded against as criminals for the fact of having been engaged in the war. The right to try and punish for treason, after the war ended, persons who had been engaged in the original conspiracy which brought on the war, or, for any act of treason, persons who had not the privilege attached to prisoners of war, was held to be unimpaired by the acts of the government during the war. Military government was continued over all the rebel territory, with the suspension of the privilege of the writ of habeas corpus, until the civil authority of the republic should be fully restored. An entire political and civil restitution is not completed until the civil tribunals of the general government can exercise their authority peacefully within the limits of each

respective constitutions and territorial possessions. The Confederation has a common army and treasury, supported by levies of men and contributions of money, in certain fixed proportions, State, and the functions of that government be fully discharged. This requires, by the free system of the United States, a loyal co-operation of the people who exercise political power within each State, since they must hold many of the offices and compose the juries for the trial of all offences. It is also necessary that the State governments should be in active operation in conformity with and subordinate to the Constitution of the United States, not only for the administration of the internal affairs of each State, but to enable the people of the State to have their share in the administration of the government of the republic. Until these results are reached, the regions of country lately in rebellion, with their inhabitants, are held under the forcible or military government of the republic, as far as is necessary, although that government is exercised, to a great extent, by civil officers and civil methods.

There are various theories as to the status of the portions of the country lately in rebellion. Some consider the States as having ceased to exist, and the entire region they formerly occupied to be national domain, under the government of the nation, in the same manner with what is known as the national "territory," lying beyond the limits of any States; while others regard the States as retaining their legal existence, and only to have been temporarily thrown out of their normal relations, by illegal force. The former theory admits of the exercise of supreme power by the general government, as a regular civil function in time of peace, under the Constitution, and extending over every possible subject of legislation, national or local, organic or functional. The latter theory derives the extraordinary authority of the republic over these regions and their inhabitants from the state of war, which must be considered as theoretically continuing until the civil governments, State and national, are satisfactorily restored. But, whatever the theory in these respects, all agree that the American system is one of separate States with a central State, and that this system must be restored to complete operation as soon as is practicable; and that a government over unrepresented people is an anomaly, dangerous to republican principles and habits, and to be exercised no longer than the necessity exists which the rebellion created.

The civil war saw the final and complete establishment of that construction of the Constitution which makes the United States a State in the scientific sense of the term; having direct authority over each citizen, to be exercised by its own officers, independently of the States; and a right to the direct allegiance of each citizen, from which no State action can absolve him; with the right to determine the limits of its own jurisdiction; with no appeal from its decision, except through constitutional methods of altering the laws or the administration, by the ballot, or through forcible revolution. The great features, however, in which the independence and safety of the States appear are, that the same people which constitute the States constitute the republic, and are the sources of all authority for each; that the national offices are all filled by citizens of some State; that these offices are held by popular elections for short periods, no family or class or section of people having any national interest distinct from their State interests; that the people have the deepest interest in keeping within their separate State control, where they have always been lodged, all those subjects which come most home to a people, the family relations, the tenure and descent of property, education, religion, the entire civil police, and the civil relations of the people of each State with one another: all which are administered by State tribunals and officers, independently of central authority. There has never been in history a constitution analogous even, to that of the United States. The preserva

among the different Cantons. In addition to these contributions, the military expenses of the Confederation are defrayed by duties on the importation of foreign merchandise, collected by the frontier Cantons, according to the tariff established by the Diet, and paid into the common treasury. The Diet consists of one deputy from every Canton, each having one vote, and assembles every year, alternately, at Berne, Zurich, and Lucerne, which are called the directing Cantons, (Vorort.) The Diet has the exclusive power of declaring war, and concluding treaties of peace, alliance, and commerce, with foreign States. A majority of three fourths of the votes is essential to the validity of these acts; for all other purposes, a majority is sufficient. Each Canton may conclude separate military capitulations and treaties, relating to economical matters and objects of police, with foreign powers; provided they do not contravene the federal pact, nor the constitutional rights of the other Cantons. The Diet provides for the internal and external security of the Confederation; directs the operations, and appoints the commanders of the federal army, and names the ministers deputed to other foreign States. The direction of affairs, when the Diet is not in session, is confided to the directing Canton, (Vorort,) which is empowered to act during the recess. The character of directing Canton alternates every two years, between Zurich, Berne, and Lucerne. The Diet may delegate to the directing Canton, or Vorort, special full powers, under extraordinary circumstances, to be exercised when the Diet is not in session; adding, when it thinks fit, federal representatives, to assist the Vorort in the direction of the affairs of the Confederation. In case of internal or external danger, each Canton has a right to require the aid of the other Cantons; in

tion of the distribution of powers would be in danger, if the central government were administered by a family or class which had a permanent interest in it; or if it derived its authority from any other source than that from which the States derive theirs; or if any one State had a larger interest or greater control over it than another; or if it had charge of any such subjects as have been enumerated; or, perhaps, if the tenure of national office was for life, or for very long periods, so as to create a permanent central interest, tempted to usurp upon the States. But, as the central government is administered only by agents sent out from the people of the States for short intervals, to return to the States again, having all their property and dearest interests within the States and subject to State control, and as the States offer employment and honors to talents, and no citizen can long hold political national life without the approval of the vote of his State, the reserved State-rights are felt to be in as much safety as can be predicated of human institutions.] - D.

which case, notice is to be immediately given to the Vorort, in order that the Diet may be assembled, to provide the necessary measures of security. (a)

ConstituSwiss Con

tion of the

federation

with those

manic Con

United

§ 58. The compact, by which the sovereign Cantons of Switzerland are thus united, forms a federal body, which, in some respects, resembles the Germanic Confederation, compared whilst in others it more nearly approximates to the of the GerAmerican Constitution. Each Canton retains its origi- federation nal sovereignty unimpaired, for all domestic purposes, and of the even more completely than the German States; but the States. power of making war, and of concluding treaties of peace, alliance, and commerce, with foreign States, being exclusively vested in the federal Diet, all the foreign relations of the country necessarily fall under the cognizance of that body. In this respect, the present Swiss Confederation differs materially from that which existed before the French Revolution of 1789, which was, in effect, a mere treaty of alliance for the common defence against external hostility, but which did not prevent the several Cantons from making separate treaties with each other, and with foreign powers. (a)

attempts,

to change

pact of

§ 59. Since the French Revolution of 1830, various Abortive changes have taken place in the local constitutions of the since 1830, different Cantons, tending to give them a more democratic the federal character; and several attempts have been made to revise 1815: the federal pact, so as to give it more of the character of a supreme federal government, or Bundesstaat, in respect to the internal relations of the Confederation. Those attempts have all proved abortive; and Switzerland still remains subject to the federal pact of 1815, except that three of the original Cantons, - Basle, Unterwalden, and Appenzel,- have been dismembered, so as to increase the whole number of Cantons to twenty-five. But as each division of these three original Cantons is entitled to half a vote only in the Diet, the total number of votes still remains twenty-two, as under the original federal pact. (a)

(a) Martens, Nouveau Recueil, tom. viii. p. 173. (a) Merlin, Répertoire, tit. Ministre Public.

(a) Wheaton, Hist. Law of Nations, 494-496.

[33 On the 12th September, 1848, a new constitution was adopted, having the same general character with the preceding, and, though giving more powers to the Confederation, still not coming within the definition of a Bundesstaat. The federal legislature has two houses, the National Council and the Council of States. The former consists of representatives chosen according to population, and the latter of two deputies