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Constitutional Doctrine of Secession (1861) By Senator Robert Toombs

American History Told by Contemporaries, Volume 4

Constitutional Doctrine of Secession (1861) 
By Senator Robert Toombs

This extract is from the constitutional exposition of one who as an old-time Whig sincerely loved the Union, and as an able lawyer understood the advantages of it; but who as a representative of slaveholders and an advocate of states' rights was willing to go to extremes rather than submit to any derogation of southern principles. The speech was delivered in the Senate a short time before his withdrawal. In the Civil War Toombs took a prominent part on the southern side, and remained irreconcilable throughout his life. —For Toombs, see P. A. Stovall, Robert Toombs. — Bibliography as in No. 53 above. — For earlier expositions of this doctrine, see Contemporaries, III, No. 161 ; IV, No. 19.

THESE thirteen colonies originally had no bond of union whatever; no more than Jamaica and Australia have to-day. They were wholly separate communities, independent of each other, and dependent on the Crown of Great Britain. All the union between them that was ever made is in writing. They made two written compacts. . .

Senators, the Constitution is a compact. It contains all our obligations and duties of the Federal Government. ... All the obligations, all the chains that fetter the limbs of my people, are nominated in the bond, and they wisely excluded any conclusion against them, by declaring that the powers not granted by the Constitution to the United States, or forbidden by it to the States, belonged to the States respectively or the people. Now I will try it by that standard; I will subject it to that test. The law of nature, the law of justice, would say— and it is so expounded by the publicists—that equal rights in the common property shall be enjoyed. . . . This right of equality being, then, according to justice and natural equity, a right belonging to all States, when did we give it up? You say Congress has a right to pass rules and regulations concerning the Territory and other property of the United States. Very well. Does that exclude those whose blood and money paid for it? Does "dispose of" mean to rob the rightful owners? You must show a better title than that, or a better sword than we have.

But, you say, try the right. I agree to it. But how? By our judgment? No, not until the last resort. What then; by yours? No, not until the same time. How then try it? The South has always said, by the Supreme Court. But that is in our favor, and Lincoln says he will not stand that judgment. Then each must judge for himself of the mode and manner of redress. But you deny us that privilege, and finally reduce us to accepting your judgment. We decline it. You say you will enforce it by executing laws; that means your judgment of what the laws ought to be. Perhaps you will have a good time of executing your judgment. The Senator from Kentucky comes to your aid, and says he can find no constitutional right of secession. Perhaps not; but the Constitution is not the place to look for State rights. If that right belongs to independent States, and they did not cede it to the Federal Government, it is reserved to the States, or to the people. Ask your new commentator where he gets your right to judge for us. Is it in the bond? . . .

... In a compact where there is no common arbiter, where the parties finally decide for themselves, the sword alone at last becomes the real, if not the constitutional, arbiter. Your party says that you will not take the decision of the Supreme Court. You said so at Chicago; you said so in committee; every man of you in both Houses says so. What are you going to do? You say we shall submit to your construction. We shall do it, if you can make us; but not otherwise, or in any other manner. That is settled. You may call it secession, or you may call it revolution; but there is a big fact standing before you, ready to oppose you—that fact is, freemen with arms in their hands. The cry of the Union will not disperse them; we have passed that point; they demand equal rights: you had better heed the demand. . . .

I have, then, established the proposition—it is admitted—that you seek to outlaw $4,000,000,000 of property of our people in the Territories of the United States. Is not that a cause of war? Is it a grievance that $4,000,000,000 of the property of the people should be outlawed in the Territories of the United States by the common Government? . . . Then you have declared, Lincoln declares, your platform declares, your people declare, your Legislatures declare—there is one voice running through your entire phalanx— that we shall be outlawed in the Territories of the United States. I say we will not be; and we are willing to meet the issue; and rather than submit to such an outlawry, we will defend our territorial rights as we would our household gods. . . .

You will not regard confederate obligations; you will not regard constitutional obligations; you will not regard your oaths. What, then, am I to do? Am I a freeman? Is my State, a free State, to lie down and submit because political fossils raise the cry of the glorious Union? Too long already have we listened to this delusive song. We are freemen. We have rights; I have stated them. We have wrongs; I have recounted them. I have demonstrated that the party now coming into power has declared us outlaws, and is determined to exclude four thousand million of our property from the common Territories; that it has declared us under the ban of the Empire, and out of the protection of the laws of the United States everywhere. They have refused to protect us from invasion and insurrection by the Federal Power, and the Constitution denies to us in the Union the right either to raise fleets or armies for our own defense. All these charges I have proven by the record; and I put them before the civilized world, and demand the judgment of to-day, of to-morrow, of distant ages, and of Heaven itself, upon the justice of these causes. I am content, whatever it be, to peril all in so noble, so holy a cause. We have appealed, time and time again, for these constitutional rights. You have refused them. We appeal again. Restore us these rights as we had them, as your court adjudges them to be, just as all our people have said they are; redress these flagrant wrongs, seen of all men, and it will restore fraternity, and peace, and unity, to all of us. Refuse them, and what then? We shall then ask  you, "let us depart in peace." Refuse that, and you present us war. We accept it; and inscribing upon our banners the glorious words, "liberty and equality," we will trust to the blood of the brave and the God of battles for security and tranquillity.

Congressional Globe, 36 Cong., 2 sess. (John C. Rives, Washington, 1861), 269-271 passim, January 7, 1861.

Albert Bushnell Hart, American History Told by Contemporaries, Volume 4 (Wielding of a Nation, 1845-1900) (New York: The MacMillan Company, 1901), 169-172. 

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