第 42 节
作者:公主站记      更新:2021-04-30 17:05      字数:9322
  city had vast possessions acquired by  confiscation; by purchase; by treaty; or by conquest; and in  reference to which her celebrated agrarian laws were enacted; and  which have their counterpart in our homestead and kindred laws。   In this class of territory; of which the city was the private  owner; was the territory of all the 282                                     Roman provinces; which was  held to be only leased to its occupants; who were often  dispossessed; and their lands given as a recompense by the consul  or imperator to his disbanded legionaries。  The provincials were  subjects of Rome; but formed no part of the Roman people; and had  no share in the political power of the state; till at a late  period the privileges of Roman citizens were extended to them;  and the Roman people became coextensive with the Roman empire。   So the United States have held and still hold large territorial  possessions; acquired by the acknowledgment of their independence  by Great Britain; the former sovereign; the cession of particular  states; and purchase from France; Spain; and Mexico。  Till  erected into States and admitted into the Union; this territory;  with its population; though subject to the United States; makes  no part of the political or sovereign territory and people of the  United States。  It is under the Union; not in it; as is indicated  by the phrase admitting into the Uniona legal phrase; since the  constitution ordains that 〃new States may be admitted by the  Congress into this Union。〃
  There can be no secession that separates a State from the  national domain; and withdraws it from the territorial  sovereignty or jurisdic… 283                        tion of the United States; yet what  hinders a State from going out of the Union in the sense that it  comes into it; and thus ceasing to belong to the political people  of the United States?
  If the view of the constitution taken in the preceding chapters  be correct; and certainly no facts tend to disprove it; the  accession of a Territory as a State in the Union is a free act of  the territorial people。  The Territory cannot organize and apply  for admission as a State; without what is called an 〃enabling act〃  of Congress or its equivalent; but that act is permissive; not  mandatory; and nothing obliges the Territory to organize under it  and apply for admission。  It may do so or not; as it chooses。   What; then; hinders the State once in the Union from going out or  returning to its former condition of territory subject to the  Union?  The original States did not need to come in under an  enabling act; for they were born States in the Union; and were  never territory outside of the Union and subject to it。  But they  and the new States; adopted or naturalized States; once in the  Union; stand on a footing of perfect equality; and the original  States are no more and no less bound than they to remain States  in the Union。  The ratification of the constitution by the  original States was a 284                       free act; as much so as the accession of a  new State formed from territory subject to the Union is a free  act; and a free act is an act which one is free to do or not to  do; as he pleases。  What a State is free to do or not to do; it  is free to undo; if it chooses。  There is nothing in either the  State constitution or in that of the United States that forbids  it。
  This is denied。  The population and domain are inseparable in the  State; and if the State could take itself out of the Union; it  would take them out; and be ipso facto a sovereign State foreign  to the Union。  It would take the domain and the population out of  the Union; it is conceded and even maintained; but not therefore  would it take them out of the jurisdiction of the Union; or would  they exist as a State foreign to the Union; for population and  territory may coexist; as Dacota; Colorado; or New Mexico; out of  the Union; and yet be subject to the Union; or within the  jurisdiction of the United States。
  But the Union is formed by the surrender by each of the States of  its individual sovereignty; and each State by its admission into  the Union surrenders its individual sovereignty; or binds itself  by a constitutional compact to merge its individual sovereignty  in that of 285            the whole。  It then cannot cease to be a State in the  Union without breach of contract。  Having surrendered its  sovereignty to the Union; or bound itself by the constitution to  exercise its original sovereignty only as one of the United States;  it can unmake itself of its state character; only by consent of  the United States; or by a successful revolution。  It is by  virtue of this fact that secession is rebellion against the  United States; and that the General government; as representing  the Union; has the right and the duty to suppress it by all the  forces at its command。
  There can be no rebellion where there is no allegiance。  The  States in the Union cannot owe allegiance to the Union; for they  are it; and for any one to go out of it is no more an act of  rebellion than it is for a king to abdicate his throne。  The  Union is not formed by the surrender to it by the several States  of their respective individual sovereignty。  Such surrender  could; as we have seen; form only an alliance; or a  confederation; not one sovereign people; and from an alliance; or  confederation; the ally or confederate has; saving its faith; the  inherent right to secede。  The argument assumes that the States  were originally each in its individuality a sovereign state; but by  the con… 286        vention which framed the constitution; each surrendered  its sovereignty to the whole; and thus several sovereign states  became one sovereign political people; governing in general  matters through the General government; and in particular matters  through particular or State governments。  This is Mr。 Madison's  theory; and also Mr。 Webster's; but it has been refuted in the  refutation of the theory that makes government originate in  compact。  A sovereign state can; undoubtedly; surrender its  sovereignty; but can surrender it only to something or somebody  that really exists; for to Surrender to no one or to nothing is;  as has been shown; the same thing as not to surrender at all; and  the Union; being formed only by the surrender; is nothing prior  to it; or till after it is made; and therefore can be no  recipient of the surrender。
  Besides; the theory is the reverse of the fact。  The State does  not surrender or part with its sovereignty by coming into the  Union; but acquires by it all the rights it holds as a State。   Between the original States and the new States there is a  difference of mode by which they become States in the Union; but  none in their powers; or the tenure by which they hold them。  The  process by which new States are 287                                 actually formed and admitted into  the Union; discloses at once what it is that is gained or lost by  admission。  The domain and population; before the organization of  the Territory into one of the United States; are subject to the  United States; inseparably attached to the domain of the Union;  and under its sovereignty。  The Territory so remains; organized  or unorganized; under a Territorial Government created by  Congress。  Congress; by an enabling act; permits it to organize  as a State; to call a convention to form a State constitution; to  elect under it; in such way as the convention ordains; State  officers; a State legislature; and; in the way prescribed by the  Constitution of the United States; senators and representatives  in Congress。  Here is a complete organization as a State; yet;  though called a State; it is no State at all; and is simply  territory; without a single particle of political power。  To be a  State it must be recognized and admitted by Congress as a State  in the Union; and when so recognized and admitted it possesses;  in union with the other United States; supreme political  sovereignty; jointly in all general matters; and individually in  all private and particular matters。
  The Territory gives up no sovereign powers 288                                            by coming into the  Union; for before it came into the Union it had no sovereignty;  no political rights at all。  All the rights and powers it holds  are held by the simple fact that it has become a State in the  Union。  This is as true of the original States as of the new  States; for it has been shown in the chapter on The United States;  that the original British sovereignty under which the colonies  were organized and existed passed; on the fact of independence;  to the States United; and not to the States severally。  Hence if  nine States had ratified the constitution; and the other four had  stood out; and refused to do it; which was within their  competency; they would not have been independent sovereign  States; outside of the Union; but Territories under the Union。
  Texas forms the only exception to the rule that the States have  never been independent of the Union。  All the other new States  have been formed from territory subject to the Union。  This is  true of all the States formed out of the Territory of the  Northw