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 Wzs Secession Taught at West Point? 
 
MILITARY ORDER OF THE LOYAL LEGION OF THE UNITED STATES 
 COMMANDERY OF THE STATE OF PENNSYLVANIA 
 
 Was Secession Taught at West Point? 
 
 READ AT THE MEETING MAY 5 1909 
 BY 
 
 COMPANION BREVET LIEUT.-COLONEL JAMES W. LATTA U. S. V. 
 
 1909 
 
 \ 
 

 G-in 
 
 ft. ^V.U.. ^. P.YvJar^L^v. 
 
Was Secession Taught at West Point ? 
 
 By Brevet Lieut. -Colonel James W. Latta, U. S. V. 
 
 FOREWORD. 
 
 The follovnng extracts from a few of the many publications that have recently 
 appeared upon the question of the right of a state to secede from the American 
 Union, and matters incident thereto, apparently not yet disposed of, will supply 
 a suitable introduction to and the need for the text that is to follow. 
 
 "Another erroneous view of the great struggle, very generally held in the North, 
 is that the South waged the war to perpetuate slavery. Nothing could be further 
 from the truth. The war was fought for constitutional liberty and slavery was 
 only an incident to the great question." New York Times Book Review, Dec. 
 26 ,1908, communicated. 
 
 "This public opinion (now prevalent in the South') positively demands that 
 teachers of history, both in the colleges and high schools, shall subscribe un- 
 reservedly to two trite oaths: (i) That the South was altogether right in seceding 
 from the Union in 1861; and (2) that the war was not waged about the negro." 
 . "Historical scholarship has settled the fact that according to the 
 interpretation of the American Constitution up to the time of the Civil War 
 the Southern States did have the right to secede from the Union," and General 
 Adams adds, "The whole opposite contention from the days of Andrew Jackson 
 and Daniel Webster to i860 is thus summarily dismissed." 
 
 Foot note citation to "The Constitutional Ethics of Secession" by Genl. Charles 
 Francis Adams. Proceedings Mass. Hist. Soc, p. 100, Jany. — March, 1903. 
 
 "The reason" ("for the predominance of Southern views and ideals" at West 
 Point) "runs back to several sources, one branch to the isolation of West Point." 
 "The other deeper, more dangerous, procreative and far reaching 
 to a text book on the Constitution by William Rawle of Philadelphia." . 
 
 JAMES WILLIAM LATTA. 
 
 First Lieutenant 119th Pennsylvania Infantry, September i, 1862; Captain 
 March 4, 1864; discharged to accept staff appointment May 19, 1864. 
 
 Captain and Asst. Adjutant General U S. Volunteers April 20, 1864; honor- 
 ably mustered out January 20, 1866. 
 
 Second Lieutenant 6th U. S. Infantry February 7. 1867; declined February 
 18, 1867. 
 
 Brevetted Major U. S. Volunteers December 5, 1864, "for gallant and meri- 
 torious conduct at the battle of Winchester, Va., and for his habitual good con- 
 duct and deportment on all the battle-fields of the campaign^before Richmond, 
 Va.;" Lieut. -Colonel April 16, i86,s, "for gallant and meritorious services in the 
 cavalry Vjattles of Ebenezer Church, Ala., and Columbus, Ga." 
 
"Without qualification Rawle maintained" . . . "The secession 
 of a state from the Union depends upon the will of the people of such state." 
 Spirit of Old West Point, Genl. Morris Schaff, Boston, Mass., 1907. 
 
 This introduction to the Rawle citation is as it appeared in the July number 
 of 1907 of the Atlantic Monthly where the work was first presented to the public 
 as a serial. When it appeared in book form, the author had accepted two years 
 as the life of Rawle at the Academy and had so altered his text that it there 
 reads as follows: 
 
 "But there is another reason which seems to me to account more directly 
 for its vitality at West Point in my time, I refer to the influence of a text book 
 on the Constitution by William Rawle of Philadelphia." 
 
 (Virginia "his native state") "which in the exercise of its constitutional right, 
 seceded from the Union on being invaded" 
 
 "As a matter of fact, at the time that young Lee was attending the Military 
 Academy at West Point, the text books, such as 'Rawle on the Constitution,' 
 which were used there, taught with great distinctness the absolute right of a 
 state to secede and the primary duty of every man to his native state." 
 
 Robert E. Lee. The Southerner. Thomas Nelson Page. 1908. 
 
 "We of the South have been wont to leave the writing of history mainly to 
 others, and it is far from a complete excuse, that whilst others were writing 
 history we were making it." 
 
 "The reputation of the South has suffered because we have allowed rhetoric 
 to usurp the place of history, we have furnished many orators but few historians, 
 but all history must be the work not of the orator, but of the historian.". . Idem. 
 
 "When the Constitution was adopted by the votes of States at Philadelphia, 
 and accepted by the votes of States in the popular conventions, it is safe to say 
 there was not a man in the country from Washington and Hamilton on the one 
 side to George Clinton and George Mason on the other who regarded the new 
 system as anything but an experiment entered upon by the States and from 
 which each and every State had the right peacefully to withdraw." Life of 
 Daniel Webster — by Hon. Henry Cabot Lodge. 
 
 "Mr. Lodge fully concedes that when Webster replied to Hayne the popular 
 idea of the Constitution was no longer that of an experiment from which the con- 
 tracting parties had a right to withdraw, but that it had become the charter 
 of a National Government." The Historical Conception of the U. S. Constitution 
 and Union. Daniel H. Chamberlain. Proceedings Mass. Hist. Soc, second 
 series. Vol XVL, p. 153, May 1902. 
 
I. Rawle's Constitution Reviewed. 
 
 Mr. James Ford Rhodes, accredited as one of the five American writers of 
 history who have written history with the significant scientific accuracy demanded 
 by modern scholarship, in the opening chapter of his "History of the United 
 States from the Compromise of 1850," in referring to the return to power of the 
 Democratic Party under the leadership of Grover Cleveland, says: "For by that 
 time the great questions which had their origin in the War had been settled as 
 far as they could be by legislative and executive direction. Time only, the com- 
 mon arbitrator, could do the rest." 
 
 A "careless historical scholarship" is the blight of a people. Such a blight 
 at one time fell upon this country with fateful efi'ect. Much that was then said 
 as conclusive of the right of a State to secede would have been left unsaid, if 
 the public conscience had been set aright historically. The doctrine of secession 
 exploded by gunpowder with all its attendant casualties, could have been as 
 well then exploded by history as it has been since. History has apparently 
 had no part in the settlement of the great questions of the War as perfected by 
 "legislative and executive direction." Will her aid be helpful to "Time," 
 "the common arbitrator," as he sets about his task to "do the rest." Her con- 
 cise and conclusive judgment is to be found on the 52nd page of the first volume 
 of the work of the eminent author last quoted, and is as follows: 
 
 "The justification alleged by the South for secession in 1861, was based on 
 the principles enunciated by Calhoun, the cause was Slavery. Had there been 
 no slavery, the Calhoun doctrine of the Constitution would never have been 
 propounded, or, had it been, it would have been crushed beyond resurrection 
 by Webster's speeches of 1830 and 1833 and by the prompt action of President 
 Jackson. The South could not in 1861 justify her right of revolution, there 
 had been no oppression, no invalidation of rights. She could not, however, pro- 
 claim to the civilized world what was true, that she went to war to extend slavery. 
 Her defence therefor is that she made the contest for her constitutional rights, 
 and this attempted vindication is founded on the Calhoun theory." 
 
 The Calhoun theory, as it will be remembered, was that the Constitution of 
 1787 was a compact or agreement between the several States, that it did not 
 create a Nation, that the Union it established was a Union of States and not a 
 Union of individuals, that the citizens of the several States were bound by it 
 only through the act of the several States. Webster's speeches, on the con- 
 trary, familiar throughout the land for their splendid rhetoric, their convincing 
 logic, their exalted patriotic perorations, are known in his works under the title, 
 "The Constitution not a Compact between Sovereign States." 
 
Every State has its problem to solve. The problem for this State was a 
 federative government operative upon the individual. A federative Union be- 
 tween States began with the Achaen League and ended with the Confederation 
 of 1777. A federative government acting directly on the citizen is purely an 
 "American invention." It had its inception in the Constitution of 1787. A 
 government that can command allegiance in peace and service in war; that can 
 protect through its Courts and tax through its legislature; that can invoke its 
 police power to preserve the public health; light its coast line; parcel its lands; 
 regulate its commerce; construct its waterways for traffic; and build its dams 
 for irrigation, is the only government ready to meet its initial guarantee of "life, 
 liberty and the pursuit of happiness." It was this keynote of individuality 
 that moved the founders when they abolished the Confederacy and established 
 the Union. It was this keynote that escaped Calhoun, aroused Jackson and in- 
 spired Webster. 
 
 A new question, or if not a new question, at least appearing in a new phase, 
 has recently been brought into prominence. It is not one of the great questions 
 within the scope of settlement by "executive and legislative direction." "Time" 
 may at sometime be helpful to its adjustment, but just now even as a "common 
 arbitrator" it is probably beyond his jurisdiction. What is needed most at pre- 
 sent is to set it right historically. 
 
 In 1825 William Rawle of Philadelphia published the first edition of his work 
 "A View of the Constitution of the United States of America." It was copy- 
 righted in January, and is said to have at once found its way to the Military 
 Academy at West Point, as a text book. The question as to its presence there 
 has been recently revived with considerable vigor, and as the book distinctly 
 avows the right of a State to secede, it is asserted that the Government should 
 consequently be answerable for the evil that may have followed the dissemination 
 of the doctrine. 
 
 The "Commentaries on the Constitution of the United States of America" 
 by Thomas McKean and James Wilson appeared in 1792, and Thomas Sergeant's 
 "Constitutional Law:" "a view of the Practice and Jurisdiction of the Courts 
 of the United States," in 1822, but Rawle's was probably the first work pub- 
 lished adapted to collegiate and academic instruction. In 1820 John Taylor 
 of Caroline, Virginia, issued his "Constitution Constructed and Constitution 
 Vindicated." He followed it in 1823 with his "New Views of the Constitution 
 of the United States," but his "Inquiry into the Principles of the Government 
 of the United States" published 1S14 had preceded both. Kent's first volume 
 did not appear until 1826 and Story's not until 1833. Certainly if Taylor's 
 radical secession views had ever been introduced into the academic course 
 of a government institution, there would never have been atonement for the 
 propagation of the evil. The subject is entitled to broader treatment than it 
 has recently received at the hands of those who insist that Rawle's Constitution 
 at one time had a place in the West Point curriculum. 
 
 So much stress has been put upon the "influence" of this book upon the 
 "cadet mind;" so much weight given to the material evidence it is maintained 
 that it supplies to justify secession; so much value placed upon its alleged un- 
 assailable and unqualified conclusions, that something should be made known 
 of the author and his environments, and something be said that may the better 
 interweave his secession text with his Union context. Mr. Rawle appears 
 
here as the author, the teacher, not as an advocate, and it may be fairly assumed 
 from the conclusions he draws, that he did not expect the right to secede to be 
 invoked, simply because the right existed. Justification and cause must run 
 concurrently, if the teachings he promulgates are to be rightly followed. Such 
 undoubtedly, too, was the judgment of his cotemporaries. Any other view at 
 this late day is but an effort to sustain a position inherently weak. 
 
 William Rawle (1759-1S37) eminent in his profession, was among the Nation's 
 foremost lawyers, and the recognized leader of his own Bar. The political out- 
 lawTy of his parents, — his immediate relations and connections, were all ad- 
 herents of the royal cause — induced him in his youth to visit England, where 
 intended for the law, he entered as a student in the Middle Temple. His course 
 there was brief. Upon his return, prompted by an earlier close of the Revolu- 
 tionary struggled than he had anticipated, he resumed his legal studies in his 
 native city and followed his profession there until the end of his life. 
 
 A biographer has said of him, "A deep and abiding sense of filial duty estranged 
 him for a time from his native country; but when he was enabled consistently, 
 with that (to him) paramount sentiment, to return and take his place as a mem- 
 ber of the new community, he became with sincerity and earnestness, in heart 
 as well as in fact, a republican citizen." He was chosen a member of the Legis- 
 lature to represent Philadelphia at the General Election in 17S9. "This was 
 his first and last appearance on the stage of political life." The only public 
 place he ever held was that of District Attorney of the United States for the 
 District of Pennsylvania, "conferred upon him without solicitation," and from 
 this office he voluntarily retired after some nine years of service. He was 
 content with the distinctions of professional life, declining all other offers of 
 public preferment, notably that of Presiding Judge of the District Court of his 
 County. The position was twice tendered him. He was a member of the 
 American Philosophical Society and Chancellor of the Law Association. 
 
 The author of numerous addresses and pamphlets, aside from his contributions 
 to the law, he was well known at the time and has apparently been more widely 
 known since, from his text book on the Constitution It passed through three 
 editions, and was to be found as a text book in several of the leading institutions 
 of learning of that day. When, however, it has been recently quoted, it has been 
 only with a few brief sentences on the right of a State to secede. Obsolete 
 as to its conclusions on the question of secession, the work has been long out of 
 print is not readily accessible, and is rarely found outside the Libraries. The 
 author cannot be fairly understood without a fuller exposition than recent 
 writers have supplied, of the theories from which he deduced his conclusions 
 on the obligations to the Union and the right to withdraw from it, theories 
 based on premises decidedly different from those of other commentators, who have 
 reached the same conclusion as he has on the question of secession. A mnre 
 extended review will afford the opportunity for a better understanding. 
 
 There is a striking contrast between the "introduction" and conclusion, be- 
 tween the opening and closing chapter. In the one the author proclaims the 
 supremacy of the Nation, the unification of the people, a paramount allegiance. 
 In the other he cautions the reader that the doctrine of the "indefeasible nature 
 of personal allegiance," "not expressed but mutually understood," "heretofore 
 presented" "must be so far qualified in respect to allegiance to the United States" 
 as to permit its withdrawal when the State shall withdraw. In the intervening 
 
twenty-nine chapters there is no indication that such a reservation is likely '.o 
 follow except that it may be so construed from the observation that it is "compe- 
 tent for a State to make a compact with its citizens that the reciprocal obligations 
 of protection and allegiance might cease in certain events." 
 
 It is necessary to quote liberally from the early pages, that an opportunity 
 may be afforded to judge whether his reader, even if the author did not so con- 
 sider it, would not be wholly justified in concluding that the Constitution makers 
 had succeeded in constructing a government that did not inherently provide 
 for its own destruction, though it is by some still assumed, that such was not 
 their purpose. The following extracts are submitted in support of this con- 
 clusion. 
 
 "The history of man does not present a more illustrious monument of human 
 invention, sound principles, and judicious combinations than the Constitution 
 of the United States." 
 
 "It was the act of many independent States, though in a greater degree the 
 act of the people set in motion by those States; it was the act of the people 
 of each State, not of the people at large." 
 
 "The Constitution thus became the result of a liberal and noble sacrifice of 
 partial and inferior interests, to the general good, and the people formed into one 
 mass as citizens of the Union yet still remaining distinct as citizens of the different 
 States created a new government without destroying those which existed before; 
 reserving in the latter what they did not surrender to the former, and in the 
 very act of retaining part, conferring power and dignity on the whole." 
 
 "The people of the States unite with each other without destroying their 
 previous organization." 
 
 "The obligations of duty and allegiance to them (the States) are not impaired; 
 but in those instances, which are within the sphere of the general government, 
 the higher obligations of allegiance and duty to it supersede what was due to 
 the State governments because from the very nature of the case they cannot 
 be co-equal. Two governments of concurrent right and power cannot exist 
 in one society. Superiority must therefore be conferred on the general govern- 
 ment, or its formation instead of promoting domestic tranquillity would produce 
 perpetual discord and disorder." 
 
 "As therefore it (the State) is neither a stranger, nor properly speaking a 
 confederate, it seems to follow it must be considered as part of the greater nation, 
 a term which in the course of this work we shall chiefly use in reference to the 
 United States, because although every political body governed by its own laws 
 or internal regulations may be denominated a Nation, yet States not possessing 
 that absolute independence cannot with full propriety be so designated." 
 
 "By construction we can only mean the ascertaining of the meaning of an in- 
 strument or other form of words and by this rule alone ought we to be governed 
 in respect to this constitution. . The true rule therefore seems 
 
 to be no other than that which is applied in all cases of impartial and correct 
 exposition; which is to deduce the meaning from its known intention and its 
 entire text, and to give effect if possible to every part of it consistent with the 
 unity and harmony of the whole." 
 
 "In many respects we have the benefit of the learned elucidation of judicial 
 tribunals and wherever the Supreme Court of the United States has pronounced 
 its solemn decision upon Constitutional points, the author has gladly availed 
 himself of the irrefragable authority, but where a guide so certain cannot be 
 
 8 
 
found, recourse can only be had to anxious a.id serious endeavor to Jisplay and 
 expound with truth and justice the main feature of a constitution which must 
 always be more admired as it is more considered and better understood." . . . 
 
 The Nationalist need ask no firmer support, or look farther for more convinc- 
 ing speech, than he will find here. Nor need a faculty seek a better assurance, 
 so far as preparatory presentation can supply it, that the book might safely 
 be trusted to teach "an indestructible Union of indestructible States." 
 
 The first chapter begins with the "Preamble" recited in the author's own way. 
 "The government formed under the appellation of the United States of America 
 is declared in the solemn instrument which is denominated the Constitution 
 to be," "ordained and established by the people of the United States in order 
 to form a more perfect Union, establish justice, insure domestic trancjuillity, 
 provide for the common defence, promote the general welfare and secure the 
 blessings of liberty to themselves and their posterity." While he quotes it, 
 it is not quoted. The "we" before "the people" is omitted and as it reads 
 here, it is rather as that they the people did, instead of as in the original that 
 "we the people" do. The material strength of the phrase is that it imports 
 action. Its force is lost when it is rendered as of the past, not of the present. 
 The conclusion "this Constitution of the United States of America" as it had been 
 previously made to appear, reconstructed in the author's language, is not re- 
 quoted in its own. 
 
 Again in Appendix IV, appears the whole Constitution with the Preamble 
 omitted, notwithstanding that announcement is made that "For the purpose of 
 convenient reference the entire Constitution is here inserted, including the amend- 
 ments." 
 
 The omission of the Preamble and particularly the phrase "We the people 
 of the United States" is the more conspicious, for about this clause, considered 
 by the "founders" as conclusive for cohesion, has waged the contest between 
 a "Nation" and a "compact". These omissions, not otherwise supplied, is the 
 more significant when it is recalled that the author in discussing his crucial point 
 in his theory of secession says "Not a word in the Constitution is intended to be 
 inoperative." Significant too when it is remembered that an effective solution 
 of intention is often more readily found in a Preamble than in the text. The 
 clause therefore is of material import and so it has been treated by all other com- 
 mentators. The Supreme Court had already ruled that the whole people of 
 the United States were as well a party to concurrence in the adoption of the 
 Constitution, as were the States, and the people of the States. 
 
 There is nothing in the two hundred and fifty pages that follow to divert the 
 reader's attention from a cohesive Union until the apparition of secession sud- 
 denly confronts him in the thirty-first and concluding chapter. Its compro- 
 mising title "Of the Union" may not be as paradoxical as it would seem, when 
 the author's sentiments for and his conclusions against the Union are closely 
 considered. 
 
 Recent writers have only sought to know Rawle's views on the question of 
 secession, not whence he derived them or why he held them ; hence, as has been 
 said, when he has been cited, he has been but meagrely quoted. His doctrine, 
 sound in the abstract as to the right of an independent State to change its form 
 of government, when the people so willed, is maintained, wholly regardless of 
 the obligations imposed by an interdependence. Other writers who uphold 
 the doctrine of secession do not seem to have placed their dependence upon 
 
this conceded right of the absolutely independent State. As so much reliance 
 is placed on the "Guarantee" clause of the Constitution, where alone the sub- 
 ject of secession is treated, it will be better understood if its treatment there 
 be fully quoted. 
 
 "Having thus endeavored," as the chapter begins, "to delineate the general 
 features of this peculiar and invaluable form of government, we shall conclude 
 with adverting to the principles of its cohesion and to the provisions it contains 
 for its own duration and extension." 
 
 "This subject cannot be better understood than by presenting in its own words 
 an emphatical clause of the Constitution." (Art. IV, Sec. 4.) 
 
 "The United States shall guarantee to every State in this Union a republican 
 form of government, and shall protect each of them against invasion; and on 
 the application of the Legislature or of the Executive (when the Legislature 
 cannot be convened) against domestic violence." 
 
 "The Union is an association of the people of republics; its preservation is 
 calculated to depend on the preservation of those republics. The people of 
 each pledge themselves to preserve that form of government in all. Thus each 
 becomes responsible to the rest that no other form of government shall prevail 
 in it; and all are bound to preserve it in every one. But the mere compact 
 without the power to enforce it would be of little value. Now this power can no- 
 where be so properly lodged as in the Union itself. Hence the term guarantee 
 indicates that the United States are authorized to oppose and if possible pre- 
 vent every State in the Union from relinquishing the republican form of govern- 
 ment. And as an auxiliary means they are expressly authorized and required 
 to employ their force on the application of the constituted authorities of each 
 State, ' to repress domestic violence.' If a faction should attempt to subvert 
 the government of a State for the purpose of destroying its republican form 
 the paternal power of the Union could thus be called forth to subdue it. Yet 
 it is not to be understood that its interposition would be justifiable if the people 
 of a State should determine to retire from the Union, whether they adopted 
 another or retained the same form of government, or if they should with the 
 express intention of seceding, expunge the representative system from their 
 code, and thereby incapacitate themselves from concurring according to the 
 mode now presented in the choice of certain public officers of the United States." 
 
 "The principle of representation although certainly the wisest and the best is 
 not essential to the being of a Republic and therefore the guarantee must be 
 construed." 
 
 "It depends upon the State itself to retain or abolish the principle of repre- 
 sentation, because it depends upon itself whether it will continue a member of 
 the Union. To deny this right would be inconsistent with the principles upon 
 which our political systems are founded, and which is, that the people have in 
 all cases a right to determine how they will be governed. This right must 
 be considered as an ingredient in the original composition of the general govern- 
 ment, which though not expressed ivas mutually understood, and the doctrine here- 
 tofore presented to the reader, in regard to the indefeasible nature of personal 
 allegiance is so far qualified in respect to allegiance to the United States. It 
 was observed that it was competent for a State to make a compact with its citi- 
 zens that the reciprocal obligations of protection and allegiance might cease in 
 certain events, and it was further observed that allegiance would necessarily 
 cease on the dissolution of the societv to which it was due." 
 
"In what manner this guarantee shall be effectuated is not explained, and it 
 presents a question of considerable nicety and importance." 
 
 "Not a word in the Constitution is intended to be inoperative and one so 
 significant as the present was not lightly inserted. The United States are 
 therefore bound to carry it into effect whenever the occasion arises, and finding 
 as we do in the same clause the engagement to protect each State against domestic 
 violence, which can only be by the arms of the Union, we are assisted in a due 
 construction of the means of enforcing the guarantee. If a majority of the people 
 of a State deliberately and peacefully resolve to relinquish the republican form 
 of government, they cease to be members of the Union. If a faction, an inferior 
 number, make such an effort and endeavor to enforce it by violence the case pro- 
 vided for will have arisen and the Union is bound to employ its power to pre- 
 vent it." 
 
 Nothing more is said of whence comes the authority for or wherein lays the 
 power to effectuate a secession. Comment is made on the present methods 
 necessary to accomplish it; the serious consequences likely to follow should it 
 be accomplished; and the chapter closing with a strong appeal for the Union, 
 calls for the avoidance of those who would seek to dissolve it as one would avoid 
 "the thrust of the assassin." 
 
 "The secession of a State from the Union depends upon the will of the people 
 of such State." 
 
 "But in any manner in which secession is to take place, nothing is more certain 
 than that the act should be deliberate, clear, and unequivocal." .... 
 "Still, however, the secession must in such case be distinctly and peremptorily 
 declared to take place on that event" — the failure on an attempted reconcilia- 
 tion — "and in such case, as in the case of an unconditional secession, the pre- 
 vious ligament with the Union would be legitimately and fairly destroyed. But 
 in either case the people is the only moving power." .... 
 
 "In the present Constitution there is no specification of numbers after the first 
 formation It was foreseen that there would be a natural tendency to increase 
 the number of States with the increase of population then anticipated and now 
 so fully verified. It "uuas also known thotigh it was not avowed that a State might 
 withdraw itself. The number would therefore be variable." 
 
 "The consequences of an absolute secession cannot be mistaken and they 
 w^ould be serious and afflicting." 
 
 "To withdraw from the Union is a solemn serious act. Whenever it may 
 appear expedient to the people of a state, it must be manifested in a direct and 
 unequivocal manner." 
 
 And the following among his closing sentences, is one of the author's tributes 
 to the Union: 
 
 "In every respect, therefore, which this great subject presents, we feel the 
 deepest impression of a sacred obligation to preserve the Union of our country, 
 we feel our glory, our safety, our happiness involved in it; we unite the interests 
 of those who coldly calculate the advantages, with those who glow with what is 
 a little short of filial affection; and we must resist the attempt of its own citizens 
 to destroy it with the same feelings that we should avert the dagger of the parri- 
 cide." 
 
 Mr. Rawle's cotemporaries had no support for or sympathy with his secession 
 doctrines; on the contrary they were seemingly disposed to deliberately suppress 
 
them. Mr. Thomas I. Wharton, himself a leader of the Bar, in a memorial 
 address delivered before the Pennsylvania Historical Society, shortly after 
 Mr. Rawle's decease, after briefly summarizing the various subjects of which 
 the author treats, with no hint at his doctrine of secession, closes the paragraph 
 with this impressive reference of his tribute to the Union : 
 
 "The volume concludes with a chapter on the blessings and benefits of the 
 Union, and of that invaluable constitution by which those blessings and benefits 
 are secured, and it is to be hoped perpetuated; and the author finishes his work 
 with a quotation from the farewell address of that illustrious man," "whose 
 character," he remarks, "stamps inestimable value on all that he has uttered, and 
 whose exhortations on this subject, springing from the purest patriotism and 
 the soundest wisdom, ought never to be forgotten or neglected." 
 
 Our author seems to have been moved rather by the hard logic of his legal 
 conclusions, than by the deep and abiding conclusions he had of the "blessings 
 and benefits secured by the Union." 
 
 If the guarantee clause was sufficient then the constitution secured to the 
 States that inherent right of a Sovereign State to change its form of government 
 as the people willed ; if it was not sufficient or was not so intended then the ob- 
 ligations imposed by the Union of the States and the people of the States with 
 themselves and with each other so abrogated that ingredient of sovereignty, 
 of independence in each State, that if it sought to change its form of government 
 or its relations with its fellows, it must secure the consent of all the other States. 
 According to Rawle's construction of this "emphatical clause," it guaranteed 
 not only to protect the State in its republican form of government, but it guaran- 
 teed to permit the State to retain every right, immunity and privilege incident 
 to a republican State. It guaranteed not only to protect it with all its force 
 against offenders against its integrity while it was within the Union, but it guar- 
 anteed also as "was known but not avowed" not to molest it, if it decided to 
 destroy itself as an integral part of the Union. 
 
 The guarantee that a State might withdraw from the Union whether it re- 
 tained its same form of government or adopted another, when a majority so 
 willed, as "was mutually understood," "was an ingredient in the original com- 
 position of the general government." But is was not claimed to be understood 
 that this ingredient also included a guarantee that would protect the State from 
 the attempt of a faction to subvert its government. The rights and obligations 
 of State to Nation and Nation to State, of allegiance to one and protection 
 from the other, were to be reciprocal, whether inherent or conferred. And the 
 "Arms of the Union" might therefore be employed as well against domestic 
 violence as to suppress a faction and so protect the State should a "faction or 
 lesser number" make an "effort or endeavor" to accomplish by force what a 
 majority might do peacefully. 
 
 If Rawle was right he made a better case for secession than secession ever 
 made for itself. But no secession ever accepted him, except as a make weight, 
 and it is a manifest weakness to urge him as a factor now, when he can serve no 
 purpose, when they refused to receive him then, when he could. No text writer 
 of note cites Rawle's secession views authoritively, only one of its leading de- 
 fenders cites him at all. 
 
 Rawle found his strength within the four corners of the constitution and there 
 he made the "greater" Nation in its integrity preserve and care for the dignity 
 and privilege of the "lesser" Nation in its. He kept that great instrument, 
 
which he was so wont to extol, above and beyond the sordid commercial con- 
 struction of compact, bargain, agreement. The two constructions are far apart. 
 They cannot be made to meet here. If a state be permitted to withdraw from 
 a compact it would not be expected that a compact only possessed the strength 
 to enforce its own guarantee, nor indeed would such a guarantee be needed. The 
 West Point cadet who learned his secession from Rawle would have to unlearn 
 it when he took it from Jefferson Davis. 
 
 In seeking for the meaning or intention in construing a statute or ordinance, 
 it has never been considered that a prevailing public opinion of the time of the 
 language of debate in convention or assembly is a safe guide; the text itself 
 is the only sure reliance. Indeed it has been exj)ressly ruled that speech in 
 Assembly has no place in judicial construction; that what may be said by the few 
 who speak may not be the thoughts of the many who vote. Cotemporaneous 
 opinion, it is true, may be sought to aid construction under certain conditions, 
 but then it must be well established. "It can never abrogate the text, it can 
 never fritter away the obvious sense." A vote under a misapprehension can 
 only be corrected before announcement. An individual may be misled; can a 
 whole community be so deceived, that the privilege of the misapprehending 
 voter must be made operative indefinitely. The American people generally 
 know what they want and how to get it. 
 
 Hence Mr. Rawle' s "though not expressed it was mutually understood" and 
 "it was known but not avowed" that a State might withdraw itself is fairly open 
 to criticism. A mutual understanding concerning a written instrument, may mean 
 either of two things to alter, amend, or interpret, or to so destroy the sense by the 
 interjection of new matter as to nullify it entirely. Mutual understanding 
 and cotemporaneous opinion are apparently treated here as synonymous. Mu- 
 tual understanding, a much more conclusive term, demands however the more 
 exact demonstration. The whole people were a party to the agreement, and 
 what was the understanding of one, if it was to be mutual, must have been the 
 understanding of the other. Unless the whole people were like minded the un- 
 derstanding fails in that essential mutuality, without which it could serve no 
 purpose. 
 
 This is the more significant, as special stress is laid upon these phrases "mu- 
 tual understanding" and "known but not avowed" by Alexander H. Stephens 
 in his "War Between the States," the leading secession writer, who though 
 apparently not fully in accord with Rawle quotes him freely. He thus incor- 
 porates some four pages of Rawle' s matter into four pages of his, and decidedly 
 intimates that though he does not concur with him wholly in his text, he does 
 agree with him logically in his conclusion. And in this logical concurrence 
 he says, "As he (Rawle) was a living actor in the scenes," these phrases become 
 of special moment. 
 
 A mutual understanding not expressed or a fact known but not avowed dis- 
 closes a weak case, weaker, when the issue involves the construction of a written 
 instrument. But if it can be shown that there was no such understanding and 
 never such an avowal, then it would seem that there was no case at all. As 
 "a living actor in the scenes" Mr. Rawle may have been of avail as an authority, 
 certainly he was of no service as a witness. 
 
 The campaign for ratification was a bitter political contest, strife waxed warm, 
 angry contention never ceased. A recent commentator has cogently said, "While 
 
 13 
 
the Constitution was before the people awaiting their approval the friends and 
 partizans of the State Sovereignty theory marshalled their forces and attacked 
 it with a virulence and malignity of which we can now hardly form a conception." 
 If cotemporaneous opinion is the highest authority and facts disclosed in that 
 contest are the best evidence, neither Rawle nor Stephens seem to have followed 
 the testimony, nor do they seem either to have fully apprehended what the 
 judgment of the majority then rendered meant. What wa's the testimony? 
 What were the pleadings? Who tried the case? Who found the facts? What 
 was the judgment? 
 
 The Constitutional Convention framed the issue and opened its case for a 
 "consolidated Union", and so declared unequivocally in its letter to Congress 
 transmitting the Constitution for submission to the country, as follows: "In all 
 our deliberations we kept steadily in our view that which appears to us of the 
 greatest interest of every true American — the consolidation of our Union in 
 which is involved our prosperity, felicity, safety, perhaps our national existence. 
 This important consideration seriously and deeply impressed on our minds, led 
 each State in the Convention to be less rigid on points of inferior magnitude, 
 than might have been otherwise expected; and thus the Constitution, which we 
 now present, is the result of a spirit of amity, and of that mutual deference and 
 concession, which the peculiarity of our political situation rendered indispens- 
 able." (A) 
 
 IN CONVENTION, Monday, September 17th, 1787. 
 
 (A) Present, The States of New-Hampshire, Massachusetts, Connecticut, Mr. 
 Hamilton from New-York, New-Jersey, Pennsylvania, Delaware, Maryland. 
 Virginia, North Carolina, South Carolina, and Georgia. 
 
 Resolved, That the preceding constitution be laid before the United States 
 in congress assembled, and that it is the opinion of this convention, that it should 
 afterwards be submitted to a convention of delegates chosen in each state by 
 the people thereof, under the recommendation of its legislature, for their assent 
 and ratification; and that each convention assenting to, and ratifying the same, 
 should give notice thereof to the United States in congress assembled. 
 
 By the unanimous order of the convention. 
 
 GO: WASHINGTON, 
 WILLIAM JACKSON, President. 
 
 Secretary. 
 
 IN CONVENTION, September 17th, 1787. 
 
 SIR, We have now the honor to submit to the consideration of the United 
 States in congress assembled, that constitution which has appeared to us the 
 most advisable. 
 
 The friends of our country have long seen and desired, that the power of making 
 war, peace and treaties; that of levying money and regulating commerce, and 
 the correspondent executive and judicial authorities should be fully and effect- 
 ually vested in the general government of the union; but the impropriety of 
 delegating such extensive trusts to one body of men is evident. Hence results 
 the necessity of a different organization. 
 
 It is obviously impracticable, in the federal government of these states, to 
 secure all rights of independent sovereignty to each, and yet provide for the in- 
 terest and safety of all; individuals entering into society, must give up a share 
 of liberty to preserve the rest. The magnitude of the sacrifice must depend as 
 well on situation and circumstance as on the object to be obtained. It is at all 
 times difficult to draw with precision the line between those rights which must 
 be surrendered, and those which may be reserved; and on the present occasion 
 this difficulty was increased by a difference among the several states as to their 
 situation, extent, habits and particular interests. 
 
 14 
 
. Prof. St. George Tucker in his disquisition on the Constitution appearing as 
 an appendix to his Blackstone's Commentaries, perhaps the earliest pubhshed 
 (1803) from a State Sovereignty source, stated that the Convention had created 
 a "Confederate RepubUc;" the Convention itself had distinctly avowed that it 
 had established a "consolidated union" for a "national existence." 
 
 The word consolidate was well known and well understood at the time. 
 It had a distinctive political significance. It meant to the public just what the 
 lexicographer defines it to mean, "To combine into one body or system; form a 
 union of." It is a very antithesis to confederate; "associated in a league com- 
 pact or confederacy; allied by compact or agreement." 
 
 The following instances will exemplify its application, John Taylor in his 
 "Prefatory note" to his "New views of the Constitution of the United States" 
 (supra) says "that many eminent and respectable men have ever preferred 
 and ever will prefer a consolidated national goverttment to our federal system;" 
 
 In all our deliberations on this subject we kept steadily in our view, that which 
 appears to us the greatest interest of every true American, the consolidation 
 of our Union, in which is involved our prosperity, felicity, safety, perhaps our 
 national existence. This important consideration, seriously and deeply im- 
 pressed on our minds, led each state in the convention to be less rigid on points 
 of inferior magnitude, than might have been otherwise expected; and thus the 
 constitution, which we now present, is the result of a spirit of amity, and of that 
 mutual deference and concession which the peculiarity of our political situation 
 rendered indispensable. 
 
 That it will meet the full and entire approbation of every state is not perhaps 
 to be expected; but each will doubtless consider, that had her interests alone 
 been consulted, the consequences might have been particularly disagreeable or 
 injurious to others; that it is liable to as few exceptions as could reasonably 
 have been expected, we hope and believe, that it may promote the lasting wel- 
 fare of that country so dear to us all, and secure her freedom and happiness, 
 is our most ardent wish. With great respect, we have the honor to be, sir, 
 your excellency's most obedient and humble servants. 
 
 GO: WASHINGTON, 
 
 President. 
 
 By unanimous order of the convention. 
 
 His excellency the President of Congress. 
 
 THE UNITED STATES, IN CONGRESS ASSEMBLED, 
 
 Friday, Sept. 2Sth, 1787. 
 Present — New-Hampshire, Massachusetts, Connecticut, New-York, New- 
 Jersey, Pennsylvania, Delaware, Virginia, North Carolina, South Carolina, and 
 Georgia, and from Maryland, Mr. Ross. 
 
 Congress having received the report of the convention lately assembled in 
 Philadelphia: 
 
 Resolved unanimously, That the said report, with the resolutions and letter 
 accompanying the same, be transmitted to the several legislatures, in order 
 to submit to a convention of delegates, chosen in each state by the people thereof, 
 in conformity of the resolves of the convention, made and provided in that case. 
 
 CHARLES THOMPSON, 
 
 Secretary. 
 
 (Secret Proceedings and Debates of the Federal Convention Assembled at 
 Philadelphia in the Year 1787 for the Purpose of Forming the Constitution of 
 the United States of America . . Senate Document No. 728. Six- 
 
 tieth Congress Second Session . . Washington Government 
 
 Printing Office 1909 . . . First Printed at Albany by Webstt-rs 
 and Skinners 1821, page 180 et seq.) 
 
 15 
 
"that the constitution under the influence of this predilection, has been erron- 
 eously construed; that these constructions are rapidly advancing towards their 
 end, whether it shall be consolidation or disunion; that they will become a source 
 of geographical discord; and that the happiness and prosperity of the United 
 States will be greater under a federal than under a national government in any 
 form are the opinions which have suggested the following treaties." 
 
 And Jefferson Davis in a letter, which will later appear in full, referring to 
 Chancellor Kent, said: "Though not so decided on the point of State Sovereignty 
 was very far in advance of the consolidationists of our time." 
 
 The case proceeded under the pleadings. There was no formal answer. 
 The Convention's "statement" received early consideration in Pennsylvania; 
 she was the second state to ratify. It was said her convention devoted five days 
 out of a three weeks' session to determine the meanings of the words "annihilate" 
 and "consolidate." The result clearly demonstrated that their meaning was 
 thoroughly understood. A decisive majority voted for a "consolidated Union" 
 and against "annihilation," the necessary result of the anarchy which it was pre- 
 dicted would follow a failure to ratify. 
 
 The issue was clearly defined by a delegate — Findlay — who contended 
 that "the proposed plan amounted to a consolidation and not a confederation of 
 States." "In the Preamble it is said," he continued — " 'We the people' and not 
 We the States, which therefore is a compact between individuals entering into 
 society and not between separate States enjoying independent power." 
 
 James Wilson, great lawyer, eminent jurist, a leader in the Constitutional 
 Convention, championed in his home state, as he had done there, the cause of 
 the consolidated union. The day before the final vote was taken he spoke 
 earnestly in the Pennsylvania convention for a national existence. 
 
 "This system is not a compact; I cannot discern the least trace of a compact; 
 the introduction to the work is not an unmeaning flourish. The system tells 
 you what it is; — an ordinance, an establishment of the people." 
 
 Patrick Henry was an anti-consolidationist, not for a national existence, 
 a state sovereignty advocate. He conceded Wilson's conclusions, and eloquently 
 argued his own case in the Virginia anti-ratification canvas from Wilson's pre- 
 mises. 
 
 "The Constitution is the severance of the Confederacy. Its language 
 ' We the people ' is the institution of one great consolidated national govern- 
 ment of the people of all the States instead of a government by compact with 
 the States for its agent. The people gave the Convention no power to use 
 their name." 
 
 This one conclusion given the same effect by two adverse advocates, one 
 the great lawyer, the other the "man eloquent," is certainly not helpful to a 
 mutual understanding and known but not avowed concession, of a right to se- 
 cede. Neither can there be better evidence, than is here supplied, of the trend 
 of cotemporaneous opinion More than this, these thoughts, this conclusion, 
 almost the very language, has been woven into every opinion of the Supreme 
 Court of the United States where the question here raised has been submitted 
 for decision. 
 
 Randolph — in the Federal Convention against, in the Virginia Convention 
 for the Constitution — answered Henry for the Unionist— "The question is now 
 between union and no union and I should sooner lop off my right arm than con- 
 sent to a dissolution of the union." 
 
 i6 
 
Pendleton then followed for "this government" and against a Confederacy. 
 
 "Who but the people can delegate powers or have a right to form govern- 
 ment? There is no quarrel between government and liberty, the former is the 
 shield and protection of the latter. The cjuestion must be between this govern- 
 ment and the Confederacy, which is no government at all. This is to be a govern- 
 ment of laws and not of men." 
 
 Madison's explanation of a "consolidated union" interwove the two govern- 
 ments, National and State, indissolubly, "That the Constitution is in part a con- 
 solidated union, and part rests so completely on the States that its life is bound 
 up in theirs." 
 
 And Mason's demonstration was conclusive that the inherent cohesive 
 strength of the instrument was the moving cause of the demand for its rejection. 
 "This paper (that is the Constitution)" said he in his place in the Virginia con- 
 vention, "will be the great charter of America, it will be paramount to everything. 
 After having once consented to it, we cannot recede from it." 
 
 Robert Yates, afterw-ards Chief Justice of the State, and John Lansing, Jun., 
 the two delegates from Xew York who withdrew from the Convention, submitted 
 a joint letter to Governor Clinton "containing their reasons for not subscribing 
 to the Federal Constitution." Of these reasons the following are pertinent 
 and material to the issue here framed. 
 
 "Thus circumstanced, under these impressions, to have 
 hestitated would have been to be culpable; we, therefore, gave the principles 
 of the Constitution, which has received the sanction of a majority of the con- 
 vention, our decided and unreserved dissent; but we must candidly confess, that 
 we should have been equally opposed to any system, however modified, which had 
 m oh\ectt\\& consolidation ol the United States into one government." 
 2d. A conviction of the impracticability of establishing a general government, 
 pervading every part of the United States, and extending essential benefits to 
 all. . . . . . . . . ." From these expressions, we 
 
 were led to believe that a system of consolidated government could not in the 
 remotest degree have been in contemplation of the legislature of this state? 
 for that so important a trust, as the adopting measures which tended to deprive 
 the state government of its most essential rights of sovereignty, and to place it 
 in a dependent situation, could not have been confided by implication;" 
 
 ."These reasons were, in our opinion, conclusive 
 against any system of consolidated government: to that recomm-ended by the 
 cotiveniion, we suppose most of them very forcibly apply." 
 
 Madison was the principal author, and Hamilton, although it was not al- 
 together to his liking, the strongest advocate of the Constitution. Xew York's 
 Convention was threatened with dissolution. It was determined on a conditional 
 ratification based upon a proviso of a right to withdraw, if the amendments it 
 proposed should subsequently fail of adoption. Hamilton well knew an abso- 
 lute ratification only would avail. He sought to strengthen his own views 
 and appealed to Madison. Madison's reply was "prompt and decisive." 
 
 "Yours of yesterday is this moment come to hand and I have but a few- 
 moments to answer it. I am sorry that your situation obliges you to listen 
 to propositions of the nature you describe. My opinion is that a reservation 
 of a right to withdraw, if amendments be not decided on under the form of the 
 Constitution within a certain time, is a conditional ratification; that it does 
 not make New York a member of the new Union and consef|uently that she 
 
 17 
 
could not be received on that plan. Compacts must be reciprocal — this principle 
 could not in such case be preserved. The Constitution requires an adoption 
 in toto and forever. It has been so adopted by other States. An adoption for 
 a limited time would be as ineffective as an adoption of some articles only. In 
 short any condition whatever must vitiate the ratification." 
 
 This silenced the leaders of the opposition and New York's unconditional 
 ratification followed. 
 
 When Webster in 1833 delivered his great speech on the Constitution not 
 a compact, in reply to Calhoun, Madison, then in his eighty-third year, in a letter 
 of congratulation, agreed with him in the view he had taken of the nature of 
 the government established by the Constitution; thus reiterating and confirming 
 as the "greatest living authority," what he had said as the highest authority 
 when the Constitution was yet scarce in its infancy. 
 
 Virginia, where Madison was at home, preserving the sequence from the 
 Declaration of Independence, that where government becomes destructive 
 of the rights it was intended to secure, the people may abolish it and institute 
 another, emphatically, without impairing its validity, so declared in her ordinance 
 of adoption as follows: 
 
 "We the Delegates of the people of Virginia duly elected in pursuance of a 
 recommendation from the General Assembly and now met in Convention, having 
 fully and freely investigated and discussed the proceedings of the Federal Con- 
 vention, and being prepared as well as the most mature deliberation hath enabled 
 us to decide thereon, — Do in the name and on behalf of the people of Virginia 
 declare and make known that the powers granted under the Constitution being 
 derived from the people of the United States may be resumed by them whenever 
 the sam,e shall be perverted to their injury or oppression." .... 
 
 (The entire ordinance quoted in full from Elliott's Debates, Vol. I., p. 327, 
 may be found in Alexander H. Stephens' War Between the States, Vol. I., p. 254, 
 with that author's comments.) 
 
 Thus traced from the earliest creed of our liberties, the right of secession 
 at will is denounced, the right of revolution for a just cause upheld, the one a 
 Nation destroyer, the other a Nation builder, always existing, ever inherent, 
 never denied. 
 
 In Massachusetts the issue was fully comprehended. Samuel Adams, 
 upon whose consent alone ratification hinged, said "he was startled when on en- 
 tering the 'new building' he met with a national government instead of a federal 
 union of sovereign states." And "Nason of Maine stubbornly refused to support 
 a constitution which destroyed the sovereignty of states." 
 
 In Maryland Luther Martin, foremost among the great lawyers of the country, 
 in addressing the House of Delegates in compliance with its resolution request- 
 ing him "to give information with regard to the proceedings of the late con- 
 vention," exhaustively reviewed its debates, discussions and conclusions, gave 
 his reasons as a delegate for withholding his signature to the Constitution it 
 adopted, and strenuously voiced his opinion against the "National government" 
 it created and for the "State governments" it weakened. 
 
 "It is" (he said) "in its very introduction declared to be a compact between 
 the people of the United States as individuals, and it is to be ratified by the 
 people at large in their capacity as individuals; — all of which it was said would 
 be quite right and proper, if there were no State governments, if all the people 
 of this continent were in a state of nature and we were forming one national 
 
 18 
 
government for them as individuals: and is nearly the same as was done in most 
 of the States when they formed the government over the people who composed 
 them." 
 
 "That the representation instead of being drawn from the 
 people at large as individuals, ought to be drawn from the states as states in their 
 sovereign capacity — That in a federal government, the parties to the compact 
 are not the people as individuals, but the states as states, and that it is by the 
 states as states in their sovereign capacity, that the system of government ought 
 to be ratified, and not by the people as individuals." .... 
 
 He also said, referring to the creation and erection of United States Courts 
 to interpret and determine the law, that as the "new government" would be 
 paramount in all its branches, when it went into operation, "whether any laws 
 or regulations of Congress, or any acts of its president or other officers, were con- 
 trary to or not warranted by the Constitution, would rest only with judges 
 appointed by Congress and by whose determination every State must be bound." 
 
 It was claimed by Elbridge Gerry, the non-joining member of the Con- 
 vention from Massachusetts, that the clause permitting amendments by Congress 
 with the concurrence of three-fourths of the States "was radically unsound 
 and fraught with dangerous consequences;" that thereby the powers of the 
 States might be materially minimized or the rights of the general government 
 largely increased; or the Union bound to such innovations as would subvert 
 the State constitutions altogether. The non-concurring States must yield or 
 revolution and insurrection follow unless the other States should consent to a 
 withdrawal. The force of the reasoning, declaring the Constitution of the 
 United States paramount and the State Constitutions subordinate, was recog- 
 nized and accepted by the Convention, the only reply coming from Hamilton, 
 who said there was no greater evil in subjecting the people of the United States 
 to the majority than the people of a particular State. 
 
 The case closed. It had gone to the people under the pleadings, on the facts, 
 and under the authorities. The judgment of the majority was rendered for a 
 Consolidated Union and a National existence, and against a compact of Sovereign 
 States, and that judgment has never been reversed. 
 
 Of the efforts made to reverse it, the following extract from "Pomeroy on 
 the Constitution" fittingly applies: 
 
 "The assumed privilege of seceding from the Union" (was 
 pronounced) "a political heresy of the deepest dye" . . . "Baffled 
 in the legislature and the Courts it finally sought the field; and as it appealed 
 to the sword may not American citizens in all portions of our common country 
 unite in the devout hope that it has perished by the sword." 
 
 From what source do the believers in this mutual understanding, this co- 
 temporaneous opinion, this known but not avowed right of secession, derive 
 their knowledge. It must be from one not readily accessible to the general 
 reader. Is it the whisperings of tradition, or was it "in the air?" It cannot 
 be from cotemporary literature. The Federalist, that powerful auxiliary to rati- 
 fication, was edited by Madison and Hamilton, with occasional contributions 
 from Jay. The debates in the Convention do not disclose it nor do the dis- 
 cussions that followed reveal it; rather indeed, as has been shown, do they clearly 
 establish a contrary conviction. The proposed amendments, to be submitted 
 
 19 
 
for future action, gave no hint that a right of withdrawal, whether provided for 
 or understood, had aught to do with a hesitancy to ratify. Their tendency, 
 instead, was to make the general government more conspicuously operative on 
 the individual. 
 
 The masses, where the bitterest opposition was developed, were moved 
 largely by passion and prejudice and the everpresent besom of a dominant 
 aristocracy. The surrender of local influence ai.d local power was made as an 
 unwilling sacrifice. Any form that contracted, curtailed, or diminished the power 
 of the State was equally offensive. The thrifty and better educated generally 
 gave their united support to the "new government," and it is scarcely fair criti- 
 cism to assail their intelligence with a conclusion that they did not know what 
 they were about. 
 
 This question is definitely disposed of in Hare's American Constitutional 
 Law (1889), Vol. I, page 78 in a single paragraph. 
 
 "They who contend that although the right of secession was not conferred 
 in terms, it was necessarily implied, and was so understood at the time, have 
 to meet two difficulties, — first, how a government which was to be a mere agency 
 that might be terminated at any moment should have been regarded with so 
 much expectation by one party and so much apprehension by the other; and 
 next, why, if such a right was desirable in the opinion of the delegates, and 
 would have been sanctioned by the popular judgment, it was not expressly 
 given in the body of the instrument, or by amendments which were made soon 
 afterwards in accordance with the general wish. These considerations would 
 seem to be decisive. So far from the constitution having been adopted in the 
 belief that the States might secede at pleasure, such provision would have been 
 viewed with universal disfavor, as tending to perpetuate a danger against which 
 all parties sedulously desired to guard and would have insured the rejection of 
 any plan of which it was expressly or impliedly a part." 
 
 Judge J. I. Clark Hare was of the same Bar, and of the next generation 
 after Rawle. He was as eminent as a jurist as Rawle was distinguished as a 
 lawyer. He was upwards of forty years on the Bench, repeatedly re-elected 
 regardless of party in a community where the lines were rigidly drawn. His 
 opinions were rarely questioned, and but infreciuently disturbed by appellate 
 authority. Through all this long career, he had the unbroken confidence of the 
 profession and the continued respect and esteem of his fellow citizens. He 
 was an author of high repute, profound learning, close application, and constant 
 study. For thirty-six years he held Professorships — The Institutes of Law 
 and Constitutional Law — in the University of Pennsylvania. 
 
 Ridicule, raillery, and abuse were favorite weapons. In Massachusetts, 
 where the town meeting idea was so deeply imbedded and where the silence of 
 Samuel Adams so long kept ratification in jeopardy, the prosperous, the well to 
 do, and the educated, the lawyer, the Judge, and the ruler were traduced and 
 maligned in unbecoming and unseemly speech. 
 
 In Virginia Patrick Henry fell into a facetious strain, so belittling statehood 
 under the "new government" that he helped rather than hindered the masterly 
 efforts of Madison, Randolph and Marshall. 
 
 In Pennsylvania Wilson was Scotch Jimmy, James de Caledonia, Madison 
 a boy, and Franklin in his dotage. The five days devoted to debate in the Con- 
 vention on the meaning of words with which every member should have been 
 familiar, it was charged was a useless waste of the public time. One delegate 
 it was said spoke for nine hours continuously 
 
J. p. Gordy, a recognized authority, in his "Political Parties in the United 
 States" says: "The convention framed a constitution by the adoption of which 
 thirteen peoples imagining themselves independent and sovereign, really ac- 
 knowledged themselves to be but j)arts of a single political whole. But they made 
 this acknowledgment unconsciously. They continued to think of themselves 
 as sovereigns, who indeed permitted an agent to exercise some of their functions 
 for them, but who had not abdicated their thrones." 
 
 Rawle, the "living actor in the scenes" and Gordy, the later writer, are of 
 •divergent views, Gordy's conclusion is that the constitution makers builded 
 stronger than they knew; Rawle's implication is of a concealed structural weak- 
 ness, which though known it was deemed wiser not to avow. 
 
 And again, still from Gordy: "If the constitution had contained a definite 
 statement of the actual fact; if it had said that to adopt it was to acknowledge 
 the sovereignty of the one American people, no part of which could sever its 
 connections from the rest without the consent of the whole, it would probably 
 have been rejected by every State in the Union." 
 
 Gordy conceding "the actual fact" that the founders had made a co- 
 hesive Union, discloses the impossibility of his suppository proposition as ex- 
 plicitly as does Bancroft who in his "History of the Constitution of the United 
 States," says "The Constitution is to the American people a possession for all 
 ages, it creates an indissoluble Union of imperishable States." 
 
 Modern scholarship demands from scientific research the whole truth. 
 It will accept no other conclusion. Until the whole truth has been ascertained 
 science does not reveal or disclose a definite result. History is a science. Its 
 investigations are pursued as thoroughly as are those of the other sciences, with 
 equal, if not better opportunities. It is submitted that the conclusion that 
 "thirteen peoples," when they adopted the Constitution, made "unconscious" 
 acknowledgment that they were "but parts of the whole," and the further 
 deduction, that if the Constitution had contained a definite statement "that its 
 adoption" "acknowledged the sovereignty of the one American people." . . 
 "it would have been rejected by every State in the Union," are neither founded 
 upon the exacting requirements demanded by modern scholarship, nor do they 
 disclose the whole truth. (B) 
 
 Besides, confirmation of this "actual fact" and of the creation of this "in- 
 dissoluble union" comes from the most formidable adversary the country ever 
 
 (B) It is singular but can hardly be deemed surprising that the political 
 descendants of the men who in 1787 could see nothing federal in the Constitu- 
 tion, and based their objection to it on the ground that it merged the States in a 
 consolidated government, should be convinced that this view was erroneous, and 
 that the government of the United States is a mere compact or alliance that 
 may be dissolved at pleasure. The Constitution, as delineated by Luther Martin, 
 Patrick Henry, Lansing and the other opponents of the measure in the last 
 century, stands in such marked contrast to the doctrine of Calhoun and his 
 disciples in this, that it would be inconceivable that men so much alike could 
 put such different interpretations on the same instrument, were it not obvious 
 that the sentiment of uncompromising hostility, which prompted the allegation 
 that the new government would be absolute, led to the denial of its sovereignty 
 after it had been estal:)]ished with a view to effect its overthrow. These extreme 
 views refute each other, and need only be thrown into the same crucible to 
 evolve the truth that within the scope of their powers the United States are as 
 sovereign as Parliament, although a wide field of usefulness lies open beyond 
 these limits to the States — Hare's American Constitutional Law, Vol I, page 67. 
 
had, the Confederate States of America. The Constitution of the Confederate 
 States was practically a transcript of the Constitution of the United States ex- 
 cept where the new conditions required a change. The Confederacy failed 
 in the very initiative of its undertaking to justify itself. The States that com- 
 posed the Confederacy had withdrawn from the American Union because of a 
 desire, and in the exercise of an alleged Constitutional right to secede. This 
 right was denied for the reason that the Constitution of the United States in 
 its Preamble: "We the people of the United States in order to form a more per- 
 fect Union;" effectually created and established a cohesive, imperishable, and 
 indissoluble Union. That this Preamble had fully accomplished its purpose 
 was subsequently conceded by the Confederate States themselves. 
 
 Created by secession and organized for secession the Preamble to their 
 Constitution declared with significant potency, that: "We the people of the 
 Confederate States, each State acting in its sovereign and independent character, 
 in order to form a permanent federal government do ordain and establish this 
 Constitution for the Confederate States of America." This Constitution adopted 
 by the unanimous vote of all the Deputies from the States, was known as the per- 
 manent Constitution following one of a provisional nature in operation until 
 the Confederacy had assumed its full proportions. The Preamble of the pro- 
 visional Constitution, "We the Deputies of the sovereign and independent States 
 of " . . . "do hereby in behalf of these States," was more conspic- 
 uous though no more forceful. 
 
 A revival of how vividly Patrick Henry drew the distinction, when he 
 argued against the adoption of the Constitution of the United States in the Vir- 
 ginia Convention, will demonstrate the determination of the Confederacy to 
 avoid embarrassment. 
 
 "Have they said We the States? Have they made a proposal of compact 
 between the States? If they had this would be a confederation. It is otherwise 
 most clearly a consolidated government. The question turns Sir! upon that poor 
 little thing, the expression "We the people," instead of "We the States of Amer- 
 ica." 
 
 The Civil War in America will ever occupy a unique place in the history 
 of the world's revolutions. With two branches of the general government, 
 the legislative and judicial, in the control of their political friends, and the one 
 only, the Executive, in the hands of a political adversary, one by one eleven 
 States withdrew from the American Union, with grievances, pronounced by 
 Charles Francis Adams, the elder, to be "mere abstractions," under an alleged 
 constitutional liberty, the right to secede. It was and is persistently denied 
 that slavery was the cause. 
 
 South Carolina, following her Ordinance of Secession, proclaimed and pub- 
 lished "to the world" her "Declaration of the immediate causes which induce 
 and justify the secession of South Carolina from the Federal Union." By the 
 so called Personal Liberty Acts, laws passed to hinder the operation of the Fugi- 
 tive Slave Law, it was charged that the non-slave-holding States had broken 
 the constitutional compact, and that such breach released the other States, 
 if they should so elect. That the South had been excluded from the common 
 territory. That the Northern States had denounced "as sinful the institution 
 of slavery" and had elected a man for President because he had declared "that 
 this government could not endure permanently half slave and half free." No 
 
other seceding State made formal proclamation. These grievances, however, 
 stand typical of the prevailing causes elsewhere. None are now seriously main- 
 tained. 
 
 The Personal Liberty Acts were all repealed or would have been had not 
 secession intervened before the State Legislatures met to do so. 
 
 The sole cause in which the South now finds its justification, is the resistance 
 of the invasion by United States troops of territory which it is claimed had been 
 rightfully withdrawn from the jurisdiction of the United States; the territory 
 of the States that under their alleged constitutional right had seceded from the 
 American Union. 
 
 23 
 
II. Rawle as a West Point Text Book. 
 
 The text for those who maintain the affirmative of the interrogatory "Was 
 Secession taught at West Point?" is clearly and concisely set forth in the "Pre- 
 fatory Remark" to Col. Robert Bingham's "Sectional Misunderstandings," 
 published in The North American Review of September, 1904, and subsequently 
 reprinted separately "with brief additions." 
 
 It needs to be exhaustively considered that its unsound mode of reasoning 
 may be overcome, and its mistaken conclusions corrected. 
 
 "The crux of the following paper is the historic fact, often asserted and never 
 officially denied, that from 1825 (the year during which Robert E. Lee and Jeffer- 
 son Davis entered the U. S. Military Academy) to as late as 1840, and probably 
 later," "the United States Government taught its cadets at West Point from 
 Rawle' s View of the Constitution that the Union was dissoluble, and that, if it 
 should be dissolved, allegiance reverted to the States. Some conclusive docu- 
 mentary proof of this historic fact is hereby offered for the first time as far as 
 the writer knows or has been able to ascertain. In consideration of facts which 
 cannot be gainsaid or denied, the words rebel, rebellion, traitor and treason 
 should disappear, and NATIONAL AMERICANS should no longer do injustice 
 to each other's motives, as every one who took up arms on either side of the War 
 between the sections did so in obedience to the call to arras by his STATE, to 
 which primary and ultimate allegiance was due according to the theory of the 
 founders of the government and of their successors till i860, and according to the 
 official instruction given by itself at West Point to those who were to command 
 its armies. The extracts from Rawle's 'View of the Constitution' hereafter 
 given speak for themselves." 
 
 (Signed) R. BINGHAM. 
 The Bingham School, Asheville, N. C. 
 
 (From General Charles Francis Adams to Col. Bingham.) 
 
 Adams Building, 23 Court St., Boston, Dec. 8, 1904 
 Herewith, under another cover, I send a copy of a publi- 
 cation of mine (The Constitutional Ethics of Secession), which bears very directly 
 upon the point made in your letter. On page 16, in Note I, may be found all 
 I know on the subject of Rawle's View of the Constitution, and the use of it as a 
 text-book at West Point. 
 
 You will note I there state as a fact that his View was the text-book in use 
 at West Point prior to 1840 ... I remember that, at that time 
 (two years ago), I looked the matter up with the utmost care, corresponding 
 with the librarian and authorities at West Point and also with at least one legal 
 authority in New York. The result, and my conclusion, are set forth in the note. 
 
 (Signed) CHAS. F. ADAMS. 
 And from page 11 of the Article: 
 
 "It would hasten the progress of harmony between the Sections, if the people 
 
 25 
 
of the North would acquaint themselves with these historic verities; if they would 
 cease to call "a" (the) "war a rebellion" . . "if they would realize 
 
 that the Confederates were neither rebels nor traitors, that the Union 
 created in 1789 . . "had" (been) "dissolved in 1861 justly and 
 
 legally according to the conditions of the original compact." (C) 
 
 That the men of Massachusetts, of Pennsylvania, of New Jersey, or of any 
 of the States of the American Union, who obeyed the call to arms of the Presi- 
 dent's Proclamation of 1861, did so, not in obedience to that summons, but in 
 obedience to the call of their States to which they owed their "primary and 
 ultimate allegiance," is indeed a revelation. 
 
 If the summons came from the States and obedience was in response to 
 "primary and ultimate allegiance" due them; if it is an "historic verity" that 
 the Union was justly and legally dissolved in 1861 ; if these are facts so conclusive 
 that they "cannot be gainsaid or denied;" then the cause that was lost is the 
 cause that was won, and the words, rebel, rebellion, treason, and traitor must 
 be expunged from the surviving vocabulary of the war, for they never should 
 have been there. 
 
 But who shall reconstruct the Constitution delivered to us by the "founders" 
 and ratified by the whole people? Who will remould the opinions of those 
 founders, those for and those against its adoption? Who will sacrifice a long 
 line of judicial precedent beginning with the life of the Nation and continuing 
 thereafter in unbroken sequence? Who is ready to accept this advanced thought 
 of secession, that the withdrawal of States, many or few, dissolves the Union 
 not alone as to themselves, but dissolves the Union as a whole? Who will fail 
 to ever remember that the United States of America is and ever has been a Na- 
 tion? 
 
 And hence, who shall seriously suggest a mutilation of the splendor of the 
 word American? Where is the Englishman who would submit to be called a 
 
 (C) Alliance or Confederation, 
 
 "The Union of the States is perpetual and indissoluble; upon the admission 
 of a State the Union between that State and the other States becomes complete 
 and a State has no right to secede, at no time were the rebellious States out of 
 the Union. The attempt of those States to separate themselves from the Union 
 did not destroy their identity as States, nor free them from the binding force 
 of the Constitution of the United States; their rights under the Constitution 
 were suspended not destroyed, but their constitutional duties and obligations 
 remained the same. The action of the rebellious states in setting aside their 
 former governments and constituting new ones, connected with another so 
 called central government, operated to suspend their practical relations with 
 the Union, but did not in any degree effect a separation, and the constitution 
 in force before the Ordinance of Secession continued in force after the overthrow 
 of the Rebellion." 
 
 "The Ordinance of Secession and all acts intended to give it effect were null 
 and void. It did not abrogate the constitution and laws then in force nor re- 
 lease citizens from their obligations of loyalty to the government of the United 
 States." 
 
 "The so called government established by the States in rebellion and desig- 
 nated the Confederate States of America never attained to the dignity of a de- 
 facto government in such a sense as to give legal efficacy to its acts; it was simply 
 an armed resistance to sovereign authority, and never had any existence except 
 as organized treason " 
 
 "Notes on the Constitution of the United States, William A. Sutherland, 
 of the California Bar (1904), p. 240 et. seq. and the authorities there cited." 
 
 26 
 
National Englishman or the German or the Frenchman who would consent 
 to a like qualification? Our country is the American Nation, not a National 
 America; who will disfigure a poetrj', a prose, an eloquence so rich in patriotic 
 tribute to the Americans as a people, to America as a Nation? Where would be 
 your American Array with all its rich and blessed memories of battles fought 
 and victories won? Where would be your American Navy with its story of many 
 a fierce fight of the sea, and of its masterly struggles with the Storm King; if 
 the qualifying word National were given them as a prefix the better to identify 
 their achievements? Who shall rob us of the precious legacy Lowell left us of 
 Lincoln: "New birth of our new soil, the FIRST AMERICAN." 
 
 It is better that a common country should have a common history. Is it 
 unattainable, or is it only yet afar. Nor does like treatment Col. Bingham 
 has given other differences, tend the better to inspire historic confidence. "Vir- 
 ginia claimed the right," he says on page 9, "ipsissimis verbis to come out at 
 will and by tacit agreement the abstract right of secession was accorded to the 
 other States." On the contrary Virginia claimed the right not to "come out at 
 will" but only should the "powers granted" be perverted to her "injury and 
 oppression." 
 
 Neither can it be contended that Virginia made a conditional ratification. 
 If there be a conclusive historic fact conceded by advocate and adversary^ alike, 
 it is that there could be no such thing as ratification with a reservation. It 
 must be "in toto and forever" as said Madison the advocate. "After having once 
 consented to it" (the Constitution) so said Mason the adversary, "we cannot re- 
 cede from it." The vote was in conformity with the terms of the resolution 
 of the Convention submitting the Constitution to the "people of the States" 
 for their "assent and ratification." There could be no alternative, it was "for" 
 or "against." Besides it was in full consonance with reason and necessity. 
 Amendments could only be treated in the manner described in the instrument 
 itself. The Convention had dissolved. To amend, alter, or supplement had 
 been solely its province, who could recall it? It was a "referendum," purely 
 a "yes" and "no" proposition. "The submission of a proposed Constitution 
 which had been passed upon by the people's representatives in a convention, 
 to a vote of the people for ratification or rejection." 
 
 And indeed the Virginia Convention itself, so treated this question of amend- 
 ments, when it declared in its ordinance of adoption, "that whatsoever imper- 
 fections may exist in the Constitution ought rather to be examined in the mode 
 prescribed therein, than to bring the Union into danger by a delay with the hope 
 of procuring amendments previous to ratification." 
 
 The reservation of a resumption of the powers granted for cause, as has 
 been shown, was a reservation for revolution for cause, not for secession "at will." 
 And Madison wrote Washington that in the Ordinance of ratification there were 
 "a few declaratory truths not affecting the validity of the act." Bancroft's History 
 of the Constitution of the United States, Vol. II., p. 315. Hare's American Con- 
 stitutional Law, Vol. I., p. 80. 
 
 Now what of the "tacit agreement" already largely disposed of by which 
 "the abstract right of secession was accorded to the other States." 
 
 In the days when speech was free, and pamphlet, document, and procedure 
 was carefully preserved and is now readily accessible, it seems anomalous that 
 the construction of "the most wonderful work," as Gladstone styled it, "ever 
 struck off at one time by the brain and purpose of man" "should be left to a 
 
 27 
 
tacit understanding." Greek art, Roman jurisprudence, Egyptian lore, all the 
 story of script alone, speak for themselves; the American Constitution, 
 born of statesmen, reared by scholars, in an age of progress, scarce yet out of 
 a national infancy, must have cotemporaneous opinion speak for it. But the 
 Constitution really needs no sponsor. It speaks for itself, and will ever continue 
 to speak for itself. It will still stand for itself and be of itself when future 
 ages shall unfold a still higher culture, and the great Republic shall be as "an- 
 cient as the hills." 
 
 That this question, of Rawle at the Academy, has been given such undue 
 prominence of late is due largely to environment. Its treatment by Schaff 
 in his "Spirit of Old West Point" and Charles Francis Adams in his "Constitutional 
 Ethics of Secession" give it something of a local flavor elsewhere. It had scarce 
 a place in the literature of the times when secession severed the bonds of Union. 
 It seems a manifest weakness that it should be so persistently urged now, when 
 then, other and widely divergent grounds were pressed in justification of the 
 course of the seceding States. The right to secede was fostered, fathered, and 
 accomplished under the Calhoun theory alone. The Calhoun doctrine was para- 
 mount in the South, its only reliance in discussion, its sole dependence in emer- 
 gency. The "crux" of the question as it is now presented is, that the govern- 
 ment so committed itself by its official instruction at West Point to the right 
 of a State to secede, thereby diverting allegiance from the Nation to the State, 
 that citizen or soldier, who followed his State, should not be held to an account- 
 ability. 
 
 In support of this claim much stress is laid upon the contributions of oral 
 testimony supplied by Col. Bingham's "Brief" in his "Sectional Misunderstand- 
 ings." Some of this testimony is hearsay, some of it direct; some of it, official 
 records fail to sustain, much of what remains, disappears with analysis, investi- 
 gation, and comparison. Hearsay testimony at the best vulnerable, and at law 
 wholly inadmissible, may be helpful to history to strengthen what competent 
 proofs fail to wholly sustain, but certainly cannot be when its tendency is to 
 weaken conclusions that competent cotemporaneous proofs had already pre- 
 viously fully established. 
 
 Here is a conspicuous illustration from Bingham's "Brief" of how present 
 hearsay fails to overcome previous competent proof. 
 
 From John Rawle, grandson of Wm. Rawle: 
 
 Natchez, Miss., Jany. 27, 1905. 
 In re. Wm. Rawle, my grandfather, I am aware that his 
 view of the "Constitution of the U. S." was used as a text-book at West Point, 
 but I do not recollect in what years it was. Gen. R. E. Lee et als. said that they 
 were taught by that book, while at West Point . . . Genl. Lee 
 told Bishop Wilmer of Louisiana, that if it had not been for the instruction he got 
 from Rawle' s text-book at West Point he would not have left the Old Army and joined 
 the South at the breaking out of the late war between the States. 
 
 (Signed) JOHN RAWLE. 
 
 From Joseph Wilmer, a son of Bishop Wilmer: 
 
 Rapidan, Va., Feby. 10, 1905. 
 I have a distinct recollection of my father's statement 
 that Genl. Lee told him that "Rawle" was a text-book during his cadetship 
 at West Point 
 
 28 
 
There is no disposition to apply acute legal criticism to the substance of 
 these communications, but it cannot fail of observation that the son's recollection 
 of his father's statement goes no farther than the use of Ravvle as a text-book 
 at the Academy, during Genl. Lee's cadetship. It might be noted also that John 
 Rawle does not say "and the Bishop told me." That the information came 
 direct is therefore a matter for inference only. 
 
 What Bishop Wilmer says that Gen'l. Lee said is emphatic and conclusive. 
 It recognizes but the one reason the only motive. What Gen'l. Lee wrote and 
 on one occasion said to another and what he told Bishop Wilmer are widely 
 apart. Both cannot stand together. They cannot be reconciled. One must 
 stand, the other must fall. 
 
 The following excerpts, cotemporaneous proof, over Gen'l. Lee's own sig- 
 nature, show his views on secession, the reasons that prompted, the motives that 
 induced him to resign his commission in the United States Army. They clearly 
 establish too that whatever remembrance of his academic teachings may still 
 have lingered with him, these teachings had naught to do with his action. 
 
 From the oft quoted letter to his sister of April 20, 1S61, announcing his 
 resignation: 
 
 "The whole South is in a state of revolution into which Virginia after a 
 long struggle has been drawn, and though I recognize no necessity for this state 
 of things and would have forborne and pleaded to the end for redress of grievance, 
 real or supposed, yet in my own person I had to meet the question whether I should 
 take part against my native State. With all my devotion to the Union and the 
 feeling of loyalty and duty of an American citizen I have not been able to make 
 up my mind to raise my hand against my relations, my children and my home." 
 
 And after the war, still Gen'l. Lee made no claim "that if it had not been for 
 the instruction he got at West Point" he would not have "left the Old Army," 
 and the talk here was all of the Army too. 
 
 On February 25, 1868, Gen'l. Lee wrote Reverdy Johnson concerning a 
 tentative offer made before his resignation through Francis Preston Blair, 
 tendering him the command of the Army. Among other things, he wrote as 
 follows: . . "After listening to his remarks I declined the offer 
 
 he made me to take command of the Army that was to be brought into the field; 
 stating as candidly and courteously as I could that though opposed to secession 
 and deprecating war I could take no part in an invasion of the Soutliern Slates." 
 
 That Lee took his views of secession from the creed of his State and not from 
 his West Point teachings is also fairly demonstrated by what here follows: 
 
 In the spring of 1866, Mr. Herbert C. Saunders, a London correspondent, 
 had visited Gen'l. Lee at his home in Lexington. Upon his return to London, 
 Mr. Saunders prepared a lengthy interview, the result of his conversation, and in 
 quite a persuasive letter, enclosed it to Gen'l. Lee, asking his consent to its publi- 
 cation with such additions or corrections as he might see fit to make. After 
 Gen'l. Lee's death, Saunders' letter, a copy of Lee's reply, and of the interview, 
 were found in his desk in the President's office of the Washington and Lee Uni- 
 versity endorsed "London, July 31, 1866, Herbert C. Saunders asks permission 
 to publish his conversation with me — Refused." The correspondence and the 
 interview appear in full in Captain Robert E. Lee's "Recollections and Letters 
 of Gen'l. Robert E. Lee." As this gives the interview a family endorsement 
 and as the refusal does not appear to have been altogether absolute, a ([uotation 
 from its "political bearings," may be fairly used as exi)ressive of Gen'l. Lee's 
 
 29 
 
views, particularly as "these bearings" are in full accord with what Lee had 
 frequently said before. 
 
 "Turning to the political bearing (writes Saunders) of the important question 
 at issue, the great Southern General gave me at some length his feelings with 
 regard to the abstract right of secession. The right he told me was held as a con- 
 stitutional maxim at the South. As to its exercise at the time on the part of the 
 South he was distinctly opposed and it was not until Lincoln issued a proclamation 
 for 75,000 men to invade the South, which was deemed clearly unconstitutional, 
 that Virginia withdrew from the United States." 
 
 There is a phrase in this letter of Lee's to Saunders with something of a 
 ring of admonitory suggestiveness about it, that might be appropriately quoted 
 in this connection. . 
 
 "I have" (says the General) "an objection to the publication of my private 
 conversations, which are never intended but for those to whom they are ad- 
 dressed." 
 
 The following letter is specific and conclusive. As he there clearly makes 
 it evident, Gen'l. Lee did not believe in the right of a State to secede. He takes 
 his text too from the "framers," not from Rawle. The letter is to his son, is 
 dated Fort Mason, Texas, January 23rd, 1861, and may be found on page 88, 
 of the life of General Robert E. Lee, by his Military Secretary, Brig. Gen'l. A. A. 
 Long, edition of 1886. 
 
 "Secession," says the letter, "is nothing but revolution. The framers of our 
 Constitution never exhausted so much labor, wisdom, and forbearance in its 
 formation, and surrounded it with so many guards and securities, if it was 
 intended to be broken by every member of the Confederacy at will. It is intended 
 for a 'perpetual Union' so expressed in the preamble, and for the establishment 
 of a government, not a compact, which can only be dissolved by revolution or the 
 consent of all the people in Convention assembled. It is idle to talk of secession. 
 Anarchy would have been established and not a government, by Washington, 
 Hamilton, Jefferson, Madison, and all the other patriots of the revolution. 
 Still a Union that can only be maintained by swords and 
 bayonets, and in which strife and civil war are to take the place of brotherly 
 love and kindness has no charm for me. I shall mourn for my country and for 
 the welfare and progress of mankind. If the Union is dissolved and the govern- 
 ment disrupted, I shall return to my native State and share the miseries of my 
 people and save in defence will draw my sword on none." 
 
 Gen'l. Lee's earlier biographers were not convinced, and in this judgment 
 they included Southern Officers generally of the Old Army, that either Lee for 
 himself or they for themselves, conceded the right of a State to withdraw itself 
 from the Union. "Accustomed to look at the flag as that which they were called 
 upon to defend against all comers, they were loathe to admit the force of the 
 reasoning which justified secession and called upon them to abandon it." The 
 course pursued seemed to have been largely dictated by the one motive: "Their 
 States called them and they obeyed." 
 
 But what really is there, in the somewhat superficial research given the ques- 
 tion by those who insist upon it that Rawle' s presence in the Academy during 
 Lee's cadetship, and the consequent superficial results that have followed it, 
 that puts Rawle in the Academy at all. The result is inconclusive, the treatment 
 unsatisfactory. The case is not fully stated, the whole truth is wanting. The 
 
search has been conducted more in an effort to sustain a cause, than in a dis- 
 position to find a fact. Xo story of a cotemporary writer or of the subsequent 
 historian is deemed accurate, unless with a reasonable adherence to the laws of 
 evidence, both sides of conflict or controversy have been duly weighed. 
 
 If indeed this text-book had a beginning at West Point, it was very close 
 to its end. The margin between its advent and departure was very narrow. 
 It was not as Thomas Nelson Page would have it understood as of "the text-books 
 that were used there" that "'taught the absolute right of a State to secede," 
 but was the only book of its kind and of its time. Neither did any other book 
 there teach such a doctrine It was not there by authority of the Academic 
 Board. There is no such record. If there for a time, it found entrance through 
 some other than an authorized source. 
 
 The question has been deemed of sufficient moment to demand official in- 
 quiry, and recently within the past year Col. Edgar S. Dudley, Judge Advocate 
 U. S. A. and Professor of Law at the United States Military Academy, was desig- 
 nated by the Superintendent of the Academy to investigate the records and 
 ascertain whether "Rawle's View of the Constitution" had been used at West 
 Point. 
 
 Col. Dudley's report of his investigation has been made to the Superintendent, 
 is now with the War Department, but has not yet been given to the public. 
 Of this report the Judge Advocate General writes as follows: 
 
 "In the matter of the report, which was made to the Superintendent of the 
 Military Academy in respect to the use of Rawle's text-book on the Constitution, 
 the reports of Col. Dudley and Captain Berry while very interesting are hardly 
 conclusive, since they reach the conclusion that the book was never used as a 
 text-book at West Point." 
 
 "I enclose you one or two extracts from Col. Dudley's report, one being a 
 citation from General Heintzelman, and another the letter of Jefferson Davis, 
 from which it appears, to my mind, very conclusive that the book was used at 
 some time between 1825 and 1S29." 
 
 The enclosures were copies of the John Rawle's and John Wilmer's letters 
 (not Jefferson Davis,) concerning the Bishop Wilmer's statement of Gen'l. Lee's 
 West Point instructions, which have previously been considered, and the General 
 Heintzelman's extract which here follows, together with the comment that con- 
 cludes it, made either at the Academy or by the Judge Advocate General. 
 
 Extract from the Heintzelman Journal: 
 
 "Since the above was written the Librarian of the Academy has called 
 the attention of the Superintendent to the fact that he has found reference to the 
 subject in a Journal of S. P. Heintzelman, U. S. Army, while a Cadet in the 
 Military Academy, West Point, New York, from January ist, 1S25, to July 22nd, 
 1826, and to August 2nd, 1826, presented by his grandson, Stuart Heintzelman, 
 U. S. Army, Class of 1S99, in which the following record is found: 
 1826 
 
 January 30 "I recited to-day for the first time in Political Economy." 
 February 21st "I drew from the Quartermaster Rawle on the Constitution." 
 Feby. 23 "We have finished our political Economy and recited once on Rawle." 
 Mar 28 "We have finished the Constitution 
 
 June 7 "I was examined to-day in Political Economy and Rawle" 
 June 19 "Mr. Mcllvaine gave us a kind of a valedictory yesterday." 
 
 31 
 
"This appears to settle the doubt as to the use of Rawle as a text-book by- 
 Professor Mcllvaine, though no authority of the Academic Board therefor is 
 shown or is of record." 
 
 The Jefferson Davis letter, dated July ist, 1886, addressed to Col. R. T. 
 Bennett, — Col. Bennett was the Colonel of the 13th North Carolina Infantry, 
 C. S. A., — apparently first became accessible to the general reader when it was 
 quoted by Col. Bennett in his address entitled "Morale of the Confederate," de- 
 livered at the "Laying of the corner stone of the Confederate Monument at 
 Raleigh, N. C, May 22nd, 1894." The address is published in the Southern 
 Historical Society Papers, Vol. XXII, page 83. Whenever cited it has been 
 from that publication. How the letter happened to be written, whether the 
 whole or a part of it only is given in the address, does not appear. As previous 
 references to it as an authority disclose it no further than it there appears, 
 a better understanding may be had if fuller quotations be supplied from its 
 context. 
 
 MORALE OF THE CONFEDERATE. 
 Extract 
 
 "Mr. Crawford of Georgia advised secession on the part of the South as early 
 as 1820. 
 
 "There was no doubt then about the right of a State to secede from the 
 Union. 
 
 "Rawle the Pennsylvanian in his book on the Constitution says: 
 
 " 'The Secession of a State from the Union depends on the will of the people 
 of such State. The States then may wholly withdraw from the Union, but while 
 they continue they must retain their character of representative republics.' 
 
 "Tucker of Virginia is as explicit as Rawle on this point. 
 
 "President Davis wrote me July ist, 1886: Rawle on the Constitution was the 
 text-book at West Point, but when the class 0} which I was a member entered its 
 gradiiating year Kenfs Commentaries were introduced as the text-book on the Con- 
 stitution and iyiternational law. Though not so decided on the point 0} State sover- 
 eignty he was jar in advance of the consolidationists 0} his time." 
 
 "The University of North Carolina and every other institution in the State 
 devoted to the education of our youth which receives the benefit of State endow- 
 ment should be required to teach those in their charge the theory of the Consti- 
 tution which conceded the right of the States of the Union to withdraw therefrom 
 for causes deemed sufficient by the state. 
 
 "So that the term of reproach 'Rebel' now imputed to our people would be 
 shorn of that meaning which causes the average man a tremor of shame. 
 
 "Happily our people as a rule are not in a hurry to condemn the action of 
 the South in their efforts to form a government more consonant with their rights 
 than the government of the United States." 
 
 "Distant ages in their majestic march will pause at your graves, while 
 philosophers and lofty souls will say: 
 
 "These men have a just cause, they were dutiful sons of indestructible States. 
 
 'Their actions were worthy of their day, their achievements were worthy 
 of all time." 
 
 32 
 
The first introduction of the Jefferson Davis letter to the public, so far as 
 is now known, does not seem therefore to have been the outgrowth of the present 
 inquiry as to when, how, or why, if at all, Rawle found its way into the Military 
 Academy and what was the length of its sojourn there. The purpose of the intro- 
 duction of the letter from the context seems clearly to have been to show that 
 the doctrine of secession, as there enunciated, was not only of a broader scope 
 than mere locality, but that that scope was also wide enough to secure for it a 
 national recognition. It does not need to be demonstrated that an answer 
 to these inquiries as to how, when, or if at all Rawle reached the Academy, is 
 quite an essential here. 
 
 The facts here developed, it is submitted, will fully justify the conclusion 
 that secession was never taught at West Point, to those whom it is claimed it 
 was, and to the others, the few who may have been taught it, the further con- 
 clusion that they learned of it so meagrely that it had naught to do with any 
 action of their later lives. 
 
 Jefferson Davis never studied Rawle at West Point in the course of his 
 instruction. He does not say that he did. His letter does not claim that he 
 did. He entered the Academy September ist, 1824, delay in the receipt of his 
 appointment prevented his entrance at the beginning of the class year, July ist. 
 He entered his graduating year July ist, 1S27, and graduated July ist, 1828. 
 "Constitutional Law" was taught in the graduating year only; "but when the 
 class of which I was a member entered its graduating year Kent's Commentaries 
 were introduced as the text-book on the Constitution and international law." Davis 
 did not study Rawle at West Point. He says so himself. 
 
 The views of Professor William E. Dodd, of Randolph Macon College, on pages 
 26 and 2 7of his Biography of Jefferson Davis, of the "American Crisis Biographies," 
 published by George W. Jacobs & Company, Philadelphia, 1907, and the authority 
 he supplies in his foot note in support of them are rather in confirmation of, 
 than apart from this conclusion. 
 
 "That he" (Davis), says the Professor, "had imbibed States' rights views 
 from text-books or teachers at West Point, is probably only a theory of later 
 years; for text-books seldom impress so indelibly the minds of their weary 
 readers, and in 1828 the teachings of governmental science had hardly made a 
 beginning. It is safe to say that Davis accepted his commission without serious 
 question as to the nature of the government that gave it." 
 And this is the foot note: 
 
 "D. H. Maury" (Southern Historical Society Papers, Volume VI, p. 249) 
 "says Calhoun ordered Rawle's View of the Constitution of the United States to be 
 used as a text-book at West Point in 1822 and that it remained in use there until 
 1861. The book was first published in 1825 but the Superintendent writes that 
 there is no reason to suppose that it was ever prescribed for the classes of the Academv." 
 
 Robert E. Lee did not study Rawle at West Point in his course of instruction. 
 Nor did he ever accept his doctrine. Lee was not of Davis' class, as stated in 
 the Bingham Brief. He entered the Academy July ist, 1825, and graduated 
 July ist, 1829, No. 2 in his class. Kent had been a year in the institution when 
 Lee's graduating year began. Kent not Rawle was in the course of study on 
 constitutional law during that year. The year covered the period from July 
 ist, 1828, to July ist, 1829. 
 
 The Heintzelman diary identifies the graduating year as the period prescribed 
 
 33 
 
by the "course" for the teaching of constitutional law, and so far corroborates 
 the Davis letter. It indicates too that at that time at least, this branch was 
 rather an incident than an essential in the academic curriculum. Heintzelman 
 was made a Major General of Volunteers during the Civil War and was subse- 
 quently retired with that rank in the permanent establishment. He entered 
 the Academy July ist, 1822, and graduated July ist, 1826. His graduating 
 year therefore was from July ist, 1825, to July ist, 1826. The diary covers a 
 period "from January ist, 1825, to July 22nd, 1826, and to August 2, 1826." Al- 
 thougli his year for the study of constitutional law, Rawle being then in use, began 
 with July ist, 1S25, he seems to have been in no haste to take it up It was not 
 until the year was more than half gone, February 21st, 1826, that he "drew from 
 the Quartermaster Rawle on the Constitution." The no haste with which he 
 took up the study of Rawle is in strong contrast with the much haste with which 
 he hurriedly pursued it. Two days after the requisition had been filled, he had 
 as is told in the diary in the entry of February 23, 1826, "recited once on Rawle." 
 Then thirty-three days go by and with no intermediate information of recitations 
 or persistent diligence, on March 28, 1826, appears the significant entry "We 
 have finished the Constitution," and his task was complete. In the intervening 
 two months and upwards there is no intimation as to whether he had kept 
 himself in touch with his subject, but on June 7, 1S26, the diary states "I was 
 examined to-day on Political Economy and Rawle." June 19 announces the 
 parting of class and Professor on the day previous. Heintzelman's standing 
 at graduation was 18, in a class of 42. 
 
 Such a course of study is not likely to impress the teacher with the im- 
 portance of his mission, nor the pupil with the value of his instruction. It is not 
 likely either that such perfunctory and superficial treatment had the endorse- 
 ment or supervision of the authorities. Its tendency is to confirm the finding 
 that Rawle had never been admitted by the Academic Board or "prescribed for 
 the classes." To hurriedly dispose of, in so short a period, of a work covering 
 upwards of three hundred pages, upon a theme entirely of itself, not following 
 in sequence like studies that led to it as their consummation, offers but little 
 incentive to the learner or inducement to the teacher. Instruction imparted 
 merely for the sake of getting through can have little weight, when offered as 
 testimony to sustain the proposition that it induced beliefs that grew to con- 
 victions with riper years. Nor does it supply a proof that the book or the method 
 of expounding it had the countenance or approval of Academic authority. 
 
 The Mr. Mcllvaine of the Heintzelman diary was the Rev. Charles Petti t 
 Mcllvaine (i 799-1873). It will be of interest to briefly trace his environment 
 and follow his associations. Born in Burlington, New Jersey, he was graduated 
 at Princeton and from 1825 to 1827 was Chaplain and Professor of Ethics of the 
 West Point Military Academy. Subsequently after several ministerial charges 
 he was made the Protestant Episcopal Bishop of the State of Ohio. He was a 
 close friend of the Hon. Salmon P. Chase and a confidential correspondent, 
 while Chase held the Treasury. During the Civil War he was a member of the 
 United States Sanitary Commission. Visiting Europe he lent material aid to the 
 Union cause by forceful and effective public speech. 
 
 If the government had designed that the doctrine of secession should be 
 "taught" at its Military Academy, "according to official instruction given by 
 itself," it would certainly have provided a teacher in some sympathy with his 
 subject The selection of Professor Mcllvaine would not indicate that it had. 
 
 34 
 
However Rawle may have reached the Academy, it may have been by in- 
 vitation, it is declared not to have been by authority, its stay there was brief. 
 Its entrance cannot antedate its publication. It could not therefore have 
 been in 1822 as Gen'l. Maury has stated. Nor could it properly be attributed 
 to a political motive, as the General seemingly intimates. Monroe's adminis- 
 tration has been significantly designated as the "Era of good feeling." Calhoun, 
 his Secretary of War, who as Maury also says directed its installation, had not 
 yet definitely announced his views on or his doctrine of secession. He was sub- 
 sequently elected to the Vice Presidency and still had aspirations for the more 
 exalted place. 
 
 The evidence of the date of the publication of the first edition of Rawle 
 is conclusive. It shows Maury to have been mistaken. 
 
 The Rawle memorial of 1837 says: "In 1825 Mr. Rawle published his first 
 edition of his View of the Constitution of the United States" 
 
 "The opinion entertained by the public of the value of this treatise is shown 
 by the circumstance of its having gone through three editions and having been 
 adopted as a text-book on instruction in several of our literary institutions." 
 
 The first edition bears on the title page the imprint 1S25, and the copyright 
 was issued January 29th, 1825. 
 
 An entry in one of the few books of the publishers Henry C. Carey and 
 I. Lea that can now be found, may be of interest to the curious. The book is 
 without a designating title, but is supposed by the successors of that firm to have 
 been known as the "Production Book." The entry is without specific date, 
 is of the year 1825, but so located as to show that it was made about the begin- 
 ning of that year, and reads as follows: "Rawle on Constitution, 500 copies. 
 Catalogue price $3.50, trade discount i-3rd off." 
 
 It is quite clear therefore that Rawle could have had no place in the Academy 
 before 1825. Its departure in 1827 though perhaps not so well attested by con- 
 clusive evidence may be fairly said to be equally as well established. No effort 
 to show that it ever came back between 1827 and 1840 has been successful and 
 the records after that year make it clear that it was out forever. 
 
 From the two classes, the one graduating in 1826, and the other in 1827, 
 when Rawle may have been the text-book on constitutional law, but two of the 
 Southern cadets became prominent in the Confederate service. Albert Sidney 
 Johnston was of the class of 1S26 with Heintzleman. Leonidas Polk was of the 
 class of 1827. Phillip St. George Cooke, appointed from Virginia of the same 
 class, remained in the United States service. Joseph E. Johnston was in Lee's 
 class. 
 
 That at this time and continuously afterwards, the graduating year was 
 the only year prescribed for the study of constitutional law, is well supported 
 by authority. 
 
 With a supply of material furnished by the Adjutant of the United States 
 Military Academy and the Librarian, the Acting Judge Advocate General 
 of the United States Army and the authorities of the Library of Congress, Pro- 
 fessor Walter L. Fleming, of the Louisiana State University, contributes to the 
 Metropolitan Magazine for June, 1908, a valuable and instructive article on "Jeffer- 
 son Davis at West Point." The extracts that follow are from the Professor's 
 text: 
 
 "The good reputation of the school was mainly due to the work of Major 
 Sylvanus Thayer, who became Superintendent in 181 7, and at once began to 
 
 35 
 
reorganize the school upon French Hnes, the famous Ecole Polytechnique being 
 ihe model." .......... 
 
 "The course of study at West Point was the best offered in America in ap- 
 plied science and mathematics. There were nine hours a day of recitations, 
 five days in a week for four years, and these recitations were rigorous. During 
 the first year the studies were mathematics six hours a day, and French three 
 hours; in the second year the work was the same except that drawing alternated 
 with French; the third year subjects were natural philosophy five hours a day, 
 "chemical philosophy" two hours, and drawing two hours; in the last year the 
 cadets studied engineering five hours, chemistry two hours, and constitutional 
 law, ethics, rhetoric, etc., two hours. This course of study organized by Major 
 Thayer has remained essentially unchanged." 
 
 That the graduating year, first set apart by Major Thayer as the year for 
 the study of constitutional law, has remained unchanged is confirmed from var- 
 ious sources. More conspicuously, subsequent to 1840, from the " Synopsis 
 of the Course of Studies and Military Training at the U. S. Military Academy," 
 that each year thereafter was and still is published with the Annual Official Regis- 
 ter. There under the head of Department of Ethics, prescribed for the First 
 Class, fourth year cadets only, appears Kent's Commentaries, grouped with such 
 studies as Blair's Rhetoric, Paley's Moral Philosophy, Hodge's Elements of 
 Logic. And there Kent's Commentaries continues to appear in each successive 
 yearly Official Register from 1841 to 1876. Changes appear from time to time 
 in the text-books on the other subjects, the Department is newly designated in 
 i860 as the Department of Law and Literature, and again in 1868 its designation 
 is changed to the Department of Ethics and Law, but the text-book on con- 
 stitutional law remains the same. 
 
 In 1877 and 1878 Pomeroy's Constitutional Law supplants Kent. Kent 
 returns in 1879 and in 1880 finally disappears. Cooley's General Principles 
 of Constitutional Law follows in 1881 remaining until 1898, to be substituted 
 for the next two years by Andrew's Manual of the Constitution, when Flanders 
 takes its place in 1900 and still remains. 
 
 No text-book on constitutional law was ever in use at the United States 
 Military Academy, prescribed for the classes, by government authority, that 
 recognized the right of a State to secede from the American Union. 
 
 This introduction of the "Synopsis" recalls two pieces of direct testimony 
 submitted in the "Bingham Brief" not heretofore disposed of, offered in support 
 of the presence of Rawle at the Academy after the annual publication of the 
 "Course of Study." In one the witness testifies as to his "recollections" only; 
 in the other the witness asserts the fact with an assurance of conviction. The 
 evidence as presented in the "Brief" appears in the one case as a letter, and in 
 the other as an extract from an article in the "Southern Historical Society 
 Papers," and is as follows: 
 
 (Letter From Gen'l. Fitzhugh Lee.) 
 
 Norfolk, Va., Dec. 5, 1904. 
 
 My recollection is that Rawle' s View of the Constitution 
 
 was the legal text-book at West Point when Generals Lee, Joseph E. Johnston, 
 
 and Stonewall Jackson were cadets there, and later on was a text-book when 
 
 I was a cadet there. 
 
 (Signed) FITZHUGH LEE 
 
 36 
 
(Extract From Gen. Dabney H. Maury.) 
 (Vol. 6, p. 249, So. Historical Papers.) 
 
 It (Rawle) remained as a text-hook at West Point till ; 
 
 and Mr. Davis and Sidney Johnston and General Joe Johnston and General l.ee, 
 and all the rest of us, who retired with Virginia from the Federal Union, were 
 not only obeying the plain instincts of our nature and dictates of duty, but we 
 were obeying the very inculcations we had received in the National School. 
 It is not probable that any of us ever read the Constitution or any exposition 
 of it except this work of Rawle, which we studied in our graduating year at West 
 Point. / know I did not. 
 
 (Signed) DABNEY H. MAURY. 
 
 The Maury extract can be the better understood if tlie i)aper from which 
 it is cited be given in full. There is more significance in the whole than a part 
 of a story, and testimony weighs better when temper, tone, and motive are avail- 
 able to determine its value. 
 
 Southern Historical Society Papers. Vol. VI., December, 1878 No. 6, p. 249. 
 
 West Point and Secession. 
 
 By General D. H. M.xurv. 
 
 "I wish I could have seen Dr. Curry before he sent his letter vindicating 
 Gen'l. Lee from breach of faith in returning to his natural allegiance to Virginia, 
 when that State withdrew from the Federal Union; I would have given him some 
 facts, which were very strangely unknown to our people and were always ignored 
 by our enemies. 
 
 "When Mr. Calhoun was Secretary of War, in 1822, I believe, he caused a 
 text-book to be introduced into the course of studies at West Point, known as 
 'Rawle on the Constitution.' This Rawle was a Northern lawyer of great ability, 
 one of the very few who seem to have understood the true nature of the terms 
 and conditions of the compact between the States constituting the Federal 
 Union. His work, 'Commentaries on the Constitution of the United States,' 
 breathes the very essence of States' rights and the right of secession is distinctly 
 set forth by him. When we remember that only seven years had then elapsed 
 since New York, Vermont, Connecticut, and perhaps other Northern States as- 
 serted this right and threatened to exercise it or make dishonorable terms of 
 peace with Great Britain unless the war was stopped, we can understand that 
 Mr. Calhoun was not violating Northern sentiment in introducing Rawle at 
 West Point. It there remained a text-book till 1861 and Mr. Davis, and Sidney 
 Johnston, and Gen'l. Joe Johnston, and Gen'l. Lee and all the rest of us who 
 retired with Virginia from the Federal Union were not only obeying the plain 
 instincts of our nature and dictates of duty, but we were obeying the very in- 
 culcations we had received in the National School. It is not pro!)able that any 
 of us ever read the Constitution or any exposition of it except tliis work of Rawle, 
 which we studied in our graduating year at West Point. I know I did not. 
 
 "I am told that in 1861 the text-book was changed and tlic cadets are now 
 taught out of a treatise on the Constitution which teaches that secession is a 
 crime. 
 
 "And if any one of the present generation should resign on the secession of 
 his native State, he will be in danger of being lawfully lianged." 
 
 DABNEY H. MAURY. 
 
 37 
 
Maury wrote heedlessly. Apparently in facetious speech, "he will be in 
 danger of being lawfully hanged," he had fallen upon the substance if not the 
 form of expression that Luther Martin, the Constitution's most formidable 
 adversary, had used when in the Constitutional Convention he strenuously 
 opposed the adoption of the article that determined that to make war against 
 the United States or aid, or abet, or comfort or adhere to their enemies was 
 treason. 
 
 "An attempt," said Martin, "to subvert the government of the United States 
 by force of arms is obviously treason under this article, though made in pursuance 
 of an ordinance of secession or other law enacted by a State." . . . . 
 
 "The States are therefore reduced to this alternative, — they must tamely and 
 passively yield to despotism or their citizens must oppose it at the hazard of 
 the halter." 
 
 This reasoning urged so forcefully against, but accepted as a conclusive 
 argument for adoption — there had been no attempt to define treason since the 
 Colonies had been severed from the Crown — induced Martin, to test the strength 
 of his position, to vigorously press an amendment. "Provided, That no act or 
 acts done by one or more of the States against the United States, or by any citi- 
 zen of any one of the United States under the authority of one or more of the 
 said States, shall be deemed treason or punished, but in case of war being levied 
 by one or more of the States against the United States the conduct of each 
 party towards the other and their adherents respectively shall be regulated by 
 the laws of war and of nations." 
 
 The amendment was rejected and the article as proposed adopted. This 
 action of the "founders" had a double significance, while it ignored secession 
 as a right, it recognized coercionas a power. 
 
 Maury apparently goes too far. Bingham himself seems unwilling to accept 
 him in full. In his quotation . . "It (Rawle) remained as a 
 
 text-book at West Point till ;" he omits the year with a dash As it 
 
 appears in the original the phrase reads, "It there remained a text-book till 
 1861." The year is important. Why it is not in evidence is not disclosed. 
 
 The statement that Calhoun, while he was Secretary of War in 1822, "caused" 
 Rawle to be introduced as a text-book at West Point is hasty, misleading, and 
 inconsiderate. Calhoun was Secretary of War during the two terms of Monroe, 
 and was inaugurated Vice President on the fourth of March, 1825. The book 
 was certainly not known while Calhoun held the War Office and was scarcely 
 on the market when he had passed into another sphere of public life. 
 
 The intimation that Calhoun had caused the introduction of the work in 
 the Academy, chiefly for its secession views, is an equally inconsiderate state- 
 ment. Aside from the fact that there was no Rawle in existence at the time, 
 to be so disposed of, it will be remembered that Calhoun's decided Southern 
 political preferences were not distinctly avowed until some years afterwards, 
 when in his second term, he resigned the Vice Presidency. 
 
 Dabney H. Maury, appointed at large, was admitted as a cadet in the United 
 States Military Academy July ist, 1842, and graduated July 1st, 1846. As a 
 Lieutenant, two years after his graduation, he was assigned for the succeeding 
 two years as an Instructor for the Fourth Class in grammar, rhetoric, and geo- 
 graphy. vStonewall Jackson was also of this class. 
 
 In the Official Register for the year "June, 1846," on the Roll of Cadets, 
 
 38 
 
FIRST CLASS, appear the names of Thomas J. Jackson (i8) and Dabney H. 
 Maury (37). 
 
 Under the head "Synopsis of the Course oj Studies at tlie U. S. Military 
 Academy," an appendix to this Oflicial Register, there appears as the prescribed 
 text-books: 
 
 FIRST CLASS— Department of Ethics— Blair's Rhetoric, Wayland's 
 Elements of Moral Science, abridged, Kent's Commentaries, Hodge's Elements 
 of Logic. 
 
 Maury served as a cadet of the First Class through his graduating year from 
 July ist, 1845, to July 1st, 1846. Kent's Commentaries was the text-book on 
 constitutional law prescribed for that year and that class by the "Synopsis of 
 the Course of Studies." Rawle's "Views of the Constitution" on the contrary was 
 the prescribed text-book as aftirmed by Maury in his article, "West Point and 
 Secession," of December, 1878. "It is not probable," he says, "that any of 
 us ever read the constitution or any exposition of it except this book of Rawle 
 which we sttidied in our graduating year at West Point. / know I did not." 
 
 This declaration is emphatic and explicit. It carmol escape comment. 
 Under all recognized rules oral testimony must yield to record evidence. Here 
 the one so flatly contradicts the other, that unless the record can be satisfactorily 
 explained away, the oral statement cannot be accepted. 
 
 Fitzhugh Lee entered the Military Academy in 1852 and graduated in 1856. 
 From July, 1855, to July, 1856, his graduating year, Lee was of the First Class. 
 For that year by the "Synopsis" Kent's Commentaries was the prescribed text- 
 book on constitutional law. According to Lee's "recollection" it was Rawle. 
 A mere recollection cannot be expected to supplant a record. 
 
 The advocate who fails to review a leading authority of his adversary has 
 yielded a valuable concession. The historian who overlooks or omits a proof 
 of material consequence weakens his conclusions. 
 
 The Jefferson Davis letter is helpful to a definite conclusion. The failure 
 to recognize this testimony, by those who insist that the government committed 
 itself to secession, when it introduced a text-book in its Military Academy 
 that taught that doctrine, invites comment. 
 
 The letter conclusively establishes the one fact at least, that whether or 
 not Rawle was ever "prescribed for the Classes," its life at the Academy was but a 
 scant two years, from 1825, the date of its publication, to 1827, Davis' graduating 
 year. Written in 1886, so far as is now known, the letter first appeared in 1894 
 in a periodical published in the South, of wide circulation and universally read. 
 It there appeared as a citation in an oration, notable for its felicity of speech 
 and purity of diction, delivered by an eminent jurist and a distinguished soldier 
 of the Confederacy, on a ceremonial occasion, prominent before the general 
 public at the time. It was consequently accessible to both Col. Bingham and 
 Prof. Fleming. In "Bingham's Brief," however, all reference to tlie Davis letter 
 is conspicuously absent. In "Jefferson Davis at West Point," no allusion what- 
 ever is specifically made to it, though a knowledge of its existence might be in- 
 ferred from this sentence in the body of the article, "Kent's Commentaries," 
 just then out, were eagerly read by the cadets, but a most interesting text-book 
 then in use at West Point, was "Rawle on the Constitution." 
 
 This effort to commit the government to a recognition of the doctrine of 
 
 39 
 
secession because it was "distinctly taught" at its Military Academy, particulary 
 when cadets were being trained who subsequently resigned from the Army, 
 when their States seceded, has proved a failure. Prominent in literature and 
 law as are the men who have strenuously directed it, a close investigation of their 
 case as presented has developed its manifest weakness. Secession was not taught 
 at West Point. This introduction of matter, somewhat in the nature of after 
 discovered evidence, will not justify the re-opening of a case long since ended, 
 but apparently not yet settled. Briefly, what was the case. 
 
 The issue well defined was duly framed. The "declaration" was tersely 
 drafted by Lincoln, the masterful statesman, the skillful pleader. "My para- 
 mount object in this struggle is to save the Union and is not either to save or 
 to destroy slavery." The answer followed, and is now made to more concisely 
 appear as "Our object is to dissolve the Union under a paramount right secured 
 to every state by the Constitution, to secede at will; and thereby as an incident 
 thereto, but not as a part thereof, to save slavery." 
 
 The issue was fiercely litigated, with fire and sword, for four years in the high 
 Court of War, and judgment was finally rendered at Appomattox Court House, 
 Virginia, for the Union and against its dissolution. 
 
 Slavery had been previously abolished by decree and was afterwards de- 
 stroyed by law. 
 
 • 60 
 
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