Nullification, Secession Webster's Argument and the Kentucky and Virginia Resolutions Part 8

[84] Webster's _Speeches_, 8th ed., 1850, vol. i., pp. 427, 428. See part of report and resolutions of Virginia in Mr. Pinckney's argument in Cohens _vs._ Virginia, 6 Wheaton, Rep., 264.

Immediately after the commencement of his administration, Jefferson, and Madison, the Secretary of State, entered into negotiations with France for the acquisition of the province of Louisiana and the immense territory belonging to it. The purchase was completed early in 1803, and by it and for all time the power of the old States in the Union was diminished. Even a liberal constructionist might have hesitated as to its const.i.tutionality. Jefferson himself had his doubts. Neither he, however, nor any of his party took any measures to have an amendment of the Const.i.tution to sanction it. It was indeed a measure of vital necessity, and acquiesced in by the people of all the States as such.

In the national convention Gouverneur Morris said that the fisheries and the Mississippi were the two great objects of the Union.[85]

Negotiations with Spain with reference to the navigation of the Mississippi were constantly before the Congress of the Confederacy in 1787, this river being the only outlet for the products of Kentucky, Tennessee, and of parts of Western Virginia and Pennsylvania, as well as of the great then unsettled country beyond. There was a fear that the inhabitants of this western territory might ally themselves with Great Britain, because of her power to compel Spain to grant the right of way to the sea; for it was recognized that the inhabitants of that country would and must be a part of the power that held the mouth of the great river. More than this, the Const.i.tution itself provides for the admission of new States, and the annexation of Canada had been contemplated in the articles of the Confederacy.

[85] 5 Elliot, 526.

Josiah Quincy's speech, in 1811, when the admission of Louisiana as a State came up, is often quoted by Southern writers as justifying secession. He said: "If this bill pa.s.ses, it is my deliberate opinion that it is virtually a dissolution of this Union; that it will free the States from their moral obligation; and as it will be the right of all, so it will be the duty of some, definitely to prepare for a separation,--amicably if they can, violently if they must."

This declaration does not contain any claimed right of a State as a party to a compact to judge whether it has been broken, or of a sovereign State to secede. It is an a.s.sertion that the government or nation was so changed by the annexation of Louisiana as a State, from territory formerly no part of the Union, that the other States had a right to break it up. This opinion was not concurred in by the Governor or Legislature or State of Ma.s.sachusetts, which a.s.sented to the admission of Louisiana.[86] Quincy's declaration contains no a.s.sertion of the sovereignty of a State, or right to secede at will. It admits that separation, unless a.s.sented to, must be by force.

[86] H. Adams' _History_, vol. v., p. 326.

It is impossible to reconcile the doctrine of the Kentucky resolutions with those of Jefferson in his inaugural and with his whole policy during his term as President. They are fundamentally different. It must be remembered that his authors.h.i.+p of the Kentucky resolutions was not then known.

There are many followers and admirers of Jefferson who maintain that he did not take the same view of the Kentucky resolves as the nullifiers of South Carolina. Robert J. Walker, the distinguished financier and Secretary of the Treasury in Polk's time, in an article on nullification and secession, in the February number of the _Continental Monthly_, published at Philadelphia in 1863, gives what he alleges are Jefferson's views, and says that they were opposed to nullification and secession.

Indeed, the Kentucky resolves do not claim the right of secession; they do not follow out their premises to its logical conclusion. They do not declare or recommend that the State should treat the Alien and Sedition laws as null and void, though in their reply to the other States they say a nullification is "the rightful remedy." They carefully let it be known they only protest. That Jefferson did not carry this theory of the Kentucky resolutions to the right of secession, is perhaps shown by his correspondence when the acceptance of the Const.i.tution was pending in Virginia. Even at the time of the Kentucky resolutions he speaks of the "scission" of the States, and about 1820, during the period of the Missouri dispute, he again alludes to the "scission," if it should come, as geographical. He would hardly have used this word, implying a cutting or tearing asunder, if he had believed in a right of secession.

Jefferson had not the cool, dispa.s.sionate judgment of Was.h.i.+ngton. He was a violent partisan. He believed the federalists were striving for a monarchy; he spoke of the great Chief-Justice Marshall, when he disagreed with a decision made by him, as a sly old fox. Both Jefferson and Madison were displeased with the rulings of Marshall on the trial of Burr for treason. The reason of their displeasure was the strict construction the Chief Justice gave to the law punis.h.i.+ng that offence, not the too liberal wielding of the judicial powers. The enactment of the Alien and Sedition laws and their enforcement were to Jefferson outrageous violations of liberty, and of the very amendments to the Const.i.tution for which Virginia and Ma.s.sachusetts and New York had been so persistent. He believed that the federal party was determined to keep possession of the government by crus.h.i.+ng out the freedom of the press and the people. To oppose this, to prevent what he thought was a tyrannical abuse of authority with the intent of perpetuating itself, he was willing to put to question the fundamental authority of the government to pull down the whole structure. He found that his own State, Virginia, did not acquiesce in the doctrines of Kentucky. By a letter of his of the date of November 17, 1798, it appears he sent a draft of the Kentucky resolutions to Madison, saying that we should distinctly affirm all these important principles, not however stating that he was the author. When he came into power, if he thought of the matter at all, he must have seen that the practice of nullification would be the end of all United States government. What these resolutions actually were had apparently not been understood by the other States.

Madison, his Secretary of State, who always maintained the supremacy of the General Government, was his dear friend and undoubtedly then, as in after years, his adviser. Nor was his change of principles, if there were any change, more strange than his change of dress. Mr. Adams tells us he began his administration by receiving the gorgeously dressed foreign ministers in his threadbare coat, old much soiled corduroy small clothes, faded by many was.h.i.+ngs, and slippers without heels; for these clothes he afterwards subst.i.tuted a dress of black, clean linen, and powdered hair. Is it Carlyle that says that clothes and principles are the same--that they make the man?

That Jefferson ever afterwards believed in the nationality of the Union, is shown by his administration and correspondence, and made evident by his acts in the crowning work of his life, the establis.h.i.+ng of the University of Virginia. That he was the founder, he directed should be inscribed on the monument over his grave. In Charlottesville, where the mountains of the Blue Ridge come down to the plains that stretch many miles to the sea, was Monticello, Jefferson's charming home, the seat of his unbounded hospitality, and close to that of Madison. Near by amongst the rolling hills, most picturesquely placed by the direction of Jefferson, are the pleasing colonnaded buildings of the University, planned by his own hand. It is the University's boast, but questioned by Harvard College, that Jefferson introduced there the system of elective studies, that is now spreading so widely. There were but four things that Jefferson declared should be obligatory to the University: one was the study of the _Federalist_,--the work of Hamilton, Madison, and Jay, expounding the national doctrines of the founders of the Republic, with no countenance of those of the Kentucky resolutions. To-day Jefferson's directions are observed, and the _Federalist_ remains the text-book.[87]

[87] See No. Lx.x.x. of the _Federalist_ for Hamilton's clear and able statement of the powers of the judicial department. He says it is a political axiom, that the judicial power of a government should be co-extensive with its legislative, and that the government should and did have the power over States and their judiciary in all cases arising under the Const.i.tution and United States laws.

No President until Lincoln, save perhaps Madison in his first administration, had so troublesome a time as Jefferson in his second term of office. The rights of the United States, a small, weak power, were not only disregarded by England and France in their deadly struggle, but decrees were issued confiscating property and vessels engaged in what by the laws of nations is now universally held to be a lawful trade. Great Britain impressed sailors from American vessels, and one of her men-of-war arrogantly fought and captured a smaller United States frigate, killing and wounding many of her crew, and taking from the disabled s.h.i.+p her claimed subjects.

Jefferson's great panacea to cure these evils and to bring England and France to respect and grant our rights was the forcing of non-intercourse on the high seas between the United States and all foreign countries--an embargo on all s.h.i.+pping. By virtue of the power in the Const.i.tution to regulate commerce, Jefferson and his party destroyed it. The vessels were left rotting at the wharves, and s.h.i.+p-building and the many industries depending upon it and the sale of the products of the country abroad were stopped. The New England States suffered particularly by this arbitrary decree; they had an extensive and flouris.h.i.+ng neutral commerce; their merchants had ama.s.sed great wealth. They, as Mr. Webster said, brought the matter to trial before the United States Court; the case was decided against them, and they submitted. No Northern State pa.s.sed any resolutions affirming the doctrine of its sovereignty and its right to judge of what seemed to many "a deliberate, palpable, and dangerous exercise of powers not granted" by the Const.i.tution. Instead of a.s.serting sovereignty to judge, the Ma.s.sachusetts Legislature pa.s.sed in 1809 a resolve proposing an amendment of the Const.i.tution prohibiting the laying of an embargo beyond a limited period. The measure failed because of not obtaining the consent of the other States.

It is always to be carefully borne in mind that the declarations of Quincy, Pickering, and Griswold, brought forward by Southern writers, favoring or threatening a separation, were never made on the ground of the sovereignty of a State and its right to secede. The doctrine of those who held the most extreme opinions was that the policy and acts of the general government were so tyrannical and oppressive that the eastern commercial States were justified in rebellion and in separating themselves from the more southern States, where the political party was dominant, that had most grievously oppressed and impoverished them and annihilated their commerce in a futile attempt to injure Great Britain.

This was not a claim of right to leave the Union and dissolve it at pleasure. Indeed, when the leaders went too far in their discontent, the people of the Eastern States would sometimes elect governors and representatives of the Republican party. The spirit of loyalty to the Union and the love of a common country would always spring up and a.s.sert itself when it came to the question of disunion and treason.

Towards the close of the war of 1812 there was great discontent at the failure of the government to repel the English forces from Maine, then a portion of Ma.s.sachusetts. Troops raised in that State were sent to the defence of our more western Canadian boundary. Beyond the discontent, there was some disloyalty. At this time the Hartford convention was called by Ma.s.sachusetts. That convention did not even pa.s.s resolutions of hostility to the Union. The convention was called to devise means of security and defence "not repugnant to their obligations as members of the Union," and, according to Mr. Lodge, Josiah Quincy was not made a delegate by reason of his extreme views.[88] The convention neither a.s.serted nor suggested nullification or secession, but _proposed amendments to the Const.i.tution_. Its recommendations were of no particular importance.[89] The only persons who were affected by its doings were the members, who ever afterwards suffered politically from a taint of disloyalty. Peace soon came and terminated the oppressive grievances and removed the discontent.

[88] Lodge's _Life of George Cabot_, p. 518.

[89] _History of Hartford Convention_, by Theo. Dwight.

Not only as stated in the beginning of this article is the Hartford convention with the Kentucky and Virginia resolutions brought forward by Mr. Lodge in proof of the weakness of the Union, but Southern orators and writers delight in referring to that convention in justification of nullification and secession. We have the journal of the proceedings, of the motions made and votes pa.s.sed. Is it not the strongest proof possible of the universal belief in the nationality of our government that n.o.body, in that body of malcontents, suggested that any right existed to refuse an obedience to the laws and policy of the administration they deemed so oppressive?

After the purchase of Louisiana came that of Florida, also enlarging the territory of the Union and curtailing the relative power in it of each of the old States. The charter of a second United States Bank was granted by the party that in the first Congress had opposed it and claimed to be strict constructionists of the Const.i.tution. Madison justified his a.s.sent on the ground of the general approval and the opinion of the Supreme Court establis.h.i.+ng its const.i.tutionality.[90]

Historically there is no attempt to maintain, no a.s.sertion of, the doctrine of the Kentucky resolutions from the time they were pa.s.sed until the debate in the Congress of 1830. The only trace of them is in the resolutions frequently pa.s.sed by the Legislatures of States, which are mere opinions beyond their legislative powers, that certain laws of the government were unconst.i.tutional and therefore null and void. If unconst.i.tutional, they were and are null and void, but no State ever treated them as null and void. The United States Government, by its judiciary, however, took cognizance of all State laws in conflict with its laws and authority, and maintained uniformly its national supremacy.

[90] Madison's letter, 4 Elliot's _Debates_, 615.

CHAPTER VI.

CALHOUN, JACKSON, AND NATIONAL GOVERNMENT.

In 1811, John C. Calhoun of South Carolina, a young man not of the age of thirty years, took his seat as a member of the national House of Representatives, and at once became a leader in public affairs. He was one of the Committee on Foreign Relations. On the 12th of December he said what was the road the nation should tread "to make it great and to produce in this country not the form but the real spirit of union."[91]

In March, 1815, he voted for a high tariff and said: "He believed the policy of the country required protection to our manufacturing establishments."[92] He also reported the bill to incorporate a United States Bank, and supported it in a speech on its const.i.tutionality.[93]

Webster, on the contrary, opposed the tariff bills, not however on the ground of their unconst.i.tutionality. In December, 1816, Calhoun moved "that a committee be appointed to inquire into the expediency of setting apart a permanent fund for internal improvement"; on December 23d, he reported a bill setting aside the bonus paid by the United States Bank, $1,500,000 and future dividends from bank stock, "as a fund for constructing roads and ca.n.a.ls."[94] In his speech supporting it he said: "that the extent of our republic exposes us to the greatest of all calamities, next to the loss of liberty, and even to that in its consequences, _disunion_." "Probably not more than twenty-five or thirty members, in the total number of one hundred and seventy, regarded the const.i.tutional difficulty as fatal to the bill."[95] Madison, however, consistent and persistent in his strict construction of the Const.i.tution, vetoed it.

[91] H. Adams, vol. vi., p. 143.

[92] H. Adams, vol. ix., p. 115. _Annals of Congress_, 1815-1816, p.

1272.

[93] H. Adams, vol. ix., p. 116.

[94] H. Adams, vol. ix., p. 148.

[95] See H. Adams, vol. ix., pp. 149 to 153, for debate and Calhoun's views.

In 1819 and 1820 came the admission of Missouri and the struggle over the extension or restriction of slavery. The Southern statesmen feared that the South was losing its relative importance in the Union. Even those of Virginia, who had formerly been opposed to slavery, now took the opposite view, and the Legislature of that State pa.s.sed resolutions for the admission of Missouri with slavery. The increase in the production of cotton had made the raising of slaves profitable. The controversy was settled by the bill called the Missouri Compromise, admitting Missouri with slavery, and excluding slavery from all the rest of the country west of that State and north of 36 30', the southern boundary of Missouri. This was the first important controversy dividing the States geographically. It was the division that Mason, Madison, and others foresaw in the convention that made the Const.i.tution; not a combination of the great States against the small, but geographical, between the South and the North, the planting and commercial States, and, underlying this and more potent, the inst.i.tution of slavery repugnant to the North and existing only in the South.

It was this difference of interest between the two sections that brought Calhoun to a change of opinion on the great industrial, commercial, and moral questions that had arisen. His convictions followed what he wished to believe: not an unusual temperament. From a protectionist he became the zealous advocate of extreme free trade, from a nationalist to the belief that the Union was nothing but a league any State could break at its will, from holding slavery to be a moral evil to the support of it as a divine inst.i.tution. In 1837, after the nullification controversy, when he introduced resolutions in the Senate as to slavery, he said:

"This question has produced one happy effect, at least it has compelled us of the South to look into the nature and character of this great inst.i.tution (slavery), and to correct many false impressions that even we had entertained in relation to it.

Many in the South once believed that it was a moral and political evil. That folly and delusion are gone. We see it now in its true light, and regard it as the most safe and stable basis for free inst.i.tutions in the world. It is impossible with us that the conflict take place between labor and capital."

He went so far as to say a mysterious Providence had brought together two races from different portions of the globe and placed them together in equal numbers in the southern portion of the Union. To which Clay forcibly replied, "to call a generation of slave-hunting pirates (who brought the negroes to this country) a mysterious Providence, was an insult to the Supreme Being."[96]

[96] Oliver Dyer's _Great Senators_, pp. 183, 184.

Calhoun and many of the leaders and politicians of the cotton-raising States saw that they were losing their relative importance in population and wealth; they believed that, with free trade bringing to them everything they consumed at a lower price, their products and profits would be increased. South Carolina with Calhoun as the master spirit was the leader in this matter; the existing protective tariff bearing hardly on the plantation States was in their opinion the great hindrance to their prosperity. It was not difficult for them to come to the conclusion it was a tyrannical and palpable violation of the Const.i.tution. Seeing that they could not bring the majority in Congress to their belief, the South Carolinian politicians revived and developed the doctrine of the Kentucky resolutions of the sovereignty of each State, and of its right as a sovereign to judge of the const.i.tutionality of an act of the United States. A convention of the people of the State was called, and under the claimed right of sovereignty the convention, on the 24th of November, 1832, pa.s.sed an ordinance in which it was declared the tariff laws of the United States were null and void, and that no duties imposed by the United States should be collected after the first of February, A. D. 1833. The convention further declared that they would resist any acts of the United States to collect its duties or to coerce the State into paying them, and that such acts of the United States would absolve the people of the State from any political connection with the people of the other States, and that the State would organize as a sovereign independent government.

Thus South Carolina, more than forty years after the adoption of the Const.i.tution, was the first State that a.s.sumed to act as a distinct sovereign power. To such a degree did the confidence of the State in its own prowess and a spirit of rash defiance of the United States exist, that upon Governor Haynes' return to Charleston from the State Capital, the horses were taken from his carriage and the citizens dragged him in triumph through the streets.

Few leaders have had more warm admirers than Calhoun. Oliver Dyer in his _Great Senators_, tells us he was tall and gaunt, his complexion dark and Indian-like. Eyes large, black, piercing, scintillant; his iron-gray hair hung down in thick ma.s.ses. He was remarkable for the exceeding courtesy of his demeanor and for the sweetness and bell-like resonance of his voice. His private life, what could not be said of most of his contemporaries, was unimpeachable.

His followers are fond of praising his "inexorable logic." They probably called it so because he did not hesitate to carry out his reasoning to the extremest extravagance of conclusions. In his speech in 1833, in reply to Webster, he admitted that this sovereignty of each State, there being four and twenty of them, did give each State a separate right to judge of a law of Congress, "four and twenty vetoes." He instanced with approval the government of Rome, where the plebeians and patricians could check and overrule each other through the tribunes and the Senate.

He knew "nowhere, no case in history where the power of arresting of government was too strong, except in Poland, where every freeman possessed a veto." But even there he speaks of it with favor, as the source of "the highest and most lofty attachment to liberty." He overlooked that Rome's plebeian veto produced a Sulla and a Caesar and ended in an absolute despotism over an abject people, and that the government of Poland, unstable as water, vanished from the face of the earth. He spoke of this country as sunken into avarice, intrigue, and electioneering, from which only an opposition like Carolina's could arouse it. Afterwards, in 1850, he said: "What was once a const.i.tutional federal republic is now converted, in reality, into one as absolute as that of the autocrat of Russia, and as despotic in its tendency as any absolute government that ever existed." And yet many people of the South believed or brought themselves to believe this, and most of their writers now arguing for State sovereignty profess the same opinion.

Following up Calhoun's "inexorable logic," that each State has a right to pa.s.s its judgment on any act and law made by the United States, and to decide whether it is invalid and null, if it be of opinion that it exceeds the delegated authority, every citizen of South Carolina or of any other State has a right to judge whether any law of that State be invalid or null, as exceeding its delegated authority. For the State of South Carolina under its Const.i.tution, like the United States under its Const.i.tution, has only a limited delegated authority, and the sovereignty, according to all the political writers, remains in its people or voting citizens. Why cannot a voting citizen, or one of the people of the State, maintain that, possessing the sovereign right of all power, and being one of the parties who made the compact of the State const.i.tution, he can judge as to whether he has delegated the power to make a certain law; and if he thinks he has not, why cannot he defy the court and the State that undertakes to execute it? This would at once put the State in the happy condition of Poland, and almost allow the freedom claimed by a Chicago anarchist. The answer is evident, the citizens owe an obedience to the laws that they establish over themselves. They have, for the benefit of all, given to the judiciary the right to judge of the extent of the delegated power. That the doctrine of State sovereignty was unknown at the time South Carolina promulgated it, is proved by Jackson's proclamation. In it he speaks of the hardness and inequality of the excise law in Pennsylvania, the embargo and non-intercourse law in the Eastern States, the carriage tax in Virginia. All these laws and the war of 1812 in the commercial States were, he says, deemed unconst.i.tutional, but yet they were submitted to, and this remedy of nullification and secession was not suggested. "The discovery of this important feature in our Const.i.tution was reserved to the present day. To the statesmen of South Carolina belongs the invention."[97] Indeed it was a question in South Carolina itself who first discovered this doctrine of nullification. Dr. Thomas Cooper, Jefferson's old friend, was agreed upon as the author of its revival, and was toasted as the father of nullification at Columbia, the capital of South Carolina, at a Fourth of July dinner[98] in 1833. If the Kentucky resolutions and the doctrine of nullification had not been dead, and buried in oblivion, it is impossible that Chief-Justice Marshall should have announced in the case of McCulloch against the State of Maryland that there was a universal a.s.sent to the proposition that the government of the Union, though limited in its powers, was supreme in its sphere; that General Jackson, in a proclamation to the whole country, could have declared its discovery was made by the statesmen of South Carolina of that day; and that the nullifiers of South Carolina should have toasted Cooper as its author.

[97] 4 Elliot, 584.

[98] Niles' _Register_, p. 335, July 20, 1833. Cooper was President of the University of South Carolina. The University of Virginia would not have him as professor on account of his Unitarian belief, though Jefferson wished it. Is it possible that he was the original author of the Kentucky Resolutions, and furnished them to Jefferson? Jefferson's correspondence, as far as we have examined, shows no belief in that doctrine.

We have found nowhere any claim of a right of secession, not even the use of the word, until the threat of South Carolina's nullification. Any separation before was considered as a disruption of the Union. Jefferson spoke of it as scission. While some hold that Jackson "with his iron heel crushed out secession," numerous attempts have been made, even recently, to prove that Jackson was not opposed to nullification, that in reality the proclamation was not his but was Edward Livingston's.

Parton, Jefferson's biographer, tells us, when a pamphlet containing the proceedings of South Carolina reached Jackson, he went to his office and began to dash off page after page of the proclamation. To this was added many more of notes and memoranda which he had been acc.u.mulating.

The papers were given to Mr. Livingston to draw up in proper form. In three or four days Livingston gave to Jackson a draft of the proclamation for examination. Jackson said that Livingston had not correctly understood his notes and suggested alterations, and had them made.[99]