The Project Gutenberg EBook of The Rise and Fall of the Confederate Government, by Jefferson Davis This eBook is for the use of anyone anywhere at no cost and with almost no restrictions whatsoever. You may copy it, give it away or re-use it under the terms of the Project Gutenberg License included with this eBook or online at www.gutenberg.org Title: The Rise and Fall of the Confederate Government Author: Jefferson Davis Release Date: November 16, 2006 [EBook #19831] Language: English Character set encoding: ISO-8859-1 *** START OF THIS PROJECT GUTENBERG EBOOK CONFEDERATE GOVERNMENT *** Produced by Geoff Horton, David King, and the Online Distributed Proofreaders team at http://www.pgdp.net
The object of this work has been from historical data to show that the Southern States had rightfully the power to withdraw from a Union into which they had, as sovereign communities, voluntarily entered; that the denial of that right was a violation of the letter and spirit of the compact between the States; and that the war waged by the Federal Government against the seceding States was in disregard of the limitations of the Constitution, and destructive of the principles of the Declaration of Independence.
The author, from his official position, may claim to have known much of the motives and acts of his countrymen immediately before and during the war of 1861-'65, and he has sought to furnish material far the future historian, who, when the passions and prejudices of the day shall have given place to reason and sober thought, may, better than a contemporary, investigate the causes, conduct, and results of the war.
The incentive to undertake the work now offered to the public was the desire to correct misapprehensions created by industriously circulated misrepresentations as to the acts and purposes of the people and the General Government of the Confederate States. By the reiteration of such unappropriate terms as "rebellion" and "treason," and the asseveration that the South was levying war against the United States, those ignorant of the nature of the Union, and of the reserved powers of the States, have been led to believe that the Confederate States were in the condition of revolted provinces, and that the United States were forced to resort to arms for the preservation of their existence. To those who knew that the Union was formed for specific enumerated purposes, and that the States had never surrendered their sovereignty it was a palpable absurdity to apply to them, or to their citizens when obeying their mandates, the terms "rebellion" and "treason"; and, further, it is shown in the following pages that the Confederate States, so far from making war or seeking to destroy the United States, as soon as they had an official organ, strove earnestly, by peaceful recognition, to equitably adjust all questions growing out of the separation from their late associates.
Another great perversion of truth has been the arraignment of the men who participated in the formation of the Confederacy and who bore arms in its defense, as the instigators of a controversy leading to disunion. Sectional issues appear conspicuously in the debates of the Convention which framed the Federal Constitution, and its many compromises were designed to secure an equilibrium between the sections, and to preserve the interests as well as the liberties of the several States. African servitude at that time was not confined to a section, but was numerically greater in the South than in the North, with a tendency to its continuance in the former and cessation in the latter. It therefore thus early presents itself as a disturbing element, and the provisions of the Constitution, which were known to be necessary for its adoption, bound all the States to recognize and protect that species of property. When at a subsequent period there arose in the Northern States an antislavery agitation, it was a harmless and scarcely noticed movement until political demagogues seized upon it as a means to acquire power. Had it been left to pseudo-philanthropists and fanatics, most zealous where least informed, it never could have shaken the foundations of the Union and have incited one section to carry fire and sword into the other. That the agitation was political in its character, and was clearly developed as early as 1803, it is believed has been established in these pages. To preserve a sectional equilibrium and to maintain the equality of the States was the effort on one side, to acquire empire was the manifest purpose on the other. This struggle began before the men of the Confederacy were born; how it arose and how it progressed it has been attempted briefly to show. Its last stage was on the question of territorial governments; and, if in this work it has not been demonstrated that the position of the South was justified by the Constitution and the equal rights of the people of all the States, it must be because the author has failed to present the subject with a sufficient degree of force and clearness.
In describing the events of the war, space has not permitted, and the loss of both books and papers has prevented, the notice of very many entitled to consideration, as well for the humanity as the gallantry of our men in the unequal combats they fought. These numerous omissions, it is satisfactory to know, the official reports made at the time and the subsequent contributions which have been and are being published by the actors, will supply more fully and graphically than could have been done in this work.
Usurpations of the Federal Government have been presented, not in a spirit of hostility, but as a warning to the people against the dangers by which their liberties are beset. When the war ceased, the pretext on which it had been waged could no longer be alleged. The emancipation proclamation of Mr. Lincoln, which, when it was issued, he humorously admitted to be a nullity, had acquired validity by the action of the highest authority known to our institutions—the people assembled in their several State Conventions. The soldiers of the Confederacy had laid down their arms, had in good faith pledged themselves to abstain from further hostile operations, and had peacefully dispersed to their homes; there could not, then, have been further dread of them by the Government of the United States. The plea of necessity could, therefore, no longer exist for hostile demonstration against the people and States of the deceased Confederacy. Did vengeance, which stops at the grave, subside? Did real peace and the restoration of the States to their former rights and positions follow, as was promised on the restoration of the Union? Let the recital of the invasion of the reserved powers of the States, or the people, and the perversion of the republican form of government guaranteed to each State by the Constitution, answer the question. For the deplorable fact of the war, for the cruel manner in which it was waged, for the sad physical and yet sadder moral results it produced, the reader of these pages, I hope, will admit that the South, in the forum of conscience, stands fully acquitted.
Much of the past is irremediable; the best hope for a restoration in the future to the pristine purity and fraternity of the Union, rests on the opinions and character of the men who are to succeed this generation: that they maybe suited to that blessed work, one, whose public course is ended, invokes them to draw their creed from the fountains of our political history, rather than from the lower stream, polluted as it has been by self-seeking place-hunters and by sectional strife.
THE AUTHOR.
African Servitude.—A Retrospect.—Early Legislation with Regard to the Slave-Trade.—The Southern States foremost in prohibiting it.—A Common Error corrected.—The Ethical Question never at Issue in Sectional Controversies.—The Acquisition of Louisiana.—The Missouri Compromise.—The Balance of Power.—Note.—The Indiana Case.
The Session of 1849-'50.—The Compromise Measures.—Virtual Abrogation of the Missouri Compromise.—The Admission of California.—The Fugitive Slave Law.—Death of Mr. Calhoun.—Anecdote of Mr. Clay.
Reëlection to the Senate.—Political Controversies in Mississippi.—Action of the Democratic State Convention.—Defeat of the State-Rights Party.—Withdrawal of General Quitman and Nomination of the Author as Candidate for the Office of Governor.—The Canvass and its Result.—Retirement to Private Life.
The Author enters the Cabinet.—Administration of the War Department.—Surveys for a Pacific Railway.—Extension of the Capitol.—New Regiments organized.—Colonel Samuel Cooper, Adjutant-General.—A Bit of Civil-Service Reform.—Reëlection to the Senate.—Continuity of the Pierce Cabinet.—Character of Franklin Pierce.
The Territorial Question.—An Incident at the White House.—The Kansas and Nebraska Bill.—The Missouri Compromise abrogated in 1850, not in 1854.—Origin of "Squatter Sovereignty."—Sectional Rivalry and its Consequences.—The Emigrant Aid Societies.—"The Bible and Sharpe's Rifles."—False Pretensions as to Principle.—The Strife in Kansas.—A Retrospect.—The Original Equilibrium of Power and its Overthrow.—Usurpations of the Federal Government.—The Protective Tariff.—Origin and Progress of Abolitionism.—Who were the Friends of the Union?—An Illustration of Political Morality.
Agitation continued.—Political Parties: their Origin, Changes, and Modifications.—Some Account of the "Popular Sovereignty," or "Non-Intervention," Theory.—Rupture of the Democratic Party.—The John Brown Raid.—Resolutions introduced by the Author into the Senate on the Relations of the States, the Federal Government, and the Territories; their Discussion and Adoption.
A Retrospect.—Growth of Sectional Rivalry.—The Generosity of Virginia.—Unequal Accessions of Territory.—The Tariff and its Effects.—The Republican Convention of 1860, its Resolutions and its Nominations.—The Democratic Convention at Charleston, its Divisions and Disruption.—The Nominations at Baltimore.—The "Constitutional-Union" Party and its Nominees.—An Effort in Behalf of Agreement declined by Mr. Douglas.—The Election of Lincoln and Hamlin.—Proceedings in the South.—Evidences of Calmness and Deliberation.—Mr. Buchanan's Conservatism and the weakness of his Position.—Republican Taunts.—The "New York Tribune," etc.
Conference with the Governor of Mississippi.—The Author censured as "too slow."—Summons to Washington.—Interview with the President.—His Message.—Movements in Congress.—The Triumphant Majority.—The Crittenden Proposition.—Speech of the Author on Mr. Green's Resolution.—The Committee of Thirteen.—Failure to agree.—The "Republicans" responsible for the Failure.—Proceedings in the House of Representatives.—Futility of Efforts for an Adjustment.—The Old Year closes in Clouds.
Preparations for Withdrawal from the Union.—Northern Precedents.—New England Secessionists.—Cabot, Pickering, Quincy, etc.—On the Acquisition of Louisiana.—The Hartford Convention.—The Massachusetts Legislature on the Annexation of Texas, etc., etc. 70
False Statements of the Grounds for Separation.—Slavery not the Cause, but an Incident.—The Southern People not "Propagandists" of Slavery.—Early Accord among the States with regard to African Servitude.—Statement of the Supreme Court.—Guarantees of the Constitution.—Disregard of Oaths.—Fugitives from Service and the "Personal Liberty Laws."—Equality in the Territories the Paramount Question.—The Dred Scott Case.—Disregard of the Decision of the Supreme Court.—Culmination of Wrongs.—Despair of their Redress.—Triumph of Sectionalism.
THE CONSTITUTION.
The Original Confederation.—"Articles of Confederation and Perpetual Union."—Their Inadequacy ascertained.—Commercial Difficulties.—The Conference at Annapolis.—Recommendation of a General Convention.—Resolution of Congress.—Action of the Several States.—Conclusions drawn therefrom.
The Convention of 1787.—Diversity of Opinion.—Luther Martin's Account of the Three Parties.—The Question of Representation.—Compromise effected.—Mr. Randolph's Resolutions.—The Word "National" condemned.—Plan of Government framed.—Difficulty with Regard to Ratification, and its Solution.—Provision for Secession from the Union.—Views of Mr. Gerry and Mr. Madison.—False Interpretations.—Close of the Convention.
Ratification of the Constitution by the States.—Organization of the New Government.—Accession of North Carolina and Rhode Island.—Correspondence between General Washington and the Governor of Rhode Island.
The Constitution not adopted by one People "in the Aggregate."—A Great Fallacy exposed.—Mistake of Judge Story.—Colonial Relations.—The United Colonies of New England.—Other Associations.—Independence of Communities traced from Germany to Great Britain, and from Great Britain to America.—Mr. Everett's "Provincial People."—Origin and Continuance of the Title "United States."—No such Political Community as the "People of the United States."
The Preamble to the Constitution.—"We, the People."
The Preamble to the Constitution—subject continued.—Growth of the Federal Government and Accretions of Power.—Revival of Old Errors.—Mistakes and Misstatements.—Webster, Story, and Everett.—Who "ordained and established" the Constitution?
Verbal Cavils and Criticisms.—"Compact," "Confederacy," "Accession," etc.—The "New Vocabulary."—The Federal Constitution a Compact, and the States acceded to it.—Evidence of the Constitution itself and of Contemporary Records.
Sovereignty
The same Subject continued.—The Tenth Amendment.—Fallacies exposed.—"Constitution," "Government," and "People" distinguished from each other.—Theories refuted by Facts.—Characteristics of Sovereignty.—Sovereignty identified.—Never thrown away.
A Recapitulation.—Remarkable Propositions of Mr. Gouverneur Morris in the Convention of 1787, and their Fate.—Further Testimony.—Hamilton, Madison, Washington, Marshall, etc.—Later Theories.—Mr. Webster: his Views at Various Periods.—Speech at Capon Springs.—State Rights not a Sectional Theory.
The Right of Secession.—The Law of Unlimited Partnerships.—The "Perpetual Union" of the Articles of Confederation and the "More Perfect Union" of the Constitution.—The Important Powers conferred upon the Federal Government and the Fundamental Principles of the Compact the same in both Systems.—The Right to resume Grants, when failing to fulfill their Purposes, expressly and distinctly asserted in the Adoption of the Constitution.
Coercion the Alternative to Secession.—Repudiation of it by the Constitution and the Fathers of the Constitutional Era.—Difference between Mr. Webster and Mr. Hamilton.
Some Objections considered.—The New States.—Acquired Territory.—Allegiance, false and true.—Difference between Nullification and Secession.—Secession a Peaceable Remedy.—No Appeal to Arms.—Two Conditions noted.
Early Foreshadowings.—Opinions of Mr. Madison and Mr. Rufus King.—Safeguards provided.—Their Failure.—State Interposition.—The Kentucky and Virginia Resolutions.—Their Endorsement by the People in the Presidential Elections of 1800 and Ensuing Terms.—South Carolina and Mr. Calhoun.—The Compromise of 1833.—Action of Massachusetts in 1843-'45.—Opinions of John Quincy Adams.—Necessity for Secession.
A Bond of Union necessary after the Declaration of Independence.—Articles of Confederation.—The Constitution of the United States.—The Same Principle for obtaining Grants of Power in both.—The Constitution an Instrument enumerating the Powers delegated.—The Power of Amendment merely a Power to amend the Delegated Grants.—A Smaller Power was required for Amendment than for a Grant.—The Power of Amendment is confined to Grants of the Constitution.—Limitations on the Power of Amendment.
SECESSION AND CONFEDERATION.
Opening of the New Year.—The People in Advance of their Representatives.—Conciliatory Conduct of Southern Members of Congress.—Sensational Fictions.—Misstatements of the Count of Paris.—Obligations of a Senator.—The Southern Forts and Arsenals.—Pensacola Bay and Fort Pickens.—The Alleged "Caucus" and its Resolutions.—Personal Motives and Feelings.—The Presidency not a Desirable Office.—Letter from the Hon. C. C. Clay.
Tenure of Public Property ceded by the States.—Sovereignty and Eminent Domain.—Principles asserted by Massachusetts, New York, Virginia, and other States.—The Charleston Forts.—South Carolina sends Commissioners to Washington.—Sudden Movement of Major Anderson.—Correspondence of the Commissioners with the President.—Interviews of the Author with Mr. Buchanan.—Major Anderson.—The Star of the West.—The President's Special Message.—Speech of the Author in the Senate.—Further Proceedings and Correspondence relative to Fort Sumter.—Mr. Buchanan's Rectitude in Purpose and Vacillation in Action.
Secession of Mississippi and Other States.—Withdrawal of Senators.—Address of the Author on taking Leave of the Senate.—Answer to Certain Objections.
Threats of Arrest.—Departure from Washington.—Indications of Public Anxiety.—"Will there be war?"—Organization of the "Army of Mississippi."—Lack of Preparations for Defense in the South.—Evidences of the Good Faith and Peaceable Purposes of the Southern People.
Meeting of the Provisional Congress of the Confederate States.—Adoption of a Provisional Constitution.—Election of President and Vice-President.—Notification to the Author of his Election.—His Views with Regard to it.—Journey to Montgomery.—Interview with Judge Sharkey.—False Reports of Speeches on the Way.—Inaugural Address.—Editor's Note.
The Confederate Cabinet.
Early Acts of the Confederate Congress.—Laws of the United States continued in Force.—Officers of Customs and Revenue continued in Office.—Commission to the United States.—Navigation of the Mississippi.—Restrictions on the Coasting-Trade removed.—Appointment of Commissioners to Washington.
The Peace Conference.—Demand for "a Little Bloodletting."—Plan proposed by the Conference.—Its Contemptuous Reception and Treatment in the United States Congress.—Failure of Last Efforts at Reconciliation and Reunion.—Note.—Speech of General Lane, of Oregon.
Northern Protests against Coercion.—The "New York Tribune," Albany "Argus," and "New York Herald."—Great Public Meeting in New York.—Speeches of Mr. Thayer, ex-Governor Seymour, ex-Chancellor Walworth, and Others.—The Press in February, 1861.—Mr. Lincoln's Inaugural.—The Marvelous Change or Suppression of Conservative Sentiment.—Historic Precedents.
Temper of the Southern People indicated by the Action of the Confederate Congress.—The Permanent Constitution.—Modeled after the Federal Constitution.—Variations and Special Provisions.—Provisions with Regard to Slavery and the Slave-Trade.—A False Assertion refuted.—Excellence of the Constitution.—Admissions of Hostile or Impartial Criticism.
The Commission to Washington City.—Arrival of Mr. Crawford.—Mr. Buchanan's Alarm.—Note of the Commissioners to the New Administration.—Mediation of Justices Nelson and Campbell.—The Difficulty about Forts Sumter and Pickens.—Mr. Secretary Seward's Assurances.—Duplicity of the Government at Washington.—Mr. Fox's Visit to Charleston.—Secret Preparations for Coercive Measures.—Visit of Mr. Lamon.—Renewed Assurances of Good Faith.—Notification to Governor Pickens.—Developments of Secret History.—Systematic and Complicated Perfidy exposed.
Protests against the Conduct of the Government of the United States.—Senator Douglas's Proposition to evacuate the Forts, and Extracts from his Speech in Support of it.—General Scott's Advice.—Manly Letter of Major Anderson, protesting against the Action of the Federal Government.—Misstatements of the Count of Paris.—Correspondence relative to Proposed Evacuation of the Fort.—A Crisis.
A Pause and a Review.—Attitude of the Two Parties.—Sophistry exposed and Shams torn away.—Forbearance of the Confederate Government.—Who was the Aggressor?—Major Anderson's View, and that of a Naval Officer.—Mr. Horace Greeley on the Fort Sumter Case.—The Bombardment and Surrender.—Gallant Action of ex-Senator Wigfall.—Mr. Lincoln's Statement of the Case.
THE WAR.
Failure of the Peace Congress.—Treatment of the Commissioners.—Their Withdrawal.—Notice of an Armed Expedition.—Action of the Confederate Government.—Bombardment and Surrender of Fort Sumter.—Its Reduction required by the Exigency of the Case.—Disguise thrown off.—President Lincoln's Call for Seventy-five Thousand Men.—His Fiction of "Combinations."—Palpable Violation of the Constitution.—Action of Virginia.—Of Citizens of Baltimore.—The Charge of Precipitation against South Carolina.—Action of the Confederate Government.—The Universal Feeling.
The Supply of Arms; of Men.—Love of the Union.—Secessionists few.—Efforts to prevent the Final Step.—Views of the People.—Effect on their Agriculture.—Aid from African Servitude.—Answer to the Clamors on the Horrors of Slavery.—Appointment of a Commissary-General.—His Character and Capacity.—Organization, Instruction, and Equipment of the Army.—Action of Congress.—The Law.—Its Signification.—The Hope of a Peaceful Solution early entertained; rapidly diminished.—Further Action of Congress.—Policy of the Government for Peace.—Position of Officers of United States Army.—The Army of the States, not of the Government.—The Confederate Law observed by the Government.—Officers retiring from United States Army.—Organization of Bureaus.
Commissioners to purchase Arms and Ammunition.—My Letter to Captain Semmes.—Resignations of Officers of United States Navy.—Our Destitution of Accessories for the Supply of Naval Vessels.—Secretary Mallory.—Food-Supplies.—The Commissariat Department.—The Quartermaster's Department.—The Disappearance of Delusions.—The Supply of Powder.—Saltpeter.—Sulphur.—Artificial Niter-Beds.—Services of General G. W. Rains.—Destruction at Harper's Ferry of Machinery.—The Master Armorer.—Machinery secured.—Want of Skillful Employees.—Difficulties encountered by Every Department of the Executive Branch of the Government.
The Proclamation for Seventy-five Thousand Men by President Lincoln further examined.—The Reasons presented by him to Mankind for the Justification of his Conduct shown to be Mere Fictions, having no Relation to the Question.—What is the Value of Constitutional Liberty, of Bills of Rights, of Limitations of Powers, if they may be transgressed at Pleasure?—Secession of South Carolina.—Proclamation of Blockade.—Session of Congress at Montgomery.—Extracts from the President's Message.—Acts of Congress.—Spirit of the People.—Secession of Border States.—Destruction of United States Property by Order of President Lincoln.
Maryland first approached by Northern Invasion.—Denies to United States Troops the Right of Way across her Domain.—Mission of Judge Handy.—Views of Governor Hicks.—His Proclamation.—Arrival of Massachusetts Troops at Baltimore.—Passage through the City disputed.—Activity of the Police.—Burning of Bridges.—Letter of President Lincoln to the Governor.—Visited by Citizens.—Action of the State Legislature.—Occupation of the Relay House.—The City Arms surrendered.—City in Possession of United States Troops.—Remonstrances of the City to the Passage of Troops disregarded.—Citizens arrested; also, Members of the Legislature.—Accumulation of Northern Forces at Washington.—Invasion of West Virginia by a Force under McClellan.—Attack at Philippi; at Laurel Hill.—Death of General Garnett.
Removal of the Seat of Government to Richmond.—Message to Congress at Richmond.—Confederate Forces in Virginia.—Forces of the Enemy.—Letter to General Johnston.—Combat at Bethel Church.—Affair at Romney.—Movements of McDowell.—Battle of Manassas.
Conference with the Generals after the Battle.—Order to pursue the Enemy.—Evidences of a Thorough Rout.—"Sweet to die for such a Cause."—Movements of the Next Day.—What more it was practicable to do.—Charge against the President of preventing the Capture of Washington.—The Failure to pursue.—Reflection on the President.—General Beauregard's Report.—Endorsement upon it.—Strength of the Opposing Forces.—Extracts relating to the Battle, from the Narrative of General Early.—Resolutions of Congress.—Efforts to increase the Efficiency of the Army.
The Kentucky Resolutions of 1798-'99.—Their Influence on Political Affairs.—Kentucky declares for Neutrality.—Correspondence of Governor Magoffin with the President of the United States and the President of the Confederate States.—Occupation of Columbus, Kentucky, by Major-General Polk.—His Correspondence with the Kentucky Commissioners.—President Lincoln's View of Neutrality.—Acts of the United States Government.—Refugees.—Their Motives of Expatriation.—Address of ex-Vice-President Breckinridge to the People of the State.—The Occupation of Columbus secured.—The Purpose of the United States Government.—Battle of Belmont.—Albert Sidney Johnston commands the Department.—State of Affairs.—Line of Defense.-Efforts to obtain Arms; also Troops.
The Coercion of Missouri.—Answers of the Governors of States to President Lincoln's Requisition for Troops.—Restoration of Forts Caswell and Johnson to the United States Government.—Condition of Missouri similar to that of Kentucky.—Hostilities, how initiated in Missouri.—Agreement between Generals Price and Harney.—Its Favorable Effects.—General Harney relieved of Command by the United States Government because of his Pacific Policy.—Removal of Public Arms from Missouri.—Searches for and Seizure of Arms.—Missouri on the Side of Peace.—Address of General Price to the People.—Proclamation of Governor Jackson.—Humiliating Concessions of the Governor to the United States Government, for the sake of Peace.—Demands of the Federal Officers.—Revolutionary Principles attempted to be enforced by the United States Government.—The Action at Booneville.—The Patriot Army of Militia.—Further Rout of the Enemy.—Heroism and Self-sacrifice of the People.—Complaints and Embarrassments—Zeal: its effects.—Action of Congress.—Battle of Springfield.—General Price.—Battle at Lexington.—Bales of Hemp.—Other Combats.
Brigadier-General Henry A. Wise takes command in Western Virginia.—His Movements.—Advance of General John B. Floyd.—Defeats the Enemy.—Attacked by Rosecrans.—Controversy between Wise and Floyd.—General R. E. Lee takes the Command in West Virginia.—Movement on Cheat Mountain.—Its Failure.—Further Operations.—Winter Quarters.—Lee sent to South Carolina.
The Issue.—The American Idea of Government.—Who was responsible for the War?—Situation of Virginia.—Concentration of the Enemy against Richmond.—Our Difficulty.—Unjust Criticisms.—The Facts set forth.—Organization of the Army.—Conference at Fairfax Court-House.—Inaction of the Army.—Capture of Romney.—Troops ordered to retire to the Valley.—Discipline.—General Johnston regards his Position as unsafe.—The First Policy.—Retreat of General Johnston.—The Plans of the Enemy.—Our Strength magnified by the Enemy.—Stores destroyed.—The Trent Affair.
Supply of Arms at the Beginning of the War; of Powder; of Batteries; of other Articles.—Contents of Arsenals.—Other Stores, Mills, etc.—First Efforts to obtain Powder, Niter, and Sulphur.—Construction of Mills commenced.—Efforts to supply Arms, Machinery, Field-Artillery, Ammunition, Equipment, and Saltpeter.—Results in 1862.—Government Powder-Mills; how organized.—Success.—Efforts to obtain Lead.—Smelting-Works.—Troops, how armed.—Winter of 1862.—Supplies.—Niter and Mining Bureau.—Equipment of First Armies.—Receipts by Blockade-Runners.—Arsenal at Richmond.—Armories at Richmond and Fayetteville.—A Central Laboratory built at Macon.—Statement of General Gorgas.—Northern Charge against General Floyd answered.—Charge of Slowness against the President answered.—Quantities of Arms purchased that could not be shipped in 1861.—Letter of Mr. Huse.
Extracts from my Inaugural.—Our Financial System: Receipts and Expenditures of the First Year.—Resources, Loans, and Taxes.—Loans authorized.—Notes and Bonds.—Funding Notes.—Treasury Notes guaranteed by the States.—Measure to reduce the Currency.—Operation of the General System.—Currency fundable.—Taxation.—Popular Aversion.—Compulsory Reduction of the Currency.—Tax Law.—Successful Result.—Financial Condition of the Government at its Close.—Sources whence Revenue was derived.—Total Public Debt.—System of Direct Taxes and Revenue.—The Tariff.—War-Tax of Fifty Cents on a Hundred Dollars.—Property subject to it.—Every Resource of the Country to be reached.—Tax paid by the States mostly.—Obstacle to the taking of the Census.—The Foreign Debt.—Terms of the Contract.—Premium.—False charge against me of Repudiation.—Facts stated.
Military Laws and Measures.—Agricultural Products diminished.—Manufactures flourishing.—The Call for Volunteers.—The Term of Three Years.—Improved Discipline.—The Law assailed.—Important Constitutional Question raised.—Its Discussion at Length.—Power of the Government over its own Armies and the Militia.—Object of Confederations.—The War-Powers granted.—Two Modes of raising Armies in the Confederate States.—Is the Law necessary and proper?—Congress is the Judge under the Grant of Specific Power.—What is meant by Militia.—Whole Military Strength divided into Two Classes.—Powers of Congress.—Objections answered.—Good Effects of the Law.—The Limitations enlarged.—Results of the Operations of these Laws.—Act for the Employment of Slaves.—Message to Congress.—"Died of a Theory."—Act to use Slaves as Soldiers passed.—Not Time to put it in Operation.
[Transcriber's Note: There is no Appendix A.]
Speech of the Author on the Oregon Question
Extracts from Speeches of the Author on the Resolutions of Compromise proposed by Mr. Clay
On the Reception of a Memorial from Inhabitants of Pennsylvania and Delaware, praying that Congress would adopt Measures for an Immediate and Peaceful Dissolution of the Union
On the Resolutions of Mr. Clay relative to Slavery in the Territories
Speech of the Author on the Message of the President of the United States, transmitting to Congress the "Lecompton Constitution" of Kansas
Address of the Author to Citizens of Portland, Maine
Address of the Author at a Public Meeting in Faneuil Hall, Boston; with the Introductory Remarks by Caleb Cushing
Speech of the Author in the Senate, on the Resolutions relative to the Relations of the States, the Federal Government, and the Territories
Correspondence between the Commissioners of South Carolina and the President of the United States (Mr. Buchanan), relative to the Forts in the Harbor of Charleston
Speech of the Author on a Motion to print the Special Message of the President of the United States of January 9, 1861
Correspondence and Extracts from Correspondence relative to Fort Sumter, from the Affair of the Star of the West, January 9, 1861, to the Withdrawal of the Envoy of South Carolina from Washington, February 8, 1861
The Provisional Constitution of the Confederate States, adopted February 8, 1861
The Constitution of the United States and the Permanent Constitution of the Confederate States, in Parallel Columns
Correspondence between the Confederate Commissioners, Mr. Secretary Seward, and Judge Campbell
[pg 1]A duty to my countrymen; to the memory of those who died in defense of a cause consecrated by inheritance, as well as sustained by conviction; and to those who, perhaps less fortunate, staked all, and lost all, save life and honor, in its behalf, has impelled me to attempt the vindication of their cause and conduct. For this purpose I have decided to present an historical sketch of the events which preceded and attended the struggle of the Southern States to maintain their existence and their rights as sovereign communities—the creators, not the creatures, of the General Government.
The social problem of maintaining the just relation between constitution, government, and people, has been found so difficult, that human history is a record of unsuccessful efforts to establish it. A government, to afford the needful protection and exercise proper care for the welfare of a people, must have homogeneity in its constituents. It is this necessity which has divided the human race into separate nations, and finally has defeated the grandest efforts which conquerors have made to give unlimited extent to their domain. When our fathers dissolved their connection with Great Britain, by declaring themselves free and independent States, they constituted thirteen separate communities, and were careful to assert and preserve, each for itself, its sovereignty and jurisdiction.
At a time when the minds of men are straying far from the lessons our fathers taught, it seems proper and well to recur to the original principles on which the system of government they devised was founded. The eternal truths which they announced, the rights which they declared "unalienable," are the foundation-stones on which rests the vindication of the Confederate cause.
[pg 2]He must have been a careless reader of our political history who has not observed that, whether under the style of "United Colonies" or "United States," which was adopted after the Declaration of Independence, whether under the articles of Confederation or the compact of Union, there everywhere appears the distinct assertion of State sovereignty, and nowhere the slightest suggestion of any purpose on the part of the States to consolidate themselves into one body. Will any candid, well-informed man assert that, at any time between 1776 and 1790, a proposition to surrender the sovereignty of the States and merge them in a central government would have had the least possible chance of adoption? Can any historical fact be more demonstrable than that the States did, both in the Confederation and in the Union, retain their sovereignty and independence as distinct communities, voluntarily consenting to federation, but never becoming the fractional parts of a nation? That such opinions should find adherents in our day, may be attributable to the natural law of aggregation; surely not to a conscientious regard for the terms of the compact for union by the States.
In all free governments the constitution or organic law is supreme over the government, and in our Federal Union this was most distinctly marked by limitations and prohibitions against all which was beyond the expressed grants of power to the General Government. In the foreground, therefore, I take the position that those who resisted violations of the compact were the true friends, and those who maintained the usurpation of undelegated powers were the real enemies of the constitutional Union.
[pg 3]African Servitude.—A Retrospect.—Early Legislation with Regard to the Slave-Trade.—The Southern States foremost in prohibiting it.—A Common Error corrected.—The Ethical Question never at Issue in Sectional Controversies.—The Acquisition of Louisiana.—The Missouri Compromise.—The Balance of Power.—Note.—The Indiana Case.
Inasmuch as questions growing out of the institution of negro servitude, or connected with it, will occupy a conspicuous place in what is to follow, it is important that the reader should have, in the very outset, a right understanding of the true nature and character of those questions. No subject has been more generally misunderstood or more persistently misrepresented. The institution itself has ceased to exist in the United States; the generation, comprising all who took part in the controversies to which it gave rise, or for which it afforded a pretext, is passing away; and the misconceptions which have prevailed in our own country, and still more among foreigners remote from the field of contention, are likely to be perpetuated in the mind of posterity, unless corrected before they become crystallized by tacit acquiescence.
It is well known that, at the time of the adoption of the Federal Constitution, African servitude existed in all the States that were parties to that compact, unless with the single exception of Massachusetts, in which it had, perhaps, very recently ceased to exist. The slaves, however, were numerous in the Southern, and very few in the Northern, States. This diversity was occasioned by differences of climate, soil, and industrial [pg 4] interests—not in any degree by moral considerations, which at that period were not recognized, as an element in the question. It was simply because negro labor was more profitable in the South than in the North that the importation of negro slaves had been, and continued to be, chiefly directed to the Southern ports.1 For the same reason slavery was abolished by the States of the Northern section (though it existed in several of them for more than fifty years after the adoption of the Constitution), while the importation of slaves into the South continued to be carried on by Northern merchants and Northern ships, without interference in the traffic from any quarter, until it was prohibited by the spontaneous action of the Southern States themselves.
The Constitution expressly forbade any interference by Congress with the slave-trade—or, to use its own language, with the "migration or importation of such persons" as any of the States should think proper to admit—"prior to the year 1808." During the intervening period of more than twenty years, the matter was exclusively under the control of the respective States. Nevertheless, every Southern State, without exception, either had already enacted, or proceeded to enact, laws forbidding the importation of slaves.2 Virginia was the first of all the States, [pg 5] North or South, to prohibit it, and Georgia was the first to incorporate such a prohibition in her organic Constitution.
Two petitions for the abolition of slavery and the slave-trade were presented February 11 and 12, 1790, to the very first Congress convened under the Constitution.3 After full discussion in the House of Representatives, it was determined, with regard to the first-mentioned subject, "that Congress have no authority to interfere in the emancipation of slaves, or in the treatment of them within any of the States"; and, with regard to the other, that no authority existed to prohibit the migration or importation of such persons as the States might think proper to admit, prior to the year 1808." So distinct and final was this statement of the limitations of the authority of Congress considered to be that, when a similar petition was presented two or three years afterward, the Clerk of the House was instructed to return it to the petitioner.4
In 1807, Congress, availing itself of the very earliest moment at which the constitutional restriction ceased to be operative, passed an act prohibiting the importation of slaves into any part of the United States from and after the first day of January, 1808. This act was passed with great unanimity. In the House of Representatives there were one hundred and thirteen (113) yeas to five (5) nays; and it is a significant fact, as showing the absence of any sectional division of sentiment at that period, that the five dissentients were divided as equally as possible between the two sections: two of them were from Northern and three from Southern States.5
The slave-trade had thus been finally abolished some months before the birth of the author of these pages, and has never [pg 6] since had legal existence in any of the United States. The question of the maintenance or extinction of the system of negro servitude, already existing in any State, was one exclusively belonging to such State. It is obvious, therefore, that no subsequent question, legitimately arising in Federal legislation, could properly have any reference to the merits or the policy of the institution itself. A few zealots in the North afterward created much agitation by demands for the abolition of slavery within the States by Federal intervention, and by their activity and perseverance finally became a recognized party, which, holding the balance of power between the two contending organizations in that section, gradually obtained the control of one, and to no small degree corrupted the other. The dominant idea, however, at least of the absorbed party, was sectional aggrandizement, looking to absolute control, and theirs is the responsibility for the war that resulted.
No moral nor sentimental considerations were really involved in either the earlier or later controversies which so long agitated and finally ruptured the Union. They were simply struggles between different sections, with diverse institutions and interests.
It is absolutely requisite, in order to a right understanding of the history of the country, to bear these truths clearly in mind. The phraseology of the period referred to will otherwise be essentially deceptive. The antithetical employment of such terms as freedom and slavery, or "anti-slavery" and "pro-slavery," with reference to the principles and purposes of contending parties or rival sections, has had immense influence in misleading the opinions and sympathies of the world. The idea of freedom is captivating, that of slavery repellent to the moral sense of mankind in general. It is easy, therefore, to understand the effect of applying the one set of terms to one party, the other to another, in a contest which had no just application whatever to the essential merits of freedom or slavery. Southern statesmen may perhaps have been too indifferent to this consideration—in their ardent pursuit of principles, overlooking the effects of phrases.
This is especially true with regard to that familiar but most fallacious expression, "the extension of slavery." To the reader unfamiliar with the subject, or viewing it only on the surface, [pg 7] it would perhaps never occur that, as used in the great controversies respecting the Territories of the United States, it does not, never did, and never could, imply the addition of a single slave to the number already existing. The question was merely whether the slaveholder should be permitted to go, with his slaves, into territory (the common property of all) into which the non-slaveholder could go with his property of any sort. There was no proposal nor desire on the part of the Southern States to reopen the slave-trade, which they had been foremost in suppressing, or to add to the number of slaves. It was a question of the distribution, or dispersion, of the slaves, rather than of the "extension of slavery." Removal is not extension. Indeed, if emancipation was the end to be desired, the dispersion of the negroes over a wider area among additional Territories, eventually to become States, and in climates unfavorable to slave-labor, instead of hindering, would have promoted this object by diminishing the difficulties in the way of ultimate emancipation.
The distinction here defined between the distribution, or dispersion, of slaves and the extension of slavery—two things altogether different, although so generally confounded—was early and clearly drawn under circumstances and in a connection which justify a fuller notice.
Virginia, it is well known, in the year 1784, ceded to the United States—then united only by the original Articles of Confederation—her vast possessions northwest of the Ohio, from which the great States of Ohio, Indiana, Michigan, Illinois, Wisconsin, and part of Minnesota, have since been formed. In 1787—before the adoption of the Federal Constitution—the celebrated "Ordinance" for the government of this Northwestern Territory was adopted by the Congress, with the full consent, and indeed at the express instance, of Virginia. This Ordinance included six definite "Articles of compact between the original States and the people and States in the said Territory," which were to "for ever remain unalterable unless by common consent." The sixth of these articles ordains that "there shall be neither slavery nor involuntary servitude in the said Territory, otherwise than in the punishment of crimes whereof the party shall have been duly convicted."
[pg 8]In December, 1805, a petition of the Legislative Council and House of Representatives of the Indiana Territory—then comprising all the area now occupied by the States of Indiana, Illinois, Michigan, and Wisconsin—was presented to Congress. It appears from the proceedings of the House of Representatives that several petitions of the same purport from inhabitants of the Territory, accompanied by a letter from William Henry Harrison, the Governor (afterward President of the United States), had been under consideration nearly two years earlier. The prayer of these petitions was for a suspension of the sixth article of the Ordinance, so as to permit the introduction of slaves into the Territory. The whole subject was referred to a select committee of seven members, consisting of representatives from Virginia, Ohio, Pennsylvania, South Carolina, Kentucky, and New York, and the delegate from the Indiana Territory.
On the 14th of the ensuing February (1806), this committee made a report favorable to the prayer of the petitioners, and recommending a suspension of the prohibitory article for ten years. In their report the committee, after stating their opinion that a qualified suspension of the article in question would be beneficial to the people of the Indiana Territory, proceeded to say:
"The suspension of this article is an object almost universally desired in that Territory. It appears to your committee to be a question entirely different from that between slavery and freedom, inasmuch as it would merely occasion the removal of persons, already slaves, from one part of the country to another. The good effects of this suspension, in the present instance, would be to accelerate the population of that Territory, hitherto retarded by the operation of that article of compact; as slaveholders emigrating into the Western country might then indulge any preference which they might feel for a settlement in the Indiana Territory, instead of seeking, as they are now compelled to do, settlements in other States or countries permitting the introduction of slaves. The condition of the slaves themselves would be much ameliorated by it, as it is evident, from experience, that the more they are separated and diffused the more care and attention are bestowed on them by their masters, each proprietor having it in his power [pg 9] to increase their comforts and conveniences in proportion to the smallness of their numbers."
These were the dispassionate utterances of representatives of every part of the Union—men contemporary with the origin of the Constitution, speaking before any sectional division had arisen in connection with the subject. It is remarkable that the very same opinions which they express and arguments which they adduce had, fifty years afterward, come to be denounced and repudiated by one half of the Union as partisan and sectional when propounded by the other half.
No final action seems to have been taken on the subject before the adjournment of Congress, but it was brought forward at the next session in a more imposing form. On the 20th of January, 1807, the Speaker laid before the House of Representatives a letter from Governor Harrison, inclosing certain resolutions formally and unanimously adopted by the Legislative Council and House of Representatives of the Indiana Territory, in favor of the suspension of the sixth article of the Ordinance and the introduction of slaves into the Territory, which they say would "meet the approbation of at least nine tenths of the good citizens of the same." Among the resolutions were the following:
[pg 10]"Resolved unanimously, That the abstract question of liberty and slavery is not considered as involved in a suspension of the said article, inasmuch as the number of slaves in the United States would not be augmented by this measure.
"Resolved unanimously, That the suspension of the said article would be equally advantageous to the Territory, to the States from whence the negroes would be brought, and to the negroes themselves....
"The States which are overburdened with negroes would be benefited by their citizens having an opportunity of disposing of the negroes which they can not comfortably support, or of removing with them to a country abounding with all the necessaries of life; and the negro himself would exchange a scanty pittance of the coarsest food for a plentiful and nourishing diet, and a situation which admits not the most distant prospect of emancipation for one which presents no considerable obstacle to his wishes."
These resolutions were submitted to a committee drawn, like the former, from different sections of the country, which again reported favorably, reiterating in substance the reasons given by the former committee. Their report was sustained by the House, and a resolution to suspend the prohibitory article was adopted. The proposition failed, however, in the Senate, and there the matter seems to have been dropped. The proceedings constitute a significant and instructive episode in the political history of the country.
The allusion which has been made to the Ordinance of 1787, renders it proper to notice, very briefly, the argument put forward during the discussion of the Missouri question, and often repeated since, that the Ordinance afforded a precedent in support of the claim of a power in Congress to determine the question of the admission of slaves into the Territories, and in justification of the prohibitory clause applied in 1820 to a portion of the Louisiana Territory.
The difference between the Congress of the Confederation and that of the Federal Constitution is so broad that the action of the former can, in no just sense, be taken as a precedent for the latter. The Congress of the Confederation represented the States in their sovereignty, each delegation having one vote, so that all the States were of equal weight in the decision of any question. It had legislative, executive, and in some degree judicial powers, thus combining all departments of government in itself. During its recess a committee known as the Committee of the States exercised the powers of the Congress, which was in spirit, if not in fact, an assemblage of the States.
On the other hand, the Congress of the Constitution is only the legislative department of the General Government, with powers strictly defined and expressly limited to those delegated by the States. It is further held in check by an executive and a judiciary, and consists of two branches, each having peculiar and specified functions.
If, then, it be admitted—which is at least very questionable—that the Congress of the Confederation had rightfully the power to exclude slave property from the territory northwest of the Ohio River, that power must have been derived from its character [pg 11] as an assemblage of the sovereign States; not from the Articles of Confederation, in which no indication of the grant of authority to exercise such a function can be found. The Congress of the Constitution is expressly prohibited from the assumption of any power not distinctly and specifically delegated to it as the legislative branch of an organized government. What was questionable in the former case, therefore, becomes clearly inadmissible in the latter.
But there is yet another material distinction to be observed. The States, owners of what was called the Northwestern Territory, were component members of the Congress which adopted the Ordinance for its government, and gave thereto their full and free consent. The Ordinance may, therefore, be regarded as virtually a treaty between the States which ceded and those which received that extensive domain. In the other case, Missouri and the whole region affected by the Missouri Compromise, were parts of the territory acquired from France under the name of Louisiana; and, as it requires two parties to make or amend a treaty, France and the Government of the United States should have coöperated in any amendment of the treaty by which Louisiana had been acquired, and which guaranteed to the inhabitants of the ceded territory "all the rights, advantages, and immunities of citizens of the United States," and "the free enjoyment of their liberty, property, and the religion they profess."—("State Papers," vol. ii, "Foreign Relations," p. 507.)
For all the reasons thus stated, it seems to me conclusive that the action of the Congress of the Confederation in 1787 could not constitute a precedent to justify the action of the Congress of the United States in 1820, and that the prohibitory clause of the Missouri Compromise was without constitutional authority, in violation of the rights of a part of the joint owners of the territory, and in disregard of the obligations of the treaty with France.
The basis of sectional controversy was the question of the balance of political power. In its earlier manifestations this was undisguised. The purchase of the Louisiana Territory from France in 1803, and the subsequent admission of a portion of that Territory into the Union as a State, afforded one of the [pg 12] earliest occasions for the manifestation of sectional jealousy, and gave rise to the first threats, or warnings (which proceeded from New England), of a dissolution of the Union. Yet, although negro slavery existed in Louisiana, no pretext was made of that as an objection to the acquisition. The ground of opposition is frankly stated in a letter of that period from one Massachusetts statesman to another—"that the influence of our part of the Union must be diminished by the acquisition of more weight at the other extremity."6
Some years afterward (in 1819-'20) occurred the memorable contest with regard to the admission into the Union of Missouri, the second State carved out of the Louisiana Territory. The controversy arose out of a proposition to attach to the admission of the new State a proviso prohibiting slavery or involuntary servitude therein. The vehement discussion that ensued was continued into the first session of a different Congress from that in which it originated, and agitated the whole country during the interval between the two. It was the first question that ever seriously threatened the stability of the Union, and the first in which the sentiment of opposition to slavery in the abstract was introduced as an adjunct of sectional controversy. It was clearly shown in debate that such considerations were altogether irrelevant; that the number of existing slaves would not be affected by their removal from the older States to Missouri; and, moreover, that the proposed restriction would be contrary to the spirit, if not to the letter, of the Constitution.7 Notwithstanding all this, the restriction was adopted, by a vote almost strictly sectional, in the House of Representatives. It failed in the Senate through the firm resistance of the Southern, aided by a few patriotic and conservative Northern, members of that body. The admission of the new State, without any [pg 13] restriction, was finally accomplished by the addition to the bill of a section for ever prohibiting slavery in all that portion of the Louisiana Territory lying north of thirty-six degrees and thirty minutes, north latitude, except Missouri—by implication leaving the portion south of that line open to settlement either with or without slaves.
This provision, as an offset to the admission of the new State without restriction, constituted the celebrated Missouri Compromise. It was reluctantly accepted by a small majority of the Southern members. Nearly half of them voted against it, under the conviction that it was unauthorized by the Constitution, and that Missouri was entitled to determine the question for herself, as a matter of right, not of bargain or concession. Among those who thus thought and voted were some of the wisest statesmen and purest patriots of that period.8
This brief retrospect may have sufficed to show that the question of the right or wrong of the institution of slavery was in no wise involved in the earlier sectional controversies. Nor was it otherwise in those of a later period, in which it was the lot of the author of these memoirs to bear a part. They were [pg 14] essentially struggles for sectional equality or ascendancy—for the maintenance or the destruction of that balance of power or equipoise between North and South, which was early recognized as a cardinal principle in our Federal system. It does not follow that both parties to this contest were wholly right or wholly wrong in their claims. The determination of the question of right or wrong must be left to the candid inquirer after examination of the evidence. The object of these preliminary investigations has been to clear the subject of the obscurity produced by irrelevant issues and the glamour of ethical illusions.
Footnote 1: (return)It will be remembered that, during her colonial condition, Virginia made strenuous efforts to prevent the importation of Africans, and was overruled by the Crown; also, that Georgia, under Oglethorpe, did prohibit the introduction of African slaves until 1752, when the proprietors surrendered the charter, and the colony became a part of the royal government, and enjoyed the same privileges as the other colonies.
Footnote 2: (return)South Carolina subsequently (in 1803) repealed her law forbidding the importation of slaves. The reason assigned for this action was the impossibility of enforcing the law without the aid of the Federal Government, to which entire control of the revenues, revenue police, and naval forces of the country had been surrendered by the States. "The geographical situation of our country," said Mr. Lowndes, of South Carolina, in the House of Representatives on February 14, 1804, "is not unknown. With navigable rivers running into the heart of it, it was impossible, with our means, to prevent our Eastern brethren ... engaged in this trade, from introducing them [the negroes] into the country. The law was completely evaded.... Under these circumstances, sir, it appears to me to have been the duty of the Legislature to repeal the law, and remove from the eyes of the people the spectacle of its authority being daily violated."
The effect of the repeal was to permit the importation of negroes into South Carolina during the interval from 1803 to 1808. It in probable that an extensive contraband trade was carried on by the New England slavers with other ports, on account of the lack of means to enforce the laws of the Southern States forbidding it.
Footnote 3: (return)One from the Society of Friends assembled at Philadelphia and New York, the other from the Pennsylvania society of various religious denominations combined for the abolition of slavery.
For report of the debate, see Benton's "Abridgment," vol. i, pp. 201-207, et seq.
Footnote 4: (return)See Benton's "Abridgment," vol. i, p. 397.
Footnote 5: (return)One was from New Hampshire, one from Vermont, two from Virginia, and one from South Carolina.—(Benton's "Abridgment," vol. iii, p. 519.)
No division on the final vote in the Senate.
Footnote 6: (return)Cabot to Pickering, who was then Senator from Massachusetts.—(See "Life and Letters of George Cabot," by H. C. Lodge, p. 334.)
Footnote 7: (return)The true issue was well stated by the Hon. Samuel A. Foot, a representative from Connecticut, in an incidental reference to it in debate on another subject, a few weeks after the final settlement of the Missouri case. He said: "The Missouri question did not involve the question of freedom or slavery, but merely whether slaves now in the country might be permitted to reside in the proposed new State; and whether Congress or Missouri possessed the power to decide."
Footnote 8: (return)The votes on the proposed restriction, which eventually failed of adoption, and on the compromise, which was finally adopted, are often confounded. The advocacy of the former measure was exclusively sectional, no Southern member voting for it in either House. On the adoption of the compromise line of thirty-six degrees and thirty minutes, the vote in the Senate was 34 yeas to 10 nays. The Senate consisted of forty-four members from twenty-two States, equally divided between the two sections—Delaware being classed as a Southern State. Among the yeas were all the Northern votes, except two from Indiana—being 20—and 14 Southern. The nays consisted of 2 from the North, and 8 from the South.
In the House of Representatives, the vote was 134 yeas to 42 nays. Of the yeas, 95 were Northern, 39 Southern; of the nays, 5 Northern, and 37 Southern.
Among the nays in the Senate were Messrs. James Barbour and James Pleasants, of Virginia; Nathaniel Macon, of North Carolina; John Gaillard and William Smith, of South Carolina. In the House, Philip P. Barbour, John Randolph, John Tyler, and William S. Archer, of Virginia; Charles Pinckney, of South Carolina (one of the authors of the Constitution); Thomas W. Cobb, of Georgia; and others of more or less note.
(See speech of the Hon. D. L. Yulee, of Florida, in the United States Senate, on the admission of California, August 6, 1850, for a careful and correct account of the compromise. That given in the second chapter of Benton's "Thirty Years' View" is singularly inaccurate; that of Horace Greeley, in his "American Conflict," still more so.)
The Session of 1849-'50.—The Compromise Measures.—Virtual Abrogation of the Missouri Compromise.—The Admission of California.—The Fugitive Slave Law.—Death of Mr. Calhoun.—Anecdote of Mr. Clay.
The first session of the Thirty-first Congress (1849-'50) was a memorable one. The recent acquisition from Mexico of New Mexico and California required legislation by Congress. In the Senate the bills reported by the Committee on Territories were referred to a select committee, of which Mr. Clay, the distinguished Senator from Kentucky, was chairman. From this committee emanated the bills which, taken together, are known as the compromise measures of 1850.
With some others, I advocated the division of the newly acquired territory by an extension to the Pacific Ocean of the Missouri Compromise line of thirty-six degrees and thirty minutes north latitude. This was not because of any inherent merit or fitness in that line, but because it had been accepted by the country as a settlement of the sectional question which, thirty years before, had threatened a rupture of the Union, and it had acquired in the public mind a prescriptive respect which it seemed unwise to disregard. A majority, however, decided otherwise, and the line of political conciliation was then obliterated, as far as it lay in the power of Congress to do so. An [pg 15] analysis of the vote will show that this result was effected almost exclusively by the representatives of the North, and that the South was not responsible for an action which proved to be the opening of Pandora's box.9
However objectionable it may have been in 1820 to adopt that political line as expressing a geographical definition of different sectional interests, and however it may be condemned as the assumption by Congress of a function not delegated to it, it is to be remembered that the act had received such recognition and quasi-ratification by the people of the States as to give it a value which it did not originally possess. Pacification had been the fruit borne by the tree, and it should not have been recklessly hewed down and cast into the fire. The frequent assertion then made was that all discrimination was unjust, and that the popular will should be left untrammeled in the formation of new States. This theory was good enough in itself, and as an abstract proposition could not be gainsaid; but its practical operation has but poorly sustained the expectations of its advocates, as will be seen when we come to consider the events that occurred a few years later in Kansas and elsewhere. Retrospectively viewed under the mellowing light of time, and with the calm consideration we can usually give to the irremediable past, the compromise legislation of 1850 bears the impress of that sectional spirit so widely at variance with the general purposes of the Union, and so destructive of the harmony and mutual benefit which the Constitution was intended to secure.
The refusal to divide the territory acquired from Mexico by an extension of the line of the Missouri Compromise to the Pacific was a consequence of the purpose to admit California as a State of the Union before it had acquired the requisite population, and while it was mainly under the control of a military organization sent from New York during the war with Mexico and disbanded in California upon the restoration of peace. The [pg 16] inconsistency of the argument against the extension of the line was exhibited in the division of the Territory of Texas by that parallel, and payment to the State of money to secure her consent to the partition of her domain. In the case of Texas, the North had everything to gain and nothing to lose by the application of the practice of geographical compromise on an arbitrary line. In the case of California, the conditions were reversed; the South might have been the gainer and the North the loser by a recognition of the same rule.
The compensation which it was alleged that the South received was a more effective law for the rendition of fugitives from service or labor. But it is to be remarked that this law provided for the execution by the General Government of obligations which had been imposed by the Federal compact upon the several States of the Union. The benefit to be derived from a fulfillment of that law would be small in comparison with the evil to result from the plausible pretext that the States had thus been relieved from a duty which they had assumed in the adoption of the compact of union. Whatever tended to lead the people of any of the States to feel that they could be relieved from their constitutional obligations by transferring them to the General Government, or that they might thus or otherwise evade or resist them, could not fail to be like the tares which the enemy sowed amid the wheat. The union of States, formed to secure the permanent welfare of posterity and to promote harmony among the constituent States, could not, without changing its character, survive such alienation as rendered its parts hostile to the security, prosperity, and happiness of one another.
It was reasonably argued that, as the Legislatures of fourteen of the States had enacted what were termed "personal liberty laws," which forbade the coöperation of State officials in the rendition of fugitives from service and labor, it became necessary that the General Government should provide the requisite machinery for the execution of the law. The result proved what might have been anticipated—that those communities which had repudiated their constitutional obligations, which had nullified a previous law of Congress for the execution of a [pg 17] provision of the Constitution, and had murdered men who came peacefully to recover their property, would evade or obstruct, so as to render practically worthless, any law that could be enacted for that purpose. In the exceptional cases in which it might be executed, the event would be attended with such conflict between the State and Federal authorities as to produce consequent evils greater than those it was intended to correct.
It was during the progress of these memorable controversies that the South lost its most trusted leader, and the Senate its greatest and purest statesman. He was taken from us—
"Like a summer-dried fountain,
When our need was the sorest;"—
when his intellectual power, his administrative talent, his love of peace, and his devotion to the Constitution, might have averted collision; or, failing in that, he might have been to the South the Palinurus to steer the bark in safety over the perilous sea. Truly did Mr. Webster—his personal friend, although his greatest political rival—say of him in his obituary address, "There was nothing groveling, or low, or meanly selfish, that came near the head or the heart of Mr. Calhoun." His prophetic warnings speak from the grave with the wisdom of inspiration. Would that they could have been appreciated by his countrymen while he yet lived!
Note.—While the compromise measures of 1850 were pending, and the excitement concerning them was at its highest, I one day overtook Mr. Clay, of Kentucky, and Mr. Berrien, of Georgia, in the Capitol grounds. They were in earnest conversation. It was the 7th of March—the day on which Mr. Webster had delivered his great speech. Mr. Clay, addressing me in the friendly manner which he had always employed since I was a schoolboy in Lexington, asked me what I thought of the speech. I liked it better than he did. He then suggested that I should "join the compromise men," saying that it was a measure which he thought would probably give peace to the country for thirty years—the period that had elapsed since the adoption of the compromise of 1820. Then, turning to Mr. Berrien, he said, "You and I will be under ground before that time, but our young friend here may have trouble to meet." I somewhat impatiently declared my unwillingness to transfer to posterity a trial which they would be relatively less able to meet than we were, and passed on my way.
Footnote 9: (return)[pg 18]The vote in the Senate on the proposition to continue the line of the Missouri Compromise through the newly acquired territory to the Pacific was twenty-four yeas, to thirty-two nays. Reckoning Delaware and Missouri as Southern States, the vote of the two sections was exactly equal. The yeas were all cast by Southern Senators; the nays were all Northern, except two from Delaware, one from Missouri, and one from Kentucky.
Reëlection to the Senate.—Political Controversies in Mississippi.—Action of the Democratic State Convention.—Defeat of the State-Rights Party.—Withdrawal of General Quitman and Nomination of the Author as Candidate for the Office of Governor.—The Canvass and its Result.—Retirement to Private Life.
I had been reëlected by the Legislature of Mississippi as my own successor, and entered upon a new term of service in the Senate on March 4, 1851.
On my return to Mississippi in 1851, the subject chiefly agitating the public mind was that of the "compromise" measures of the previous year. Consequent upon these was a proposition for a convention of delegates, from the people of the Southern States respectively, to consider what steps ought to be taken for their future peace and safety, and the preservation of their constitutional rights. There was diversity of opinion with regard to the merits of the measures referred to, but the disagreement no longer followed the usual lines of party division. They who saw in those measures the forerunner of disaster to the South had no settled policy beyond a convention, the object of which should be to devise new and more effectual guarantees against the perils of usurpation. They were unjustly charged with a desire to destroy the Union—a feeling entertained by few, very few, if by any, in Mississippi, and avowed by none.
There were many, however, who held that the principles of the Declaration of Independence, and the purposes for which the Union was formed, were of higher value than the mere Union itself. Independence existed before the compact of union between the States; and, if that compact should be broken in part, and therefore destroyed in whole, it was hoped that the liberties of the people in the States might still be preserved. Those who were most devoted to the Union of the Constitution might, consequently, be expected to resist most sternly any usurpation of undelegated power, the effect of which would be to warp the Federal Government from its proper character, and, by sapping the foundation, to destroy the Union of the States.
[pg 19]My recent reëlection to the United States Senate had conferred upon me for six years longer the office which I preferred to all others. I could not, therefore, be suspected of desiring a nomination for any other office from the Democratic Convention, the meeting of which was then drawing near. Having, as a Senator of the State, freely participated in debate on the measures which were now exciting so much interest in the public mind, it was very proper that I should visit the people in different parts of the State and render an account of my stewardship.
My devotion to the Union of our fathers had been so often and so publicly declared; I had, on the floor of the Senate, so defiantly challenged any question of my fidelity to it; my services, civil and military, had now extended through so long a period, and were so generally known—that I felt quite assured that no whisperings of envy or ill will could lead the people of Mississippi to believe that I had dishonored their trust by using the power they had conferred on me to destroy the Government to which I was accredited. Then, as afterward, I regarded the separation of the States as a great, though not the greatest, evil.
I returned from my tour among the people at the time appointed for the meeting of the nominating convention of the Democratic (or State-Rights) party. During the previous year the Governor, General John A. Quitman, had been compelled to resign his office to answer an indictment against him for complicity with the "filibustering" expeditions against Cuba. The charges were not sustained; many of the Democratic party of Mississippi, myself included, recognized a consequent obligation to renominate him for the office of which he had been deprived. When, however, the delegates met in party convention, the committee appointed to select candidates, on comparison of opinions, concluded that, in view of the effort to fix upon the party the imputation of a purpose of disunion, some of the antecedents of General Quitman might endanger success. A proposition was therefore made, in the committee on nominations, that I should be invited to become a candidate, and that, if General Quitman would withdraw, my acceptance of the nomination [pg 20] and the resignation of my place in the United States Senate, which it was known would result, was to be followed by the appointment by the Governor of General Quitman to the vacated place in the Senate. I offered no objection to this arrangement, but left it to General Quitman to decide. He claimed the nomination for the governorship, or nothing, and was so nominated.
To promote the success of the Democratic nominees, I engaged actively in the canvass, and continued in the field until stricken down by disease. This occurred just before the election of delegates to a State Convention, for which provision had been made by the Legislature, and the canvass for which, conducted in the main upon party lines, was in progress simultaneously with that for the ordinary State officers. The Democratic majority in the State when the canvass began was estimated at eight thousand. At this election, in September, for delegates to the State Convention, we were beaten by about seven thousand five hundred votes. Seeing in this result the foreshadowing of almost inevitable defeat, General Quitman withdrew from the canvass as a candidate, and the Executive Committee of the party (empowered to fill vacancies) called on me to take his place. My health did not permit me to leave home at that time, and only about six weeks remained before the election was to take place; but, being assured that I was not expected to take any active part, and that the party asked only the use of my name, I consented to be announced, and immediately resigned from the United States Senate. Nevertheless, I soon afterward took the field in person, and worked earnestly until the day of election. I was defeated, but the majority of more than seven thousand votes, that had been cast a short time before against the party with which I was associated, was reduced to less than one thousand.10
[pg 21]In this canvass, both before and after I became a candidate, no argument or appeal of mine was directed against the perpetuation of the Union. Believing, however, that the signs of [pg 22] the time portended danger to the South from the usurpation by the General Government of undelegated powers, I counseled that Mississippi should enter into the proposed meeting of the people of the Southern States, to consider what could and should be done to insure our future safety, frankly stating my conviction that, unless such action were taken then, sectional rivalry would engender greater evils in the future, and that, if the controversy was postponed, "the last opportunity for a peaceful solution would be lost, then the issue would have to be settled by blood."
Footnote 10: (return)The following letter, written in 1853 to the Hon. William J. Brown, of Indiana, formerly a member of Congress from that State, and subsequently published, relates to the events of this period, and affords nearly contemporaneous evidence in confirmation of the statements of the text:
"Washington D.C., May 7, 1853.
"My dear Sir: I received the 'Sentinel' containing your defense of me against the fate accusation of disunionism, and, before I had returned to you the thanks to which you are entitled, I received this day the St. Joseph 'Valley Register,' marked by you, to call my attention to an article in answer to your defense, which was just in all things, save your too complimentary terms.
"I wish I had the letter quoted from, that you might publish the whole of that which is garbled to answer a purpose. In a part of the letter not published, I put such a damper on the attempt to fix on me the desire to break up our Union, and presented other points in a form so little acceptable to the unfriendly inquirers, that the publication of the letter had to be drawn out of them.
"At the risk of being wearisome, but encouraged by your marked friendship, I will give you a statement in the case. The meeting of October, 1849, was a convention of delegates equally representing the Whig and Democratic parties in Mississippi. The resolutions were decisive as to equality of right in the South with the North to the Territories acquired from Mexico, and proposed a convention of the Southern States. I was not a member, but on invitation addressed the Convention. The succeeding Legislature instructed me, as a Senator, to assert this equality, and, under the existing circumstances, to resist by all constitutional means the admission of California as a State. At a called session of the Legislature in 1850, a self-constituted committee called on me, by letter, for my views. They were men who had enacted or approved the resolutions of the Convention of 1849, and instructed me, as members of the Legislature, in regular session, in the early part of the year 1850. To them I replied that I adhered to the policy they had indicated and instructed me in their official character to pursue.
"I pointed out the mode in which their policy could, in my opinion, be executed without bloodshed or disastrous convulsion, but in terms of bitter scorn alluded to such as would insult me with a desire to destroy the Union, for which my whole life proved me to be a devotee.
"Pardon the egotism, in consideration of the occasion, when I say to you that my father and my uncles fought through the Revolution of 1776, giving their youth, their blood, and their little patrimony to the constitutional freedom which I claim as my inheritance. Three of my brothers fought in the war of 1812. Two of them were comrades of the Hero of the Hermitage, and received his commendation for gallantry at New Orleans. At sixteen years of age I was given to the service of my country; for twelve years of my life I have borne its arms and served it, zealously, if not well. As I feel the infirmities, which suffering more than age has brought upon me, it would be a bitter reflection, indeed, if I was forced to conclude that my countrymen would hold all this light when weighed against the empty panegyric which a time-serving politician can bestow upon the Union, for which he never made a sacrifice.
"In the Senate I announced that, if any respectable man would call me a disunionist, I would answer him in monosyllables.... But I have often asserted the right, for which the battles of the Revolution were fought—the right of a people to change their government whenever it was found to be oppressive, and subversive of the objects for which governments are instituted—and have contended for the independence and sovereignty of the States, a part of the creed of which Jefferson was the apostle, Madison the expounder, and Jackson the consistent defender.
"I have written freely, and more than I designed. Accept my thanks for your friendly advocacy. Present me in terms of kind remembrance to your family, and believe me, very sincerely yours,
Jefferson Davis.
"Note.—No party in Mississippi ever advocated disunion. They differed as to the mode of securing their rights in the Union, and on the power of a State to secede—neither advocating the exercise of the power.
J.D."
The Author enters the Cabinet.—Administration of the War Department.—Surveys for a Pacific Railway.—Extension of the Capitol.—New Regiments organized.—Colonel Samuel Cooper, Adjutant-General.—A Bit of Civil-Service Reform.—Reëlection to the Senate.—Continuity of the Pierce Cabinet.—Character of Franklin Pierce.
Happy in the peaceful pursuits of a planter; busily engaged in cares for servants, in the improvement of my land, in building, in rearing live-stock, and the like occupations, the time passed pleasantly away until my retirement was interrupted by an invitation to take a place in the Cabinet of Mr. Pierce, who had been elected to the Presidency of the United States in November, 1852. Although warmly attached to Mr. Pierce personally, and entertaining the highest estimate of his character and political principles, private and personal reasons led me to decline the offer. This was followed by an invitation to attend the ceremony of his inauguration, which took place on the 4th of March, 1853. While in Washington, on this visit, I was [pg 23] induced by public considerations to reconsider my determination and accept the office of Secretary of War. The public records of that period will best show how the duties of that office were performed.
While in the Senate, I had advocated the construction of a railway to connect the valley of the Mississippi with the Pacific coast; and, when an appropriation was made to determine the most eligible route for that purpose, the Secretary of War was charged with its application. We had then but little of that minute and accurate knowledge of the interior of the continent which was requisite for a determination of the problem. Several different parties were therefore organized to examine the various routes supposed to be practicable within the northern and southern limits of the United States. The arguments which I had used as a Senator were "the military necessity for such means of transportation, and the need of safe and rapid communication with the Pacific slope, to secure its continuance as a part of the Union."
In the organization and equipment of these parties, and in the selection of their officers, care was taken to provide for securing full and accurate information upon every point involved in the determination of the route. The only discrimination made was in the more prompt and thorough equipment of the parties for the extreme northern line, and this was only because that was supposed to be the most difficult of execution of all the surveys.
In like manner, my advocacy while in the Senate of an extension of the Capitol, by the construction of a new Senate-Chamber and Hall of Representatives, may have caused the appropriation for that object to be put under my charge as Secretary of War.
During my administration of the War Department, material changes were made in the models of arms. Iron gun-carriages were introduced, and experiments were made which led to the casting of heavy guns hollow, instead of boring them after casting. Inquiries were made with regard to gunpowder, which subsequently led to the use of a coarser grain for artillery.
During the same period the army was increased by the addition of two regiments of infantry and two of cavalry. The [pg 24] officers of these regiments were chosen partly by selection from those already in service in the regular army and partly by appointment from civil life. In making the selections from the army, I was continually indebted to the assistance of that pure-minded and accurately informed officer, Colonel Samuel Cooper, the Adjutant-General, of whom it may be proper here to say that, although his life had been spent in the army, and he, of course, had the likes and dislikes inseparable from men who are brought into close contact and occasional rivalry, I never found in his official recommendations any indication of partiality or prejudice toward any one.
When the first list was made out, to be submitted to the President, a difficulty was found to exist, which had not occurred either to Colonel Cooper or myself. This was, that the officers selected purely on their military record did not constitute a roster conforming to that distribution among the different States, which, for political considerations, it was thought desirable to observe—that is to say, the number of such officers of Southern birth was found to be disproportionately great. Under instructions from the President, the list was therefore revised and modified in accordance with this new element of geographical distribution. This, as I am happy to remember, was the only occasion in which the current of my official action, while Secretary of War, was disturbed in any way by sectional or political considerations.
Under former administrations of the War Office it had not been customary to make removals or appointments upon political grounds, except in the case of clerkships. To this usage I not only adhered, but extended it to include the clerkships also. The Chief Clerk, who had been removed by my predecessor, had peculiar qualifications for the place; and, although known to me only officially, he was restored to the position. It will probably be conceded by all who are well informed on the subject that his restoration was a benefit to the public service.11
[The reader desirous for further information relative to the [pg 25] administration of the War Department during this period may find it in the various official reports and estimates of works of defense prosecuted or recommended, arsenals of construction and depots of arms maintained or suggested, and foundries employed, during the Presidency of Mr. Pierce, 1853-'57.]
Having been again elected by the Legislature of Mississippi as Senator to the United States, I passed from the Cabinet of Mr. Pierce, on the last day of his term (March 4, 1857), to take my seat in the Senate.
The Administration of Franklin Pierce presents the only instance in our history of the continuance of a Cabinet for four years without a single change in its personnel. When it is remembered that there was much dissimilarity if not incongruity of character among the members of that Cabinet, some idea may be formed of the power over men possessed and exercised by Mr. Pierce. Chivalrous, generous, amiable, true to his friends and to his faith, frank and bold in the declaration of his opinions, he never deceived any one. And, if treachery had ever come near him, it would have stood abashed in the presence of his truth, his manliness, and his confiding simplicity.
Footnote 11: (return)[pg 26]Soon after my entrance upon duty as secretary of War, General Jesup, the Quartermaster-General, presented to me a list of names from which to make selection of a clerk for his department. Observing that he had attached certain figures to these names, I asked whether the figures were intended to indicate the relative qualifications, or preference in his estimation, of the several applicants; and, upon his answer in the affirmative, without further question, authorized him to appoint "No. 1" of his list. A day or two afterward, certain Democratic members of Congress called on me and politely inquired whether it was true that I had appointed a Whig to a position in the War Office. "Certainly not," I answered. "We thought you were not aware of it," said they, and proceeded to inform me that Mr. ——, the recent appointee to the clerkship just mentioned, was a Whig. After listening patiently to this statement, I answered that it was they who were deceived, not I. I had appointed a clerk. He had been appointed neither as a Whig nor as a Democrat, but merely as the fittest candidate for the place in the estimation of the chief of the bureau to which it belonged. I further gave them to understand that the same principle of selection would be followed in similar cases, so far as my authority extended. After some further discussion of the question, the visitors withdrew, dissatisfied with the result of the interview.
The Quartermaster-General, on hearing of this conversation, hastened to inform me that it was all a mistake—that the appointee to the office had been confounded with his father, who was a well-known Whig, but that he (the son) was a Democrat. I assured the General that this was altogether immaterial, adding that it was "a very pretty quarrel" as it stood, and that I had no desire to effect a settlement of it on any inferior issue. Thenceforward, however, I was but little troubled with any pressure for political appointments in the department.
The Territorial Question.—An Incident at the White House.—The Kansas and Nebraska Bill.—The Missouri Compromise abrogated in 1850, not in 1854.—Origin of "Squatter Sovereignty."—Sectional Rivalry and its Consequences.—The Emigrant Aid Societies.—"The Bible and Sharpe's Rifles."—False Pretensions as to Principle.—The Strife in Kansas.—A Retrospect.—The Original Equilibrium of Power and its Overthrow.—Usurpations of the Federal Government.—The Protective Tariff.—Origin and Progress of Abolitionism.—Who were the Friends of the Union?—An Illustration of Political Morality.
The organization of the Territory of Kansas was the first question that gave rise to exciting debate after my return to the Senate. The celebrated Kansas-Nebraska Bill had become a law during the Administration of Mr. Pierce. As this occupies a large space in the political history of the period, it is proper to state some facts connected with it, which were not public, but were known to me and to others yet living.
The declaration, often repeated in 1850, that climate and the will of the people concerned should determine their institutions when they should form a Constitution, and as a State be admitted into the Union, and that no legislation by Congress should be permitted to interfere with the free exercise of that will when so expressed, was but the announcement of the fact so firmly established in the Constitution, that sovereignty resided alone in the States, and that Congress had only delegated powers. It has been sometimes contended that, because the Congress of the Confederation, by the Ordinance of 1787, prohibited involuntary servitude in all the Northwestern Territory, the framers of the Constitution must have recognized such power to exist in the Congress of the United States. Hence the deduction that the prohibitory clause of what is known as the Missouri Compromise was justified by the precedent of the Ordinance of 1787. To make the action of the Congress of the Confederation a precedent for the Congress of the United States is to overlook the great distinction between the two.
The Congress of the Confederation represented the States in their sovereignty, and, as such representatives, had legislative, [pg 27] executive, and, in some degree, judicial power confided to it. Virtually, it was an assemblage of the States. In certain cases a majority of nine States were required to decide a question, but there is no express limitation, or restriction, such as is to be found in the ninth and tenth amendments to the Constitution of the United States. The General Government of the Union is composed of three departments, of which the Congress is the legislative branch, and which is checked by the revisory power of the judiciary, and the veto power of the Executive, and, above all, is expressly limited in legislation to powers expressly delegated by the States. If, then, it be admitted, which is certainly questionable, that the Congress of the Confederation had power to exclude slave property northwest of the Ohio River, that power must have been derived from its character as representing the States in their sovereignty, for no indication of such a power is to be found in the Articles of Confederation.
If it be assumed that the absence of a prohibition was equivalent to the admission of the power in the Congress of the Confederation, the assumption would avail nothing in the Congress under the Constitution, where power is expressly limited to what had been delegated. More briefly, it may be stated that the Congress of the Confederation could, like the Legislature of a State, do what had not been prohibited; but the Congress of the United States could only do what had been expressly permitted. It is submitted whether this last position is not conclusive against the possession of power by the United States Congress to legislate slavery into or exclude it from Territories belonging to the United States.
This subject, which had for more than a quarter of a century been one of angry discussion and sectional strife, was revived, and found occasion for renewed discussion in the organization of Territorial governments for Kansas and Nebraska. The Committees on Territories of the two Houses agreed to report a bill in accordance with that recognized principle, provided they could first be assured that it would receive favorable consideration from the President. This agreement was made on Saturday, and the ensuing Monday was the day (and the only day for two weeks) on which, according to the order of business established [pg 28] by the rules of the House of Representatives, the bill could be introduced by the Committee of that House.
On Sunday morning, the 22d of January, 1854, gentlemen of each Committee called at my house, and Mr. Douglas, chairman of the Senate Committee, fully explained the proposed bill, and stated their purpose to be, through my aid, to obtain an interview on that day with the President, to ascertain whether the bill would meet his approbation. The President was known to be rigidly opposed to the reception of visits on Sunday for the discussion of any political subject; but in this case it was urged as necessary, in order to enable the Committee to make their report the next day. I went with them to the Executive mansion, and, leaving them in the reception-room, sought the President in his private apartments, and explained to him the occasion of the visit. He thereupon met the gentlemen, patiently listened to the reading of the bill and their explanations of it, decided that it rested upon sound constitutional principles, and recognized in it only a return to that rule which had been infringed by the compromise of 1820, and the restoration of which had been foreshadowed by the legislation of 1850. This bill was not, therefore, as has been improperly asserted, a measure inspired by Mr. Pierce or any of his Cabinet. Nor was it the first step taken toward the repeal of the conditions or obligations expressed or implied by the establishment, in 1820, of the politico-sectional line of thirty-six degrees and thirty minutes. That compact had been virtually abrogated, in 1850, by the refusal of the representatives of the North to apply it to the territory then recently acquired from Mexico. In May, 1854, the Kansas-Nebraska Bill was passed; its purpose was declared in the bill itself to be to carry into practical operation the "propositions and principles established by the compromise measures of 1850" The "Missouri Compromise," therefore, was not repealed by that bill—its virtual repeal by the legislation of 1850 was recognized as an existing fact, and it was declared to be "inoperative and void."
It was added that the "true intent and meaning" of the act was "not to legislate slavery into any Territory or State, nor to exclude it therefrom, but to leave the people thereof perfectly [pg 29] free to form and regulate their domestic institutions in their own way, subject only to the Constitution of the United States."
From the terms of this bill, as well as from the arguments that were used in its behalf, it is evident that its purpose was to leave the Territories equally open to the people of all the States, with every species of property recognized by any of them; to permit climate and soil to determine the current of immigration, and to secure to the people themselves the right to form their own institutions according to their own will, as soon as they should acquire the right of self-government; that is to say, as soon as their numbers should entitle them to organize themselves into a State, prepared to take its place as an equal, sovereign member of the Federal Union. The claim, afterward advanced by Mr. Douglas and others, that this declaration was intended to assert the right of the first settlers of a Territory, in its inchoate, rudimental, dependent, and transitional condition, to determine the character of its institutions, constituted the doctrine popularly known as "squatter sovereignty." Its assertion led to the dissensions which ultimately resulted in a rupture of the Democratic party.
Sectional rivalry, the deadly foe of the "domestic tranquillity" and the "general welfare," which the compact of union was formed to insure, now interfered, with gigantic efforts, to prevent that free migration which had been promised, and to hinder the decision by climate and the interests of the inhabitants of the institutions to be established by these embryo States. Societies were formed in the North to supply money and send emigrants into the new Territories; and a famous preacher, addressing a body of those emigrants, charged them to carry with them to Kansas "the Bible and Sharpe's rifles." The latter were of course to be leveled against the bosoms of their Southern brethren who might migrate to the same Territory, but the use to be made of the Bible in the same fraternal enterprise was left unexplained by the reverend gentleman.
The war-cry employed to train the Northern mind for the deeds contemplated by the agitators was "No extension of slavery!" Was this sentiment real or feigned? The number of slaves (as has already been clearly shown) would not have [pg 30] been increased by their transportation to new territory. It could not be augmented by further importation, for the law of the land made that piracy. Southern men were the leading authors of that enactment, and the public opinion of their descendants, stronger than the law, fully sustained it. The climate of Kansas and Nebraska was altogether unsuited to the negro, and the soil was not adapted to those productions for which negro labor could be profitably employed. If, then, any negroes held to service or labor, as provided in the compact of union, had been transported to those Territories, they would have been such as were bound by personal attachment mutually existing between master and servant, which would have rendered it impossible for the former to consider the latter as property convertible into money. As white laborers, adapted to the climate and its products, flowed into the country, negro labor would have inevitably become a tax to those who held it, and their emancipation would have followed that condition, as it has in all the Northern States, old or new—Wisconsin furnishing the last example.12 It may, therefore, be reasonably concluded that the "war-cry" was employed by the artful to inflame the minds of the less informed and less discerning; that it was adopted in utter disregard of the means by which negro emancipation might have been peaceably accomplished in the Territories, and with the sole object of obtaining sectional control and personal promotion by means of popular agitation.
The success attending this artifice was remarkable. To such [pg 31] an extent was it made available, that Northern indignation was aroused on the absurd accusation that the South had destroyed "that sacred instrument, the compromise of 1820." The internecine war which raged in Kansas for several years was substituted for the promised peace under the operation of the natural laws regulating migration to new countries. For the fratricide which dyed the virgin soil of Kansas with the blood of those who should have stood shoulder to shoulder in subduing the wilderness; for the frauds which corrupted the ballot-box and made the name of election a misnomer—let the authors of "squatter sovereignty" and the fomenters of sectional hatred answer to the posterity for whose peace and happiness the fathers formed the Federal compact.
In these scenes of strife were trained the incendiaries who afterward invaded Virginia under the leadership of John Brown; and at this time germinated the sentiments which led men of high position to sustain, with their influence and their money, this murderous incursion into the South.13
Now was seen the lightning of that storm, the distant muttering of which had been heard so long, and against which the wise and the patriotic had given solemn warning, regarding it as the sign which portended a dissolution of the Union.
Diversity of interests and of opinions among the States of the Confederation had in the beginning presented great difficulties in the way of the formation of a more perfect union. The compact was the result of compromise between the States, at that time generally distinguished as navigating and agricultural, afterward as Northern and Southern. When the first census was taken, in 1790, there was but little numerical difference in the population of these two sections, and (including States about to be admitted) there was also an exact equality in the number of States. Each section had, therefore, the power of self-protection, and might feel secure against any danger of Federal aggression. If the disturbance of that equilibrium had been the consequence of natural causes, and the government of the whole had continued to be administered strictly for the general welfare, [pg 32] there would have been no ground for complaint of the result.
Under the old Confederation the Southern States had a large excess of territory. The acquisition of Louisiana, of Florida, and of Texas, afterward greatly increased this excess. The generosity and patriotism of Virginia led her, before the adoption of the Constitution, to cede the Northwest Territory to the United States. The "Missouri Compromise" surrendered to the North all the newly acquired region not included in the State of Missouri, and north of the parallel of thirty-six degrees and a half. The northern part of Texas was in like manner given up by the compromise of 1850; and the North, having obtained, by those successive cessions, a majority in both Houses of Congress, took to itself all the territory acquired from Mexico. Thus, by the action of the General Government, the means were provided permanently to destroy the original equilibrium between the sections.
Nor was this the only injury to which the South was subjected. Under the power of Congress to levy duties on imports, tariff laws were enacted, not merely "to pay the debts and provide for the common defense and general welfare of the United States," as authorized by the Constitution, but, positively and primarily, for the protection against foreign competition of domestic manufactures. The effect of this was to impose the main burden of taxation upon the Southern people, who were consumers and not manufacturers, not only by the enhanced price of imports, but indirectly by the consequent depreciation in the value of exports, which were chiefly the products of Southern States. The imposition of this grievance was unaccompanied by the consolation of knowing that the tax thus borne was to be paid into the public Treasury, for the increase of price accrued mainly to the benefit of the manufacturer. Nor was this all: a reference to the annual appropriations will show that the disbursements made were as unequal as the burdens borne—the inequality in both operating in the same direction.
These causes all combined to direct immigration to the Northern section; and with the increase of its preponderance appeared more and more distinctly a tendency in the Federal Government [pg 33] to pervert functions delegated to it, and to use them with sectional discrimination against the minority.
The resistance to the admission of Missouri as a State, in 1820, was evidently not owing to any moral or constitutional considerations, but merely to political motives; and the compensation exacted for granting what was simply a right, was the exclusion of the South from equality in the enjoyment of territory which justly belonged equally to both, and which was what the enemies of the South stigmatized as "slave territory," when acquired.
The sectional policy then indicated brought to its support the passions that spring from man's higher nature, but which, like all passions, if misdirected and perverted, become hurtful and, it may be, destructive. The year 1835 was marked by the public agitation for the abolition of that African servitude which existed in the South, which antedated the Union, and had existed in every one of the States that formed the Confederation. By a great misconception of the powers belonging to the General Government, and the responsibilities of citizens of the Northern States, many of those citizens were, little by little, brought to the conclusion that slavery was a sin for which they were answerable, and that it was the duty of the Federal Government to abate it. Though, at the date above referred to, numerically so weak, when compared with either of the political parties at the North, as to excite no apprehension of their power for evil, the public demonstrations of the Abolitionists were violently rebuked generally at the North. The party was contemned on account of the character of its leaders, and the more odious because chief among them was an Englishman, one Thompson, who was supposed to be an emissary, whose mission was to prepare the way for a dissolution of the Union. Let us hope that it was reverence for the obligations of the Constitution as the soul of the Union that suggested lurking danger, and rendered the supposed emissary for its destruction so odious that he was driven from a Massachusetts hall where he attempted to lecture. But bodies in motion will overcome bodies at rest, and the unreflecting too often are led by captivating names far from the principles they revere.
[pg 34]Thus, by the activity of the propagandists of abolitionism, and the misuse of the sacred word Liberty, they recruited from the ardent worshipers of that goddess such numbers as gave them in many Northern States the balance of power between the two great political forces that stood arrayed against each other; then and there they came to be courted by both of the great parties, especially by the Whigs, who had become the weaker party of the two. Fanaticism, to which is usually accorded sincerity as an extenuation of its mischievous tenets, affords the best excuse to be offered for the original abolitionists, but that can not be conceded to the political associates who joined them for the purpose of acquiring power; with them it was but hypocritical cant, intended to deceive. Hence arose the declaration of the existence of an "irrepressible conflict," because of the domestic institutions of sovereign, self-governing States—institutions over which neither the Federal Government nor the people outside of the limits of such States had any control, and for which they could have no moral or legal responsibility.
Those who are to come after us, and who will look without prejudice or excitement at the record of events which have occurred in our day, will not fail to wonder how men professing and proclaiming such a belief should have so far imposed upon the credulity of the world as to be able to arrogate to themselves the claim of being the special friends of a Union contracted in order to insure "domestic tranquillity" among the people of the States united; that they were the advocates of peace, of law, and of order, who, when taking an oath to support and maintain the Constitution, did so with a mental reservation to violate one of the provisions of that Constitution—one of the conditions of the compact—without which the Union could never have been formed. The tone of political morality which could make this possible was well indicated by the toleration accorded in the Senate to the flippant, inconsequential excuse for it given by one of its most eminent exemplars—"Is thy servant a dog, that he should do this thing?"—meaning thereby, not that it would be the part of a dog to violate his oath, but to keep it in the matter referred to. (See Appendix D.)
Footnote 12: (return)Extract from a speech of Mr. Davis, of Mississippi, in the Senate of the United States, May 17, 1860: "There is a relation belonging to this species of property, unlike that of the apprentice or the hired man, which awakens whatever there is of kindness or of nobility of soul in the heart of him who owns it; this can only be alienated, obscured, or destroyed, by collecting this species of property into such masses that the owner is not personally acquainted with the individuals who compose it. In the relation, however, which can exist in the Northwestern Territories, the mere domestic connection of one, two, or at most half a dozen servants in a family, associating with the children as they grow up, attending upon age as it declines, there can be nothing against which either philanthropy or humanity can make an appeal. Not even the emancipationist could raise his voice; for this is the high-road and the open gate to the condition in which the masters would, from interest, in a few years, desire the emancipation of every one who may thus be taken to the northwestern frontier."
Footnote 13: (return)[pg 35]See "Report of Senate Committee of Inquiry into the John Brown Raid."
Agitation continued.—Political Parties: their Origin, Changes, and Modifications.—Some Account of the "Popular Sovereignty," or "Non-Intervention," Theory.—Rupture of the Democratic Party.—The John Brown Raid.—Resolutions introduced by the Author into the Senate on the Relations of the States, the Federal Government, and the Territories; their Discussion and Adoption.
The strife in Kansas and the agitation of the territorial question in Congress and throughout the country continued during nearly the whole of Mr. Buchanan's Administration, finally culminating in a disruption of the Union. Meantime the changes, or modifications, which had occurred or were occurring in the great political parties, were such as may require a word of explanation to the reader not already familiar with their history.
The names adopted by political parties in the United States have not always been strictly significant of their principles. The old Federal party inclined to nationalism, or consolidation, rather than federalization, of the States. On the other hand, the party originally known as Republican, and afterward as Democratic, can scarcely claim to have been distinctively or exclusively such in the primary sense of these terms, inasmuch as no party has ever avowed opposition to the general principles of government by the people. The fundamental idea of the Democratic party was that of the sovereignty of the States and the federal, or confederate, character of the Union. Other elements have entered into its organization at different periods, but this has been the vital, cardinal, and abiding principle on which its existence has been perpetuated. The Whig, which succeeded the old Federal party, though by no means identical with it, was, in the main, favorable to a strong central government, therein antagonizing the transatlantic traditions connected with its name. The "Know-Nothing," or "American," party, which sprang into existence on the decadence of the Whig organization, based upon opposition to the alleged overgrowth of the political influence of naturalized foreigners and of the Roman Catholic Church, had but a brief duration, and after the Presidential election of 1856 declined as rapidly as it had arisen.
[pg 36]At the period to which this narrative has advanced, the "Free-Soil," which had now assumed the title of "Republican" party, had grown to a magnitude which threatened speedily to obtain entire control of the Government. Based, as has been shown, upon sectional rivalry and opposition to the growth of the Southern equally with the Northern States of the Union, it had absorbed within itself not only the abolitionists, who were avowedly agitating for the destruction of the system of negro servitude, but other diverse and heterogeneous elements of opposition to the Democratic party. In the Presidential election of 1856, their candidates (Fremont and Dayton) had received 114 of a total of 296 electoral votes, representing a popular vote of 1,341,264 in a total of 4,053,967. The elections of the ensuing year (1857) exhibited a diminution of the so-called "Republican" strength, and the Thirty-fifth Congress, which convened in December of that year, was decidedly Democratic in both branches. In the course of the next two years, however, the Kansas agitation and another cause, to be presently noticed, had so swollen the ranks of the so-called Republicans, that, in the House of Representatives of the Thirty-sixth Congress, which met in December, 1859, neither party had a decided majority, the balance of power being held by a few members still adhering to the virtually extinct Whig and "American," or Know-Nothing, organizations, and a still smaller number whose position was doubtful or irregular. More than eight weeks were spent in the election of a Speaker; and a so-called "Republican" (Mr. Pennington, of New Jersey) was finally elected by a majority of one vote. The Senate continued to be decidedly Democratic, though with an increase of the so-called "Republican" minority.
The cause above alluded to, as contributing to the rapid growth of the so-called Republican party after the elections of the year 1857, was the dissension among the Democrats, occasioned by the introduction of the doctrine called by its inventors and advocates "popular sovereignty," or "non-intervention," but more generally and more accurately known as "squatter sovereignty." Its character has already been concisely stated in the preceding chapter. Its origin is generally attributed to [pg 37] General Cass, who is supposed to have suggested it in some general expressions of his celebrated "Nicholson letter," written in December, 1847. On the 16th and 17th of May, 1860, it became necessary for me in a debate, in the Senate, to review that letter of Mr. Cass. From my remarks then made, the following extract is taken:
"The Senator [Mr. Douglas] might have remembered, if he had chosen to recollect so unimportant a thing, that I once had to explain to him, ten years ago, the fact that I repudiated the doctrine of that letter at the time it was published, and that the Democracy of Mississippi had well-nigh crucified me for the construction which I placed upon it. There were men mean enough to suspect that the construction I gave to the Nicholson letter was prompted by the confidence and affection I felt for General Taylor. At a subsequent period, however, Mr. Cass thoroughly reviewed it. He uttered (for him) very harsh language against all who had doubted the true construction of his letter, and he construed it just as I had done during the canvass of 1848. It remains only to add that I supported Mr. Cass, not because of the doctrine of the Nicholson letter, but in despite of it; because I believed a Democratic President, with a Democratic Cabinet and Democratic counselors in the two Houses of Congress, and he as honest a man as I believed Mr. Cass to be, would be a safer reliance than his opponent, who personally possessed my confidence as much as any man living, but who was of, and must draw his advisers from, a party the tenets of which I believed to be opposed to the interests of the country, as they were to all my political convictions.
"I little thought at that time that my advocacy of Mr. Cass upon such grounds as these, or his support by the State of which I am a citizen, would at any future day be quoted as an endorsement of the opinions contained in the Nicholson letter, as those opinions were afterward defined. But it is not only upon this letter, but equally upon the resolutions of the Convention as constructive of that letter, that the Senator rested his argument. [I will here say to the Senator that, if at any time I do him the least injustice, speaking as I do from such notes as I could take while he progressed, I will thank him to correct me.]
"But this letter entered into the canvass; there was a doubt about its construction: there were men who asserted that they [pg 38] had positive authority for saying that it meant that the people of a Territory could only exclude slavery when the Territory should form a Constitution and be admitted as a State. This doubt continued to hang over the construction, and it was that doubt alone which secured Mr. Cass the vote of Mississippi. If the true construction had been certainly known, he would have had no chance to get it."
Whatever meaning the generally discreet and conservative statesman, Mr. Cass, may have intended to convey, it is not at all probable that he foresaw the extent to which the suggestions would be carried and the consequences that would result from it.
In the organization of a government for California in 1850, the theory was more distinctly advanced, but it was not until after the passage of the Kansas-Nebraska Bill, in 1854, that it was fully developed under the plastic and constructive genius of the Hon. Stephen A. Douglas, of Illinois. The leading part which that distinguished Senator had borne in the authorship and advocacy of the Kansas-Nebraska Bill, which affirmed the right of the people of the Territories "to form and regulate their domestic institutions in their own way, subject only to the Constitution of the United States," had aroused against him a violent storm of denunciation in the State which he represented and other Northern States. He met it very manfully in some respects, defended his action resolutely, but in so doing was led to make such concessions of principle and to attach such an interpretation to the bill as would have rendered it practically nugatory—a thing to keep the promise of peace to the ear and break it to the hope.
The Constitution expressly confers upon Congress the power to admit new States into the Union, and also to "dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States." Under these grants of power, the uniform practice of the Government had been for Congress to lay off and divide the common territory by convenient boundaries for the formation of future States; to provide executive, legislative, and judicial departments of government for such Territories during their temporary and provisional [pg 39] period of pupilage; to delegate to these governments such authority as might be expedient—subject always to the supervision and controlling government of the Congress. Finally, at the proper time, and on the attainment by the Territory of sufficient strength and population for self-government, to receive it into the Union on a footing of entire equality with the original States—sovereign and self-governing. All this is no more inconsistent with the true principles of "popular sovereignty," properly understood, than the temporary subjection of a minor to parental control is inconsistent with the doctrines of the Declaration of Independence, or the exceptional discipline of a man-of-war or a military post with the principles of republican freedom.
The usual process of transition from a territorial condition to that of a State was, in the first place, by an act of Congress authorizing the inhabitants to elect representatives for a convention to form a State Constitution, which was then submitted to Congress for approval and ratification. On such ratification the supervisory control of Congress was withdrawn, and the new State authorized to assume its sovereignty, and the inhabitants of the Territory became citizens of a State. In the cases of Tennessee in 1796, and Arkansas and Michigan in 1836, the failure of the inhabitants to obtain an "enabling act" of Congress, before organizing themselves, very nearly caused the rejection of their applications for admission as States, though they were eventually granted on the ground that the subsequent approval and consent of Congress could heal the prior irregularity. The entire control of Congress over the whole subject of territorial government had never been questioned in earlier times. Necessarily conjoined with the power of this protectorate, was of course the duty of exercising it for the safety of the persons and property of all citizens of the United States, permanently or temporarily resident in any part of the domain belonging to the States in common.
Logically carried out, the new theory of "popular sovereignty" would apply to the first adventurous pioneers settling in the wilderness before the organization of any Territorial government by Congress, as well as afterward. If "sovereignty" is inherent [pg 40] in a thousand or five thousand persons, there can be no valid ground for denying its existence in a dozen, as soon as they pass beyond the limits of the State governments. The advocates of this novel doctrine, however, if rightly understood, generally disavowed any claim to its application prior to the organization of a territorial government.
The Territorial Legislatures, to which Congress delegated a portion of its power and duty to "make all needful rules and regulations respecting the Territory," were the mere agents of Congress, exercising an authority subject to Congressional supervision and control—an authority conferred only for the sake of convenience, and liable at any time to be revoked and annulled. Yet it is proposed to recognize in these provisional, subordinate, and temporary legislative bodies, a power not possessed by Congress itself. This is to claim that the creature is endowed with an authority not possessed by the creator, or that the stream has risen to an elevation above that of its source.
Furthermore, in contending for a power in the Territorial Legislatures permanently to determine the fundamental, social, and political institutions of the Territory, and thereby virtually to prescribe those of the future State, the advocates of "popular sovereignty" were investing those dependent and subsidiary bodies with powers far above any exercised by the Legislatures of the fully organized and sovereign States. The authority of the State Legislatures is limited, both by the Federal Constitution and by the respective State Constitutions from which it is derived. This latter limitation did not and could not exist in the Territories.
Strange as it may seem, a theory founded on fallacies so flimsy and leading to conclusions so paradoxical was advanced by eminent and experienced politicians, and accepted by many persons, both in the North and in the South—not so much, perhaps, from intelligent conviction as under the delusive hope that it would afford a satisfactory settlement of the "irrepressible conflict" which had been declared. The terms "popular sovereignty" and "non-intervention" were plausible, specious, and captivating to the public ear. Too many lost sight of the elementary truth that political sovereignty does not reside in unorganized [pg 41] or partially organized masses of individuals, but in the people of regularly and permanently constituted States. As to the "non-intervention" proposed, it meant merely the abnegation by Congress of its duty to protect the inhabitants of the Territories subject to its control.
The raid into Virginia under John Brown—already notorious as a fanatical partisan leader in the Kansas troubles—occurred in October, 1859, a few weeks before the meeting of the Thirty-sixth Congress. Insignificant in itself and in its immediate results, it afforded a startling revelation of the extent to which sectional hatred and political fanaticism had blinded the conscience of a class of persons in certain States of the Union; forming a party steadily growing stronger in numbers, as well as in activity. Sympathy with its purposes or methods was earnestly disclaimed by the representatives of all parties in Congress; but it was charged, on the other hand, that it was only the natural outgrowth of doctrines and sentiments which for some years had been freely avowed on the floors of both Houses. A committee of the Senate made a long and laborious investigation of the facts, with no very important or satisfactory results. In their final report, June 15, 1860, accompanying the evidence obtained and submitted, this Committee said:
[pg 42]"It [the incursion] was simply the act of lawless ruffians, under the sanction of no public or political authority, distinguishable only from ordinary felonies by the ulterior ends in contemplation by them, and by the fact that the money to maintain the expedition, and the large armament they brought with them, had been contributed and furnished by the citizens of other States of the Union under circumstances that must continue to jeopard the safety and peace of the Southern States, and against which Congress has no power to legislate.
"If the several States [adds the Committee], whether from motives of policy or a desire to preserve the peace of the Union, if not from fraternal feeling, do not hold it incumbent on them, after the experience of the country, to guard in future by appropriate legislation against occurrences similar to the one here inquired into, the Committee can find no guarantee elsewhere for the security of peace between the States of the Union."
On February 2, 1860, the author submitted, in the Senate of the United States, a series of resolutions, afterward slightly modified to read as follows
"1. Resolved, That, in the adoption of the Federal Constitution, the States, adopting the same, acted severally as free and independent sovereignties, delegating a portion of their powers to be exercised by the Federal Government for the increased security of each against dangers, domestic as well as foreign; and that any intermeddling by any one or more States, or by a combination of their citizens, with the domestic institutions of the others, on any pretext whatever, political, moral, or religious, with the view to their disturbance or subversion, is in violation of the Constitution, insulting to the States so interfered with, endangers their domestic peace and tranquillity—objects for which the Constitution was formed—and, by necessary consequence, tends to weaken and destroy the Union itself.
"2. Resolved, That negro slavery, as it exists in fifteen States of this Union, composes an important portion of their domestic institutions, inherited from our ancestors, and existing at the adoption of the Constitution, by which it is recognized as constituting an important element in the apportionment of powers among the States, and that no change of opinion or feeling on the part of the non-slaveholding States of the Union in relation to this institution can justify them or their citizens in open or covert attacks thereon, with a view to its overthrow; and that all such attacks are in manifest violation of the mutual and solemn pledge to protect and defend each other, given by the States respectively, on entering into the constitutional compact which formed the Union, and are a manifest breach of faith and a violation of the most solemn obligations.
"3. Resolved, That the Union of these States rests on the equality of rights and privileges among its members, and that it is especially the duty of the Senate, which represents the States in their sovereign capacity, to resist all attempts to discriminate either in relation to persons or property in the Territories, which are the common possessions of the United States, so as to give advantages to the citizens of one State which are not equally assured to those of every other State.
"4. Resolved, That neither Congress nor a Territorial Legislature, [pg 43] whether by direct legislation or legislation of an indirect and unfriendly character, possesses power to annul or impair the constitutional right of any citizen of the United States to take his slave property into the common Territories, and there hold and enjoy the same while the territorial condition remains.
"5. Resolved, That if experience should at any time prove that the judiciary and executive authority do not possess means to insure adequate protection to constitutional rights in a Territory, and if the Territorial government shall fail or refuse to provide the necessary remedies for that purpose, it will be the duty of Congress to supply such deficiency.14
"6. Resolved, That the inhabitants of a Territory of the United States, when they rightfully form a Constitution to be admitted as a State into the Union, may then, for the first time, like the people of a State when forming a new Constitution, decide for themselves whether slavery, as a domestic institution, shall be maintained or prohibited within their jurisdiction; and they shall be received into the Union with or without slavery, as their Constitution may prescribe at the time of their admission.
"7. Resolved, That the provision of the Constitution for the rendition of fugitives from service or labor, 'without the adoption of which the Union could not have been formed,' and that the laws of 1793 and 1850, which were enacted to secure its execution, and the main features of which, being similar, bear the impress of nearly seventy years of sanction by the highest judicial authority, should be honestly and faithfully observed and maintained by all who enjoy the benefits of our compact of union; and that all acts of individuals or of State Legislatures to defeat the purpose or nullify the requirements of that provision, and the laws made in pursuance of it, are hostile in character, subversive of the Constitution, and revolutionary in their effect."15
After a protracted and earnest debate, these resolutions were adopted seriatim, on the 24th and 25th of May, by a decided majority of the Senate (varying from thirty-three to thirty-six [pg 44] yeas against from two to twenty-one nays), the Democrats, both Northern and Southern, sustaining them unitedly, with the exception of one adverse vote (that of Mr. Pugh, of Ohio) on the fourth and sixth resolutions. The Republicans all voted against them or refrained from voting at all, except that Mr. Teneyck, of New Jersey, voted for the fifth and seventh of the series. Mr. Douglas, the leader if not the author of "popular sovereignty," was absent on account of illness, and there were a few other absentees.
The conclusion of a speech, in reply to Mr. Douglas, a few days before the vote was taken on these resolutions, is introduced here as the best evidence of the position of the author at that period of excitement and agitation:
Conclusion of Reply to Mr. Douglas, May 17, 1860.
"Mr. President: I briefly and reluctantly referred, because the subject had been introduced, to the attitude of Mississippi on a former occasion. I will now as briefly say that in 1851, and in 1860, Mississippi was, and is, ready to make every concession which it becomes her to make to the welfare and the safety of the Union. If, on a former occasion, she hoped too much from fraternity, the responsibility for her disappointment rests upon those who failed to fulfill her expectations. She still clings to the Government as our fathers formed it. She is ready to-day and to-morrow, as in her past and though brief yet brilliant history, to maintain that Government in all its power, and to vindicate its honor with all the means she possesses. I say brilliant history; for it was in the very morning of her existence that her sons, on the plains of New Orleans, were announced, in general orders, to have been the admiration of one army and the wonder of the other. That we had a division in relation to the measures enacted in 1850, is true; that the Southern rights men became the minority in the election which resulted, is true; but no figure of speech could warrant the Senator in speaking of them as subdued—as coming to him or anybody else for quarter. I deemed it offensive when it was uttered, and the scorn with which I repelled it at the instant, time has only softened to contempt. Our flag was never borne from the field. We had carried it in the face of defeat, with a knowledge that defeat awaited it; but scarcely had the smoke of the battle passed [pg 45] away which proclaimed another victor, before the general voice admitted that the field again was ours. I have not seen a sagacious, reflecting man, who was cognizant of the events as they transpired at the time, who does not say that, within two weeks after the election, our party was in a majority; and the next election which occurred showed that we possessed the State beyond controversy. How we have wielded that power it is not for me to say. I trust others may see forbearance in our conduct—that, with a determination to insist upon our constitutional rights, then and now, there is an unwavering desire to maintain the Government, and to uphold the Democratic party.
"We believe now, as we have asserted on former occasions, that the best hope for the perpetuity of our institutions depends upon the coöperation, the harmony, the zealous action, of the Democratic party. We cling to that party from conviction that its principles and its aims are those of truth and the country, as we cling to the Union for the fulfillment of the purposes for which it was formed. Whenever we shall be taught that the Democratic party is recreant to its principles; whenever we shall learn that it can not be relied upon to maintain the great measures which constitute its vitality—I for one shall be ready to leave it. And so, when we declare our tenacious adherence to the Union, it is the Union of the Constitution. If the compact between the States is to be trampled into the dust; if anarchy is to be substituted for the usurpation and consolidation which threatened the Government at an earlier period; if the Union is to become powerless for the purposes for which it was established, and we are vainly to appeal to it for protection—then, sir, conscious of the rectitude of our course, the justice of our cause, self-reliant, yet humbly, confidingly trusting in the arm that guided and protected our fathers, we look beyond the confines of the Union for the maintenance of our rights. An habitual reverence and cherished affection for the Government will bind us to it longer than our interests would suggest or require; but he is a poor student of the world's history who does not understand that communities at last must yield to the dictates of their interests. That the affection, the mutual desire for the mutual good, which existed among our fathers, may be weakened in succeeding generations by the denial of right, and hostile demonstration, until the equality guaranteed but not secured within the Union may be sought for without it, must be evident to even a [pg 46] careless observer of our race. It is time to be up and doing. There is yet time to remove the causes of dissension and alienation which are now distracting, and have for years past divided, the country.
"If the Senator correctly described me as having at a former period, against my own preferences and opinions, acquiesced in the decision of my party; if, when I had youth, when physical vigor gave promise of many days, and the future was painted in the colors of hope, I could thus surrender my own convictions, my own prejudices, and coöperate with my political friends according to their views of the best method of promoting the public good—now, when the years of my future can not be many, and experience has sobered the hopeful tints of youth's gilding; when, approaching the evening of life, the shadows are reversed, and the mind turns retrospectively, it is not to be supposed that I would abandon lightly, or idly put on trial, the party to which I have steadily adhered. It is rather to be assumed that conservatism, which belongs to the timidity or caution of increasing years, would lead me to cling to, to be supported by, rather than to cast off, the organization with which I have been so long connected. If I am driven to consider the necessity of separating myself from those old and dear relations, of discarding the accustomed support, under circumstances such as I have described, might not my friends who differ from me pause and inquire whether there is not something involved in it which calls for their careful revision?
"I desire no divided flag for the Democratic party.
"Our principles are national; they belong to every State of the Union; and, though elections may be lost by their assertion, they constitute the only foundation on which we can maintain power, on which we can again rise to the dignity the Democracy once possessed. Does not the Senator from Illinois see in the sectional character of the vote be received,16 that his opinions are not acceptable to every portion of the country? Is not the fact that the resolutions adopted by seventeen States, on which the greatest reliance must be placed for Democratic support, are in opposition to the dogma to which he still clings, a warning that, if he persists and succeeds in forcing his theory upon the Democratic party, its days are numbered? We ask only for the Constitution. We [pg 47] ask of the Democracy only from time to time to declare, as current exigencies may indicate, what the Constitution was intended to secure and provide. Our flag bears no new device. Upon its folds our principles are written in living light; all proclaiming the constitutional Union, justice, equality, and fraternity of our ocean-bound domain, for a limitless future."
Footnote 14: (return)The words, "within the limits of its constitutional powers," were subsequently added to this resolution, on the suggestion of Mr. Toombs, of Georgia, with the approval of the mover.
Footnote 15: (return)The speech of the author, delivered on the 7th of May ensuing, in exposition of these resolutions, will be found in Appendix F.
Footnote 16: (return)In the Democratic Convention, which had been recently held in Charleston. (See the ensuing chapter.)
A Retrospect.—Growth of Sectional Rivalry.—The Generosity of Virginia.—Unequal Accessions of Territory.—The Tariff and its Effects.—The Republican Convention of 1860, its Resolutions and its Nominations.—The Democratic Convention at Charleston, its Divisions and Disruption.—The Nominations at Baltimore.—The "Constitutional-Union" Party and its Nominees.—An Effort in Behalf of Agreement declined by Mr. Douglas.—The Election of Lincoln and Hamlin.—Proceedings in the South.—Evidences of Calmness and Deliberation.—Mr. Buchanan's Conservatism and the weakness of his Position.—Republican Taunts.—The "New York Tribune," etc.
When, at the close of the war of the Revolution, each of the thirteen colonies that had been engaged in that contest was severally acknowledged by the mother-country, Great Britain, to be a free and independent State, the confederation of those States embraced an area so extensive, with climate and products so various, that rivalries and conflicts of interest soon began to be manifested. It required all the power of wisdom and patriotism, animated by the affection engendered by common sufferings and dangers, to keep these rivalries under restraint, and to effect those compromises which it was fondly hoped would insure the harmony and mutual good offices of each for the benefit of all. It was in this spirit of patriotism and confidence in the continuance of such abiding good will as would for all time preclude hostile aggression, that Virginia ceded, for the use of the confederated States, all that vast extent of territory lying north of the Ohio River, out of which have since been formed five States and part of a sixth. The addition of these States has accrued entirely to the preponderance of the Northern section over that from which the donation proceeded, and to the [pg 48] disturbance of that equilibrium which existed at the close of the war of the Revolution.
It may not be out of place here to refer to the fact that the grievances which led to that war were directly inflicted upon the Northern colonies. Those of the South had no material cause of complaint; but, actuated by sympathy for their Northern brethren, and a devotion to the principles of civil liberty and community independence, which they had inherited from their Anglo-Saxon ancestry, and which were set forth in the Declaration of Independence, they made common cause with their neighbors, and may, at least, claim to have done their full share in the war that ensued.
By the exclusion of the South, in 1820, from all that part of the Louisiana purchase lying north of the parallel of thirty-six degrees thirty minutes, and not included in the State of Missouri, by the extension of that line of exclusion to embrace the territory acquired from Texas; and by the appropriation of all the territory obtained from Mexico under the Treaty of Guadalupe Hidalgo, both north and south of that line, it may be stated with approximate accuracy that the North had monopolized to herself more than three fourths of all that had been added to the domain of the United States since the Declaration of Independence. This inequality, which began, as has been shown, in the more generous than wise confidence of the South, was employed to obtain for the North the lion's share of what was afterward added at the cost of the public treasure and the blood of patriots. I do not care to estimate the relative proportion contributed by each of the two sections.
Nor was this the only cause that operated to disappoint the reasonable hopes and to blight the fair prospects under which the original compact was formed. The effects of discriminating duties upon imports have been referred to in a former chapter—favoring the manufacturing region, which was the North; burdening the exporting region, which was the South; and so imposing upon the latter a double tax: one, by the increased price of articles of consumption, which, so far as they were of home production, went into the pockets of the manufacturer; the other, by the diminished value of articles of export, which was [pg 49] so much withheld from the pockets of the agriculturist. In like manner the power of the majority section was employed to appropriate to itself an unequal share of the public disbursements. These combined causes—the possession of more territory, more money, and a wider field for the employment of special labor—all served to attract immigration; and, with increasing population, the greed grew by what it fed on.
This became distinctly manifest when the so-called "Republican" Convention assembled in Chicago, on May 16, 1860, to nominate a candidate for the Presidency. It was a purely sectional body. There were a few delegates present, representing an insignificant minority in the "border States," Delaware, Maryland, Virginia, Kentucky, and Missouri; but not one from any State south of the celebrated political line of thirty-six degrees thirty minutes. It had been the invariable usage with nominating conventions of all parties to select candidates for the Presidency and Vice-Presidency, one from the North and the other from the South; but this assemblage nominated Mr. Lincoln, of Illinois, for the first office, and for the second, Mr. Hamlin, of Maine—both Northerners. Mr. Lincoln, its nominee for the Presidency, had publicly announced that the Union "could not permanently endure, half slave and half free." The resolutions adopted contained some carefully worded declarations, well adapted to deceive the credulous who were opposed to hostile aggressions upon the rights of the States. In order to accomplish this purpose, they were compelled to create a fictitious issue, in denouncing what they described as "the new dogma that the Constitution, of its own force, carries slavery into any or all of the Territories of the United States"—a "dogma" which had never been held or declared by anybody, and which had no existence outside of their own assertion. There was enough in connection with the nomination to assure the most fanatical foes of the Constitution that their ideas would be the rule and guide of the party.
Meantime, the Democratic party had held a convention, composed as usual of delegates from all the States. They met in Charleston, South Carolina, on April 23d, but an unfortunate disagreement with regard to the declaration of principles to be [pg 50] set forth rendered a nomination impracticable. Both divisions of the Convention adjourned, and met again in Baltimore in June. Then, having finally failed to come to an agreement, they separated and made their respective nominations apart. Mr. Douglas, of Illinois, was nominated by the friends of the doctrine of "popular sovereignty," with Mr. Fitzpatrick, of Alabama, for the Vice-Presidency. Both these gentlemen at that time were Senators from their respective States. Mr. Fitzpatrick promptly declined the nomination, and his place was filled with the name of Mr. Herschel V. Johnson, a distinguished citizen of Georgia.
The Convention representing the conservative, or State-Rights, wing of the Democratic-party (the President of which was the Hon. Caleb Cushing, of Massachusetts), on the first ballot, unanimously made choice of John C. Breckinridge, of Kentucky, then Vice-President of the United States, for the first office, and with like unanimity selected General Joseph Lane, then a Senator from Oregon, for the second. The resolutions of each of these two conventions denounced the action and policy of the Abolition party, as subversive of the Constitution, and revolutionary in their tendency.
Another convention was held in Baltimore about the same period17 by those who still adhered to the old Whig party, reënforced by the remains of the "American" organization, and perhaps some others. This Convention also consisted of delegates from all the States, and, repudiating all geographical and sectional issues, and declaring it to be "both the part of patriotism and of duty to recognize no political principle other than the Constitution of the country, the Union of the States, and the enforcement of the laws," pledged itself and its supporters "to maintain, protect, and defend, separately and unitedly, those great principles of public liberty and national safety against all enemies at home and abroad." Its nominees were Messrs. John Bell, of Tennessee, and Edward Everett, of Massachusetts, both of whom had long been distinguished members of the Whig party.
The people of the United States now had four rival tickets [pg 51] presented to them by as many contending parties, whose respective position and principles on the great and absorbing question at issue may be briefly recapitulated as follows:
1. The "Constitutional-Union" Party, as it was now termed, led by Messrs. Bell and Everett, which ignored the territorial controversy altogether, and contented itself, as above stated, with a simple declaration of adherence to "the Constitution, the Union, and the enforcement of the laws."
2. The party of "popular sovereignty," headed by Douglas and Johnson, who affirmed the right of the people of the Territories, in their territorial condition, to determine their own organic institutions, independently of the control of Congress; denying the power or duty of Congress to protect the persons or property of individuals or minorities in such Territories against the action of majorities.
3. The State-Rights party, supporting Breckinridge and Lane, who held that the Territories were open to citizens of all the States, with their property, without any inequality or discrimination, and that it was the duty of the General Government to protect both persons and property from aggression in the Territories subject to its control. At the same time they admitted and asserted the right of the people of a Territory, on emerging from their territorial condition to that of a State, to determine what should then be their domestic institutions, as well as all other questions of personal or proprietary right, without interference by Congress, and subject only to the limitations and restrictions prescribed by the Constitution of the United States.
4. The so-called "Republicans," presenting the names of Lincoln and Hamlin, who held, in the language of one of their leaders,18 that "slavery can exist only by virtue of municipal law"; that there was "no law for it in the Territories, and no power to enact one"; and that Congress was "bound to prohibit it in or exclude it from any and every Federal Territory." In other words, they asserted the right and duty of Congress to exclude the citizens of half the States of the Union from the territory belonging in common to all, unless on condition of the [pg 52] sacrifice or abandonment of their property recognized by the Constitution—indeed, of the only species of their property distinctly and specifically recognized as such by that instrument.
On the vital question underlying the whole controversy—that is, whether the Federal Government should be a Government of the whole for the benefit of all its equal members, or (if it should continue to exist at all) a sectional Government for the benefit of a part—the first three of the parties above described were in substantial accord as against the fourth. If they could or would have acted unitedly, they, could certainly have carried the election, and averted the catastrophe which followed. Nor were efforts wanting to effect such a union.
Mr. Bell, the Whig candidate, was a highly respectable and experienced statesman, who had filled many important offices, both State and Federal. He was not ambitious to the extent of coveting the Presidency, and he was profoundly impressed by the danger which threatened the country. Mr. Breckinridge had not anticipated, and it may safely be said did not eagerly desire, the nomination. He was young enough to wait, and patriotic enough to be willing to do so, if the weal of the country required it. Thus much I may confidently assert of both those gentlemen; for each of them authorized me to say that he was willing to withdraw, if an arrangement could be effected by which the divided forces of the friends of the Constitution could be concentrated upon some one more generally acceptable than either of the three who had been presented to the country. When I made this announcement to Mr. Douglas—with whom my relations had always been such as to authorize the assurance that he could not consider it as made in an unfriendly spirit—he replied that the scheme proposed was impracticable, because his friends, mainly Northern Democrats, if he were withdrawn, would join in the support of Mr. Lincoln, rather than of any one that should supplant him (Douglas); that he was in the hands of his friends, and was sure they would not accept the proposition.
It needed but little knowledge of the status of parties in the several States to foresee a probable defeat if the conservatives were to continue divided into three parts, and the aggressives [pg 53] were to be held in solid column. But angry passions, which are always bad counselors, had been aroused, and hopes were still cherished, which proved to be illusory. The result was the election, by a minority, of a President whose avowed principles were necessarily fatal to the harmony of the Union.
Of 303 electoral votes, Mr. Lincoln received 180, but of the popular suffrage of 4,676,853 votes, which the electors represented, he obtained only 1,866,352—something over a third of the votes. This discrepancy was owing to the system of voting by "general ticket"—that is, casting the State votes as a unit, whether unanimous or nearly equally divided. Thus, in New York, the total popular vote was 675,156, of which 362,646 were cast for the so-called Republican (or Lincoln) electors, and 312,510 against them. Now York was entitled to 35 electoral votes. Divided on the basis of the popular vote, 19 of these would have been cast for Mr. Lincoln, and 16 against him. But under the "general ticket" system the entire 35 votes were cast for the Republican candidates, thus giving them not only the full strength of the majority in their favor, but that of the great minority against them superadded. So of other Northern States, in which the small majorities on one side operated with the weight of entire unanimity, while the virtual unanimity in the Southern States, on the other side, counted nothing more than a mere majority would have done.
The manifestations which followed this result, in the Southern States, did not proceed, as has been unjustly charged, from chagrin at their defeat in the election, or from any personal hostility to the President-elect, but from the fact that they recognized in him the representative of a party professing principles destructive to "their peace, their prosperity, and their domestic tranquillity." The long-suppressed fire burst into frequent flame, but it was still controlled by that love of the Union which the South had illustrated in every battle-field, from Boston to New Orleans. Still it was hoped, against hope, that some adjustment might be made to avert the calamities of a practical application of the theory of an "irrepressible conflict." Few, if any, then doubted the right of a State to withdraw its grants delegated to the Federal Government, or, in other words, to secede from the [pg 54] Union; but in the South this was generally regarded as the remedy of last resort, to be applied only when ruin or dishonor was the alternative. No rash or revolutionary action was taken by the Southern States, but the measures adopted were considerate, and executed advisedly and deliberately. The Presidential election occurred (as far as the popular vote, which determined the result, was concerned) in November, 1860. Most of the State Legislatures convened soon afterward in regular session. In some cases special sessions were convoked for the purpose of calling State Conventions—the recognized representatives of the sovereign will of the people—to be elected expressly for the purpose of taking such action as should be considered needful and proper under the existing circumstances.
These conventions, as it was always held and understood, possessed all the power of the people assembled in mass; and therefore it was conceded that they, and they only, could take action for the withdrawal of a State from the Union. The consent of the respective States to the formation of the Union had been given through such conventions, and it was only by the same authority that it could properly be revoked. The time required for this deliberate and formal process precludes the idea of hasty or passionate action, and none who admit the primary power of the people to govern themselves can consistently deny its validity and binding obligation upon every citizen of the several States. Not only was there ample time for calm consideration among the people of the South, but for due reflection by the General Government and the people of the Northern States.
President Buchanan was in the last year of his administration. His freedom from sectional asperity, his long life in the public service, and his peace-loving and conciliatory character, were all guarantees against his precipitating a conflict between the Federal Government and any of the States; but the feeble power that he possessed in the closing months of his term to mold the policy of the future was painfully evident. Like all who had intelligently and impartially studied the history of the formation of the Constitution, he held that the Federal Government had no rightful power to coerce a State. Like the sages [pg 55] and patriots who had preceded him in the high office that he filled, he believed that "our Union rests upon public opinion, and can never by cemented by the blood of its citizens shed in civil war. If it can not live in the affections of the people, it must one day perish. Congress may possess many means of preserving it by conciliation, but the sword was not placed in their hand to preserve it by force."—(Message of December 3, 1860.)
Ten years before, Mr. Calhoun addressing the Senate with all the earnestness of his nature and with that sincere desire to avert the danger of disunion which those who knew him best never doubted, had asked the emphatic question, "How can the Union be saved?" He answered his question thus:
"There is but one way by which it can be [saved] with any certainty; and that is by a full and final settlement, on the principles of justice, of all the questions at issue between the sections. The South asks for justice—simple justice—and less she ought not to take. She has no compromise to offer but the Constitution, and no concession or surrender to make....
"Can this be done? Yes, easily! Not by the weaker party; for it can of itself do nothing—not even protect itself—but by the stronger.... But will the North agree to do this? It is for her to answer this question. But, I will say, she can not refuse if she has half the love of the Union which she professes to have, nor without exposing herself to the charge that her love of power and aggrandizement is far greater than her love of the Union."
During the ten years that intervened between the date of this speech and the message of Mr. Buchanan cited above, the progress of sectional discord and the tendency of the stronger section to unconstitutional aggression had been fearfully rapid. With very rare exceptions, there were none in 1850 who claimed the right of the Federal Government to apply coercion to a State. In 1860 men had grown to be familiar with threats of driving the South into submission to any act that the Government, in the hands of a Northern majority, might see fit to perform. During the canvass of that year, demonstrations had been made by quasi-military organizations in various parts of the North, [pg 56] which looked unmistakably to purposes widely different from those enunciated in the preamble to the Constitution, and to the employment of means not authorized by the powers which the States had delegated to the Federal Government.
Well-informed men still remembered that, in the Convention which framed the Constitution, a proposition was made to authorize the employment of force against a delinquent State, on which Mr. Madison remarked that "the use of force against a State would look more like a declaration of war than an infliction of punishment, and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might have been bound." The Convention expressly refused to confer the power proposed, and the clause was lost. While, therefore, in 1860, many violent men, appealing to passion and the lust of power, were inciting the multitude, and preparing Northern opinion to support a war waged against the Southern States in the event of their secession, there were others who took a different view of the case. Notable among such was the "New York Tribune," which had been the organ of the abolitionists, and which now declared that, "if the cotton States wished to withdraw from the Union, they should be allowed to do so"; that "any attempt to compel them to remain, by force, would be contrary to the principles of the Declaration of Independence and to the fundamental ideas upon which human liberty is based"; and that, "if the Declaration of Independence justified the secession from the British Empire of three millions of subjects in 1776, it was not seen why it would not justify the secession of five millions of Southerners from the Union in 1861." Again, it was said by the same journal that, "sooner than compromise with the South and abandon the Chicago platform," they would "let the Union slide." Taunting expressions were freely used—as, for example, "If the Southern people wish to leave the Union, we will do our best to forward their views."
All this, it must be admitted, was quite consistent with the oft-repeated declaration that the Constitution was a "covenant with hell," which stood as the caption of a leading abolitionist paper of Boston. That signs of coming danger so visible, evidences [pg 57] of hostility so unmistakable, disregard of constitutional obligations so wanton, taunts and jeers so bitter and insulting, should serve to increase excitement in the South, was a consequence flowing as much from reason and patriotism as from sentiment. He must have been ignorant of human nature who did not expect such a tree to bear fruits of discord and division.
Footnote 17: (return)May 19, 1860.
Footnote 18: (return)Horace Greeley, "The American Conflict," vol. i, p. 322.
Conference with the Governor of Mississippi.—The Author censured as "too slow."—Summons to Washington.—Interview with the President.—His Message.—Movements in Congress.—The Triumphant Majority.—The Crittenden Proposition.—Speech of the Author on Mr. Green's Resolution.—The Committee of Thirteen.—Failure to agree.—The "Republicans" responsible for the Failure.—Proceedings in the House of Representatives.—Futility of Efforts for an Adjustment.—The Old Year closes in Clouds.
In November, 1860, after the result of the Presidential election was known, the Governor of Mississippi, having issued his proclamation convoking a special session of the Legislature to consider the propriety of calling a convention, invited the Senators and Representatives of the State in Congress, to meet him for consultation as to the character of the message he should send to the Legislature when assembled.
While holding, in common with my political associates, that the right of a State to secede was unquestionable, I differed from most of them as to the probability of our being permitted peaceably to exercise the right. The knowledge acquired by the administration of the War Department for four years, and by the chairmanship of the Military Committee of the Senate at two different periods, still longer in combined duration, had shown me the entire lack of preparation for war in the South. The foundries and armories were in the Northern States, and there were stored all the new and improved weapons of war. In the arsenals of the Southern States were to be found only arms of the old and rejected models. The South had no manufactories of powder, and no navy to protect our harbors, no merchant-ships [pg 58] for foreign commerce. It was evident to me, therefore, that, if we should be involved in war, the odds against us would be far greater than what was due merely to our inferiority in population. Believing that secession would be the precursor of war between the States, I was consequently slower and more reluctant than others, who entertained a different opinion, to resort to that remedy.
While engaged in the consultation with the Governor just referred to, a telegraphic message was handed to me from two members of Mr. Buchanan's Cabinet, urging me to proceed "immediately" to Washington. This dispatch was laid before the Governor and the members of Congress from the State who were in conference with him, and it was decided that I should comply with the summons. I was afterward informed that my associates considered me "too slow," and they were probably correct in the belief that I was behind the general opinion of the people of the State as to the propriety of prompt secession.19
[pg 59]On arrival at Washington, I found, as had been anticipated, that my presence there was desired on account of the influence which it was supposed I might exercise with the President (Mr. Buchanan) in relation to his forthcoming message to Congress. On paying my respects to the President, he told me that he had finished the rough draft of his message, but that it was still open to revision and amendment, and that he would like to read it to me. He did so, and very kindly accepted all the modifications which I suggested. The message was, however, afterward somewhat changed, and, with great deference to the wisdom and statesmanship of its author, I must say that, in my judgment, the last alterations were unfortunate—so much so that, when it was read in the Senate, I was reluctantly constrained to criticise it. Compared, however, with documents of the same class which have since been addressed to the Congress of the United States, the reader of Presidential messages must regret that it was not accepted by Mr. Buchanan's successors as a model, and that his views of the Constitution had not been adopted as a guide in the subsequent action of the Federal Government.
The popular movement in the South was tending steadily [pg 60] and rapidly toward the secession of those known as "planting States"; yet, when Congress assembled on December 3, 1860 the representatives of the people of all those States took their seats in the House, and they were all represented in the Senate, except South Carolina, whose Senators had tendered their resignation to the Governor immediately on the announcement of the result of the Presidential election. Hopes were still cherished that the Northern leaders would appreciate the impending peril, would cease to treat the warnings, so often given, as idle threats, would refrain from the bravado, so often and so unwisely indulged, of ability "to whip the South" in thirty, sixty, or ninety days, and would address themselves to the more manly purpose of devising means to allay the indignation, and quiet the apprehensions, whether well, founded or not, of their Southern brethren. But the debates of that session manifest, on the contrary, the arrogance of a triumphant party, and the determination to reap to the uttermost the full harvest of a party victory.
Mr. Crittenden, of Kentucky, the oldest and one of the most honored members of the Senate,20 introduced into that body a joint resolution proposing certain amendments to the Constitution—among them the restoration and incorporation into the Constitution of the geographical line of the Missouri Compromise, with other provisions, which it was hoped might be accepted as the basis for an adjustment of the difficulties rapidly hurrying the Union to disruption. But the earnest appeals of that venerable statesman were unheeded by Senators of the so-called Republican party. Action upon his proposition was postponed from time to time, on one pretext or another, until the last day of the session—when seven States had already withdrawn from the Union and established a confederation of their own—and it was then defeated by a majority of one vote.21
[pg 61]Meantime, among other propositions made in the Senate were two introduced early in the session, which it may be proper specially to mention. One of these was a resolution offered by Mr. Powell, of Kentucky, which, after some modification by amendment, when finally acted upon, had taken the following form:
"Resolved, That so much of the President's message as relates to the present agitated and distracted condition of the country, and the grievances between the slaveholding and the non-slave holding States, be referred to a special committee of thirteen members, and that said committee be instructed to inquire into the present condition of the country, and report by bill or otherwise."
The other was a resolution offered by Mr. Green, of Missouri, to the following effect:
"Resolved, That the Committee on the Judiciary be instructed to inquire into the propriety of providing by law for establishing an armed police force at all necessary points along the line separating the slaveholding States from the non-slaveholding States, for the purpose of maintaining the general peace between those States, of preventing the invasion of one State by citizens of another, and also for the efficient execution of the fugitive-slave laws."
In the discussion of these two resolutions I find, in the proceedings of the Senate on December 10th, as reported in the "Congressional Globe," some remarks of my own, the reproduction of which will serve to exhibit my position at that period—a position which has since been often misrepresented:
"Mr. President, if the political firmament seemed to me dark before, there has been little in the discussion this morning to cheer or illumine it. When the proposition of the Senator from Kentucky was presented—not very hopeful of a good result—I was yet willing to wait and see what developments it might produce. This morning, for the first time, it has been considered; and what of encouragement have we received? One Senator proposes, as a cure for the public evil impending over us, to invest the Federal [pg 62] Government with such physical power as properly belongs to monarchy alone; another announces that his constituents cling to the Federal Government, if its legislative favors and its Treasury secure the works of improvement and the facilities which they desire; while another rises to point out that the evils of the land are of a party character. Sir, we have fallen upon evil times indeed, if the great convulsion which now shakes the body-politic to its center is to be dealt with by such nostrums as these. Men must look more deeply, must rise to a higher altitude; like patriots they must confront the danger face to face, if they hope to relieve the evils which now disturb the peace of the land, and threaten the destruction of our political existence.
"First of all, we must inquire what is the cause of the evils which beset us? The diagnosis of the disease must be stated before we are prepared to prescribe. Is it the fault of our legislation here? If so, then it devolves upon us to correct it, and we have the power. Is it the defect of the Federal organization, of the fundamental law of our Union? I hold that it is not. Our fathers, learning wisdom from the experiments of Rome and of Greece—the one a consolidated republic, and the other strictly a confederacy—and taught by the lessons of our own experiment under the Confederation, came together to form a Constitution for 'a more perfect union,' and, in my judgment, made the best government which has ever been instituted by man. It only requires that it should be carried out in the spirit in which it was made, that the circumstances under which it was made should continue, and no evil can arise under this Government for which it has not an appropriate remedy. Then it is outside of the Government—elsewhere than to its Constitution or to its administration—that we are to look. Men must not creep in the dust of partisan strife and seek to make points against opponents as the means of evading or meeting the issues before us. The fault is not in the form of the Government, nor does the evil spring from the manner in which it has been administered. Where, then, is it? It is that our fathers formed a Government for a Union of friendly States; and though under it the people have been prosperous beyond comparison with any other whose career is recorded in the history of man, still that Union of friendly States has changed its character, and sectional hostility has been substituted for the fraternity in which the Government was founded.
[pg 63]"I do not intend here to enter into a statement of grievances; I do not intend here to renew that war of crimination which for years past has disturbed the country, and in which I have taken a part perhaps more zealous than useful; but I call upon all men who have in their hearts a love of the Union, and whose service is not merely that of the lip, to look the question calmly but fully in the face, that they may see the true cause of our danger, which, from my examination, I believe to be that a sectional hostility has been substituted for a general fraternity, and thus the Government rendered powerless for the ends for which it was instituted. The hearts of a portion of the people have been perverted by that hostility, so that the powers delegated by the compact of union are regarded not as means to secure the welfare of all, but as instruments for the destruction of a part—the minority section. How, then, have we to provide a remedy? By strengthening this Government? By instituting physical force to overawe the States, to coerce the people living under them as members of sovereign communities to pass under the yoke of the Federal Government? No, sir; I would have this Union severed into thirty-three fragments sooner than have that great evil befall constitutional liberty and representative government. Our Government is an agency of delegated and strictly limited powers. Its founders did not look to its preservation by force; but the chain they wove to bind these States together was one of love and mutual good offices. They had broken the fetters of despotic power; they had separated themselves from the mother-country upon the question of community independence; and their sons will be degenerate indeed if, clinging to the mere name and forms of free government, they forge and rivet upon their posterity the fetters which their ancestors broke....
"The remedy for these evils is to be found in the patriotism and the affection of the people, if it exists; and, if it does not exist, it is far better, instead of attempting to preserve a forced and therefore fruitless Union, that we should peacefully part and each pursue his separate course. It is not to this side of the Chamber that we should look for propositions; it is not here that we can ask for remedies. Complaints, with much amplitude of specification, have gone forth from the members on this side of the Chamber heretofore. It is not to be expected that they will be renewed, for the people have taken the subject into their own hands. States, [pg 64] in their sovereign capacity, have now resolved to judge of the infractions of the Federal compact, and of the mode and measure of redress. All we can usefully or properly do is to send to the people, thus preparing to act for themselves, evidence of error, if error there be; to transmit to them the proofs of kind feeling, if it actuates the Northern section, where they now believe there is only hostility. If we are mistaken as to your feelings and purposes, give a substantial proof, that here may begin that circle which hence may spread out and cover the whole land with proofs of fraternity, of a reaction in public sentiment, and the assurance of a future career in conformity with the principles and purposes of the Constitution. All else is idle. I would not give the parchment on which the bill would be written that is to secure our constitutional rights within the limits of a State, where the people are all opposed to the execution of that law. It is a truism in free governments that laws rest upon public opinion, and fall powerless before its determined opposition.
"The time has passed, sir, when appeals might profitably be made to sentiment. The time has come when men must of necessity reason, assemble facts, and deal with current events. I may be permitted in this to correct an error into which one of my friends fell this morning, when he impressed on us the great value of our Union as measured by the amount of time and money and blood which were spent to form this Union. It cost very little time, very little money, and no blood. It was one of the most peaceful transactions that mark the pages of human history. Our fathers fought the war of the Revolution to maintain the rights asserted in their Declaration of Independence."
Mr. Powell: "The Senator from Mississippi will allow me to say that I spoke of the Government, not of the Union. I said time and money and blood had been required to form the Government."
Mr. Davis: "The Government is the machinery established by the Constitution; it is the agency created by the States when they formed the Union. Our fathers, I was proceeding to say, having fought the war of the Revolution, and achieved their independence—each State for itself, each State standing out an integral part, each State separately recognized by the parent Government of Great Britain—these States as independent sovereignties entered into confederate alliance. After having tried the Confederation [pg 65] and found it to be a failure, they, of their own accord, came peacefully together, and in a brief period made a Constitution, which was referred to each State and voluntarily ratified by each State that entered the Union; little time, little money, and no blood being expended to form this Government, the machine for making the Union useful and beneficial. Blood, much and precious, was expended to vindicate and to establish community independence, and the great American idea that all governments rest on the consent of the governed, and that the people may at their will alter or abolish their government, however or by whomsoever instituted.
"But our existing Government is not the less sacred to me because it was not sealed with blood. I honor it the more because it was the free-will offering of men who chose to live together. It rooted in fraternity, and fraternity supported its trunk and all its branches. Every bud and leaflet depends entirely on the nurture it receives from fraternity as the root of the tree. When that is destroyed, the trunk decays, and the branches wither, and the leaves fall; and the shade it was designed to give has passed away for ever. I cling not merely to the name and form, but to the spirit and purpose of the Union which our fathers made. It was for domestic tranquillity; not to organize within one State lawless bands to commit raids upon another. It was to provide for the common defense; not to disband armies and navies, lest they should serve the protection of one section of the country better than another. It was to bring the forces of all the States together to achieve a common object, upholding each the other in amity, and united to repel exterior force. All the custom-house obstructions existing between the States were destroyed; the power to regulate commerce transferred to the General Government. Every barrier to the freest intercourse was swept away. Under the Confederation it had been secured as a right to each citizen to have free transit over all the other States; and under the Union it was designed to make this more perfect. Is it enjoyed? Is it not denied? Do we not have mere speculative question of what is property raised in defiance of the clear intent of the Constitution, offending as well against its letter as against its whole spirit? This must be reformed, or the Government our fathers instituted is destroyed. I say, then, shall we cling to the mere forms or idolize the name of Union, when its blessings are lost, after its [pg 66] spirit has fled? Who would keep a flower, which had lost its beauty and its fragrance, and in their stead had formed a seed-vessel containing the deadliest poison? Or, to drop the figure, who would consent to remain in alliance with States which used the power thus acquired to invade his tranquillity, to impair his defense, to destroy his peace and security? Any community would be stronger standing in an isolated position, and using its revenues to maintain its own physical force, than if allied with those who would thus war upon its prosperity and domestic peace; and reason, pride, self-interest, and the apprehension of secret, constant danger would impel to separation.
"I do not comprehend the policy of a Southern Senator who would seek to change the whole form of our Government, and substitute Federal force for State obligation and authority. Do we want a new Government that is to overthrow the old? Do we wish to erect a central Colossus, wielding at discretion the military arm, and exercising military force over the people and the States? This is not the Union to which we were invited; and so carefully was this guarded that, when our fathers provided for using force to put down insurrection, they required that the fact of the insurrection should be communicated by the authorities of the State before the President could interpose. When it was proposed to give to Congress power to execute the laws against a delinquent State, it was refused on the ground that that would be making war on the States; and, though I know the good purpose of my honorable friend from Missouri is only to give protection to constitutional rights, I fear his proposition is to rear a monster, which will break the feeble chain provided, and destroy rights it was intended to guard. That military Government which he is about to institute, by passing into hostile hands, becomes a weapon for his destruction, not for his protection. All dangers which we may be called upon to confront as independent communities are light, in my estimation, compared with that which would hang over us if this Federal Government had such physical force; if its character was changed from a representative agent of States to a central Government, with a military power to be used at discretion against the States. To-day it may be the idea that it will be used against some State which nullifies the Constitution and the laws; some State which passes laws to obstruct or repeal the laws of the United States; some State which, in derogation of our rights of transit [pg 67] under the Constitution, passes laws to punish a citizen found there with property recognized by the Constitution of the United States, but prohibited by the laws of that State.
"But how long might it be before that same military force would be turned against the minority section which had sought its protection; and that minority thus become mere subjugated provinces under the great military government that it had thus contributed to establish? The minority, incapable of aggression, is, of necessity, always on the defensive, and often the victim of the desertion of its followers and the faithlessness of its allies. It therefore must maintain, not destroy, barriers.
"I do not know that I fully appreciate the purpose of my friend from Missouri; whether, when he spoke of establishing military posts along the borders of the States, and arming the Federal Government with adequate physical power to enforce constitutional rights (I suppose he meant obligations), he meant to confer upon this Federal Government a power which it does not now possess to coerce a State. If he did, then, in the language of Mr. Madison, he is providing, not for a union of States, but for the destruction of States; he is providing, under the name of Union, to carry on a war against States; and I care not whether it be against Massachusetts or Missouri, it is equally objectionable to me; and I will resist it alike in the one case and in the other, as subversive of the great principle on which our Government rests; as a heresy to be confronted at its first presentation, and put down there, lest it grow into proportions which will render us powerless before it.
"The theory of our Constitution, Mr. President, is one of peace, of equality of sovereign States. It was made by States and made for States; and for greater assurance they passed an amendment, doing that which was necessarily implied by the nature of the instrument, as it was a mere instrument of grants. But, in the abundance of caution, they declared that everything which had not been delegated was reserved to the States, or to the people—that is, to the State governments as instituted by the people of each State, or to the people in their sovereign capacity.
"I need not, then, go on to argue from the history and nature of our Government that no power of coercion exists in it. It is enough for me to demand the clause of the Constitution which confers the power. If it is not there, the Government does not [pg 68] possess it. That is the plain construction of the Constitution—made plainer, if possible, by its amendment.
"This Union is dear to me as a Union of fraternal States. It would lose its value if I had to regard it as a Union held together by physical force. I would be happy to know that every State now felt that fraternity which made this Union possible; and, if that evidence could go out, if evidence satisfactory to the people of the South could be given that that feeling existed in the hearts of the Northern people, you might burn your statute-books and we would cling to the Union still. But it is because of their conviction that hostility, and not fraternity, now exists in the hearts of the people, that they are looking to their reserved rights and to their independent powers for their own protection. If there be any good, then, which we can do, it is by sending evidence to them of that which I fear does not exist—the purpose of your constituents to fulfill in the spirit of justice and fraternity all their constitutional obligations. If you can submit to them that evidence, I feel confidence that, with the assurance that aggression is henceforth to cease, will terminate all the measures for defense. Upon you of the majority section it depends to restore peace and perpetuate the Union of equal States; upon us of the minority section rests the duty to maintain our equality and community rights; and the means in one case or the other must be such as each can control."
The resolution of Mr. Powell was eventually adopted on the 18th of December, and on the 20th the Committee was appointed, consisting of Messrs. Powell and Crittenden, of Kentucky; Hunter, of Virginia; Toombs, of Georgia; Davis, of Mississippi; Douglas, of Illinois; Bigler, of Pennsylvania; Rice, of Minnesota; Collamer, of Vermont; Seward, of New York; Wade, of Ohio; Doolittle, of Wisconsin; and Grimes, of Iowa. The first five of the list, as here enumerated, were Southern men; the next three were Northern Democrats, or Conservatives; the last five, Northern "Republicans," so called.
The supposition was that any measure agreed upon by the representatives of the three principal divisions of public opinion would be approved by the Senate and afterward ratified by the House of Representatives. The Committee therefore determined [pg 69] that a majority of each of its three divisions should be required in order to the adoption of any proposition presented. The Southern members declared their readiness to accept any terms that would secure the honor of the Southern States and guarantee their future safety. The Northern Democrats and Mr. Crittenden generally coöperated with the State-Rights Democrats of the South; but the so-called "Republican" Senators of the North rejected every proposition which it was hoped might satisfy the Southern people, and check the progress of the secession movement. After fruitless efforts, continued for some ten days, the Committee determined to report the journal of their proceedings, and announce their inability to attain any satisfactory conclusion. This report was made on the 31st of December—the last day of that memorable and fateful year, 1860.
Subsequently, on the floor of the Senate, Mr. Douglas, who had been a member of the Committee, called upon the opposite side to state what they were willing to do. He referred to the fact that they had rejected every proposition that promised pacification; stated that Toombs, of Georgia, and Davis, of Mississippi, as members of the Committee, had been willing to renew the Missouri Compromise, as a measure of conciliation, but had met no responsive willingness on the part of their associates of the opposition; and he pressed the point that, as they had rejected every overture made by the friends of peace, it was now incumbent upon them to make a positive and affirmative declaration of their purposes.
Mr. Seward, of New York, as we have seen, was a member of that Committee—the man who, in 1858, had announced the "irrepressible conflict," and who, in the same year, speaking of and for abolitionism, had said: "It has driven you back in California and in Kansas; it will invade your soil." He was to be the Secretary of State in the incoming Administration, and was very generally regarded as the "power behind the throne," greater than the throne itself. He was present in the Senate, but made no response to Mr. Douglas's demand for a declaration of policy.
Meantime the efforts for an adjustment made in the House [pg 70] of Representatives had been equally fruitless. Conspicuous among these efforts had been the appointment of a committee of thirty-three members—one from each State of the Union—charged with a duty similar to that imposed upon the Committee of Thirteen in the Senate, but they had been alike unsuccessful in coming to any agreement. It is true that, a few days afterward, they submitted a majority and two minority reports, and that the report of the majority was ultimately adopted by the House; but, even if this action had been unanimous, and had been taken in due time, it would have been practically futile on account of its absolute failure to provide or suggest any solution of the territorial question, which was the vital point in controversy.
No wonder, then, that, under the shadow of the failure of every effort in Congress to find any common ground on which the sections could be restored to amity, the close of the year should have been darkened by a cloud in the firmament, which had lost even the silver lining so long seen, or thought to be seen, by the hopeful.
Footnote 19: (return)The following extract from a letter of the Hon. O. R. Singleton, then a Representative of Mississippi in the United States Congress, in regard to the subject treated, is herewith annexed:
"Canton, Mississippi, July 14, 1877.
"In 1860, about the time the ordinance of secession was passed by the South Carolina Convention, and while Mississippi, Alabama, and other Southern States were making active preparations to follow her example, a conference of the Mississippi delegation in Congress, Senators and Representatives, was asked for by Governor J. J. Pettus, for consultation as to the course Mississippi ought to take in the premises.
"The meeting took place in the fall of 1860, at Jackson, the capital; the whole delegation being present, with perhaps the exception of one Representative.
"The main question for consideration was: 'Shall Mississippi, as soon as her Convention can meet, pass an ordinance of secession, thus placing herself by the side of South Carolina, regardless of the action of other States; or shall she endeavor to hold South Carolina in check, and delay action herself, until other States can get ready, through their conventions, to unite with them, and then, on a given day and at a given hour, by concert of action, all the States willing to do so, secede in a body?'
"Upon the one side, it was argued that South Carolina could not be induced to delay action a single moment beyond the meeting of her Convention, and that our fate should be hers, and to delay action would be to have her crushed by the Federal Government; whereas, by the earliest action possible, we might be able to avert this calamity. On the other side, it was contended that delay might bring the Federal Government to consider the emergency of the case, and perhaps a compromise could be effected; but, if not, then the proposed concert of action would at least give dignity to the movement, and present an undivided Southern front.
"The debate lasted many hours, and Mr. Davis, with perhaps one other gentleman in that conference, opposed immediate and separate State action, declaring himself opposed to secession as long as the hope of a peaceable remedy remained. He did not believe we ought to precipitate the issue, as he felt certain from his knowledge of the people, North and South, that, once there was a clash of arms, the contest would be one of the most sanguinary the world had ever witnessed.
"A majority of the meeting decided that no delay should be interposed to separate State action, Mr. Davis being on the other side; but, after the vote was taken and the question decided, Mr. Davis declared he would stand by whatever action the Convention representing the sovereignty of the State of Mississippi might think proper to take.
"After the conference was ended, several of its members were dissatisfied with the course of Mr. Davis, believing that he was entirely opposed to secession, and was seeking to delay action upon the part of Mississippi, with the hope that it might be entirely averted.
"In some unimportant respects my memory may be at fault, and possibly some of the inferences drawn may be incorrect; but every material statement made, I am sure, is true, and if need, can be, easily substantiated by other persons.
"Very respectfully, your obedient servant,
(Signed) "O. R. Singleton.
Footnote 20: (return)Mr. Crittenden had been a life-long Whig. His first entrance into the Senate was in 1817, and he was a member of that body at various periods during the ensuing forty-four years. He was Attorney-General in the Whig Cabinets of both General Harrison and Mr. Fillmore, and supported the Bell and Everett ticket in 1860.
Footnote 21: (return)The vote was nineteen yeas to twenty nays; total, thirty-nine. As the consent of two thirds of each House is necessary to propose an amendment for action by the States, twenty-six of the votes cast in the Senate would have been necessary to sustain the proposition. It actually failed, therefore, by seven votes, instead of one.
Preparations for withdrawal from the Union.—Northern Precedents.—New England Secessionists.—Cabot, Pickering, Quincy, etc.—On the Acquisition of Louisiana.—The Hartford Convention.—The Massachusetts Legislature on the Annexation of Texas, etc., etc.
The Convention of South Carolina had already (on the 20th of December, 1860) unanimously adopted an ordinance revoking her delegated powers and withdrawing from the Union. Her representatives, on the following day, retired from their seats in Congress. The people of the other planting States had been only waiting in the lingering hope that some action might be taken by Congress to avert the necessity for action similar to that of South Carolina. In view of the failure of all overtures for conciliation during the first month of the session, they were now making their final preparations for secession. This was [pg 71] generally admitted to be an unquestionable right appertaining to their sovereignty as States, and the only peaceable remedy that remained for the evils already felt and the dangers apprehended.
In the prior history of the country, repeated instances are found of the assertion of this right, and of a purpose entertained at various times to put it in execution. Notably is this true of Massachusetts and other New England States. The acquisition of Louisiana, in 1803, had created much dissatisfaction in those States, for the reason, expressed by an eminent citizen of Massachusetts,22 that "the influence of our [the Northeastern] part of the Union must be diminished by the acquisition of more weight at the other extremity." The project of a separation was freely discussed, with no intimation, in the records of the period, of any idea among its advocates that it could be regarded as treasonable or revolutionary.
Colonel Timothy Pickering, who had been an officer of the war of the Revolution, afterward successively Postmaster-General, Secretary of War, and Secretary of State, in the Cabinet of General Washington, and, still later, long a representative of the State of Massachusetts in the Senate of the United States, was one of the leading secessionists of his day. Writing from Washington to a friend, on the 24th of December, 1803, he says:
"I will not yet despair. I will rather anticipate a new confederacy, exempt from the corrupt and corrupting influence and oppression of the aristocratic democrats of the South. There will be (and our children, at farthest, will see it) a separation. The white and black population will mark the boundary."23
In another letter, written a few weeks afterward (January 29, 1804), speaking of what he regarded as wrongs and abuses perpetrated by the then existing Administration, he thus expresses his views of the remedy to be applied:
[pg 72]"The principles of our Revolution point to the remedy—a separation. That this can be accomplished, and without spilling one drop of blood, I have little doubt....
"I do not believe in the practicability of a long-continued Union. A Northern Confederacy would unite congenial characters and present a fairer prospect of public happiness; while the Southern States, having a similarity of habits, might be left to 'manage their own affairs in their own way.' If a separation were to take place, our mutual wants would render a friendly and commercial intercourse inevitable. The Southern States would require the naval protection of the Northern Union, and the products of the former would be important to the navigation and commerce of the latter....
"It [the separation] must begin, in Massachusetts. The proposition would be welcomed in Connecticut; and could we doubt of New Hampshire? But New York must be associated; and how is her concurrence to be obtained? She must be made the center of the Confederacy. Vermont and New Jersey would follow of course, and Rhode Island of necessity."24
Substituting South Carolina for Massachusetts; Virginia for New York; Georgia, Mississippi, and Alabama, for New Hampshire, Vermont, and Rhode Island; Kentucky for New Jersey, etc., etc., we find the suggestions of 1860-'61 only a reproduction of those thus outlined nearly sixty years earlier.
Mr. Pickering seems to have had a correct and intelligent perception of the altogether pacific character of the secession which he proposed, and of the mutual advantages likely to accrue to both sections from a peaceable separation. Writing in February, 1804, he explicitly disavows the idea of hostile feeling or action toward the South, expressing himself as follows:
"While thus contemplating the only means of maintaining our ancient institutions in morals and religion, and our equal rights, we wish no ill to the Southern States and those naturally connected with them. The public debts might be equitably apportioned between the new confederacies, and a separation somewhere about the line above suggested would divide the different characters [pg 73] of the existing Union. The manners of the Eastern portion of the States would be sufficiently congenial to form a Union, and their interests are alike intimately connected with agriculture and commerce. A friendly and commercial intercourse would be maintained with the States in the Southern Confederacy as at present. Thus all the advantages which have been for a few years depending on the general Union would be continued to its respective portions, without the jealousies and enmities which now afflict both, and which peculiarly embitter the condition of that of the North. It is not unusual for two friends, when disagreeing about the mode of conducting a common concern, to separate and manage, each in his own way, his separate interest, and thereby preserve a useful friendship, which without such separation would infallibly be destroyed."25
Such were the views of an undoubted patriot who had participated in the formation of the Union, and who had long been confidentially associated with Washington in the administration of its Government, looking at the subject from a Northern standpoint, within fifteen years after the organization of that Government under the Constitution. Whether his reasons for advocating a dissolution of the Union were valid and sufficient, or not, is another question which it is not necessary to discuss. His authority is cited only as showing the opinion prevailing in the North at that day with regard to the right of secession from the Union, if deemed advisable by the ultimate and irreversible judgment of the people of a sovereign State.
In 1811, on the bill for the admission of Louisiana as a State of the Union, the Hon. Josiah Quincy, a member of Congress from Massachusetts, said
"If this bill passes, 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."
Mr. Poindexter, delegate from what was then the Mississippi Territory, took exception to these expressions of Mr. Quincy, [pg 74] and called him to order. The Speaker (Mr. Varnum, of Massachusetts) sustained Mr. Poindexter, and decided that the suggestion of a dissolution of the Union was out of order. An appeal was taken from this decision, and it was reversed. Mr. Quincy proceeded to vindicate the propriety of his position in a speech of some length, in the course of which he said:
"Is there a principle of public law better settled or more conformable to the plainest suggestions of reason than that the violation of a contract by one of the parties may be considered as exempting the other from its obligations? Suppose, in private life, thirteen form a partnership, and ten of them undertake to admit a new partner without the concurrence of the other three; would it not be at their option to abandon the partnership after so palpable an infringement of their rights? How much more in the political partnership, where the admission of new associates, without previous authority, is so pregnant with obvious dangers and evils!"
It is to be remembered that these men—Cabot, Pickering. Quincy, and others—whose opinions and expressions have been cited, were not Democrats, misled by extreme theories of State rights, but leaders and expositors of the highest type of "Federalism, and of a strong central Government." This fact gives their support of the right of secession the greater significance.
The celebrated Hartford Convention assembled in December, 1814. It consisted of delegates chosen by the Legislatures of Massachusetts, Rhode Island, and Connecticut, with an irregular or imperfect representation from the other two New England States, New Hampshire and Vermont,26 convened for the purpose of considering the grievances complained of by those States in connection with the war with Great Britain. They sat with closed doors, and the character of their deliberations and discussions has not been authentically disclosed. It was generally understood, however, that the chief subject of their considerations was the question of the withdrawal of the States they represented from the Union. The decision, as announced in their published report, was adverse to the expediency of such a measure [pg 75] at that time, and under the then existing conditions; but they proceeded to indicate the circumstances in which a dissolution of the Union might become expedient, and the mode in which it should be effected; and their theoretical plan of separation corresponds very nearly with that actually adopted by the Southern States nearly fifty years afterward. They say:
"If the Union be destined to dissolution by reason of the multiplied abuses of bad administration, it should, if possible, be the work of peaceable times and deliberate consent. Some new form of confederacy should be substituted among those States which shall intend to maintain a federal relation to each other. Events may prove that the causes of our calamities are deep and permanent. They may be found to proceed, not merely from the blindness of prejudice, pride of opinion, violence of party spirit, or the confusion of the times; but they may be traced to implacable combinations of individuals or of States to monopolize power and office, and to trample without remorse upon the rights and interests of commercial sections of the Union. Whenever it shall appear that the causes are radical and permanent, a separation by equitable arrangement will be preferable to an alliance by constraint among nominal friends, but real enemies."
The omission of the single word "commercial," which does not affect the principle involved, is the only modification necessary to adapt this extract exactly to the condition of the Southern States in 1860-'61.
The obloquy which has attached to the members of the Hartford Convention has resulted partly from a want of exact knowledge of their proceedings, partly from the secrecy by which they were veiled, but mainly because it was a recognized effort to paralyze the arm of the Federal Government while engaged in a war arising from outrages committed upon American seamen on the decks of American ships. The indignation felt was no doubt aggravated by the fact that those ships belonged in a great extent to the people who were now plotting against the war-measures of the Government, and indirectly, if not directly, giving aid and comfort to the public enemy. Time, which has mollified passion, and revealed many things not then known, [pg 76] has largely modified the first judgment passed on the proceedings and purposes of the Hartford Convention; and, but for the circumstances of existing war which surrounded it, they might have been viewed as political opinions merely, and have received justification instead of censure.
Again, in 1844-'45 the measures taken for the annexation of Texas evoked remonstrances, accompanied by threats of a dissolution of the Union from the Northeastern States. The Legislature of Massachusetts, in 1844, adopted a resolution, declaring, in behalf of that State, that "the Commonwealth of Massachusetts, faithful to the compact between the people of the United States, according to the plain meaning and intent in which it was understood by them, is sincerely anxious for its preservation; but that it is determined, as it doubts not the other States are, to submit to undelegated powers in no body of men on earth"; and that "the project of the annexation of Texas, unless arrested on the threshold, may tend to drive these States into a dissolution of the Union."
Early in the next year (February 11, 1845), the same Legislature adopted and communicated to Congress a series of resolutions on the same subject, in one of which it was declared that, "as the powers of legislation granted in the Constitution of the United States to Congress do not embrace a case of the admission of a foreign state or foreign territory, by legislation, into the Union, such an act of admission would have no binding force whatever on the people of Massachusetts"—language which must have meant that the admission of Texas would be a justifiable ground for secession, unless it was intended to announce the purpose of nullification.
It is evident, therefore, that the people of the South, in the crisis which confronted them in 1860, had no lack either of precept or of precedent for their instruction and guidance in the teaching and the example of our brethren of the North and East. The only practical difference was, that the North threatened and the South acted.
Footnote 22: (return)George Cabot, who had been United States Senator from Massachusetts for several years during the Administration of Washington.—(See "Life of Cabot," by Lodge, p. 334.)
Footnote 23: (return)See "Life of Cabot," p. 491; letter of Pickering to Higginson.
Footnote 24: (return)Pickering to Cabot, "Life of Cabot," pp. 338-340.
Footnote 25: (return)Letter to Theodore Lyman, "Life of Cabot," pp. 445, 446.
Footnote 26: (return)[pg 77]Maine was not then a State.
False Statements of the Grounds for Separation.—Slavery not the Cause, but an Incident.—The Southern People not "Propagandists" of Slavery.—Early Accord among the States with regard to African Servitude.—Statement of the Supreme Court.—Guarantees of the Constitution.—Disregard of Oaths.—Fugitives from Service and the "Personal Liberty Laws."—Equality in the Territories the Paramount Question.—The Dred Scott Case.—Disregard of the Decision of the Supreme Court.—Culmination of Wrongs.—Despair of their Redress.—Triumph of Sectionalism.
At the period to which this review of events has advanced, one State had already withdrawn from the Union. Seven or eight others were preparing to follow her example, and others yet were anxiously and doubtfully contemplating the probably impending necessity of taking the same action. The efforts of Southern men in Congress, aided by the coöperation of the Northern friends of the Constitution, had failed, by the stubborn refusal of a haughty majority, controlled by "radical" purposes, to yield anything to the spirit of peace and conciliation. This period, coinciding, as it happens, with the close of a calendar year, affords a convenient point to pause for a brief recapitulation of the causes which had led the Southern States into the attitude they then held, and for a more full exposition of the constitutional questions involved.
The reader of many of the treatises on these events, which have been put forth as historical, if dependent upon such alone for information, might naturally enough be led to the conclusion that the controversies which arose between the States, and the war in which they culminated, were caused by efforts on the one side to extend and perpetuate human slavery, and on the other to resist it and establish human liberty. The Southern States and Southern people have been sedulously represented as "propagandists" of slavery, and the Northern as the defenders and champions of universal freedom, and this view has been so arrogantly assumed, so dogmatically asserted, and so persistently reiterated, that its authors have, in many cases, perhaps, succeeded [pg 78] in bringing themselves to believe it, as well as in impressing it widely upon the world.
The attentive reader of the preceding chapters—especially if he has compared their statements with contemporaneous records and other original sources of information—will already have found evidence enough to enable him to discern the falsehood of these representations, and to perceive that, to whatever extent the question of slavery may have served as an occasion, it was far from being the cause of the conflict.
I have not attempted, and shall not permit myself to be drawn into any discussion of the merits or demerits of slavery as an ethical or even as a political question. It would be foreign to my purpose, irrelevant to my subject, and would only serve—as it has invariably served, in the hands of its agitators—to "darken counsel" and divert attention from the genuine issues involved.
As a mere historical fact, we have seen that African servitude among us—confessedly the mildest and most humane of all institutions to which the name "slavery" has ever been applied—existed in all the original States, and that it was recognized and protected in the fourth article of the Constitution. Subsequently, for climatic, industrial, and economical—not moral or sentimental—reasons, it was abolished in the Northern, while it continued to exist in the Southern States. Men differed in their views as to the abstract question of its right or wrong, but for two generations after the Revolution there was no geographical line of demarkation for such differences. The African slave-trade was carried on almost exclusively by New England merchants and Northern ships. Mr. Jefferson—a Southern man, the founder of the Democratic party, and the vindicator of State rights—was in theory a consistent enemy to every form of slavery. The Southern States took the lead in prohibiting the slave-trade, and, as we have seen, one of them (Georgia) was the first State to incorporate such a prohibition in her organic Constitution. Eleven years after the agitation on the Missouri question, when the subject first took a sectional shape, the abolition of slavery was proposed and earnestly debated in the Virginia Legislature, and its advocates were so near the accomplishment [pg 79] of their purpose, that a declaration in its favor was defeated only by a small majority, and that on the ground of expediency. At a still later period, abolitionist lecturers and teachers were mobbed, assaulted, and threatened with tar and feathers in New York, Pennsylvania, Massachusetts, New Hampshire, Connecticut, and other States. One of them (Lovejoy) was actually killed by a mob in Illinois as late as 1837.
These facts prove incontestably that the sectional hostility which exhibited itself in 1820, on the application of Missouri for admission into the Union, which again broke out on the proposition for the annexation of Texas in 1844, and which reappeared after the Mexican war, never again to be suppressed until its fell results had been fully accomplished, was not the consequence of any difference on the abstract question of slavery. It was the offspring of sectional rivalry and political ambition. It would have manifested itself just as certainly if slavery had existed in all the States, or if there had not been a negro in America. No such pretension was made in 1803 or 1811, when the Louisiana purchase, and afterward the admission into the Union of the State of that name, elicited threats of disunion from the representatives of New England. The complaint was not of slavery, but of "the acquisition of more weight at the other extremity" of the Union. It was not slavery that threatened a rupture in 1832, but the unjust and unequal operation of a protective tariff.
It happened, however, on all these occasions, that the line of demarkation of sectional interests coincided exactly or very nearly with that dividing the States in which negro servitude existed from those in which it had been abolished. It corresponded with the prediction of Mr. Pickering, in 1803, that, in the separation certainly to come, "the white and black population would mark the boundary"—a prediction made without any reference to slavery as a source of dissension.
Of course, the diversity of institutions contributed, in some minor degree, to the conflict of interests. There is an action and reaction of cause and consequence, which limits and modifies any general statement of a political truth. I am stating general principles—not defining modifications and exceptions with the [pg 80] precision of a mathematical proposition or a bill in chancery. The truth remains intact and incontrovertible, that the existence of African servitude was in no wise the cause of the conflict, but only an incident. In the later controversies that arose, however, its effect in operating as a lever upon the passions, prejudices, or sympathies of mankind, was so potent that it has been spread, like a thick cloud, over the whole horizon of historic truth.
As for the institution of negro servitude, it was a matter entirely subject to the control of the States. No power was ever given to the General Government to interfere with it, but an obligation was imposed to protect it. Its existence and validity were distinctly recognized by the Constitution in at least three places:
First, in that part of the second section of the first article which prescribes that "representatives and direct taxes shall be apportioned among the several States which may be included within this Union, according to their respective members, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and, excluding Indians not taxed, three fifths of all other persons." "Other persons" than "free persons" and those "bound to service for a term of years" must, of course, have meant those permanently bound to service.
Secondly, it was recognized by the ninth section of the same article, which provided that "the migration or importation of such persons as any of the States now existing shall think proper to admit shall not be prohibited by Congress prior to the year one thousand eight hundred and eight." This was a provision inserted for the protection of the interests of the slave-trading New England States, forbidding any prohibition of the trade by Congress for twenty years, and thus virtually giving sanction to the legitimacy of the demand which that trade was prosecuted to supply, and which was its only object.
Again, and in the third place, it was specially recognized, and an obligation imposed upon every State, not only to refrain from interfering with it in any other State, but in certain cases to aid in its enforcement, by that clause, or paragraph, [pg 81] of the second section of the fourth article which provides as follows:
"No person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due."
The President and Vice-President of the United States, every Senator and Representative in Congress, the members of every State Legislature, and "all executive and judicial officers, both of the United States and of the several States," were required to take an oath (or affirmation) to support the Constitution containing these provisions. It is easy to understand how those who considered them in conflict with the "higher law" of religion or morality might refuse to take such an oath or hold such an office—as the members of some religious sects refuse to take any oath at all or to bear arms in the service of their country—but it is impossible to reconcile with the obligations of honor or honesty the conduct of those who, having taken such an oath, made use of the powers and opportunities of the offices held under its sanctions to nullify its obligations and neutralize its guarantees. The halls of Congress afforded the vantage-ground from which assaults were made upon these guarantees. The Legislatures of various Northern States enacted laws to hinder the execution of the provisions made for the rendition of fugitives from service; State officials lent their aid to the work of thwarting them; and city mobs assailed the officers engaged in the duty of enforcing them.
With regard to the provision of the Constitution above quoted, for the restoration of fugitives from service or labor, my own view was, and is, that it was not a proper subject for legislation by the Federal Congress, but that its enforcement should have been left to the respective States, which, as parties to the compact of union, should have been held accountable for its fulfillment. Such was actually the case in the earlier and better days of the republic. No fugitive slave-law existed, or was required, for two years after the organization of the Federal [pg 82] Government, and, when one was then passed, it was merely as an incidental appendage to an act regulating the mode of rendition of fugitives from justice—not from service or labor.27
In 1850 a more elaborate law was enacted as part of the celebrated compromise of that year. But the very fact that the Federal Government had taken the matter into its own hands, and provided for its execution by its own officers, afforded a sort of pretext to those States which had now become hostile to this provision of the Constitution, not only to stand aloof, but in some cases to adopt measures (generally known as "personal liberty laws") directly in conflict with the execution of the provisions of the Constitution.
The preamble to the Constitution declared the object of its founders to be, "to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity." Now, however (in 1860), the people of a portion of the States had assumed an attitude of avowed hostility, not only to the provisions of the Constitution itself, but to the "domestic tranquillity" of the people of other States. Long before the formation of the Constitution, one of the charges preferred in the Declaration of Independence against the Government of Great Britain, as justifying the separation of the colonies from that country, was that of having "excited [pg 83] domestic insurrections among us." Now, the mails were burdened with incendiary publications, secret emissaries had been sent, and in one case an armed invasion of one of the States had taken place for the very purpose of exciting "domestic insurrection."
It was not the passage of the "personal liberty laws," it was not the circulation of incendiary documents, it was not the raid of John Brown, it was not the operation of unjust and unequal tariff laws, nor all combined, that constituted the intolerable grievance, but it was the systematic and persistent struggle to deprive the Southern States of equality in the Union—generally to discriminate in legislation against the interests of their people; culminating in their exclusion from the Territories, the common property of the States, as well as by the infraction of their compact to promote domestic tranquillity.
The question with regard to the Territories has been discussed in the foregoing chapters, and the argument need not be repeated. There was, however, one feature of it which has not been specially noticed, although it occupied a large share of public attention at the time, and constituted an important element in the case. This was the action of the Federal judiciary thereon, and the manner in which it was received.
In 1854 a case (the well-known "Dred Scott case") came before the Supreme Court of the United States, involving the whole question of the status of the African race and the rights of citizens of the Southern States to migrate to the Territories, temporarily or permanently, with their slave property, on a footing of equality with the citizens of other States with their property of any sort. This question, as we have seen, had already been the subject of long and energetic discussion, without any satisfactory conclusion. All parties, however, had united in declaring, that a decision by the Supreme Court of the United States—the highest judicial tribunal in the land—would be accepted as final. After long and patient consideration of the case, in 1857, the decision of the Court was pronounced in an elaborate and exhaustive opinion, delivered by Chief-Justice Taney—a man eminent as a lawyer, great as a statesman, and stainless in his moral reputation—seven of the nine judges who [pg 84] composed the Court, concurring in it. The salient points established by this decision were:
1. That persons of the African race were not, and could not be, acknowledged as "part of the people," or citizens, under the Constitution of the United States;
2. That Congress had no right to exclude citizens of the South from taking their negro servants, as any other property, into any part of the common territory, and that they were entitled to claim its protection therein;
3. And, finally, as a consequence of the principle just above stated, that the Missouri Compromise of 1820, in so far as it prohibited the existence of African servitude north of a designated line, was unconstitutional and void.28 (It will be remembered that it had already been declared "inoperative and void" by the Kansas-Nebraska Bill of 1854.)
Instead of accepting the decision of this then august tribunal—the [pg 85] ultimate authority in the interpretation of constitutional questions—as conclusive of a controversy that had so long disturbed the peace and was threatening the perpetuity of the Union, it was flouted, denounced, and utterly disregarded by the Northern agitators, and served only to stimulate the intensity of their sectional hostility.
What resource for justice—what assurance of tranquillity—what guarantee of safety—now remained for the South? Still forbearing, still hoping, still striving for peace and union, we waited until a sectional President, nominated by a sectional convention, elected by a sectional vote—and that the vote of a minority of the people—was about to be inducted into office, under the warning of his own distinct announcement that the Union could not permanently endure "half slave and half free"; meaning thereby that it could not continue to exist in the condition in which it was formed and its Constitution adopted. The leader of his party, who was to be the chief of his Cabinet, was the man who had first proclaimed an "irrepressible conflict" between the North and the South, and who had declared that abolitionism, having triumphed in the Territories, would proceed to the invasion of the States. Even then the Southern people did not finally despair until the temper of the triumphant party had been tested in Congress and found adverse to any terms of reconciliation consistent with the honor and safety of all parties.
No alternative remained except to seek the security out of the Union which they had vainly tried to obtain within it. The hope of our people may be stated in a sentence. It was to escape from injury and strife in the Union, to find prosperity and peace out of it. The mode and principles of their action will next be presented.
Footnote 27: (return)"There was but little necessity in those times, nor long after, for an act of Congress to authorize the recovery of fugitive slaves. The laws of the free States and, still more, the force of public opinion were the owners' best safeguards. Public opinion was against the abduction of slaves; and, if any one was seduced from his owner, it was done furtively and secretly, without show or force, and as any other moral offense would be committed. State laws favored the owner, and to a greater extent than the act of Congress did or could. In Pennsylvania there was an act (it was passed in 1780, and only repealed in 1847) discriminating between the traveler and sojourner and the permanent resident, allowing the former to remain six months in the State before his slaves would become subject to the emancipation laws; and, in the case of a Federal officer, allowing as much more time as his duties required him to remain. New York had the same act, only varying in time, which was nine months. While these two acts were in force, and supported by public opinion, the traveler and sojourner was safe with his slaves in those States, and the same in the other free States. There was no trouble about fugitive slaves in those times."—(Note to Benton's "Abridgment of Debates," vol. i, p. 417.)
Footnote 28: (return)[pg 86]The Supreme Court of the United States in stating (through Chief-Justice Taney) their decision in the "Dred Scott case," in 1857, say: "In that portion of the United States where the labor of the negro race was found to be unsuited to the climate and unprofitable to the master, but few slaves were held at the time of the Declaration of Independence; and, when the Constitution was adopted, it had entirely worn out in one of them, and measures had been taken for its gradual abolition in several others. But this change had not been produced by any change of opinion in relation to this race, but because it was discovered from experience that slave-labor was unsuited to the climate and productions of these States; for some of these States, when it had ceased, or nearly ceased, to exist, were actively engaged in the slave-trade; procuring cargoes on the coast of Africa, and transporting them for sale to those parts of the Union where their labor was found to be profitable and suited to the climate and productions. And this traffic was openly carried on, and fortunes accumulated by it, without reproach from the people of the States where they resided."
This statement, it must be remembered, does not proceed from any partisan source, but is extracted from a judicial opinion pronounced by the highest court in the country. In illustration of the truthfulness of the latter part of it, may be mentioned the fact that a citizen of Rhode Island (James D'Wolf), long and largely concerned in the slave-trade, was sent from that State to the Senate of the United States as late as the year 1821. In 1825 he resigned his seat in the Senate and removed to Havana, where he lived for many years, actively engaged in the same pursuit, as president of a slave-trading company. The story is told of him that, on being informed that the "trade" was to be declared piracy, he smiled and said, "So much the better for us—the Yankees will be the only people not scared off by such a declaration."
The Original Confederation.—"Articles of Confederation and Perpetual Union."—Their Inadequacy ascertained.—Commercial Difficulties.—The Conference at Annapolis.—Recommendation of a General Convention.—Resolution of Congress.—Action of the Several States.—Conclusions drawn therefrom.
When certain American colonies of Great Britain, each acting for itself, although in concert with the others, determined to dissolve their political connection with the mother-country, they sent their representatives to a general Congress of those colonies, and through them made a declaration that the Colonies were, and of right ought to be, "free and independent States." As such they contracted an alliance for their "common defense," successfully resisted the effort to reduce them to submission, and secured the recognition by Great Britain of their separate independence; each State being distinctly recognized under its own name—not as one of a group or nation. That this was not merely a foreign view is evident from the second of the "Articles of Confederation" between the States, adopted subsequently to the Declaration of Independence, which is in these words: "Each State retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States in Congress assembled."
These "Articles of Confederation and Perpetual Union between the States," as they were styled in their title, were [pg 87] adopted by eleven of the original States in 1778, and by the other two in the course of the three years next ensuing, and continued in force until 1789. During this period the General Government was vested in the Congress alone, in which each State, through its representatives, had an equal vote in the determination of all questions whatever. The Congress exercised all the executive as well as legislative powers delegated by the States. When not in session the general management of affairs was intrusted to a "Committee of the States," consisting of one delegate from each State. Provision was made for the creation, by the Congress, of courts having a certain specified jurisdiction in admiralty and maritime cases, and for the settlement of controversies between two or more States in a mode specifically prescribed.
The Government thus constituted was found inadequate for some necessary purposes, and it became requisite to reorganize it. The first idea of such reorganization arose from the necessity of regulating the commercial intercourse of the States with one another and with foreign countries, and also of making some provision for payment of the debt contracted during the war for independence. These exigencies led to a proposition for a meeting of commissioners from the various States to consider the subject. Such a meeting was held at Annapolis in September, 1786; but, as only five States (New York, New Jersey, Delaware, Pennsylvania, and Virginia) were represented, the Commissioners declined to take any action further than to recommend another Convention, with a wider scope for consideration. As they expressed it, it was their "unanimous conviction that it may essentially tend to advance the interests of the Union, if the States, by whom they have been respectively delegated, would themselves concur, and use their endeavors to procure the concurrence of the other States, in the appointment of commissioners, to meet at Philadelphia on the second Monday in May next, to take into consideration the situation of the United States, to devise such further provisions as shall appear to them necessary to render the Constitution of the Federal Government adequate to the exigencies of the Union, and to report such an act for that purpose to the United States in Congress [pg 88] assembled, as, when agreed to by them, and afterward confirmed by the Legislatures of every State, will effectually provide for the same."
It is scarcely necessary to remind the well-informed reader that the terms, "Constitution of the Federal Government," employed above, and "Federal Constitution," as used in other proceedings of that period, do not mean the instrument to which we now apply them; and which was not then in existence. They were applied to the system of government formulated in the Articles of Confederation. This is in strict accord with the definition of the word constitution, given by an eminent lexicographer:29 "The body of fundamental laws, as contained in written documents or prescriptive usage, which constitute the form of government for a nation, state, community, association, or society."30 Thus we speak of the British Constitution, which is an unwritten system of "prescriptive usage"; of the Constitution of Massachusetts or of Mississippi, which is the fundamental or organic law of a particular State embodied in a written instrument; and of the Federal Constitution of the United States, which is the fundamental law of an association of States, at first as embraced in the Articles of Confederation, and afterward as revised, amended, enlarged, and embodied in the instrument framed in 1787, and subsequently adopted by the various States. The manner in which this revision was effected was as follows. Acting on the suggestion of the Annapolis Convention, the Congress, on the 21st of the ensuing February (1787), adopted the following resolution:
"Resolved, That, in the opinion of Congress, it is expedient that, on the second Monday in May next, a convention of delegates, who shall have been appointed by the several States, be held at Philadelphia, for the sole and express purpose of revising the Articles of Confederation, and reporting to Congress and the several Legislatures, [pg 89] such alterations and provisions therein as shall, when agreed to in Congress and confirmed by the States, render the Federal Constitution adequate to the exigencies of Government and the preservation of the Union."
The language of this resolution, substantially according with that of the recommendation made by the commissioners at Annapolis a few months before, very clearly defines the objects of the proposed Convention and the powers which it was thought advisable that the States should confer upon their delegates. These were, "solely and expressly," as follows:
1. "To revise the Articles of Confederation with reference to the 'situation of the United States';
2. "To devise such alterations and provisions therein as should seem to them requisite in order to render 'the Federal Constitution,' or 'Constitution of the Federal Government,' adequate to 'the exigencies of the Union,' or 'the exigencies of the Government and the preservation of the Union';
3. "To report the result of their deliberations—that is, the 'alterations and provisions' which they should agree to recommend—to Congress and the Legislatures of the several States."
Of course, their action could be only advisory until ratified by the States. The "Articles of Confederation and Perpetual Union," under which the States were already united, provided that no alteration should be made in any of them, "unless such alteration be agreed to in a Congress of the United States, and afterward confirmed by the Legislatures of every State."
The Legislatures of the various States, with the exception of Rhode Island, adopted and proceeded to act upon these suggestions by the appointment of delegates—some of them immediately upon the recommendation of the Annapolis Commissioners in advance of that of the Congress, and the others in the course of a few months after the resolution adopted by Congress. The instructions given to these delegates in all cases conformed to the recommendations which have been quoted, and in one case imposed an additional restriction or limitation. As this is a matter of much importance, in order to a right understanding of what follows, it may be advisable to cite in detail the action of [pg 90] the several States, italicizing such passages as are specially significant of the duties and powers of the delegates to the Convention.
The General Assembly of Virginia, after reciting the recommendation made at Annapolis, enacted: "That seven commissioners be appointed by joint ballot of both Houses of Assembly, who, or any three of them, are hereby authorized, as deputies from this Commonwealth, to meet such deputies as may be appointed and authorized by other States, to assemble in convention at Philadelphia, as above recommended, and to join with them in devising and discussing all such alterations and further provisions as may be necessary to render the Federal Constitution adequate to the exigencies of the Union, and in reporting such an act for that purpose to the United States in Congress, as, when agreed to by them, and duly confirmed by the several States, will effectually provide for the same."
The Council and Assembly of New Jersey issued commissions to their delegates to meet such commissioners as have been, or may be, appointed by the other States of the Union, at the city of Philadelphia, in the Commonwealth of Pennsylvania, on the second Monday in May next, "for the purpose of taking into consideration the state of the Union as to trade and other important objects, and of devising such other provisions as shall appear to be necessary to render the Constitution of the Federal Government adequate to the exigencies thereof."
The act of the General Assembly of Pennsylvania constituted and appointed certain deputies, designated by name, "with powers to meet such deputies as may be appointed and authorized by the other States ... and to join with them in devising, deliberating on, and discussing all such alterations and further provisions as may be necessary to render the Federal Constitution fully adequate to the exigencies of the Union, and in reporting such act or acts for that purpose, to the United States in Congress assembled, as, when agreed to by them and duly confirmed by the several States, will effectually provide for the same."
The General Assembly of North Carolina enacted that commissioners should be appointed by joint ballot of both Houses, [pg 91] "to meet and confer with such deputies as may be appointed by the other States for similar purposes, and with them to discuss and decide upon the most effectual means to remove the defects of our Federal Union, and to procure the enlarged purposes which it was intended to effect; and that they report such an act to the General Assembly of this State, as, when agreed to by them, will effectually provide for the same." (In the case of this State alone nothing is said of a report to Congress. Neither North Carolina nor any other State, however, fails to make mention of the necessity of a submission of any action taken to the several States for ratification.)
The commissions issued to the representatives of South Carolina, by the Governor, refer to an act of the Legislature of that State authorizing their appointment "to meet such deputies or commissioners as may be appointed and authorized by other of the United States," at the time and place designated, and to join with them "in devising and discussing all such alterations, clauses, articles, and provisions, as may be thought necessary to render the Federal Constitution entirely adequate to the actual situation and future good government of the Confederate States," and to "join in reporting such an act to the United States in Congress assembled, as, when approved and agreed to by them, and duly ratified and confirmed by the several States, will effectually provide for the exigencies of the Union." In these commissions the expression, "alterations, clauses, articles, and provisions," clearly indicates the character of the duties which the deputies were expected to discharge.
The General Assembly of Georgia "ordained" the appointment of certain commissioners, specified by name, who were "authorized, as deputies from this State, to meet such deputies as may be appointed and authorized by other States, to assemble in convention at Philadelphia, and to join with them in devising and discussing all such alterations and further provisions as may be necessary to render the Federal Constitution adequate to the exigencies of the Union, and in reporting such an act for that purpose to the United States in Congress assembled, as, when agreed to by them, and duly confirmed by the several States, will effectually provide for the same."
[pg 92]The authority conferred upon their delegates by the Assembly of New York and the General Court of Massachusetts was in each case expressed in the exact words of the advisory resolution of Congress: they were instructed to meet the delegates of the other States "for the sole and express purpose of revising the Articles of Confederation, and reporting to Congress and to the several Legislatures such alterations and provisions therein as shall, when agreed to in Congress, and confirmed by the several States, render the Federal Constitution adequate to the exigencies of the Union."
The General Assembly of Connecticut designated the delegates of that State by name, and empowered them, in conference with the delegates of other States, "to discuss upon such alterations and provisions, agreeable to the general principles of republican government, as they shall think proper to render the Federal Constitution adequate to the exigencies of the Government and the preservation of the Union," and "to report such alterations and provisions as may be agreed to by a majority of the United States in convention, to the Congress of the United States and to the General Assembly of this State."
The General Court of New Hampshire authorized and empowered the deputies of that State, in conference with those of other States, "to discuss and decide upon the most effectual means to remedy the defects of our Federal Union, and to procure and secure the enlarged purposes which it was intended to effect"—language almost identical with that of North Carolina, but, like the other States in general, instructed them to report the result of their deliberations to Congress for the action of that body, and subsequent confirmation "by the several States."
The delegates from Maryland were appointed by the General Assembly of that State, and instructed "to meet such deputies as may be appointed and authorized by any other of the United States, to assemble in convention at Philadelphia, for the purpose of revising the Federal system, and to join with them in considering such alterations and further provisions," etc.—the remainder of their instructions being in the same words as those given to the Georgia delegates.
The instructions given to the deputies of Delaware were [pg 93] substantially in accord with the others—being almost literally identical with those of Pennsylvania—but the following proviso was added: "So, always, and provided, that such alterations or further provisions, or any of them, do not extend to that part of the fifth article of the Confederation of the said States, finally ratified on the first day of March, in the year 1781, which declares that, 'in determining questions in the United States in Congress assembled, each State shall have one vote.'"
Rhode Island, as has already been mentioned, sent no delegates.
From an examination and comparison of the enactments and instructions above quoted, we may derive certain conclusions, so obvious that they need only to be stated:
1. In the first place, it is clear that the delegates to the Convention of 1787 represented, not the people of the United States in mass, as has been most absurdly contended by some political writers, but the people of the several States, as States—just as in the Congress of that period—Delaware, with her sixty thousand inhabitants, having entire equality with Pennsylvania, which had more than four hundred thousand, or Virginia, with her seven hundred and fifty thousand.
2. The object for which they were appointed was not to organize a new Government, but "solely and expressly" to amend the "Federal Constitution" already existing; in other words, "to revise the Articles of Confederation," and to suggest such "alterations" or additional "provisions" as should be deemed necessary to render them "adequate to the exigencies of the Union."
3. It is evident that the term "Federal Constitution," or its equivalent, "Constitution of the Federal Government," was as freely and familiarly applied to the system of government established by the Articles of Confederation—undeniably a league or compact between States expressly retaining their sovereignty and independence—as to that amended system which was substituted for it by the Constitution that superseded those articles.
4. The functions of the delegates to the Convention were, of course, only to devise, deliberate, and discuss. No validity could attach to any action taken, unless and until it should be [pg 94] afterward ratified by the several States. It is evident, also, that what was contemplated was the process provided in the Articles of Confederation for their own amendment—first, a recommendation by the Congress; and, afterward, ratification "by the Legislatures of every State," before the amendment should be obligatory upon any. The departure from this condition, which actually occurred, will presently be noticed.
Footnote 29: (return)Dr. Worcester.
Footnote 30: (return)This definition is very good as far as it goes, but "the form of government" is a phrase which falls short of expressing all that should be comprehended. Perhaps it would be more accurate to say, "which constitute the form, define the powers, and prescribe the functions of government," etc. The words in italics would make the definition more complete.
The Convention of 1787.—Diversity of Opinion.—Luther Martin's Account of the Three Parties.—The Question of Representation.—Compromise effected.—Mr. Randolph's Resolutions.—The Word "National" condemned.—Plan of Government framed.—Difficulty with Regard to Ratification, and its Solution.—Provision for Secession from the Union.—Views of Mr. Gerry and Mr. Madison.—False Interpretations.—Close of the Convention.
When the Convention met in Philadelphia, in May, 1787, it soon became evident that the work before it would take a wider range and involve more radical changes in the "Federal Constitution" than had at first been contemplated. Under the Articles of Confederation the General Government was obliged to rely upon the governments of the several States for the execution of its enactments. Except its own officers and employees, and in time of war the Federal army and navy, it could exercise no control upon individual citizens. With regard to the States, no compulsory or coercive measures could be employed to enforce its authority, in case of opposition or indifference to its exercise. This last was a feature of the Confederation which it was not desirable nor possible to change, and no objection was made to it; but it was generally admitted that some machinery should be devised to enable the General Government to exercise its legitimate functions by means of a mandatory authority operating directly upon the individual citizens within the limits of its constitutional powers. The necessity for such provision was undisputed.
Beyond the common ground of a recognition of this necessity [pg 95] there was a wide diversity of opinion among the members of the Convention. Luther Martin, a delegate from Maryland, in an account of its proceedings, afterward given to the Legislature of that State, classifies these differences as constituting three parties in the Convention, which he describes as follows:
"One party, whose object and wish it was to abolish and annihilate all State governments, and to bring forward one General Government over this extensive continent of a monarchical nature, under certain restrictions and limitations. Those who openly avowed this sentiment were, it is true, but few; yet it is equally true that there was a considerable number, who did not openly avow it, who were, by myself and many others of the Convention, considered as being in reality favorers of that sentiment....
"The second party was not for the abolition of the State governments nor for the introduction of a monarchical government under any form; but they wished to establish such a system as could give their own States undue power and influence in the government over the other States.
"A third party was what I considered truly federal and republican. This party was nearly equal in number with the other two, and was composed of the delegates from Connecticut, New York, New Jersey, Delaware, and in part from Maryland; also of some individuals from other representations. This party were for proceeding upon terms of federal equality: they were for taking our present federal system as the basis of their proceedings, and, as far as experience had shown that other powers were necessary to the Federal Government, to give those powers. They considered this the object for which they were sent by their States, and what their States expected from them."
In his account of the second party above described, Mr. Martin refers to those representatives of the larger States who wished to establish a numerical basis of representation in the Congress, instead of the equal representation of the States (whether large or small) which existed under the Articles of Confederation. There was naturally much dissatisfaction on the part of the greater States—Virginia, Pennsylvania, North Carolina, and Massachusetts—whose population at that period exceeded that [pg 96] of all the others combined, but which, in the Congress, constituted less than one third of the voting strength. On the other hand, the smaller States were tenacious of their equality in the Union. Of the very smallest, one, as we have seen, had sent no representatives to the Convention, and the other had instructed her delegates, unconditionally, to insist upon the maintenance of absolute equality in the Congress. This difference gave more trouble than any other question that came before the Convention, and for some time threatened to prove irreconcilable and to hinder any final agreement. It was ultimately settled by a compromise. Provision was made for the representation of the people of the States in one branch of the Federal Legislature (the House of Representatives) in proportion to their numbers; in the other branch (the Senate), for the equal representation of the States as such. The perpetuity of this equality was furthermore guaranteed by a stipulation that no State should ever be deprived of its equal suffrage in the Senate without its own consent.31 This compromise required no sacrifice of principle on either side, and no provision of the Constitution has in practice proved more entirely satisfactory.
It is not necessary, and would be beyond the scope of this work, to undertake to give a history of the proceedings of the Convention of 1787. That may be obtained from other sources. All that is requisite for the present purpose is to notice a few particulars of special significance or relevancy to the subject of inquiry.
Early in the session of the Convention a series of resolutions was introduced by Mr. Edmund Randolph, of Virginia, embodying a proposed plan of government, which were considered in committee of the whole House, and formed the basis of a protracted discussion. The first of these resolutions, as amended before a vote was taken, was in these words:
"Resolved, That it is the opinion of this committee that a national Government ought to be established, consisting of a supreme legislative, executive, and judiciary."
This was followed by other resolutions—twenty-three in all, [pg 97] as adopted and reported by the committee—in which the word "national" occurred twenty-six times.
The day after the report of the committee was made, Mr. Ellsworth, of Connecticut, moved to strike out the words "national Government" in the resolution above quoted, and to insert the words "Government of the United States," which he said was the proper title. "He wished also the plan to go forth as an amendment of the Articles of Confederation."32 That is to say, he wished to avoid even the appearance of undertaking to form a new government, instead of reforming the old one, which was the proper object of the Convention. This motion was agreed to without opposition, and, as a consequence, the word "national" was stricken out wherever it occurred, and nowhere makes its appearance in the Constitution finally adopted. The prompt rejection, after introduction, of this word "national," is obviously much more expressive of the intent and purpose of the authors of the Constitution than its mere absence from the Constitution would have been. It is a clear indication that they did not mean to give any countenance to the idea which, "scotched, not killed," has again reared its mischievous crest in these latter days—that the government which they organized was a consolidated nationality, instead of a confederacy of sovereign members.
Continuing their great work of revision and reorganization, the Convention proceeded to construct the framework of a government for the Confederacy, strictly confined to certain specified and limited powers, but complete in all its parts, legislative, executive, and judicial, and provided with the means for discharging all its functions without interfering with the "sovereignty, freedom, and independence" of the constituent States.
All this might have been done without going beyond the [pg 98] limits of their commission "to revise the Articles of Confederation," and to consider and report such "alterations and provisions" as might seem necessary to "render the Federal Constitution adequate to the exigencies of government and the preservation of the Union." A serious difficulty, however, was foreseen. The thirteenth and last of the aforesaid articles had this provision, which has already been referred to: "The Articles of this Confederation shall be inviolably observed by every State, and the union shall be perpetual; nor shall any alteration, at any time hereafter, be made in any of them, unless such alteration be agreed to in a Congress of the United States, and be afterward confirmed by the Legislatures of every State."
It is obvious, from an examination of the records, as has already been shown, that the original idea in calling a Convention was, that their recommendations should take the course prescribed by this article—first, a report to the Congress, and then, if approved by that body, a submission to the various Legislatures for final action. There was no reason to apprehend the non-concurrence of Congress, in which a mere majority would determine the question; but the consent of the Legislatures of "every State" was requisite in order to final ratification, and there was serious reason to fear that this consent could not be obtained. Rhode Island, as we have seen, had declined to send any representatives to the Convention; of the three delegates from New York, two had withdrawn; and other indications of dissatisfaction had appeared. In case of the failure of a single Legislature to ratify, the labors of the Convention would go for naught, under a strict adherence to the letter of the article above cited. The danger of a total frustration of their efforts was imminent.
In this emergency the Convention took the responsibility of transcending the limits of their instructions, and recommending a procedure which was in direct contravention of the letter of the Articles of Confederation. This was the introduction of a provision into the new Constitution, that the ratification of nine States should be sufficient for its establishment among themselves. In order to validate this provision, it was necessary to [pg 99] refer it to authority higher than that of Congress and the State Legislatures—that is, to the People of the States, assembled, by their representatives, in convention. Hence it was provided, by the seventh and last article of the new Constitution, that "the ratification of the Conventions of nine States" should suffice for its establishment "between the States so ratifying the same."
There was another reason, of a more general and perhaps more controlling character, for this reference to conventions for ratification, even if entire unanimity of the State Legislatures could have been expected. Under the American theory of republican government, conventions of the people, duly elected and accredited as such, are invested with the plenary power inherent in the people of an organized and independent community, assembled in mass. In other words, they represent and exercise what is properly the sovereignty of the people. State Legislatures, with restricted powers, do not possess or represent sovereignty. Still less does the Congress of a union or confederacy of States, which is by two degrees removed from the seat of sovereignty. We sometimes read or hear of "delegated sovereignty," "divided sovereignty," with other loose expressions of the same sort; but no such thing as a division or delegation of sovereignty is possible.
In order, therefore, to supersede the restraining article above cited and to give the highest validity to the compact for the delegation of important powers and functions of government to a common agent, an authority above that of the State Legislatures was necessary. Mr. Madison, in the "Federalist,"33 says: "It has been heretofore noted among the defects of the Confederation, that in many of the States it had received no higher sanction than a mere legislative ratification." This objection would of course have applied with greater force to the proposed Constitution, which provided for additional grants of power from the States, and the conferring of larger and more varied powers upon a General Government, which was to act upon individuals instead of States, if the question of its confirmation had been submitted merely to the several State Legislatures. [pg 100] Hence the obvious propriety of referring it to the respective people of the States in their sovereign capacity, as provided in the final article of the Constitution.
In this article provision was deliberately made for the secession (if necessary) of a part of the States from a union which, when formed, had been declared "perpetual," and its terms and articles to be "inviolably observed by every State."
Opposition was made to the provision on this very ground—that it was virtually a dissolution of the Union, and that it would furnish a precedent for future secessions. Mr. Gerry, a distinguished member from Massachusetts—afterward Vice-President of the United States—said, "If nine out of thirteen (States) can dissolve the compact, six out of nine will be just as able to dissolve the future one hereafter."
Mr. Madison, who was one of the leading members of the Convention, advocating afterward, in the "Federalist," the adoption of the new Constitution, asks the question, "On what principle the Confederation, which stands in the solemn form of a compact among the States, can be superseded without the unanimous consent of the parties to it?" He answers this question "by recurring to the absolute necessity of the case; to the great principle of self-preservation; to the transcendent law of nature and of nature's God, which declares that the safety and happiness of society are the objects at which all political institutions aim, and to which all such institutions must be sacrificed." He proceeds, however, to give other grounds of justification:
"It is an established doctrine on the subject of treaties, that all the articles are mutually conditions of each other; that a breach of any one article is a breach of the whole treaty; and that a breach committed by either of the parties absolves the others, and authorizes them, if they please, to pronounce the compact violated and void. Should it unhappily be necessary to appeal to these delicate truths for a justification for dispensing with the consent of particular States to a dissolution of the Federal pact, will not the complaining parties find it a difficult task to answer the multiplied and important infractions with which they may be confronted? The time has been when it was incumbent on us all to veil the ideas which this paragraph exhibits. The [pg 101] scene is now changed, and with it the part which the same motives dictate."
Mr. Madison's idea of the propriety of veiling any statement of the right of secession until the occasion arises for its exercise, whether right or wrong in itself, is eminently suggestive as explanatory of the caution exhibited by other statesmen of that period, as well as himself, with regard to that "delicate truth."
The only possible alternative to the view here taken of the seventh article of the Constitution, as a provision for the secession of any nine States, which might think proper to avail themselves of it, from union with such as should refuse to do so, and the formation of an amended or "more perfect union" with one another, is to regard it as a provision for the continuance of the old Union, or Confederation, under altered conditions, by the majority which should accede to them, with a recognition of the right of the recusant minority to withdraw, secede, or stand aloof. The idea of compelling any State or States to enter into or to continue in union with the others by coercion, is as absolutely excluded under the one supposition as under the other—with reference to one State or a minority of States, as well as with regard to a majority. The article declares that "the ratification of the Conventions of nine States shall be sufficient for the establishment of this Constitution"—not between all, but—"between the States so ratifying the same." It is submitted whether a fuller justification of this right of the nine States to form a new Government is not found in the fact of the sovereignty in each of them, making them "a law unto themselves," and therefore the final judge of what the necessities of each community demand.
Here—although, perhaps, in advance of its proper place in the argument—the attention of the reader may be directed to the refutation, afforded by this article of the Constitution, of that astonishing fiction, which has been put forward by some distinguished writers of later date, that the Constitution was established by the people of the United States "in the aggregate." If such had been the case, the will of a majority, duly ascertained and expressed, would have been binding upon the [pg 102] minority. No such idea existed in its formation. It was not even established by the States in the aggregate, nor was it proposed that it should be. It was submitted for the acceptance of each separately, the time and place at their own option, so that the dates of ratification did extend from December 7, 1787, to May 29, 1790. The long period required for these ratifications makes manifest the absurdity of the assertion, that it was a decision by the votes of one people, or one community, in which a majority of the votes cast determined the result.
We have seen that the delegates to the Convention of 1787 were chosen by the several States, as States—it is hardly necessary to add that they voted in the Convention, as in the Federal Congress, by States—each State casting one vote. We have seen, also, that they were sent for the "sole and express purpose" of revising the Articles of Confederation and devising means for rendering the Federal Constitution, "adequate to the exigencies of government and the preservation of the Union"; that the terms "Union," "United States," "Federal Constitution;" and "Constitution of the Federal Government," were applied to the old Confederation in precisely the same sense in which they are used under the new; that the proposition to constitute a "national" Government was distinctly rejected by the Convention; that the right of any State, or States, to withdraw from union with the others was practically exemplified, and that the idea of coercion of a State, or compulsory measures, was distinctly excluded under any construction that can be put upon the action of the Convention.
To the original copy of the Constitution, as set forth by its framers for the consideration and final action of the people of the States, was attached the following words:
"Done in Convention, by the unanimous consent of the States present, the seventeenth day of September, in the year of our Lord one thousand seven hundred and eighty-seven, and of the Independence of the United States of America, the twelfth. In witness whereof, we have hereunto subscribed our names."
[Followed by the signatures of "George Washington, President, and deputy from Virginia," and the other delegates who signed it.]
[pg 103]This attachment to the instrument—a mere attestation of its authenticity, and of the fact that it had the unanimous consent of all the States then present by their deputies—not of all the deputies, for some of them refused to sign it—has been strangely construed by some commentators as if it were a part of the Constitution, and implied that it was "done," in the sense of completion of the work.34
But the work was not done when the Convention closed its labors and adjourned. It was scarcely begun. There was no validity or binding force whatever in what had been already "done." It was still to be submitted to the States for approval or rejection. Even if a majority of eight out of thirteen States had ratified it, the refusal of the ninth would have rendered it null and void. Mr. Madison, who was one of the most distinguished of its authors and signers, writing after it was completed and signed, but before it was ratified, said: "It is time now to recollect that the powers [of the Convention] were merely advisory and recommendatory; that they were so meant by the States, and so understood by the Convention; and that the latter have accordingly planned and proposed a Constitution, which is to be of no more consequence than the paper on which it is written, unless it be stamped with the approbation of those to whom it is addressed."—("Federalist," No. XL.)
The mode and terms in which this approval was expressed will be considered in the next chapter.
Footnote 31: (return)Constitution, Article V.
Footnote 32: (return)See Elliott's "Debates," vol. v, p. 214. This reference is taken from "The Republic of Republics," Part III, chapter vii, p. 217. This learned, exhaustive, and admirable work, which contains a wealth of historical and political learning, will be freely used, by kind consent of the author, without the obligation of a repetition of special acknowledgment in every case. A like liberty will be taken with the late Dr. Bledsoe's masterly treatise on the right of secession, published in 1866, under the title, "Is Davis a Traitor? or, Was Secession a Constitutional Right?"
Footnote 33: (return)No. xliii.
Footnote 34: (return)See "Republic of Republics," Part II, chapters xiii and xiv.
Ratification of the Constitution by the States.—Organization of the New Government.—Accession of North Carolina and Rhode Island.—Correspondence between General Washington and the Governor of Rhode Island.
The amended system of union, or confederation (the terms are employed indiscriminately and interchangeably by the statesmen of that period), devised by the Convention of 1787, and [pg 104] embodied, as we have seen, in the Constitution which they framed and have set forth, was now to be considered and acted on by the people of the several States. This they did in the highest and most majestic form in which the sanction of organized communities could be given or withheld—not through ambassadors, or Legislatures, or deputies with limited powers, but through conventions of delegates chosen expressly for the purpose and clothed with the plenary authority of sovereign people. The action of these conventions was deliberate, cautious, and careful. There was much debate, and no little opposition to be conciliated. Eleven States, however, ratified and adopted the new Constitution within the twelve months immediately following its submission to them. Two of them positively rejected it, and, although they afterward acceded to it, remained outside of the Union in the exercise of their sovereign right, which nobody then denied—North Carolina for nine months, Rhode Island for nearly fifteen, after the new Government was organized and went into operation. In several of the other States the ratification was effected only by small majorities.
The terms in which this action was expressed by the several States and the declarations with which it was accompanied by some of them are worthy of attention.
Delaware was the first to act. Her Convention met on December 3, 1787, and ratified the Constitution on the 7th. The readiness of this least in population, and next to the least in territorial extent, of all the States, to accept that instrument, is a very significant fact when we remember the jealous care with which she had guarded against any infringement of her sovereign Statehood. Delaware alone had given special instructions to her deputies in the Convention not to consent to any sacrifice of the principle of equal representation in Congress. The promptness and unanimity of her people in adopting the new Constitution prove very clearly, not only that they were satisfied with the preservation of that principle in the Federal Senate, but that they did not understand the Constitution, in any of its features, as compromising the "sovereignty, freedom, and independence" which she had so especially cherished. [pg 105] The ratification of their Convention is expressed in these words:
"We, the deputies of the people of the Delaware State, in convention met, having taken into our serious consideration the Federal Constitution proposed and agreed upon by the deputies of the United States at a General Convention held at the city of Philadelphia on the 17th day of September, A. D. 1787, have approved of, assented to, and ratified and confirmed, and by these presents do, in virtue of the powers and authority to us given for that purpose, for and in behalf of ourselves and our constituents, fully, freely, and entirely, approve of, assent to, ratify, and confirm the said Constitution.
"Done in convention at Dover, December 7, 1787."
This, and twelve other like acts, gave to the Constitution "all the life and validity it ever had, or could have, as to the thirteen united or associated States."
Pennsylvania acted next (December 12, 1787), the ratification not being finally accomplished without strong opposition, on grounds which will be referred to hereafter. In announcing its decision, the Convention of this State began as follows:
"In the name of the people of Pennsylvania. Be it known unto all men that we, the delegates of the people of the Commonwealth of Pennsylvania, in General Convention assembled," etc., etc., concluding with these words: "By these presents, do, in the name and by the authority of the same people, and for ourselves, assent to and ratify the foregoing Constitution for the United States of America."
In New Jersey the ratification, which took place on the 18th of December, was unanimous. This is no less significant and instructive than the unanimity of Delaware, from the fact that the New Jersey delegation, in the Convention that framed the Constitution, had taken the lead in behalf of the federal, or State-rights, idea, in opposition to that of nationalism, or consolidation. William Patterson, a distinguished citizen (afterward Governor) of New Jersey, had introduced into that Convention what was known as "the Jersey plan," embodying these [pg 106] State-rights principles, as distinguished from the various "national" plans presented. In defending them, he had said, after calling for the reading of the credentials of delegates:
"Can we, on this ground, form a national Government? I fancy not. Our commissions give a complexion to the business; and can we suppose that, when we exceed the bounds of our duty, the people will approve our proceedings?
"We are met here as the deputies of thirteen independent, sovereign States, for federal purposes. Can we consolidate their sovereignty and form one nation, and annihilate the sovereignties of our States, who have sent us here for other purposes?"
Again, on a subsequent day, after stating that he was not there to pursue his own sentiments of government, but of those who had sent him, he had asked:
"Can we, as representatives of independent States, annihilate the essential powers of independency? Are not the votes of this Convention taken on every question under the idea of independency?"
The fact that this State, which, through her representatives, had taken so conspicuous a part in the maintenance of the principle of State sovereignty, ratified the Constitution with such readiness and unanimity, is conclusive proof that, in her opinion, that principle was not compromised thereby. The conclusion of her ordinance of ratification is in these words:
"Now be it known that we, the delegates of the State of New Jersey, chosen by the people thereof for the purpose aforesaid, having maturely deliberated on and considered the aforesaid proposed Constitution, do hereby, for and on behalf of the people of the said State of New Jersey, agree to, ratify, and confirm the same, and every part thereof.
"Done in convention, by the unanimous consent of the members present, this 18th day of December, A. D. 1787."
Georgia next, and also unanimously, on January 2, 1788, declared, through "the delegates of the State of Georgia, in convention met, pursuant to the provisions of the [act of the] Legislature aforesaid ... in virtue of the powers and authority given [pg 107] us [them] by the people of the said State, for that purpose," that they did "fully and entirely assent to, ratify, and adopt the said Constitution."
Connecticut (on the 9th of January) declares her assent with equal distinctness of assertion as to the source of the authority: "In the name of the people of the State of Connecticut, we, the delegates of the people of the said State, in General Convention assembled, pursuant to an act of the Legislature in October last ... do assent to, ratify, and adopt the Constitution reported by the Convention of delegates in Philadelphia."
In Massachusetts there was a sharp contest. The people of that State were then—as for a long time afterward—exceedingly tenacious of their State independence and sovereignty. The proposed Constitution was subjected to a close, critical, and rigorous examination with reference to its bearing upon this very point. The Convention was a large one, and some of its leading members were very distrustful of the instrument under their consideration. It was ultimately adopted by a very close vote (187 to 168), and then only as accompanied by certain proposed amendments, the object of which was to guard more expressly against any sacrifice or compromise of State sovereignty, and under an assurance, given by the advocates of the Constitution, of the certainty that those amendments would be adopted. The most strenuously urged of these was that ultimately adopted (in substance) as the tenth amendment to the Constitution, which was intended to take the place of the second Article of Confederation, as an emphatic assertion of the continued freedom, sovereignty, and independence of the States. This will be considered more particularly hereafter.
In terms substantially identical with those employed by the other States, Massachusetts thus announced her ratification:
[pg 108]"In convention of the delegates of the people of the Commonwealth of Massachusetts, 1788. The Convention having impartially discussed and fully considered the Constitution for the United States of America, reported [etc.] ... do, in the name and in behalf of the people of the Commonwealth of Massachusetts, assent to and ratify the said Constitution for the United States of America."
This was accomplished on February 7, 1788.
Maryland followed on the 28th of April, and South Carolina on the 23d of May, in equivalent expressions, the ratification of the former being made by "the delegates of the people of Maryland," speaking, as they declared, for ourselves, and in the name and on the behalf of the people of this State; that of the latter, "in convention of the people of the State of South Carolina, by their representatives, ... in the name and behalf of the people of this State."
But South Carolina, like Massachusetts, demanded certain amendments, and for greater assurance accompanied her ordinance of ratification with the following distinct assertion of the principle afterward embodied in the tenth amendment:
"This Convention doth also declare that no section or paragraph of the said Constitution warrants a construction that the States do not retain every power not expressly relinquished by them and vested in the General Government of the Union."
"The delegates of the people of the State of New Hampshire," in convention, on the 21st of June, "in the name and behalf of the people of the State of New Hampshire," declared their approval and adoption of the Constitution. In this State, also, the opposition was formidable (the final vote being 57 to 46), and, as in South Carolina, it was "explicitly declared that all powers not expressly and particularly delegated by the aforesaid Constitution are reserved to the several States, to be by them exercised."
The debates in the Virginia Convention were long and animated. Some of the most eminent and most gifted men of that period took part in them, and they have ever since been referred to for the exposition which they afford of the interpretation of the Constitution by its authors and their contemporaries. Among the members were Madison, Mason, and Randolph, who had also been members of the Convention at Philadelphia. Mr. Madison was one of the most earnest advocates of the new Constitution, while Mr. Mason was as warmly opposed to its adoption; so also was Patrick Henry, the celebrated orator. It was assailed with great vehemence at every vulnerable [pg 109] or doubtful point, and was finally ratified June 26, 1788, by a vote of 89 to 79—a majority of only ten.
This ratification was expressed in the same terms employed by other States, by "the delegates of the people of Virginia ... in the name and in behalf of the people of Virginia." In so doing, however, like Massachusetts, New Hampshire, and South Carolina, Virginia demanded certain amendments as a more explicit guarantee against consolidation, and accompanied the demand with the following declaration:
"That the powers granted under the Constitution, being derived from the people of the United States, may be resumed by them, whenever the same shall be perverted to their injury or oppression, and that every power not granted thereby remains with them and at their will," etc., etc.
Whether, in speaking of a possible resumption of powers by "the people of the United States," the Convention had in mind the action of such a people in the aggregate—political community which did not exist, and of which they, could hardly have entertained even an ideal conception—or of the people of Virginia, for whom they were speaking, and of the other United States then taking similar action—is a question which scarcely admits of argument, but which will be more fully considered in the proper place.
New York, the eleventh State to signify her assent, did so on July 26, 1788, after an arduous and protracted discussion, and then by a majority of but three votes—30 to 27. Even this small majority was secured only by the recommendation of certain material amendments, the adoption of which by the other States it was at first proposed to make a condition precedent to the validity of the ratification. This idea was abandoned after a correspondence between Mr. Hamilton and Mr. Madison, and, instead of conditional ratification, New York provided for the resumption of her grants; but the amendments were put forth with a circular letter to the other States, in which it was declared that "nothing but the fullest confidence of obtaining a revision" of the objectionable features of the Constitution, "and an invincible reluctance to separating from our [pg 110] sister States, could have prevailed upon a sufficient number to ratify it without stipulating for previous amendments."
The ratification was expressed in the usual terms, as made "by the delegates of the people of the State of New York ... in the name and in behalf of the people" of the said State. Accompanying it was a declaration of the principles in which the assent of New York was conceded, one paragraph of which runs as follows:
"That the powers of government may be reassumed by the people, whensoever it shall become necessary to their happiness; that every power, jurisdiction, and right, which is not, by the said Constitution, clearly delegated to the Congress of the United States, or the departments of the Government thereof, remains to the people of the several States, or to their respective State governments, to whom they may have granted the same; and that those clauses in the said Constitution which declare that Congress shall not have or exercise certain powers, do not imply that Congress is entitled to any powers not given by the said Constitution, but such clauses are to be construed either as exceptions to certain specified powers or as inserted for greater caution."
The acceptance of these eleven States having been signified to the Congress, provision was made for putting the new Constitution in operation. This was effected on March 4, 1789, when the Government was organized, with George Washington as President, and John Adams, Vice-President; the Senators and Representatives elected by the States which had acceded to the Constitution, organizing themselves as a Congress.
Meantime, two States were standing, as we have seen, unquestioned and unmolested, in an attitude of absolute independence. The Convention of North Carolina, on August 2, 1788, had rejected the proposed Constitution, or, more properly speaking, had withheld her ratification until action could be taken upon the subject-matter of the following resolution adopted by her Convention:
"Resolved, That a declaration of rights, asserting and securing from encroachment the great principles of civil and religious liberty, and the unalienable rights of the people, together with amendments [pg 111] to the most ambiguous and exceptionable parts of the said Constitution of government, ought to be laid before Congress and the Convention of the States that shall or may be called for the purpose of amending the said Constitution, for their consideration, previous to the ratification of the Constitution aforesaid on the part of the State of North Carolina."
More than a year afterward, when the newly organized Government had been in operation for nearly nine months, and when—although no convention of the States had been called to revise the Constitution—North Carolina had good reason to feel assured that the most important provisions of her proposed amendments and "declaration of rights" would be adopted, she acceded to the amended compact. On November 21, 1789, her Convention agreed, "in behalf of the freemen, citizens, and inhabitants of the State of North Carolina," to "adopt and ratify" the Constitution.
In Rhode Island the proposed Constitution was at first submitted to a direct vote of the people, who rejected it by an overwhelming majority. Subsequently—that is, on May 29, 1790, when the reorganized Government had been in operation for nearly fifteen months, and when it had become reasonably certain that the amendments thought necessary would be adopted—a convention of the people of Rhode Island acceded to the new Union, and ratified the Constitution, though even then by a majority of only two votes in sixty-six—34 to 32. The ratification was expressed in substantially the same language as that which has now been so repeatedly cited:
"We, the delegates of the people of the State of Rhode Island and Providence Plantations, duly elected and met in convention, ... in the name and behalf of the people of Rhode Island and Providence Plantations, do, by these presents, assent to and ratify the said Constitution."
It is particularly to be noted that, during the intervals between the organization of the Federal Government under the new Constitution and the ratification of that Constitution by, North Carolina and Rhode Island, respectively, those States [pg 112] were absolutely independent and unconnected with any other political community, unless they be considered as still representing the "United States of America," which by the Articles of Confederation had been declared a "perpetual union." The other States had seceded from the former union—not in a body, but separately, each for itself—and had formed a new association, leaving these two States in the attitude of foreign though friendly powers. There was no claim of any right to control their action, as if they had been mere geographical or political divisions of one great consolidated community or "nation." Their accession to the Union was desired, but their freedom of choice in the matter was never questioned. And then it is to be noted, on their part, that, like the house of Judah, they refrained from any attempt to force the seceding sisters to return.
As illustrative of the relations existing during this period between the United States and Rhode Island, it may not be uninstructive to refer to a letter sent by the government of the latter to the President and Congress, and transmitted by the President to the Senate, with the following note:
"United States, September 26, 1789.
"Gentlemen of the Senate: Having yesterday received a letter written in this month by the Governor of Rhode Island, at the request and in behalf of the General Assembly of that State, addressed to the President, the Senate, and the House of Representatives of the eleven United States of America in Congress assembled, I take the earliest opportunity of laying a copy of it before you.
(Signed) "GEORGE WASHINGTON."
Some extracts from the communication referred to are annexed:
[pg 114]"State of Rhode Island and Providence Plantations, In General Assembly, September Session, 1789.
"To the President, the Senate, and the House of Representatives of the eleven United States of America in Congress assembled:
"The critical situation in which the people of this State are placed engages us to make these assurances, on their behalf, of their attachment and friendship to their sister States, and of their [pg 113] disposition to cultivate mutual harmony and friendly intercourse. They know themselves to be a handful, comparatively viewed, and, although they now stand as it were alone, they have not separated themselves or departed from the principles of that Confederation, which was formed by the sister States in their struggle for freedom and in the hour of danger....
"Our not having acceded to or adopted the new system of government formed and adopted by most of our sister States, we doubt not, has given uneasiness to them. That we have not seen our way clear to it, consistently with our idea of the principles upon which we all embarked together, has also given pain to us. We have not doubted that we might thereby avoid present difficulties, but we have apprehended future mischief....
"Can it be thought strange that, with these impressions, they [the people of this State] should wait to see the proposed system organized and in operation?—to see what further checks and securities would be agreed to and established by way of amendments, before they could adopt it as a Constitution of government for themselves and their posterity?...
"We are induced to hope that we shall not be altogether considered as foreigners having no particular affinity or connection with the United States; but that trade and commerce, upon which the prosperity of this State much depends, will be preserved as free and open between this State and the United States, as our different situations at present can possibly admit....
"We feel ourselves attached by the strongest ties of friendship, kindred, and interest, to our sister States; and we can not, without the greatest reluctance, look to any other quarter for those advantages of commercial intercourse which we conceive to be more natural and reciprocal between them and us.
"I am, at the request and in behalf of the General Assembly, your most obedient, humble servant.
(Signed) "John Collins, Governor.
"His Excellency, the President of the United States."
[American State Papers, Vol. I, Miscellaneous.]
The Constitution not adopted by one People "in the Aggregate."—A Great Fallacy exposed.—Mistake of Judge Story.—Colonial Relations.—The United Colonies of New England.—Other Associations.—Independence of Communities traced from Germany to Great Britain, and from Great Britain to America.—Mr. Everett's "Provincial People."—Origin and Continuance of the Title "United States."—No such Political Community as the "People of the United States."
The historical retrospect of the last three chapters and the extracts from the records of a generation now departed have been presented as necessary to a right understanding of the nature and principles of the compact of 1787, on which depended the questions at issue in the secession of 1861 and the contest that ensued between the States.
We have seen that the united colonies, when they declared their independence, formed a league or alliance with one another as "United States." This title antedated the adoption of the Articles of Confederation. It was assumed immediately after the Declaration of Independence, and was continued under the Articles of Confederation; the first of which declared that "the style of this confederacy shall be 'The United States of America'"; and this style was retained—without question—in the formation of the present Constitution. The name was not adopted as antithetical to, or distinctive from, "confederate," as some seem to have imagined. If it has any significance now, it must have had the same under the Articles of Confederation, or even before they were adopted.
It has been fully shown that the States which thus became and continued to be "united," whatever form their union assumed, acted and continued to act as distinct and sovereign political communities. The monstrous fiction that they acted as one people "in their aggregate capacity" has not an atom of fact to serve as a basis.
To go back to the very beginning, the British colonies never constituted one people. Judge Story, in his "Commentaries" on the Constitution, seems to imply the contrary, though he shrinks from a direct assertion of it, and clouds the subject by a confusion [pg 115] of terms. He says: "Now, it is apparent that none of the colonies before the Revolution were, in the most large and general sense, independent or sovereign communities. They were all originally settled under and subjected to the British Crown." And then he proceeds to show that they were, in their colonial condition, not sovereign—a proposition which nobody disputed. As colonies, they had no claim, and made no pretension, to sovereignty. They were subject to the British Crown, unless, like the Plymouth colony, "a law unto themselves," but they were independent of each other—the only point which has any bearing upon their subsequent relations. There was no other bond between them than that of their common allegiance to the Government of the mother-country. As an illustration of this may be cited the historical fact that, when John Stark, of Bennington memory, was before the Revolution engaged in a hunting expedition in the Indian country, he was captured by the savages and brought to Albany, in the colony of New York, for a ransom; but, inasmuch as he belonged to New Hampshire, the government of New York took no action for his release. There was not even enough community of feeling to induce individual citizens to provide money for the purpose.
There were, however, local and partial confederacies among the New England colonies, long before the Declaration of Independence. As early as the year 1643 a Congress had been organized of delegates from Massachusetts, Plymouth, New Haven, and Connecticut, under the style of "The United Colonies of New England." The objects of this confederacy, according to Mr. Bancroft, were "protection against the encroachments of the Dutch and French, security against the tribes of savages, the liberties of the gospel in purity and in peace."35 The general affairs of the company were intrusted to commissions, two from each colony; but the same historian tells us that "to each its respective local jurisdiction was carefully reserved," and he refers to this as evidence that the germ-principle of State-rights was even then in existence. "Thus remarkable for unmixed simplicity" (he proceeds) "was the form of the first confederated [pg 116] government in America.... There was no president, except as a moderator of its meetings, and the larger State [sic], Massachusetts, superior to all the rest in territory, wealth, and population, had no greater number of votes than New Haven. But the commissioners were in reality little more than a deliberative body; they possessed no executive power, and, while they could decree a war and a levy of troops, it remained for the States to carry their votes into effect."36
This confederacy continued in existence for nearly fifty years. Between that period and the year 1774, when the first Continental Congress met in Philadelphia, several other temporary and provisional associations of colonies had been formed, and the people had been taught the advantages of union for a common purpose; but they had never abandoned or compromised the great principle of community independence. That form of self-government, generated in the German forests before the days of the Cæsars, had given to that rude people a self-reliance and patriotism which first checked the flight of the Roman eagles, which elsewhere had been the emblem of their dominion over the known world. This principle—the great preserver of all communal freedom and of mutual harmony—was transplanted by the Saxons into England, and there sustained those personal rights which, after the fall of the Heptarchy, were almost obliterated by the encroachments of Norman despotism; but, having the strength and perpetuity of truth and right, were reasserted by the mailed hands of the barons at Runnymede for their own benefit and that of their posterity. Englishmen, the early settlers, brought this idea to the wilds of America, and it found expression in many forms among the infant colonies.
Mr. Edward Everett, in his Fourth-of-July address, delivered in New York in 1861, following the lead of Judge Story, and with even less caution, boldly declares that, "before their independence of England was asserted, they [the colonies] constituted a provincial people." To sustain this position—utterly contrary to all history as it is—he is unable to adduce any valid American authority, but relies almost exclusively upon loose expressions employed in debate in the British Parliament about [pg 117] the period of the American Revolution—such as "that people," "that loyal and respectable people," "this enlightened and spirited people," etc., etc. The speakers who made use of this colloquial phraseology concerning the inhabitants of a distant continent, in the freedom of extemporaneous debate, were not framing their ideas with the exactitude of a didactic treatise, and could little have foreseen the extraordinary use to be made of their expressions nearly a century afterward, in sustaining a theory contradictory to history as well as to common sense. It is as if the familiar expressions often employed in our own time, such as "the people of Africa," or "the people of South America," should be cited, by some ingenious theorist of a future generation, as evidence that the subjects of the Khedive and those of the King of Dahomey were but "one people," or that the Peruvians and the Patagonians belonged to the same political community.
Mr. Everett, it is true, quotes two expressions of the Continental Congress to sustain his remarkable proposition that the colonies were "a people." One of these is found in a letter addressed by the Congress to General Gage in October, 1774, remonstrating against the erection of fortifications in Boston, in which they say, "We entreat your Excellency to consider what a tendency this conduct must have to irritate and force a free people, hitherto well disposed to peaceable measures, into hostilities." From this expression Mr. Everett argues that the Congress considered themselves the representatives of "a people." But, by reference to the proceedings of the Congress, he might readily have ascertained that the letter to General Gage was written in behalf of "the town of Boston and Province of Massachusetts Bay," the people of which were "considered by all America as suffering in the common cause for their noble and spirited opposition to oppressive acts of Parliament." The avowed object was "to entreat his Excellency, from the assurance we have of the peaceable disposition of the inhabitants of the town of Boston and of the Province of Massachusetts Bay, to discontinue his fortifications."37 These were the "people" referred to by the Congress; and the children of the Pilgrims, [pg 118] who occupied at that period the town of Boston and Province of Massachusetts Bay, would have been not a little astonished to be reckoned as "one people," in any other respect than that of the "common cause," with the Roman Catholics of Maryland, the Episcopalians of Virginia, the Quakers of Pennsylvania, or the Baptists of Rhode Island.
The other citation of Mr. Everett is from the first sentence of the Declaration of Independence: "When in the course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another," etc., etc. This, he says, characterizes "the good people" of the colonies as "one people."
Plainly, it does no such thing. The misconception is so palpable as scarcely to admit of serious answer. The Declaration of Independence opens with a general proposition. "One people" is equivalent to saying "any people." The use of the correlatives "one" and "another" was the simple and natural way of stating this general proposition. "One people" applies, and was obviously intended to apply, to all cases of the same category—to that of New Hampshire, or Delaware, or South Carolina, or of any other people existing or to exist, and whether acting separately or in concert. It applies to any case, and all cases, of dissolution of political bands, as well as to the case of the British colonies. It does not, either directly or by implication, assert their unification, and has no bearing whatever upon the question.
When the colonies united in sending representatives to a Congress in Philadelphia, there was no purpose—no suggestion of a purpose—to merge their separate individuality in one consolidated mass. No such idea existed, or with their known opinions could have existed. They did not assume to become a united colony or province, but styled themselves "united colonies"—colonies united for purposes of mutual counsel and defense, as the New England colonies had been united more than a hundred years before. It was as "United States"—not as a state, or united people—that these colonies—still distinct and politically independent of each other—asserted and achieved their independence of the mother-country. As "United States" [pg 119] they adopted the Articles of Confederation, in which the separate sovereignty, freedom, and independence of each was distinctly asserted. They were "united States" when Great Britain acknowledged the absolute freedom and independence of each, distinctly and separately recognized by name. France and Spain were parties to the same treaty, and the French and Spanish idioms still express and perpetuate, more exactly than the English, the true idea intended to be embodied in the title—les États Unis, or los Estados Unidos—the States united.
It was without any change of title—still as "United States"—without any sacrifice of individuality—without any compromise of sovereignty—that the same parties entered into a new and amended compact with one another under the present Constitution. Larger and more varied powers were conferred upon the common Government for the purpose of insuring "a more perfect union"—not for that of destroying or impairing the integrity of the contracting members.
The point which now specially concerns the argument is the historical fact that, in all these changes of circumstances and of government, there has never been one single instance of action by the "people of the United States in the aggregate," or as one body. Before the era of independence, whatever was done by the people of the colonies was done by the people of each colony separately and independently of each other, although in union by their delegates for certain specified purposes. Since the assertion of their independence, the people of the United States have never acted otherwise than as the people of each State, severally and separately. The Articles of Confederation were established and ratified by the several States, either through conventions of their people or through the State Legislatures. The Constitution which superseded those articles was framed, as we have seen, by delegates chosen and empowered by the several States, and was ratified by conventions of the people of the same States—all acting in entire independence of one another. This ratification alone gave it force and validity. Without the approval and ratification of the people of the States, it would have been, as Mr. Madison expressed it, "of no more consequence than the [pg 120] paper on which it was written." It was never submitted to "the people of the United States in the aggregate," or as a people. Indeed, no such political community as the people of the United States in the aggregate exists at this day or ever did exist. Senators in Congress confessedly represent the States as equal units. The House of Representatives is not a body of representatives of "the people of the United States," as often erroneously asserted; but the Constitution, in the second section of its first article, expressly declares that it "shall be composed of members chosen by the people of the several States."
Nor is it true that the President and Vice-President are elected, as it is sometimes vaguely stated, by vote of the "whole people" of the Union. Their election is even more unlike what such a vote would be than that of the representatives, who in numbers at least represent the strength of their respective States. In the election of President and Vice-President the Constitution (Article II) prescribes that "each State shall appoint, in such manner as the Legislature thereof may direct, a number of electors" for the purpose of choosing a President and Vice-President. The number of these electors is based partly upon the equal sovereignty, partly upon the unequal population of the respective States.
It is, then, absolutely true that there has never been any such thing as a vote of "the people of the United States in the aggregate"; no such people is recognized by the Constitution; and no such political community has ever existed. It is equally true that no officer or department of the General Government formed by the Constitution derives authority from a majority of the whole people of the United States, or has ever been chosen by such majority. As little as any other is the United States Government a government of a majority of the mass.
Footnote 35: (return)Bancroft's "History of the United States," vol. i, chap. ix.
Footnote 36: (return)Bancroft's "History of the United States," vol. i, chap. ix.
Footnote 37: (return)[pg 121]"American Archives," fourth series, vol. i, p. 908.
The Preamble to the Constitution.—"We, the People."
The preamble to the Constitution proposed by the Convention of 1787 is in these words:
"We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America."
The phraseology of this preamble has been generally regarded as the stronghold of the advocates of consolidation. It has been interpreted as meaning that "we, the people of the United States," as a collective body, or as a "nation," in our aggregate capacity, had "ordained and established" the Constitution over the States.
This interpretation constituted, in the beginning, the most serious difficulty in the way of the ratification of the Constitution. It was probably this to which that sturdy patriot, Samuel Adams, of Massachusetts, alluded, when he wrote to Richard Henry Lee, "I stumble at the threshold." Patrick Henry, in the Virginia Convention, on the third day of the session, and in the very opening of the debate, attacked it vehemently. He said, speaking of the system of government set forth in the proposed Constitution:
"That this is a consolidated government is demonstrably clear; and the danger of such a government is, to my mind, very striking. I have the highest veneration for those gentlemen [its authors]; but, sir, give me leave to demand, What right had they to say, We, the people? My political curiosity, exclusive of my anxious solicitude for the public welfare, leads me to ask, Who authorized them to speak the language of 'We, the people,' instead of We, the States? States are the characteristics and the soul of a confederation. If the States be not the agents of this [pg 122] compact, it must be one great consolidated national government of the people of all the States."38
Again, on the next day, with reference to the same subject, he said: "When I asked that question, I thought the meaning of my interrogation was obvious. The fate of this question and of America may depend on this. Have they said, We, the States? Have they made a proposal of a compact between States? If they had, this would be a confederation: it is otherwise most clearly a consolidated government. The question turns, sir, on that poor little thing—the expression, 'We, the people,' instead of the States of America."39
The same difficulty arose in other minds and in other conventions.
The scruples of Mr. Adams were removed by the explanations of others, and by the assurance of the adoption of the amendments thought necessary—especially of that declaratory safeguard afterward embodied in the tenth amendment—to be referred to hereafter.
Mr. Henry's objection was thus answered by Mr. Madison:
"Who are parties to it [the Constitution]? The people—but not the people as composing one great body; but the people as composing thirteen sovereignties: were it, as the gentleman [Mr. Henry] asserts, a consolidated government, the assent of a majority of the people would be sufficient for its establishment, and as a majority have adopted it already, the remaining States would be bound by the act of the majority, even if they unanimously reprobated it: were it such a government as is suggested, it would be now binding on the people of this State, without having had the privilege of deliberating upon it; but, sir, no State is bound by it, as it is, without its own consent. Should all the States adopt it, it will be then a government established by the thirteen States of America, not through the intervention of the Legislatures, but by the people at large. In this particular respect the distinction between the existing and proposed governments is very material. The existing system has been derived from the dependent, derivative authority of the Legislatures of the [pg 123] States, whereas this is derived from the superior power of the people."40
It must be remembered that this was spoken by one of the leading members of the Convention which formed the Constitution, within a few months after that instrument was drawn up. Mr. Madison's hearers could readily appreciate his clear answer to the objection made. The "people" intended were those of the respective States—the only organized communities of people exercising sovereign powers of government; and the idea intended was the ratification and "establishment" of the Constitution by direct act of the people in their conventions, instead of by act of their Legislatures, as in the adoption of the Articles of Confederation. The explanation seems to have been as satisfactory as it was simple and intelligible. Mr. Henry, although he fought to the last against the ratification of the Constitution, did not again bring forward this objection, for the reason, no doubt, that it had been fully answered. Indeed, we hear no more of the interpretation which suggested it, from that period, for nearly half a century, when it was revived, and has since been employed, to sustain that theory of a "great consolidated national government" which Mr. Madison so distinctly repudiated.
But we have access to sources of information, not then available, which make the intent and meaning of the Constitution still plainer. When Mr. Henry made his objection, and Mr. Madison answered it, the journal of the Philadelphia Convention had not been published. That body had sat with closed doors, and among its rules had been the following:
"That no copy be taken of any entry on the journal during the sitting of the House, without the leave of the House.
"That members only be permitted to inspect the journal.
"That nothing spoken in the House be printed, or otherwise published or communicated, without leave."41
We can understand, by reference to these rules, how Mr. Madison should have felt precluded from making allusion to [pg 124] anything that had occurred during the proceedings of the Convention. But the secrecy then covering those proceedings has long since been removed. The manuscript journal, which was intrusted to the keeping of General Washington, President of the Convention, was deposited by him, nine years afterward, among the archives of the State Department. It has since been published, and we can trace for ourselves the origin, and ascertain the exact significance, of that expression, "We, the people," on which Patrick Henry thought the fate of America might depend, and which has been so grossly perverted in later years from its true intent.
The original language of the preamble, reported to the Convention by a committee of five appointed to prepare the Constitution, as we find it in the proceedings of August 6, 1787, was as follows:
"We, the people of the States of New Hampshire, Massachusetts, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia, do ordain, declare, and establish, the following Constitution for the government of ourselves and our posterity."
There can be no question here what was meant: it was "the people of the States," designated by name, that were to "ordain, declare, and establish" the compact of union for themselves and their posterity. There is no ambiguity nor uncertainty in the language; nor was there any difference in the Convention as to the use of it. The preamble, as perfected, was submitted to vote on the next day, and, as the journal informs us, "it passed unanimously in the affirmative."
There was no subsequent change of opinion on the subject. The reason for the modification afterward made in the language is obvious. It was found that unanimous ratification of all the States could not be expected, and it was determined, as we have already seen, that the consent of nine States should suffice for the establishment of the new compact "between the States so ratifying the same." Any nine would be sufficient to put the proposed government in operation as to them, thus leaving the [pg 125] remainder of the thirteen to pursue such course as might be to each preferable. When this conclusion was reached, it became manifestly impracticable to designate beforehand the consenting States by name. Hence, in the final revision, the specific enumeration of the thirteen States was omitted, and the equivalent phrase "people of the United States" inserted in its place—plainly meaning the people of such States as should agree to unite on the terms proposed. The imposing fabric of political delusion, which has been erected on the basis of this simple transaction, disappears before the light of historical record.
Could the authors of the Constitution have foreseen the perversion to be made of their obvious meaning, it might have been prevented by an easy periphrasis—such as, "We, the people of the States hereby united," or something to the same effect. The word "people" in 1787, as in 1880, was, as it is, a collective noun, employed indiscriminately, either as a unit in such expressions as "this people," "a free people," etc., or in a distributive sense, as applied to the citizens or inhabitants of one state or country or a number of states or countries. When the Convention of the colony of Virginia, in 1774, instructed their delegates to the Congress that was to meet in Philadelphia, "to obtain a redress of those grievances, without which the people of America can neither be safe, free, nor happy," it was certainly not intended to convey the idea that the people of the American Continent, or even of the British colonies in America, constituted one political community. Nor did Edmund Burke have any such meaning when he said, in his celebrated speech in Parliament, in 1775, "The people of the colonies are descendants of Englishmen."
We need go no further than to the familiar language of King James's translation of the Bible for multiplied illustrations of this indiscriminate use of the term, both in its collective and distributive senses. For example, King Solomon prays at the dedication of the temple:
[pg 126]"That thine eyes may be open unto the supplication ... of thy people Israel, to hearken unto them in all that they call for unto thee. For thou didst separate them from among all the people of the earth, to be thine inheritance." (1 Kings viii, 52, 53.)
Here we have both the singular and plural senses of the same word—one people, Israel, and all the people of the earth—in two consecutive sentences. In "the people of the earth," the word people is used precisely as it is in the expression "the people of the United States" in the preamble to the Constitution, and has exactly the same force and effect. If in the latter case it implies that the people of Massachusetts and those of Virginia were mere fractional parts of one political community, it must in the former imply a like unity among the Philistines, the Egyptians, the Assyrians, Babylonians, and Persians, and all other "people of the earth," except the Israelites. Scores of examples of the same sort might be cited if it were necessary.42
In the Declaration of Independence we find precisely analogous instances of the employment of the singular form for both singular and plural senses—"one people," "a free people," in the former, and "the good people of these colonies" in the latter. Judge Story, in the excess of his zeal in behalf of a theory of consolidation, bases upon this last expression the conclusion that the assertion of independence was the act of "the whole people of the united colonies" as a unit; overlooking or suppressing the fact that, in the very same sentence, the colonies declare themselves "free and independent States"—not a free and independent state—repeating the words "independent States" three times.
If, however, the Declaration of Independence constituted one "whole people" of the colonies, then that geographical section of it, formerly known as the colony of Maryland, was in a state of revolt or "rebellion" against the others, as well as against Great Britain, from 1778 to 1781, during which period Maryland refused to ratify or be bound by the Articles of Confederation, which, according to this theory, was binding upon her, as a majority of the "whole people" had adopted it. A fortiori, North Carolina and Rhode Island were in a state of rebellion in 1789-'90, while they declined to ratify and recognize the Constitution adopted by the other eleven fractions of this united people. Yet no hint of any such pretension—of [pg 127] any claim of authority over them by the majority—of any assertion of "the supremacy of the Union"—is to be found in any of the records of that period.
It might have been unnecessary to bestow so much time and attention in exposing the absurdity of the deductions from a theory so false, but for the fact that it has been specious enough to secure the countenance of men of such distinction as Webster, Story, and Everett; and that it has been made the plea to justify a bloody war against that principle of State sovereignty and independence, which was regarded by the fathers of the Union as the corner-stone of the structure and the basis of the hope for its perpetuity.
Footnote 38: (return)Elliott's "Debates" (Washington edition, 1836), vol. iii, p. 54.
Footnote 39: (return)Ibid., p. 72.
Footnote 40: (return)Elliott's "Debates" (Washington edition, 1836), vol. iii, pp. 114, 115.
Footnote 41: (return)Journal of the Federal Convention, May 29, 1787, 1 Elliott's "Debates."
Footnote 42: (return)For a very striking illustration, see Deuteronomy vii, 6, 7.
The Preamble to the Constitution—subject continued.—Growth of the Federal Government and Accretions of Power.—Revival of Old Errors.—Mistakes and Misstatements.—Webster, Story, and Everett.—Who "ordained and established" the Constitution?
In the progressive growth of the Government of the United States in power, splendor, patronage, and consideration abroad, men have been led to exalt the place of the Government above that of the States which created it. Those who would understand the true principles of the Constitution can not afford to lose sight of the essential plurality of idea invariably implied in the term "United States," wherever it is used in that instrument. No such unit as the United States is ever mentioned therein. We read that "no title of nobility shall be granted by the United States, and no person holding any office of profit or trust under them shall, without the consent of Congress, accept," etc.43 "The President ... shall not receive, within that period, any other emolument from the United States, or any of them."44 "The laws of the United States, and treaties made or which shall be made under their authority," etc.45 "Treason [pg 128] against the United States shall consist only in levying war against them, or in adhering to their enemies."46 The Federal character of the Union is expressed by this very phraseology, which recognizes the distinct integrity of its members, not as fractional parts of one great unit, but as component units of an association. So clear was this to contemporaries, that it needed only to be pointed out to satisfy their scruples. We have seen how effectual was the answer of Mr. Madison to the objections raised by Patrick Henry. Mr. Tench Coxe, of Pennsylvania, one of the ablest political writers of his generation, in answering a similar objection, said: "If the Federal Convention had meant to exclude the idea of 'union'—that is, of several and separate sovereignties joining in a confederacy—they would have said, 'We, the people of America'; for union necessarily involves the idea of competent States, which complete consolidation excludes."47
More than forty years afterward, when the gradual accretions to the power, prestige, and influence of the central Government had grown to such extent as to begin to hide from view the purposes for which it was founded, those very objections, which in the beginning had been answered, abandoned, and thrown aside, were brought to light again, and presented to the country as expositions of the true meaning of the Constitution. Mr. Webster, one of the first to revive some of those early misconceptions so long ago refuted as to be almost forgotten, and to breathe into them such renewed vitality as his commanding genius could impart, in the course of his well-known debate in the Senate with Mr. Hayne, in 1830, said:
[pg 129]"It can not be shown that the Constitution is a compact between State governments. The Constitution itself, in its very front, refutes that proposition: it declares that it is ordained and established by the people of the United States. So far from saying that it is established by the governments of the several States, it does not even say that it is established by the people of the several States; but it pronounces that it is established by the people of the United States in the aggregate."48
Judge Story about the same time began to advance the same theory, but more guardedly and with less rashness of statement. It was not until thirty years after that it attained its full development in the annunciations of sectionists rather than statesmen. Two such may suffice as specimens:
Mr. Edward Everett, in his address delivered on the 4th of July, 1861, and already referred to, says of the Constitution: "That instrument does not purport to be a 'compact,' but a constitution of government. It appears, in its first sentence, not to have been entered into by the States, but to have been ordained and established by the people of the United States for themselves and their 'posterity.' The States are not named in it; nearly all the characteristic powers of sovereignty are expressly granted to the General Government and expressly prohibited to the States."49 Mr. Everett afterward repeats the assertion that "the States are not named in it."50
But a yet more extraordinary statement of the "one people" theory is found in a letter addressed to the London "Times," in the same year, 1861, on the "Causes of the Civil War," by Mr. John Lothrop Motley, afterward Minister to the Court of St. James. In this letter Mr. Motley says of the Constitution of the United States:
"It was not a compact. Who ever heard of a compact to which there were no parties? or who ever heard of a compact made by a single party with himself? Yet the name of no State is mentioned in the whole document; the States themselves are only mentioned to receive commands or prohibitions; and the 'people of the United States' is the single party by whom alone the instrument is executed.
"The Constitution was not drawn up by the States, it was not promulgated in the name of the States, it was not ratified by the States. The States never acceded to it, and possess no power to secede from it. It was 'ordained and established' over the States by a power superior to the States; by the people of the whole land in their aggregate capacity," etc.
It would be very hard to condense a more amazing amount [pg 130] of audacious and reckless falsehood in the same space. In all Mr. Motley's array of bold assertions, there is not one single truth—unless it be, perhaps, that "the Constitution was not drawn up by the States." Yet it was drawn up by their delegates, and it is of such material as this, derived from writers whose reputation gives a semblance of authenticity to their statements, that history is constructed and transmitted.
One of the most remarkable—though, perhaps, the least important—of these misstatements is that which is also twice repeated by Mr. Everett—that the name of no State is mentioned in the whole document, or, as he puts it, "the States are not named in it." Very little careful examination would have sufficed to find, in the second section of the very first article of the Constitution, the names of every one of the thirteen then existent States distinctly mentioned, with the number of representatives to which each would be entitled, in case of acceding to the Constitution, until a census of their population could be taken. The mention there made of the States by name is of no special significance; it has no bearing upon any question of principle; and the denial of it is a purely gratuitous illustration of the recklessness of those from whom it proceeds, and the low estimate put on the intelligence of those addressed. It serves, however, to show how much credence is to be given to their authority as interpreters and expounders.
The reason why the names of the ratifying States were not mentioned has already been given: it was simply because it was not known which States would ratify. But, as regards mention of "the several States," "each State," "any State," "particular States," and the like, the Constitution is full of it. I am informed, by one who has taken the pains to examine carefully that document with reference to this very point, that—without including any mention of "the United States" or of "foreign states," and excluding also the amendments—the Constitution, in its original draft, makes mention of the States, as States, no less than seventy times; and of these seventy times, only three times in the way of prohibition of the exercise of a power. In fact, it is full of statehood. Leave out all mention of the States—I make no mere verbal point or quibble, but [pg 131] mean the States in their separate, several, distinct capacity—and what would remain would be of less account than the play of the Prince of Denmark with the part of Hamlet omitted.
But, leaving out of consideration for the moment all minor questions, the vital and essential point of inquiry now is, by what authority the Constitution was "ordained and established." Mr. Webster says it was done "by the people of the United States in the aggregate;" Mr. Everett repeats substantially the same thing; and Mr. Motley, taking a step further, says that "it was 'ordained and established' by a power superior to the States—by the people of the whole land in their aggregate capacity."
The advocates of this mischievous dogma assume the existence of an unauthorized, undefined power of a "whole people," or "people of the whole land," operating through the agency of the Philadelphia Convention, to impose its decrees upon the States. They forget, in the first place, that this Convention was composed of delegates, not of any one people, but of distinct States; and, in the second place, that their action had no force or validity whatever—in the words of Mr. Madison, that it was of no more consequence than the paper on which it was written—until approved and ratified by a sufficient number of States. The meaning of the preamble, "We, the people of the United States ... do ordain and establish this Constitution," is ascertained, fixed, and defined by the final article: "The ratification of the conventions of nine States shall be sufficient for the establishment of this Constitution between the States so ratifying the same." If it was already established, what need was there of further establishment? It was not ordained or established at all, until ratified by the requisite number of States. The announcement in the preamble of course had reference to that expected ratification, without which the preamble would have been as void as the body of the instrument. The assertion that "it was not ratified by the States" is so plainly and positively contrary, to well-known fact—so inconsistent with the language of the Constitution itself—that it is hard to imagine what was intended by it, unless it was to take advantage of the presumed ignorance of the subject among [pg 132] the readers of an English journal, to impose upon them, a preposterous fiction. It was State ratification alone—the ratification of the people of each State, independently of all other people—that gave force, vitality, and validity to the Constitution.
Judge Story, referring to the fact that the voters assembled in the several States, asks where else they could have assembled—a pertinent question on our theory, but the idea he evidently intended to convey was that the voting of "the people" by States was a mere matter of geographical necessity, or local convenience; just as the people of a State vote by counties; the people of a county by towns, "beats," or "precincts"; and the people of a city by wards. It is hardly necessary to say that, in all organized republican communities, majorities govern. When we speak of the will of the people of a community, we mean the will of a majority, which, when constitutionally expressed, is binding on any minority of the same community.
If, then, we can conceive, and admit for a moment, the possibility that, when the Constitution was under consideration, the people of the United States were politically "one people"—a collective unit—two deductions are clearly inevitable: In the first place, each geographical division of this great community would have been entitled to vote according to its relative population; and, in the second, the expressed will of the legal majority would have been binding upon the whole. A denial of the first proposition would be a denial of common justice and equal rights; a denial of the second would be to destroy all government and establish mere anarchy.
Now, neither of these principles was practiced or proposed or even imagined in the case of the action of the people of the United States (if they were one political community) upon the proposed Constitution. On the contrary, seventy thousand people in the State of Delaware had precisely the same weight—one vote—in its ratification, as seven hundred thousand (and more) in Virginia, or four hundred thousand in Pennsylvania. Would not this have been an intolerable grievance and wrong—would no protest have been uttered against it—if these had been fractional parts of one community of people?
Again, while the will of the consenting majority within any [pg 133] State was binding on the opposing minority in the same, no majority, or majorities, of States or people had any control whatever upon the people of another State. The Constitution was established, not "over the States," as asserted by Motley, but "between the States," and only "between the States so ratifying the same." Little Rhode Island, with her seventy thousand inhabitants, was not a mere fractional part of "the people of the whole land," during the period for which she held aloof, but was as free, independent, and unmolested, as any other sovereign power, notwithstanding the majority of more than three millions of "the whole people" on the other side of the question.
Before the ratification of the Constitution—when there was some excuse for an imperfect understanding or misconception of the terms proposed—Mr. Madison thus answered, in advance, the objections made on the ground of this misconception, and demonstrated its fallacy. He wrote:
"That it will be a federal and not a national act, as these terms are understood by objectors—the act of the people, as forming so many independent States, not as forming one aggregate nation—is obvious from this single consideration, that it is to result neither from the decision of a majority of the people of the Union nor from that of a majority of the States. It must result from the unanimous assent of the several States that are parties to it, differing no otherwise from their ordinary assent than in its being expressed, not by the legislative authority, but by that of the people themselves. Were the people regarded in this transaction as forming one nation, the will of the majority of the whole people of the United States would bind the minority, in the same manner as the majority in each State must bind the minority; and the will of the majority must be determined either by a comparison of the individual votes or by considering the will of the majority of the States as evidence of the will of a majority of the people of the United States. Neither of these has been adopted. Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act."51
It is a tedious task to have to expose the misstatements, both [pg 134] of fact and of principle, which have occupied so much attention, but it is rendered necessary by the extent to which they have been imposed upon the acceptance of the public, through reckless assertion and confident and incessant repetition.
"'I remember,' says Mr. Webster, 'to have heard Chief-Justice Marshall ask counsel, who was insisting upon the authority of an act of legislation, if he thought an act of legislation could create or destroy a fact, or change the truth of history? "Would it alter the fact," said he, "if a Legislature should solemnly enact that Mr. Hume never wrote the History of England?" A Legislature may alter the law,' continues Mr. Webster, 'but no power can reverse a fact.' Hence, if the Convention of 1787 had expressly declared that the Constitution was [to be] ordained by 'the people of the United States in the aggregate,' or by the people of America as one nation, this would not have destroyed the fact that it was ratified by each State for itself, and that each State was bound only by 'its own voluntary act.'" (Bledsoe.)
But the Convention, as we have seen, said no such thing. No such community as "the people of the United States in the aggregate" is known to it, or ever acted on it. It was ordained, established, and ratified by the people of the several States; and no theories or assertions of a later generation can change or conceal this fixed fact, as it stands revealed in the light of contemporaneous records.
Footnote 43: (return)Article I, section 9, clause 8.
Footnote 44: (return)Article II, section 1, clause 6.
Footnote 45: (return)Article III, section 2.
Footnote 46: (return)Article III, section 3.
Footnote 47: (return)"American Museum," February, 1788.
Footnote 48: (return)Benton's "Abridgment," vol. x, p. 448.
Footnote 49: (return)See address by Edward Everett at the Academy of Music, New York, July 4, 1861.
Footnote 50: (return)Ibid.
Footnote 51: (return)"Federalist," No. xxxix.
Verbal Cavils and Criticisms.—"Compact," "Confederacy," "Accession," etc.—The "New Vocabulary."—The Federal Constitution a Compact, and the States acceded to it.—Evidence of the Constitution itself and of Contemporary Records.
I have habitually spoken of the Federal Constitution as a compact, and of the parties to it as sovereign States. These terms should not, and in earlier times would not, have required explanation or vindication. But they have been called in question by the modern school of consolidation. These gentlemen [pg 135] admit that the Government under the Articles of Confederation was a compact. Mr. Webster, in his rejoinder to Mr. Hayne, on the 27th of January, 1830, said:
"When the gentleman says the Constitution is a compact between the States, he uses language exactly applicable to the old Confederation. He speaks as if he were in Congress before 1789. He describes fully that old state of things then existing. The Confederation was, in strictness, a compact; the States, as States, were parties to it. We had no other General Government. But that was found insufficient and inadequate to the public exigencies. The people were not satisfied with it, and undertook to establish a better. They undertook to form a General Government, which should stand on a new basis—not a confederacy, not a league, not a compact between States, but a Constitution."52
Again, in his discussion with Mr. Calhoun, three years afterward, he vehemently reiterates the same denial. Of the Constitution, he says: "Does it call itself a compact? Certainly not. It uses the word 'compact' but once, and that when it declares that the States shall enter into no compact.53 Does it call itself a league, a confederacy, a subsisting treaty between the States? Certainly not. There is not a particle of such language in all its pages."54
The artist, who wrote under his picture the legend "This is a horse," made effectual provision against any such cavil as that preferred by Mr. Webster and his followers, that the Constitution is not a compact, because it is not "so nominated in the bond." As well as I can recollect, there is no passage in the "Iliad" or the "Æneid" in which either of those great works "calls itself," or is called by its author, an epic poem, yet this would scarcely be accepted as evidence that they are not epic poems. In an examination of Mr. Webster's remarks, I do not find that he announces them to be either a speech or an argument; yet their claim to both these titles will hardly be disputed—notwithstanding [pg 136] the verbal criticism on the Constitution just quoted.
The distinction attempted to be drawn between the language proper to a confederation and that belonging to a constitution, as indicating two different ideas, will not bear the test of examination and application to the case of the United States. It has been fully shown, in previous chapters, that the terms "Union," "Federal Union," "Federal Constitution," "Constitution of the Federal Government," and the like, were used—not merely in colloquial, informal speech, but in public proceedings and official documents—with reference to the Articles of Confederation, as freely as they have since been employed under the present Constitution. The former Union was—as Mr. Webster expressly admits—as nobody denies—a compact between States, yet it nowhere "calls itself" "a compact"; the word does not occur in it even the one time that it occurs in the present Constitution, although the contracting States are in both prohibited from entering into any "treaty, confederation, or alliance" with one another, or with any foreign power, without the consent of Congress; and the contracting or constituent parties are termed "United States" in the one just as in the other.
Mr. Webster is particularly unfortunate in his criticisms upon what he terms the "new vocabulary," in which the Constitution is styled a compact, and the States which ratified it are spoken of as having "acceded" to it. In the same speech, last quoted, he says:
"This word 'accede,' not found either in the Constitution itself or in the ratification of it by any one of the States, has been chosen for use here, doubtless not without a well-considered purpose. The natural converse of accession is secession; and therefore, when it is stated that the people of the States acceded to the Union, it may be more plausibly argued that they may secede from it. If, in adopting the Constitution, nothing was done but acceding to a compact, nothing would seem necessary, in order to break it up, but to secede from the same compact. But the term is wholly out of place. Accession, as a word applied to political associations, implies coming into a league, treaty, or confederacy, by one hitherto a stranger to it; and secession implies departing from such [pg 137] league or confederacy. The people of the United States have used no such form of expression in establishing the present Government."55
Repeating and reiterating in many forms what is substantially the same idea, and attributing the use of the terms which he attacks to an ulterior purpose, Mr. Webster says:
"This is the reason, sir, which makes it necessary to abandon the use of constitutional language for a new vocabulary, and to substitute, in the place of plain, historical facts, a series of assumptions. This is the reason why it is necessary to give new names to things; to speak of the Constitution, not as a constitution, but as a compact; and of the ratifications by the people, not as ratifications, but as acts of accession."56
In these and similar passages, Mr. Webster virtually concedes that, if the Constitution were a compact; if the Union were a confederacy; if the States had, as States, severally acceded to it—all which propositions he denies—then the sovereignty of the States and their right to secede from the Union would be deducible.
Now, it happens that these very terms—"compact," "confederacy," "accede," and the like—were the terms in familiar use by the authors of the Constitution and their associates with reference to that instrument and its ratification. Other writers, who have examined the subject since the late war gave it an interest which it had never commanded before, have collected such an array of evidence in this behalf that it is necessary only to cite a few examples.
The following language of Mr. Gerry, of Massachusetts, in the Convention of 1787, has already been referred to: "If nine out of thirteen States can dissolve the compact, six out of nine will be just as able to dissolve the new one hereafter."
Mr. Gouverneur Morris, one of the most pronounced advocates of a strong central government, in the Convention, said: "He came here to form a compact for the good of Americans. He was ready to do so with all the States. He hoped and believed [pg 138] they all would enter into such a compact. If they would not, he would be ready to join with any States that would. But, as the compact was to be voluntary, it is in vain for the Eastern States to insist on what the Southern States will never agree to."57
Mr. Madison, while inclining to a strong government, said: "In the case of a union of people under one Constitution, the nature of the pact has always been understood," etc.58
Mr. Hamilton, in the "Federalist," repeatedly speaks of the new government as a "confederate republic" and a "confederacy," and calls the Constitution a "compact." (See especially Nos. IX. and LXXXV.)
General Washington—who was not only the first President under the new Constitution, but who had presided over the Convention that drew it up—in letters written soon after the adjournment of that body to friends in various States, referred to the Constitution as a compact or treaty, and repeatedly uses the terms "accede" and "accession," and once the term "secession."
He asks what the opponents of the Constitution in Virginia would do, "if nine other States should accede to the Constitution."
Luther Martin, of Maryland, informs us that, in a committee of the General Convention of 1787, protesting against the proposed violation of the principles of the "perpetual union" already formed under the Articles of Confederation, he made use of such language as this:
"Will you tell us we ought to trust you because you now enter into a solemn compact with us? This you have done before, and now treat with the utmost contempt. Will you now make an appeal to the Supreme Being, and call on Him to guarantee your observance of this compact? The same you have formerly done for your observance of the Articles of Confederation, which you are now violating in the most wanton manner."59
It is needless to multiply the proofs that abound in the writings of the "fathers" to show that Mr. Webster's "new vocabulary" [pg 139] was the very language they familiarly used. Let two more examples suffice, from authority higher than that of any individual speaker or writer, however eminent—from authority second only, if at all inferior, to that of the text of the Constitution itself—that is, from the acts or ordinances of ratification by the States. They certainly ought to have been conclusive, and should not have been unknown to Mr. Webster, for they are the language of Massachusetts, the State which he represented in the Senate, and of New Hampshire, the State of his nativity.
The ratification of Massachusetts is expressed in the following terms:
"COMMONWEALTH OF MASSACHUSETTS.
"The Convention, having impartially discussed and fully considered a Constitution for the United States of America, reported to Congress by the convention of delegates from the United States of America, and submitted to us by a resolution of the General Court of the said Commonwealth, passed the 25th day of October last past, and acknowledging with grateful hearts the goodness of the Supreme Ruler of the universe, in affording the people of the United States, in the course of his Providence, an opportunity, deliberately and peaceably, without fraud or surprise, of entering into an explicit and solemn COMPACT with each other, by assenting to and ratifying a new Constitution, in order to form a more perfect Union, establish justice, insure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty to themselves and their posterity—do, in the name and in behalf of the people of the Commonwealth of Massachusetts, assent to and ratify the said Constitution for the United States of America."
The ratification of New Hampshire is expressed in precisely the same words, save only the difference of date of the resolution of the Legislature (or "General Court") referred to, and also the use of the word "State" instead of "Commonwealth." Both distinctly accept it as a compact of the States "with each other"—which Mr. Webster, a son of New Hampshire and a Senator from Massachusetts, declared it was not; and not only [pg 140] so, but he repudiated the very "vocabulary" from which the words expressing the doctrine were taken.
It would not need, however, this abounding wealth of contemporaneous exposition—it does not require the employment of any particular words in the Constitution—to prove that it was drawn up as a compact between sovereign States entering into a confederacy with each other, and that they ratified and acceded to it separately, severally, and independently. The very structure of the whole instrument and the facts attending its preparation and ratification would suffice. The language of the final article would have been quite enough: "The ratification of the conventions of nine States shall be sufficient for the establishment of this Constitution between the States so ratifying the same." This is not the "language" of a superior imposing a mandate upon subordinates. The consent of the contracting parties is necessary to its validity, and then it becomes not the acceptance and recognition of an authority "over" them—as Mr. Motley represents—but of a compact between them. The simple word "between" is incompatible with any other idea than that of a compact by independent parties.
If it were possible that any doubt could still exist, there is one provision in the Constitution which stamps its character as a compact too plainly for cavil or question. The Constitution, which had already provided for the representation of the States in both Houses of Congress, thereby bringing the matter of representation within the power of amendment, in its fifth article contains a stipulation that "no State, without its [own] consent, shall be deprived of its equal suffrage in the Senate." If this is not a compact between the States, the smaller States have no guarantee for the preservation of their equality of representation in the United States Senate. If the obligation of a contract does not secure it, the guarantee itself is liable to amendment, and may be swept away at the will of three fourths of the States, without wrong to any party—for, according to this theory, there is no party of the second part.
Footnote 52: (return)Gales and Seaton's "Register of Congressional Debates," vol. vi, Part I, p. 93.
Footnote 53: (return)The words "with another State or with a foreign power" should have been added to make this statement accurate.
Footnote 54: (return)"Congressional Debates," vol. ix, Part I, p. 563.
Footnote 55: (return)"Congressional Debates," vol. ix, Part I, p. 566.
Footnote 56: (return)Ibid., pp. 557, 558.
Footnote 57: (return)"Madison Papers," pp. 1081, 1082.
Footnote 58: (return)Ibid., p. 1184.
Footnote 59: (return)[pg 141]Luther Martin's "Genuine Information," in Wilbur Curtiss's "Secret Proceedings and Debates of the Convention," p. 29.
Sovereignty.
"The term 'sovereign' or 'sovereignty,'" says Judge Story, "is used in different senses, which often leads to a confusion of ideas, and sometimes to very mischievous and unfounded conclusions." Without any disrespect for Judge Story, or any disparagement of his great learning and ability, it may safely be added that he and his disciples have contributed not a little to the increase of this confusion of ideas and the spread of these mischievous and unfounded conclusions. There is no good reason whatever why it should be used in different senses, or why there should be any confusion of ideas as to its meaning. Of all the terms employed in political science, it is one of the most definite and intelligible. The definition of it given by that accurate and lucid publicist, Burlamaqui, is simple and satisfactory—that "sovereignty is a right of commanding in the last resort in civil society."60 The original seat of this sovereignty he also declares to be in the people. "But," he adds, "when once the people have transferred their right to a sovereign [i.e., a monarch], they can not, without contradiction, be supposed to continue still masters of it."61 This is in strict accord with the theory of American republicanism, the peculiarity of which is that the people never do transfer their right of sovereignty, either in whole or in part. They only delegate to their governments the exercise of such of its functions as may be necessary, subject always to their own control, and to reassumption whenever such government fails to fulfill the purposes for which it was instituted.
I think it has already been demonstrated that, in this country, the only political community—the only independent corporate unit through which the people can exercise their sovereignty, is the State. Minor communities—as those of counties, cities, and towns—are merely fractional subdivisions of the [pg 142] State; and these do not affect the evidence that there was not such a political community as the "people of the United States in the aggregate."
That the States were severally sovereign and independent when they were united under the Articles of Confederation, is distinctly asserted in those articles, and is admitted even by the extreme partisans of consolidation. Of right, they are still sovereign, unless they have surrendered or been divested of their sovereignty; and those who deny the proposition have been vainly called upon to point out the process by which they have divested themselves, or have been divested of it, otherwise than by usurpation.
Since Webster spoke and Story wrote upon the subject, however, the sovereignty of the States has been vehemently denied, or explained away as only a partial, imperfect, mutilated sovereignty. Paradoxical theories of "divided sovereignty" and "delegated sovereignty" have arisen, to create that "confusion of ideas" and engender those "mischievous and unfounded conclusions," of which Judge Story speaks. Confounding the sovereign authority of the people with the delegated powers conferred by them upon their governments, we hear of a Government of the United States "sovereign within its sphere," and of State governments "sovereign in their sphere"; of the surrender by the States of part of their sovereignty to the United States, and the like. Now, if there be any one great principle pervading the Federal Constitution, the State Constitutions, the writings of the fathers, the whole American system, as clearly as the sunlight pervades the solar system, it is that no government is sovereign—that all governments derive their powers from the people, and exercise them in subjection to the will of the people—not a will expressed in any irregular, lawless, tumultuary manner, but the will of the organized political community, expressed through authorized and legitimate channels. The founders of the American republics never conferred, nor intended to confer, sovereignty upon either their State or Federal Governments.
If, then, the people of the States, in forming a Federal Union, surrendered—or, to use Burlamaqui's term, transferred—or [pg 143] if they meant to surrender or transfer—part of their sovereignty, to whom was the transfer made? Not to "the people of the United States in the aggregate"; for there was no such people in existence, and they did not create or constitute such a people by merger of themselves. Not to the Federal Government; for they disclaimed, as a fundamental principle, the sovereignty of any government. There was no such surrender, no such transfer, in whole or in part, expressed or implied. They retained, and intended to retain, their sovereignty in its integrity—undivided and indivisible.
"But, indeed," says Mr. Motley, "the words 'sovereign' and 'sovereignty' are purely inapplicable to the American system. In the Declaration of Independence the provinces declare themselves 'free and independent States,' but the men of those days knew that the word 'sovereign' was a term of feudal origin. When their connection with a time-honored feudal monarchy was abruptly severed, the word 'sovereign' had no meaning for us."62
If this be true, "the men of those days" had a very extraordinary way of expressing their conviction that the word "had no meaning for us." We have seen that, in the very front of their Articles of Confederation, they set forth the conspicuous declaration that each State retained "its sovereignty, freedom, and independence."
Massachusetts—the State, I believe, of Mr. Motley's nativity and citizenship—in her original Constitution, drawn up by "men of those days," made this declaration:
"The people inhabiting the territory formerly called the Province of Massachusetts Bay do hereby solemnly and mutually agree with each other to form themselves into a free, sovereign, and independent body politic, or State, by the name of The Commonwealth of Massachusetts."
New Hampshire, in her Constitution, as revised in 1792, had identically the same declaration, except as regards the name of the State and the word "State" instead of "Commonwealth."
Mr. Madison, one of the most distinguished of the men of [pg 144] that day and of the advocates of the Constitution, in a speech already once referred to, in the Virginia Convention of 1788, explained that "We, the people," who were to establish the Constitution, were the people of "thirteen SOVEREIGNTIES."63
In the "Federalist," he repeatedly employs the term—as, for example, when he says: "Do they [the fundamental principles of the Confederation] require that, in the establishment of the Constitution, the States should be regarded as distinct and independent SOVEREIGNS? They are so regarded by the Constitution proposed."64
Alexander Hamilton—another contemporary authority, no less illustrious—says, in the "Federalist":
"It is inherent in the nature of sovereignty, not to be amenable to the suit of an individual without its consent. This is the general sense and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the Union."65
In the same paragraph he uses these terms, "sovereign" and "sovereignty," repeatedly—always with reference to the States, respectively and severally.
Benjamin Franklin advocated equality of suffrage in the Senate as a means of securing "the sovereignties of the individual States."66 James Wilson, of Pennsylvania, said sovereignty "is in the people before they make a Constitution, and remains in them," and described the people as being "thirteen independent sovereignties."67 Gouverneur Morris, who was, as well as Wilson, one of the warmest advocates in the Convention of a strong central government, spoke of the Constitution as "a compact," and of the parties to it as "each enjoying sovereign power."68 Roger Sherman, of Connecticut, declared that the Government "was instituted by a number of sovereign States."69 [pg 145] Oliver Ellsworth, of the same State, spoke of the States as "sovereign bodies."70 These were all eminent members of the Convention which formed the Constitution.
There was scarcely a statesman of that period who did not leave on record expressions of the same sort. But why multiply citations? It is very evident that the "men of those days" entertained very different views of sovereignty from those set forth by the "new lights" of our day. Far from considering it a term of feudal origin, "purely inapplicable to the American system," they seem to have regarded it as a very vital principle in that system, and of necessity belonging to the several States—and I do not find a single instance in which they applied it to any political organization, except the States.
Their ideas were in entire accord with those of Vattel, who, in his chapter "Of Nations or Sovereign States," writes, "Every nation that governs itself, under what form soever, without any dependence on foreign power, is a sovereign state."71
In another part of the same chapter he gives a lucid statement of the nature of a confederate republic, such as ours was designed to be. He says:
"Several sovereign and independent states may unite themselves together by a perpetual confederacy, without each in particular ceasing to be a perfect state. They will form together a federal republic: the deliberations in common will offer no violence to the sovereignty of each member, though they may, in certain respects, put some restraint on the exercise of it, in virtue of voluntary engagements. A person does not cease to be free and independent, when he is obliged to fulfill the engagements into which he has very willingly entered."72
What this celebrated author means here by a person, is explained by a subsequent passage: "The law of nations is the law of sovereigns; states free and independent are moral persons."73
Footnote 60: (return)"Principes du Droit Politique," chap. v, section I; also, chap. vii, section 1.
Footnote 61: (return)Ibid., chap. vii, section 12.
Footnote 62: (return)"Rebellion Record," vol. i, Documents, p. 211.
Footnote 63: (return)Elliott's "Debates," vol. iii, p. 114, edition of 1836.
Footnote 64: (return)"Federalist," No. xl.
Footnote 65: (return)Ibid, No. lxxxi.
Footnote 66: (return)See Elliott's "Debates," vol. v, p. 266.
Footnote 67: (return)Ibid., vol. ii, p. 443.
Footnote 68: (return)See "Life of Gouverneur Morris," vol. iii, p. 193.
Footnote 69: (return)See "Writings of John Adams," vol. vii, letter of Roger Sherman.
Footnote 70: (return)See Eliott's "Debates," vol. ii, p. 197.
Footnote 71: (return)"Law of Nations," Book I, chap. i, section 4.
Footnote 72: (return)Ibid., section 10.
Footnote 73: (return)[pg 146]Ibid., section 12.
The same Subject continued.—The Tenth Amendment.—Fallacies exposed.—"Constitution," "Government," and "People" distinguished from each other.—Theories refuted by Facts.—Characteristics of Sovereignty.—Sovereignty identified.—Never thrown away.
If any lingering doubt could have existed as to the reservation of their entire sovereignty by the people of the respective States, when they organized the Federal Union, it would have been removed by the adoption of the tenth amendment to the Constitution, which was not only one of the amendments proposed by various States when ratifying that instrument, but the particular one in which they substantially agreed, and upon which they most urgently insisted. Indeed, it is quite certain that the Constitution would never have received the assent and ratification of Massachusetts, New Hampshire, New York, North Carolina, and perhaps other States, but for a well-grounded assurance that the substance of this amendment would be adopted as soon as the requisite formalities could be complied with. That amendment is in these words:
"The powers not delegated to the United States by the Constitution nor prohibited by it to the States are reserved to the States respectively, or to the people."
The full meaning of this article may not be as clear to us as it was to the men of that period, on account of the confusion of ideas by which the term "people"—plain enough to them—has since been obscured, and also the ambiguity attendant upon the use of the little conjunction or, which has been said to be the most equivocal word in our language, and for that reason has been excluded from indictments in the English courts. The true intent and meaning of the provision, however, may be ascertained from an examination and comparison of the terms in which it was expressed by the various States which proposed it, and whose ideas it was intended to embody.
Massachusetts and New Hampshire, in their ordinances of [pg 147] ratification, expressing the opinion "that certain amendments and alterations in the said Constitution would remove the fears and quiet the apprehensions of many of the good people of this Commonwealth [State (New Hampshire)], and more effectually guard against an undue administration of the Federal Government," each recommended several such amendments, putting this at the head in the following form:
"That it be explicitly declared that all powers not expressly delegated by the aforesaid Constitution are reserved to the several States, to be by them exercised."
Of course, those stanch republican communities meant the people of the States—not their governments, as something distinct from their people.
New York expressed herself as follows:
"That the powers of government may be reassumed by the people whenever it shall become necessary to their happiness; that every power, jurisdiction, and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the Government thereof, remains to the people of the several States, or to their respective State governments, to whom they may have granted the same; and that those clauses in the said Constitution, which declare that Congress shall not have or exercise certain powers, do not imply that Congress is entitled to any powers not given by the said Constitution; but such clauses are to be construed either as exceptions to certain specified powers or as inserted merely for greater caution."
South Carolina expressed the idea thus:
"This Convention doth also declare that no section or paragraph of the said Constitution warrants a construction that the States do not retain every power not expressly relinquished by them and vested in the General Government of the Union."
North Carolina proposed it in these terms:
[pg 148]"Each State in the Union shall respectively retain every power, jurisdiction, and right, which is not by this Constitution delegated to the Congress of the United States or to the departments of the General Government."
Rhode Island gave in her long-withheld assent to the Constitution, "in full confidence" that certain proposed amendments would be adopted, the first of which was expressed in these words:
"That Congress shall guarantee to each State its SOVEREIGNTY, freedom, and independence, and every power, jurisdiction, and right, which is not by this Constitution expressly delegated to the United States."
This was in May, 1790, when nearly three years had been given to discussion and explanation of the new Government by its founders and others, when it had been in actual operation for more than a year, and when there was every advantage for a clear understanding of its nature and principles. Under such circumstances, and in the "full confidence" that this language expressed its meaning and intent, the people of Rhode Island signified their "accession" to the "Confederate Republic" of the States already united.
No objection was made from any quarter to the principle asserted in these various forms; or to the amendment in which it was finally expressed, although many thought it unnecessary, as being merely declaratory of what would have been sufficiently obvious without it—that the functions of the Government of the United States were strictly limited to the exercise of such powers as were expressly delegated, and that the people of the several States retained all others.
Is it compatible with reason to suppose that people so chary of the delegation of specific powers or functions could have meant to surrender or transfer the very basis and origin of all power—their inherent sovereignty—and this, not by express grant, but by implication?
Mr. Everett, following, whether consciously or not, in the line of Mr. Webster's ill-considered objection to the term "compact," takes exception to the sovereignty of the States on the ground that "the word 'sovereignty' does not occur" in the Constitution. He admits that the States were sovereign under the Articles of Confederation. How could they relinquish or be deprived of their sovereignty without even a mention [pg 149] of it—when the tenth amendment confronts us with the declaration that nothing was surrendered by implication—that everything was reserved unless expressly delegated to the United States or prohibited to the States? Here is an attribute which they certainly possessed—which nobody denies, or can deny, that they did possess—and of which Mr. Everett says no mention is made in the Constitution. In what conceivable way, then, was it lost or alienated?
Much has been said of the "prohibition" of the exercise by the States of certain functions of sovereignty; such as, making treaties, declaring war, coining money, etc. This is only a part of the general compact, by which the contracting parties covenant, one with another, to abstain from the separate exercise of certain powers, which they agree to intrust to the management and control of the union or general agency of the parties associated. It is not a prohibition imposed upon them from without, or from above, by any external or superior power, but is self-imposed by their free consent. The case is strictly analogous to that of individuals forming a mercantile or manufacturing copartnership, who voluntarily agree to refrain, as individuals, from engaging in other pursuits or speculations, from lending their individual credit, or from the exercise of any other right of a citizen, which they may think proper to subject to the consent, or intrust to the management of the firm.
The prohibitory clauses of the Constitution referred to are not at all a denial of the full sovereignty of the States, but are merely an agreement among them to exercise certain powers of sovereignty in concert, and not separately and apart.
There is one other provision of the Constitution, which is generally adduced by the friends of centralism as antagonistic to State sovereignty. This is found in the second clause of the sixth article, as follows:
[pg 150]"This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."
This enunciation of a principle, which, even if it had not been expressly declared, would have been a necessary deduction from the acceptance of the Constitution itself, has been magnified and perverted into a meaning and purpose entirely foreign to that which plain interpretation is sufficient to discern. Mr. Motley thus dilates on the subject:
"Could language be more imperial? Could the claim to State 'sovereignty' be more completely disposed of at a word? How can that be sovereign, acknowledging no superior, supreme, which has voluntarily accepted a supreme law from something which it acknowledges as superior?"74
The mistake which Mr. Motley—like other writers of the same school—makes is one which is disposed of by a very simple correction. The States, which ordained and established the Constitution, accepted nothing besides what they themselves prescribed. They acknowledged no superior. The supremacy was both in degree and extent only that which was delegated by the States to their common agent.
There are some other considerations which may conduce to a clearer understanding of this supremacy of the Constitution and the laws made in pursuance thereof:
1. In the first place, it must be remembered that, when the Federal Constitution was formed, each then existing State already had its own Constitution and code of statute laws. It was, no doubt, primarily with reference to these that the provision was inserted, and not in the expectation of future conflicts or discrepancies. It is in this light alone that Mr. Madison considers it in explaining and vindicating it in the "Federalist."75
2. Again, it is to be observed that the supremacy accorded to the general laws of the United States is expressly limited to those enacted in conformity with the Constitution, or, to use the exact language, "made in pursuance thereof." Mr. Hamilton, in another chapter of the "Federalist," calls particular attention to this, saying (and the italics are all his own) "that the laws of the Confederacy, as to the enumerated and legitimate objects [pg 151] of its jurisdiction, will become the supreme law of the land," and that the State functionaries will coöperate in their observance and enforcement with the General Government, "as far as its just and constitutional authority extends."76
3. In the third place, it is not the Government of the United States that is declared to be supreme, but the Constitution and the laws and treaties made in accordance with it. The proposition was made in the Convention to organize a government consisting of "supreme legislative, executive, and judicial powers," but it was not adopted. Its deliberate rejection is much more significant and conclusive than if it had never been proposed. Correction of so gross an error as that of confounding the Government with the Constitution ought to be superfluous, but so crude and confused are the ideas which have been propagated on the subject, that no misconception seems to be too absurd to be possible. Thus, it has not been uncommon, of late years, to hear, even in the highest places, the oath to support the Constitution, which is taken by both State and Federal officers, spoken of as an oath "to support the Government"—an obligation never imposed upon any one in this country, and which the men who made the Constitution, with their recent reminiscences of the Revolution, the battles of which they had fought with halters around their necks, would have been the last to prescribe. Could any assertion be less credible than that they proceeded to institute another supreme government which it would be treason to resist?
This confusion of ideas pervades the treatment of the whole subject of sovereignty. Mr. Webster has said, and very justly so far as these United States are concerned: "The sovereignty of government is an idea belonging to the other side of the Atlantic. No such thing is known in North America. Our governments are all limited. In Europe sovereignty is of feudal origin, and imports no more than the state of the sovereign. It comprises his rights, duties, exemptions, prerogatives, and powers. But with us all power is with the people. They alone are sovereign, and they erect what governments they please, and confer on them such powers as they please. None of these [pg 152] governments are sovereign, in the European sense of the word, all being restrained by written constitutions."77
But the same intellect, which can so clearly discern and so lucidly define the general proposition, seems to be covered by a cloud of thick darkness when it comes to apply it to the particular case in issue. Thus, a little afterward, we have the following:
"There is no language in the whole Constitution applicable to a confederation of States. If the States be parties, as States, what are their rights, and what their respective covenants and stipulations? and where are their rights, covenants, and stipulations expressed? In the Articles of Confederation they did make promises, and did enter into engagements, and did plight the faith of each State for their fulfillment; but in the Constitution there is nothing of that kind. The reason is that, in the Constitution, it is the people who speak and not the States. The people ordain the Constitution, and therein address themselves to the States and to the Legislatures of the States in the language of injunction and prohibition."78
It is surprising that such inconsistent ideas should proceed from a source so eminent. Its author falls into the very error which he had just before so distinctly pointed out, in confounding the people of the States with their governments. In the vehemence of his hostility to State sovereignty, he seems—as all of his disciples seem—unable even to comprehend that it means the sovereignty, not of State governments, but of people who make them. With minds preoccupied by the unreal idea of one great people of a consolidated nation, these gentlemen are blinded to the plain and primary truth that the only way in which the people ordained the Constitution was as the people of States. When Mr. Webster says that "in the Constitution it is the people who speak, and not the States," he says what is untenable. The States are the people. The people do not speak, never have spoken, and never can speak, in their sovereign capacity (without a subversion of our whole system), otherwise than as the people of States.
[pg 153]There are but two modes of expressing their sovereign will known to the people of this country. One is by direct vote—the mode adopted by Rhode Island in 1788, when she rejected the Constitution. The other is the method, more generally pursued, of acting by means of conventions of delegates elected expressly as representatives of the sovereignty of the people. Now, it is not a matter of opinion or theory or speculation, but a plain, undeniable, historical fact, that there never has been any act or expression of sovereignty in either of these modes by that imaginary community, "the people of the United States in the aggregate." Usurpations of power by the Government of the United States, there may have been, and may be again, but there has never been either a sovereign convention or a direct vote of the "whole people" of the United States to demonstrate its existence as a corporate unit. Every exercise of sovereignty by any of the people of this country that has actually taken place has been by the people of States as States. In the face of this fact, is it not the merest self-stultification to admit the sovereignty of the people and deny it to the States, in which alone they have community existence?
This subject is one of such vital importance to a right understanding of the events which this work is designed to record and explain, that it can not be dismissed without an effort in the way of recapitulation and conclusion, to make it clear beyond the possibility of misconception.
According to the American theory, every individual is endowed with certain unalienable rights, among which are "life, liberty, and the pursuit of happiness." He is entitled to all the freedom, in these and in other respects, that is consistent with the safety and the rights of others and the weal of the community, but political sovereignty, which is the source and origin of all the powers of government—legislative, executive, and judicial—belongs to, and inheres in, the people of an organized political community. It is an attribute of the whole people of such a community. It includes the power and necessarily the duty of protecting the rights and redressing the wrongs of individuals, of punishing crimes, enforcing contracts, prescribing rules for the transfer of property and the succession [pg 154] of estates, making treaties with foreign powers, levying taxes, etc. The enumeration of particulars might be extended, but these will suffice as illustrations.
These powers are of course exercised through the agency of governments, but the governments are only agents of the sovereign—responsible to it, and subject to its control. This sovereign—the people, in the aggregate, of each political community—delegates to the government the exercise of such powers, or functions, as it thinks proper, but in an American republic never transfers or surrenders sovereignty. That remains, unalienated and unimpaired. It is by virtue of this sovereignty alone that the Government, its authorized agent, commands the obedience of the individual citizen, to the extent of its derivative, dependent, and delegated authority. The ALLEGIANCE of the citizen is due to the sovereign alone.
Thus far, I think, all will agree. No American statesman or publicist would venture to dispute it. Notwithstanding the inconsiderate or ill-considered expressions thrown out by some persons about the unity of the American people from the beginning, no respectable authority has ever had the hardihood to deny that, before the adoption of the Federal Constitution, the only sovereign political community was the people of the State—the people of each State. The ordinary exercise of what are generally termed the powers of sovereignty was by and through their respective governments; and, when they formed a confederation, a portion of those powers was intrusted to the General Government, or agency. Under the Confederation, the Congress of the United States represented the collective power of the States; but the people of each State alone possessed sovereignty, and consequently were entitled to the allegiance of the citizen.
When the Articles of Confederation were amended, when the new Constitution was substituted in their place and the General Government reorganized, its structure was changed, additional powers were conferred upon it, and thereby subtracted from the powers theretofore exercised by the State governments; but the seat of sovereignty—the source of all those delegated and dependent powers—was not disturbed. There was [pg 155] a new Government or an amended Government—it is entirely immaterial in which of these lights we consider it—but no new PEOPLE was created or constituted. The people, in whom alone sovereignty inheres, remained just as they had been before. The only change was in the form, structure, and relations of their governmental agencies.
No doubt, the States—the people of the States—if they had been so disposed, might have merged themselves into one great consolidated State, retaining their geographical boundaries merely as matters of convenience. But such a merger must have been distinctly and formally stated, not left to deduction or implication.
Men do not alienate even an estate, without positive and express terms and stipulations. But in this case not only was there no express transfer—no formal surrender—of the preëxisting sovereignty, but it was expressly provided that nothing should be understood as even delegated—that everything was reserved, unless granted in express terms. The monstrous conception of the creation of a new people, invested with the whole or a great part of the sovereignty which had previously belonged to the people of each State, has not a syllable to sustain it in the Constitution, but is built up entirely upon the palpable misconstruction of a single expression in the preamble.
In denying that there is any such collective unit as the people of the United States in the aggregate, of course I am not to be understood as denying that there is such a political organization as the United States, or that there exists, with large and distinct powers, a Government of the United States; but it is claimed that the Union, as its name implies, is constituted of States. As a British author,79 referring to the old Teutonic system, has expressed the same idea, the States are the integers, the United States the multiple which results from them. The Government of the United States derives its existence from the same source, and exercises its functions by the will of the same sovereignty that creates and confers authority upon the State governments. The people of each State are, in either case, the [pg 156] source. The only difference is that, in the creation of the State governments, each sovereign acted alone; in that of the Federal Government, they acted in coöperation with the others. Neither the whole nor any part of their sovereignty has been surrendered to either Government.
To whom, in fine, could the States have surrendered their sovereignty? Not to the mass of the people inhabiting the territory possessed by all the States, for there was no such community in existence, and they took no measures for the organization of such a community. If they had intended to do so, the very style, "United States," would have been a palpable misnomer, nor would treason have been defined as levying war against them. Could it have been transferred to the Government of the Union? Clearly not, in accordance with the ideas and principles of those who made the Declaration of Independence, adopted the Articles of Confederation, and established the Constitution of the United States; for in each and all of these the corner-stone is the inherent and inalienable sovereignty of the people. To have transferred sovereignty from the people to a Government would have been to have fought the battles of the Revolution in vain—not for the freedom and independence of the States, but for a mere change of masters. Such a thought or purpose could not have been in the heads or hearts of those who molded the Union, and could have found lodgment only when the ebbing tide of patriotism and fraternity had swept away the landmarks which they erected who sought by the compact of union to secure and perpetuate the liberties then possessed. The men who had won at great cost the independence of their respective States were deeply impressed with the value of union, but they could never have consented, like "the base Judean," to fling away the priceless pearl of State sovereignty for any possible alliance.
Footnote 74: (return)"Rebellion Record," vol. i, Documents, p. 213.
Footnote 75: (return)"Federalist," No. xliv.
Footnote 76: (return)"Federalist," No. xxvii.
Footnote 77: (return)"Congressional Debates," vol. ix, Part I, p. 565.
Footnote 78: (return)Ibid., p. 566.
Footnote 79: (return)[pg 157]Sir Francis Palgrave, quoted by Mr. Calhoun, "Congressional Debates," vol. ix, Part I, p. 541.
A Recapitulation.—Remarkable Propositions of Mr. Gouverneur Morris in the Convention of 1787, and their Fate.—Further Testimony.—Hamilton, Madison, Washington, Marshall, etc.—Later Theories.—Mr. Webster: his Views at Various Periods.—Speech at Capon Springs.—State Rights not a Sectional Theory.
Looking back for a moment at the ground over which we have gone, I think it may be fairly asserted that the following propositions have been clearly and fully established:
1. That the States of which the American Union was formed, from the moment when they emerged from their colonial or provincial condition, became severally sovereign, free, and independent States—not one State, or nation.
2. That the union formed under the Articles of Confederation was a compact between the States, in which these attributes of "sovereignty, freedom, and independence," were expressly asserted and guaranteed.
3. That, in forming the "more perfect union" of the Constitution, afterward adopted, the same contracting powers formed an amended compact, without any surrender of these attributes of sovereignty, freedom, and independence, either expressed or implied: on the contrary, that, by the tenth amendment to the Constitution, limiting the power of the Government to its express grants, they distinctly guarded against the presumption of a surrender of anything by implication.
4. That political sovereignty resides, neither in individual citizens, nor in unorganized masses, nor in fractional subdivisions of a community, but in the people of an organized political body.
5. That no "republican form of government," in the sense in which that expression is used in the Constitution, and was generally understood by the founders of the Union—whether it be the government of a State or of a confederation of States—is possessed of any sovereignty whatever, but merely exercises certain powers delegated by the sovereign authority of the people, and subject to recall and reassumption by the same authority that conferred them.
[pg 158]6. That the "people" who organized the first confederation, the people who dissolved it, the people who ordained and established the Constitution which succeeded it, the only people, in fine, known or referred to in the phraseology of that period—whether the term was used collectively or distributively—were the people of the respective States, each acting separately and with absolute independence of the others.
7. That, in forming and adopting the Constitution, the States, or the people of the States—terms which, when used with reference to acts performed in a sovereign capacity, are precisely equivalent to each other—formed a new Government, but no new people; and that, consequently, no new sovereignty was created—for sovereignty in an American republic can belong only to a people, never to a government—and that the Federal Government is entitled to exercise only the powers delegated to it by the people of the respective States.
8. That the term "people," in the preamble to the Constitution and in the tenth amendment, is used distributively; that the only "people of the United States" known to the Constitution are the people of each State in the Union; that no such political community or corporate unit as one people of the United States then existed, has ever been organized, or yet exists; and that no political action by the people of the United States in the aggregate has ever taken place, or ever can take place, under the Constitution.
The fictitious idea of one people of the United States, contradicted in the last paragraph, has been so impressed upon the popular mind by false teaching, by careless and vicious phraseology, and by the ever-present spectacle of a great Government, with its army and navy, its custom-houses and post-offices, its multitude of office-holders, and the splendid prizes which it offers to political ambition, that the tearing away of these illusions and presentation of the original fabric, which they have overgrown and hidden from view, have no doubt been unwelcome, distasteful, and even repellent to some of my readers. The artificial splendor which makes the deception attractive is even employed as an argument to prove its reality.
The glitter of the powers delegated to the agent serves to [pg 159] obscure the perception of the sovereign power of the principal by whom they are conferred, as, by the unpracticed eye, the showy costume and conspicuous functions of the drum-major are mistaken for emblems of chieftaincy—while the misuse or ambiguous use of the term "Union" and its congeners contributes to increase the confusion.
So much the more need for insisting upon the elementary truths which have been obscured by these specious sophistries. The reader really desirous of ascertaining truth is, therefore, again cautioned against confounding two ideas so essentially distinct as that of government, which is derivative, dependent, and subordinate, with that of the people, as an organized political community, which is sovereign, without any other than self-imposed limitations, and such as proceed from the general principles of the personal rights of man.
It has been said, in a foregoing chapter, that the authors of the Constitution could scarcely have anticipated the idea of such a community as the people of the United States in one mass. Perhaps this expression needs some little qualification, for there is rarely a fallacy, however stupendous, that is wholly original. A careful examination of the records of the Convention of 1787 exhibits one or perhaps two instances of such a suggestion—both by the same person—and the result in each case is strikingly significant.
The original proposition made concerning the office of President of the United States contemplated his election by the Congress, or, as it was termed by the proposer, "the national Legislature." On the 17th of July, this proposition being under consideration, Mr. Gouverneur Morris moved that the words "national Legislature" be stricken out, and "citizens of the United States" inserted. The proposition was supported by Mr. James Wilson—both of these gentlemen being delegates from Pennsylvania, and both among the most earnest advocates of centralism in the Convention.
Now, it is not at all certain that Mr. Morris had in view an election by the citizens of the United States "in the aggregate," voting as one people. The language of his proposition is entirely consistent with the idea of as election by the citizens of each [pg 160] State, voting separately and independently, though it is ambiguous, and may admit of the other construction. But this is immaterial. The proposition was submitted to a vote, and received the approval of only one State—Pennsylvania, of which Mr. Morris and Mr. Wilson were both representatives. Nine States voted against it.80
Six days afterward (July 23d), in a discussion of the proposed ratification of the Constitution by Conventions of the people of each State, Mr. Gouverneur Morris—as we learn from Mr. Madison—"moved that the reference of the plan [i.e., of the proposed Constitution] be made to one General Convention, chosen and authorized by the people, to consider, amend, and establish the same."81
Here the issue seems to have been more distinctly made between the two ideas of people of the States and one people in the aggregate. The fate of the latter is briefly recorded in the two words, "not seconded." Mr. Morris was a man of distinguished ability, great personal influence, and undoubted patriotism, but, out of all that assemblage—comprising, as it did, such admitted friends of centralism as Hamilton, King, Wilson, Randolph, Pinckney, and others—there was not one to sustain him in the proposition to incorporate into the Constitution that theory which now predominates, the theory on which was waged the late bloody war, which was called a "war for the Union." It failed for want of a second, and does not even appear in the official journal of the Convention. The very fact that such a suggestion was made would be unknown to us but for the record kept by Mr. Madison.
The extracts which have been given, in treating of special branches of the subject, from the writings and speeches of the framers of the Constitution and other statesmen of that period, afford ample proof of their entire and almost unanimous accord with the principles which have been established on the authority of the Constitution itself, the acts of ratification by the several States, and other attestations of the highest authority and validity. I am well aware that isolated expressions may be [pg 161] found in the reports of debates on the General and State Conventions and other public bodies, indicating the existence of individual opinions seemingly inconsistent with these principles; that loose and confused ideas were sometimes expressed with regard to sovereignty, the relations between governments and people, and kindred subjects; and that, while the plan of the Constitution was under discussion, and before it was definitely reduced to its present shape, there were earnest advocates in the Convention of a more consolidated system, with a stronger central government. But these expressions of individual opinion only prove the existence of a small minority of dissentients from the principles generally entertained, and which finally prevailed in the formation of the Constitution. None of these ever avowed such extravagances of doctrine as are promulgated in this generation. No statesman of that day would have ventured to risk his reputation by construing an obligation to support the Constitution as an obligation to adhere to the Federal Government—a construction which would have insured the sweeping away of any plan of union embodying it, by a tempest of popular indignation from every quarter of the country. None of them suggested such an idea as that of the amalgamation of the people of the States into one consolidated mass—unless it was suggested by Mr. Gouverneur Morris in the proposition above referred to, in which he stood alone among the delegates of twelve sovereign States assembled in convention.
As to the features of centralism, or nationalism, which they did advocate, all the ability of this little minority of really gifted men failed to secure the incorporation of any one of them into the Constitution, or to obtain their recognition by any of the ratifying States. On the contrary, the very men who had been the leading advocates of such theories, on failing to secure their adoption, loyally accepted the result, and became the ablest and most efficient supporters of the principles which had prevailed. Thus, Mr. Hamilton, who had favored the plan of a President and Senate, both elected to hold office for life (or during good behavior), with a veto power in Congress on the action of the State Legislatures, became, through the "Federalist," in conjunction with his associates, Mr. Madison and Mr. Jay, the most [pg 162] distinguished expounder and advocate of the Constitution, as then proposed and afterward ratified, with all its Federal and State-rights features. In the ninth number of that remarkable series of political essays, he quotes, adopts, and applies to the then proposed Constitution, Montesquieu's description of a "CONFEDERATE REPUBLIC," a term which he (Hamilton) repeatedly employs.
In the eighty-first number of the same series, replying to apprehensions expressed by some that a State might be brought before the Federal courts to answer as defendant in suits instituted against her, he repels the idea in these plain and conclusive terms. The italics are my own:
"It is inherent in the nature of sovereignty not to be amenable to the suit of any individual without its consent. This is the general sense and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the Union. Unless, therefore, there is a surrender of this immunity in the plan of the Convention, it will remain with the States, and the danger intimated must be merely ideal.... The contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretensions to a compulsive force. They confer no right of action, independent of the sovereign will. To what purpose would it be to authorize suits against States for the debts they owe? How could recoveries be enforced? It is evident that it could not be done without waging war against the contracting State; and to ascribe to the Federal courts, by mere implication, and in destruction of a preëxisting right of the State governments, a power which would involve such a consequence, would be altogether forced and unwarranted."82
This extract is very significant, clearly showing that Mr. Hamilton assumed as undisputed propositions, in the first place, that the State was the "SOVEREIGN"; secondly, that this sovereignty could not be alienated, unless by express surrender; thirdly, that no such surrender had been made; and, fourthly, that the idea of applying coercion to a State, even to enforce [pg 163] the fulfillment of a duty, would be equivalent to waging war against a State—it was "altogether forced and unwarrantable."
In a subsequent number, Mr. Hamilton, replying to the objection that the Constitution contains no bill or declaration of rights, argues that it was entirely unnecessary, because in reality the people—that is, of course, the people, respectively, of the several States, who were the only people known to the Constitution or to the country—had surrendered nothing of their inherent sovereignty, but retained it unimpaired. He says: "Here, in strictness, the people surrender nothing; and, as they retain everything, they have no need of particular reservations." And again: "I go further, and affirm that bills of rights, in the sense and to the extent they are contended for, are not only unnecessary in the proposed Constitution, but would be absolutely dangerous. They would contain various exceptions to powers not granted, and on this very account would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done, which there is no power to do?"83 Could language be more clear or more complete in vindication of the principles laid down in this work? Mr. Hamilton declares, in effect, that the grants to the Federal Government in the Constitution are not surrenders, but delegations of power by the people of the States; that sovereignty remains intact where it was before; and that the delegations of power were strictly limited to those expressly granted—in this, merely anticipating the tenth amendment, afterward adopted.
Finally, in the concluding article of the "Federalist," he bears emphatic testimony to the same principles, in the remark that "every Constitution for the United States must inevitably consist of a great variety of particulars, in which thirteen independent States are to be accommodated in their interests or opinions of interest.... Hence the necessity of molding and arranging all the particulars, which are to compose the whole, in such a manner as to satisfy all the parties to the compact."84 There is no intimation here, or anywhere else, of the existence of any such idea as that of the aggregated people of one great consolidated state. It is an incidental enunciation of the same [pg 164] truth soon afterward asserted by Madison in the Virginia Convention—that the people who ordained and established the Constitution were "not the people as composing one great body, but the people as composing thirteen sovereignties".
Mr. Madison, in the Philadelphia Convention, had at first held views of the sort of government which it was desirable to organize, similar to those of Mr. Hamilton, though more moderate in extent. He, too, however, cordially conformed to the modifications in them made by his colleagues, and was no less zealous and eminent in defending and expounding the Constitution as finally adopted. His interpretation of its fundamental principles is so fully shown in the extracts which have already been given from his contributions to the "Federalist" and speeches in the Virginia Convention, that it would be superfluous to make any additional citation from them.
The evidence of Hamilton and Madison—two of the most eminent of the authors of the Constitution, and the two preeminent contemporary expounders of its meaning—is the most valuable that could be offered for its interpretation. That of all the other statesmen of the period only tends to confirm the same conclusions. The illustrious Washington, who presided over the Philadelphia Convention, in his correspondence, repeatedly refers to the proposed Union as a "Confederacy" of States, or a "confederated Government," and to the several States as "acceding," or signifying their "accession," to it, in ratifying the Constitution. He refers to the Constitution itself as "a compact or treaty," and classifies it among compacts or treaties between "men, bodies of men, or countries." Writing to Count Rochambeau, on January 8, 1788, he says that the proposed Constitution "is to be submitted to conventions chosen by the people in the several States, and by them approved or rejected"—showing what he understood by "the people of the United States," who were to ordain and establish it. These same people—that is, "the people of the several States"—he says, in a letter to Lafayette, April 28, 1788, "retain everything they do not, by express terms, give up." In a letter written to Benjamin Lincoln, October 26, 1788, he refers to the expectation that North Carolina will accede to the Union, and [pg 165] adds, "Whoever shall be found to enjoy the confidence of the States so far as to be elected Vice-President," etc.—showing that in the "confederated Government," as he termed it, the States were still to act independently, even in the selection of officers of the General Government. He wrote to General Knox, June 17, 1788, "I can not but hope that the States which may be disposed to make a secession will think often and seriously on the consequences." June 28, 1788, he wrote to General Pinckney that New Hampshire "had acceded to the new Confederacy," and, in reference to North Carolina, "I should be astonished if that State should withdraw from the Union."
I shall add but two other citations. They are from speeches of John Marshall, afterward the most distinguished Chief Justice of the United States—who has certainly never been regarded as holding high views of State rights—in the Virginia Convention of 1788. In the first case, he was speaking of the power of the States over the militia, and is thus reported:
"The State governments did not derive their powers from the General Government; but each government derived its powers from the people, and each was to act according to the powers given it. Would any gentleman deny this?... Could any man say that this power was not retained by the States, as they had not given it away? For (says he) does not a power remain till it is given away? The State Legislatures had power to command and govern their militia before, and have it still, undeniably, unless there be something in this Constitution that takes it away....
"He concluded by observing that the power of governing the militia was not vested in the States by implication, because, being possessed of it antecedently to the adoption of the Government, and not being divested of it by any grant or restriction in the Constitution, they must necessarily be as fully possessed of it as ever they had been, and it could not be said that the States derived any powers from that system, but retained them, though not acknowledged in any part of it."85
In the other case, the special subject was the power of the Federal judiciary. Mr. Marshall said, with regard to this: "I [pg 166] hope that no gentleman will think that a State can be called at the bar of the Federal court. Is there no such case at present? Are there not many cases, in which the Legislature of Virginia is a party, and yet the State is not sued? Is it rational to suppose that the sovereign power shall be dragged before a court?"86
Authorities to the same effect might be multiplied indefinitely by quotation from nearly all the most eminent statesmen and patriots of that brilliant period. My limits, however, permit me only to refer those in quest of more exhaustive information to the original records, or to the "Republic of Republics," in which will be found a most valuable collection and condensation of the teaching of the fathers on the subject. There was no dissent, at that period, from the interpretation of the Constitution which I have set forth, as given by its authors, except in the objections made by its adversaries. Those objections were refuted and silenced, until revived, long afterward, and presented as the true interpretation, by the school of which Judge Story was the most effective founder.
At an earlier period—but when he had already served for several years in Congress, and had attained the full maturity of his powers—Mr. Webster held the views which were presented in a memorial to Congress of citizens of Boston, December 15, 1819, relative to the admission of Missouri, drawn up and signed by a committee of which he was chairman, and which also included among its members Mr. Josiah Quincy. He speaks of the States as enjoying "the exclusive possession of sovereignty" over their own territory, calls the United States "the American Confederacy," and says, "The only parties to the Constitution, contemplated by it originally, were the thirteen confederated States." And again: "As between the original States, the representation rests on compact and plighted faith; and your memorialists have no wish that that compact should be disturbed, or that plighted faith in the slightest degree violated."
It is satisfactory to know that in the closing year of his life, when looking retrospectively, with judgment undisturbed by [pg 167] any extraneous influence, he uttered views of the Government which must stand the test of severest scrutiny and defy the storms of agitation, for they are founded on the rock of truth. In letters written and addresses delivered during the Administration of Mr. Fillmore, he repeatedly applies to the Constitution the term "compact," which, in 1833, he had so vehemently repudiated. In his speech at Capon Springs, Virginia, in 1851, he says:
"If the South were to violate any part of the Constitution intentionally and systematically, and persist in so doing year after year, and no remedy could be had, would the North be any longer bound by the rest of it? And if the North were, deliberately, habitually, and of fixed purpose, to disregard one part of it, would the South be bound any longer to observe its other obligations?...
"How absurd it is to suppose that, when different parties enter into a compact for certain purposes, either can disregard any one provision, and expect, nevertheless, the other to observe the rest!...
"I have not hesitated to say, and I repeat, that, if the Northern States refuse, willfully and deliberately, to carry into effect that part of the Constitution which respects the restoration of fugitive slaves, and Congress provide no remedy, the South would no longer be bound to observe the compact. A bargain can not be broken on one side, and still bind the other side."87
The principles which have been set forth in the foregoing chapters, although they had come to be considered as peculiarly Southern, were not sectional in their origin. In the beginning and earlier years of our history they were cherished as faithfully and guarded as jealously in Massachusetts and New Hampshire as in Virginia or South Carolina. It was in these principles that I was nurtured. I have frankly proclaimed them during my whole life, always contending in the Senate of the United States against what I believed to be the mistaken construction of the Constitution taught by Mr. Webster and his adherents. While I honored the genius of that great man, and held friendly [pg 168] personal relations with him, I considered his doctrines on these points—or rather the doctrines advocated by him during the most conspicuous and influential portions of his public career—to be mischievous, and the more dangerous to the welfare of the country and the liberties of mankind on account of the signal ability and magnificent eloquence with which they were argued.
Footnote 80: (return)Elliott's "Debates," vol. i, p. 239; "Madison Papers," pp. 1119-1124.
Footnote 81: (return)"Madison Papers," p. 1184.
Footnote 82: (return)"Federalist," No. lxxxi.
Footnote 83: (return)"Federalist," No. lxxxiv.
Footnote 84: (return)Ibid., No. lxxxv.
Footnote 85: (return)Elliott's "Debates," vol. iii, pp. 389-391.
Footnote 86: (return)Elliott's "Debates," vol. iii, p. 503.
Footnote 87: (return)Curtis's "Life of Webster," chap. xxxvii, vol. ii, pp. 518, 519.
The Right of Secession.—The Law of Unlimited Partnerships.—The "Perpetual Union" of the Articles of Confederation and the "More Perfect Union" of the Constitution.—The Important Powers conferred upon the Federal Government and the Fundamental Principles of the Compact the same in both Systems.—The Right to resume Grants, when failing to fulfill their Purposes, expressly and distinctly asserted in the Adoption of the Constitution.
The Right of Secession—that subject which, beyond all others, ignorance, prejudice, and political rancor have combined to cloud with misstatements and misapprehensions—is a question easily to be determined in the light of what has already been established with regard to the history and principles of the Constitution. It is not something standing apart by itself—a factious creation, outside of and antagonistic to the Constitution—as might be imagined by one deriving his ideas from the political literature most current of late years. So far from being against the Constitution or incompatible with it, we contend that, if the right to secede is not prohibited to the States, and no power to prevent it expressly delegated to the United States, it remains as reserved to the States or the people, from whom all the powers of the General Government were derived.
The compact between the States which formed the Union was in the nature of a partnership between individuals without limitation of time, and the recognized law of such partnerships is thus stated by an eminent lawyer of Massachusetts in a work intended for popular use:
"If the articles between the partners do not contain an agreement that the partnership shall continue for a specified time, it [pg 169] may be dissolved at the pleasure of either partner. But no partner can exercise this power wantonly and injuriously to the other partners, without making himself responsible for the damage he thus causes. If there be a provision that the partnership shall continue a certain time, this is binding."88
We have seen that a number of "sovereign, free, and independent" States, during the war of the Revolution, entered into a partnership with one another, which was not only unlimited in duration, but expressly declared to be a "perpetual union." Yet, when that Union failed to accomplish the purposes for which it was formed, the parties withdrew, separately and independently, one after another, without any question made of their right to do so, and formed a new association. One of the declared objects of this new partnership was to form "a more perfect union." This certainly did not mean more perfect in respect of duration; for the former union had been declared perpetual, and perpetuity admits of no addition. It did not mean that it was to be more indissoluble; for the delegates of the States, in ratifying the former compact of union, had expressed themselves in terms that could scarcely be made more stringent. They then said:
"And we do further solemnly plight and engage the faith of our respective constituents, that they shall abide by the determinations of the United States in Congress assembled, on all questions which, by the said confederation, are submitted to them; and that the articles thereof shall be inviolably observed by the States we respectively represent; and that the Union shall be perpetual."89
The formation of a "more perfect union" was accomplished by the organization of a government more complete in its various branches, legislative, executive, and judicial, and by the delegation to this Government of certain additional powers or functions which had previously been exercised by the Governments of the respective States—especially in providing the [pg 170] means of operating directly upon individuals for the enforcement of its legitimately delegated authority. There was no abandonment nor modification of the essential principle of a compact between sovereigns, which applied to the one case as fully as to the other. There was not the slightest intimation of so radical a revolution as the surrender of the sovereignty of the contracting parties would have been. The additional powers conferred upon the Federal Government by the Constitution were merely transfers of some of those possessed by the State governments—not subtractions from the reserved and inalienable sovereignty of the political communities which conferred them. It was merely the institution of a new agent who, however enlarged his powers might be, would still remain subordinate and responsible to the source from which they were derived—that of the sovereign people of each State. It was an amended Union, not a consolidation.
It is a remarkable fact that the very powers of the Federal Government and prohibitions to the States, which are most relied upon by the advocates of centralism as incompatible with State sovereignty, were in force under the old Confederation when the sovereignty of the States was expressly recognized. The General Government had then, as now, the exclusive right and power of determining on peace and war, making treaties and alliances, maintaining an army and navy, granting letters of marque and reprisal, regulating coinage, establishing and controlling the postal service—indeed, nearly all the so-called "characteristic powers of sovereignty" exercised by the Federal Government under the existing Constitution, except the regulation of commerce, and of levying and collecting its revenues directly, instead of through the interposition of the State authorities. The exercise of these first-named powers was prohibited to the States under the old compact, "without the consent of the United States in Congress assembled," but no one has claimed that the Confederation had thereby acquired sovereignty.
Entirely in accord with these truths are the arguments of Mr. Madison in the "Federalist," to show that the great principles of the Constitution are substantially the same as those of the Articles of Confederation. He says:
[pg 171]"I ask, What are these principles? Do they require that, in the establishment of the Constitution, the States should be regarded as distinct and independent sovereigns? They are so regarded by the Constitution proposed.... Do these principles, in fine, require that the powers of the General Government should be limited, and that, beyond this limit, the States should be left in possession of their sovereignty and independence? We have seen that, in the new Government as in the old, the general powers are limited; and that the States, in all unenumerated cases, are left in the enjoyment of their sovereign and independent jurisdiction."
"The truth is," he adds, "that the great principles of the Constitution proposed by the Convention may be considered less as absolutely new, than as the expansion of principles which are found in the Articles of Confederation."90
In the papers immediately following, he establishes this position in detail by an analysis of the principal powers delegated to the Federal Government, showing that the spirit of the original instructions to the Convention had been followed in revising "the Federal Constitution" and rendering it "adequate to the exigencies of government and the preservation of the Union."91
The present Union owes its very existence to the dissolution, by separate secession of its members, of the former Union, which, as we have thus seen, as to its organic principles, rested upon precisely the same foundation. The right to withdraw from the association results, in either case, from the same principles—principles which, I think, have been established on an impregnable basis of history, reason, law, and precedent.
It is not contended that this right should be resorted to for insufficient cause, or, as the writer already quoted on the law of partnership says, "wantonly and injuriously to the other partners," without responsibility of the seceding party for any damage thus done. No association can be dissolved without a likelihood of the occurrence of incidental questions concerning common property and mutual obligations—questions sometimes of a complex and intricate sort. If a wrong be perpetrated, in such case, it is a matter for determination by the means usually [pg 172] employed among independent and sovereign powers—negotiation, arbitration, or, in the failure of these, by war, with which, unfortunately, Christianity and civilization have not yet been able entirely to dispense. But the suggestion of possible evils does not at all affect the question of right. There is no great principle in the affairs either of individuals or of nations that is not liable to such difficulties in its practical application.
But, we are told, there is no mention made of secession in the Constitution. Mr. Everett says: "The States are not named in it; the word sovereignty does not occur in it; the right of secession is as much ignored in it as the procession of the equinoxes." We have seen how very untenable is the assertion that the States are not named in it, and how much pertinency or significance in the omission of the word "sovereignty." The pertinent question that occurs is, Why was so obvious an attribute of sovereignty not expressly renounced if it was intended to surrender it? It certainly existed; it was not surrendered; therefore it still exists. This would be a more natural and rational conclusion than that it has ceased to exist because it is not mentioned.
The simple truth is, that it would have been a very extraordinary thing to incorporate into the Constitution any express provision for the secession of the States and dissolution of the Union. Its founders undoubtedly desired and hoped that it would be perpetual; against the proposition for power to coerce a State, the argument was that it would be a means, not of preserving, but of destroying, the Union. It was not for them to make arrangements for its termination—a calamity which there was no occasion to provide for in advance. Sufficient for their day was the evil thereof. It is not usual, either in partnerships between men or in treaties between governments, to make provision for a dissolution of the partnership or a termination of the treaty, unless there be some special reason for a limitation of time. Indeed, in treaties, the usual formula includes a declaration of their perpetuity; but in either case the power of the contracting parties, or of any of them, to dissolve the compact, on terms not damaging to the rights of the other parties, is not the less clearly understood. It was not necessary in the Constitution [pg 173] to affirm the right of secession, because it was an attribute of sovereignty, and the States had reserved all which they had not delegated.
The right of the people of the several States to resume the powers delegated by them to the common agency, was not left without positive and ample assertion, even at a period when it had never been denied. The ratification of the Constitution by Virginia has already been quoted, in which the people of that State, through their Convention, did expressly "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, whensoever the same shall be perverted to their injury or oppression, and that every power not granted thereby remains with them and at their will."92
New York and Rhode Island were no less explicit, both declaring that "the powers of government may be reassumed by the people whenever it shall become necessary to their happiness."93
These expressions are not mere obiter dicta, thrown out incidentally, and entitled only to be regarded as an expression of opinion by their authors. Even if only such, they would carry great weight as the deliberately expressed judgment of enlightened contemporaries, but they are more: they are parts of the very acts or ordinances by which these States ratified the Constitution and acceded to the Union, and can not be detached from them. If they are invalid, the ratification itself was invalid, for they are inseparable. By inserting these declarations in their ordinances, Virginia, New York, and Rhode Island, formally, officially, and permanently, declared their interpretation of the Constitution as recognizing the right of secession by the resumption of their grants. By accepting the ratifications with this declaration incorporated, the other States as formally accepted the principle which it asserted.
I am well aware that it has been attempted to construe these declarations concerning the right of the people to reassume their delegations of power—especially in the terms employed by Virginia, "people of the United States"—as having reference to [pg 174] the idea of one people, in mass, or "in the aggregate." But it can scarcely be possible that any candid and intelligent reader, who has carefully considered the evidence already brought to bear on the subject, can need further argument to disabuse his mind of that political fiction. The "people of the United States," from whom the powers of the Federal Government were "derived," could have been no other than the people who ordained and ratified the Constitution; and this, it has been shown beyond the power of denial, was done by the people of each State, severally and independently. No other people were known to the authors of the declarations above quoted. Mr. Madison was a leading member of the Virginia Convention, which made that declaration, as well as of the general Convention that drew up the Constitution. We have seen what his idea of "the people of the United States" was—"not the people as composing one great body, but the people as composing thirteen sovereignties."94 Mr. Lee, of Westmoreland ("Light-Horse Harry"), in the same Convention, answering Mr. Henry's objection to the expression, "We, the people," said: "It [the Constitution] is now submitted to the people of Virginia. If we do not adopt it, it will be always null and void as to us. Suppose it was found proper for our adoption, and becoming the government of the people of Virginia, by what style should it be done? Ought we not to make use of the name of the people? No other style would be proper."95 It would certainly be superfluous, after all that has been presented heretofore, to add any further evidence of the meaning that was attached to these expressions by their authors. "The people of the United States" were in their minds the people of Virginia, the people of Massachusetts, and the people of every other State that should agree to unite. They could have meant only that the people of their respective States who had delegated certain powers to the Federal Government, in ratifying the Constitution and acceding to the Union, reserved to themselves the right, in event of the failure of their purposes, to "resume" (or "reassume") those powers by seceding from the same Union.
[pg 175]Finally, the absurdity of the construction attempted to be put upon these expressions will be evident from a very brief analysis. If the assertion of the right of reassumption of their powers was meant for the protection of the whole people—the people in mass—the people "in the aggregate"—of a consolidated republic—against whom or what was it to protect them? By whom were the powers granted to be perverted to the injury or oppression of the whole people? By themselves or by some of the States, all of whom, according to this hypothesis, had been consolidated into one? As no danger could have been apprehended from either of these, it must have been against the Government of the United States that the provision was made; that is to say, the whole people of a republic make this declaration against a Government established by themselves and entirely subject to their own control, under a Constitution which contains provision for its own amendment by this very same "whole people," whenever they may think proper! Is it not a libel upon the statesmen of that generation to attribute to their grave and solemn declarations a meaning so vapid and absurd?
To those who argue that the grants of the Constitution are fatal to the reservation of sovereignty by the States, the Constitution furnishes a conclusive answer in the amendment which was coeval with the adoption of the instrument, and which declares that all powers not delegated to the Government of the Union were reserved to the States or to the people. As sovereignty was not delegated by the States, it was necessarily reserved. It would be superfluous to answer arguments against implied powers of the States; none are claimed by implication, because all not delegated by the States remained with them, and it was only in an abundance of caution that they expressed the right to resume such parts of their unlimited power as was delegated for the purposes enumerated. As there be those who see danger to the perpetuity of the Union in the possession of such power by the States, and insist that our fathers did not intend to bind the States together by a compact no better than "a rope of sand," it may be well to examine their position. From what have dangers to the Union arisen? Have they sprang from too great restriction on the exercise of the granted [pg 176] powers, or from the assumption by the General Government of power claimed by implication? The whole record of our Union answers, from the latter only.
Was this tendency to usurpation caused by the presumption of paramount authority in the General Government, or by the assertion of the right of a State to resume the powers it had delegated? Reasonably and honestly it can not be assigned to the latter. Let it be supposed that the "whole people" had recognized the right of a State of the Union, peaceably and independently, to resume the powers which, peaceably and independently, she had delegated to the Federal Government, would not this have been potent to restrain the General Government from exercising its functions to the injury and oppression of such State? To deny that effect would be to suppose that a dominant majority would be willing to drive a State from the Union. Would the admission of the right of a State to resume the grants it had made, have led to the exercise of that right for light and trivial causes? Surely the evidence furnished by the nations, both ancient and modern, refutes the supposition. In the language of the Declaration of Independence, "All experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed." Would not real grievances be rendered more tolerable by the consciousness of power to remove them; and would not even imaginary wrongs be embittered by the manifestation of a purpose to make them perpetual? To ask these questions is to answer them.
The wise and brave men who had, at much peril and great sacrifice, secured the independence of the States, were as little disposed to surrender the sovereignty of the States as they were anxious to organize a General Government with adequate powers to remedy the defects of the Confederation. The Union they formed was not to destroy the States, but to "secure the blessings of liberty to ourselves and our posterity."
Footnote 88: (return)Parsons, "Rights of a Citizen," chap. xx, section 3.
Footnote 89: (return)Ratification appended to Articles of Confederation. (See Elliott's "Debates," vol. i, p. 113.)
Footnote 90: (return)"Federalist," No. xl.
Footnote 91: (return)Ibid., Nos. xli-xliv.
Footnote 92: (return)See Elliott's "Debates," vol. i, p. 360.
Footnote 93: (return)Ibid., pp. 361, 369.
Footnote 94: (return)Elliott's "Debates," vol. iii, p. 114.
Footnote 95: (return)[pg 177]Ibid., p. 71.
Coercion the Alternative to Secession.—Repudiation of it by the Constitution and the Fathers of the Constitutional Era.—Difference between Mr. Webster and Mr. Hamilton.
The alternative to secession is coercion. That is to say, if no such right as that of secession exists—if it is forbidden or precluded by the Constitution—then it is a wrong; and, by a well settled principle of public law, for every wrong there must be a remedy, which in this case must be the application of force to the State attempting to withdraw from the Union.
Early in the session of the Convention which formed the Constitution, it was proposed to confer upon Congress the power "to call forth the force of the Union against any member of the Union failing to fulfill its duty under the articles thereof." When this proposition came to be considered, Mr. Madison observed that "a union of the States containing such an ingredient seemed to provide for its own destruction. The use of force against a State would look more like a declaration of war than an infliction of punishment, and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound. He hoped that such a system would be framed as might render this recourse unnecessary, and moved that the clause be postponed." This motion was adopted nem. con., and the proposition was never again revived.96 Again, on a subsequent occasion, speaking of an appeal to force, Mr. Madison said: "Was such a remedy eligible? Was it practicable?... Any government for the United States, formed on the supposed practicability of using force against the unconstitutional proceedings of the States, would prove as visionary and fallacious as the government of Congress."97 Every proposition looking in any way to the same or a similar object was promptly rejected by the convention. George Mason, of Virginia, said of such a proposition: "Will not the citizens of the invaded State assist one another, until they rise as one man and shake off the Union altogether?"98
[pg 178]Oliver Ellsworth, in the ratifying Convention of Connecticut, said: "This Constitution does not attempt to coerce sovereign bodies, States, in their political capacity. No coercion is applicable to such bodies but that of an armed force. If we should attempt to execute the laws of the Union by sending an armed force against a delinquent State, it would involve the good and bad, the innocent and guilty, in the same calamity."99
Mr. Hamilton, in the Convention of New York, said: "To coerce the States is one of the maddest projects that was ever devised.... What picture does this idea present to our view? A complying State at war with a non-complying State: Congress marching the troops of one State into the bosom of another ... Here is a nation at war with itself. Can any reasonable man be well disposed toward a government which makes war and carnage the only means of supporting itself—a government that can exist only by the sword?... But can we believe that one State will ever suffer itself to be used as an instrument of coercion? The thing is a dream—it is impossible."100
Unhappily, our generation has seen that, in the decay of the principles and feelings which animated the hearts of all patriots in that day, this thing, like many others then regarded as impossible dreams, has been only too feasible, and that States have permitted themselves to be used as instruments, not merely for the coercion, but for the destruction of the freedom and independence of their sister States.
Edmund Randolph, Governor of Virginia, although the mover of the original proposition to authorize the employment of the forces of the Union against a delinquent member, which had been so signally defeated in the Federal Convention, afterward, in the Virginia Convention, made an eloquent protest against the idea of the employment of force against a State. "What species of military coercion," said he, "could the General Government adopt for the enforcement of obedience to its demands? Either an army sent into the heart of a delinquent State, or blocking up its ports. Have we lived to this, then, that, in order to suppress and exclude tyranny, it is necessary to render the most affectionate friends the most bitter [pg 179] enemies, set the father against the son, and make the brother slay the brother? Is this the happy expedient that is to preserve liberty? Will it not destroy it? If an army be once introduced to force us, if once marched into Virginia, figure to yourselves what the dreadful consequence will be: the most lamentable civil war must ensue."101
We have seen already how vehemently the idea of even judicial coercion was repudiated by Hamilton, Marshall, and others. The suggestion of military coercion was uniformly treated, as in the above extracts, with still more abhorrence. No principle was more fully and firmly settled on the highest authority than that, under our system, there could be no coercion of a State.
Mr. Webster, in his elaborate speech of February 16, 1833, arguing throughout against the sovereignty of the States, and in the course of his argument sadly confounding the ideas of the Federal Constitution and the Federal Government, as he confounds the sovereign people of the States with the State governments, says: "The States can not omit to appoint Senators and electors. It is not a matter resting in State discretion or State pleasure.... No member of a State Legislature can refuse to proceed, at the proper time, to elect Senators to Congress, or to provide for the choice of electors of President and Vice-President, any more than the members can refuse, when the appointed day arrives, to meet the members of the other House, to count the votes for those officers and ascertain who are chosen."102 This was before the invention in 1877 of an electoral commission to relieve Congress of its constitutional duty to count the vote. Mr. Hamilton, on the contrary, fresh from the work of forming the Constitution, and familiar with its principles and purposes, said: "It is certainly true that the State Legislatures, by forbearing the appointment of Senators, may destroy the national Government."103
It is unnecessary to discuss the particular question on which these two great authorities are thus directly at issue. I do not contend that the State Legislatures, of their own will, have a [pg 180] right to forego the performance of any Federal duty imposed upon them by the Constitution. But there is a power beyond and above that of either the Federal or State governments—the power of the people of the State, who ordained and established the Constitution, as far as it applies to themselves, reserving, as I think has been demonstrated, the right to reassume the grants of power therein made, when they deem it necessary for their safety or welfare to do so. At the behest of this power, it certainly becomes not only the right, but the duty, of their State Legislature to refrain from any action implying adherence to the Union, or partnership, from which the sovereign has withdrawn.
Footnote 96: (return)"Madison Papers," pp. 732, 761.
Footnote 97: (return)Ibid., p. 822.
Footnote 98: (return)Ibid., p. 914.
Footnote 99: (return)Elliott's "Debates," vol. ii, p. 199.
Footnote 100: (return)Ibid., pp. 232, 233.
Footnote 101: (return)Elliott's "Debates," vol. iii, p. 117.
Footnote 102: (return)"Congressional Debates," vol. ix, Part I, p. 566.
Footnote 103: (return)"Federalist," No. lix.
Some Objections considered.—The New States.—Acquired Territory.—Allegiance, false and true.—Difference between Nullification and Secession.—Secession a Peaceable Remedy.—No Appeal to Arms.—Two Conditions noted.
It would be only adding to a superabundance of testimony to quote further from the authors of the Constitution in support of the principle, unquestioned in that generation, that the people who granted—that is to say, of course, the people of the several States—might resume their grants. It will require but few words to dispose of some superficial objections that have been made to the application of this doctrine in a special case.
It is sometimes said that, whatever weight may attach to principles founded on the sovereignty and independence of the original thirteen States, they can not apply to the States of more recent origin—constituting now a majority of the members of the Union—because these are but the offspring or creatures of the Union, and must of course be subordinate and dependent.
This objection would scarcely occur to any instructed mind, though it may possess a certain degree of specious plausibility for the untaught. It is enough to answer that the entire equality of the States, in every particular, is a vital condition of their union. Every new member that has been admitted into [pg 181] the partnership of States came in, as is expressly declared in the acts for their admission, on a footing of perfect equality in every respect with the original members. This equality is as complete as the equality, before the laws, of the son with the father, immediately on the attainment by the former of his legal majority, without regard to the prior condition of dependence and tutelage. The relations of the original States to one another and to the Union can not be affected by any subsequent accessions of new members, as the Constitution fixes those relations permanently, and furnishes the normal standard which is applicable to all. The Boston memorial to Congress, referred to in a foregoing chapter, as prepared by a committee with Mr. Webster at its head, says that the new States "are universally considered as admitted into the Union upon the same footing as the original States, and as possessing, in respect to the Union, the same rights of sovereignty, freedom, and independence, as the other States."
But, with regard to States formed of territory acquired by purchase from France, Spain, and Mexico, it is claimed that, as they were bought by the United States, they belong to the same, and have no right to withdraw at will from an association the property which had been purchased by the other parties.
Happy would it have been if the equal rights of the people of all the States to the enjoyment of territory acquired by the common treasure could have been recognized at the proper time! There would then have been no secession and no war.
As for the sordid claim of ownership of States, on account of the money spent for the land which they contain—I can understand the ground of a claim to some interest in the soil, so long as it continues to be public property, but have yet to learn in what way the United States ever became purchaser of the inhabitants or of their political rights.
Any question in regard to property has always been admitted to be matter for fair and equitable settlement, in case of the withdrawal of a State.
The treaty by which the Louisiana territory was ceded to the United States expressly provided that the inhabitants thereof should be "admitted, as soon as possible, according to the principles [pg 182] of the Federal Constitution, to the enjoyment of all the rights, advantages, and immunities of citizens of the United States."104 In all other acquisitions of territory the same stipulation is either expressed or implied. Indeed, the denial of the right would be inconsistent with the character of American political institutions.
Another objection made to the right of secession is based upon obscure, indefinite, and inconsistent ideas with regard to allegiance. It assumes various shapes, and is therefore somewhat difficult to meet, but, as most frequently presented, may be stated thus: that the citizen owes a double allegiance, or a divided allegiance—partly to his State, partly to the United States: that it is not possible for either of these powers to release him from the allegiance due to the other: that the State can no more release him from his obligations to the Union than the United States can absolve him from his duties to his State. This is the most moderate way in which the objection is put. The extreme centralizers go further, and claim that allegiance to the Union, or, as they generally express it, to the Government—meaning thereby the Federal Government—is paramount, and the obligation to the State only subsidiary—if, indeed, it exists at all.
This latter view, if the more monstrous, is at least the more consistent of the two, for it does not involve the difficulty of a divided allegiance, nor the paradoxical position in which the other places the citizen, in case of a conflict between his State and the other members of the Union, of being necessarily a rebel against the General Government or a traitor to the State of which he is a citizen.
As to true allegiance, in the light of the principles which have been established, there can be no doubt with regard to it. The primary, paramount allegiance of the citizen is due to the sovereign only. That sovereign, under our system, is the people—the people of the State to which he belongs—the people who constituted the State government which he obeys, and which protects him in the enjoyment of his personal rights—the people who alone (as far as he is concerned) ordained and established [pg 183] the Federal Constitution and Federal Government—the people who have reserved to themselves sovereignty, which involves the power to revoke all agencies created by them. The obligation to support the State or Federal Constitution and the obedience due to either State or Federal Government are alike derived from and dependent on the allegiance due to this sovereign. If the sovereign abolishes the State government and ordains and establishes a new one, the obligation of allegiance requires him to transfer his obedience accordingly. If the sovereign withdraws from association with its confederates in the Union, the allegiance of the citizen requires him to follow the sovereign. Any other course is rebellion or treason—words which, in the cant of the day, have been so grossly misapplied and perverted as to be made worse than unmeaning. His relation to the Union arose from the membership of the State of which he was a citizen, and ceased whenever his State withdrew from it. He can not owe obedience—much less allegiance—to an association from which his sovereign has separated, and thereby withdrawn him.
Every officer of both Federal and State governments is required to take an oath to support the Constitution, a compact the binding force of which is based upon the sovereignty of the States—a sovereignty necessarily carrying with it the principles just stated with regard to allegiance. Every such officer is, therefore, virtually sworn to maintain and support the sovereignty of all the States.
Military and naval officers take, in addition, an oath to obey the lawful orders of their superiors. Such an oath has never been understood to be eternal in its obligations. It is dissolved by the death, dismissal, or resignation of the officer who takes it; and such resignation is not a mere optional right, but becomes an imperative duty when continuance in the service comes to be in conflict with the ultimate allegiance due to the sovereignty of the State to which he belongs.
A little consideration of these plain and irrefutable truths would show how utterly unworthy and false are the vulgar taunts which attribute "treason" to those who, in the late secession of the Southern States, were loyal to the only sovereign [pg 184] entitled to their allegiance, and which still more absurdly prate of the violation of oaths to support "the Government," an oath which nobody ever could have been legally required to take, and which must have been ignorantly confounded with the prescribed oath to support the Constitution.
Nullification and secession are often erroneously treated as if they were one and the same thing. It is true that both ideas spring from the sovereign right of a State to interpose for the protection of its own people, but they are altogether unlike as to both their extent and the character of the means to be employed. The first was a temporary expedient, intended to restrain action until the question at issue could be submitted to a convention of the States. It was a remedy which its supporters sought to apply within the Union; a means to avoid the last resort—separation. If the application for a convention should fail, or if the State making it should suffer an adverse decision, the advocates of that remedy have not revealed what they proposed as the next step—supposing the infraction of the compact to have been of that character which, according to Mr. Webster, dissolved it.
Secession, on the other hand, was the assertion of the inalienable right of a people to change their government, whenever it ceased to fulfill the purposes for which it was ordained and established. Under our form of government, and the cardinal principles upon which it was founded, it should have been a peaceful remedy. The withdrawal of a State from a league has no revolutionary or insurrectionary characteristic. The government of the State remains unchanged as to all internal affairs. It is only its external or confederate relations that are altered. To term this action of a sovereign a "rebellion," is a gross abuse of language. So is the flippant phrase which speaks of it as an appeal to the "arbitrament of the sword." In the late contest, in particular, there was no appeal by the seceding States to the arbitrament of arms. There was on their part no invitation nor provocation to war. They stood in an attitude of self-defense, and were attacked for merely exercising a right guaranteed by the original terms of the compact. They neither tendered nor accepted any challenge to the wager of [pg 185] battle. The man who defends his house against attack can not with any propriety be said to have submitted the question of his right to it to the arbitrament of arms.
Two moral obligations or restrictions upon a seceding State certainly exist: in the first place, not to break up the partnership without good and sufficient cause; and, in the second, to make an equitable settlement with former associates, and, as far as may be, to avoid the infliction of loss or damage upon any of them. Neither of these obligations was violated or neglected by the Southern States in their secession.
Footnote 104: (return)Ray's "Louisiana Digest," vol. i, p. 24.
Early Foreshadowings.—Opinions of Mr. Madison and Mr. Rufus King.—Safeguards provided.—Their Failure.—State Interposition.—The Kentucky and Virginia Resolutions.—Their Endorsement by the People in the Presidential Elections of 1800 and Ensuing Terms.—South Carolina and Mr. Calhoun.—The Compromise of 1833.—Action of Massachusetts in 1843-'45.—Opinions of John Quincy Adams.—Necessity for Secession.
From the earliest period, it was foreseen by the wisest of our statesmen that a danger to the perpetuity of the Union would arise from the conflicting interests of different sections, and every effort was made to secure each of these classes of interests against aggression by the other. As a proof of this, may be cited the following extract from Mr. Madison's report of a speech made by himself in the Philadelphia Convention on the 30th of June, 1787:
"He admitted that every peculiar interest, whether in any class of citizens or any description of States, ought to be secured as far as possible. Wherever there is danger of attack, there ought to be given a constitutional power of defense. But he contended that the States were divided into different interests, not by their difference of size, but by other circumstances; the most material of which resulted from climate, but principally from the effects of their having or not having slaves. These two causes concurred in forming the great division of interests in the [pg 186] United States. It did not lie between the large and small States; it lay between the Northern and Southern; and, if any defensive power were necessary, it ought to be mutually given to these two interests."105
Mr. Rufus King, a distinguished member of the Convention from Massachusetts, a few days afterward, said, to the same effect: "He was fully convinced that the question concerning a difference of interests did not lie where it had hitherto been discussed, between the great and small States, but between the Southern and Eastern. For this reason he had been ready to yield something, in the proportion of representatives, for the security of the Southern.... He was not averse to giving them a still greater security, but did not see how it could be done."106
The wise men who formed the Constitution were not seeking to bind the States together by the material power of a majority; nor were they so blind to the influences of passion and interest as to believe that paper barriers would suffice to restrain a majority actuated by either or both of these motives. They endeavored, therefore, to prevent the conflicts inevitable from the ascendancy of a sectional or party majority, by so distributing the powers of government that each interest might hold a check upon the other. It was believed that the compromises made with regard to representation—securing to each State an equal vote in the Senate, and in the House of Representatives giving the States a weight in proportion to their respective population, estimating the negroes as equivalent to three fifths of the same number of free whites—would have the effect of giving at an early period a majority in the House of Representatives to the South, while the North would retain the ascendancy in the Senate. Thus it was supposed that the two great sectional interests would be enabled to restrain each other within the limits of purposes and action beneficial to both.
The failure of these expectations need not affect our reverence for the intentions of the fathers, or our respect for the means which they devised to carry them into effect. That they were [pg 187] mistaken, both as to the maintenance of the balance of sectional power and as to the fidelity and integrity with which the Congress was expected to conform to the letter and spirit of its delegated authority, is perhaps to be ascribed less to lack of prophetic foresight, than to that over-sanguine confidence which is the weakness of honest minds, and which was naturally strengthened by the patriotic and fraternal feelings resulting from the great struggle through which they had then but recently passed. They saw, in the sufficiency of the authority delegated to the Federal Government and in the fullness of the sovereignty retained by the States, a system the strict construction of which was so eminently adapted to indefinite expansion of the confederacy as to embrace every variety of production and consequent diversity of pursuit. Carried out in the spirit in which it was devised, there was in this system no element of disintegration, but every facility for an enlargement of the circle of the family of States (or nations), so that it scarcely seemed unreasonable to look forward to a fulfillment of the aspiration of Mr. Hamilton, that it might extend over North America, perhaps over the whole continent.
Not at all incompatible with these views and purposes was the recognition of the right of the States to reassume, if occasion should require it, the powers which they had delegated. On the contrary, the maintenance of this right was the surest guarantee of the perpetuity of the Union, and the denial of it sounded the first serious note of its dissolution. The conservative efficiency of "State interposition," for maintenance of the essential principles of the Union against aggression or decadence, is one of the most conspicuous features in the debates of the various State Conventions by which the Constitution was ratified. Perhaps their ideas of the particular form in which this interposition was to be made may have been somewhat indefinite; and left to be reduced to shape by the circumstances when they should arise, but the principle itself was assumed and asserted as fundamental. But for a firm reliance upon it, as a sure resort in case of need, it may safely be said that the Union would never have been formed. It would be unjust to the wisdom and sagacity of the framers of the Constitution to suppose [pg 188] that they entirely relied on paper barriers for the protection of the rights of minorities. Fresh from the defense of violated charters and faithless aggression on inalienable rights, it might, a priori, be assumed that they would require something more potential than mere promises to protect them from human depravity and human ambition. That they did so is to be found in the debates both of the General and the State Conventions, where State interposition was often declared to be the bulwark against usurpation.
At an early period in the history of the Federal Government, the States of Kentucky and Virginia found reason to reassert this right of State interposition. In the first of the famous re