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Chapter 14:

  • Early Foreshadowings
  • -- opinions of Madison and Rufus King -- safeguards provided -- their failure -- State Interpositions -- the Kentucky and Virginia resolutions -- their endorsement by the people in the presidential Elections of 1800 and ensuing terms -- South Carolina and 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 Madison's report of a speech made by himself in the Philadelphia convention on June 30, 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 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.1

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.”2

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 [159] 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 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 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 [160] 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 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 resolutions drawn by Jefferson in 1798, and with some modification adopted by the legislature of Kentucky in November of that year, it is declared that, “whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force; that to this compact each State acceded as a State, and is an integral party; that this Government, created by this compact, was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among parties having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress. ”

In the Virginia resolutions, drawn by Madison, adopted on December 24, 1798, and reaffirmed in 1799, the General Assembly of that state declares that “it views the powers of the Federal Government as resulting from the compact, to which the states are parties, as limited by the plain sense and intention of the instrument constituting that compact, as no further valid than they are authorized by the grants enumerated in that compact; and that, in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the States, who are parties thereto, have the right, and are in duty bound, to interpose, for arresting the progress of the evil, and for maintaining within their respective limits the authorities, rights, and liberties, appertaining to [161] them.” Another of the same series of resolutions denounces the indications of a design “to consolidate the States by degrees into one sovereignty.”

These, it is true, were only the resolves of two states, and they were dissented from by several other state legislatures—not so much on the ground of opposition to the general principles asserted as on that of their being unnecessary in their application to the alien and sedition laws, which were the immediate occasion of their utterance. Nevertheless, they were the basis of the contest for the presidency in 1800, which resulted in their approval by the people in the triumphant election of Jefferson. They became part of the accepted creed of the Republican, Democratic, State-Rights, or Conservative party, as it has been variously termed at different periods, and as such they were ratified by the people in every presidential election that took place for sixty years, with two exceptions. The last victory obtained under them, and when they were emphasized by adding the construction of them contained in the report of Madison to the Virginia legislature in 1799, was at the election of Buchanan—the last President chosen by vote of a party that could with any propriety be styled “national,” in contradistinction to sectional.

At a critical and memorable period, that pure spirit, luminous intellect, and devoted adherent of the Constitution, the great statesman of South Carolina, invoked this remedy of state interposition against the Tariff Act of 1828, which was deemed injurious and oppressive to his state. No purpose was then declared to coerce the state, as such, but measures were taken to break the protective shield of her authority and enforce the laws of Congress upon her citizens, by compelling them to pay outside of her ports the duties on imports, which the state had declared unconstitutional and had forbidden to be collected in her ports.

There remained at that day enough of the spirit in which the Union had been founded—enough of respect for the sovereignty of states and of regard for the limitations of the Constitution—to prevent a conflict of arms. The compromise of 1833 was adopted, which South Carolina agreed to accept, the principle for which she contended being virtually conceded.

Meantime there had been no lack, as we have already seen, of assertions of the sovereign rights of the states from other quarters. The declaration of these rights by the New England states and their representatives, on the acquisition of Louisiana in 1803, on the admission of the state of that name in 1811-12, and on the question of the annexation of Texas in 1843-45, have been referred to in another place. Among the [162] resolutions of the Massachusetts legislature, in relation to the proposed annexation of Texas, adopted in February, 1845, were the following:

2. Resolved, That there has hitherto been no precedent of the admission of a foreign state or foreign territory into the Union by 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.

3. Resolved, That the power, never having been granted by the people of Massachusetts, to admit into the Union States and Territories not within the same when the Constitution was adopted, remains with the people, and can only be exercised in such way and manner as the people shall hereafter designate and appoint.3

To these stanch declarations of principles—with regard to which (leaving out of consideration the particular occasion that called them forth) my only doubt would be whether they do not express too decided a doctrine of nullification—may be added the avowal of one of the most distinguished sons of Massachusetts, John Quincy Adams, in his discourse before the New York Historical Society, in 1839:

Nations acknowledge no judge between them upon earth; and their governments, from necessity, must, in their intercourse with each other, decide when the failure of one party to a contract to perform its obligations absolves the other from the reciprocal fulfillment of its own. But this last of earthly powers is not necessary to the freedom or independence of States connected together by the immedate action of the people of whom they consist. To the people alone is there reserved as well the dissolving as the constituent power, and that power can be exercised by them only under the tie of conscience, binding them to the retributive justice of Heaven.

With these qualifications, we may admit the same right as vested in the people of every State in the Union, with reference to the General Government, which was exercised by the people of the united colonies with reference to the supreme head of the British Empire, of which they formed a part; and under these limitations have the people of each State in the Union a right to secede from the confederated Union itself.

Thus stands the right. But the indissoluble link of union between the people of the people of the several States of this confederated nation is, after all, not in the right, but in the heart. If the day should ever come (may Heaven avert it!) when the affections of the people of these States shall be alienated from each other, when the fraternal spirit shall give way to cold indifference, or collision of interests shall fester into hatred, the bonds of political association will not long hold together parties no longer attracted by the magnetism of conciliated interests and kindly sympathies; and far better will it be for the people of the disunited States to part in friendship with each other than to be held together by constraint. Then will be the time for reverting to the precedents which occurred [163] at the formation and adoption of the Constitution, to form again a more perfect Union, by dissolving that which could no longer bind, and to leave the separated parts to be reunited by the law of political gravitation to the center.

Perhaps it is unfortunate that, in earlier and better times, when the prospect of serious difficulties first arose, a convention of the states was not assembled to consider the relations of the various states and the government of the Union. As time rolled on the general government, gathering with both hands a mass of undelegated powers, reached that position which Jefferson had pointed out as an intolerable evil—the claim of a right to judge of the extent of its own authority. Of those then participating in public affairs, it was apparently useless to ask that the question should be submitted for decision to the parties to the compact, under the same conditions as those which controlled the formation and adoption of the Constitution; otherwise, a convention would have been utterly fruitless, for at that period, when aggression for sectional aggrandizement had made such rapid advances, it can scarcely be doubted that more than a fourth, if not a majority of states, would have adhered to that policy which had been manifested for years in the legislation of many states, as well as in that of the federal government. What course would then have remained to the Southern states? Nothing, except either to submit to a continuation of what they believed and felt to be violations of the compact of union, breaches of faith, injurious and oppressive usurpation, or else to assert the sovereign right to reassume the grants they had made, since those grants had been perverted from their original and proper purposes.

Surely the right to resume the powers delegated and to judge of the propriety and sufficiency of the causes for doing so are alike inseparable from the possession of sovereignty. Over sovereigns there is no common judge, and between them can be no umpire, except by their own agreement and consent. The necessity or propriety of exercising the right to withdraw from a confederacy or union must be determined by each member for itself. Once determined in favor of withddrawal, all that remains for consideration is the obligation to see that no wanton damage is done to former associates, and to make such fair settlement of common interest as the equity of the case may require.

1 Madison Papers, p. 1006.

2 Ibid., pp. 1057, 1058.

3 Congressional Globe, Vol. XIV, p. 299.

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