Nullification, Secession, Webster's Argument, and the Kentucky and Virginia Resolutions / Considered in Reference to the Constitution and Historically

by Caleb William Loring

It is to be observed that this took place in a case where the dispute was as to the jurisdiction of the United States in a case between a State court and the authority of the old Confederate Government. The party of which Jefferson was the chief could have refused to enforce the decision of the Supreme Court on what seems a plausible ground, that the Constitution gave no power to the United States over the disputes between the old Confederacy and the States; but neither Congress, nor Jefferson by a veto, did this. They enforced the nationality of the Confederacy and of the United States Government as its successor.

The carrying out of the decree of the United States Court was resisted by the Pennsylvania State militia under General Bright, who had been called out by the Governor under the sanction of the Legislature; the United States marshal summoned a posse of two thousand men, and war was imminent. Madison had now become President, and the Governor appealed to him to discriminate between a factious opposition to the laws of the United States and resistance to a decree founded on a usurpation of power; but Madison replied that he was specially enjoined by statute to enforce the decrees of the Supreme Court. The State yielded, and also paid the money necessary to carry out the decree of the United States Court. General Bright and his men were brought to trial for forcibly obstructing the United States process, and were convicted and sentenced to fine and imprisonment. Madison pardoned those convicted, and remitted the fines on the ground that they had acted under a mistaken sense of duty.[83]

Nor is this all of this matter. Pennsylvania, though finally yielding an obedience to the United States, felt aggrieved, and suggested an amendment to the Constitution, that questions arising between States and the federal judiciary should be submitted to an impartial tribunal, and sent the proposed amendment to Virginia.

The Legislature of Virginia appointed a committee to consider this proposed amendment, part of whose report was, “that a tribunal is already provided by the Constitution of the United States, to wit, the Supreme Court, more eminently qualified, from their habits and duties, from the mode of their selection, and from their tenure of office, to decide the disputes aforesaid in an enlightened and impartial manner than any other tribunal that could be created.” The resolutions disapproving the proposed amendment were passed unanimously, both in the House of Delegates and Senate.[84] Thus in January, 1810, only ten years after her own resolutions and explanations, Virginia, instead of giving countenance to the nullification doctrine of Kentucky, and replying to Pennsylvania that, as a State, a party making the compact, you have a right to judge whether the United States exceeds its authority, declared that a fit tribunal for the trial of questions between the States and the United States existed in the Supreme Court of the United States, and that a better one could not be created. This should be conclusive that Virginia republicanism in no way countenanced nullification.

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

In the national convention Gouverneur Morris said that the fisheries and the Mississippi were the two great objects of the Union.[85] Negotiations with Spain with reference to the navigation of the Mississippi were constantly before the Congress of the Confederacy in 1787, this river being the only outlet for the products of Kentucky, Tennessee, and of parts of Western Virginia and Pennsylvania, as well as of the great then unsettled country beyond. There was a fear that the inhabitants of this western territory might ally themselves with Great Britain, because of her power to compel Spain to grant the right of way to the sea; for it was recognized that the inhabitants of that country would and must be a part of the power that held the mouth of the great river. More than this, the Constitution itself provides for the admission of new States, and the annexation of Canada had been contemplated in the articles of the Confederacy.

Josiah Quincy’s speech, in 1811, when the admission of Louisiana as a State came up, is often quoted by Southern writers as justifying secession. He said: “If this bill 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.”

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

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

There are many followers and admirers of Jefferson who maintain that he did not take the same view of the Kentucky resolves as the nullifiers of South Carolina. Robert J. Walker, the distinguished financier and Secretary of the Treasury in Polk’s time, in an article on nullification and secession, in the February number of the Continental Monthly, published at Philadelphia in 1863, gives what he alleges are Jefferson’s views, and says that they were opposed to nullification and secession. Indeed, the Kentucky resolves do not claim the right of secession; they do not follow out their premises to its logical conclusion. They do not declare or recommend that the State should treat the Alien and Sedition laws as null and void, though in their reply to the other States they say a nullification is “the rightful remedy.” They carefully let it be known they only protest. That Jefferson did not carry this theory of the Kentucky resolutions to the right of secession, is perhaps shown by his correspondence when the acceptance of the Constitution was pending in Virginia. Even at the time of the Kentucky resolutions he speaks of the “scission” of the States, and about 1820, during the period of the Missouri dispute, he again alludes to the “scission,” if it should come, as geographical. He would hardly have used this word, implying a cutting or tearing asunder, if he had believed in a right of secession.