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

by Caleb William Loring

The idea which has found favor that Judge Story yielded his early convictions as to the nationality of the government to the influence of Marshall, is founded on the erroneous theory that the doctrine of the Kentucky resolutions were, after their promulgation, held and believed in by Story and the republicans. Anyone who was personally acquainted with Story, or was taught by him in the law school at Cambridge, or heard the opinions of the eminent counsel who tried cases before him, knows that no judge of a more uncompromising confidence in his own conclusions and decisions ever sat on the bench. The great fault of this most learned of our judges was the quickness of his apprehension and of his arriving at a conclusion in the beginning of a case he was hearing, and the tenacity with which he held and enforced it, sometimes even to the detriment of justice itself. Story, though generally agreeing with the Chief Justice, at times gave dissenting opinions on constitutional questions.

The government, from the time of South Carolina’s earlier nullification ordinances to that of the civil war, excepting for very short periods, was in the hands of the South. Under it, and in the interest of the slave States, Polk made war with Mexico, an act of Congress declaring that it existed. Texas with its immense territory of over two hundred thousand square miles was annexed in Tyler’s administration, Calhoun becoming Secretary of State for that purpose. Laws interfering with the constitutional rights of Northern citizens of the black and mixed race, and for the protection of slavery, were passed and enforced by the Southern States.

There can be no doubt that the belief had been growing in those States, that they would be better off out of the Union than in it. The opposition to slavery was increasing at the North; no works were so widely read there as those setting forth its iniquities. The South, then, as in the time of the making of the Constitution, was an agricultural country, depending for its prosperity on a cheap, forced labor, and the exportation of its cotton and other products. It was strong in men, and no longer required the protection of the Eastern States, as in the days of the National Convention. In 1854, by the laws enacted by Congress, the whole territory of the United States was thrown open to the introduction of slavery, giving to the Southern States the right to carry into it their “peculiar property,” and taking away their great grievance. Then also came the decision of the United States Supreme Court in the Dred Scott case, that all laws excluding slavery from the territories were unconstitutional, and asserting that the inhabitants of those territories could not interfere with that right. The only matter the South could complain of was the hostility of the Northern States to slavery, and that some of them would not comply with the laws for the rendition of their slaves, and had passed State laws and committed acts interfering with their legal and constitutional right of seizing them on Northern territory. There was no pretence that there was any tyrannical usurpation of undelegated authority by the United States, such as the Virginia resolutions referred to. Prof. Bazil L. Gildersleeve, a confederate soldier, in the Atlantic Monthly Magazine, says in a paper called “The Creed of the old South,” that the cause of secession was, that “the extreme Southern States considered their rights menaced by the issue of the presidential election.”[114]

Upon the choice of Lincoln, and while Buchanan was President, preparations were made by the South for a disruption of the Union. Reuben Davis, a distinguished lawyer and a member of Congress from Mississippi, in his autobiography, informs us that he spent much time with Floyd, the Secretary of War, who had been for twelve months sending arms to Southern arsenals and had put the forts in condition to be captured. He estimated that one half of the munitions of war was in the South.[115] South Carolina again took the initiative and seceded on the ground that as a sovereign State she had the right to withdraw from the compact she had entered into; and for the second time in our history did a State, and the same State, assert its sovereign right against the supreme authority of the United States. The other plantation States quickly followed South Carolina; generally there was no elaborate statement by them of their grievances, nor did they explain why the doctrines they abhorred less than thirty years before, they now asserted and so courageously fought for. Virginia joined the Southern Confederacy without passing any formal act of secession. Her convention, called for the purpose of considering the matter, voted not to secede. In an address delivered in October, 1887, at Richmond, on the dedication of a statue to Lee, the orator, a descendant of the great Chief-Justice Marshall, undertakes to explain and defend Virginia’s course in joining the South. He does not claim the right of secession and apparently agrees with Lee, and puts in italics what Lee wrote on the 23d of January, 1861, that “Secession is nothing but revolution.” He states also that secession was unjustifiable, because the opponents of Lincoln had the majority in the National House of Representatives and Senate; but that the method of Lincoln of composing the troubles of the country brought Virginia into the contest. Following, as Southern writers and speakers do, the extravagant denunciations of Calhoun, he says: “Instead of maintaining the honor, the integrity of our National Union, it destroyed that Union in all but a territorial sense, as effectually as secession, by substituting conquered provinces for free States, and repeating in America the shameful history of Russia and Poland.” As our Poland when he spoke had an executive of its own choice and a majority of the House of Representatives, it was its own fault, if its inhabitants were in that abject condition. Is it not absurd to talk in this way, when no secessionist has been hung for treason, and a silver crown a short time since, at a public meeting, was prepared by some admirer for the dethroned autocrat of our Poland? At any rate we have no sedition law now, and freedom of speech against the government passes without comment. An unsuccessful revolution is rebellion, generally punished in other countries by death. It has not been so in our Russia. Jefferson Davis was indicted for treason; his trial never took place, as President Johnson issued a general amnesty proclamation.

Undoubtedly the confidence of the South in its assumed superiority in courage and fighting qualities had great influence in inducing its attempted secession. Jefferson Davis in his history gives instances of advantages gained at the outset by the Southern soldiers through their skill in the use of firearms. He did not tell us, and it seems to have escaped notice generally, that the Southern States had also the great benefit of the military academies they had established, which furnished at once trained officers for their troops. Their renowned general, Stonewall Jackson, was a professor in that of Virginia, and went from the academy to the Confederate army.[116]

The seceding States in forming their new compact, in article after article followed the Constitution they rejected, prefacing it with the declaration, “We, the people of the Confederate States, each State acting in its sovereign and independent character, in order to form a more permanent Federal Government,” instead of “We, the people of the United States, in order to form a more perfect Union, for ourselves and our posterity.” They took particular care, however, by their new “Compact,” to provide for the perpetuity of slavery in their Confederacy,—and, looking to conquests, in any new territory that might be acquired.

Instead of slavery being perpetuated, the whole system was annihilated under and within the Constitution. The amendment abolishing it forever was passed in the manner required in the Constitution by all the States that had refused an obedience to the United States laws. No longer is the declaration of independence that all men are born free and equal, in the language of Calhoun, “a glittering generality.”

The seceding States were not without their internal trouble, and the authority of the Confederate Government was questioned by Georgia.

We all know how patiently and assiduously Lincoln tried to keep the Southern States in the Union and how ineffectually; and when he found that his effort was of no avail, with how firm a hand he wielded the powers of the Executive. In Merriam’s case, he maintained his suspension of the habeas corpus, although Chief-Justice Taney held it was illegal. His decreeing freedom to the slaves of those in rebellion, as a war measure, was an act of imperial power seldom surpassed. Our whole history, as well as the epoch of the civil war, has proved how unfounded was Hamilton’s fear that the government was not strong enough.

How wonderfully well the founders of our Constitution did their work, is shown by the fact that so few amendments have been made, while the constitutions of the different States have been changed again and again. The ten articles declaring certain rights to be in the people were adopted in 1791, then in 1798 the article taking away from the United States the jurisdiction of suits of individuals against a State; afterwards in 1804 two articles changing the manner of electing the President and Vice-President. The theory of the founders of the Constitution, that it would be best to leave to men of prominence as electors to confer and choose those most fit for President and Vice-President, has failed. The electors chosen by the people are pledged to vote for candidates nominated at party conventions. After these few amendments, none were passed until those as to slavery, following the civil war.