Madison held a modification of the State sovereignty theory, which has counted among its adherents the mass of the ability and influence of American authorities on constitutional law. Holding that the Constitution was a compact, and that the States were the parties to it, he held that one of the conditions of the compact was the abandonment of State sovereignty; that the States were sovereign until 1787-8, but thereafter only members of a political state, the United States. This seems to have been the ground taken by Webster, in his debates with Hayne and Calhoun. It was supported by the instances in which the appearance of a sovereignty in each State was yielded in the fourteen years before 1787; but, unfortunately for the theory, Calhoun was able to produce instances exactly parallel after 1787. If the fact that each State predicated its own sovereignty as an essential part of the steps preliminary to the convention of 1787 be a sound argument for State sovereignty before 1787, the fact that each State predicated its sovereignty as an essential part of the ratification of the Constitution must be taken as an equally sound argument for State sovereignty under the Constitution; and it seems difficult, on the Madison theory, to resist Calhoun's triumphant conclusion that, if the States went into the convention as sovereign States, they came out of it as sovereign States, with, of course, the right of secession. Calhoun himself had a sincere desire to avoid the exercise of the right of secession, and it was as a substitute for it that he evolved his doctrine of nullification, which has been placed in the first volume. When it failed in 1833, the exercise of the right of secession was the only remaining remedy for an asserted breach of State sovereignty.
The events which led up to the success of the Republican party in electing Mr. Lincoln to the Presidency in 1860 are so intimately connected with the anti-slavery struggle that they have been placed in the preceding volume. They culminated in the first organized attempt to put the right of secession to a practical test. The election of Lincoln, the success of a "sectional party," and the evasion of the fugitive-slave law through the passage of "personal-liberty laws" by many of the Northern States, are the leading reasons assigned by South Carolina for her secession in 1860. These were intelligible reasons, and were the ones most commonly used to influence the popular vote. But all the evidence goes to show that the leaders of secession were not so weak in judgment as to run the hazards of war by reason of "injuries" so minute as these. Their apprehensions were far broader, if less calculated to influence a popular vote. In 1789 the proportions of population and wealth in the two sections were very nearly equal. The slave system of labor had hung as a clog upon the progress of the South, preventing the natural development of manufactures and commerce, and shutting out immigration. As the numerical disproportion between the two sections increased, Southern leaders ceased to attempt to control the House of Representatives, contenting themselves with balancing new Northern with new Southern States, so as to keep an equal vote in the Senate. Since 1845 this resource had failed. Five free States, Iowa, Wisconsin, California, Minnesota, and Oregon, had been admitted, with no new slave States; Kansas was calling almost imperatively for admission; and there was no hope of another slave State in future. When the election of 1860 demonstrated that the progress of the antislavery struggle had united all the free States, it was evident that it was but a question of time when the Republican party would control both branches of Congress and the Presidency, and have the power to make laws according to its own interpretation of the constitutional powers of the Federal Government.
The peril to slavery was not only the probable prohibition of the inter-State slave-trade, though this itself would have been an event which negro slavery in the South could hardly have long survived. The more pressing danger lay in the results of such general Republican success on the Supreme Court. The decision of that Court in the Dred Scott case had fully sustained every point of the extreme Southern claims as to the status of slavery in the Territories; it had held that slaves were property in the view of the Constitution; that Congress was bound to protect slave-holders in this property right in the Territories, and, still more, bound not to prohibit slavery or allow a Territorial Legislature to prohibit slavery in the Territories, and that the Missouri compromise of 1820 was unconstitutional and void. The Southern Democrats entered the election of 1860 with this distinct decision of the highest judicial body of the country to back them. The Republican party had refused to admit that the decision of the Dred Scott case was law or binding. Given a Republican majority in both Houses and a Republican President, there was nothing to hinder the passage of a law increasing the number of Supreme Court justices to any desired extent, and the new appointments would certainly be of such a nature as to make the reversal of the Dred Scott decision an easy matter. The election of 1860 had brought only a Republican President; the majority in both Houses was to be against him until 1863 at least. But the drift in the North and West was too plain to be mistaken, and it was felt that 1860—would be the last opportunity for the Gulf States to secede with dignity and with the prestige of the Supreme Court's support.
Finally, there seems to have been a strong feeling among the extreme secessionists, who loved the right of secession for its own sake, that the accelerating increase in the relative power of the North would soon make secession, on any grounds, impossible. Unless the right was to be forfeited by non-user, it must be established by practical exercise, and at once.
Until about 1825-9 Presidential electors were chosen in most of the States by the Legislature. After that period the old practice was kept up only in South Carolina. On election day of November, 1860, the South Carolina Legislature was in session for the purpose of choosing electors, but it continued its session after this duty was performed. As soon as Lincoln's election was assured, the Legislature called a State Convention for Dec. 17th, took the preliminary steps toward putting the State on a war footing, and adjourned. The convention met at the State capital, adjourned to Charleston, and here, Dec. 20, 1860, passed unanimously an Ordinance of Secession. By its terms the people of South Carolina, in convention assembled, repealed the ordinance of May 23, 1788, by which the Constitution had been ratified, and all Acts of the Legislature ratifying amendments to the Constitution, and declared the union between the State and other States, under the name of the United States of America, to be dissolved. By a similar process, similar ordinances were adopted by the State Conventions of Mississippi (Jan. 9th), Florida (Jan. 10th), Alabama (Jan. 11th), Georgia (Jan. 19th), Louisiana (Jan. 25th), and Texas (Feb. 1st),—seven States in all.
Outside of South Carolina, the struggle in the States named turned on the calling of the convention; and in this matter the opposition was unexpectedly strong. We have the testimony of Alexander H. Stephens that the argument most effective in overcoming the opposition to the calling of a convention was: "We can make better terms out of the Union than in it." The necessary implication was that secession was not to be final; that it was only to be a temporary withdrawal until terms of compromise and security for the fugitive-slave law and for slavery in the Territories could be extorted from the North and West. The argument soon proved to be an intentional sham.
There has always been a difference between the theory of the State Convention at the North and at the South. At the North, barring a few very exceptional cases, the rule has been that no action of a State Convention is valid until confirmed by popular vote. At the South, in obedience to the strictest application of State sovereignty, the action of the State Convention was held to be the voice of the people of the State, which needed no popular ratification. There was, therefore, no remedy when the State Conventions, after passing the ordinances of secession, went on to appoint delegates to a Confederate Congress, which met at Montgomery, Feb. 4, 1861, adopted a provisional constitution Feb. 8th, and elected a President and Vice-President Feb. 9th. The conventions ratified the provisional constitution and adjourned, their real object having been completely accomplished; and the people of the several seceding States, by the action of their omnipotent State Conventions, and without their having a word to say about it, found themselves under a new government, totally irreconcilable with the jurisdiction of the United States, and necessarily hostile to it. The only exception was Texas, whose State Convention had been called in a method so utterly revolutionary that it was felt to be necessary to condone its defects by a popular vote.
No declaration had ever been made by any authority that the erection of such hostile power within the national boundaries of the United States would be followed by war; such a declaration would hardly seem necessary. The recognition of the original national boundaries of the United States had been extorted from Great Britain by successful warfare. They had been extended by purchase from France and Spain in 1803 and 1819, and again by war from Mexico in 1848. The United States stood ready to guarantee their integrity by war against all the rest of the world; was an ordinance of South Carolina, or the election of a de facto government within Southern borders, likely to receive different treatment than was given British troops at Bunker Hill, or Santa Anna's lancers at Buena Vista? Men forgot that the national boundaries had been so drawn as to include Vermont before Vermont's admission and without Vermont's consent; that unofficial propositions to divide Rhode Island between Connecticut and Massachusetts, to embargo commerce with North Carolina, and demand her share of the Confederation debt, had in 1789-90 been a sufficient indication that it was easier for a State to get into the American Union than to get out of it. It was a fact, nevertheless, that the national power to enforce the integrity of the Union had never been formally declared; and the mass of men in the South, even though they denied the expediency, did not deny the right of secession, or acknowledge the right of coercion by the Federal Government. To reach the original area of secession with land-forces, it was necessary for the Federal Government to cross the Border States, whose people in general were no believers in the right of coercion. The first attempt to do so extended the secession movement by methods which were far more openly revolutionary than the original secessions. North Carolina and Arkansas seceded in orthodox fashion as soon as President Lincoln called for volunteers after the capture of Fort Sumter. The State governments of Virginia and Tennessee concluded "military leagues" with the Confederacy, allowed Confederate troops to take possession of their States, and then submitted an ordinance of secession to the form of a popular vote. The State officers of Missouri were chased out of the State before they could do more than begin this process. In Maryland, the State government arrayed itself successfully against secession.
In selecting the representative opinions for this period, all the marked shades of opinion have been respected, both the Union and the anti-coercion sentiment of the Border States, the extreme secession spirit of the Gulf States, and, from the North, the moderate and the extreme Republican, and the orthodox Democratic, views. The feeling of the so-called "peace Democrats" of the North differed so little from those of Toombs or Iverson that it has not seemed advisable to do more than refer to Vallandigham's speech in opposition to the war, under the next period.