Nullification, Secession Webster's Argument and the Kentucky and Virginia Resolutions Part 9

[99] Parton's _Life of Jackson_, vol. iii., p. 466.

The proclamation, whoever wrote it, is a clear, strong statement of the nature of our Union and its nationality; an abler production than Edward Livingston's speech, when as Senator he spoke on this matter in 1830. If Jackson did not write a line of it he was not totally wanting in knowledge and comprehension, and must have understood the most important question that had arisen in his administration or in any administration since the inception of the government.

Jackson, as well as Calhoun, was of the Protestant Scotch-Irish race, that famous strain of blood that settled around Belfast and has made its mark in this country. Those who knew him well said that he had the craftiness of his canny Scotch ancestors, which he often concealed under apparently unpremeditated and ungovernable bursts of temper. No one before who had been a duellist and had killed his opponent, and had been a partic.i.p.ator in street brawls and encounters, had become President. He was a warm friend and a bitter enemy, and against Calhoun he had a lasting grievance. His declaration, "I take the responsibility," was characteristic of the man and admired by his adherents. No one of a will so indomitable ever came to the presidency.

A mere boy of fourteen he fought in the revolutionary war. He studied law in North Carolina and at the age of twenty-two years he commenced his professional life in Tennessee, and acquired at once a large practice throughout the State, that brought him into public notice. He was the district attorney of the territory, and a member of the convention that made the const.i.tution of that State, and as its first representative in Congress opposed Washington's administration, and was one of the twelve members who would not join in the vote of thanks to him when he retired from the presidency. He was elected Senator in 1797 and opposed the administration of John Adams, but soon resigned the senatorship and became a judge of the Supreme Court of Tennessee and held that office for six years. He was of the party of strict constructionists. As President he vetoed bills for the aid of the Maysville and Lexington Road, a re-charter of the Second Bank of the United States, and several bills for internal improvements for harbors and rivers.

However much Livingston may have improved the style of the proclamation, or contributed to its argument, there can be no doubt that the reasoning and principles were Jackson's. The public seems to have forgotten that he was a lawyer of large experience in his younger days, and an active politician all his lifetime. The proclamation was on a subject of which he had full knowledge and had formed decided opinions. When he came to a conclusion he cared not what any other man thought.

It has been a disputed matter whether the General Government actually prevailed in its controversy with South Carolina. Though the State prepared munitions of war, increased its militia, pa.s.sed laws to punish persons executing those of the United States, and declared its secession from the Union if the United States laws were attempted to be enforced, neither the State nor its citizens did actually commit any overt act of resistance. They claimed, however, that Clay's compromise bill, gradually reducing duties, which became law March 2d, was a surrender to them.

On the other hand it is a.s.serted that the bill was not at all what South Carolina had demanded. It is undisputed that the United States Government pa.s.sed a force bill based on the ground that it could compel the exercise of its authority over the citizens of a State disputing it, and that no resistance was made to the collection of the import duties after February 1st, when the State declared its ordinance should be enforced, the reduction of the tariff being subsequently pa.s.sed.[100]

[100] Alex. Johnston, in Winsor's _History of America_, vol. vii., p.

286, says that Jackson collected the duties at Charleston by naval and military force, and that the day before February 1st a meeting of "leading nullifiers" agreed to avoid all collision with the Federal Government.

It was in South Carolina alone that the right of nullification was sanctioned by a majority of its citizens. There were in the debates in Congress on that matter members from other States who maintained that doctrine, but Southern writers have apparently purposely omitted, and Von Holst, Greeley, and Benton, historians of that time, have overlooked the resolutions of the other Southern States condemning the doctrines of South Carolina, which are the more significant as those States agreed with her in opposing and denouncing the tariff.

Virginia's position, though less decided than that of the other States, did not please Calhoun; in reply to her Senator, Mr. Rives, who had opposed the South Carolinian doctrine, he spoke of her as "a once"

patriotic State. Virginia's resolutions were, that the doctrines of State sovereignty and State rights as set forth in her resolutions of 1798, and sustained by the report thereon of 1799, were a true interpretation of the Const.i.tution, but she did not consider them as sanctioning the proceedings of South Carolina in her said ordinances, nor as countenancing all the principles a.s.sumed by the President in his proclamation. Virginia sent Mr. Leigh as a commissioner to South Carolina, but without result.

Mississippi, Jefferson Davis' State, declared "that, in the language of the father of his country, we will indignantly frown upon the first dawning of every attempt to alienate any portion of our country from the rest, or to enfeeble the ties which link together its various parts."

Nullification was condemned in the strongest terms, and it was declared they would support the President in maintaining the Union.

In the next year, Robert J. Walker canva.s.sed the State for a seat in the Senate with Poindexter, his opponent; the issue was a question of nullification, and Walker, after a contest of three years, prevailed and became Senator at the election, January 8, 1836. General Jackson wrote a letter in his favor.[101]

[101] Article by R. J. Walker on "Nullification and Secession,"

February, 1863, p. 179, _Continental Monthly Magazine_.

Alabama declared nullification "is unsound in theory and dangerous in practice"; North Carolina, that it "is revolutionary in its character, and subversive of the Const.i.tution, and leads to disunion"; Georgia, "that we abhor the doctrine of nullification as neither a peaceful nor a const.i.tutional remedy," and further declare, while they deplore the rash and revolutionary measures of South Carolina, they warn their citizens against adopting her mischievous policy.[102]

[102] State papers on nullification, collected and published in 1834 by order of the General Court of Ma.s.sachusetts. The volume contains the remonstrances of many State Legislatures besides those quoted. It has also the ordinance of the South Carolina convention at the adjournment, held March 19, 1833, in which the convention declared the State's nullification of the force bill of Congress of March 2d then enforced: this declaration was mere _brutum fulmen_.

These were the opinions of the Southern States in 1833. So that at that time, as a matter of history, South Carolina alone claimed the right of nullification and secession.

We have before said it has been customary for the Legislatures of States to pa.s.s resolutions declaring acts and laws of the United States--that they are opposed to--unconst.i.tutional, and therefore null and void; but that these State resolutions do not make them so; that they are merely the opinions of the Legislatures that pa.s.s them; that the decision, whether laws of the United States or acts of its government are null and void, rests solely with the judiciary of the United States.

On examination we find, from the inception of Washington's administration until the inauguration of Lincoln, that, without exception, the authority and supremacy of the laws and government of the United States have been maintained and enforced by its courts over every State, and every State government and judiciary, and every individual therein:--Over Pennsylvania, as we have before set forth in the Gideon Olmstead case, when the representatives of the State officer who had disbursed prize money under the decision of the State Court were compelled to repay it to the United States.[103] Over Kentucky itself, in 1812, when the court maintained that a Kentucky State court had no jurisdiction to enjoin a judgment of a court of the United States.[104]

Over Kentucky and Virginia, in a serious controversy about the validity of the grants of those States.[105] Over Maryland, when the State undertook to tax the branch of the United States Bank established in her territory, on the ground that no State could tax the instrument employed by the government in the exercise of its powers.[106] In this case Chief-Justice Marshall declared: "If any one proposition would command the universal a.s.sent of mankind, we might expect it to be this, that the government of the Union, though limited in its powers, is supreme within its sphere." Even further, the United States Court interfered and took from the State court of Virginia jurisdiction of the prosecution by that great State of _one of its own citizens_ for illegally selling tickets in a lottery, because the lottery had been authorized in the District of Columbia and brought in question the validity of a United States law.[107] Over Ma.s.sachusetts, in declaring the embargo legal. Over New York, when it declared illegal the State's grants to Fulton, the inventor of the steamboat, of the exclusive right of navigation of the Hudson. Over Ohio, when the State insisted on taxing the branch of the Bank of the United States, the court issuing its mandamus and compelling the State's Treasurer to obey its decree.[108] Over South Carolina, in 1829, not long before her threatened nullification, when the court annulled the taxation by the city of Charleston of the bonds of the United States, because it was an interference with the power of the General Government to borrow money.[109] The disputes of States about their boundaries often came before the Supreme Court and were settled, the States appearing as parties. Indeed, such interference and control were so frequent and so implicitly submitted to that Chief-Justice Marshall said: "Though it had been the unpleasant duty of the United States courts to reverse the judgments of many State courts in cases in which the strongest State feelings were engaged, the State judges have yielded without hesitation to their authority, while perhaps disapproving the judgment of reversal."[110]

[103] United States _vs._ Peters, 5 Cranch, 115.

[104] McKim _vs._ Voorhies, 7 Cranch, 279.

[105] Green _vs._ Biddle, 8 Wheaton, 1.

[106] McCulloch _vs._ Maryland, 4 Wheaton, 316.

[107] Cohens _vs._ Virginia, 6 Wheaton, 264.

[108] Bank of U. S. _vs._ Osborn, 9 Wheaton, 738.

[109] Weston _vs._ Charleston, 2 Peters, 449.

[110] Cohens _vs._ Virginia.

These decisions of the United States Supreme Court were made by judges appointed by all the political parties that had been in power, by those in favor of a strict as well as a liberal construction of the Const.i.tution. Taney, a very eminent jurist, and his a.s.sociates, judges appointed by the political party predominant in the States that attempted to disrupt the Union, held that the Const.i.tution and the laws of the government were paramount, and announced and maintained their supremacy to the beginning of the rebellion over every State court and State law and const.i.tution.[111]

[111] See 22 Howard, 227; Sinnott _vs._ Davenport, 21 Howard, 506; Ableman _vs._ Booth, 5 Howard, 134; Rowan _vs._ Runnells. In these two last cases Taney and the Court put aside the decrees of the Supreme Courts of Wisconsin and Mississippi, because they were in conflict with the powers given to the United States; in the latter case, overruling and even reversing the decision of the Supreme Court of Mississippi as to when its const.i.tution took effect.

The action of the State of Georgia in 1832, in a controversy between that State and the United States Supreme Court, has been cited in support of the theory that Georgia maintained the doctrine of State supremacy. In that case the matter never came to an actual conflict. Why the United States decision was not promptly enforced is a matter that it is not here worth while to enter into.[112] It is sufficient to quote the resolutions of the Legislature of the State in 1833, that she abhorred the doctrine of nullification and deplored the revolutionary measures of South Carolina and warned her citizens against adopting that mischievous policy, to show that the State, in her opposition to the christianizing of Cherokee Indians, did not question the supremacy of the United States Government.

[112] General Jackson's sympathy was with Georgia in this matter, and he is reported as saying: "John Marshall has made the decision, now let him execute it." The missionary that Georgia had imprisoned was, however, released by the State.

It is often a.s.serted by historical writers that the Supreme Court of the United States, under the guidance of Marshall, has built up, magnified, and extended the powers of the government. Undoubtedly the court has great power in deciding whether the laws of a State or the acts of a State officer are illegal, when the question is whether they infringe on the rights of the general government; it, however, cannot make laws and acts extending the national powers. Its authority is, for the most part, that of restraint over the acts of the executive and United State officers, and of annulling, as it often has, the laws of Congress adjudged to be beyond its powers. It is Congress that made the Alien and Sedition laws, United States banks, tariffs and embargoes; it was the President and Congress who freed the negroes. Even in the war of secession, the judiciary declared the President's disregard of the habeas corpus in Milligan's case illegal.[113]

[113] _Ex parte_ Milligan, 4, Wallace, 2.

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 const.i.tutional 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 const.i.tutional rights of Northern citizens of the black and mixed race, and for the protection of slavery, were pa.s.sed 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 Const.i.tution, 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 unconst.i.tutional, and a.s.serting 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 pa.s.sed State laws and committed acts interfering with their legal and const.i.tutional 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]

[114] _Atlantic Monthly_, January, 1892.

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 a.r.s.enals 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, a.s.sert 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 a.s.serted and so courageously fought for. Virginia joined the Southern Confederacy without pa.s.sing 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 subst.i.tuting 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 pa.s.ses 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.

[115] _Reuben Davis' Recollections_, p. 395.

Undoubtedly the confidence of the South in its a.s.sumed 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]

[116] See article by John S. Wise in the _Century Magazine_, Jan., 1890. The Virginia Military Academy was established by the State in 1839. Col. Smith, a graduate of West Point, was at the head. It was continued during the civil war under the charge of disabled officers.

In 1860 a professor in this school informed the writer that there were similar academies in all the Southern States. Apparently they have been discontinued in most of them, South Carolina, however, yet maintaining hers.

The seceding States in forming their new compact, in article after article followed the Const.i.tution 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 Const.i.tution. The amendment abolishing it forever was pa.s.sed in the manner required in the Const.i.tution 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 a.s.siduously 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 surpa.s.sed. 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 Const.i.tution did their work, is shown by the fact that so few amendments have been made, while the const.i.tutions 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 Const.i.tution, 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 pa.s.sed until those as to slavery, following the civil war.