HISTORY
UNITED STATES
VON HOLST
1750-1832
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THE
CONSTITUTIONAL
AND
POLITICAL HISTORY
OF THE
UNITED STATES.
BY
DR. H. TON HOLST,
PROFESSOR AT THE UNIVERSITY OF FREIBURG.
TRANSLATED FROM THE GERMAN BY
JOHN J. LALOR AND ALFRED B. MASON.
1750-1833.
STATE SOVEREIGNTY AND SLAVERY.
CHICAGO:
CALLAGHAN AND COMPANY.
1876.
Entered, according to Act of Congress, in the year 1876,
BY CALLAGHAN & CO.,
In the Office of the Librarian of Congress, in Washington.
Blakely & Brown,
Book and Newspaper Printers,
151 & 153 Fifth Avenue,
Chicago.
Marder, Luse & Co.,
Electrotypers & Stereotypers,
139 & 141 Monroe Street,
Chicago.
TO THE
HON. THOMAS M. COOLEY,
ONE OF THE JUSTICES OF THE
SUPREME COURT OF MICHIGAN,
AND ONE OF THE
MOST EMINENT EXPOUNDERS OF OUR CONSTITUTION,
THIS TRANSLATION IS RESPECTFULLY DEDICATED.


PUBLISHERS' NOTE.
We beg leave to announce that by arrangement with
the author we have secured the exclusive right to the pub-
lication of this, the only English translation which will
be authorized by him.
The future volumes of the work will appear simulta-
neously with those of the German edition.
CALLAGHAN & CO.
Vignand
5-5-27
Y.1-5
PREFACE.
WRITTEN IN ENGLISH BY THE AUTHOR.
The United States are about to commence the second
century of their life as an independent commonwealth and
as a republic. It is a curious fact that, at the same time,
they evidently are entering upon a new phase of their po-
litical development. The era of buoyant youth is coming
to a close: ripe and sober manhood is to take its place.
I take it to be a good omen for the success of this work
that just at this moment an English translation of it is to
be offered to the American public. As all the sources I
have been able to use, are, without a single exception,
printed books well known to every student of American
politics, no new facts are to be found in the work, and I
even cannot claim that new views of importance have pre-
sented themselves to my mind. Yet I trust that it will not
be considered as lost labor. There are, among the authors
who have written on the constitutional law or the politics
of the United States, more than one, whom, in all candid-
ness, I do not pretend to equal in many very important
respects. But I venture to assert that among all the works,
covering about as large a ground as mine, there is not one
to be found which has been written with as much sober-
ness of mind. And it is not strange that it should be so.
Among foreign authors there is but one whom, to some
extent, I can consider as a predecessor. Tocqueville's work
will always be read, not only with interest, but also with
great profit. Yet even at the time it appeared, it failed to
viii
PREFACE.
do justice to its subject. The great French scholar was a
"doctrinarian." In his writings on French subjects the
weakness of his political reasoning, consequent upon this
unhistorical and unpolitical turn of his mind, is to a great
extent made up by the vastness and thoroughness of his
positive knowledge. In his work on "Democracy in
America," on the contrary, it makes itself strongly felt on
every page, because he lacks the necessary positive knowl-
edge.
As to my American predecessors I have one great ad-
vantage over all of them: I am a foreigner. This I con-
sider to be an advantage, though, during my sojourn in
the United States (1867-1872), I had frequently to hear:
"You are a foreigner, you cannot fully understand our sys-
tem of government.”
I, of course, do not deny that there is a certain something
in the character of every nation which a foreigner will
never be able to completely understand, because it cannot
be grasped by the judgment; it can only be felt, and in
order to feel it, one's flesh and blood must be filled with
the national sentiment. But, however often my shot may
have missed the mark in consequence of this lack of the
national sentiment, though it might greatly impair the
value of the work for other foreigners, it cannot possibly
be fatal to it with regard to American readers, for they
have the necessary corrective in their American feeling.
On the other hand, it is much easier for a foreigner to
guard his judgment from being betrayed by his feeling.
He has only to ward off his prejudices. This, though no
easy work, can be done to a high degree, while it is impos-
sible to strip one's self of one's national sentiment, because
this is a constitutive part of the individuality. The attempt
to do it would inevitably lead from Scylla into Charybdis;
it would result in an effort to do the work, so to say, as a
reasoning machine without any feeling whatever. There
are historians and political philosophers who pretend that
PREFACE.
ix
this is the only correct way to treat historical and political
problems. They may be good chroniclers and quite fit
statesmen for some commonwealth in the clouds, but they
will never be able to write a history or to make us under-
stand the nature and the working of the government of an
actual state. There is nothing in the life of a nation into
which the nation's way of feeling does not enter as a con-
structive element of great force; and in order to under-
stand a nation's way of feeling one has to feel with it.
Several European critics of my work have been of opin-
ion that my judgment of the American system of govern-
ment and its working is an almost unqualified condemnation,
and I do not doubt that some American readers will receive
the same impression and laugh at my claiming to "feel"
with the people of the United States. Yet the claim is
well-founded. I came to the United States as an emigrant,
and one of the first things I did was to have my declara-
tion of intending to become a citizen registered in the city
hall of New York. I, in fact, felt with the people of the
United States, before I commenced to study them and their
institutions. For a considerable time, however, this feel-
ing was partly of a kind to render my studies pretty fruit-
less.
On the continent of Europe the United States are, even
among
the best educated classes, in a really astonishing
degree, a terra incognita. Just on this account they have
always been used with predilection as an illustration in the
service of party ends. Their fate in this quality has been
pretty varied. In quick succession and more than once
they have run through all the phases from the idol to a
bugbear. I was inclined to look upon them in the light of
the former, for Laboulaye was the butler who had filled my
knapsack of expectations. So I was rather unprepared for
Tammany Hall, the first institution I got somewhat better
acquainted with.
For a long time I was fairly bewildered by the throng
X
PREFACE.
of most opposite impressions, and even after I had read
and studied many a good book, I searched in vain for a
thread to lead me safely through this labyrinth. Only
very gradually I succeeded in finding out what, up to this
day, seems to me the one reason why all my efforts thus
far had resembled so much a wild-goose chase. Without
being fully conscious of it, I expected to find in everything
something particular, quite different from what was known
to me either by study or by personal observation; and this
all the books I had read had failed to distinctly show me as
a mistake which could not but be fatal to the success of my
studies. That I at last became aware of the mistake, is the
explanation of the claim raised before that I have studied
and written with more soberness of mind than any of my
predecessors. And I beg leave to add that, after this veil
had dropped from my eyes, my interest in the subject as-
sumed quite a new character; from that moment it was
decided that I had found the principal task of my life as a
student and as a writer, for it is the work of a lifetime I
have undertaken. Now it had fully come to what I would
call my immediate consciousness that here was only an act
of the one great drama, the history of western civilization;
and that—to express it strongly in order to be distinct―
the players in it, the principal ones as well as the great
mass, were neither demi-gods nor devils, but men, strug-
gling, under many shortcomings, but with great energy,
their way onward, not with startling leaps, but advancing
step by step, just as all the rest of the great nations of the
earth have had to do. Nothing was left of either the misty
vagueness of the grand and wonderful fairy-tale or of the
prickling atmosphere of the strange puzzle; I felt myself
standing in the fresh and clear air of stern historical truth.
The reflecting reader will find in this "confession of
faith" the clue for the "method" of my studies, so far as
he need care about it. Whether my hope, based on its
PREFACE.
xi
principles, is well founded, that my labor is not lost,
though no new materials of any kind have been at my ser-
vice, this question I have to leave to my readers to decide.
H. VON HOLST
FREIBURG, 1875.
TRANSLATORS' NOTE.
We herewith present to the American people the first
part of the most important work on the internal history of
the United States that has emanated from the European
press, and one of the most valuable contributions that has
as yet been made to our historical literature by any writer,
whether native or foreign.
We were led to undertake the task of its translation when
we did because we considered the Centennial year the most
opportune time for its publication. The people of the United
States are just now looking back with intense interest over
their past to the birth and growth of the nation, and to the
lives of the great men who projected the scheme of govern-
ment under which we live. At such a time they cannot but
feel disposed to welcome a production in which so much abil-
ity and research have been lavished upon the subject upper-
most in their thoughts. That the work is the production
of an eminent foreigner, will give it a zest which it might
not have coming from an American author.
Professor Von Holst possesses in an eminent degree all
the qualifications necessary to fit him to accomplish his un-
dertaking in the most creditable manner. We have heard
it said that only an American can write the history of this
country. As well say that Grote could not have written the
history of Greece, nor Mommsen that of Rome. But if not
an American, the author sojourned long enough in this
country to catch the spirit of the people, of their history
xiv
TRANSLATORS' NOTE.
and institutions. He intends, besides, before completing
his work, to visit us once more. How industriously he has
collected and digested the material at his command, every
page of his work bears witness. Americans will not all
agree with him in his estimate of the great men who
founded the Republic, nor in his view of questions which
have been the subject of debate here from the very begin-
ning. But that is not to be expected. Removed from
the influence of party passion, he may have formed a
more impartial opinion of their character than is possible
to ourselves. What the American people need more than
anything else at the present time, is to take an objective
view of themselves, and that is best furnished them by
foreign writers.
The present volume is only an earnest of those which
are to come, and which will excite, we are confident, a de-
gree of interest not inferior to that produced by De Tocque-
ville's Democracy in America.
THE TRANSLATORS.
CONTENTS.
CHAPTER I.
THE ORIGIN OF THE UNION, THE CONFEDERATION AND THE STRUG-
GLE FOR THE PRESENT CONSTITUTION...
CHAPTER II.
PAGE.
1
THE WORSHIP OF THE CONSTITUTION AND ITS REAL CHARACTER.. 64
CHAPTER III.
THE INTERNAL STRUGGLES DURING WASHINGTON'S TWO ADMIN-
ISTRATIONS.. ALEXANDER HAMILTON. THE FIRST DEBATE ON
THE SLAVERY QUESTION. INFLUENCE OF THE FRENCH Revolu-
TION. CONSOLIDATION OF PARTIES. GRADUAL INTENSIFICA-
TION OF GEOGRAPHICAL DIFFERENCES..
CHAPTER IV.
80
NULLIFICATION. THE VIRGINIA AND KENTUCKY RESOLUTIONS.. 138
CHAPTER V.
THE PRESIDENTIAL ELECTION OF 1801. THE FALL OF THE FED-
ERALIST PARTY. JEFFERSON AND THE PURCHASE OF LOUISIANA.
THE BURR AND FEDERALIST INTRIGUES..
CHAPTER VI.
THE EMBARGO. MADISON AND THE SECOND WAR WITH ENGLAND.
THE HARTFORD CONVENTION...
CHAPTER VII.
HISTORY OF THE SLAVERY QUESTION TO 1787. THE COMPROMISES
OF THE CONSTITUTION ON SLAVERY.
168
200
•
273
•
CHAPTER VIII.
HISTORY OF THE SLAVERY QUESTION FROM 1789 UNTIL THE MIS-
SOURI COMPROMISE.
302
xvi
CONTENTS.
CHAPTER IX.
THE ECONOMIC CONTRAST BETWEEN THE FREE AND SLAVE STATES.
THE MISSOURI COMPROMISE.
•
CHAPTER X.
DEVELOPMENT OF THE ECONOMIC CONTRAST BETWEEN THE FREE
AND SLAVE STATES..
PAGE.
340
3$2
CHAPTER XI.
THE PANAMA CONGRESS. GEORGIA AND THE FEDERAL GOVERN-
MENT..
409
CHAPTER XII.
THE DOCTRINE OF NULLIFICATION. THE COMPROMISE BETWEEN
SOUTH CAROLINA AND THE FEDERAL GOVERNMENT..
459
•
STATE SOVEREIGNTY AND SLAVERY.
CHAPTER I.
THE ORIGIN OF THE UNION, THE CONFEDERATION AND THE
Struggle foR THE PRESENT CONSTITUTION.
The opinion is not uncommon in Europe, that American
politics, up to the outbreak of the civil war, were exceed-
ingly complicated and difficult to be understood. Such,
however, is not the case. If we do not allow ourselves to
be confused by matters of secondary consideration, and
once get hold of the right thread, it soon becomes evident
that the history of the United States, even as far back as
the colonial period, is unusually simple, and the course of
their development consistent in a remarkable degree.
Turgot¹ and Choiseul² had very early recognized that
the separation of the colonies from the mother country
was only a question of time; and this irrespective of the
principles which might guide the colonial policy of Eng-
land. The narrow and ungenerous conduct which parlia-
ment observed towards the colonies in every respect, brought
about the decisive crisis long before the natural course of
things and the diversity of interests growing out of this
had made the breach an inevitable necessity.
¹ 1750. DeWitt, Thomas Jefferson, p. 40.
21761. Bancroft, History of the United States, IV., p. 399; DeWitt,
1. c., p. 42. Durand wrote in August, 1766: "They are too rich to remain
in obedience."
Ca
STATE SOVEREIGNTY AND SLAVERY.
To this circumstance it is to be ascribed that the colo-
nists were satisfied that an amicable solution would be
found to the questions debated between them and the
mother country, long after England had given the most
unambiguous proof that she would not, on any consid-
eration, yield the principle in issue. A few zealots like
John Adams harbored, during the English-French colonial
war, a transitory wish that the guardianship of England
should cease forever. But, shortly after the conclusion of
peace, there was not one to be found who would not have
"rejoiced in the name of Great Britain.""
It was long before the ill-will, which the systematic dis-
regard by parliament of the rights of the colonists had
excited, triumphed over this feeling. Even in August and
September, 1775, that is, half a year after the battle of
Lexington, so strong was the Anglo-Saxon spirit of conserv-
atism and loyalty among the colonists, that the few extrein-
ists who dared to speak of a violent disruption of all bonds
entailed chastisement upon themselves and were uni-
versally censured.2 But the eyes of the colonists had
been for some time so far opened that they hoped to make
an impression on parliament and the king only by the
most energetic measures. They considered the situation
serious enough to warrant and demand that they should be
prepared for any contingency. Both of these things could
evidently be accomplished in the right way and with the
requisite energy, only on condition that they should act
with their united strength.
The difficulties in the way of this, however, were not in-
significant. The thirteen colonies had been founded in
very different times and under very different circumstances.
Their whole course of development, their political institu-
¹ Works of John Adams. X., p. 394.
2 American Archives, III., pp. 21, 196, 644, etc. See also Dickinson's
course towards J. Adams, in the Works of J. Adams, II., p. 423.
ORIGIN OF THE UNION.
3
tions, their religious views and social relations, were so
divergent, the one from the other, that it was easy to find
more points of difference between them than of similarity
and comparison. Besides, commercial intercourse between
the distant colonies, in consequence of the great extent of
their territory, the scantiness of the population,' and the
poor means of transportation at the time, was so slight
that the similarity of thought and feeling, which can be the
result only of a constant and thriving trade, was wanting.
The solidarity of interests, and what was of greater im-
portance at the time, the clear perception that a solidarity
of interests existed, was therefore based mainly on the
geographical situation of the colonies. Separated by the
ocean, not only from the mother country, but from the rest
of the civilized world, and placed upon a continent of yet.
unmeasured bounds, on which nature had lavished every
gift, it was impossible that the thought should not come to
them, that they were, indeed, called upon to found a "new
world." They were not at first wholly conscious of this,
but a powerful external shock made it soon apparent how
widely and deeply this thought had shot its roots. They
could not fail to have confidence in their own strength..
Circumstances had long been teaching them to act on the
principle, "Help thyself." Besides, experience had shown
them, long years before, that—even leaving the repeated
attacks on their rights out of the question-the leading-
strings by which the mother country sought to guide their
steps obstructed rather than helped their development, and
this in matters which affected all the colonies alike.
Hence, from the very beginning, they considered the
struggle their common cause.2 And even if the usurpa-
'The census of 1790 gives the population, slaves included, at 3,929,827.
2 The duty controversies in Massachusetts and James Otis's celebrated
speech against the writs of assistance (Feb., 1761) found it is true, no
echo whatever in the rest of the colonies. As early as June, 1765, how-
ever, Otis induced the Massachusetts assembly to reply to the Stamp
4
STATE SOVEREIGNTY AND SLAVERY.
tions of parliament made themselves felt in some parts of
the country much more severely than in others, the prin-
ciple involved interested all to an equal extent.
Massachusetts recommended, in 1774, the coming together
of a general congress, and on September 4, of the same
year," the delegates, nominated by the good people of
these colonies," met in Philadelphia."
Thus, long before the colonies thought of separation from
the mother country, there was formed a revolutionary
body, which virtually exercised sovereign power.³ How far
the authority of this first congress extended, according to
the instructions of the delegates, it is impossible to deter-
mine with certainty at this distance of time. But it is
probable that the original intention was that it should con-
sult as to the ways and means best calculated to remove the
grievances and to guaranty the rights and liberties of the
colonies, and should propose to the latter a series of resolu-
tions, furthering these objects. But the force of circum-
stances at the time compelled it to act and order imme-
diately, and the people, by a consistent following of its
orders, approved this transcending of their written instruc-
tions. The congress was therefore not only a revolutionary
body from its origin, but its acts assumed a thoroughly revo-
Act by the calling of a congress. A congress, in fact, met on Oct. 7
of the same year in New York, but only nine of the colonies were rep-
resented in it.
1
¹ Story, Commentaries on the Constitution of the United States, I., §
200. This peculiar designation, which the congress used in its formal
enunciations, was not without significance in after years.
2 All the colonies, with the exception of Georgia, were represented.
* Story, Comm. I., § 201, maintains that this congress had sovereign
power both de jure and de facto. He bases his view on the fact that
a part of the delegates were nominated directly by the people. But he
forgets that the view that the people alone are sovereign and the only
source of legitimate power, was not at that time a recognized principle
of law in America. Compare Cooley on Constitutional Limitations, p. 7.
THE REVOLUTIONARY CONGRESS.
1
10
5
lutionary character. The people, also, by recognizing its
authority, placed themselves on a revolutionary footing, and
did so not as belonging to the several colonies, but as a mor-
al person; for to the extent that congress assumed power
to itself and made bold to adopt measures national in their
nature, to that extent the colonists declared themselves
prepared henceforth to constitute one people, inasmuch
as the measures taken by congress could be translated from
words into deeds only with the consent of the people.2
This state of affairs essentially continued up to March
1, 1781. Until that time, that is, until the adoption of
the articles of confederation by all the states, congress
continued a revolutionary body, which was recognized by
all the colonies as de jure and de facto the national gov-
ernment, and which as such came in contact with foreign
powers and entered into engagements, the binding force of
which on the whole people has never been called in ques-
tion. The individual colonies, on the other hand, consid-
ered themselves, up to the time of the Declaration of In-
dependence, as legally dependent upon England and did
not take a single step which could have placed them
before the mother country or the world in the light of
de facto sovereign states. They remained colonies until
the "representatives of the United States" "in the name
of the good people of these colonies " solemnly declared
"these united colonies" to be "free and independent
states."3
The transformation of the colonies into "states"
1 "The powers of congress originated from necessity, and arose out of
and were only limited by events, or, in other words, they were revolu-
tionary in their very nature. Their extent depended on the exigencies
and necessities of public affairs." Jay, in Ware v. Hylton, Dallas' Re-
ports, III., p. 232; Curtis, Decisions of the Supreme Court of the United
States, I., p. 176.
2
Story's Commentaries, I., § 213. This view was shared by chief
justice Jay and justices Chase and Patterson, all very distinguished
statesmen of the Revolution. Story, Com., § 216.
We, therefore, the representatives of the United States, do, in the
STATE SOVEREIGNTY AND SLAVERY.
was, therefore, not the result of the independent action.
of the individual colonies. It was accomplished through
the "representatives of the United States;" that is, through
the revolutionary congress, in the name of the whole peo-
ple. Each individual colony became a state only in so far
as it belonged to the United States and in so far as its
population constituted a part of the people.' The thirteen
colonies did not, as thirteen separate and mutually indepen-
dent commonwealths, enter into a compact to sever the bonds
which connected them with their common mother country,
and at the same time to proclaim the act in a common mau-
ifesto to the world; but the "one people" of the united
colonies dissolved that political connection with the English
nation, and proclaimed themselves resolved, henceforth, to
constitute the one perfectly independent people of the
United States. The Declaration of Independence did not
3
name of the good people of these colonies, solemnly publish
that these united colonies are, and of right ought to be, free and indepen-
dent states." Declaration of Independence. Compare also C. C. Pinck-
ney's speech in the house of representatives of South Carolina, on the 18th
of January, 1788. Elliott, Debates, IV., p. 301; and Ramsay, History of
the United States, III., pp. 174 and 175.
•
"The states have their status in the Union, and they have no other
legal status.
The Union is older than any of the states, and
in fact, it created them as states. Originally some independent [i. e.,
independent of one another] colonies made the Union; and, in turn, the
Union threw off their old dependence for them and made them states
such as they are. Not one of them ever had a state constitution inde-
pendent of the Union." Lincoln's message, July 4, 1861. See also King's
speech in the constitutional convention, June 19, 1787. Madison Papers.
Elliott, Deb., V., p. 212.
2 The Declaration of Independence says: "When it becomes neces-
sary for one people to dissolve the political bonds which have connected
them with another people," etc. Calhoun's view that the colonies,
when they separated from England, remained completely independent
of one another, because they were in no wise dependent on one another
as colonies, is not at all tenable. Calhoun relies, in this instance, as in
so many others, on a logical abstraction, undisturbed by the contradic-
tion of the most undeniable historical facts. See Calhoun, A Disquisition
on Government, Works, I., p. 190. Besides, Calhoun is here, as in his
BIRTH OF THE NATION.
7
create thirteen sovereign states, but the representatives of
the people declared that the former English colonies, under
the name which they had assumed of the United States of
America, became, from the fourth day of July, 1776, a
sovereign state and a member of the family of nations,
recognized by the law of nations; and further, that the
people would support their representatives with their blood
and treasure, in their endeavor to make this declaration a
universally recognized fact. Neither congress nor the
people relied in this upon any positive right belonging
either to the individual colonies or to the colonies as a
whole. Rather did the Declaration of Independence and
the war destroy all existing political jural relations, and
seek their moral justification in the right of revolution
inherent in every people in extreme emergencies.
It is important to keep these points in view, for they
became of the very highest importance in later years, re-
mote as it was from the congresses of 1774 and 1775, and
in part from that of 1776, to subject these subtle questions
to an exhaustive investigation-Inter arma silent leges.
Congress had not the time to submit its powers to a pain-
ful and minute analysis. The moment that resistance to
the mother country ceased to be confined to legal and
nullification doctrine, Jefferson's disciple. He accepts throughout the
premises of his master. Unlike the latter, however, he does not stop
half way, but carries them out, with the most relentless logic, to their
remotest conclusion. Jefferson considered the Union an alliance formed
only for the purpose of shaking off the control of the mother country,
and one which should have ceased "of itself" when that object was at-
tained. Says he: "The alliance between the states under the old ar-
ticles of confederation, for the purpose of joint defense against the
aggressions of Great Britain, was found insufficient, as treaties of alli-
ance generally are, to enforce compliance with their mutual stipulations;
and these once fulfilled, that bond was to expire of itself, and each state
to become sovereign and independent in all things." See also Curtis,
History of the Constitution, I., p. 39, etc.; Farrar, Manual of the Consti-
tution, pp. 50, 51; Hurd, Law of Freedom and Bondage, I., p. 408, and
II., p. 354.
8
STATE SOVEREIGNTY AND SLAVERY.
peaceable measures, and recourse was had to force, ques-
tions of law were naturally little considered. The Dec-
laration of Independence put them aside completely.
The question now was one of facts, and the facts were as
related above.
Even in the regulation and transformation of their in-
ternal affairs, the individual colonies did not take the in-
itiative, although they refused obedience to the constituted
powers in so far as these sided with England. It was not
until congress¹ had recommended them to do so that they
took the reins into their own hands."
As far as the legality or illegality of this step is con-
cerned, it is entirely indifferent whether it was the leg-
islative bodies of the several colonies themselves, or con-
gress, or the spontaneous act of the people of the several
colonies, that gave the impetus to it; it was under any and
all circumstances illegal. The colonies were engaged in a
revolution, and therefore there is nothing to be said of a
legal sanction of their measures. But the same blow which
had destroyed the bonds between the colonies and the
mother country, threw down the walls which had hitherto
prevented the political union of the thirteen colonies.
They were, in fact, thrown together so as to constitute them
one people, endeavoring to conquer their national independ-
ence with the sword. This fact could be changed in noth-
ing, no matter how much it was desired, when the new state
1
May 10, 1776. Journal of Congress, II., pp., 166, 174. Farrar
Manual of the Constitution, p. 95. Story, Com., I., § 204.
2 New Hampshire alone had, before this recommendation of congress
given herself a government (Dec., 1775), but she expressly declared the
new order of things to be provisional "during the unhappy and unnatural
contest with Great Britain." The declarations of New Jersey and of South
Carolina contained similar clauses, but more explicitly framed. Vir-
ginia alone completely dissolved her government as it existed formerly
under the crown of Great Britain. The other states obeyed the recom-
mendation of congress only after the publication of the Declaration
of Independence.
POWERS OF THE CONGRESS.
9
was being subsequently organized on a legal basis, to retain
something of the separate existence of the colonial period.
Congress had, with the consent of the people, taken the
initiative in the transformation of the thirteen colonies
into one sovereign state. It became thereby per se the
national government de facto and by the success of the
Revolution gave its acts, both earlier and later, an addition-
al and legally binding force.
Political theories had nothing to do with this develop-
ment of things. It was the natural result of given cir-
cumstances and was an accomplished fact before anyone
thought of the legal consequences which might subsequent-
ly be deduced from it. But it was clear from the very
first that the masses of the people, as well as the leaders of
the movement, would almost unanimously oppose to the
utmost the practical enforcement of these legal conse-
quences.
If the Revolution threw down the barriers which divided
the English dependencies in America into thirteen inde-
pendent colonies; if it, in fact, constituted an American
people,-it is obvious that both law and equity demanded
that not the former thirteen colonies should be represented
in congress, but the population of the colonies as a part of
the people. This consequence was too palpably plain to
remain completely unnoticed. Patrick Henry of Virginia
showed how this was at once the irresistible conclusion of
reason, and the only right policy. In the congress of 1774
he thus solemnly expressed himself: "Government is dis-
solved. . . . . Where are your landmarks, your boundaries
of colonies? . The distinctions between Virginians,
Pennsylvanians, New Yorkers, and New Englanders are
no more. I am not a Virginian: I am an American.
Slaves are to be thrown out of the question, and if the
freemen can be represented according to their numbers, I
am satisfied. I go upon the supposition that government
10
STATE SOVEREIGNTY AND SLAVERY.
is at an end. All distinctions are thrown down; all America
is thrown into one mass. 991
Congress could not resolve at once to take a decided po-
sition on this question. It decreed that "each colony or
province" should have one vote; the congress not being
possessed of, nor then able to procure, materials for ascertain-
ing the importance of each colony.2
Patrick Henry's view was then indirectly looked upon as
right in principle, whereas the opposite principle had been
virtually adopted before, and sedulous efforts were made to
avoid any definite expression of the view that was to pre-
vail. Thus was begun that infinite series of compromises by
which the American people have endeavored to put to one
side, by devising and passing resolutions which might be con-
strued at will in senses the most diametrically opposite, diffi-
culties which they ought to have grappled with and overcome.
By this mode of procedure delay has been gained in every
instance, and this gain has frequently been of the highest im-
portance. But when the direct conflict of opposing views
could no longer be postponed, the struggle became more ob-
stinate and embittered, in proportion as the delay was great-
er. It is not possible, at this distance of time, to say with any
certainty, whether the urgency of circumstances, the en-
¹ Works of John Adams, II., pp. 365, 368. Wirt, in his Life of Pat-
rick Henry, pp. 124, 125, gives a glowing description of this speech.
The few sentences to be found in Adams are all that have come down to
posterity, but the audience unanimously testified to the powerful im-
pression it made on them. See Curtis, History of the Const., I., p. 15;
DeWitt, Th. Jefferson, p. 76; Greene, Historical View of the American
Revolution, p. 81.
2 Sept. 6, 1774. Elliott, Debates, V., p. 181; Pitkin, A Political and
Civil History of the United States of America, I., p. 283. The dele-
gates of Connecticut wrote, October 10, 1774, to governor Trumbull:
"The mode of voting in this congress was first resolved upon; which was,
that each colony should have one voice; but as this was objected to as
unequal, an entry was made on the journals to prevent its being drawn
into precedent."
COLONIAL PREJUDICE.
11
thusiasm of the hour, or a want of insight into the im-
portance of the question, moved congress to postpone its
final decision; but it is probable that the three causes co-
operated to this end. This much is certain, however, that
nearly all the representatives, the moment they gave any
real attention to the matter, declared, without a moment's
hesitation, against Patrick Henry's views.
Franklin's confederation scheme of 1754 suited the col-
onies as little as it did the mother country. It imposed
no limitations or restrictions whatever in the interest
of the general good, although the French invasion called
most urgently for common action. And there had been no
essential change as yet in this feeling, although the mag-
nitude of the dangers threatening the colonies, and the im-
portance of the matters in controversy, made them more
inclined to a firmer union among themselves, so far as this
was necessary to resist the common enemy. But in regard
to their relations to one another they were involved in the
same short-sighted and ungenerous particularism as before.
"A little colony has its all at stake as well as a great one,"
major Sullivan bluntly replied to the patriotic effusion of
Patrick Henry. This showed clearly that only the common
interests of the colonies induced them to make opposition
to England their common cause, or at least that their com-
munity of interests did vastly more to bring this about
than did a feeling of nationality, for which the war first
paved the way.
1
The colonists were certainly not wanting in a kind of
national feeling; but it did more to dampen the energy of
their opposition to England than to increase it. It had
scarcely any influence on their attitude towards one anoth-
er; for it had its roots, not in the soil of the new world, but
in the home of their ancestors.2 As long as it was not be-
¹ John Adams, Works, II., p. 366.
2 This fact is frequently too much lost sight of in Europe. The col-
onists severed themselves from England with bleeding hearts. Greene
12
STATE SOVEREIGNTY AND SLAVERY.
yond a doubt that the breach with England was incurable,
and until the old love and veneration for the mother coun-
try was changed to bitter hatred, nearly all the colonists
were first the children of their own particular colony and
then of England. The name American was up to that
time little more than a beautiful prophetic vision. It re-
ceived the impress of a definite and lasting reality only
through the war of Independence.2
Hence the question, how the people were to be repre-
sented and to vote in congress was decided even before
it was raised. Luther Martin says rightly in his celebrated
•
describes their feelings for the mother country in the following words:
They loved their mother country with the love of children who, for-
saking their homes under strong provocation, turn back to them in
thought, when time has blunted the sense of injury, with a lively recol-
lection of early associations and endearments, a tenderness and a long-
ing not altogether free from self-reproach. To go to England was to go
home. To have been there was a claim to special consideration. They
studied English history as the beginning of their own; a first chapter
which all must master thoroughly who would understand the sequel.
England's literature was their literature. Her great men were their great
men. And when her flag waved over them, they felt as if the spirit which
had borne it in triumph over so many bloody fields had descended upon
them with all its inspiration and all its glory
They loved to
talk of Saint Paul's and Westminster Abbey; and with the Hudson and
the Potomac before their eyes, could hardly persuade themselves that
the Thames was not the first of rivers. More especially did they rejoice
to see Englishmen and converse with them. The very name was a talis-
man that opened every door, broke down the barriers of the most exclu-
sive circle, and transformed the dull retailer of crude opinions and stale
jests into a critic and a wit." (Hist. View of the American Rev., pp. 5,
6.) The relation of England to the colonies he, on the other hand, char-
acterizes as a mere business relation." Ibid, p. 12. The same judg-
ment was expressed by very distinguished Englishmen. Thus Adam
Smith: "A great empire has been established for the sole purpose of
raising up a nation of customers, who should be obliged to buy from
the shops of our different producers all the goods with which those
could supply them." Inquiry into the Nature and Causes of the Wealth
of Nations, II., p. 517.
? See an article in the London Public Advertiser, March 14, 1781.
Moore, Diary of the American Revolution, II, p. 395.
PEOPLE VS. STATE.
13
letter to the Maryland convention that the voting by
states was not on account of "necessity or expediency,"
but that "on the contrary, it was adopted on the principle
of the rights of man and the rights of states." In con-
gress, however, Patrick Henry's view still found some
warm supporters,2 but the larger states did not feel them-
selves justified in insisting on their demand, glad as they
would have been to have seen it acknowledged. Among
the numberless amendments to the articles of confederation
suggested by the several states, there is not one proposing a
change of the provision governing the mode of representa-
tion or the manner of voting.3
Reason was unquestionably on the side of those who
advocated the national view. "It has been said that con-
gress is a representation of states, not of individuals. I
say that the objects of its care are the individuals of the
states. It is strange that annexing the name 'state' to
ten thousand men should give them an equal right with
forty thousand. This must be the effect of magic, not of
reason."4
"'4 It was not easy to advance any rational argu-
ment against this reasoning of Wilson. But actual cir-
cumstances are of more weight in politics than abstract
1 1788. Elliott's Debates, I., p. 355.
2 Luther Martin's assertion in the letter above referred to, that Virginia
was the one state which represented this view, is not correct. Lynch
agreed with Henry, and desired only that besides population, “proper-
ty" should be considered. Adams agreed in this, but relied also on the
fact that congress could not at that moment ascertain the population.
Wilson was afterwards one of the most ardent advocates of the per capita
mode of representation. The sketch of a federal constitution submit-
ted by Franklin, July 21, 1775, to congress, provided that there should
be one representative for every five thousand people. G. Morris, to
judge from a speech delivered by him in the "New York congress,"
considered the per capita mode of representation a matter of course.
Sparks, Life of Gouv. Morris, I., p. 103; see also Elliott, Deb. I., pp. 74-76.
* See Elliott, Deb., I., pp. 85-92.
• Wilson of Pennsylvania, 1777, in the debates upon the confederation.
See Elliott, Deb., I., p. 78.
14
STATE SOVEREIGNTY AND SLAVERY.
theories, however conformable to the demands of reason
these latter may be. The conclusion drawn by Wilson
from these premises was therefore erroneous, spite of the
fact that his argument was formally correct. He closed
the argument with these words: "As to those matters
which are referred to congress we are not so many states:
we are one large state. We lay aside our individuality
whenever we come here.”
This might be desirable in the highest degree, but it was
not a fact. “The individuality of the colonies" was not,
in reality, as Adams claimed,¹ a “mere sound;” it was an
undeniable fact, which made itself felt at every step.
Wilson, therefore, demanded an impossibility when he ask-
ed that the representatives should put it aside, and leave
it at home when they came to congress, as if it were a
garment. This might have been possible to Wilson, for
he was not born and had not grown up in America. But
particularism had become to such an extent part of the
flesh and blood of the native-born colonists that it could
not be renounced; nay, that it became a measure of neces-
sity to acknowledge its supremacy after the first moment
of excitement was over, and the separate interests of the
states came in conflict, whether really or only apparently,
with the general welfare.
John Adams, Wilson's most energetic supporter, affords
the strongest proof of this. Reason compelled him to
adopt the national view, and he defended it with great zeal
so long as his feelings did not get the better of his under-
standing. The moment, however, that he allowed his af-
fections to have sway, he gave evidence of his leaning to-
wards the doctrines of the particularists.
His whole reasoning is, in consequence of this internal
conflict, a curious mixture of intimately connected contra-
dictions, and affords a striking illustration of Hamilton's
Elliott, Deb., I., p. 76.
CONFEDERATION.
15
saying that men are rather "reasoning than reasonable ”
animals; and that, therefore, in the solution of political
problems no valuable or lasting results can be obtained by
relying solely on the reason.¹
Adams said, in the debate on the articles of confedera-
tion: "The confederacy is to make us one individual only;
it is to form us, like separate parcels of metal, into one com-
mon mass. We shall no longer retain our separate in-
dividuality, but become a single individual as to all ques-
tions submitted to the confederacy."2
Adams had no doubt that this was possible, and he can
scarcely be reproached on that account, as the whole Amer-
ican people cherished the same belief until late in the
civil war, and, for the most part, still cling to the same in
theory. The dictates of reason, however, could not be made
absolutely to harmonize with the desires of the people, or
with actual facts over which congress had no control. It
was not mere caprice that from the very first moment this
led to unconscious efforts to find in words a solution for
the insoluble contradiction.
"Wo die Begriffe fehlen, da stellt zu rechter Zeit ein
Wort sich ein." One man' alone saw clearly from the first
that it would have been as profitable to rack one's brains
in the vain endeavor to square the circle.
The American statesman's dictionary was written in
double columns, and the chief terms of his vocabulary
were not infrequently inserted twice: in the right-hand col-
umn in the sense which accorded with actual facts and was
in keeping with the tendency towards particularism; in
1 "Nothing is more fallacious than to expect to produce any valuable
or permanent results in political projects by relying merely on the reason
of men. Men are rather reasoning than reasonable animals, for the most
part governed by passion." Hamilton to J. A. Bayard, April, 1802, Ham-
ilton's Works, VI., p. 540.
² Elliott, Deb., I., p. 76.
› Where ideas are wanting, a timely word may take their place.
Alexander Hamilton.
16
STATE SOVEREIGNTY AND SLAVERY.
the left in their logical sense, and the sense which the logic
of facts has gradually and through many a bitter struggle
brought out into bold relief, and which it will finally stamp
as their exclusive meaning.
Nothing but the bitter experience of many years has
been able to make American statesmen even partially con-
scious that they have been using this double-columned
political lexicon. The nature of the state was to such an
extent a seven-sealed enigma to them, that they, bona fide
and in the very same breath, used the same word in the
most opposite senses, and employed words as synonymous
which denoted ideas absolutely irreconcilable.
It never occurred to the acute Adams that an (( individ-
ual" could never be formed of a "confederation," that
is, of an association of thirteen states; that it was a con-
tradiction to require that the confederation, in all matters
of which it had cognizance, should be a single individual.
When words are used so arbitrarily that the terms "asso-
ciation," "confederation," and "individual " are con-
sidered identical in meaning, it is not hard to make the
most impossible things seem possible; nor is it to be won-
dered at that the Americans ventured to out-do the mystery
of the Trinity by endeavoring to make thirteen one, while
leaving the one thirteen.¹
The practical realization of this theoretical piece of art
was also not difficult; but the results were as melancholy
as they were simple. Washington demonstrated in a single
word the untenableness of the theory, the absurd spectacle
presented by its realization, and the disastrous consequences
which it entailed. He writes, 1785: "The world must feel
and see that the Union or the states individually are sov-
"Thirteen sovereignties were considered as emerged from the prin-
ciples of the revolution, combined with local convenience and consid-
erations, the people nevertheless continuing to consider themselves in a
national point of view as one people." Jay in Chisholm v. Georgia, Dal-
las, Rep., II., p. 470. Curtis' Decisions of the Supreme Court, I., p. 60.
MAKING ONE OF THIRTEEN.
17
ereign as best suits their purposes; in a word, that we are
one nation to-day and thirteen to-morrow. Who will treat
with us on such terms?""1
"To balance a large state or society, whether monarchical
or republican, on general laws, is a work of so great diffi-
culty that no human genius, however comprehensive, is
able by the mere dint of reason and reflection to effect it.
The judgments of many must unite in this work. Expe-
rience must guide their labor. Time must bring it to per-
fection, and the feeling of inconveniences must correct the
mistakes which they inevitably fall into in their first trials
and experiments.”²
When the American people saw themselves compelled
to transform the former thirteen colonies into a political
unity, they were not only destitute of all practical expe-
rience, but they were not yet clear in their own minds how
far they should seek to bring about such a unity.3
They were, in addition to this, unused to theorizing on
the laws of state organization. Lastly, they had no leisure
to grapple profoundly with the many new and difficult
questions which arose, without compromising their whole
future from the very beginning.
It is not therefore to be wondered at that reason and re-
flection made themselves less felt than might have been
¹ Marshall's Life of Washington, II., p. 97; Life of Hamilton, II.,
p. 331.
2 Hume, The Rise of the Arts and Sciences, Essays, I., p. 128, Lon-
don, 1784.
3 The Mississippi question is, through its various stages, one of the
most instructive chapters in the history of the gradual expansion of
the narrow colonial horizon to the conception of a real national power,
and, finally, of a continental republic. Draper (History of the Amer-
ican Civil War, I., p. 201), speaking of the universal and complete ig-
noring of its significance, even after the close of the revolutionary war,
says: "Even Washington, so late as 1784, did not think that the owner-
ship of the Mississippi would be of benefit to the republic; but, on the
contrary, was afraid that it might tend to separate the western country
2
18
STATE SOVEREIGNTY AND SLAVERY.
expected from the character of the men who composed the
first congress, had the circumstances surrounding them
been different. It was above all things important to
satisfy the demands of the moment, which became greater
from day to day and assumed a more complicated charac-
ter, for the reason that the revolutionary movement grad-
ually but necessarily extended beyond its original purpose
and began to embrace objects not at first contemplated.
It was in the very nature of things that even in the most
important matters action frequently followed on the im-
pulse of the moment, and that the leaders of the revolution
did not take heed what might be the logical consequences
which at some future time might be drawn therefrom, or
what practical results might follow from it, when there
should have been a radical change in circumstances, at this
moment beyond the possibility of conjecture. This may
be regretted, but it were as foolish to reprove the founders
of the republic on this account as it would be absurd to
deny the fact.
Further, as there was a glaring contradiction in the ac-
tual state of things, it was a natural and inevitable conse-
quence that the practical measures of congress at first
should present a striking contrast to one another. The
struggle with England demanded that the colonies should
cling closely and firmly together. The more this struggle,
therefore, engaged their attention at the moment, the more
did the steps taken by congress assume a national char-
acter. And the more exclusively attention was given to
the question of regulating the relations of the colonies or
states to one another, the more did the spirit of particular-
from the Atlantic states. His ideas slowly expanded from an Atlantic
border to a continental republic. He wished to draw commerce down
the little streams that run through the old colonies. In these views he
was by no means singular, the general opinion of the time being that
the chief value of the western lands was for the payment of the public
debt."
INFLUENCE OF PARTICULARISM.
19
ism obtain sway. The colonies had not yet realized that,
aside from their struggle with England, it was their inter-
est that their fusion should be as complete as possible.
Moreover, these opposing views did not stand directly
arrayed against each other, but the divergent interests de-
manded in all important questions almost equal considera-
tion. The contradiction between the various acts of con-
gress became, in consequence, ever greater and more
bizarre; while in congress and out of it the obscurity pre-
vailing as to the meaning of words, and the confusion of
theories, kept increasing, and the separate interests of the
colonies came by degrees to be the only ones which were
consulted.
At the very moment that congress recognized that com.
plete separation was the possible and even probable conse
quence of the quarrel with the mother country, it framed
the resolution which has been formally the seed from
which all internal conflicts have sprung, and which, up to
the
year 1865, and after, shook the Union to its center.
On the 7th of June, 1776, certain resolutions contempla-
ting the separation of the colonies from the mother country
were introduced; and on the 10th of June it was resolved
to appoint a committee to draw up the declaration that
"these united colonies" are "free and independent states."
¹I would again insist that the real cause is to be sought for, not in
any ill-judged resolution of congress, but in the actual condition of
affairs. The whole secret of American history is contained in these
words of Gerry: "We are neither the same nation nor different nations.
We ought not, therefore, to pursue the one or the other of these
ideas too closely." Elliott, Deb., V., p. 278. This fact explains all the
internal conflicts of the Union up to the year 1865. And this fact could
not be legislated out of existence, or cease to be a fact in consequence
of a spontaneous act of popular volition. It is an altogether different
question to what extent political ignorance and moral weakness or cor-
ruption contributed to perpetuate these opposite views, and thus to make
them more pronounced, so that a violent disruption became inevitable,
and after many a crisis had been happily passed, the cure was unduly
delayed.
20
STATE SOVEREIGNTY AND SLAVERY.
On the following day this committee, and another to elab-
orate a scheme of confederation, were chosen. No one
perceived the contradiction lurking in these two acts, which
becomes apparent when they are subjected to a close verbal
criticism.
On the fourth of July, the Declaration of Independence
was adopted, the import of which, as has been already re-
marked, was in accordance with the resolution of the 10th
of June. Eight days later, on the 12th of July, the last-
named committee submitted to congress the draft of the
articles of confederation. On the 15th of November, 1777,
the articles, after they had undergone several amendments,
were accepted by congress, and it was resolved to recom-
mend them to the legislatures of the states for adoption.
The united colonies had, therefore, existed over a year by
virtue of the sovereign will of the people as an indepen-
dent, political commonwealth, when congress submitted
a plan to the state legislatures, which placed this common-
wealth on a basis essentially different from that on which
it had hitherto reposed.
When the legislatures of all the states had ratified the
plan on the 1st of March, 1781, the new constitution was
universally recognized as law. That the legislatures had
no right whatever to vote on its adoption or rejection was
completely overlooked. The legislatures were not purely
revolutionary bodies existing only as de facto governments.
Their powers had a legal character and were strictly deter-
mined by the constitutions which the people of the several
states had given themselves in obedience to the order of
the revolutionary and therefore unrestricted congress, and
after they had been absolved, by its Declaration of the
fourth of July, 1776, from all allegiance to England.
Every step, therefore, taken by the legislatures in ex-
cess of the powers reserved to them in their several con-
stitutions was ipso facto wanting in binding legal force.
But none of the legislatures had constitutional authority
FICTION AND FACT.
21
to vote on a plan of a constitution for the Union.¹ As to
the legal validity of the act, it was a clear case of usurpa-
tion based on an untenable fiction. But this fiction was
then considered an unquestionable right, and naturally
the act itself was not therefore viewed in the light of a
usurpation. The consequence was, that, in the course of
time, this fiction was looked upon not only as an unques-
tionable right, but as a notorious fact, which had been al-
ways recognized, whereas, in reality, it gradually became a
fact, at least in part, only as a result of this confusion of
ideas.
In the scheme of confederation which Franklin intro-
duced into congress on the 21st of July, 1775, there was, of
course, no question of a "sovereignty" of the colonies.
Neither is the expression to be found in the articles of
confederation reported July 12, 1776, i. e. after the united
colonies had become a political community, by the commit-
tee appointed on June 11. The third article only declares
that "each colony shall retain as much of its present laws,
right and customs as it may think fit," and may "reserve"
to itself the regulation of its internal affairs so far as they
do not conflict with the articles of confederation.2
¹ Several of the states declared themselves in their constitutions as com-
pletely sovereign. Thus the constitution of New York recites that all
power in the state has again reverted to the people. Declarations to
the same effect are to be found in the constitutions of Maryland, North
Carolina, Massachusetts and New Hampshire. Farrar's Manual of the
Constitution, pp. 101-103. From what has been said hitherto and from
what follows in the text, it is evident that these declarations are a con-
tradiction of facts, at the same time that they are destitute of all legal
foundation. But even if the states were actually and legally completely
sovereign, the legislatures were guilty of usurpation. "If the state in its
political capacity had it [the right], it would not follow that the legis
lature possessed it. That must depend upon the powers confided to the
state legislature by its own constitution. A state and the legislature of a
state are quite different political beings." Story, Comm., I., § 628.
2 “Each colony shall retain as much of its present laws, rights and
customs as it may think fit, and reserve to itself the sole and exclusive
22
STATE SOVEREIGNTY AND SLAVERY.
The debates on this proposition continued to the 20th of
August, 1776. Then the question was allowed to rest en-
tirely until the 7th of April, 1777. It was in the subsequent
debates, which closed on the 15th of November, 1777, that
the radical change which gave the advocates of particular-
ism the legal basis from which they carried on their oper-
ations, was made. In the three previous proposals,¹ the
article relating to the union preceded that on the reserved
rights of the colonies or states. Now, on the contrary, the
order was reversed, and it was expressly provided that each
state "retains its sovereignty." John Quincy Adams per-
tinently inquired how each state could retain a sovereignty
which it never possessed.3 "The independence of each
separate state had never been declared of right. It never
existed as fact.'
224
regulation and government of its internal police in all matters that shall
not interfere with the articles of this confederation."
¹ That of Franklin in July, 1775; that of the select committee in July,
1776; and that of the committee of the whole of Aug. 20, 1776.
2 "Each state retains its sovereignty, freedom and independence, and
every power, jurisdiction and right which is not by this confederation
expressly delegated to the United States in congress assembled.”
3 “Where then did each state get the sovereignty, freedom and inde-
pendence which the articles of confederation declare it retains?—not
from the whole people of the whole Union-not from the Declaration of
Independence-not from the people of the state itself. It was assumed
by agreement between the legislatures of the several states and their
delegates in congress, without authority from or consultation with the
people at all." J. Q. Adams, Discourse on the Constitution, p. 19. Cal-
houn characterizes the confederation as "strictly a union of the state
governments." Calhoun's Works, VI., p. 159.
4
* J. Q. Adams, 1. c, p. 15. See also Charles C. Pinckney in Elliot's
Deb., IV., p. 301. Washington says in his address of the 8th of June
to the governors of the several states: "It is only in our united charac-
ter that we are known as an empire, that our independence is acknowl-
edged." Marshall, Life of Washington, II., p. 84. See also Farrar,
Manual of the Constitution, p. 52; The Federalist, No. II.; Brownson,
The American Republic, p. 208; Curtis, History of the Constitution, I.
p. 39, etc. Madison also declared, on the 29th of June, 1787, in the con-
vention at Philadelphia: "The states never possessed the essential
EARLY INCONSISTENCIES.
23
The articles of confederation start out with the assump-
tion that from the date of the Declaration of Independence
each state became de facto and de jure an independent
state, competent henceforth to form a confederacy with the
other states whenever it saw fit, and to the extent that it
saw fit. How this assumption was to be reconciled with
the fact that the congress had been in existence for years,
and had actually exercised sovereign power from the first,
while the individual states had assumed no sovereign atti-
tude, theoretically or practically, towards England or other
foreign countries, does not appear. The contradiction is,
however, easily explained.
The place that congress occupied was determined en-
tirely by the relations of the colonies to England. On the
other hand, the principle underlying the articles of confed-
eration was borrowed exclusively from the relations of the
colonies to one another. Until the resolution was taken
to change the dependency of colonial existence for the
independence of a political organization, the consideration
of the former dictated all measures; now the latter occu-
pied the foreground because the war with England created
only a temporary want, while the regulation of internal
relations was destined to be lasting.
Apparently and formally, the unity which this want and
the presumptive future relations of the United States to
foreign powers caused to seem desirable, was preserved.
The individual states had attributed to themselves, in the
articles of confederation, no powers which could place them
in relation to foreign nations in the light of sovereign
states. They felt that all such claims would be considered
ridiculous, because back of these claims there was no real
corresponding power. Congress therefore remained, as
heretofore, the sole outward representative of sovereignty.
rights of sovereignty." Yates's Minutes, Elliott, Deb., I., p. 461. Com-
pare with this the view advocated by him in 1798 and 1799, of which I
shall treat more fully hereafter.
24
STATE SOVEREIGNTY AND SLAVERY.
But the power to exercise the prerogatives was taken from
it, and this without placing it in any other hands.
The changes effected by the articles of confederation were
rather of a negative than of a positive nature. They did
not give the state which was just coming into being a
definite form, but they began the work of its dissolution.
The essential prerogatives which necessarily belong to a
political community in its relations with other powers,
they confided by law to confederate authorities, from whom,
in practice, they withheld all power. On the other hand,
they confided all actual power to the component parts of
the whole, but did not and could not for themselves, still
less for the whole, give them the right to assume the re-
sponsibilities or enforce the rights which regulate the
relations of sovereign states.
The practical result of this was that the United States
tended more and more to split up into thirteen indepen-
dent republics, and in the same measure, they virtually
ceased to be a member of the family of nations bound to-
gether by the jus gentium. The European powers rightly
saw in the Union only a shadow without substance,' and
besides they had no occasion and no desire to have any re-
lations with the individual states as sovereign bodies.2
and
'Washington wrote in October, 1785: "In a word, the confederation
seems to me to be little more than a shadow without the substance;
congress a nugatory body." Marshall's Life of Wash., II., p. 92. See
also the Federalist, Nos. 15-22.
2 “The states were not 'sovereigns' in the sense contended for by some.
They did not possess the peculiar features of sovereignty-they could
not make war, nor alliances nor treaties. Considering them as political
beings, they were dumb, for they could not speak to any foreign sov-
ereign whatever. They were deaf, for they could not hear any proposi-
tions from such sovereign. They had not even the organs of defense or
offense, for they could not of themselves raise troops, or equip vessels, for
war." King, on the 19th of June, in the Philadelphia convention, Madison
Papers; Elliott, Deb., V., p. 212. Ruffin called attention in the debates
of the peace convention at Washington, February, 1861, to the fact that
during the revolutionary war North Carolina had laid the foundation of
CHARACTER OF THE UNION.
25
Every existing circumstance, and in some respects even
the war with England, tended to give affairs this peculiar
development.
A new government not founded on force will never im-
mediately obtain strength and stability, for, on the one
hand, it generally itself originates in a violent revolution
which is always to a certain extent attended by a tendency
to anarchy, and on the other hand, is wanting in the pow-
erful aids of custom and inherited respect. The new gov-
ernment of the United States had much to suffer from the
absence of both these elements. The sovereignty of the
Union was an abstraction, an artificial idea which could be
made a reality, only inasmuch as the circumstances which
had made this idea a necessity should imperatively demand
it. The sovereignty of the states, on the other hand, was,
in the minds of the whole people, the first and most natu-
ral of all circumstances. Each colony had had from its
beginning a government of its own, which in great part
was the production of the colonists themselves. The Rev-
olution had now put into their hands that portion of power
which previously had been exercised by English officials.
The further alterations made in the machinery of govern-
ment were not of so essential a nature that the people
would be apt to feel themselves complete strangers to its
operation. The entire transformation was rapidly accom-
plished, without any of the violent commotions which
might have produced prolonged reaction. Eight states 1
had already completed their new constitutions in 1776. In
the relations of individuals to the government, there was
nothing to show how wide a breach divided the past from
a fleet, to which Orth of Indiana replied: "There, then, we have a single
instance of one of the states taking a step towards sovereignty." None of
the delegates from the southern states could adduce another instance.
Chittenden, Debates of the Peace Convention, p. 262.
¹New Jersey, Delaware, Maryland, North Carolina, New Hampshire,
South Carolina, Virginia, and Pennsylvania.
26
STATE SOVEREIGNTY AND SLAVERY.
the present. The courts administered justice in accordance
with the same legal principles and precedents, and the leg-
islatures, elected by the vote of the people, made laws and
levied taxes as they had done before, but without being sub-
jected to the control or caprice of a royal governor. In a
word, long before the close of the war, it was difficult to
realize from the whole mode of civil life and action that a
violent revolution was being accomplished.
It was not an easy task for the colonists to resort to the
sword. But stanch and sincere as was their loyalty, their
love and veneration for the mother country had by no
means been rooted as firmly in the real condition of things
as they themselves supposed. The greater number were
acquainted with England only through the accounts of their
fathers and grandfathers. But with their own colonial
government, so far as it had sprung from themselves and
been established by themselves, their affections were inti-
mately entwined, for they had grown up with it. It was
flesh of their flesh and bone of their bone, and it was
always considered by them as their only real representative.
There was no need of prior reflection to convince the citi-
zens of the significance and importance of colonial govern-
ment. Having grown up in constant and immediate de-
pendence upon it, they were permeated by the feeling of its
necessity and legality. Love and interest conspired to at-
tach them to it, for they knew full well that their votes
had a share in its formation. They looked upon it as the
natural bulwark of their rights and liberties.
If that was the case in the past, it must be much more
so now, for all these bonds could only be strengthened by
the amplification of the power of the colonial governments
produced by the Revolution.
To counterbalance all this, the federal government had
only the war with England to place in the scales. The love
and respect generally accorded by a people to their gov-
ernment it could certainly not have, for it was a child of
THE STATUS OF CONGRESS.
27
yesterday and no one had as yet cast its horoscope. It
was a product of the Revolution, and as such the practical
good sense of the American people did not permit them to
refuse it the completest recognition. But what should be-
come of it later was an open question, which was by de-
grees submitted to serious and sober consideration. No
umbrage was taken that the federal government had ex-
isted already nearly five years, with the revolutionary
character it had assumed after the Declaration of Indepen-
dence, and all attempts authentically to establish its legiti-
macy were vain. Respect for it was neither increased nor
diminished by this means.
Congress, up to the 1st of March, 1781, did not look up-
on the articles of confederation as the rule by which it
was to be guided, any more than it did afterwards, and the
states gave no more consideration to the wishes, requests,
and commands of congress after the 1st of March, 1781,
than they had before. The people, during these five years,
took to looking upon congress more and more as a creation
of the Revolution, which had its raison d'être and was
necessary only on account of the war with England.
Hence they thought every good citizen bound to yield it
just so much obedience as the legitimate power, the state
government, commanded him to give it.
The state governments had, in five years, completely
lost¹ the little revolutionary savor which at first might
have been observable in civil life. The government of the
Union, on the other hand, suggested no immediate idea
whatever to the people. It was a means which the states
employed to secure a definite object; it was not, like the
state governments, the incorporation of a moral idea pos-
sessed of independent life in the minds of the people.
1 Webster says: "The Revolution of 1776 did not subvert government
in all its forms. It did not subvert local laws and local administrations.”
Webster's Works, III., p. 460.
28
STATE SOVEREIGNTY AND SLAVERY.
And if, in the first stages of the Revolution, it sometimes
appeared that there was a conscious struggle gradually to
endow this abstraction of one American people with reality,
not only all efforts to that effect, but all desires having such
a tendency, were nipped in the bud.¹
If it had been possible immediately to elaborate a con-
stitution which in some essential points should have had
a national basis, and to secure its instant adoption by
the states, the people might have gradually adapted
themselves to it. The disorders of war, which frequently
made extraordinary measures necessary, might have contrib-
uted a great deal to bring about, in a short time, the union
of the various elements. But with the single exception of
the Declaration of Independence, everything that took a
fixed and legal shape and was destined to be of a perma-
nent nature, was so framed that the view that thirteen sov-
ereign and independent powers, without any obligation on
their part so to do, had found it advisable to send dele-
gates to a common congress, a congress which, by virtue
or an agreement made, had cognizance of certain matters
of interest to the thirteen nations, took deeper roots among
the people. The articles of confederation expressly stated
that the states had entered into "a firm league of friend-
ship." It was indeed provided at the same time that the
compact should be "perpetual;" but what foundation was
there for the assumption that this word "perpetual” should
receive a more literal construction than the "perpetual "
of the numberless alliances, offensive and defensive, of
other powers, which all experience had shown to be mean-
ingless phrases, whenever the interest of either party dic-
tated that they should be broken?
1
There certainly was a foundation for this assumption;
Fisher Ames wrote, as late as 1782: “Instead of feeling as a nation,
a state is our country. We look with indifference, often with hatred,
fear, and aversion, to the other states." Works, I., p. 113.
DISTRUST OF POWER.
29
but it was not understood at the time, and until it was
understood, congress could not be looked upon as the head
of the American people, but must remain a foreign power,1
and a congress of delegates, who received instructions from
their sovereigns, and whose enactments could be enforced
only to the extent that they met with the approval of these
same sovereigns.
The cause which could induce the United States to make
their "firm league of friendship" really "perpetual” and
gradually more indissoluble and could produce a corres-
ponding weakening of the state governments, was the per-
manent and ever-increasing interest therein of the people
of all the states. This interest, except in so far as secur-
ing independence of England was concerned, was entirely
ignored. It could come to be understood only through ex-
perience. Besides, leaving out of consideration mere wishes.
and inclinations, the American people were entirely de-
pendent, in this matter, on speculation,2 and such was
the prevailing feeling at the time, that this led naturally
to a conclusion the very opposite of that which experience,
in the course of time, proved to be the right one.
"The Revolution under which they were gasping for
life; the war which was carrying desolation into all their
dwellings and mourning into every family, had been
kindled by the abuse of power-the power of government.
An invincible repugnance to the delegation of power had
been generated by the very course of events which had
"It is obvious that the continental government was considered in
the light of a foreign one. Indeed, the epithet was applied to it by one
of the leaders of the Massachusetts councils. It was submitted to as a
matter of necessity, and because such submission was the only practi-
cable way of concentrating the energies of the other states." Austin's
Life of Gerry. See Rives, The Life and Times of J. Madison, II.,
p. 177.
2
Story, Comm., I., § 244.
3 The colonists.
30
STATE SOVEREIGNTY AND SLAVERY.
rendered it necessary, and the more indispensable it be-
came, the more awakened was the jealousy and the more
intense was the distrust by which it was to be circum-
scribed."1
The colonies had for years struggled against the guardian-
ship of the mother country, which had so needlessly oppressed
and wronged them, because parliament was not suffi-
ciently conversant with the condition of affairs in America.²
The consequence was a deep-rooted antipathy to all ex-
ternal power. But congress, as already remarked, was
viewed in the light of a foreign power, spite of the fact
that it was composed of delegates from the body of the
people. Hence the people thought they must see in con-
gress what a people is always apt to expect from a power
foreign to the government of the state,-unpleasantness,
annoyance, and usurpation.
This distrust steadily increased and gradually assumed
a different character. The period was big with a peculiarly
bold fancy. It recklessly shook off the antiquated preju-
dices which it had inherited from former generations; but it
soon lost the solid ground under its feet and aimed at some-
thing far transcending its original object. It received the
first rude shock from the pressure of actual unbearable
events; but it soon lost itself in wild abstractions and be-
came ridiculous, for it ventured to make a reality of these
abstractions and to carve the actual world in every respect
in accordance with the rules and measures of logic, as
despots have attempted to trim man and the forms of na-
ture in accordance with their own fancy.
It were folly to say that Rousseau's writings exercised
any influence on the development of things in America.
But the same spirit which gave birth to Rousseau's phil-
osophy and made it of such importance to Europe, was,
¹ J. Q. Adams, Disc. on the Constitution, p. 10.
2 I refer principally to the stamp acts.
CRUDE THEORIES.
1
31
long before Jefferson grew intoxicated even to madness with
it in Paris, rampant in America. It, indeed, received
its full development here only through the French Revolu-
tion, but a series of fortunate circumstances prevented its
development to its ultimate consequences. It appeared in
the new world in a modified form, but was not wanting
there. And here for the first time it became clearly evi-
dent that the civilized new world was not separated from
the old one by any broad unbridged gulf. They are not
only governed by the same historic laws, but the great
intellectual revolutions which take place in the one act
simultaneously in the other, although, in accordance with
the existing natural conditions, they never manifest them-
selves in precisely the same manner or make their influence
felt to exactly the same extent. One only needs to read
the Declaration of Independence to be convinced, that but
one more impulse was needed, even in America, to permit
these crude theories³ to be openly advocated, which, disre-
garding that which had prescriptive right on its side, in
virtue of its history, would endeavor to sap the founda-
tions of all things, to lay down their arbitrary premises as
unquestionable truths, and which would have willingly, in
a night, overturned the state and the established order of
¹ See Kapp, Geschichte der Sklaverei, p. 7.
2 This truth is a priori so evident that, to say the least, it would be su
perfluous to mention it, were it not that Americans frequently fall into
the dangerous error, and flatter themselves, that heaven governs them
by laws altogether peculiar to themselves and their country. In strange
contrast to this is the disposition to overload their political reasoning
with analogies, for the most part not pertinent, from Greek and Roman
history. The tendency here referred to has already perceptibly de-
creased. This is to be attributed in part to a clarification of political
thought; but in part also to the fact that the majority of members of
legislatures and of congress know too little of Greek and Roman his-
tory.
³ Calhoun, with an acuteness very wounding to Americans, calls the
declarations of these as universal principles, " glittering generalities.”
32
STATE SOVEREIGNTY AND SLAVERY.
society, to make them accord with the ideas which they
were wont to call "natural rights."
Had
The interchange of the signification of the words privi-
lege and power was the first disastrous confusion of
ideas in which the American people were involved by the
combined influence of their experience in the struggle with
England and the tendency to raise obscure philosophical
abstractions to the dignity of political laws.¹ From this
confusion of ideas there was but one step to the maxim
that no power should be delegated which might be abused;
that is, that no power whatever should be delegated, be-
cause there is no power which may not be abused." "Con-
gress was to declare everything, but to do nothing."
there been the slightest idea of what evil effects this must
inevitably draw after it, things certainly would not have
gone so far. The dread of seeing the power, bestowed in
the interest of all, turned against the people was not from
the first so great, that a few rational concessions might not
have been obtained from envy and mistrust, while the people
continued to act under the impulse of excitement and the
fear of England's supremacy. But here the American people
were, from want of experience, left completely to their own
resources. They could judge only from their present feel-
ing and from analogy: and both of these might easily, in
the case before us, have misled them.
It was said that government always sought to increase
its power at the expense of liberty. But it was complete-
It was a thing hardly to be expected, that in a popular revolution the
minds of men should stop at the happy mean which marks the salutary
boundary between power and privilege, and combine the energy of govern-
ment with the security of private rights. A failure in this delicate and
important point is the great source of the inconveniences we experience.”
Hamilton, in No. XXVI. of the Federalist.
2 "That power might be abused was [to persons of this opinion] a
conclusive argument against its being bestowed." Marshall, Life of
Wash., II, p. 127.
3
Story, Comm., II., § 246.
RELIANCE ON SELF-INTEREST.
""
33
ly overlooked that this was the case only when power had
"attained a certain degree of energy and independence,
while it as surely languishes and decays when it does not
possess this certain degree of energy and independence.¹
The people therefore lived in the honest conviction that,
no matter how little power might be given to congress, it
should be the first care of all patriots and friends of lib-
erty to keep a watchful eye upon it and to sound the alarm
at the first attempt it should make to exceed its powers.
That the time might come when the states or the state
governments should not be willing to accede to the equit-
able demands of congress, made evidently in the interest
of all,—such a fear at the beginnning of the Revolution
would have been readily disposed of as foolish and inju-
rious. De Tocqueville says of American legislators that
they rely largely on the intelligence of men; that is, that
they leave it to the personal interest of all to live accord-
ing to the laws. That there is some truth in this asser-
tion, cannot be denied. But at this precise time it was not
only the "existing European sentimentality" that was in
search of a "Dulcinea, most beautiful of women, in the
primeval forests of America, under the names of Nature,
Liberty, the Rights of Man, and Humanity.
2
•
113
¹ Madison wrote to Jefferson, October 17, 1788: "It has been remarked
that there is a tendency in all government to an augmentation of power
at the expense of liberty. But the remark, as usually understood, does
not seem to me well founded. Power, when it has attained a certain
degree of energy and independence, goes on generally to farther degrees.
But when below that degree, the direct tendency is to farther degrees
of relaxation, until the abuses of liberty beget a sudden transition to an
undue degree of power." Rives, The Life and Times of Madison, II.,
p. 641. Hamilton gives expression to the same idea. See also Farrar,
Manual of the Const, p. 106; Story, Com., I., § 220.
2 "Les legislateurs americains ne montrent que peu de confiance dans
l'honnêteté humaine, mais ils supposent toujours l'homme intelligent.
Ils se reposent donc le plus souvent sur l'intérêt personnel pour l'exécu-
tion des lois." La Démocratie en Amérique, I., p. 94.
S
Kapp, Leben des americanischen Generals, Joh. Kalb, p. 242.
3
34
STATE SOVEREIGNTY AND SLAVERY.
Randall was doubtless right when he said that the
Americans had not drawn the sword in the defense of
"natural rights," but as English subjects, in every sense
of the word, to redress the wrongs which they were made
to endure by a legitimate but unjust government.' But
once the sword was drawn, the American people, spite of
all the realism and sobriety of their character, began to
indulge in these same idealistic, philosophizing reveries;
and the more they were in accord, or seemed to be in ac-
cord, with the practical wants of the time and with the
inclinations produced in individuals by actual events, the
more completely did they yield themselves up to their in-
fluence. The ingenuous admiration of one's own ex-
cellence, which was considered the natural result of dem-
ocratic institutions, or of the principle that the people are
the source or origin of power, now began, but it was some
time before it grew, as it eventually did, through the in-
fluence of demagogues, into that pharisaical self-right-
eousness, which is one of the most characteristic traits of
the political thought of the masses of the American peo-
ple. At this time American legislators forgot that self-
interest is the best guaranty for the observance of the laws.
2
True it is, they yet supposed that a rational self-interest
would induce both the state governments and individuals
to support the reasonable measures of congress and to yield
¹ Randall, Life of Jefferson, I., p. 117. See also the Life and Writings
of John Jay, II., p. 410. Edmund Burke writes: "They [the colonists]
are therefore not only devoted to liberty, but to liberty according to
English ideas, and on English principles. Abstract liberty, like other
mere abstractions, is not to be found. Liberty inheres in some sensible
object; and every nation has formed to itself some favorite point which,
by way of eminence, becomes the criterion of their happiness." Works,
II., pp. 38, 39. See also Brownson, The Amer. Rep., pp. 208, 209. Gibbs,
Memoirs of the Administrations of Washington and J. Adams, edited
from the papers of O. Wolcott, I., pp. 2, 3.
2 See the Works of Jefferson, I., p. 444; II., pp. 97, 221, 350. Works
of Fisher Ames, I, p. 324; II., pp. 347, 359, etc.
THE AWAKENING.
35
to its equitable demands, in case pure patriotism and un-
selfish republican virtue might not here and there be quite
as great and lasting as there was reason to expect. But
the foundation on which they built was, consciously or un-
consciously to themselves, the highest ethical elements of
human nature. These, in their opinion, were destined to
be the compass by which, certainly during the great and
holy conflict, and probably also in the future, congress, the
state governments and individual citizens would with the
utmost harmony and unanimity guide the ship of state
into the harbor of the golden age which was dawning.'
They overestimated themselves and the people, and this
both as to their intelligence, their moral purity and moral
greatness. "We imagined," wrote general Knox, during
the troubles in Massachusetts, "that the mildness of the
government and the virtue of the people were so corres-
pondent, that we were not as other nations, requiring bru-
tal force to support the laws. But we find that we are
men, actual inen, possessing all the turbulent passions be-
longing to that animal, and that we must have a govern-
ment proper and adequate for him."3
2
1 “Have we not already seen enough of the fallacy and extravagance of
these idle theories which have amused us with promises of an exemp-
tion from the imperfections, weaknesses and evils incident to society in
every shape? Is it not time to awake from the deceitful dream of a
golden age, and to adopt as a practical maxim for the direction of our
political conduct, that we, as well as the other inhabitants of the globe,
are yet remote from the happy empire of perfect wisdom and perfect
virtue?" Hamilton in No VI. of the Federalist. See also Life of J. Q.
Adams, II., p. 129.
Washington writes, the 8th of August, 1786, to Jay: "We have er
rors to correct. We have probably had too good an opinion of human
nature in forming our confederation. Experience has taught us that
men will not adopt and carry into execution measures the best calcula-
ted for their own good without the intervention of a coercive power."
Washington's Writings, IX., p. 187.
* Marshall, Life of Washington, II., p. 118. Fisher Ames says: "Our
mistake, and in which we choose to persevere because our vanity
36
STATE SOVEREIGNTY AND SLAVERY.
But this self-complacent illusion had cast roots too deep
to be eradicated the moment that its evil fruits were be-
ginning to be reaped. The country suffered from this
folly so long and to such an extent that the fathers of the
republic had often well nigh despaired of its future. True,
there were a few who were clear as to the real cause of the
evil. Not only the state, but even society, had actually en-
tered on the process of dissolution, and many there were
who knew no other way of arresting the evil than by ap-
pealing to the influence of Washington. Washington him-
self saw farther, and pertinently replied: "Influence is
not government."
The war could scarcely have been brought to a happy
termination, had the mistrust in all strong government,
especially in all power external to the state governments,
and this fantastic confidence in the virtue of the people
been then developed to the extent that it was later. Jus-
tice Story says: "They [the colonies] found themselves,
after having assembled a general congress for mutual
advice and encouragement, compelled by the course of
events to clothe that body with sovereign powers in the
most irregular and summary manner, and to permit them
to assert the general prerogatives of peace and war, with-
out any previous compact, and sanctioned only by the silent
acquiescence of the people."
But the same reasons that made such an "irregular and
summary" proceeding necessary in the first instance, must
shrinks from the detection, is, that in political affairs, by only determin-
ing what men ought to think, we are sure how they will act; and when
we know the facts and are assiduous to collect and present the evidence,
we dupe ourselves with the expectation that, as there is but one result
which wise men can believe, there is but one course of conduct deduced
from it, which honest men can approve or pursue. We forget that in
framing the judgment every passion is both an advocate and a witness.”
Works, II., p. 358.
1 Marshall, Life of Wash., II., p. 120.
Comm., I., § 244.
IMPOTENCE OF CONGRESS.
37
in the very nature of things have continued to operate.
to some extent during the whole course of the war. And
these causes produced like effects. True, there now existed
a formal "contract." But the existence of the republic
was of greater importance than the minute observance of
the provisions of this contract. When, therefore, an una-
voidable conflict between duties arose, congress partly con-
sciously, unconsciously in part, violated the contract.
The interests of the Union came in conflict at every step
with the provisions of the compact; for, as we have seen,
congress was not possessed, in any sense, of the power nec-
essary to carry out its resolutions. But the situation of
the country demanded above all things a single, strong,
prompt and energetic executive power. How greatly every
operation was hindered by the impotence of congress; what
frightful distress its powerlessness produced on every hand,
and especially in the army; how often it brought the coun-
try to the very verge of the abyss;-to all this Washington's
correspondence bears eloquent testimony, which will always
redound to his fame as it will to the confusion of the jeal-
ous and self-seeking particularism of the state legislatures.
But congress was neither willing nor able to exceed its.
authority except in the most urgent cases. These indeed
were not few. The Federalist says: "A list of the cases
in which congress have been betrayed, or forced by the
defects of the confederation, into violations of their char-
tered authorities, would not a little surprise those who
have paid no attention to the subject." No blame attached
to it in most cases, partly, because, as in the case of the
ordinance of 1787,2 it was not seen that it had been guilty
of usurpation, and partly because it was tacitly acknowl-
edged that the usurpation was absolutely necessary. The
contemptible impotence of congress was too patent to per-
1 No. XLII.
See the Federalist, No. XXXVIII.
38
STATE SOVEREIGNTY AND SLAVERY.
mit the people to declaim with any great vehemence
against an occasional act of trespass on its part.
Hence there was obviously no necessity for the general
cry against the dangers which might attend too powerful
a government and a "consolidation" of the Union. And
yet these were still harped upon on every occasion, and not
merely from impure personal motives, but in great part
also from full and honest conviction. The more insufficient
the powers of government were proved to be, the stronger
was the opposition to any extension of them. The disincli-
nation to trust congress with power at all in keeping with
its duties, became at last so great that it began to show
itself even in the debates in congress.¹
These views, however, were not carried to an extreme
during the war. The governmental machinery of the con-
federation was as clumsy and imperfect as it could well be.
It not unfrequently seemed as if it would cease working
altogether. But at every critical moment it received a new
impulse. As long as the war had not yet been happily
terminated, there stood out in bold relief a definite object
which made the Union absolutely necessary; for even the
most zealous visionary recognized that independence could
be obtained only by united effort. But the moment all
1
2
Story, Comm., I., § 264.
2 "The necessary unanimity of action and opinion was preserved by
the individual influence of the great men who appeared together in the
different colonies." Trescot, The Diplomatic History of the Administra
tion of Washington and Adams, p. 10. G. W. Greene is a decided advo-
cate of the same view. See the Life of Nath. Greene, passim.
³ J. Jay wrote on the 27th of June, 1786, to Washington: "I am un-
easy and apprehensive, more so than during the war. Then we had a
fixed object, and though the means and time of obtaining it were often
problematical, yet I did firmly believe that we should ultimately suc-
ceed, because I did firmly believe that justice was with us." Marshall,
Life of Wash., II., p. 107. Trescot, 1. c., p. 9, says, and doubtless rightly:
"For it must not be supposed that the treaty of peace secured the na-
tional life. Indeed, it would be more correct to say, that the most criti-
cal period of the country's history embraced the time between 1783 and
GROWTH OF CORRUPTION,
39
external pressure was removed,' the crazy structure be-
gan to fall to pieces with a rapidity which astonished even
those who had had during the struggle the best opportuni-
ty to learn its weaknesses.
If the states were at first satisfied with simply ignoring
the requisitions of congress, or of complying with them
just as far as seemed good to them, they now began to
scoff at its impotence and to boast of their neglect of
duty.2
3
The demoralizing influences which every protracted war
produces began now to manifest themselves to an alarm-
ing extent. Impure motives of every description governed
the action of the legislatures, and this evil became grad-
ually more frequent and less disguised. Even during the
war the most distinguished men gradually left congress,
because they found in their several states a field of action
in which they could accomplish more, and one in most in-
stances much more congenial to their tastes. Now they
either sought to retire entirely to private life, or they were
condemned to see their influence in the legislatures grad-
ually wane. Less remarkable men, who knew little of
the meaning of the real patriotism which had actuated the
leaders of the Revolution, by degrees assumed command
of the helm. Confidence in the virtue of the people and
denunciation of the slightest attempts to strengthen the
power of the confederacy were the masks behind which
the most egotistic ends were concealed. But it was soon
the adoption of the constitution of 1788." See also Story, Comm., I.,
§ 249.
1
Story, Comm., I., § 254.
Washington writes to Jay: "Requisitions are actually little better
than a jest or a by-word throughout the land. If you tell the legisla
tures they have violated the treaty of peace and invaded the prerogatives
of the confederacy, they will laugh in your face." Marshall, Life of
Wash., II., p. 108. Justice Story also says: "The requisitions of con-
gress were openly derided.”
3 Trescot, Dipl. Hist., p. 12.
40
STATE SOVEREIGNTY AND SLAVERY.
considered scarcely worth while to make use of any mask,
no matter how transparent. The acquisitions of the war
were looked upon as so much booty, of which each state
endeavored to secure the lion's share, without the least re-
gard for the well-being or honor of the whole. In several
instances, those who were willing to sell even the honor of
their own state showed a bolder front and grew noisier in
the hope of increasing their own personal share of the
booty and of seeing it turned as soon as possible into
jingling gold.¹
Congress was destitute of even the necessary pecuniary
means of meeting its most urgent obligations.2 The
English forces were still in New York when congress was
compelled, by a handful of mutinous recruits, to remove
from Philadelphia to Princeton, because it was not able to
keep the repeated promises it had made to the troops. It
was due to Washington's influence alone that the whole
army did not refuse to lay down their arms and dissolve, un-
til justice was done them. The distress grew greater every
year, and threatened daily to induce more serious com-
plications. The foreign debt was maturing, and congress
was unable to meet the interest upon it, to say nothing of
the payment of the principal. All efforts to prevail on
the states to guaranty the general government a secure
and adequate source of income were without effect. They
"Public faith and public force were equally out of the question, for
as it respected either authority or resources, the corporation of a col-
lege or a missionary society were greater potentates than congress.
Our federal government had not merely fallen into imbecility and of
course into contempt, but the oligarchical factions in the large states had
actually made great advances in the usurpation of its powers. The
king of New York levied imposts on Jersey and Connecticut; and the
nobles of Virginia bore with impatience their tributary dependence on
Baltimore and Philadelphia." Fisher Ames, Works, II., p. 370.
2 "The government of a great nation had barely revenue enough to
buy stationery for its clerks or to pay the salary of the doorkeeper."
Fisher Ames, 1. c.
AGITATION FOR REPUDIATION.
41
held fast to the policy of requisitions and even considered
it a favor when they paid the least attention to such as
were made upon them.¹ The evidences of indebtedness
of the home loan sank, in consequence, to about one-tenth
of their nominal value.²
The pecuniary condition of the individual states was still
worse, for here there was not only no possibility of pay-
ment, but the disposition to pay became weaker every day.
And even when existing legislatures could be reproached
with nothing on this score, it was so uncertain what might
be expected from future ones that the state scrip could be
negotiated only at an oppressive premium. And this be-
came continually worse, for the number of those who aimed
at liquidating their debts by a dishonorable exercise of
the legislative power constantly increased, and in many of
the states it became more uncertain every day whether
they would not find a majority in the legislature.
3
"Public confidence was shaken to such an extent in con-
sequence, that even private individuals of undoubted credit
were obliged to pay a discount of from thirty to fifty per
¹ Hamilton remarked in February, 1787, in the New York legislature,
that in the preceding five years New Hampshire, North Carolina, South
Carolina, and Georgia had contributed nothing; Connecticut and Dela-
ware about a third of their levy; Massachusetts, Rhode Island, and Mary-
laud about one-half; Viginia, three-fifths; Pennsylvania, almost her entire
quota; and New York more than her quota. But it was New York's
headstrong opposition that defeated the effort made to give congress, for
twenty-five years, the right to levy a tax of five per cent. on all spirit-
uous liquors and some other articles, and to increase the tax on all
other imported goods. Marshall says in relation to this: "New York
had given her final veto to the impost system, and in doing so had vir-
tually decreed the dissolution of the existing government." Life of
Wash., II., p. 123.
2 It should not be forgotten, however, that congress had, some years
before, fixed the relation of the continental paper money to specie at
40: 1. See an interesting account of the depreciation of the continental
money in 1779 and 1780 in Kapp's Leben Kalb's, pp. 169, 170.
³ Life of J. Adams, II., p. 131.
42
STATE SOVEREIGNTY AND SLAVERY.
cent. on their notes." Business was completely prostrated.
"There was no market, especially for real estate, and sales
for cash could be made, when at all, only at a great sacri-
fice." A sullen resignation began to take possession of
the public mind. People despaired of bringing about a bet-
ter state of things through economy and labor. Wild fancies
in the garb of radical reform theories, tending to the over-
throw of all law and order, gradually usurped the place of
the sober business habits which at all other periods have
distinguished the American people.
Under such circumstances, it can excite no surprise that
the exclusive and particularistic tendencies of the time be-
gan to assume a coarser form of development When the
confidence of man in man was undermined, and the sense
of justice of whole classes of society so dimmed that they
openly sought to escape their own embarrassments by the
violent ruin of their neighbors, it could not be expected
that the policy of the states in their relation with one
another should be guided by healthy politico-economical
ideas, by great unselfishness, or by high moral principle.
Each state had the exclusive right to regulate its com-
merce, and each state, most ungenerously and most selfish-
ly, availed itself, to the utmost limit, of this right. In the
regulation of commerce, regard was had only to self inter-
est, and a policy was frequently followed, the aim of which
was to obtain an advantage directly opposed to the welfare
of the neighboring states. This gave occasion to continual
vexations and petty jealousies. The number and magni-
tude of real and imagined grievances grew on every side,
so that the mutual prejudices of the states shot deeper roots
and their animosity became yet more embittered, while
as a consequence the ruin of their commerce was com-
pleted.
The reaction which this internal dissension had on the
relations of the Union to the European powers was very
perceptible. The political emancipation of the United
IMPOTENCE OF CONGRESS.
43
States was established by the war; their economic emanci-
pation was only a formal one. In this respect they re-
mained, for a great many years more, in colonial depen-
dence. The only essential change made in the situation
served merely to confirm anew Franklin's saying, that "not
England, but Europe" was the mother country of America.
The advantage, however, which might have been reaped
from this change was scarcely turned to account. The
United States had of course the right to enter into com-
mercial relations with such of the European powers as
might offer them the best terms; but this right was des-
tined to remain completely unproductive of profit, as long
as these powers did not consider it their interest to enter
into commercial treaties with them. And as, by reason of
the powerlessness of congress and the little reliance that
could be placed on the state legislatures, there could be no
guaranty that the terms of any treaty would be observed,
trans-Atlantic nations were little inclined to bind them-
selves to anything.¹ England had already experienced how
little reliance was to be placed on the promises of congress.
The terms of the treaty of peace were frequently violated
by the Americans, as Jay, the then secretary of foreign af
fairs, frankly avowed. But they were satisfied with making
this avowal, for the urgent recommendations of congress to
merce:
66
.. I have been
¹ The Duke of Dorset writes on the 26th of March, 1785, to the Amer-
ican commissioners who were endeavoring to negotiate a treaty of com-
instructed to learn from you,
gentlemen, what is the real nature of the powers with which you are
invested, whether you are merely commissioned by congress, or whether
you have received separate powers from the respective states.
The apparent determination of the respective states to regulate their own
separate interests renders it absolutely necessary, towards forming a
permanent system of commerce, that my court should be informed how
far the commissioners can be duly authorized to enter into any engage-
ments with Great Britain, which it may not be in the power of any one
of the states to render totally useless and inefficient." Diplomatic Cor-
respondence, 1783-1789, II., p. 297. Compare Marshall, Life of Wash.,
II., pp., 96, 97. Pitkin, History of the U. S., II., pp. 189, 190.
44
STATE SOVEREIGNTY AND SLAVERY.
the states to henceforth make the observance of the treaty an
object of their earnest solicitude, were words spoken to the
wind. England, therefore, thought herself justified in not
performing her part of the contract. She refused to vacate the
western posts; and the Indians, under the protection of her
troops, and partly because urged to it by England, carried
on an atrocious border warfare against American settlers.¹
The complaints consequent upon the distress and misery
growing out of this lamentable absence of government
continued to become louder and more general. Congress
had to use all its remaining resources and energy in order
to meet the daily demands upon it. Complete ruin had
been once avoided only because Holland happened to be in
a condition to make another small loan. But this could
afford a respite of only a few months more.
Colonel Humphries wrote to Washington that the wheels
of the political machine could with difficulty continue to
move. And, indeed, a short time after they came to "an
awful stand."2 The United States, which had already
¹ Most American writers consider it a settled fact that England was
the first to break the terms of the treaty. It must be granted, also, that
Jefferson could claim with a certain degree of truth, in his communica-
tion of the 29th of May, 1792, to the English ambassador, Hammond,
that congress was bound only to recommend the states to deport them-
selves towards their English creditors and towards the loyalists in the
manner desired by England. But the absolute want of power of the
government of the Union had given so good a pretext to England to fail
in its engagements and congress was so directly compelled to acknowl-
edge its powerlessness over the "sovereign" states, that neither England
nor any other country would be likely to be induced to undertake any
new engagement and receive as an equivalent new recommendations of
congress to the states.
2 "The delinquencies of the states have, step by step, matured them-
selves to an extreme which has at length arrested all the wheels of the
national government and brought them to an awful stand. Congress at
this time scarcely possesses the means of keeping up the forms of ad-
ministration till the states can have time to agree upon a more substantial
substitute for the present shadow of a federal government." Federalist,
No. XV.
SHAY'S REBELLion.
45
dreamed themselves to be the redeemers of the world from
political slavery, were, both at home and abroad, an object of
compassion, of scorn and contempt.¹ This was known to
all; no one ventured to deny it; but the legislatures re-
mained obdurate. They have a fatal disinclination to de-
spoil themselves of the smallest attribute of independent
or sovereign states, wrote 'colonel Humphries, in substance,
to Washington on the 20th of January, 1787. It was
necessary that their own existence should be in jeopardy,
before they would even reluctantly acknowledge that there
was no salvation for them except in strengthening the
government of the Union.
In Massachusetts were witnessed the first commotions
which showed beyond a doubt that society itself was al-
ready completely undermined and that a radical political
reform and the preservation of social order were well-nigh
identical questions. The malcontents who either openly
or secretly sided with Shay were equal in number to the
friends of the state government, and their ultimate object
was none other than the repudiation of public and private
debts and a re-distribution of property. The greatest
evil of all was that it was long doubtful whether the legis-
lature would rouse itself to energetic action, or whether
that part of it which was in secret sympathy with the
rebels would obtain the upper hand.
2
The news of the outbreak of these disorders created a
very profound impression everywhere. The old leaders of
the Revolution felt that the time had at last come when
the question of the "to be" or the "not to be" of the
nation must be decided. The spectre of civil war rose up
¹Washington writes to Colonel Lee: "To be more exposed in the eyes
of the world and more contemptible than we already are, is hardly
possible." See also Works of Jefferson, I., pp. 509, 518, 532; II., pp.
193, 194.
2
Compare Curtis, Hist. of the Const., I., p. 269; Sparks, Wash., IX.,
p. 207; Marshall, Wash., II., p. 107; Rives, Madison, II., p. 175.
46
STATE SOVEREIGNTY AND SLAVERY.
in a threatening attitude before every eye.¹ Colonel
Humphries implored Washington not to remain neutral if
it should break out. And Washington himself was far
from considering these fears as mere phantoms. He wrote
to General Knox: "There are combustibles in every state.
to which a spark might set fire." And this was the view
that obtained everywhere. "It is, indeed, difficult to over-
charge any picture of the gloom and apprehensions which
then pervaded the public councils as well as the private
meditations of the ablest men of the country."
1" Our discontents were fermenting into civil war." Fisher Ames,
Works, II., p. 370.
* Marshall, Life of Wash., II., p. 119.
Story, Comm., I., § 271. A certain Smith, who said of himself: "I
am a plain man and get my living by the plow," described the rebellion
in the following words, in the Massachusetts convention: "There was
a black cloud that arose in the East last winter, and spread over the
West.
I mean, sir, the county of Bristol; the cloud rose
there, and burst upon us, and produced a dreadful effect. It brought on
a state of anarchy, and that led to tyranny. I say it brought anarchy.
People that used to live peaceably and were before good neighbors, got
distracted and took up arms against government. . . . I am going, Mr.
President, to show you and my brother farmers what were the effects
of anarchy, that you may see the reasons why I wish for good govern-
ment. People, I say, took up arms; and then if you went to speak
to them, you had the musket of death presented to your breast. They
would rob you of your property, threaten to burn your houses; oblige
you to be on your guard night and day; alarm spread from town to town;
families were broken up; the tender mother would cry: 'Oh, my son
is among them, what shall I do for my child? Some were taken captive;
children taken out of their schools and carried away. Then we should
hear of an action, and the poor prisoners were set in front to be killed
by their own friends. How dreadful, how distressing, was this! Our
distress was so great that we should have been glad to snatch at any-
thing that looked like a government. Had any one that was able to pro-
tect us come and set up his standard, we should all have flocked to it,
even if it had been a monarch, and that monarch might have proved a
tyrant. So that you see that anarchy leads to tyranny; and better to
have one tyrant than so many at once." Elliott, Deb., II., pp. 102, 103.
Jameson, The Constitutional Convention, p. 41, says: "If they did not
desire, within the borders of each state, to see a repetition of the rebel-
THE ANNAPOLIS CONVENTION.
47
It was owing to this general feeling that a desperate
crisis had been reached, that the report of the convention
at Annapolis did not fall on deaf ears. This convention.
met in September, 1786, at the invitation of the legisla-
ture of Virginia, "to consider how far a uniform system
in their commercial relations" might "be necessary to
their common interests." But as only five states¹ were
represented, and the commissioners were soon satisfied
that their powers were not such as the critical condition of
the country demanded, they contented themselves with
drawing up a report which was laid before congress and
the legislatures of the several states. The commissioners
therein recommended the calling of a general convention
to meet at Philadelphia, on the second day in May next,
to take into consideration the situation of the United
States; to devise such further provisions as shall to them
seem necessary to render the constitution of the federal
government adequate to the exigencies of the Union; and
to report such an act for that purpose to the United States
in congress assembled, as, when agreed to by them, and
afterwards confirmed by the legislatures of every state,
will effectually provide for the same."
66
This report induced New York to instruct its delegates
to make a formal proposition that congress should recom-
mend to the states the calling of a general convention.2 Om
the 21st of February, 1787, this proposition was accepted
and the recommendation made which had been advised by
the Annapolis convention.
The supporters of a strong government now acted with
lion kindled by Shay in Massachusetts, ending, perhaps, in a general
civil war, they must substitute for the rotten structure of the confedera-
tion a constitution which would confirm, and not undermine and break
up, their actual union." See Life of J. Adams, II., p. 131.
¹ New York, New Jersey, Pennsylvania, Delaware and Virginia.
'The proposition referred to received a majority of only one vote in
the New York senate. Marshall, Life of Wash., II., p. 123.
48
STATE SOVEREIGNTY AND SLAVERY.
redoubled energy, for it was necessary not only to induce
all the legislatures to send representatives to the conven-
tion, but to cause the choice of delegates to fall upon the
most distinguished men in the country, that their very
names might suffice to keep the party of anarchy within
bounds.
In the first place, it was necessary to secure Washington,
for he held a place in the hearts of the people, such as no
other of his great co-laborers in the work of independence
occupied, and such as no other can occupy again. To seek
in Washington's breast any thought but that of the wel-
fare of his country would have been, at the time, a species
of high treason and an unpardonable offense against faith
in human nature. It was reserved for the demagogues of
the succeeding decade to defile even his name with the
most disgusting drivel. Washington yet invested every-
thing he touched with a kind of sacredness. If Washing-
ton was wanting, the best man, the people's man, was want-
ing also; but on the other hand, if even his co-operation
turned out to be fruitless, the best card in the game was
played in vain and the game itself must be given up as
lost. Washington knew this, as did also all those who un-
derstood the significance of the moment. It is therefore
necessary to a correct understanding of the condition of
affairs to remember that Washington at first absolutely
declined the nomination, and accepted it at last, although
in so doing he was compelled not only to do the greatest
violence to his personal wishes, but to disregard the counsel
which came to him from persons whose advice was worth
considering and which was based on important political
grounds. Colonel Humphries and general Knox strenu-
ously opposed it, because they feared, as they said, that
things must grow worse before they could grow better.
Washington would doubtless have followed their advice
were he not fully convinced, after mature consideration,
THE PHILADELPHIA CONVENTION.
49
that this was indeed "the last dying essay" to make the
continued existence of the Union possible.²
The delegates began to meet at Philadelphia on the ap-
pointed day; but it was the 25th of May before a majority
of the states were represented. But although there reigned
here again the careless spirit which prevailed as to all mat-
ters pertaining to the government of the confederation, it
must not be inferred therefrom that the impending trans-
actions were looked upon with indifference.
One needs only to read the list of names of the delegates,
to be convinced that people everywhere were penetrated
with the gravity of the occasion and the times. If there
was any exit from the labyrinth of conflicting interests and
views, this meeting must certainly find it; for it was un-
questionably made up of the best men in the Union, of the
most experienced, patriotic and intelligent.
The effect on the one hand was to inspire courage and
hope in the breasts of even the most disheartened, but on
the other, this very circumstance served painfully to in-
tensify the alarming doubts for the country's future; for
if this convention should dissolve without having accom-
plished any result, it seemed as if nothing remained but to
face the approaching chaos with the gloom of resignation.³
It was fortunate that this feeling was strongest among the
members of the convention; for it caused them to realize
the immense responsibility which weighed upon their
shoulders and brought it home to their consciousness with
such force, that a majority of them saw clearly that their
only alternative was mutual concession or general ruin.*
1
¹ See the letter in Marshall, Life of Wash., II., p. 114.
2 "The idea of dismemberment had recently made its appearance in
the newspapers." Madison's Introduction to the Debates in the Federal
Convention of 1787, Elliott, V., p. 120.
3 See Elliott, Deb., V., pp. 553, 557.
* Mason gave strong expression to this conviction on the 5th of July:
"It could not be more inconvenient for any gentleman to remain absent
4
50
STATE SOVEREIGNTY AND SLAVERY.
It was resolved, therefore, that its transactions should be
carried on with closed doors and that the delegates should
be required to preserve the strictest silence concerning
what transpired, in order that the questions in controversy
might not be dragged immediately before the forum of an
excited and angry people and all prospect of an under-
standing thus destroyed from the very beginning. This
resolution was soon justified by the course which the pro-
ceedings took.
not
It was plain from the first days of the convention that
a goodly number of the delegates-and among them many
of the most distinguished men-would not limit
themselves to a literal interpretation of their powers.
Their instructions authorized them only to propose amend-
ments to the existing articles of confederation; but they
were satisfied that all such attempts could, at most, only
postpone the day of ruin and that the source of the evil
could be destroyed only by giving the constitution a na-
tional basis.
Well grounded as these convictions might be, justified
as the representatives were in not hesitating in their choice
between exceeding their powers and the salvation of their
country, the people's veto would doubtless have frustrated
their designs, if at that moment an opportunity had been
afforded to demagogues and the honest advocates of partic-
ularism to denounce them. When the constitution was
afterwards proposed to the people for adoption, the decision
hung upon a single hair. There can be no question to
which side the balance would have inclined if the calm ar-
guments of Dickinson and Luther Martin's fiery declama-
tion had reached the public ear at a time when the outline
of the constitution was not yet complete and the only al-
from his private affairs; but he would bury his bones in this city rather
than expose his country to the consequences of a dissolution of the con-
vention without anything being done." Elliott, Deb., V., p. 287. See
also Ibid, V., p. 552.
DISPUTE AND DISSENSION.
51
ternative did not yet lie between its unconditional accep-
tance and total rejection; but as the convention was yet in
session and so greatly divided, the worst was to be feared
at any moment. Two of the three New York delegates,
Lansing and Yates, left the convention while it was in the
midst of its labors and declared that their constituents
would never have sent delegates there, if they had dreamed
that any such projects were on foot.¹ And it repeatedly
seemed as if half of the deputies would follow their exam-
ple, and the convention dissolve without having accom-
plished its task. On two of the most important questions
the views of the delegates were diametrically opposed
and it was apparently impossible to mediate between
them. Complete helplessness threatened them, for every
attempt at compromise served only to make the gap
between them wider; and the supporters of the oppos-
ing views were always forced by the discussion into yet
more extreme positions, so that at last the signs of per-
sonal bitterness began to show themselves.
When finally, every prospect of an understanding seemed
to have disappeared, the white-haired Franklin arose and
proposed that henceforth the sessions should be opened
with prayer, for now there was no hope of help except
from heaven; the wit of man was exhausted! The hope
of ultimate success must have been small, indeed, when
such a proposition could be made by Franklin, strongly
inclined as he was to rationalism, a man who at heart was
averse to all religious demonstration and who, even in the
darkest hours of the war, had carried his head very high.
¹ Lansing declared on the 16th of June: "Had the legislature of the
state of New York apprehended that their powers would have been con-
strued to extend to the formation of a national government, to the ex-
tinguishment of their independency, no delegates would have appeared
here on the part of that state." Yates's Minutes, Elliott, Deb., I., p. 141.
See also letter from the Hon. Rob. Yates and the Hon. John Lansing,
Jun., to the governor of New York. Elliott, Deb., I., p. 480
2 Elliott, Deb., V., p. 254.
52
STATE SOVEREIGNTY AND SLAVERY.
Pinckney, with passionate emphasis, declared that South
Carolina would never accept a constitution which did
not afford proper protection to the interests of the slave-
holders;¹ and Gouverneur Morris, speaking of the demand
of the smaller states to have equal representation in con-
gress, exclaimed in a prophetic spirit: "This country
must be united. If persuasion does not unite it, the sword
will." The probable solution of these two controverted
questions seemed, through long weary weeks, to be given in
the ominous words of Gerry: "A secession would take
place . . . for some gentlemen seemed decided upon it.”
At last, Edmund Randolph, who had been one of the most
decided advocates of a thorough reform of the constitution
in the national sense, refused to sign the one which had
been drafted, because its adoption " would end in tyranny."
Nearly four months elapsed before the delegates could
agree upon a plan, of which they said to themselves, with
Hamilton, that it was not possible to hesitate between the
prospect of seeing good come from it and anarchy and
convulsion. On the 17th of September it was unanimous-
ly resolved that the plan should be adopted by the states
represented at the time, which was done. When the last
delegates were signing their names to the document, Frank-
lin remarked that he had frequently asked himself in the
course of the proceedings whether the sun pictured on the
back of the president's chair was an ascending or declin-
ing one; but now he had the satisfaction of knowing that
it was a rising, not a setting, sun.
This conviction proved ultimately to be correct; but for
the moment a firm confidence that success was certain
1 Elliott, Deb., V., p. 457.
2 Ibid, V., p. 276.
3
Ibid, V., p. 278.
4
Ibid, V., pp. 434, 491, 502, 552, 556. See also Edmund Randolph's
Letter to the Speaker of the House of Delegates, Virginia, Ibid, I., pp
482-491.
ADJOURNMENT.
53
bordered almost on temerity. Much was indeed gained
when the convention, with something approaching una-
nimity, could recommend the proposed constitution to the
people; but there yet remained difficulties to be overcome
equal at least to those which the convention had sur-
mounted.
The convention had, it is true,-unlike the articles of
confederation, which on all the more important questions
demanded unanimity,-declared that the consent of nine
states should give force to the new constitution, so far as
these nine states were concerned; but it was extremely
doubtful whether even this number could be won over to
it. In the convention itself, and up to the very last mo-
ment, it had been impossible to effect a reconciliation of
the opposing views. Franklin had purposely given his
motion an ambiguous meaning, in order that the final bal-
lot might have the semblance of entire harmony. This
might, for the first moment, have the advantage of
making a good impression upon the people. The next in-
stant, however, every one must have known that Mason,
Randolph, Gerry, and others had decidedly opposed the
project and refused it their signature; and then the ruse
might have an effect directly opposed to that which Frank-
lin had contemplated. There could be no doubt that the
dissenting delegates would endeavor to justify themselves
before the public and seek to win public opinion in their
favor. Besides, the little phalanx on whom the weight of
the battle with the prejudices of the people and with
theorizing fanatics and demagogues was to rest, was
hopelessly divided. The best names were, it is true,
subscribed to the constitution; but there was a good-
ly number of names which were not there and which stood
second only to the best. The consequence was that the
prestige which would have been gained for the proposed
constitution by actual unanimity, was lost. The success
of its advocates in the several states depended mainly on
54
STATE SOVEREIGNTY AND SLAVERY.
the grounds which could be advanced in its favor; but the
disinclination to follow the exposition and development of
these grounds attentively and calmly and to weigh the
arguments for it against the actual state of affairs, was
greater than even the most pusillanimous had feared.¹
The reason of this was not a change for the better in
the situation which had occurred in the meantime. Noth-
ing, indeed, had happened to make internal discord and dis-
tress greater than they had been or to demonstrate how well
justified was the vexatious and suspicious contempt with
which European powers regarded the republic. Every-
thing remained very nearly in statu quo. But this very
fact caused a radical change in the constitution to appear
so urgent, that the one proposed met with ardent support
at the eleventh hour from parties whom one might have
expected to see in the front rank of its opponents. For
instance, Randolph, who could not be induced on any ac-
count to subscribe to it in Philadelphia, was one of its
most powerful defendants in the Virginia convention, al-
though even there he frankly and energetically gave ex-
pression to his objections to it.2
The mass of the particularists combined to wage a most
acrimonious opposition,the moment the proposed constitu-
1 The reproof given by Lee, of Westmoreland, to Patrick Henry, and
the warning he addressed him, might have applied equally to all the
speeches of the Anti-Federalists; "Instead of proceeding to invest-
igate the merits of the new plan of government, the worthy charac-
ter informed us of horrors which he felt, of apprehensions to his
mind, which made him tremblingly fearful of the fate of the common-
wealth. Mr. Chairman, was it proper to appeal to the fears of this house?
The question before us belongs to the judgment of this house. I trust
he is come to judge and not to alarm." Elliott, Deb., III., p. 42.
2 "As with me the only question has ever been between previous and
subsequent amendments [to the constitution], so I will express my
upprehensions that the postponement of this convention to so late a day
has extinguished the probability of the former without inevitable ruin
to the Union, and the Union is the anchor of our political salvation."
Elliott, Deb., III., p. 25.
FIGHT OF THE PARTICULARISTS.
55
tion was made public. All moderation, we might almost
say all reason, seemed to forsake them the instant they
saw that the strengthening of the central government and
the proportionate consolidation of the states were no long-
er a theme of stimulating discussion, but that the machin-
ery was already at work to effect the one and the other.
The most fanatical assumed the lead; men for whom no
weapon was too blunt or brutal so long as they could use
it. Their arguments bordered on the extremest absurdity
and their assumptions might have excited the loudest
merriment, were it not that the question was one of life or
death to the nation. All the bitter experience of the war,
and all that followed on its close, was denied and ridiculed
as an idle phantom. Out of the proposed constitution, on
the other hand, its most harmless provisions not excepted,
the same phantom was conjured up day after day; a vague,
indefinable something, to which a name understood by
everybody was applied, that of "consolidated government,"
which meant something horrible and to which all that
had hitherto been dear to Americans must fall a prey.
The same Patrick Henry who, at the outbreak of the
Revolution, declared with so much emphasis that he was
no longer a Virginian, but an American, asserted now
with equal emphasis that under the articles of confedera-
tion the people had enjoyed the greatest amount of secu-
rity and contentment, and that by the resolution to alter
the constitution this happy state of affairs had been dis-
turbed and the continuance of the union endangered.'
1 "I consider myself as the servant of the people of this commonwealth,
as a sentinel over their rights, liberty and happiness. I represent their
feelings when I say that they are exceedingly uneasy at being brought
from that state of full security, which they enjoyed, to the present delu-
sive appearance of things. A year ago, the minds of our citizens were
at perfect repose. Before the meeting of the late federal convention at
Philadelphia, a gencral peace and universal tranquillity prevailed in this
country, but since that period they are exceedingly uneasy and disqui-
56
STATE SOVEREIGNTY AND SLAVERY.
To obtain a victory over such opponents, was no easy
matter. In several of the states, and in the most import-
ant, the particularists constituted a majority in the conven-
tions which eventually had to decide on the adoption or
rejection of the constitution. The prospects of the Feder-
alists were, therefore, gloomy in the highest degree. It is
impossible, in fact, to discover more than one reason why
the latter did not in these states, immediately after the re-
sults of the elections were known or after the, first debates
on the subject, give up all further struggle as useless. The
nature of their weapons was not such as to inspire them.
with the hope of overcoming the opposing majority. They
fought with the understanding and the negative results of
experience. Under ordinary circumstances, these are cer-
tainly the strongest of all weapons. But the edge was
taken off them here, for the particularists had not come to
weigh, to examine and to judge, but to declaim and spread
alarm. There was no desire to be governed by the dictates
1
eted. When I wished for an appointment of this convention, my mind
was extremely agitated for the situation of public affairs. I conceived
the republic to be in extreme danger. If our situation be thus uneasy,
whence has arisen this federal jeopardy? It arises from this fatal sys-
tem; it arises from a proposal to change our government—a proposal
that goes to the utter annihilation of the most solemn engagements of the
states—a proposal of establishing nine states into a confederacy, to the
eventual exclusion of four states. It goes to the annihilation of those
solemn treaties we have formed with other nations." Elliott, Deb., III.,
p. 21. Pendleton sharply replied: "If the public mind was then [be-
fore the meeting of the federal convention] at ease, it did not result from
a conviction of being in a happy and easy situation; it must have been
an inactive, unaccountable stupor." Ibid., III., p. 36.
1 One instance will illustrate the degree of insipidity which declama-
tion had reached at the time. In the Massachusetts convention a cer-
tain Nason thus gave vent to his feelings: "And here, sir, I beg the
indulgence of this honorable body to permit me to make an apostrophe
to liberty. O Liberty! thou greatest good! thou fairest property! with
thee I wish to live, with thee I wish to die! Pardon me if I drop a tear
on the peril to which she is exposed; I cannot, sir, see the brightest of
jewels tarnished-a jewel worth ten thousand worlds; and shall we part
with it so soon? Oh, no!" Elliott, Deb., II., p. 133.
FEDERALIST TRIUMPH.
57
of reason, no desire to learn from experience at the expense
of the complete sovereignty of the states and of the theories
which people had become accustomed to invest with the
character of unimpeachable dogmas.
This assertion seems to be in conflict with the fact that
the constitution was finally adopted, although in several of
the conventions the particularists were in a majority. But
the question was not one of will: necessity it was that de-
cided it. It was this which prevented the Federalists from
ever losing courage entirely, and which ultimately won
over a sufficient number of the opposing majority. Madi-
son and several other members of the Virginia convention
say repeatedly, in their letters, that they were in the mi-
nority and they complain yet more frequently that the ma-
jority would not be persuaded. And yet they constantly
returned to the attack, because they were rightly¹ convinced
that necessity would in the end compel even Patrick Hen-
ry to acknowledge that some change in the constitution
was inevitable. But when this much was gained, it was to be
expected that at least some of the particularists would further
agree that, at that moment, there was no alternative but
to renounce the idea of making any change whatever and
leave things to take care of themselves, or to accept this
constitution unconditionally, good or bad as it might be.
This calculation of the Federalists turned out, on the
whole, to be right. Rhode Island, indeed, refused to call
a convention, and the convention of North Carolina dis
solved without giving its assent to the constitution,² al-
2
Elliott, Deb., III., p. 399 and passim.
By 184 to 84 votes. Elliott, Deb., IV., p. 251. The constitution was
not adopted by North Carolina until the end of 1789, or by Rhode Is
land until the middle of 1790. As an interesting instance of the length
to which American political doctrinarians of the period extending from
the time of the Missouri compromise to the outbreak of the civil war,
have gone, we may quote the assertion of Brownson (The American Rep.,
p. 288): “Hence, if nine states had ratified the constitution, and the
other four had stood out and refused to do it, which was within their
58
STATE SOVEREIGNTY AND SLAVERY.
3
2
though it had already been adopted by ten states, and the
confederation was in the meantime dissolved. In Massa-
chusetts, Virginia and New York, however, the reasons
adduced above decided the issue in favor of the Federalists,
spite of the fact that the scales wavered to the very last.¹
The struggle was severest in New York. But fortunate-
ly for the Federalist party, it had here its most distin-
guished advocate, Alexander Hamilton. For a time, how-
ever, it seemed as if the obstinacy of the anti-Federalists
would bid defiance to everything. Even when the news
came that the ninth state had ratified the constitution and
that the confederation was therefore dead, Smith and Lans-
ing declared that their counsels should by no means be
influenced by that fact. They felt that on account of the
geographical situation of the state, it was scarcely less im-
4
competency, they would not have been independent sovereign states,
outside of the Union, but territories under the Union." The facts that
the resolution of the convention made the constitution binding only
on those states that would ratify it, and that it never occurred to any
one to look upon North Carolina and Rhode Island as territories until
they should adopt the constitution, are of no consequence to him. The
proposition seems to him a logical conclusion of his general theory of
the relations of the states to the Union, and that is sufficient for him.
'The constitution was adopted in Massachusetts by 187 against 168
votes, in Virginia by 89 against 79, and in New York by 30 against 27.
2 When Hamilton was asked what the probable decision of the con-
vention would be, he answered: "God only knows: several votes have
been taken by which it appears that there are two to one against it
[the constitution]." After a pause he added: "Tell them the conven-
tion shall never rise until the constitution is adopted." J. C. Hamilton,
Hist. of the American Republic, III., pp. 522, 523. This work should be
read with great caution; but there is no internal evidence in the case
before us against the authenticity of this anecdote.
3 Jefferson, Hamilton's most determined opponent, bears him this
testimony: "Hamilton is really a colossus to the anti-Republican party;
without numbers he is a host in himself. In truth when he comes for-
ward there is nobody but yourself [Madison] that can meet him." Van
Buren, Political Parties, p. 124.
4 Elliott, Deb., II., pp. 324, 325.
POSITION OF NEW YORK.
59
portant to the Union that New York should be a part of it,
than it was to New York that she should be a part of the
Union. This redoubled their efforts to push the opposi-
tion to the extreme.¹ The territory of the Union would
be divided into two unequal parts without any geographi-
cal connection, unless New York became a part of it. And
the broad, as yet unsettled, land behind it, reaching to the
St. Lawrence and to the shores of Lake Ontario and Lake
Erie, as well as the great commercial artery of the Hudson,
inspired the state with a confidence in its importance and
its strength, elements of power in the great future as well
as in the present. True, people were always somewhat afraid
of a disruption of the Union, it mattered not how loud the
rodomontades that freedom should be sacrificed at no price.
But they considered themselves in duty bound to annex
their own conditions to their concurrence, and imagined
for a long time, that they would be not only justified in
forcing them upon the Union, but that they would have
the power to do so.
The idea of calling another general convention was much
discussed, both in the Philadelphia convention and later in
all the states. But even the more thoughtful particular-
ists did not attempt to bring this about, as it was plain
what effect such a step would produce. As all the more
important provisions of the constitution had been attacked
in the Philadelphia convention, and from the most oppo-
site points of view, it was certain that the same would
have been the case, though to a greater extent, in a general
convention, as it was now in the conventions of the several
states. The confusion would have been far worse, and the
discouraging feeling that the convention had proposed
to itself an impossible task in the highest sense of the
word, would soon have absorbed all minds, because the
constituents of every fraction would have expected or de-
1 Elliott, Deb., II., p. 211.
60
STATE SOVEREIGNTY AND SLAVERY.
manded the complete adoption of their own views and
principles.¹ The only effect would have been to increase
the evil which they were seeking to remove, perhaps to
render it incurable by familiarizing themselves gradually
with the thought that it was incurable.
These truths were so obvious that the idea of a second
general convention was soon surrendered, and, as already
mentioned, another means of escape proposed. In Vir-
ginia the particularists had already declared themselves
ready to accept the constitution, provided certain amend-
ments to it were adopted beforehand. This had called
forth a very exhaustive debate. As the Federalists in-
controvertibly proved, nothing would have been gained
thereby, so that a rejection of the constitution was,
under such circumstances, to be preferred to its adoption.2
In New York the same views obtained. The proposition
was altered, and it was provided that the constitution
should be ratified with the reservation that, in case the
other states could not afterwards be won over to the amend-
ments to be proposed, those which had approved it might
leave the Union. It seemed that this was as far as the
particularists could be induced to go. Hamilton's powers
were almost exhausted. In a moment of despondency he
wrote to Madison and asked him whether, at last, it was
not best they should agree to the hard conditions. Madi-
son answered that such a ratification would, in reality, not
make New York a member of the Union, and that the
state therefore could not be admitted on such conditions.³
¹ South Carolina proposed 5 amendments to the constitution, Massa-
chusetts 9, New Hampshire 12, Virginia 20, Rhode Island 21, North-
Carolina 26, New York 33. Madison to Stevenson, Nov. 27, 1830.
Elliott, Deb., IV., p. 614. These figures show what a second general
convention might have expected. See also Washington's Writings,
IX., p. 319.
2 Elliott, Deb., III., pp. 25, 33, 93, 174, 194, 303, 304, 587, 591, 627-
629, 630, 632, 643, 647, 649.
"I am sorry that your situation obliges you to listen to propositions
HAMILTON'S WORK.
61
Hamilton then bestirred himself once more, and return-
ed to the conflict resolved to be satisfied with nothing
short of a complete victory. He recognized even more
than Madison the whole significance of a conditional rati-
fication. The constitution would have lost thereby the
character of a fundamental law under which the states
placed themselves. But the leading idea of the Federalists
in Philadelphia had been to make a binding law. To yield
to the demands of the particularists would have been to
concede that they considered the constitution a mere
protocol, an agreement dependent upon certain definite
conditions. This confession involved a principle by which
the particularists could demonstrate at any time that they
had the right to dissolve the contract, if those things were
not done which they might afterwards consider to be further
tacit conditions or provisions, arising out of given circum-
stances. Had they succeeded in this, they would have won
a complete victory. Nothing remained to the Federalists
but to allow them to choose between unconditional adoption
and unconditional rejection. This was the alternative pre-
sented to the particularists. And when it became clear
that this was the only alternative, it was found that there
was enough discretion and patriotism left to cause a suffi-
cient number to prefer the possible evils of the con-
of the nature you describe. My opinion is that a reservation of the
right to withdraw if amendments be not decided upon, under the
forms of the constitution, within a certain time, is a conditional ratifi-
cation;
that it does not make New York a member of the new Union,
and consequently that she could not be received on that plan. Compacts
must be reciprocal; this principle would not in such a case be preserved.
The constitution requires an adoption in toto and forever. It has been
so adopted by the other states. An adoption for a limited time would
be as defective as an adoption of some articles only. In short, any
condition whatever must vitiate the ratification.
The idea of
reserving a right to withdraw was started at Richmond, and considered
as a conditional ratification, which was itself abandoned as worse than a
rejection." Hamilton's Works, I., p. 465.
62
STATE SOVEREIGNTY AND SLAVERY.
stitution to leaving the Union, as there was found in the
other states a sufficient number who preferred these same
possible evils to the certain dangers attendant on a second
general convention, or the certain ruin consequent upon a
continuation of the old confederation.
When we consider the situation of the thirteen colonies
and their relations to one another; when we follow the de-
velopment which, in consequence of this situation and
these relations, their political affairs and political theories
received during the revolutionary war and the following
years; and endeavor to express the result in a few words, we
are compelled to say with justice Story, that we ought to
wonder, not at the obstinacy of the struggle of 1787 and
1788, but at the fact that, despite everything, the constitu-
tion was finally adopted.' The simple explanation of this
is that it was a struggle for existence, a struggle for the
existence of the United States;2 and that after the dissolu-
tion of the Philadelphia convention it could be saved³ only
by the adoption of the proposed constitution, no matter
how well grounded the objections that might be made to it.
The masses of the American people in their vanity and
too great self-appreciation are fond of forgetting the dread-
ful struggle of 1787 and 1788, or of employing it only as a
name for the "divine inspiration" which guided and en-
¹ Comm., I., § 287.
2 Washington writes to colonel Lee: "In our endeavors to establish
a new general government, the contest, nationally considered, seems not
to have been so much for glory as existence. It was for a long time
doubtful whether we were to survive as an independent republic, or de-
cline from our federal dignity into insignificant and wretched fragments
of empire." Marshall, Life of Wash., II., p. 130.
3 "I will only say as a further opinion, founded on the maturest de-
liberation, that there is no alternative, no hope of alteration, no inter-
mediate resting place, between the adoption of this [constitution], and a
recurrence to an unqualified state of anarchy with all its deplorable
consequences." Washington, Feb. 7, 1788. Writings, IX., p. 319.
THE INSPIRATION THEORY.
63
lightened the "fathers" at Philadelphia.¹ In Europe this
view of the case has been generally accepted as correct.
Much eloquence has been lavished in laudation of the “is-
olated fact in history," that thirteen states, loosely bound
together as one confederate body, did not see in the sword
the only engine to weld together their political machinery,
which was falling to pieces, but met in peaceful consulta-
tion and agreed to transform a confederacy of states into a
federal state of masterly construction. In America this is
an inexhaustible theme for Fourth-of-July orations, and in
Europe it is only too frequently used as a text for doctrin-
arian politico-moral discussions. With history, however,
it has nothing to do. The historical fact is that "the
constitution had been extorted from the grinding necessity
of a reluctant people."
<<
¹ This is not a mere idle phrase; it is one of the standing formulas in
which the self-complacency and pride of a people who esteem themselves
special objects of the care of the Ruler of the Universe, find expression
We reproduce one illustration of this, out of a whole multitude: In the
North American Review (1862, I., p. 160) we read:
Such a govern-
ment we regard as more than the expression of calm wisdom and lofty
patriotism. It has its distinctively providential element. It was God's
saving gift to a distracted and imperiled people. It was his creative
fiat over a weltering chaos: 'Let a nation be born in a day.'”
64
STATE SOVEREIGNTY AND SLAVERY.
CHAPTER II.
THE WORSHIP OF THE CONSTITUTION, AND ITS REAL CHAR-
ACTER.
•
"Mr. Cobb the other night said it [the government of the
Union] had proven a failure. A failure in what?
Why, we are the admiration of the civilized world, and
present the brightest hopes of mankind.' No, there is no
failure of this government yet." In these words Alexan-
der H. Stephens expressed his judgment concerning the
constitution and the political history of the Union, on the
eve of the four years' civil war. Four weeks later he accept-
ed the position of vice-president of the Confederate States,
a position which he retained until the close of the war. A
few years after the restoration of the Union, he published
a comprehensive treatise, which is at once an emphatic
reiteration and explication of that declaration, and a justi-
fication of the rebellion, as well as of his personal parti-
cipation in it.
3
¹ By "government" is not here meant the administration of the time,
but the whole system of government created and established by the
constitution.
2 Governor Hamilton, of South Carolina, one of the most distinguished
incitors of the nullification movement, said, after his nomination as
president of the convention of 1832, which issued the celebrated nulli-
fication ordinance: "Our present circumstances are a commentary on
the safety and beauty of our constitution. In other countries we should
render ourselves obnoxious to the charge of an attempt to disturb and
change the very elements of government. Here all goes on with tran-
quillity, and with the harmony of the spheres themselves." Niles' Reg-
ister, XLIII., p. 219.
A Constitutional View of the late War between the States. 2 vols.
CHANGE IN PARTY TACTICS.
65
Only a thorough study of American history can solve
the enigma how a man of so much acuteness as a thinker,
and of so much intelligence, one who has spent his whole
life in the study of political questions, could honestly say
that his views and his actions were in complete harmony.
Stephens is not an isolated example of this phenomenon.
The whole American people, until late in the civil war,
were entangled in the error which lies in this contradiction,
and according to all appearances it will be a long time be-
fore they will free themselves from it entirely.
It devolved upon the Federalists, to whose efforts it is
due that a constitution with the capacity to live was sub-
stituted for the articles of confederation, to put this consti-
tution in operation. Scarcely had they so far accomplished
this as to make the people fully conscious of the good re-
sults of the change, when the government passed out of their
hands into those of their opponents, to continue in them
unchallenged for many years. The anti-Federalists had
changed their mode of warfare in a degree proportionate to
the change for the better which had taken place in every
department of practical life. With increasing vehemence
they accused the Federalists of having done violence to
the constitution in order to accomplish their own ruinous
designs. But their unmeasured denunciation of the consti-
tution itself became gradually less frequent and less severe.
It was not long before they directly accused the Federal-
ists of traitorous attacks upon it. On the other hand, all
the horrible shapes which they had conjured up during the
debates of 1787 and 1788 had now disappeared. And
even before they came into power they had ceased to find
fault with the constitution. It became their chosen stand-
ard in the battle they were waging with all the energy of
fanaticism against their opponents.
It is possible for us to trace the earliest beginnings of
the worship of the constitution. At first it was looked
upon as the best possible constitution for the United States.
5
66
STATE SOVEREIGNTY AND SLAVERY.
By degrees it came to be universally considered as a mas-
terpiece, applicable to every country. This was preached
with so much unanimity and honest conviction, although
internal quarrels were raging all the time, that the prop-
agandism of the new faith reached even to Europe. In
the United States this conviction grows steadily stronger,
although parties not only differ concerning the advisability
of certain practical provisions of the constitution, but
have been from the first diametrically opposed to one an-
other in their understanding of the principles on which it
is founded. From the close of the century, that is, from
the time when the opposing principles assumed a fixed
form, the constitution has been the political Bible of the
people. The child sucked in with his mother's milk the
conviction that this was the light in which he should re-
gard it. The paternal sic credo, stat fides mea pro ratione,
was a guaranty for the rightfulness of this conviction.
What should be deduced from the constitution, in the fu-
ture, was quite another matter. The wilder the war of
tongues, the louder the cry of the constitution was raised on
every side, and the more energetically did every one swear
not to deviate from it, even by a hair's breadth. For four
years the people of the United States tore one another to
pieces in the most frightful civil war recorded in history,
each camp thinking, in the best of faith, that it was fol-
lowing the standard of the constitution. The time will
come when it will be difficult to conceive how even Europe,
which it did not concern, could, in view of the seventy-
five years of contest over it, have so universally and so em-
phatically united in the non-critical laudations the consti-
tution has received.
To rightly estimate the degree of unconditional admira-
tion of which it was the object, and to what an extent this
admiration influenced the political thought of the country,
it must be remembered that it was by no means confined to
the great masses of the people. The constitution has found
LACK OF CRITICISM.
67
many learned and intelligent commentators; but they have
all considered its excellence to be an undoubted and univer-
sally admitted fact. What should have been only the re-
sult of their investigation, they made the premises of their
arguments. And these arguments have been confined to the
interpretation and to the bearings of the separate provisions
of the constitution. Much ingenuity has been spent in show-
ing how its several provisions might be harmonized with
one another and with the peculiar ideas of their authors on
the nature and purpose of the general government. There
has been no attempt as yet to consider the several provi-
sions as parts of a whole, or to subject the whole to an objec-
tive critical examination in the light of history. The abler
commentators, like Story, have now and then been forced
upon conclusions from which it is but one step to such a
course of treatment. But they have never carried out
their chain of thought to that extent. They always break
off at the decisive point, and proceed to the next question.¹
1
¹ Stili less has been accomplished in this direction by the strikingly
small number of European writers who have treated of the United States.
They content themselves as a rule with showing the excellence of the
several constitutional provisions in an intelligent manner, and in a gen-
eral way. Even De Tocqueville's much-esteemed book is of this char-
acter, so far as it treats of the constitution at all. Through the whole
work there runs a vein of doctrinarianism and vagueness which is ex-
ceedingly misleading to superficial minds. The whole treatise proves
that De Tocqueville had never thoroughly studied American history;
and hence it is that it bears so very different a character from his mas-
terly works on French history. It is apparent from every chapter of his
book, that he built essentially upon what he saw, or thought he saw,
during his comparatively short stay in America, and especially upon
what Americans told him. Spite of this, however, his extraordinary
endowments permitted him to cast many a profound glance into Amer-
ican affairs and into the spirit of the people. But history has shown
that many of the most important points escaped him altogether, and
that in others his judgment was exceedingly erroneous. His work
should therefore be perused with great caution. It is of no importance
that the Americans are lavish in praise of it. It is cleverly written, and
his judgment is on the whole so favorable, that it must seduce Ameri-
68
STATE SOVEREIGNTY AND SLAVERY.
This is not the place to go into a thorough investigation
of the causes which led all classes of the people to a ven-
eration for the constitution, that bore at once the character
of an esteem which did much good and of a most ruinous
idolatry in which the idol worshiped was themselves. We
must confine ourselves here to two points which contributed
largely to this effect, for the reason that they seem necessa-
ry to the understanding of what follows.
The origin of the constitution and the first years in which
it did so much for the good of the people by producing a
radical change in the unhappy situation of affairs after the
war, were contemporaneous with the adoption or invention
of political or party principles. The political reasoning
of the school which gave tone to the time started out with
the assumption that the individual was a monad floating
through the universe and governed by independent laws
inherent in himself, not a member of a given society into
which he was born. The consequence was, that certain
principles resulting from this mode of reasoning were sub-
stituted for actual facts, as a foundation for the social and
economic condition which it was sought to bring about. As
the basis of these principles was discovered in human na-
ture, they were necessarily declared to be unchangeable and
applicable to all times and to every people. Their tendency
therefore was, on the one hand, to destroy the existing state
of things; for any title not in harmony with these principles
was a fraud and a usurpation and was denounced as a weak
and damnable species of commerce with the injustice of a
thousand years. But on the other hand, to adopt this phi-
losophy would be to declare stagnation the natural condi-
cans so long as they have so little of objectivity in judging themselves.
But even among them other and different views are sometimes heard.
Thus The Nation, a very ably edited weekly journal, says, Oct. 17, 1872,
p. 251, in an article on Francis Lieber: "He could not, and would not
if he could, write a brilliant, superficial [!] and attractive work like De
Tocqueville's Democracy in America.'”
CANONIZING THE CONSTITUTION.
69
tion of all social and political order. If the principles were
to be unchangeable, incapable of refinement and progress,
there would be no possibility of development, for principles
are only the quintessence of the aggregate intellectual and
moral knowledge of a people or of the age, reduced to the
simplest formula.
We have already seen that even in America, at the out-
break of the Revolution, the soil was prepared for a sys-
tem of politics based on absolute principles. The French
Revolution caused the seed to germinate here more rapidly
and luxuriantly than in any other part of the western civil-
ized world. Men played now with systems as they had
formerly with foot balls, said Chauncey Goodrich.' The
desire to carry out these principles immediately with
all their practical consequences-so far as such a desire
was observable in the United States at all—was soon given
up in many respects. But for this very reason the prin-
ciples became more universal and assumed the shape of
theoretical truths. They became the creed of the public
which every lover of freedom, and especially every repub-
lican, was obliged to profess. Hence it was obvious that
the "fathers" must have been either their earliest advocates
or their originators. That a great many of the founders
of the republic, partly through their own experience and
partly in consequence of the excesses of the French Revo-
lution, recognized the deceptive and dangerous vagueness
of these political dogmas, had no effect on the a priori con-
victions of the masses of the people. Even the small mi-
nority of the more intelligent could not completely free
themselves from them.
But it did not stop here. The more the war of the Rev-
olution and the struggle to transform the Union so that it
might live, became things of the past, the thinner the long
line of able combatants in the internal and external strug-
1
¹ Gibbs, Wolcott, I., p. 130.
70
STATE SOVEREIGNTY AND SLAVERY.
gle for national existence grew, the more dazzling became
the light in which the people viewed that whole epoch and
its representatives. It mattered not how many or how
great the short-comings which sober criticism or blind par-
ty-spirit had discovered in all these personages-Washing-
ton to a certain extent excepted the "fathers" of the
republic were considered as an isolated historical phenom-
enon of purity of motive and political wisdom. But they
had embodied the sum total of their political thought and
political experience in the constitution. The latter was,
therefore, the culmination of the "storm and stress” period
of the young republic, and these absolute political princi-
ples were to be considered as its firmest foundation. Both
causes co-operated to engrave the constitution on the minds
of the people, and it gradually assumed there the character
of perfection.¹
The second element which contributed to lift the consti-
tution as a whole above the level of criticism is based on
deeper causes. Their effects have been farther reaching
and of longer duration.
It is impossible to even hastily turn over the pages of the
debates of congress without being struck by a very impor-
tant circumstance, to be found in the history of no other
constitutional state. Up to the year 1861, there were but
few important laws of a general character proposed which,
while under discussion, were not attacked as unconstitu-
tional by the minority. The arguments are scarcely ever
confined to the worth or worthlessness of the law itself. The
opposition in an extraordinarily large number of instances
starts out with the question of constitutionality. The ex-
pediency or inexpediency of the law is a secondary ques-
tion, and is touched upon only as a confirmation of that
first decisive objection.
1
Pomeroy (An Introduction to the Constitutional Law of the United
States, p. 102) writes, in 1870: "Our fathers, by an almost divine pre-
science, struck the golden mean."
CONSTITUTIONAL CONTRADICTIONS.
71
There
We need not here examine how honest these chronic
constitutional scruples of the minority for the time being
were. It is sufficient to mention the fact that for over
seventy years all parties have followed these tactics when
they found themselves on the side of the opposition.' The
bearing, therefore, of all the general provisions of the con-
stitution, and even of its separate terms, was, in the course
of time, determined in the most opposite senses.
were a number of persons in every congress observant
enough to notice this fact. But they never followed up
the question far enough to ascertain whether this phenom-
enon was not to be accounted for in part by a fundamental
defect in the constitution itself. This would not have been
the case, were it not that their thought on the matter was
under some heavy pressure from without.
As the country became more democratic, men distin-
guished in politics became less and less the political lead-
ers of the people. They, indeed, apparently claimed that
position, but in fact they went along with the stream,
concerned only to swim at the head. Men really inde-
pendent in thought or action by degrees appeared more
rarely in congress and among politicians outside of it.²
The idea of representation lost its original and only
¹ We read in an article in the Nation, Nov. 7th, 1872, (No. 384, p. 300):
"In spite of its supposed [!] precision, and its subjection to judicial
construction, our constitution has always been indirectly made to serve
the turn of that sort of legislation which its friends call progressive
and its enemies call revolutionary, quite as effectively as though congress
had the omnipotence of parliament. The theory of latent powers to
carry out those granted has been found elastic enough to satisfy almost
any party demands in time of peace, to say nothing of its enormous ex-
tensions in time of war." Since the end of the civil war admissions
of this nature are found more frequently, a happy sign of progress to-
wards a clearer judgment among thinking people.
2 Hamilton, as early as 1800, writes to King: "In the two houses of
congress we have a decided majority. But the dread of unpopularity
is likely to paralyze it." Hamilton, Works, VI., p. 416.
72
STATE SOVEREIGNTY AND SLAVERY.
justifiable character, and was prostituted to this, that rep-
resentatives should be the mere mouthpieces of their im-
mediate constituents.¹ In particulars it was necessary to
leave them sufficient room, but the unripe political notions,
the preconceived opinions, the vague instincts, the arbi-
trary sympathies and antipathies of the majority of these
constituents, became the sub-structure of their labors. From
the beginning of Washington's administration, Jefferson's
adherents preached that the maxim vox populi, vox dei
was a theoretical truth applicable under all circumstances.
By degrees it became the actual rule of politicians, until
finally it would have been considered not only folly, but a
crime against the spirit of republican institutions, to de-
fend one's own dissenting opinion against the vox populi,
once it had pronounced with any degree of definiteness on
a given proposition. Idealistic doctrinarianism and dem-
agogism had begun the work; the moral cowardice and
pusillanimous self-interest of politicians continued it, until
finally it seldom occurred that even morally strong and
independent thinkers approached questions of the nature
mentioned above in a skeptical spirit, or that they 'consid-
ered them as questions at all. The tendency to the crea-
tion of political dogmas kept pace with the development
of democracy.
At the head of all these dogmas-those of natural
rights and the social contract in part excepted-stood the
supremacy of the constitution. Only a few, like Macon of
North Carolina, whose independence savored of affectation,
ventured to preserve the tone in which they had spoken in
¹ This tendency was very evident, even in the debates of Nov., 1791,
when the proportion of representatives was fixed. See especially the
speech of Page, of Virginia. Benton's Abridgment of the Debates of
Congress, I., p. 325. The same may be said of the debate on the as-
sumption by the Union of the debts contracted by the states during the
revolutionary war. Benton, I., passim.
CHANGE IN FEDERALIST FEELING.
73
1787 and 1788.¹ The opposition of the anti-Federalists, as
already remarked, now took the form of a pretended strug-
gle for the constitution.2 Experience soon taught the
leaders that these tactics would insure them the readier
and more energetic support of the masses of the people.
When the opposition had assumed this tone it was difficult
for the Federalists not to assume it also. At first, part of
them took the position which Hamilton had taken, and
saw in the constitution the best that could be accomplished
under the circumstances of the time; and others professed
themselves satisfied because it was free from the essential
defects of the articles of confederation. They were far re-
moved from unconditional admiration. Their entire strug-
gle for its ratification bore the mark of a defense against
unjust attacks. They lavished relatively little direct praise on
the constitution; and when they did, it was most frequently
in the shape of a comparison with the articles of confeder-
ation. Only with reluctance did the Federalists surrender
this reserved attitude. But they could not entirely resist
the pressure. Their adherents among the masses of the
people were not able to understand how they could continue
cool critics of the constitution they had planned, the
adoption of which was due solely to their efforts, while
3
1 Fisher Ames writes to Wolcott, Sept. 2, 1795: "Some opinions are
general and well established: admiration of our constitution and gov
ernment," etc. Gibbs, Mem. of Wolcott, I., p. 229.
2 The Virginia and Kentucky resolutions were the first official decla-
ration of principles on which the doctrine of state rights was built. We
quote from the Virginia resolutions: 'Resolved, That the general as-
sembly of Virginia doth unequivocally express a firm resolution to
maintain and defend the constitution of the United States." And later:
"That the good people of the commonwealth, having ever felt and con-
tinuing to feel
the most scrupulous fidelity to that constitution,
which is a pledge of mutual friendship and the instrument of mutual
happiness." In like manner, the Kentucky resolutions declare that the
state is sincerely anxious for its [the constitution's] preservation.”
3
9 Wash's. Writ., IX., pp. 318, 319.
74
STATE SOVEREIGNTY AND SLAVERY.
the anti-Federalists were preparing a shrine for it on the
high altar of the temple of freedom.
A problem of this kind was then, and would be to-day,
of much greater practical significance in the United States
than, for instance, in England or in Germany; because in
some respects the political thought of Americans is much
more superficial and immature. In political questions of
a concrete nature, the Americans are on an average more
competent judges than any people on the continent of
Europe.¹ The political institutions of the country, its
social and especially its economic relations, educate them
from the cradle to independent thought on all questions
involving material interests, and encourage them to sum-
mon their whole intellectual strength for their solution.
But in the wearing struggles of daily life new problems
of this character continually arise, and almost exhaust their
intellectual strength. Their energy of mind is not in
consequence great enough to give much depth to their
thoughts on political problems of a general nature. The
disposition towards generalization is sufficiently developed,
but their observations are neither various, nor long, nor re-
liable enough to warrant inductions of any real value. Half-
true and vague ideas are therefore raised by them to the
dignity of unimpeachable principles. These are appealed to
on every occasion, so that they rapidly rise to the dignity
of sovereign laws. And the more they assume this charac-
ter, the stronger does the conviction become rooted that
they are the stars by which the ship of state should be
steered. The further the idea of democracy was push-
ed, first in theory and then in practice, the more did
the doctrine of the equality of all men become perverted
1 The masses of the population in the southern states are here excepted.
Slavery has in this, as in all other respects, produced an abnormal state
of affairs. Neither do we here include adopted citizens, although in
the upper strata they very soon become assimilated, so far as this mat-
ter is concerned, to the native Americans.
A NATIONAL FETISH.
75
in the minds of the masses into the equal capacity of
all men to decide on political questions of every kind.
The principle of mere numbers steadily gained ground.
The political philosophy of the masses was comprised in
these vague maxims. They clung to them with all the
self-complacent obstinacy of the lowest and most numerous
body of the working classes. They were nowhere more
sensitive than here. Whoever desired their favor dared
not touch this idol of theirs, and could scarcely ignore
it unpunished. The fetish had been raised up for the
worship of the masses by their leaders, and the masses in
turn compelled their leaders to fall down and adore it.
Under no form of government is it so dangerous to erect a
political idol as in a democratic republic; for once erected,
it is the political sin against the Holy Spirit to lay hands
upon it.
The history of the United States affords the strongest
and most varied proof of these assertions. Not only the
quarrels of 1787 and 1788, but also the circumstances un-
der which the constitution originated, would have inclined
one to believe anything rather than that the constitution
would be chosen as the chief idol of the people.
The brilliant contrast it presents to the articles of con-
federation is not a sufficient explanation of this, not even
if it were granted that the extraordinary economic pros-
perity of the country was due to it to the unmeasured
extent claimed by Americans themselves.¹
The current view places the labors of the Philadelphia
convention in a totally false light, but the difficulties that
convention had to surmount were so great that they can
scarcely be exaggerated. The conflict of views and of real or
"It is to be feared we have grown giddy with good fortune; attrib-
uting the greatness of our prosperity to our wisdom rather than to a
course of events and a guidance over which we had no influence."
Quincy in the house of representatives, April 19, 1808. Benton's Deb.
of Congress, III., p. 700.
76
STATE SOVEREIGNTY AND SLAVERY.
supposed interests was too great to permit of even an appar-
ent reconciliation between them by any formula consistent
with the theories of the time. A reconciliation was, on
the other hand, a question of life or death to all sections of
the people. It therefore became imperative that mutual
sacrifices should be made at every step, and this not only
in principles, but also in theories; that is, both sides
were compelled, by making concessions at variance with
their principles, to be untrue to their ideal. The final
result could not in consequence be a harmonious whole,
complete in itself. The most that could be accomplished
was a certain amount of reconciliation, the effect of which
was the prevention of the dissolution of the Union and
the creation of a federal power with the character of a fed-
eral government to such an extent that by it the possibil-
ity of the growth of the members of the federation into
one consistent whole was secured.¹
A model constitution-so far as it is allowable at all to
speak of such a one-would have done poor service for
the United States. Besides it is very probable that it
would not have been ratified. But if it had been adopted,
it would not have lasted long, for the reason that it was not
at all in harmony with the actual condition of affairs.
It was necessary that the constitution should be highly
elastic in its nature. Its terms must be susceptible of
¹ The originators of the constitution were conscious at the completion
of their work that they had accomplished no more. They say in their
communication to congress, which accompanied the constitution: “In all
our deliberations on this subject we kept steadily in our view that which
appeared to us the greatest interest of every true American-in which is
involved our prosperity, felicity, safety, perhaps our national existence.
This important consideration, seriously and deeply impressed on our
minds, led each state in the convention to be less rigid in points of in-
ferior magnitude [?] than might have been otherwise expected, and
thus the constitution which we now present is the result of amity and of
that mutual deference and concession which the peculiarity of our
political situation rendered indispensable." Elliot, Deb., I., p. 305.
POSSIBLE DISSOLUTION.
77
great extension or contraction of meaning, according to
the want of the moment. A more brittle bond would in-
fallibly be broken. This is not a matter of speculation.
The whole history of the United States, from 1789 to 1861,
demonstrates it.
Almost from the very day on which the new order of
things was inaugurated, the conflict between the opposing
tendencies broke out anew, and before the close of the
century it attained a degree of violence which suggested
very serious fears. The thought of the dissolution of the
Union was current among both parties. In accordance
with their whole political tendency the anti-Federalists
permitted themselves to be urged on more frequently and
more easily to conceive of taking such extreme steps. But
even in the speculations of the Federalists on the future,
this constituted an element which was taken into consid-
eration with other contingencies. It is indeed true that
it was frequently only by vain threats that the minority
sought to exert a pressure on the majority. The view
which afterwards became gradually more general, that
during the first years of the existence of the republic
the thought of separation was never seriously entertained,
is a historical misrepresentation made in the interests of
party. Until the first part of the nineteenth century, the
dissolution of the Union was a standing element in politi-
cal speculation; and both previous to and after that pe-
riod, it was repeatedly considered possible and even prob-
able in moments of excitement, by either party, that it
would be necessary to resort to this radical remedy.
Were it not that the letter of the constitution permitted
all parties to verge upon the actual dissolution of the
Union, without feeling themselves responsible for a breach
of the constitution, it is likely that long before 1861, a
serious attempt in that direction would have been made.
Thanks to this circumstance, however, the danger of ruin-
78
STATE SOVEREIGNTY AND SLAVERY.
ous haste was considerably lessened. Time was given to
passion to abate its intensity, and with every day's delay
the probability increased that all parties would become con-
scious of the preponderance of their common interests over
those which were divergent. When the opposing party
yielded in the slightest particular, there was always offered
the possibility of a return to the right path before the de-
cisive step was taken. In the meantime, the prejudices
and customs, the diversity of which Nathan Strong had
designated as the greatest obstacle in the way of a rational
regulation of national affairs,' became assimilated to one
another, at least in some respects. Commerce, social in-
tercourse and custom created new material, intellectual
and moral bonds, which gradually rendered a breach more
difficult.
But contemporaneously with this, and from the very
first, the material and irreconcilable differences that existed
grew more marked. Yet the constitution afforded such a
field for a war of words, and the field was so readily
taken, that in the northern states, which were rapidly be-
coming united in all their interests, the erroneous view
began to obtain currency in the third decade of this cen-
tury that all difficulty would end in a war of tongues.
There was something of a correct instinct at the founda-
tion of this disastrous and foolish notion. While the "ir-
repressibleness" of the conflict became clearer year after
year, the ambiguous nature of the constitution became
apparent in an equal degree. The field became gradually
broader and more inviting to a tournament of words;
and the extraordinary dilatability of the boundaries post-
poned the moment of the breach. It became possible in
the more populous and wealthy half of the Union, which
was, morally and intellectually, the more highly developed,
to build up such a solidarity of interests and for the people
1
Gibbs, Memoirs of Wolcott, I., p. 40.
ORIGIN OF NULLIFICATION.
79
to realize the existence of this solidarity of interests to such
an extent that they were enabled, by an appeal to the
sword, to decide the one great question as to the nature of
the Union, a question to which, from the terms of the
constitution, no certain answer had ever before been given,-
and to find a solution of it in harmony with the progress
of civilization and the best good of the whole country.
These views are, to a great extent, very different from
those prevalent on the subject; but they must accord with
historical truth, for only in such case is the political his-
tory of the United States at all rational or intelligible.
Calhoun and his disciples were not the authors of the
doctrine of nullification and secession. That question is
as old as the constitution itself, and has always been a
living one, even when it has not been one of life and death.
Its roots lay in the actual circumstances of the time, and
the constitution was the living expression of these actual
circumstances.
80
STATE SOVEREIGNTY AND SLAVERY.
CHAPTER III.
THE INTERNAL STRUGGLES DURING WASHINGTON'S TWO AD-
MINISTRATIONS. ALEXANDER HAMILTON. THE FIRST DE-
BATE ON THE SLAVERY QUESTION. INFLUENCE OF THE
FRENCH REVOLUTION. CONSOLIDATION OF PARTIES AND
GRADUAL INTENSIFICATION OF GEOGRAPHICAL DIFFER-
ENCES.
The constitution had gone into operation in 1789, and
as early as 1790 the consolidating influences of the firmer
government seemed so burthensome and dangerous a load,
that the anti-Federalists began to grow restless under the
yoke, and to long for the loose management of affairs
that had existed under the confederation. The more nearly
the measures of the administration and of the majority of
congress became parts of a system planned with a really
statesmanlike mind, the firmer the organization of the
opposition became and the more did its resistance assume
the character of one based on principle.
The Federalists had not expected this, although they must
have been prepared for it after the struggle over the ratifi-
cation of the constitution.
Washington fell a victim to the illusion that it was pos-
sible to bring about the harmonious co-operation of all the
forces of the country. All that was needed, he thought,
was to convince the opposition that the administration had
nothing but the best interests of the country at heart and
the desire to do full justice to them. This illusion caused
him to take a step which was accompanied at first by
good results, but which, in the course of time, contributed
JEFFERSON AND HAMILTON.
81
a great deal to intensify the internal conflicts during his
administration.
The construction of the Union had undergone so radical
a transformation that when the new order of things first
went into operation, there were no organized opposing par-
ties in the field. As a matter of course, future parties
were necessarily divided on the same questions which in
the struggle for the constitution had been looked upon as
the principles at issue between its advocates and oppo-
nents. By the adoption of the constitution the theoretical
struggle was temporarily ended, but before it attained a
fixed concrete form in practical politics, it was necessary
that some time should elapse. In the first place, there were
in congress and among the people only divergent political
tendencies. How, when, and to what extent, these should
grow into differences or become consolidated in party
platforms was a matter necessarily dependent upon cir-
cumstances.
Washington's endeavor was not only to look upon the
nation as the sole party, but also to exercise his influence,
wherever he legitimately could, to cause the same feeling
to prevail over the agitations of incipient party spirit.
Whether he was guided by this desire, and to what extent,
in the selection of the members of his cabinet, cannot be
certainly determined. Jefferson had been in Paris when
the question of the adoption or rejection of the constitu-
tion was pending, and if he expressed any doubt concern-
ing its value, he took no decided stand in reference to it
when he entered the cabinet as secretary of state. This
much, however, was certain, that he was a great deal more
inclined to the views of the opponents of the constitution
than to those of Hamilton, who was assigned to the
secretaryship of the treasury. If, therefore, it cannot
be claimed that Washington purposely confided the two
most important positions in his cabinet to men who
were the political antipodes of one another, it is most
6
82
STATE SOVEREIGNTY AND SLAVERY.
probable that it occurred to him, from the very first, that
they would not be representatives of the same political
views when the diverging tendencies should begin to de-
velope themselves into definite party programmes. That
this was not a reason in his mind against, but rather in
favor of, their choice, is obvious from his almost anxious
efforts to prevent the collapse of the cabinet when the gen-
esis of parties was complete and the two secretaries had
become political antipodes. The result of these efforts only
proved that the hope with which he entered on his presi-
dential career was an idealistic dream. In certain cases,
Washington could, indeed, effect a compromise, but to
reconcile contradictions by his own independence of party
was as much beyond the domain of possibility as the pre-
vention of parties themselves.
Washington was extraordinarily well fitted to play the
part of a mediator. It is a matter of wonder that he was
able to hold his heterogeneous cabinet together so long.
But even he was able to do so only for a time and
apparently. He himself was compelled more aud more
to surrender his position in relation to parties. In a
democratic state, the executive cannot long preserve sys-
tematically and on principle the character of a mediator,
when there is not at the same time a compromise party
among the people. Washington was convinced of the
necessity of prosecuting a systematic policy, and the heads
of his council were the chief representatives of different
systems, whose differences events were daily making
stronger and more marked. The anti-Federalists be-
came the declared opponents of the internal and external
policy of the president, and Jefferson their recognized
leader. The attempts at mediation had no effect but to post-
pone the formal declaration of the war which as a matter
of fact had been waged since 1791 between the two secre-
taries as openly as in congress. The prize was not worth
the breaking of the staff which ought to be the most im-
HAMILTON'S FINANCIAL POLICY.
83
mediate and the absolutely reliable support of every
president.
The anti-Federalists did not permit the administration to
remain a moment in doubt that they held fast to the maxim
which declared mistrust of the government to be the cor-
ner-stone of freedom. Wherever they found the least
positive ground of mistrust, there they, too, were to be
found holding up the most sombre picture which their ex-
cited imaginations could suggest, precisely as they had
done in their efforts against the ratification of the consti-
tution. The burthen of their speeches was no longer the
danger to the liberty of the individual, but to the rights
of the states, which were threatened on every side.
Every question was treated with direct reference to state
sovereignty. The more the legal consolidation of the
Union became an accomplished fact, the greater was the
reaction of particularistic tendencies against the increased
pressure. The mere fact of the adoption of the constitu-
tion could not at once change the real state of affairs or
the modes of thought of the people. Nothing but time
could operate any change in these two most essential fac-
tors. To begin with, the preponderance of particularistic
tendencies was still great enough to afford, from the very
first, the strongest proof of Hamilton's assertion that this
constitution was the least which, spite of the actual condi-
tion of things and the mode of thought of the people,
could hold the Union together.¹
Hamilton had recognized, and rightly, that the govern-
ment should, first of all, direct its attention to the question
of finance. The Federalists shared his conviction that noth-
ing would have so much influence in confirming the new
order of things as his financial projects. There were some
even who believed that the continued existence of the
1 " I propose
to discuss the necessity of a government at
least equally energetic with the one proposed, to the attainment of this
project [the preservation of the Union]." The Federalist, No. I.
84
STATE SOVEREIGNTY AND SLAVERY.
1
Union depended upon their adoption. This may have been
going too far; but it is certain that no other measure of
the federal government contributed in even an approximate
degree to the actual consolidation of the Union.
The unconcealed contempt with which the European
powers looked down upon the United States was keenly
felt by the American people. But the good opinion of
foreign countries could be regained only on condition
that the credit of the Union was restored. The only means by
which the advantages of the new over the old constitution
could be shown to any great extent, and in a tangible man-
ner, was to take the comparison between them, in one most.
important matter, out of the domain of speculation. Trade.
and commerce, the depressed condition of which had most.
effectually opened the way for a recognition of the insuffi-
ciency of the articles of confederation, would necessarily be
greatly and favorably influenced thereby. By this means
there would be created a real bond of interest between the
government and the people which could not easily be dis-
solved. All attempts to dissolve it must be in vain, so
far as the creditors of the state were concerned, since their
interests demanded still more unconditionally the greatest
possible strengthening of the federal government. In case
the creditors of the individual states were taught to look to
the general government too, these reasons would apply
¹ The elder Wolcott writes, April 23, 1790: "Your observations re-
specting the public debts as essential to the existence of the national
government are undoubtedly just-there certainly cannot at present
exist any other cement. The assumption of the state debts is as neces-
sary, and indeed more so, for the existence of the national government
than those of any other description; if the state governments are to pro-
vide for their payment, these creditors will forever oppose all national
provisions as being inconsistent with their interest; which circum-
stances, together with the habits and pride of local jurisdictions, will
render the states very refractory. A refusal to provide for the state
debts, which it seems has been done by a committee of congress, if per-
sisted in, I consider as an overthrow of the national government." Gibbs,
Mem. of Wolcott, I., p. 45.
ASSUMPTION OF STATE DEBTS.
85
equally to them. The funding of the debt of the Union and
the assumption by the Union of the debts of the states
were, therefore, the two principal pillars on which the new
political structure could be made to rest. If the govern.
ment could point to a steady and rapidly-increasing pros-
perity, instead of the almost universal bankruptcy under
the confederation; if the creditors of the Union and of
the states alike would support it; it could stand even greater
storms than the pusillanimous men of 1789 had prophesied.
Violent storms did assail it, but it withstood them.
The anti-Federalists did not ignore the bearing of the
so-called Funding Act and Assumption Bill. The Assump-
tion Bill was very unpopular in several of the states, be-
cause the sordid designs which, during the last years of the
confederation, had been asserted with so much shameless
boldness were still pursued by many. The main cause,
however, of the obstinate opposition to both bills was their
political significance. Only when the material interests
affected were very considerable, did political considerations
have little weight.'
Even a part of those who, from 1785 to 1787, had been,
because of impending anarchy, the warmest advocates of
a stronger general government, allowed themselves, at the
first attempt to instil life into the letter of the constitution,
the fruit of so much labor, to be carried off in a contrary
direction by the particularistic instincts which had become
a part of their very flesh and blood. Madison now took the
first step on the path which soon completely separated him
from his old associate Hamilton, and even from his own.
past. True, Jefferson brought about a compromise and
effected the adoption of Hamilton's resolutions.2 But he
¹ South Carolina agreed with Massachusetts on the question of the
assumption of the state debts, because her debt was over five millions of
dollars. In New mpshire and Pennsylvania, on the other hand, the
opposition to the bill was great, and with many convincing.
2 July 16, 1790.
86
STATE SOVEREIGNTY AND SLAVERY.
declared later that he had been misled by Hamilton and
that he regretted this mistake more than any other of his
political life.¹
1
Hamilton had, however, to pay a price for this service, a
fact which afterwards proved to be of the highest impor-
tance. He saw himself compelled to do so because the
Assumption Bill was rejected by the house, in committee
of the whole, and because party feeling had reached such a
height that the action of congress had come to a complete
standstill. White and Lee of Virginia finally concluded
to change their votes.
The consideration paid by Hamilton was that he induced
certain of his friends to vote for the establishment of the
new capital on the Potomac instead of on the Susquehanna.
The whole compromise was a bargain between the north
and the south. True, there were decided Federalists in the
south, and some of the members of congress from the
northern states emulated the hot-headed anti-Federalists
of the south. But the friends of Hamilton's finan-
cial policy were so preponderantly from the northern states,
and its opponents from the southern, that the "geographi-
cal" and "sectional" character of the parties was a matter
of frequent mention and lament. It is well to cali special
attention to this, because the erroneous view largely pre-
vailed afterwards that the mischievous political division
¹ Jefferson writes to Washington, September 9, 1792: "The first and
only instance of variance with the former part of my resolution (to in-
termeddle not at all with the legislature) I was duped into by the secre-
tary of the treasury and made a tool for forwarding his schemes, not
then sufficiently understood by me; and of all the errors of my politi-
cal life, this has occasioned me the deepest regret." Jefferson, Works,
Vol. III., p. 460.
2 Debates of Congress, I., pp. 287, 292, 296. (When mention is made
in this work of the Debates of Congress, Benton's Abridgment is always
meant, unless express reference is made to some other. I prefer as a
rule to refer to it, as it is more readily accessible to readers.) Gibbs,
Mem. of Wolcott, I., p. 46.
2
SECTIONAL SEPARATION.
87
of the country by a geographical line dates back only to
the Missouri compromise.¹ In the case before us, the
geographical separation of parties was determined to some
extent by the differences in the economic situation of the
two sections, and more especially by the purely financial
side of the question. Yet the principal reason was the
difference of political thought in general, and the different.
interpretation of the nature and object of the Union. In
debate it was attempted not to permit this side to appear
3
4
¹ Certain letters of Jefferson especially are frequently adduced in sup-
port of this view. Jefferson himself, however, writes to Washington,
May 23, 1792: "But the division of sentiment and interest happens un-
fortunately to be so geographical that no mortal can say that what is
most wise and temperate would prevail against what is most easy and
obvious." Jefferson, Works, III., p. 363. The view referred to in the
text, however, is well founded to this extent that by the Missouri com-
promise a new and important element was introduced into the geograph-
ical division, an element of which more will be said hereafter.
2 The memorial of the Virginia legislature mentioned in the next par-
agraph designates "the prostration of agriculture at the feet of com-
merce,” as one of the two consequences of Hamilton's financial policy.
The "anti-Federalists
fearful that the interests of agriculture
might be sacrificed to the protection of commerce and manufactures,
etc."
Hildreth, Hist. of the U. S., IV., p. 119.
•
3 "The owners of the debt are in the southern and the holders of it in
the northern division." Jefferson, Works, III., p. 363. Hildreth (Hist.
of the U. S., IV., pp. 137, 138) shows that this assertion was not wholly
without foundation, although it was greatly exaggerated.
•
•
* Hildreth, Hist. of the U. S., IV., p. 119, says: "It may hence be
concluded
that no question of fundamental principles as to the
theory of government was really in debate between the Federalists and
anti-Federalists, and that the different views they took of the new con-
stitution grew much more out of difference of position and of local and
personal interest than out of any differences of opinion as to what ought
to be the ends and functions of government or the method of its admin-
istration." This is not a wrong view, but it is easy to misunderstand it.
In the application of the theory parties diverged from one another so
widely that their agreement on the theory of "government" had only
a negative practical value: both parties made use of that theory for
their own justification when their interests impelled them to a change
of position with their opponents.
88
STATE SOVEREIGNTY AND SLAVERY.
to an exasperating degree; but it was clearly in the back-
ground of all the speeches that were made. When the con-
solidation of parties had been carried far enough, and they
stood arrayed more determinedly against each other, they
dropped the veil. Even Jefferson, who was by no means a
friend of unmasked warfare, declared after two years that
Hamilton's system had its origin in principles inimical to
liberty and would undermine the constitution. The accu-
sation was carried before Washington's tribunal, but indi-
rectly it was aimed at himself also, as he had given the sys-
tem his approbation. Inasmuch as Jefferson did not clothe
it in milder words, he must have been urged very far; for he
was always careful to appear to preserve the most respect-
ful bearing towards Washington.2
Outside of congress and administration circles, the op-
position immediately gave full rein to their anger. In
North Carolina and Georgia the malcontents declaimed
with special emphasis. In Maryland the question was
agitated in the legislature. A resolution declaring the in-
dependence of the state governments to be jeopardized by
the assumption of the state debts by the Union was reject-
ed only by the casting vote of the speaker. In Virginia
the two houses of the legislature sent a joint memorial to
congress. They expressed the hope that the Funding Act
·
"His [Hamilton's] system flowed from principles adverse to liberty,
and was calculated to undermine and demolish the republic.
Thus the object of these plans, taken together, is to draw all the powers
of government into the hands of the general legislature, to establish
means for corrupting a sufficient corps in that legislature to divide the
honest votes, and preponderate by their own the scale which suited, and
to have the corps under the command of the secretary of the treasury, for
the purpose of subverting, step by step, the principles of the constitution,
which he has so often declared to be a thing of nothing, which must be
changed." Jefferson, Works, III., pp. 461, 462.
2
The expression here used is selected with deliberation. When Jeffer-
son believed there was no danger that his words would be whispered in
wider circles, he gave full vent to his secret animosity against Washing-
ton. I need only refer to his notorious letter to Mazzei.
ANTI-SLAVERY PETITIONS.
89
would be reconsidered and that the law providing for the
assumption of the state debts would be repealed. A change
in the present form of the government of the Union, preg-
nant with disaster, would, it was said, be the presumptive
consequence of the last act named, which the house.
of delegates had formally declared to be in violation of
the constitution of the United States.
These resolutions of the house of representatives of
Virginia drew from Hamilton the prophetic utterance:
"This is the first symptom of a spirit which must either
be killed or which will kill the constitution of the United
States." The spirit was not destroyed, and the symptoms
rapidly increased in number, and soon became alarmingly
noticeable.
It was not mere chance that this spirit revealed itself in
combination with the question which afterwards imparted
such magnitude to it, that the two halves of the Union
finally waged a four years' war on the two sides of the
alternative prophesied by Hamilton. Considered in it-
self it was a very insignificant incident, and one easily
forgotten; but the smouldering flame into which the small
spark was fanned at the moment showed what a conflagra-
tion might be kindled.
In February, 1790, the Quaker meeting in Philadelphia,
and the Quakers in New York, sent addresses to congress,
requesting it to abolish the African slave trade. In the
same month a Pennsylvania society for the furtherance
of the abolition of slavery asked congress to go to the full
extent of its power to put an end to the traffic in human
beings. The constitution did not leave the slightest doubt
that congress had no authority whatever in the matter,
except that it might impose a tax of not more than ten
dollars per head on imported negroes.2 Not a word, there-
¹ W. Jay, Life of J. Jay, II., p. 202.
² Art. I., Sec. 9, § 1.
90
STATE SOVEREIGNTY AND SLAVERY.
fore, was said to urge congress to go beyond the letter of
this provision. The only question was whether, and when,
the petitions should be referred to a committee to report
upon. This was sufficient, however, to excite many of
the southern delegates to the most violent declamation,
and to draw from them the most violent threats. The
noli me tangere was thrown back at the north in tones as
emphatic and haughty as it was subsequently by Cal-
houn or Toombs. Here we have the whole struggle of
seventy years in a nutshell. All subsequent events were
only the variations of the themes of these debates, the
logical development of the principles here laid down, and
their practical application to concrete questions.
The complete independence of the states was the basis of
argument in this question. Disputants spoke only of the
general government under the constitution as it actually
existed. But for certain contingencies a mode of action
was kept in view, and assumed to be legal, although it
would not be revolution only in case that the assumption
of the complete independence of the states and the
impossibility of a constitutional change in the provisions
relating to the powers of the federal government on that
question were proven and recognized. In other words, the
actual sovereignty of the states was assumed, although it
was not recognized as the premise from which every de-
mand could be justified with inexorable logic.
There was no inducement to subject the nature of the
struggle to the profound examination which the full rec-
ognition of the bearing of these premises demanded. The
representatives of the slave states did not endeavor to
secure anything practical and definite under the name of
a constitutional right. They touched the concrete question.
with which the debates were formally concerned only
lightly, and lost themselves in abstract reasoning on slavery.
On this first occasion they adopted a course of procedure.
to which they ever afterwards adhered. Partly on account.
PRO-SLAVERY SENSITIVENESS.
91
of the natural warmth of their temperament, and partly
because excited by the fears which their evil consciences
always kept awake, they widely overshot the mark. The
dangers with which they saw the future pregnant became
first the declared views of their opponents, whose
wishes soon changed into demands and resolves. They
were then attacked with such passionate argument, con-
cluded with threats of such a nature, that one might im-
agine that the possible consequences of the alleged hostile
plans of the north were already unbearable facts. All
that had been done was to move a reference of the pe-
titions to a committee. The representatives of the slave
states immediately clothed their opposition in such a
form as might have been expected if the motion meant
that the petitions should be granted. All their arguments.
were directed against this assumed view. Tucker, of
South Carolina, began with the declaration that "the com-
mitment of it would be a very alarming circumstance to
the southern states," because the request was unconsti
tutional.¹ Burke, of South Carolina, was certain that
"the commitment would sound an alarm and blow the
trumpet of sedition in the southern states." Tucker for-
got after a few moments that the only question before the
house was the reference of the petition to a committee,
and expatiated at length on the consequences of universal
emancipation. He did not speak of rebellion, but declared
that emancipation by law would infallibly lead to civil
war. Jackson, of Georgia, was decidedly of the same
mind.
Madison had rightly remarked that earnest opposition
was the best means to excite alarm. His warning re-
¹ Debates of Congress, I., p. 208.
2 Ibid.
4
3 “Do these men expect a general emancipation by law? This would
never be submitted to by the southern states without a civil war." Ibid.
4
* Ibid, I., p. 202.
92
STATE SOVEREIGNTY AND SLAVERY.
mained unheeded. Once the debates had digressed to the
question of emancipation, that question alone was dis-
cussed, and Madison's warning was examined from that
standpoint only. The slaveholders, and afterwards their
partisans in the northern states, endeavored to make the
world believe—and for a long time not without success-
that up to the time of the Missouri compromise, and even
for half a generation after, slavery was so unanimously
and sincerely condemned in the slave-holding states, that
ways and means would infallibly have been found to get
rid of the system were it not that the uncalled-for inter-
meddling of the abolitionists had produced a revolution in
public opinion throughout the south. The expressions to
which utterance was given in these debates are of great
interest, for the reason that they afford a complete refuta-
tion of this assertion. Smith of South Carolina demon-
strated “the absurdity of liberating the post nati without
extending it to all the slaves old and young, and the great
absurdity and even impossibility of extending it to all." In
his opinion "nothing but evil would result from emanci-
pation under the existing circumstances of the country."
He did not, however, limit his assertion to the existing
state of the country and left it at least undecided whether
slavery was an evil at all.² Great prominence was given
by him to the assertion repeated over and over again until
after the close of the civil war, that the southern states
could be cultivated only by slaves. He based his argu-
ment not only on "climate and the nature of the soil,” but
referred also to the curse that rested upon slavery, to "the
¹ Deb. of Congress, I.,
p. 223.
2
2“The truth was, that the best-informed part of the citizens of the
northern states knew that slavery was so ingrafted into the policy of the
southern states, that it could not be eradicated without tearing up by the
roots their happiness, tranquillity and prosperity; that if it were an evil,
it was one for which there was no remedy." Ibid, I., p. 232.
THREAT OF CIVIL WAR.
93
old habits which forbid the whites from performing the
labor."
When the debates turned on a matter so remote from
the subject under discussion, it was impossible not to pass
judgment on the whole question of slavery from the stand-
point of general ethics. The first impulse to this was
given by the representatives from the north, who urged
that the petitions of so respectable a body as that of the
Quakers in relation to so great a moral evil, were deserving
of special consideration. The representatives of the south-
ern states replied to this with provoking irony. The Qua-
kers were mercilessly lacerated, and many a thrust was
aimed at the whole north, which had suddenly conceived so
much horror for slavery and pretended to monopolize all
morality and virtue. The sting was keenly felt, and in
returning the attack no forbearance was shown. Boudinot
of New Jersey complained that Paley had been “branded
with the charge of countenancing slavery." The Bible
was drawn into the controversy on both sides; and the
debate was made to turn from the standpoint of general
morals to the basis of positive religion.
In bold contrast to this was Jackson's declaration that
the south would not stop short at anything if this question
was seriously touched. He was not satisfied with prophe-
sying discord and "civil war"; but distinctly enough held
up to the zealots of emancipation, who should dare to beard
the lion in his den, the picture of a court in which only
lynch law was administered.2
This wrestling of minds on the question of slavery—the
first since the adoption of the constitution-had no imme-
¹ Deb. of Congress, I., p. 233.
2 "The gentleman [Scott of Pennsylvania] says, if he was a federal
judge, he does not know to what length he might go in emancipating
these people; but I believe his judgment would be of short duration in
Georgia; perhaps even the existence of such a judge might be in danger.”
Ibid, I., p. 209.
94
STATE SOVEREIGNTY AND SLAVERY.
diate practical results. In the light of later events, it ap-
pears already in these debates with remarkable clearness,
that the difference was in its nature one which could not
be smoothed over. But it was not yet recognized as the
rock on which the Union was to be broken to pieces.
Threatening and sudden as was its appearance on the ho-
rizon, it attracted men's eyes only for an instant. It re-
mained yet to be seen whether the ship was even seaworthy.
The waves which tossed at that moment so violently about
her and began to break over her deck, claimed the entire at-
tention of statesmen.
Hamilton's financial policy, which had led to the organ-
ization of the opposition to the administration and to the
Federal majority in congress, was also the first actual in-
ducement to a revolt against the authority of the general
government.
The colonists had brought with them from England a
deep aversion to excise taxes, which perpetuated itself, un-
abated, from generation to generation. The first congress,
in its address of October, 1774, to the inhabitants of Canada,
laid particular stress on the imposition of excise as one of
the evils accompanying subjection to England.¹ In the
nullification convention of New York, it was proposed by
Williams, and later by Smith with something more of re-
striction, that the power to impose excise duties on any
article which grew or was manufactured in America,
should be expressly denied to congress.2 Neither motion
was, however, adopted, and the amendments to the constitu
tion afterwards made contained no provision to that effect.
•
1 "You are subjected
to the imposition of excise, the horror of
all free states; thus wresting your property from you by the most odious
of taxes, and laying open to tax-gatherers, houses, the scenes of domestic
peace and comfort, and called castles of English subjects in the books
of their law." The Western Insurrection. Contributions to American
History, 1858, p. 127.
2 Elliot, Deb., II., pp. 331, 411.
THE FIRST EXCISE.
95
Nevertheless, excise impositions and arbitrary tyrannical
government remained in the minds of the people as kin-
dred ideas. Hence the first excise bill which was intro-
duced into congress was rejected, on the 21st of June, 1790.1
Yet Hamilton caused another bill to be introduced, and by
the act of March 3, 1791, a tax was imposed on spirituous
liquors distilled within the United States.
The dissatisfaction produced by this measure was very
widespread, and from the first found strongest expression
in the western counties of Pennsylvania, at that time the
least thickly settled. The first indignation meeting in
western Pennsylvania was held July 27, 1791, at Red Stone
Old Fort.2 Much plain talk was indulged in concerning
the law; but its constitutionality was not then attacked.
Passion had not yet reached such a state of violence as to
permit this in face of the express provision of the constitu-
tion.3 But it was not long before it came to this. On the
23d of August, the agitation committee of Washington
county declared all who should accept any position under
the law, or help to carry it out, enemies of the interests of
the country, and put them under the ban of society. Four-
teen days later the tax collector Robert Johnson was tarred
and feathered, and robbed of his horse. It was not long
before similar acts of violence were practiced upon other
officials.
At first the administration was powerless against the
disturbers of the peace, for it had not yet the means to
oppose force by force. Congress now made haste to
remedy this state of things, and to prepare itself in time
for every contingency. The act to provide for calling
forth the militia to execute the laws of the Union, sup-
press insurrections, and repel invasions, became law on
¹ Gale and Seaton's Annals of Congress, I., p. 1644.
2 Now Brownsville.
3 "The congress shall have power to lay and collect
Art. I., Sec. 8, § 1.
excises."
96
STATE SOVEREIGNTY AND SLAVERY.
:
the 2nd of May, 1782.¹ But while congress on the one
hand placed the administration in a condition to ensure
the enforcement of the law, it on the other made con-
cessions to the malcontents, so that as far as possible the
employment of force might be avoided. The act of May
8, 1792, lightened the tax a great deal, and guarantied to
the distillers alterations in other essential respects.2 The
administration, too, considered the right policy to be not
to resort to force as long as it did not seem absolutely
necessary. But its forbearance served only to make the
malcontents bolder. The rough backwoodsmen and Irish
who would not be persuaded that they had to contribute³
to the support of the government and who considered un-
restricted distillation to be a "natural right," had be-
gun the movement. But in accordance with a resolve
which was immediately made public, persons of a very
different kind, some openly and others in secret, undertook
to guide it. The measures of the patriots during the Rev-
olution were copied, and corresponding committees es-
tablished to communicate with the malcontents in all the
other states of the Union. At their meetings resolutions
were passed which extended the opposition far beyond the
limits of this unpalatable law. Even secession from the
Union was discussed.5
Statutes at Large, I., pp. 264, 265.
2 Statutes at Large, I., pp. 267–271.
3 "Every circumstance indicates that we must contest with these
madmen
The people absolutely refuse to pay one shil
ling towards the public service.
These men are so licentious
and vain of their consequence that they consider the blood and treasure
of the United States as their property. They arrogantly demand the
public protection, and at the same time refuse to perform any of their
duties to society." O. Wolcott to F. Wolcott, Gibbs, Mem., I., p. 156.
4 Petition of Inhabitants of Westmoreland, 1790. Contributions to
American History, 1858, p. 126.
"There was indeed a meeting to consult about a separation." Jeffer-
son to Madison, Dec. 28, 1794. Jeff., Works, IV., p. 111. See also J. C.
Hamilton, Hist. Rep. U. S., VI., p. 96.
DEFIANCE OF LAW.
97
As usual, men talked in an exaggerated way, but there
was enough that was serious in these things. The simple
fact that a few counties could successfully evade the enforce-
ment of a law of congress for three years must have excited
great solicitude for the future of the Union in the minds.
of those statesmen who were a little more far-seeing than
the rest. But there was another and more important side
to the question. The crowd who carried on this disturbance
on the stage thought of nothing except drinking their
whiskey without paying any taxes on it; but the directors
of the play were pursuing very different aims.
Hamilton's immediate object in the excise law was at
first a purely financial one. But now he united another
object to this. He recognized that the exercise of the
powers expressly conferred by the constitution would meet
with great opposition under all circumstances. He desired,
therefore, to bring the struggle to a decision before the
opposing elements should find time to consolidate their
forces. The longer it was postponed the more difficult
would be the victory; and the very non-exercise of these
powers would be considered a tacit renunciation of them.
Internal revenue (so-called) should not be monopolized by
the states; for it was the element by which every individ-
ual citizen could be soonest brought to a consciousness of
the national character of the Union, even in internal af
fairs, since it immediately affected the every-day life of
every citizen.¹
1 "Other reasons co-operated in the minds of some able men to render
an excise at an early period desirable. They thought it well to lay
hold of so valuable a resource of revenue before it was generally pre-
occupied by the state governments. They supposed it not amiss that
the authority of the national government should be visible in some
branch of internal revenue, lest a total non-exercise of it should beget
an impression that it was never to be exercised, and next that a thing
of the kind could not be introduced with a greater prospect of easy suc-
cess than at a period when the government enjoyed the advantage of
first impressions, when state factions to resist its authority were not yet
7
98
STATE SOVEREIGNTY AND SLAVERY.
These points did not escape the opposition. It was not
to be ascribed to dissatisfaction with the excise imposition
that a majority of the southern and western members of
congress announced, even before the passage of the bill,
an organized agitation to procure its repeal.¹ It was un-
derstood in both sections of the country that the contest
really centered in the great constitutional question which,
up to the time of the civil war, constituted the legal basis
of every important internal struggle. In the debates bear-
ing immediately on the question of excise, little was said
of state rights and state sovereignty, for the reason that it
was impossible to escape the express provision of the con-
stitution. The struggle centered, however, with full con-
sciousness on the part of the contestants, on the actual
possession of a position, the great importance of which, for
the conflict which followed between the sovereignty of
the Union and the independence of the several states, was
fully recognized. This was so obvious that it did not es-
cape the observation even of foreigners.2
It was the profound significance of the struggle, as
much as the ever-increasing boldness of the insurgents,
which determined Hamilton, in the summer of 1794, to
cause the administration to proceed at last with all the
energy it could command. He considered that the time
matured, when so much aid was to be derived from the popularity and
firmness of the actual chief magistrate." Hamilton, Works, IV., p. 231.
¹ Wharton's State Trials, p. 102. Contributions to American History,
1858, p. 127.
2 The French ambassador, Fauchet, said in his celebrated dispatch
No. 10, dated Oct. 31, 1794, which cost secretary Randolph his
place and good name, that the whiskey rebellion was "indubitably con-
nected with a general explosion for some time prepared in the public
mind; but which this local and precipitate eruption would cause to
miscarry, or at least check for a long time." The elements of the ex-
plosion he described as the primitive divisions of opinion as to the
political form of the state, and the limits of the sovereignty of the whole
over each state individually sovereign." (I am acquainted with the dis-
patch only in the English translation.) Randolph's Vindication, p. 41.
ENFORCING THE EXCISE BY BAYONETS.
99
had come to try whether the new constitution had really
created a government.¹ Only a few counties openly defied
the officers of the general government. If force were
used against them they would either be left to themselves,
and then it would be easy to overcome them; or the rest
of the malcontents would make common cause with them,
in which case the alternative of accepting anarchy or of
giving immediate support to the government, would be
placed before the people in such a manner that they could
not fail to recognize it. If left to themselves much would.
be accomplished with little effort, and both the insurgents
and their secret abettors would be struck at the same time.
In
any case the slow but deadly drifting towards anarchy
would be brought to an end.
Hamilton was certain that the opposition might be
quickly broken if the government should take a decided
attitude towards the insurgents. He advised, therefore,
that so large a force should be put on foot as would compel
the insurgent counties to give up all thought of a contest,
unless they received support from without. In this way,
the authority of the government might be re-established
without burthening it with the odium which always attends
the shedding of citizen blood.2 Washington followed Ham-
ilton's advice, which proved to be right. Thirteen thous-
and militia were called for on the 7th of August, and their
appearance sufficed to restore the insurgent districts to
obedience.
The vials of gall which were now poured out on Hamil-
ton's head demonstrated how heavily the blow was felt by
those who in secret had fanned the fire. In their wrath,
¹ In his letter of Aug. 2, 1794, he says: "The very existence of gov.
ernment demands this course [calling out the militia to suppress the
insurrection]."
2 In the letter referred to above we read: "The force ought, if attain-
able, to be imposing, to deter from opposition, save the effusion of the
blood of citizens, and secure the object to be accomplished."
100
STATE SOVEREIGNTY AND SLAVERY.
they lodged against him the most contradictory charges.
At first, they prophesied that the militia would refuse to
obey orders. Then they foretold a civil war, the end of
which would be the annihilation of the usurpers who had
grasped at power. Now they said that the secretary of
the treasury had magnified a mouse into an elephant in
order to subserve his despotic aims. Next they ridiculed
the foolish stupidity which imagined that obedience could
be forced. And in the same breath they declared that the
brutal compulsion of the insurgent counties had made
their secession from the Union a certainty.¹
Neither these prophecies nor charges would have been of
any consequence, had they not contained a certain amount
of truth. Washington did not ignore this any more than
he allowed himself to be deceived as to the motives of their
originators, or to be hoodwinked by their unbounded ex-
aggeration. This, as well as the position of the parties who
endeavored to persuade him to choose a policy of inactive
delay and even of concession, explains why he hesitated so
long to adopt a course which the government of any well-
regulated state would have recognized three years earlier
as the only right one. And this it is, too, which gave this
tempest in a tea-pot so great a significance.
There was this much truth in the charges against Ham-
1 "A separation which was perhaps a very distant and problematical
event is now near and certain, and determined in the mind of every
man." Jeff.'s Works, IV., p. 112. Jefferson himself feared that a vio-
lent disruption of the Union might follow. In the same letter to
Madison we read: "The third and last [error] will be, to make it [the
excise law] the instrument of dismembering the Union, and setting us
all afloat to choose what part of it we will adhere to." It is very sig-
nificant that simultaneously, among the adherents of the opposite
party, it was said that the strife might end with the expulsion of the
insurgent districts. Wolcott writes, July 26, 1794: "I trust, however,
that they will be chastised or rejected from the Union. The latter
will not, however, be allowed without a vigorous contest." Gibbs, Mem.
of Wolcott, I., p. 156.
OUTCRY AGAINST HAMILTON.
101
ilton, that judging from the number of the insurgents, a
call for 4,000 or 5,000 militia-men, instead of for 15,000,
would have sufficed.' But Hamilton was not so short-sight-
ed as to base his calculation on these elements alone. It is
all the more singular that this should have been supposed
of him, because the suspicions entertained by his accusers,
and shared in part by himself, as to the reliability of the
militia, were not entirely groundless.² A portion of the mili-
tia of Pennsylvania had from the beginning taken part in
the movement. When governor Mifflin was requested to
call them out to suppress the insurrection, he refused to do
so, on the ground that it was too bold a step. He expected
that such a course would only strengthen the revolt, and
questioned whether the militia would yield passive obedi-
ence to the orders of the government. And when the mili-
tia were in fact called out by the president, they obeyed
the order in Pennsylvania with reluctance and hesitation.
Mifflin himself was obliged to travel through the state and
use his eloquence to secure its quota.
Moreover, Hamilton's accusers had lost all right to com-
plain of the number of militia called for, since from the
very beginning of the disturbances they had preached the
impossibility of suppressing them. Their charges against
the secretary of the treasury recoiled, therefore, upon them-
selves. Yet Hamilton's army was, according to them, the
butt of the insurgents as well as the instrument of an in-
supportable despotism.³
1 The number of 13,000 men called for was afterwards increased to
15,000. The number of men able to bear arms in the insurgent counties
was estimated at 16,000.
"In the expedi-
² Hamilton writes to Sedgwick, February 2, 1799:
tion against the western insurgents, I trembled every moment lest a
great part of the militia should take it into their heads to return home
rather than go forward." J. C. Hamilton, History of the Republic of
the United States of America, VII., p. 278.
The information of our militia returned from the westward is uni-
form, that though the people there let them pass quietly, they were ob
102
STATE SOVEREIGNTY AND SLAVERY.
This mode of argumentation against the distasteful
measures of a government is very usual among excited
masses. What was most remarkable in the instance before
ns is that it was not used by the masses or by common
demagogues and pot-house politicians, but by members of
the government. Jefferson did not first avail himself of
contradicting arguments after he had retired to private life.
And Randolph, his successor in office, followed his exam-
ple in this respect. Both were in part actuated by impure
motives, and Jefferson at least was conscious that he had
painted in colors altogether too dark, a mistake into
which the advocates of a bad cause almost always fall.
But on the other hand, both were in great part really
convinced that their fears were well-founded. And this
is as characteristic of these two personages, as of the
circumstances of the time. How far the bond which
knit together the different parts of the Union was from be-
ing an organic, that is, a really national bond is evident from
the fact that two secretaries of state could doubt the ability
of the general government to enforce a constitutional tax,
although it was opposed by force only in a part of a single
state.¹
These doubts were honest ones; but Jefferson and his
associates were again guilty of self-contradiction in the
manner in which they turned them to account. They had
systematically labored to educate the people in the faith
jects of their laughter, not of their fear; that one thousand men could
have cut off their whole force in a thousand places of the Alleghany."
Jeff., Works, IV., p. 112.
'In Randolph's opinion on Hamilton's resolution to call out the
militia we read: "The moment is big with a crisis which would con-
vulse the eldest government, and if it should burst on ours, its extent and
dominion can be but faintly conjectured." He comes to the conclusion
that the situation of the United States "banishes every idea of calling
the militia into immediate action." He even went so far as to express
a fear that the insurgents might call the English to their aid, and that
a war with England and the disruption of the Union might be the result
of an attempt at coercion.
ANTI-FEDERALIST FEELING.
103
that an impotent general government was a condition
precedent of liberty. In so far as they succeeded in this,
they had contributed to make the government of the Union
impotent. If their apprehensions were well grounded, this
was a fact which should have afforded them nothing but
satisfaction. And to some extent they experienced this
satisfaction and made no secret of it. But, at the same
time, they made the weakness of the government their ex-
cuse and justification for the counsel they had given, that
it should declare itself powerless against a handful of in-
surgents.
And here also honest conviction, self-deception, and un-
worthy motives were strangely intermixed. As partisans
they rejoiced over the predicament in which the govern-
ment was placed; as fanatical doctrinarians, they endear-
ored to argue away from their own minds and those of the
world, the bitterness of these fruits of their teachings,
while with conscious sophistry they attributed to those
teachings a brilliant excellence; and as Americans they
were ashamed of the contemptible spectacle exhibited by
this three years' struggle of the federal government with
the four western counties of Pennsylvania.
With some, as with governor Mifflin, the last feeling
conquered, and all finally accommodated themselves to the
accomplished fact of the suppression of the insurrection.
It would not have been so easy for them to do this if they
had not for some time experienced, to their terror, that it
is a much easier thing to provoke a storm than to control
it. Yet this can be said only of Gallatin, Findley, and a
few others, who had participated directly in the movement,
although they belonged to the upper classes of society.
The rest of the leaders of the anti-Federalists denied with
undisguised provocation the accusation that they had con-
jured up the storm and were responsible for having raised
the question whether the government was able to cope with it.
Hence they learned nothing from experience. They con-
104
STATE SOVEREIGNTY AND SLAVERY.
tinued to justify and to defend the very thing which Hamil-
ton regarded as the soul of the evil. The insurrection in it-
self was only of small significance. The real danger lay in
the attitude of the rest of the people towards the question.
If the remainder of the people were permeated with a sense
of the necessity of the absolute sovereignty of the law, it
not only would have been absurd to consider the success of
the insurrection possible, but the government would have
been compelled to take immediate and energetic steps to sup-
press it, even if it should itself have preferred a different
course. This conviction, however, was not shared by more
than half the people, and with a great portion of them it
was altogether wanting, so far as the laws of the Union
were concerned. This was the chain which bound the
hands of the government so long, and the anti-Feder-
alists forged it. In a state in which the people rule,
the sovereignty of law is possible only as long as the
people wills it. And the will of the people in the United
States, in its relation to the general government, must
necessarily have been just as strong or as weak as the na-
tional feeling and the recognition of the interest which
the individual members of the Union had in national de-
velopment. But the anti-Federalists had from the be-
ginning striven against these two forces on principle and
with all their power. Their way and Hamilton's, there-
fore, necessarily took from the first a divergent course;
for the leading thought of Hamilton's policy was the
creation of national interests.
Hamilton's proposition to establish a national bank had
its source in the same great statesmanlike thought as the
Assumption Bill, the Funding Act, and his tax laws, and
met therefore with the same opposition.¹
The opposition in this case, too, was based on the ques-
tion of constitutionality. The Federalists argued from the
¹ 1791.
THF FIRST BANK BILL.
105
point of view of the statesman, and touched on the con-
stitutional question only so far as it was necessary to re-
fute their opponents. The anti-Federalists, on the other
hand, touched the essential arguments in the case only
lightly, and where they did they allowed themselves fre-
quently to be involved in absurdities by their doctrinar-
ianism. The whole debate was conducted by them in a
pettifogging manner. Even Madison, who delivered the
most important opposition speech, scarcely rose to a high-
er plane. It was not indeed an easy matter, under the cir-
cumstances, to raise strong, statesmanlike objections;
and the constitutional considerations had little weight, as
they were of an exclusively negative character. The con-
stitution did not expressly authorize the establishment of
a bank; and the anti-Federalists now endeavored to prove
that it was not "necessary" to the exercise of any of the
powers expressly given.2
¹ Thus, for instance, Jackson, of Georgia, opposed the establishment
of a bank because it would facilitate the borrowing of money by the
governinent. Deb. of Congress, I., p. 287. But Jackson had not by any
means reached the height attained by Jefferson. The latter was of
opinion that by a single amendment to the constitution "the administra-
tion of the government" might be reduced "to the genuine principles
of the constitution;" that is, by an amendment withdrawing from the
general government the power to make loans. Jefferson to Taylor,
Nov. 26, 1798. Jeff, Works, IV., p. 260. Another objection of Jack-
son's was that the bank would be of advantage only to the mercantile
interests; he had never seen a bank-note in Georgia. (Deb. of Congress,
I., p. 272). It is worthy of mention that he, as well as Madison, called
attention on this occasion to the geographical separation of parties.
Jackson closed his argument with the words: "Not a gentleman scarcely
to the eastward of a certain line is opposed to the bank, and where is the
gentleman to the southward that is for it?" Ibid., I., p. 287.
2 In Art. 1., Sec. 8, § 18, of the constitution, it is provided that congress
shall have power "to make all laws which shall be necessary and
proper for carrying into execution the foregoing powers," etc. Com-
pare Gerry's speech on the bank question, Deb. of Congress, I., p. 300;
and Marshall, in McCulloch v. Maryland, Wheaton's Rep., IV., pp.
414-422.
106
STATE SOVEREIGNTY AND SLAVERY.
The anti-Federalists felt the weakness of this position,
and they anxiously tried to find other grounds. This only
made their cause worse. The states, they said, had author-
ity to establish and to prohibit the establishment of banks.
But they could not maintain state banks in opposition to
a United States bank; hence the latter was unconstitution-
al, as the rights of the states could not be curtailed except
where the constitution expressly allowed it. Moreover the
constitution prohibited the favoring of any particular place
but the place where the bank was located would undoubt-
edly have an advantage over all others!
1
These and similar objections bordered on the ridiculous.
But no reasoning was too absurd not to find credulous
hearers, when the rights of the states were alleged to be in
danger, and the services of the old phantom "consolidation"
were required. The politicians would not, in a matter of
such importance, have dared to wage so strong a war of
opposition, and could not have carried it on for ten years and
have finally conquered if they had not had as a broad and
firm foundation to work upon, the anti-national tenden-
cies which prevailed among the people.³
It has already been frequently intimated that the pre-
ponderance of anti-national tendencies in the Union had
its origin in the political and social development of the
states, in their want of political connection before the Rev-
olution, in the little intercourse, commercial and other,
between them, and lastly in various differences in their nat-
ural situation. A rapid intergrowth of the several states.
¹ Deb. of Congress, I., pp. 275, 285.
* Art. I., Sec. 9, § 6.
³ Care must be taken not to be misled by the apparent conflict between
what is here said and the Federalist programme. The anti-national ten-
dencies of the Federalists were much weaker than those of the anti-Fed-
eralists. But if the Federalists supported Hamilton's measures, it by no
means follows that the masses of them, or even all their leaders, adhered
to his policy for the same reasons, or that they had fully understood his
motives or his objects.
THE FRENCH REVOLUTION.
107
could not therefore take place, and continued violent col-
lisions were unavoidable. But the purely American ques-
tions of this period were not yet of such a nature, that
they suffice to explain the morbid passion characteris-
tic of its internal conflicts. The French Revolution intro-
duced from abroad an element which, independent of the
actual condition of affairs and partly in conflict with it,
kept excitement during many years at the boiling point.
The Revolution was at first hailed with delight by all
parties in the United States. When, however, after Mi-
rabeau's death, the impossibility of control and the mistakes
of the helpless court transferred the preponderance of
power to the radicals, and when the anarchical elements
grew bolder daily, the Federalists began to turn away. The
anti-Federalists, on the other hand, clung more closely to
it than ever. The farther France proceeded, by the adop-
tion of brutal measures, on the way of political idealism,
the more rank was the growth in the United States of the
most radical doctrinarianism; the more attentively the
legislators of France listened to Danton's voice of thunder
and to Marat's fierce cry for blood, the more boldly did dem-.
agogism in its most repulsive form rage in the United
States.
In the autumn of 1791, Freneau established the National
Gazette¹ in Philadelphia with the intention of neutraliz-
ing the influence of Fenno's Federalist United States
Gazette. In the beginning it was content with denouncing
Hamilton's financial policy and scourging John Adams
because he was the presumptive successor of Washington.
But in course of time it attacked the president himself."
¹ The first number appeared Oct. 31.
The arrows of malevolence
2 Washington writes, July 21, 1793, to Henry Lee: "But in what will
this abuse terminate? For the result, as it respects myself, I care not.
however barbed and well
pointed, never can reach the most vulnerable part of me, though while I
am up as a mark, they will be continually aimed. The publications in
2
108
STATE SOVEREIGNTY AND SLAVERY.
Its wit degenerated into malice, and in lieu of a sharp
polemic against the expediency of certain measures, it
made the most malignant charges as to the motives and
objects of its opponents. The most distinguished Fed-
eralists, it said, had always been a "corrupt squadron."
Now the old calumny as to their "monarchical" tendencies
was revived with increasing passion. The "monarchical
faction" became a shibboleth. The course of events in
France lent the anti-Federalists special strength. The
more undoubted the overthrow of the monarchy there be-
came, the more was the party here upbraided to whom the
sacred word "republic" was assumed to be a thorn in the
flesh.
It was not demagogism only that moved the anti-Federal-
ists to grasp these near and efficient weapons. Their in-
tellectual and moral drunkenness was not merely feigned.
They had grown more intoxicated over the French Revo-
lution than over their own struggle for freedom. Therefore
it was not only poet-politicians, like Freneau, and ambitious
crosses between statesmen and demagogues, like Jefferson,
who never tired of holding up to the eyes of the people the
frightful spectre of a crown. Even men like Madison scent-
ed monarchy everywhere.2 Nevertheless these fears were
entirely ungrounded.
Freneau's and Bache's papers are outrages on common decency; and
they progress in that style, in proportion as their pieces are treated with
contempt, and are passed by in silence, by those at whom they are
aimed.” Wash., Works, X., p. 359. Compare Jeff., Works, IX., p.
164.
1
¹ The anti-Federalists, and Jefferson more than any of them, treated it
always as a demonstrated fact, that Hamilton was enabled to carry his
financial measures only by the purchase of several representatives. But
the only evidence of the truth of this accusation is the boldness with
which it was advanced. The demands which were made to point out
who had been bribed, or to establish the general accusations in any
manner, were never met.
2 In a letter dated August 3, 1792, he writes to Randolph of the “doc-
trines and discourses circulated in favor of monarchy and aristocracy."
REPUBLICAN SENTIMENT.
109
Friedrich Kapp rightly remarks that the colonists at the
outbreak of the Revolution were by no means opposed, on
principle, to a monarchical form of government.¹ Spite of
this, however, they were even then republican to the core.
The question of monarchy or republic was not here one
which could be decided at pleasure. The republic was the
only form of government that could be adopted under the
circumstances, and it alone, therefore, could subsist. A
form of government out of harmony with the manners and
customs of a people cannot be lasting, and the manners
and customs of the Americans were eminently and thor-
oughly republican. Their attachment to the royal house
of England and to the English form of government, had
become a habit the strength of which was in its age, and
which, mistaking the real condition of things, had its sup-
port rather in the fancy than in the heart. It could pre-
vail under the actual condition of things so long, only be-
cause monarchy in England was already little more than a
form, since the real government was that of an aristocratic
republic; and because all that was especially monarchical
in the colonies was of even less account there than in Eng-
land. Once the passive monarchy to which they had been
accustomed was rejected by the colonists, it was impossible
to reinstate it. The foundation on which it had rested was
utterly destroyed, and hence all monarchical tendencies.
necessarily floated in the air.
The blind doctrinarianism of the anti-Federalists pre-
Rives, Life and Times of Madison, III., p. 196. In the Virginia resolu-
tions drawn up by him in 1798, it is objected to the government of the
Union that its policy tended "to consolidate the states by degrees into
one sovereignty, the obvious tendency and inevitable result of which
would be to transform the present republican system of the United States
into an absolute, or at best a mixed, monarchy." Elliot, Deb., IV., p.
528. Again in May, 1824, he spoke of the "monarchical spirit and par-
tisanship of the British government which characterized Fenno's paper."
Randall, Life of Thos. Jefferson, II., pp. 74, 75.
¹ Preussische Jahrbuecher, 1871.
110
STATE SOVEREIGNTY AND SLAVERY.
vented their recognizing this. They ransacked the whole
of history for analogies to prove the existence and the
magnitude of the danger. The so-called monarchists, on
the other hand, were satisfied that the examples adduced
had no application to the given case. Their rational com-
plaint was that the history of other peoples contained very
little that could be used as an analogy at all.' And of all
the analogies adduced, that seemed to them the most dis-
torted which could see in monarchy the sword of Damocles
that threatened the life of the republic.2 This view was
not only brought forward in the tribune and in the press
as a defense against the charges of their opponents, but it
finds frequent and emphatic expression in the confidential
correspondence of the leading Federalists. Their crime.
was that they did not see the root of all political evil in
the monarchical idea, and that they were convinced that,
even under a republican form of government, a people
might be politically, intellectually, and morally ruined.
They, in many instances, painted things in too dark colors;
but their speculations were based on the actual condition
of affairs, not on abstractions, and they well knew that men
could not be treated like dead figures or logical formulæ.
If, therefore, they did not join in the thoughtless howl
against monarchy in general, they recognized more clearly
than did the anti-Federalists that a monarchy was impos-
sible in the United States, and that if one were established
it would only increase the evils which inspired them with
so much serious alarm for the future of the republic.
1 "A case so anomalous as ours, so unlike everything European
in its ingredients, its action, and thus far in its operation will baffle, for
a long time, all the conjectures and prognostics that are drawn from
other scenes." Fisher Ames, Works, I., p. 324.
“I do not know of one man of sense and information who seriously
apprehends any danger from monarchical opinions." Wolcott to Jed.
Morse, Gibbs, Mem. of Wolcott, I., p. 190.
Monarchy is no path to liberty; offers no hopes. It could not
stand; and would, if tried, lead to more agitation and revolution than
HAMILTON AS A MONARCHIST.
111
And even if they in theory preferred a constitutional
monarchy to the republic, this unquestionable fact was so
ever present to their minds that their acts and efforts were
never in conflict with it.
If any one could rightly be called a monarchist in theory,
it was Hamilton. In the Philadelphia convention he ex-
pressed himself convinced "that the British government
was the best in the world," and that he almost doubted
whether a republican government could be established over
so extended a territory as that of the United States. He
added, however, that he was sensible "it would be unwise
to propose any other form of government." This last
conviction was not weakened by time, but grew stronger
every day until the "unwise" became the unconditionally
impossible. His bitterest friend and most reckless ac-
cuser, Jefferson, at length bore witness to this, long after
he (Jefferson) had left the political arena, and after Ham-
ilton had been twenty years in his grave.³
2
anything else." Fisher Ames, Works, I., p. 324. Compare Quincy,
Life of J. Quincy, p. 88.
1
¹ Elliot, Deb., V.. p. 202.
2" It is past all doubt that he [Burr] has blamed me for not having
improved the situation I once was in [as quartermaster-general of the
army], to change the government. That when answered that this could
not have been done without guilt, he replied: 'Les grandes âmes se souci-
ent peu des petits moraux ;' that when told the thing was never practic-
able from the genius and situation of the country, he answered: 'That
depends on the estimate we form of the human passions, and of the
means of influencing them.' " Hamilton to Bayard. See the whole
letter in Ham., Works, VI., pp. 419-424. By an oversight it is dated
a year too early. In a letter of Sept. 18, 1803, on the plan of a
constitution which he had laid before the Philadelphia convention, he
says: "This plan was predicated upon these bases: 1. That the political
principles of the people of this country would endure nothing but repub-
lican government." Ham., Works, VI., p. 558.
"Jefferson writes to Van Buren, June 29, 1824: "For Hamilton frank-
ly avowed that he considered the British constitution, with all the cor-
ruptions of its administration, as the most perfect model of government
that had ever been devised by the wit of man; professing, however, at
112
STATE SOVEREIGNTY AND SLAVERY.
The fact that no thought was farther removed from the
minds of the Federalists than to engage in monarchical in-
trigues was of no practical value, inasmuch as the anti-
Federalists would have recognized no proof of it as
sufficient. They appreciated too highly the importance of
the charges to withdraw them under any circumstance.
This is evident from the name of Republicans, which they
gradually assumed, thus claiming to represent the prin-
ciples of republicanism with their whole heart. Besides,
not feeling at home under the constitution, it was impos-
sible to reason with them; and they became gradually
more and more the victims of a morbid fancy. Carried
away at first by the intoxication and the idealism of the
French Revolution, then dropped, after the over-excite-
ment, into a state in which apodictic impatience was mis-
taken for Catonian severity of principle, they fell after the
spring of 1793 into the infinite depths of furious fanaticism.
The arrival of the French ambassador, Genet, on the 9th
of April, 1793,' at Charleston, was the signal for the out-
break of the commotion which for four years had been
progressing secretly, only because an opportunity was
wanting for a violent outburst.
Genet was an experienced diplomat, not destitute of
talent, filled even to fanaticism with the radical doctrines
of the Revolution, his whole thought and being satiated
with the characteristically ingenuous pride of his nation-
ality. He acted with the address and careless assurance
which, in view of the feeling he found prevailing
among the people, guarantied him at first the greatest
He was received with enthusiasm in Charleston,
success.
the same time, that the spirit of this country was so fundamentally re-
publican that it would be visionary to think of introducing monarchy
here, and that therefore it was the duty of its administrators to conduct
it upon the principles their constituents had elected." Van Buren,
Political Parties, p. 434.
1
¹ De Witt, Th. Jefferson, p. 218, gives April 8 as the date.
ARRIVAL OF GENET.
113
and his journey to Philadelphia resembled a triumphal
march. The Republicans fell victims with astonishing
rapidity to the power of high-sounding phrases. The il-
lusion that they were called to be the apostles of liberty
stole away their senses.
their senses. The ocean which lay between
them and the old world did not permit the thought of
preaching the gospel of equality and fraternity from the
cannon's mouth, hand in hand with the French, to the
oppressed and enslaved in Europe, to occur to them,¹ and
propitious fortune had given them no neighbors who were
in need of it. But the French nation's bloody work of
redemption at home and abroad was destined to find the
greatest moral support in the United States. And could it
have been done, France would have received help from them
without any scrupulous questionings concerning the duties
which treaties and the law of nations had imposed on them
towards other powers. This was precisely what Genet
desired. The United States were to be an ally of France,
and follow her directions. From the first, Genet assumed
the character of a master and treated every impediment
placed in his way as treason to the cause of liberty, in op-
position to which there were no rights and no duties.
Washington had feared that sympathy for France might
find expression in a dangerous manner, and had endeavored
to prevent it by his celebrated proclamation of neutrality,²
"The
¹ We read in the decree of the convention of Nov. 15, 1792:
French nation declares that it will consider that people an enemy which
refuses or abandons liberty and equality or which desires to preserve
its princes or privileged classes, or to effect any composition with them."
And in the decree of Nov. 19, 1792, it declared that it would lend its aid
to any people who desired to regain their freedom.
2 All the members of the cabinet agreed that a proclamation should be
issued "for the purpose of preventing interferences of the citizens of
the United States in the war between France and Great Britain." Jeff.,
Works, III., p. 591; Wash., Works, X., p. 534; Ham., Works, IV., p.
360. The word “neutrality,” however, was not used, on account of the ob-
jection that a declaration of neutrality was beyond the powers of the ex-
8
114
STATE SOVEREIGNTY AND SLAVERY.
2
dated April 22, 1793.¹ The greater publicity was given to
this measure because Genet's course threatened to involve
the United States in the most serious complications with.
England. The Republicans, however, continued to treat the
proclamation as ill-timed and unnecessary, and as if there
were not the slightest doubt on the matter. An acrimonious
contest was thus begun, a contest in which there would
have been no need of an express declaration of hostilities,
if a large portion of the people had not been affected by a
political vertigo. It would have been more than foolish to
look idly on, expecting a return of sobriety in due time.
The blind violence against the administration was the best
evidence how necessary it had been to take precautionary
measures without delay. The republican press raged so
wildly and withal so successfully, that Hamilton himself
considered it his duty to enter the lists for the administra-
tion. The weight of his blows was always so heavily felt
by the republicans that they allowed only their best com-
batants to oppose him. And now Madison, under the
3
ecutive, and that it was better to avoid a declaration of neutrality in order
to obtain in exchange the "broadest privileges" of neutral powers. Jeff.,
Works, III., p. 591; IV., pp. 18, 29, 30. Jefferson, however, rightly re-
marks: "The public, however, soon took it up as a declaration of neu-
trality, and it came to be considered at length as such." Washington
himself uses the word repeatedly in his answers to the addresses which
were directed to him on the question.
¹ Statesman's Manual, I., p. 46. Genet had not yet arrived in Phila-
delphia. His arrival in Charleston was first known in Washington, on
the day on which the proclamation was issued. The news of his intrigues
followed close upon this announcement.
2 Letters of Pacificus, No. VII.
•
³ Madison writes to Jefferson, June 19, 1793: "Every gazette I see
(except that of the United States) exhibits the spirit of criticism on the
Anglified complexion charged on the executive politics.
The
proclamation was in truth a most unfortunate error. It wounds the
national honor, by seeming to disregard the stipulated duties to France.
It wounds the popular feelings by a seeming indifference to the cause of
liberty." Rives, Life and Times of J. Madison, III., pp. 334, 335.
JEFFERSON AND GENET.
115
name of Helvidius, endeavored to neutralize the effects of
Pacificus's seven letters.¹
2
1
Jefferson, with the ingenuousness of a child, was caught in
the clumsy snares of the French ambassador. The mag-
nificent and high-sounding phrases in which Genet had
tendered the hand of disinterested friendship to the sister
republic in the name of the French nation, were wonder-
fully seductive to Jefferson's ears. In a single sentence:
"In short, he offers everything and asks nothing," Jeffer-
son rapturously and correctly condensed the whole of
Genet's declaration. It is characteristic of Jefferson's
statesmanship, that he could accept such declarations as of
any real value. There were reasons enough why France,
at that time, should have been very anxious to make use.
of the United States to the utmost extent, in her own inter-
est. Men like Jefferson even could adduce only one reason
for the assumption that France was actuated by a disinter-
estedness never yet heard of in the history of diplomacy,
namely, that she was a republic, and that so large-hearted a
feeling was eminently becoming a republic. It was not to
be assumed of a republic that it used only a meaningless
phrase, insulting to the intelligence of those addressed,
when it said: "We see in you the only person on earth
who can love us sincerely and merit to be so loved."
ferson added, with a mixture of acrimony and proud pity
for the shortsightedness and perversity of his opponents:
"Yet I know the offers will be opposed, and suspect they
will not be accepted."
Jef
¹ In Gideon's edition of the Federalist, 1818, the letters of Pacificus
and Helvidius are given entire. The beginning of Madison's first let-
ter is very characteristic: "Several pieces with the signature of Paci
ficus were lately published, which have been read with singular pleas-
ure and applause by the foreigners and degenerate citizens among us,
who hate our republican government and the French revolution.”
'Jeff., Works, III., p. 563.
* Jeff., Works, 1. c.
116
STATE SOVEREIGNTY AND SLAVERY.
Genet illustrated the friendship of France in a manner
which soon opened the eyes of even the unwilling Jeffer-
son to the character of her ambassador, if not of the sister
republic herelf. He wrote to Monroe on the 14th of July:
"His conduct is indefensible by the most furious Jaco-
bin." But he had himself too long occupied an ambigu-
ous position in regard to this conduct of Genet, to per-
mit him to repel as an absurd calumny that he was him-
self a Jacobin. Genet informed the ministry of foreign.
affairs that at first Jefferson had given him certain very use-
ful hints, hints which, coming to the ambassador of a foreign
power from the secretary of state, were evidence of more
than a want of tact.2 In more than one instance in which
Genet threatened most dangerously to compromise the
United States, Jefferson hindered the action of the gov-
ernment to an extent that justified the charge that he
played a masked part, and valued the friendship of France
more than the honor of his own country. On the 5th of
July, that is, only nine days before the letter to
Monroe above referred to, he indirectly, but with a knowl-
edge of Genet's plan, advocated that an uprising against
Spanish rule in Louisiana with the aid of the Kentuckians
should be provoked.*
¹ Jeff., Works, IV., p. 20.
3
2 "Dans les commencements, Jefferson, sécretaire d'Etat, m'a donné
des notions utiles sur les hommes en place et ne m'a point caché que le
senateur Morris, et le sécretaire de le trésorerie Hamilton, attachés aux
intérêts de l'Angleterre, avaient la plus grande influence sur l'esprit du
président, et que ce n'était qu'avec peine qu'il contrebalançait leurs
efforts." Dispatch of Oct. 7, 1793. Documents historiques, No. VII.,
quoted by DeWitt, Th. Jefferson, p. 221.
* The most notable case was that of the Little Democrat. Compare
Marshall, Life of Wash., II, pp. 270–273. Randall's exhaustive defense
of Jefferson's mode of action on this occasion (Life of Jefferson, II.,
pp. 157–172,) is, like the whole book, written in too partisan a spirit. It
is, however, true that the condensed account in Marshall is not alto-
gether correct.
* Genet's dispatch of July 25, to be found in De Witt, Th. Jefferson,
GENET'S INSOLENCE.
117
If Jefferson and the greater part of the Republicans had
their eyes opened it was due simply to Genet's folly.
What Chauncey Goodrich said a few years later was true
even now: The French did not rest until they had cured
the Americans of their "love-sickness." When the au-
thorities were getting ready to take energetic measures in
the matter of the "Little Democrat," Genet threatened
to appeal to the people, and soon carried out his threat.
This was going too far. Even the Republicans, with few
exceptions, had not yet fallen so low as to permit the French
chargé-d'affaires to go unpunished, for formally calling on
them to oppose the administration under his leadership,
especially while Washington was at the head of it. The
steps which his own government characterized as "punish-
able" and "criminal" they would willingly have connived
p. 221. We there read: "M. Jefferson me parut sentir vivement l'utilité
de ce projet; mais il me déclara que les Etats-Unis avaient entamé les
négociations avec l'Espagne à ce sujet, qu'on lui demandait de donner
aux Américains un entrepôt audessus de la Nouvelle-Orléans, et que tant
que cette négociation ne serait pas rompue, la délicatesse des Etats-Unis
ne leur permettrait pas de prendre part à nos opérations; cependantil me
fit entendre quil pensait qu'une petite irruption spontaneé des habitans de
Kentucky dans la Nouvelle-Orléans pouvait avancer les choses; il me mit
en relation avec plusieurs députés du Kentucky, et notamment avec M.
Brown." According to Jefferson's own account he warned Genet not to
make formal enlistments in Kentucky or to issue commissions to officers,
because by so doing he would be placing a rope about the people's necks.
After which he continues: "That leaving out that article [in Genet's
proposed address] I did not care what insurrections should be excited
in Louisiana." He gave a letter of recommendation to Genet's agent,
one Michaud-DeWitt gives the name Michaux-to governor Shelby.
In this letter he spoke of him simply as a person of botanical and
natural pursuits;" but at Genet's request he changed the letter so that
the governor would see something more in him. Ana., Jeff., Works,
IX., pp. 150, 151.
(C
¹ Goodrich writes to the elder Wolcott, Jan. 18, 1797: "Our country
must get over its love-sickness for France, and if one degree of suffering
and insult won't answer that valuable purpose, they will have madness
enough to administer sufficiency." Gibbs, Mem. of Wolcott, I., p. 436.
les démarches et les
246
•
la conduite puinissable
118
STATE SOVEREIGNTY AND SLAVERY.
+
at. But they could not quietly consent that a foreigner
should dare to menace, in the name of the people, a gov-
ernment established by the free choice of the people. That
was not only to oppose the policy of the administration.
which they did not like, but to deride republicanism it-
self, and offer an insult to the whole country. The Re-
publicans did not dare to blame the administration for de-
manding Genet's recall, and did not desire to blame
it,¹ although the reaction in public opinion in favor of the
government, once begun, was not confined to this special
point. They might, indeed, easily yield here; because
from the first they entertained the right view, that the
masses of their adherents would soon plunge again into
the same old stream.2
In the new congress which met on the 2nd of December,
the Republicans had a majority in the house of representa-
tives. Their candidate Muhlenberg was chosen speaker by
a majority of ten votes. The administration therefore
found itself from the start in a precarious position, the dif
manoeuvres criminelles du citoyen Genet.” Defargues, the then minis-
ter of French foreign affairs, to G. Morris. Sparks, Life of Washington,
II., p. 358. France's answer to the expostulation of the United States
would certainly have been very different if the Girondists had been
still at the helm, and had persevered in their policy. It is established
by documentary evidence that Genet received express instructions to
involve the United States in the war. The whole plan on which he
operated was prescribed to him in detail, and the responsibility, there-
fore, does not rest mainly on himself. Mémoire pour servir d'instruc-
tion au citoyen Genet; the advice of the conseil exécutif of Jan. 17,
1793; the dispatches of the minister of foreign affairs to Genet, of Feb.
24 and March 10, 1793. De Witt, p. 218.
¹ Genet, however, still found some defenders. Jefferson writes to
Madison, Sept. 1, 1793: "He has still some defenders in Freneau and
Greenleaf's paper, and who they are I know not; for even Hutcheson
and Dallas give him up." Jeff., Works, IV., p. 53.
2 "Hutcheson says that Genet has totally overturned the republican in-
terest in Philadelphia. However, the people going right themselves, if
they always see their Republican advocates with them, an accidental
meeting with the monocrats will not be a coalescence." Jeff., Works, 1. c.
MEETING OF CONGRESS.
119
ficulties of which were greatly increased by the tactics of
the opposition, which were as subtle as they were unpat-
riotic. The principle which Jefferson wished to see made
the leading one of the opposition: "to do nothing and to
gain time," had been already, to a great extent, adopted
by them. The resolutions of the administration were met
by counter-resolutions which it was known the administra-
tion could not accept. When it was necessary that some-
thing should be done, a compromise was effected—often only
after a long debate-and then the government was held
responsible for the half-measures adopted. Moreover, the
dangerous necessity of adopting themselves clear and de-
cisive measures was avoided with great skill. In short,
the opposition was in the highest sense of the word an op-
position and nothing more. Wolcott describes the action
of congress during this session in the following words:
Nothing very wrong has yet been done, though much has
been attempted; on the whole, the session has reflected no
honor upon the government of the country. Weakness,
passion, and suspicion have been leading characteristics in
the public proceedings."2
66
Jefferson's exit from the cabinets was not a full compen-
sation for this attitude of the house of representatives.
Washington did not again try to realize an independent
1
2
¹ Jeff., Works, IV., p. 222.
Gibbs, Mem. of Wol., I., 134.
' Jan. 1, 1794. Ch. Fr. Adams gives the reasons of Jefferson's retire-
ment in the following words: "For Mr. Jefferson to continue longer
in the cabinet in which his influence was sinking, was not only distaste-
ful to himself, but was putting a restraint on the ardor of opposition
and impairing the energies of his friends without any compensating
prospect of good. He determined to withdraw; and his act became
the signal for the consolidation of the party, which looked to him as its
chief. Broad and general ground was now taken against the whole pol-
icy of the administration, and the arrows, shut up within the quiver, so
long as he remained liable to be hit, were now drawn forth and sharp-
ened for use even against Washington himself." Life of J. Adams, II,
p. 152.
120
STATE SOVEREIGNTY AND SLAVERY.
administration by taking the leaders of both parties into
his counsel. But the attorney - general, Randolph, who
succeeded Jefferson, was by no means a change for the bet-
ter. His position from the very first had been wavering
and uncertain, although as a general rule he sided with
Jefferson. The Republicans therefore did not look upon
him as unconditionally theirs, much less their leader.
Washington could no longer claim with the same force as
before, that so far as the constitution of his cabinet was
concerned, he had done equal justice to both parties, and
still he had by no means strengthened his cabinet. He
had in fact jumped out of the frying pan into the fire. The
greatest reproach that could be made against Jefferson du-
ring his course as secretary of state was his coquetry with
France, a coquetry which bordered on intrigue. Randolph
overstepped these limits. But before it came to light, a
great revolution had taken place in public opinion.
The French government had completely disavowed
Genet, and the new embassador Fauchet began his admin-
istration with moderation and tact.¹ Everybody was, there-
fore, soon ready to excuse France entirely, and to hold
Genet personally responsible for the wrong that had been
done.
England lent great aid to this revival of sympathy for
France. Instead of furthering the change in the opinion
of the American people by reciprocating it, and thus util-
izing it for her own ends, she allowed herself to proceed
still more recklessly in her mad and excited policy. The
English order in council of the 6th of November, 1793,
which forbade the commerce of foreign nations with the
French colonies, was looked upon in the United States as a
token of an unfriendly disposition, to such an extent that
serious thoughts of the possibility of a war began to be
entertained. On the 26th of March, 1794, congress voted
1
¹ Wash., Works, X., p. 401.
THE FIRST EMBARGO.
121
an embargo of thirty days, which was afterwards prolonged
for thirty days more. Other measures, partly to place the
country in a state of defense, and partly to provide for suf-
ficient reprisals for any damage which might accrue to
American citizens, were taken under consideration.' The
news of the modification which the order in council of No-
vember 6 had received by the new one of January 8,
1794, allayed the excitement to some small extent. Clark
of New Jersey proposed on the 7th of April, 1794, in the
house of representatives, that the purchase of British man-
ufactured goods and raw material should be forbidden
until the western posts were surrendered and full com-
pensation made for the losses which the Americans had
sustained in consequence of the violation of their neutral
rights. The house adopted the resolution on the 21st
of April in an amended form, and it seemed not impro-
bable that it would be adopted by the senate also.3 War
would thus have been almost inevitable. Washington,
therefore, resolved to send a minister extraordinary to Eng-
land to make a last effort to bring about a peaceable solu-
tion of the differences between the two countries.4 His
¹ Even here motives not the best came into play. John Adams writes
to his wife on the 10th of May: "The senators from Virginia moved,
in consequence of an instruction from their constituents, that the execu-
tion of the fourth article of the treaty of peace, relative to bona fide debts,
should be suspended until Britain should fulfill the seventh article. When
the question was put, fourteen voted against it, two only, the Virginia
delegates, for it; and all the rest but one ran out of the room to avoid
yoting at all, and that one excused himself. This is the first instance
of the kind. The motion disclosed all the real object of the wild pro-
jects and mad motions which have been made during the whole session."
Life of J. Adams, II., p. 177. It is well known how since then the prac-
tice has increased of avoiding the responsibility of a vote by absence.
By 58 against 38 votes. See the resolution, Deb. of Congress, I., p. 498.
"The vote in the senate at the third reading stood 13 to 13; the vote
of the vice-president decided it in the negative. Life of J. Adams,
II., p. 154.
* Wash., Works, X., pp. 403, 404. Life of J. Adams, II., p. 153.
122
STATE SOVEREIGNTY AND SLAVERY.
choice fell upon chief-justice Jay, whose nomination was
confirmed by the senate after some opposition.¹
Thanks to the statesmanlike moderation with which Jay
went to work, his mission was successful. On the 19th of
November, 1794, he drew up the treaty² of reconciliation,
and on the 9th of March it reached Washington's hands.
The senate ratified it by the constitutional majority of two-
thirds, except Art. 12, which related to the commerce
with the West Indies.3 Washington, however, delayed to
sign it because some of the provisions did not meet his
approbation. This was highly acceptable to the extreme
Republicans. They had begun their agitations against it
even before its contents were known. They were indis-
posed to come to any understanding whatsoever with Eng-
land, because they thought it would have the effect of cur-
tailing the moral and other support which they desired to
see guarantied to France. When, therefore, the indiscre-
tion of a senator5 had made the contents of the treaty pub-
lic, a storm of opposition was immediately raised against
it.
6
The American democracy here exhibited a phase of its
character which has since been frequently observed. Fisher
Ames rebuked the people for allowing themselves to be
too much commanded. The position which they had
hitherto assumed in relation to France justified the re-
proach. But in proportion as they yielded too much to
France they paid too little attention to England. In the
case of the former their fancies led them to adopt an un-
1 Three days before the adoption of Clark's resolution by the house,
but after it had been adopted in committee of the whole.
2 Statutes at Large, VIII., pp. 116-129.
3 June 24, 1795.
Wash., Writings, XI., p. 513.
5 Stevens Thompson Mason of Virginia.
"We the people, are in truth more kickable than I could have con-
ceived." To Wolcott, April 24, 1797. Gibbs, Mem. of Wolcott, I.,
p. 498.
PREJUDICE AGAINST ENGLAND.
123
wise policy, which blunted their feelings for the honor and
dignity of the state; in the case of the latter they yielded to
their caprice even to the point of total forgetfulness of every
political consideration. The question what kind of treaty
the United States ought to have expected under the cir-
cumstances was one which the Republicans did not at all
propose to themselves. While in internal affairs political
wisdom had, in the course of years, degenerated into moral
cowardice, here, where a treaty could, in the nature of
things, be only a compromise between opposing claims,
the very thought of a compromise was branded as a shame-
ful barter of the national honor. The possibilities, with
their various probabilities, were not weighed against one
another, and no effort was made to ascertain whether the
enforcement of the claims made by the United States
was, under the circumstances, to be reckoned among the
possibilities. The feeling of national honor, and the
calm confidence in the national power, were distorted into
sensitive haughtiness and presumptuous declaration.
Where there should have been only sober examination, the
irritated feelings of the people were artfully excited, even
to the blindness of passion, and the dignity of statesman-
like judgment was claimed for the vague feelings of the
masses, now degenerated to the level of mere instincts.
Assemblies of the people without any legal existence
spoke as the "people," and deduced from the principle
of the people's sovereignty their right to make recom-
mendations' to the lawful authorities in the form of ex-
pressions of opinion, which often assumed a mandatory
and even threatening tone. Moreover, the people delighted
in demonstrations, which, besides being indecorous and out
1 "Such errors are unavoidable where the people, in crowds out of doors,
undertake to receive ambassadors, and to dictate to their supreme execu-
tive." J. Adams, on the 19th of December, 1793, to his wife. Life of
J. Adams, II., p. 158.
124
STATE SOVEREIGNTY AND SLAVERY.
of taste, must have been the occasion of great offense to
England.¹
1
The storm first broke out in Boston, New York and
Philadelphia. From the time that the blessings of the
constitution began to be felt, the lower strata of the popu-
lation of the larger cities commenced to swell the ranks of
the anti-Federalists. Sounding phrases and all the arts of the
demagogue could here be made use of with greatest suc-
cess. The plebs of the large cities have always furnished
the best field for doctrinarianism. We find, therefore, that
in the United States as elsewhere they had formed a coali-
tion with the aristocratic south, before it had become pecu-
liarly a slavocracy and before the masses, sunk in a degree
to the level of the proletariat, had made themselves over to
it entirely. The south was from the start the leading
spirit of this alliance, and the only party that reaped any
advantage from it.
The south also, was now the real home of the movement,
although it first broke out in the large cities of the north,
and was there apparently most violent.²
The reception given to the treaty cannot be fully ex-
plained by the existing relations between the United States
and England. It was only in consequence of its Franco-
mania that the opposition assumed the character of blind
rage. This Francomania, however, was not so much one of
the grounds of the separation of parties as one of the
elements which caused that separation to find expres-
sion in a manner pregnant with great consequences. Such
¹ The treaty was burned in Philadelphia in front of the house of the
English ambassador, Hammond, and in Charleston the people dragged
the English flag through the mud in the streets. Gibbs, Mem. of Wol-
cott, I., pp. 218, 220.
2 "The treaty has received a most violent opposition from a certain
Farty in most of the great towns, but in the southern states the opposi-
tion is pretty general." Wolcott, to his father, Aug. 10, 1795. Gibbs,
Mem. of Wolcott, I., p. 224.
THE ALMIGHTY DOLLAR.
125
was their antipathy against England that the majority of
even the Federalists would, spite of the excesses of the
French Revolution, have continued to lean more towards
France, if their material interests had not bound them
more firmly to England. In the southern states, either
this was not the case, or they ignored that it was. Their
policy in this question they looked upon, therefore, simply
as a matter of sympathy or antipathy. In the commercial
north, the dollar turned the wavering scales. Its interest
saved it from swallowing the poison of the doctrinarians
in quantities large enough to affect its vision where the
national honor was concerned. When during the presi-
dency of John Adams, the disagreement between France
and the United States led to an interruption of diplomatic
relations, a small part of the Federalists were in favor of
war. From a war with France they expected, and not
without some reason, that there would be no great injury
to American commerce. By an increase of difficulty with
England, on the other hand, the United States would gain
very little at the best, while the eastern states would nec-
essarily suffer a great deal therefrom. There was little
more needed to carry the struggle to the extent of a war;2
and a war with England meant the ruin of the commerce
of the eastern states. As early as 1793, when peace with
England was endangered by Genet's machinations and
their consequences, there were those in the New England
states who, in no covert language, urged that a dissolution
1
¹ The exports to France and her colonies amounted in 1797 to $12,449,-
076;
in 1798, to $6,968,996; in 1799, to $2,780,504; in 1800, to $5,163,-
833. The exports to Great Britain and her colonies in 1797 amounted to
$9,212,235; in 1798, to $17,184,347; in 1799, to $26,546,987 and in 1800 to
$27,310,289. Pitkin, A Statistical View of the Commerce of the United
States of America, p. 216.
2 Washington writes to Hamilton, Aug. 31, 1795: "It would seem next
to impossible to keep peace between the United States and Great Britain.”
Ham., Works, VI., p. 33.
126
STATE SOVEREIGNTY AND SLAVERY.
of the Union was preferable to a war with England.¹
Hence the geographical grouping of the friends and ene-
mies of the treaty did not escape them, spite of appearan-
ces, which were at first deceptive. Stepping beyond the
limits of the question immediately before them, they
pointed to the division of the republic into two "great
sections" and declared an understanding between them to
be a condition precedent of the continuance of the Union.2
In the north the reaction soon set in. The mercantile
community, which had been induced to join the opposition,
had been either duped or terrorized. The farmers did not
change their mind. When they finally gave expression to
it, after all the questions pertaining to the treaty had been
examined, they were decidedly in favor of it. In the
south, on the contrary, there was little change of opinion,
except among the merchants, and only among a part of
them. Among the masses of the people the intense ex-
citement was followed by a kind of lassitude, while the
leaders became daily more violent in their attacks on the
treaty and its supporters. Madison branded the Federal-
1 "A war with Great Britain, we, at least in New England, will not
enter into. Sooner would ninety-nine out of a hundred of our inhabit-
ants separate from the Union than plunge themselves into an abyss of
misery." Th. Dwight to Wolcott. Gibbs, Mem. of Wol., I., p. 107.
2 Wolcott writes to Noah Webster, Aug. 1st, 1795: "We have every-
thing to hope from the virtue and reason of one part of the community,
and everything to fear from the vice and turbulence of another. It is,
however, certain that the great sections of the United States will not long
continue to be agitated as they have been. We must and shall come to
some explanation with each other." Gibbs, Mem. of Wolcott, I., p. 222.
It is evidence of the keenness of his insight that on this occasion he
characterized slavery as the essential cause of the division, although it
had no direct connection with the treaty. He writes on the 10th of
August, 1795, to his father: "I am, however, almost discouraged with
respect to the southern states; the effect of the slave system has been
such that I fear our government will never operate with efficacy.
Indeed we must of necessity soon come to a sober explanation with that
people and know upon what we are to depend. It is impossible to
continue long in our present state." Ibid, I., p. 224.
"
CAMILLUS."
127
ists as the "British party," and charged them with having
sacrificed "the most sacred dictates of national honor.""
Jefferson was not ashamed to reproach Jay, the well-tried
patriot and chief-justice of the United States, with being
a rogue."2
66
The contest in the press was conducted with an acrimony
and an expenditure of energy such as has not been wit-
nessed a second time since the adoption of the constitu-
tion. Hamilton again entered the lists with all the weight
of his superior mind, and once more it was seen that no
one could withstand his blows. The thirty-eight numbers
of "Camillus" were so forcible that even his bitterest
enemy and his most jealous rival bore the highest testi-
mony which he ever received to his intellectual greatness.
Jefferson entreated Madison in the most imploring man-
ner to accept the contest against the "colossus" of the
¹ Madison, Aug. 10, 1795, to chancellor Livingston, of New York:
Indeed, the treaty from one end to the other, must be regarded as a
demonstration that the party to which the envoy belongs, and of which
he has been more the organ than the United States, is a British party,
systematically aiming at an exclusive connection with the British gov-
ernment, and ready to sacrifice to that object as well the dearest inter-
ests of our commerce as the most sacred dictates of national honor.”
Rives, Life and Times of J. Madison, III., p. 511.
2 Jeff., Works, IV., p. 120. In his own cautious way he uses the word
only in a figure of rhetoric. His blindly-attached biographer therefore
questions whether he really desired to apply the epithet to Jay in
"any personal sense." Randall, Life of Jeff., II., p. 267.
•
S Hamilton, Works, VII., pp. 172–528. "The defense by Camillus
was written in concert between Hamilton, King, and Jay. The writ-
ings on the first ten articles of the treaty were written by Hamilton,
the rest by King, till they come to the question of the constitutionality
of the treaty, which was discussed by Hamilton.
This I have
from King's own mouth. It is to pass, however, for Hamilton's." J.
Adams to his wife, Jan. 31, 1796. Life of J. Adams, II., p. 195. Ac-
cording to J. C. Hamilton, however, Hist. of the Rep. of the U. S. of
Am., VI., p. 273, the original outline of the first twenty-two articles,
and six others, are in Hamilton's handwriting; numbers 23 to 30, and
34 and 35 are by another hand, "with frequent alterations, interlinea-
tions, and additions by Hamilton."
128
STATE SOVEREIGNTY AND SLAVERY.
4
Federalists, because all the written attacks of the Republi-
cans fell to the ground before Hamilton's defense.¹ This
concession was a three-fold compliment to Hamilton, since
he,² as well as Washington³ and the other most prominent
Federalists, Jay himself included, were by no means sat-
isfied with the treaty, but only thought that, considering
every thing, and spite of its many unpalatable provisions
and its many defects, its adoption was less of an evil than
its rejection.
The Federalists were the victors, but the struggle was a
hard one. Washington considered it the most difficult and
serious crisis of his administration.5
The crisis was at an end the moment this decision was
made, so far, at least, as the principal question—the rela-
tions of the United States to Great Britain-was concern-
ed. The questions not immediately involved continued
still for a long time to keep the country in a state of ex-
citement, and exercised no small influence on the internal
political contests of the succeeding years.
It was France which again appeared as an evil spirit be-
tween the parties, and was the cause, first of their greater
¹ Jefferson, Works, IV. pp. 121, 122.
3
2 Hamilton, Works, V., p. 106; VI., pp. 35, etc. Compare Gibbs., Mem.
of Wolcott, I., pp. 223, 224.
3 Washington writes to Randolph, July 22, 1795: "My opinion re-
specting the treaty is the same now that it was, namely, not favorable
to it, but that it is better to ratify it in the manner the senate have ad-
vised, and with the reservation already mentioned, than to suffer mat-
ters to remain as they are, unsettled." Washington, Writings, XI.,
p. 36.
* Washington, Writings, XI., pp. 481, 482, App.; Life and Writings
of J. Jay, IV., pp. 257–259.
"To sum the whole up in a few words: I have never, since I have
been in the administration of the government, seen a crisis which, in
my judgment, has been so pregnant with interesting events, nor one
from which more is to be apprehended, whether viewed on the one side
or on the other." Washington, Writings, XI., p. 48. Compare Gibbs,
Mem. of Wolcott, I. p. 327.
#
THE POLICY OF NEUTRALITY.
129
mutual opposition, and then of the permanent supremacy
of the Republicans.
Washington remained true to his broad and conciliatory
policy towards France, and looked upon the preservation
or re-establishment of amicable relations as the main object
to be secured, so far as other and higher considerations
permitted it. When Gouverneur Morris gave offense to
the committee of safety by the tenacity with which he
adhered to Washington's policy of neutrality, and his re-
call was demanded, Washington yielded to the demand,
although he was completely satisfied with the conduct of
his ambassador. James Monroe was nominated as his
successor, in order that not even the slightest doubt might
be left that the administration still remembered the ser-
vices of France during the Revolution, and would be
ready to respect the lively sympathy which the people still
entertained for it.
The convention announced its approval of these efforts
towards conciliation by voting a public reception to Mon-
roe, at which the latter and the president, Merlin de Douai,
expatiated in extravagant and high-scundiug phrases on
the alliance of friendship and freedom between the two
countries. Washington was, however, by no means satis-
fied with these procceedings. The answer of the secre-
tary of state to the report of the ambassador was couched
in reproving terms, because he had exceeded his instruc-
tions and made use of language not at all in keeping with
the neutral attitude of the United States.¹
The French authorities took the reserved conduct of the
administration all the harder because Monroe's subsequent
course was in complete harmony with the expectations
awakened by his first appearance. He acted as if the ad-
ministration had made him complete master of its discre-
Washington, Works, XI., p. 110; Monroe, View of the Conduct of
the Executive, p. 23.
9
130
STATE SOVEREIGNTY AND SLAVERY.
tion, and recklessly used it to support the position as-
sumed by the Republicans towards France and England.
His want of tact at length assumed so serious a character
that Washington was forced to recall him.¹ Although
Monroe, at the time that his successor, Ch. C. Pinckney,
reached France, was no longer in favor to the same extent
as at first, the directory invested the ceremonies attending
his departure with a character very flattering to him per-
sonally. But the president's answer to Monroe's notice
of his recall was only formally addressed to the ambassa-
dor. It was really directed partly to the administration
and partly to the American people. Presumption, inso-
lence, and sound were carried in the address to an extreme.2
Nor did the matter stop with insulting words. Pinckney
was advised that France would not receive another Ameri-
can ambassador until her grievances were removed.³
Sept., 1796.
"We may here quote a passage to show what insults the anti-Federal-
ists quietly permitted to be offered to them. Although the Americans
are certainly republican in more than the name, they have always been,
as much as the French, and more than any other European people, sub-
ject to the vertigo of republicanism. They would never have accepted
such language from France if she had not been a republic. We give here
the passage from the English translation, as the French original is not
at hand: "France, rich in her liberty, surrounded by a train of vic-
tories, strong in the esteem of her allies, will not abase herself by calcu-
lating the consequences of the condescension of the American govern-
ment to the suggestions of her former tyrant. Moreover, the French
republic hopes that the successors of Columbus, Raleigh, and of Penn,
proud of their liberty, will never forget that they owe it to France.
They will weigh, in their wisdom, the magnanimous benevolence of the
French people with the crafty caresses of certain perfidious persons
who meditate bringing them back to their former slavery. Assure the
good American people, sir, that like them, we adore liberty; that they
will always have our esteem; and that they will find in the French
people republican generosity which knows how to grant peace as it
does to cause its sovereignty to be protected." Elliot, Diplomatic Code,
II., p. 518.
› President's message to congress, May 16, 1797. Statesman's Man-
FRENCH INTRIGUES.
131
Among the grievances of France, Jay's treaty played the
principal part. Monroe had done all in his power, but in
vain, to procure a copy of it for the French government,
before its fate was yet decided.¹ The manner in which
France would have used so early a knowledge of the treaty
may be inferred from the violence with which it was de-
nounced, after its publication in Paris, both by her and by
her ambassador in Washington.
Adet, who was made acquainted with the treaty before it
had been made public, would perhaps have effected more
by his remonstrances, had not the reports of the former
French ambassador, Fauchet, which so gravely compro-
mised Randolph, come to light. But Adet was not dis-
couraged by his first failure. If the ratification of the
the meantime could not
2
treaty which had taken place in
be recalled, it might be used to influence the people in
a manner favorable to the French. Adet, however, took
Genet as his pattern, and like him, overshot the mark.
It was now accepted with no better grace than formerly,
that the ambassador published his official communications
to the administration in the Republican newspapers at the
same time that he made them, for now as then it was
looked upon as an appeal from the administration to the
people. If, when the democratic societies were still in their
bloom, and the blind enthusiasm for French license was
little past its culminating point, the people were unwilling
ual, I., p. 108; State Papers, II., pp. 388-390, 397; Elliot, Diplomatic
Code, II., p. 523.
1
Wash., Writings, XI., pp. 508, 511; Monroe, p. 28; Monroe's letter
to Jay, Jan. 17, 1795. Life of Jay, I., pp. 335, 336.
2 The plan of this work does not permit us to enter more fully into
this interesting question. The extent of Randolph's faults and the
main motives of his action have never been fully ascertained. Gibbs,
in his Memoirs of Wolcott, treats the question exhaustively, but with
partiality. Randolph's written defense is a weak document and throws
little light on the subject.
³ Hildreth, Hist., of the U. S., IV., pp. 681-685.
132
STATE SOVEREIGNTY AND SLAVERY.
to suffer such interference on the part of foreigners, they
were naturally still less disposed to do so now.¹
1
The principal reason for this unwise proceeding on the
part of Adet, a proceeding which his former course gave
no reason to expect, was evidently the desire to influence
the impending presidential election.
How deep the roots of the differences between parties
were, is evident from the fact that Washington was com-
pelled to remain the chief target of the republican press so
long as it was not yet known to the public at large whether
he would decide to appear as a candidate for a third time
or not. When by his farewell address all doubt on this
point was removed, the prospect was immediately changed.
The result of the election was now exceedingly doubtful.
There was no second man to whom the whole of the nation
could be won over. The Federalists, in whose hands the
guidance of the state had hitherto remained, although they
had repeatedly had a minority in the house of represen-
tatives, could not bring forward a single candidate who
could calculate on the unanimous and cheerful support of
the entire party.
There still prevailed at the time a feeling among the
people that the vice-president had a sort of claim to the
succession to the presidency. But even apart from this,
Adams would have been one of the most prominent candi-
dates of the Federalists. The great majority of them soon
gave him a decided preference over all other possible can-
didates. On the other hand, some of the most distin-
guished and influential of the Federalists feared serious
consequences to the party and the country from the vanity
and violence as well as from the egotism and irresolution
¹ John Adams writes Dec. 12, 1796: "Adet's note has had some
effect in Pennsylvania and proved a terror to some Quakers, and that is
all the ill effect it has had. Even the southern states seem to resent it."
Life of J. Adams, II., p. 208.
2 Sept. 17, 1796.
ELECTION OF JOHN ADAMS.
133
with which he was charged. But to put him aside entirely
was not possible, nor was it their wish. They thought,
however, to secure a greater number of electoral votes for
Th. Pinckney, the Federal candidate for the vice-presiden-
cy, which, as the constitution then stood, would have made
him president and Adams vice-president. Although this
plan was anxiously concealed from the people, it caused
the campaign to be conducted by the party with less en-
ergy than if the leaders has been entirely unanimous.
France was naturally desirous of Jefferson's success.
This desire had its origin to a great extent in Adet's altered
attitude since October. Wolcott asserted that Adet had
publicly declared that France's future policy towards the
United States would depend on the result of the election.¹
Some did not hesitate to say that, on this account, Jeffer-
son should have the preference, but on the more thoughtful
Federalists it exerted the very opposite influence.³
2
There is no reason for the assumption that the issue of
the election would have been different, had Adet behaved
more discreetly. But his indiscretion certainly contributed
to make the small majority expected for Adams completely
certain, while Hamilton's flank movement in favor of Pinck-
ney helped Jefferson to the vice-presidency.
The possibility that the president and vice-president
1 "I have been informed in a most direct, and as I conceive authen-
tic, manner, that M. Adet has said that the future conduct of France to-
wards this country would be influenced by the result of our election."
Wolcott to his father, Nov. 27, 1796. Gibbs, Mem. of Wolcott, I., p. 401.
2 G. Cabot informs Wolcott of a conversation with Cutting in which
the latter said that the Federalists had come to the conviction that "we
must soothe France by making their favorite Jefferson president, or we
must take a war with them." Gibbs, Ibid, I., p. 492.
The elder Wolcott, one of the extremest and most influential of the
New England Federalists, declared that if Jefferson was elected, which
could be brought about only by French intrigue, the northern states
would separate from the southern, and never again form a union with
them, unless for military purposes. Gibbs, Ibid, I., p. 409.
134
STATE SOVEREIGNTY AND SLAVERY.
་
1
might be found in "opposite boxes" had inspired Adams
with serious alarms. Whether these were well-founded, the
future alone could tell. The result of the election, how-
ever, left the country in a very serious condition. Wash-
ington's withdrawal removed the last restraint from party
passion. Party lines were now closely drawn, and while
the air was thick with events, it seemed as if a hair were
sufficient, on the very first occasion, to turn the scales on
the other side.
The Federalists had separated farther from the Republi-
cans, but had not formed themselves into a sufficiently
consolidated body. The more moderate and the extremists.
diverged from one another more and more. The former
constituted the great majority of the party, but the latter
numbered the men of the best talent among their members.
Considering the small majority by which they had gained
the election² it could not seem doubtful to them that the
control of the country would be snatched from them if
their internal differences were to grow in strength. And
it was by no means improbable that this would take place.
Hamilton, who, spite of his retirement, had remained
the leading spirit of Washington's cabinet, was uncondi-
tionally recognized by the extremists as their leader, and
his character was not such as made compromise easy. He
was enough of a statesman not to seek blindly after the
desirable. He was content to endeavor to obtain the at-
tainable. What the attainable was, however, he did not
wish any one to inform him. Like all statesmen of the
first rank, he could, once he had accepted the leadership,
do nothing but lead; and could never in matters of impor-
tance be governed by a majority. But his genius alone
'Adams to his wife, Jan. 7, 1796: "It will be a dangerous crisis in
public affairs, if the president and vice-president should be in opposite
boxes." Life of J. Adams, II., p. 192.
2 Adams received 71 electoral votes, one more than was necessary to
a choice.
FEDERALIST FEUDS.
135
could no longer assure him the leadership. It was neces
sary that a favorable revolution should take place in the
condition of things to continue him in it. He had now
to struggle not only against the hate of the Republicans
and the little popularity he enjoyed among the masses of
his own party. The official head of the party, with whom
it was necessary to reckon on every question, was by no
means well disposed towards him. Adams was jealous of
Hamilton's influence, and owed him a grudge not entirely
without reason, on account of the Pinckney intrigue. He
was, besides, an uncertain character, strongly inclined to
act according to the impulse of the moment, one whose
natural firmness was excited by his vanity, arising from
his power over other minds, to an almost stubborn egotism.
Besides, the danger that, on this account, the dissensions.
in the party might produce an open rupture was greatly
increased by the fact that Adams retained Washington's
cabinet, which had been used to consider Hamilton their
leader.
The feuds of the leaders were not, however, the only
thing that seriously endangered the rule of the Federalists.
Party changes had taken place among the masses which
were not favorable to them, and which threatened to be of
a lasting nature. New York, where anti-Federalist ten-
dencies had hitherto predominated, was indeed won over
to the Federalists; but this victory was due only to acci-
dental and temporary causes. The number of their ad-
herents in the southern states had been, on the other hand,
noticeably diminished, and a great part of those who had
thus far followed them began to waver. The two votes in
Virginia and North Carolina which determined the result
ultimately in Adams's favor were due only to the high
esteem in which he was personally held, and to the mem-
ory of his services during the war of the Revolution.
South Carolina had, it is true, given all her electoral votes
to Pinckney, but had with equal unanimity voted for
136
STATE SOVEREIGNTY AND SLAVERY.
Jefferson. Yet it was in Pennsylvania, which had always
gone with New England, but which now, with one excep-
tion, voted for Jefferson and Burr, that the Federalists re-
ceived the hardest blow. It could not be claimed here, as
in New York, that it was only momentary and accidental
causes which had produced this result. A great revolu-
tion in opinion had begun among the rural population of
the northern states, and in Pennsylvania the change was
completed, in consequence of various local causes, sooner
than anywhere else. The impression produced by the meet-
ing of the Philadelphia convention had disappeared by
degrees, while the angry hate excited against England, and
the opposition to commercial interests, had for a consider-
able time been preparing the way for the approximation
of the small land-owners of the northern to the planters
of the southern states.
All these elements combined suggested the thought that
the victory of the Federalists was only a victory like that of
Pyrrhus. The Republicans had good reason to congratu-
late themselves, and to look upon their partial success as a
happy omen of an early and complete triumph. In pro-
portion as they worked out of the position of a party of
opposition to the policy of the Federalists and lost their
excessive and ignorant enthusiasm for the French Revolu-
tion, they became a consolidated organization. The rhet-
oric of the doctrinarians did not exert over them any
longer the same charm as in former years; but simultane-
ously with the abatement of their aimless enthusiasm, their
reveries and vague theories began to assume a positive
form. Both their relative moderation and the gradual
¹ We may here cite one example to illustrate the strange manner in
which it was sometimes attempted to apply the theories of the doctrina-
rians to practical politics. Tennessee had of her own accord separated
herself from the territorial government, projected a state constitution with-
out the authority of congress, and then pretended to be ipso facto a state.
Chauncey Goodrich writes, in relation thereto, to the elder Wolcott:
RISE OF THE REPUBLICANS.
137
transition from mere negation to a positive policy, had
strengthened them internally and made proselytes to them.
The instincts of the great body of the people had been in
sympathy with them from the first, and they remained in
the minority only because by their fervor of denial they
recklessly abandoned all restraint, in consequence of which
the conflict between the material interests of the country
and the negative ends of their ideal policy appeared in too
bold a light.
It may
be that the Republicans would have even now
obtained the upper hand if they had not been so unwise as
to allow the questions of external politics to occupy the
foreground to such an extent that they might be considered
the main point of their policy. It did not escape the ob-
servation of those who saw deeper, that these questions
were in reality but the points of support accidentally af
forded for the gradual evolution of the essential differences,
founded in the internal state of affairs. It has been already
frequently remarked with what energy, even now and on
the most various occasions, it was pointed out, that
these differences divided the country into two geographi-
cal sections. It was reserved, however, for questions of
foreign politics, to give rise to the occasion which should
bring this fact out in such bold relief, that the abyss which
yawned under the Union might be discerned for a moment.
"One of their spurious senators has arrived, and a few days since went
into the senate and claimed his seat by virtue of his credentials from our
new sister Tennessee, as she is called, and the rights of man." Gibbs,
Mem, of Wol., I., p. 338.
138
STATE SOVEREIGNTY AND SLAVERY.
CHAPTER IV.
NULLIFICATION. THE VIRGINIA AND KENTUCKY RESOLU-
TIONS.
Washington's presence made Adams's inauguration a
moving spectacle. Adams remarked that it was difficult.
to say why tears flowed so abundantly. An ill-defined
feeling filled all minds that severer storms would have to
be met, now that the one man was no longer at the head of
the state, who, spite of all oppositions, was known to hold a
place in the hearts of the entire people. The Federalists
of the Hamilton faction gave very decided expression to
these fears,2 and Adams himself was fully conscious that
his lot had fallen on evil days.3
It was natural that the complications with France should
for the moment inspire the greatest concern. The suspi-
cion that France was the quarter from which the new ad-
ministration was threatened with greatest danger was soon
verified by events.
¹ Gibbs, Mem. of Wolcott, I., pp. 461, 462.
2 The elder Wolcott writes: "Mr. Adams will judge right if he con-
siders the present calm no other than what precedes an earthquake.
He can only contemplate, as far as respects himself, whether he will
meet a storm which will blow strong from one point or be involved in a
tornado, which will throw him into the limbo of vanity. That he has
to oppose more severe strokes than as yet it has been attempted to in-
flict on any one, I am very sure of, in case our affairs continue in their
present situation, or shall progress to a greater extreme." Ibid, I., p.
476.
³ Adams writes in the account of the inauguration which he sen. his
wife: "He [Washington] seemed to me to enjoy a triumph over me.
Methought I heard him say: 'Ay! I am fairly out, and you fairly in;
see which of us will be the happiest."" Life of J. Adams, II., p. 223.
1
RUPTURE WITH FRANCE.
139
The inaugural address touched on the relations between
France and the United States only lightly. Adams had
contented himself with speaking of his high esteem for
the French people, and with wishing that the friend-
ship of the two nations might continue. The message of
May 16, 1797, on the other hand, addressed to an extraor-
dinary session of congress, treated this question exclusive-
sively. The president informed congress that the direc-
tory had not only refused to receive Pinckney, but had
even ordered him to leave France, and that diplomatic re-
lations between the two powers had entirely ceased. In
strong but temperate language he counseled them to una-
nimity, and recommended that "effectual measures of de-
fense" should be adopted without delay. It is necessary
"to convince France and the world that we are not a de-
graded people, humiliated under a colonial spirit of fear
and sense of inferiority, fitted to be miserable instruments
of foreign influence, and regardless of national honor,
character and interest." At the same time, however, he
promised to make another effort at negotiation.
Pinckney, Marshall, and Gerry were chosen to make an
effort to bring about the resumption of diplomatic rela-
tions, and the friendly settlement of the pending difficul-
ties. Their efforts were completely fruitless. The direc-
tory did not indeed treat them with open discourtesy, but
met them in such a manner that only new and greater in-
sults were added to the older. Gerry, for whom Adams
entertained a feeling of personal friendship, was most ac-
ceptable to the directory, because he was an anti-Federal-
ist. Talleyrand endeavored to persuade him to act alone.
There can be no doubt whatever that Gerry had no author-
ity to do so. Partly from vanity, and partly from fear of
the consequences of a complete breach, he went just far
¹ American State Papers, II., p. 387, etc.; Statesman's Man., I., p.
107, etc.
140
STATE SOVEREIGNTY AND SLAVERY.
enough into the adroitly-laid snares of Talleyrand to great-
ly compromise himself, his fellow-ambassadors, and the
administration. The want of tact was so much the great-
er, as Talleyrand, by three different mediators," gave the
ambassador to understand that the payment of a large
sum of money was a condition precedent of a settlement.
In the early part of April, 1798, the president laid be-
fore the house of representatives all the documents bear-
ing on this procedure. If, even before his administration
had begun, the general feeling of the country had been
constantly turning against France, now a real tornado of
ill-will broke forth.
3
4
The anti-Federalists would willingly have given currency
to the view that the ambassadors had been deceived by
'Charles F. Adams says in his biography of his grandfather: "Mr.
Gerry, though he permitted the directory to create invidious and in-
sulting distinctions, gave them no opening for advantage over himself.”
Life of J. Adams, II., p. 232. The facts do not justify this assertion.
The president was himself very much offended by Gerry's conduct.
And even the personal explanations afterwards made could only weaken,
but not efface, the unfavorable impression which the president had re-
ceived. It was not until Adams had begun to waver in his position on
the French question, and had thus enlarged the differences between
himself and his cabinet into a breach, that he found nothing to reproach
Gerry with. In this case, as in many others, the judgment of Charles
Francis Adams has been influenced by the desire to make his grand-
father appear in the most favorable light possible. As, besides, his
sources are almost never given, and the reader must be satisfied with
the general assurance that they have been used conscientiously and ex-
haustively, this biography, on the whole a most excellent one, must be
read with great care, especially in what relates to the actions and
motives of Hamilton. Gerry appears in a somewhat too unfavorable
light in Gibbs, Memoirs of Wolcott.
2 The secretary of state, Pickering, suppressed their names in his
communication to congress, and designated them as X., Y., Z.; the whole
affair was, therefore, called the "X. Y. Z. correspondence.”
3 Am. State Papers, III., pp. 169–218.
Gibbs, Mem. of Wolcott, I., pp. 493, 497, 499, 533, 542.
PREPARATIONS FOR WAR.
141
common cheats.¹ But their ranks grew so thin that they
were obliged to proceed with great caution.²
While Jefferson had called the president's message of
March 193 mad, he now declared: "It is still our duty to
endeavor to avoid war; but if it shall actually take place,
no matter by whom brought on, we must defend ourselves.
If our house be on fire, without inquiring if it was fired
from within or from without, we must try to extinguish
it. In that, I have no doubt, we shall act as one man.”
That such would have been the case will be scarcely ques-
tioned now. But although the anti-Federalists did not
think of playing the part of traitors, and although they
gave expression to their sympathy for France only in a
suppressed tone, Jefferson was right when he said that
"party passions were indeed high." The visionaries be-
came sober, and those who had been sober intoxicated.
Hence the discord grew worse than ever.
A small number of the Federalists were anxious for war,
and the rest of them considered it at least as probable as the
¹ Even Randall acknowledges that there could be scarcely any doubt
that "
X., Y., Z." were the authorized agents of Talleyrand. Life of
Jeff., I., 387. Jefferson acted as if he were fully convinced of Talleyrand's
innocence. Jeff., Works, IX., pp. 265, 271, 274, 367, 436. See the proof
of the contrary, Tucker, History of the U. S., II., p. 71.
2 "The Republicans were instantly reduced to a more feeble minority
throughout the nation than they had been any day before since their
first organization as a party." Randall, 1. c. It was especially the
small landed proprietors of the low country who flocked to the support
of the administration. Washington writes to Lafayette, Dec. 25, 1798:
"No sooner did the yeomanry of this country come to a right under
standing of the nature of the dispute, than they rose as one man,
with the tender of their services, their lives, their fortunes, to support
the government of their choice, and to defend their country." Wash.,
Works, XI., p. 380.
Am. State Papers, III., p. 168; Statesman's Manual, I., p. 116.
* Jeff., Works, IV., p. 241. See also the address to the people of
Virginia which accompanied the resolutions of Dec. 24, 1798. Elliot,
Deb., IV., p. 532.
5 Jeff., Works, 1. c.
142
STATE SOVEREIGNTY AND SLAVERY.
preservation of peace. Warlike preparations were there-
fore pushed forward with energy. But it was not consid-
ered sufficient to get ready to receive the foreign enemy;
it was necessary to fetter the enemy at home. The angry
aliens were to be gotten rid of while it was not yet too late,
and the extreme anti-Federalists were to be deterred from
throwing too great obstacles, at this serious time, in the
way of the administration. In the desire to effect both of
these things, the so-called alien and sedition laws,¹ which
sealed the fate of the Federal party and gave rise to the
doctrine of nullification, had their origin.
The plan of this work does not permit us to dwell on
the contents of these laws. Suffice it to say, that, for a long
time, they have been considered in the United States as
unquestionably unconstitutional. At the time, however,
there was no doubt among all the most prominent Federal-
ists of their constitutionality. Hamilton even questioned
it as little as he did their expediency. But he did not
conceal from himself that their adoption was the establish-
ment of a dangerous precedent. Lloyd of Maryland had,
on June 26, introduced a bill more accurately to define
the crime of treason and to punish the crime of sedition,
which bill was intended for the suppression of all exhibi-
tions of friendship for France, and for the better protec-
tion of the government. Hamilton wrote to Wolcott in
relation to this bill that it endangered the internal peace of
the country, and would "give to faction body and solid-
ity."
792
¹ Alien laws, June 25, and July 6, 1798; sedition law, July 14, 1798.
Stat. at Large, I., pp. 570-572, 577, 578, 596, 597.
2 "There are provisions in this bill, which, according to a cursory view,
appear to me highly exceptionable, and such as more than anything
else may endanger civil war. I have not time to point out my objec
tions by this post, but I will do it to-morrow. I hope sincerely the thing
may not be hurried through. Let us not establish a tyranny. Energy
is a very different thing from violence. If we make no false step, we
shall be essentially united; but if we push things to an extreme, we
ALIEN AND SEDITION LAWS.
143
Lloyd's bill did not come up to be voted upon in its orig-
inal form; but the alien and sedition laws were of them-
selves sufficient to realize Hamilton's fears. The suprem-
acy of Massachusetts and Connecticut had become so un-
bearable to the south, that the idea of separation arose
again in May. The influential John Taylor of Virginia
thought "that it was not unwise now to estimate the sep-
arate mass of Virginia and North Carolina with a view to
their separate existence." Jefferson wrote him in relation
to this advice on the 1st of June, 1798,¹" that it would
not be wise to proceed immediately to a disruption of the
Union when party passion was at such a height. If we
now reduce our Union to Virginia and North Carolina,
immediately the conflict will be established between those
two states, and they will end by breaking into their simple
units."
As it was necessary that there should be some party to
oppose, it was best to keep the New England states for this
purpose. He had nothing to say against the rightfulness
of the step. He contented himself with dissuading from
it on grounds of expediency. He counseled patience until
fortune should change, and the "lost principles" might be
regained, “for this is a game in which principles are the
stake."
Considering these views, it is not to be wondered at, that
in consequence of the alien and sedition laws, Jefferson
began to see the question in a different light. We shall
have something to say later on the question whether, and
to what extent, he considered it timely to discuss the se-
cession of Virginia from the Union. But he was soon
satisfied that his opponents had bent the bow too nearly to
the point of breaking, to permit him to look upon further
shall then give to faction body and solidity." Ham., Works, VI., p. 307;
Gibbs, Mem. of Wolcott, II., p. 68.
¹ Jeff., Works, IV., pp. 245-248.
144
STATE SOVEREIGNTY AND SLAVERY.
patient waiting for better fortune as the right policy. It
was no longer time to stop at the exchange of private opin-
ion, and the declarations of individuals. The moment had
now come when the "principles" should be distinctly for-
mulated, and officially proclaimed and recognized. Not to
do this, would be to run the risk of being carried away by
the current of facts to such a distance that it would be dif-
ficult and perhaps impossible to get hold of the principles.
again. But if, on the other hand, this were done, every-
thing further might be calmly waited for, and the policy of
expediency again brought into the foreground. The pro-
test was officially recorded, and so long as it was not, either
willingly or under compulsion, as officially recalled, or at
least withdrawn, it was to be considered as part of the rec-
ord which might be taken advantage of at any stage of the
case. Herein lies the immense significance of the Vir-
ginia and Kentucky resolutions.
Their importance is enhanced by the fact that Madison,
who had merited well of the country, on account of his
share in the drawing up and adoption of the constitution,
and whose exposition of it is therefore of the greatest
weight, was the author of the Virginia resolutions of
December 24, 1798,' and by the further fact that Jeffer-
son, the oracle of the anti-Federalists, had written2 the or-
They were adopted by the house on the 21st, but by the senate not
until the 24th.
2 It throws some light on the character of Jefferson that he gave G.
Nicholas, who was to introduce the resolutions into the legislature of
Kentucky, the "solemn assurance" that "it should not be known from
what quarter they came." He himself gives this further information on
the point: "I drew and delivered them to him, and in keeping their
origin secret he fulfilled his pledge of honor. Some years after this
colonel Nicholas asked me if I would have any objection to its being
known that I had drawn them. I pointedly enjoined that it should not.”
(Jeff., Works, VII., p. 299.) It was in December, 1821, that in answer
to a question confidentially put by Nicholas's son, he first acknowledged
that they originated with him.
VIRGINIA AND KENTUCKY RESOLUTIONS.
145
iginal draft of the Kentucky resolutions of November 10,
1798.¹
Although not in accord with chronological order, it is
advisable to consider the Virginia resolutions first, for the
reason that they do not go as far as the Kentucky resolu-
tions. According to the testimony of their authors, the
resolutions of both legislatures had the same source,² and
there were special reasons why it was necessary to make
the Virginia resolutions of a milder character. Although
a violation of chronological order, it seems, therefore, proper
3
Randall, Life of Jefferson, II., p. 452, erroneously dates them Nov.
14. The house passed them on Nov. 10; the senate agreed to them on
the 13th, and the Governor approved them on the 19th. Elliot, Deb.,
IV., p. 544. Randall relies principally on the erroneous date to support
the assumption that Jefferson's assent to the modifying provisions of
his draft was obtained.
2 Jefferson says that the conference on the Kentucky resolutions took
place between him and the two brothers Nicholas; and he adds: “ I
think Mr. Madison was either with us or consulted, but my memory is
uncertain as to minute details." Jeff., Works, VII., p. 230; J. C. Ham-
ilton, Hist. of the Rep. of the U. S. of America, VII., p. 264.
" Madison himself had well-founded doubts of the constitutionality
of the contemplated procedure, and remarked, that on that account he
had been induced to make use of “general terms" in the Virginia reso-
lutions. He writes to Jefferson on Dec. 29: "Have you ever considered
thoroughly the distinction between the power of the state and that of
the legislature on questions relating to the federal pact? On the sup-
position that the former is clearly the ultimate judge of infractions, it
does not follow that the latter is the legitimate organ by which the com-
pact was made." J. C. Hamilton, Hist. of the Rep. of the U. S. of
America, VII., p. 275. As a matter of course, Madison's constitutional
doubts should have been applied also to the Kentucky resolutions. But
Jefferson, in a letter to J. Taylor, of Nov. 26, Works, IV., p. 259, men-
tions a very important ground why it was necessary, especially in Vir-
ginia, to proceed with great caution. He writes: "There are many
considerations dehors of the state which will occur to you without
enumeration. I should not apprehend them if all was sound within.
But there is a most respectable part of our state who have been envel-
oped in the X. Y. Z. delusion, and who destroy our unanimity for the
present moment."
10
146
STATE SOVEREIGNTY AND SLAVERY.
to consider these as the basis of the Kentucky resolutions,
or rather as a lower round of the same ladder.
The paragraph of the Virginia resolutions of most im-
portance for the history of the constitution, is the follow-
ing:
"Resolved, That this assembly doth emphatically and
peremptorily declare, that it views the powers of the fed-
eral 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 delib-
erate, 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 inter-
pose for arresting the progress of the evil and for main-
taining within their respective limits the authorities, rights
and liberties, appertaining to them.”
The legislature of Kentucky disdained to use a mode of
expression so vague and feeble or to employ language from
which much or little might be gathered as occasion de-
manded. In the first paragraph of the resolutions of the
10th of November, 1798, we read: "Resolved,
that
whenever 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 par-
ty has an equal right to judge for itself, as well of infrac-
tions as of the mode and measure of redress."
Thus were the "principles" established. But in order
that they might not remain a thing floating in the air, it
(6
""
THE WORD
NULLIFICATION.
147
was necessary to provide another formula, by which the
states might be empowered to enforce the rights claimed,
or at least to find a word which would presumably embody
that formula; and which was sufficient so long as they lim-
ited themselves to the theoretical discussion of the ques-
tion. The legislature of Kentucky, in its resolutions of
November 14, 1799, gave the advocates of state rights the
term demanded, in the sentence:
"Resolved, That
the several states who formed
that instrument being sovereign and independent, have the
unquestionable right to judge of the infraction; and that a
nullification by those sovereignties, of all unauthorized acts
done under color of that instrument, is the rightful remedy."
In later times the admirers of Madison and Jefferson
who were true to the Union have endeavored to confine
the meaning of these resolutions within so narrow limits,
that every rational interpretation of their contents has been
represented by them as arbitrary and slanderous. When
about the end of the third and the beginning of the fourth
decade of this century, the opposition to the federal gov-
ernment in Georgia, and especially in South Carolina, be-
gan to assume an alarming form, the aged Madison ex-
pressly protested that Virginia did not wish to ascribe to
a single state the constitutional right to hinder by force
the execution of a law of the United States. "The resolu-
tion," he wrote, March 27, 1831, "was expressly declara-
tory, and proceeding from the legislature only, which was
not even a party to the constitution, could be declaratory
of opinion only." In one sense, this cannot be questioned.
In the report of the committee of the Virginia legislature
on the answers of the other states to the resolutions of
1798, we read as follows: “The declarations are
expressions of opinion unaccompanied by any other effort
than what they may produce on opinion, by exciting re-
flection."
But to concede that this was the sole intention
1 Elliot, Deb., IV., p. 578.
148
STATE SOVEREIGNTY AND SLAVERY.
of the resolutions of the 24th of December, is to deprive
the words, according to which the states had the right and
were in duty bound to "interpose" in case the general
government had in their opinion permitted itself to assume
ungranted power, of all meaning.
But it has never yet been denied that these few words
express the pith of all the resolutions. More was claimed
than the right to express opinions—a right which had never
been questioned. If expression was not clearly and distinctly
given to what was claimed, it was to leave all possible ways
open to the other states to come to an agreement in all
essential matters.¹
Jefferson was in this instance less cautious than Madison,
and his vision was more acute. He thought that the crisis
of the constitution had come,2 and therefore assumed a
standpoint from which he could not be forced back to the
worthless position adopted by Madison in his celebrated re-
port of 1800.3 Jefferson allowed it to depend on the further
course of events whether force should be used, or whether
only the right to employ force should be expressly and for-
mally claimed. At first he was anxious that a middle posi-
tion should be assumed, but a middle position which afforded
a secure foothold. The legislature of Kentucky had done
this, inasmuch as it had adopted that passage in his
draft in which it was claimed that the general government
and the states were equal parties, and in which it was
recognized that the latter had "an equal right to judge"
when there was a violation of the constitution, as well as
to determine the ways and means of redress.
5
Madison, and later, Benton, as well as all the other ad-
¹ Madison in the letter to Jefferson, referred to above.
Randall, Life of Jefferson, II., p. 451.
3
Elliot, Deb., V., pp. 546-580.
4 Madison to Cabell, May 31, 1830. See Jefferson's Correspondence,
III., p. 429, Randolph's Ed., and Madison's Correspondence, edited by
Maguire, p. 286.
5
Thirty Years' View, I., p. 148.
RESPONSIBILITY OF JEFFERSON.
149
mirers of the "sage of Monticello," who were opposed to
the later school of secessionists, have laid great weight on
the fact that the word nullification, or anything of a like
import, is to be found only in the Kentucky resolutions of
1799, which did not originate with Jefferson. This tech-
nical plea in Jefferson's behalf has been answered by the
publication of his works. Among his papers two copies
of the original draft of the Kentucky resolutions of 1798
have been discovered in his own handwriting. In them
we find the following: Resolved, That when the general
government assumes powers "which have not been dele-
gated, a nullification of the act is the rightful remedy:
that every state has a natural right, in cases not within
the compact, [casus non fæderis] to nullify of their own
authority all assumptions of power by others within their
limits."1
That Jefferson was not only an advocate, but the father,
of the doctrine of nullification is thus well established. It
may be that Nicholas secured his assent to the striking out
of these sentences, but no fact has as yet been discovered
in support of this assumption. Still less is there any
positive ground for the allegation that Jefferson had be-
gun to doubt the position he had assumed. Various pas-
sages in his later letters point decidedly to the very oppo-
site conclusion.
But all this is of interest only in so far as it corrects
a misrepresentation of historical facts. It has no impor-
tant bearing on the question itself. If, in fact, Jefferson
had not employed the term nullification, it would be only
a negative merit of the same significance as the negative
merit of Madison that he used the indefinite expression
"to interpose," instead of the definite expressions of the
Kentucky resolutions. It was not the part of Madison to
play the advocate for Jefferson in a case in which he had
'Jeff., Works, IX., p. 469.
150
STATE SOVEREIGNTY AND SLAVERY.
to speak for himself as well. The "principles" presented
and established by the three resolutions were the same in
every respect; they differed only in their form, and each
succeeding one was more in keeping with the nature of the
matter than the preceding. The stone has been cast roll-
ing on an inclined plane, and it rolls on.
If the practical measures proposed were not in harmony
with the principles adopted, that fact might be, for the time
being, of the greatest importance. But what assurance was
there that they would never be in accord with them? The
button on the sword's point is a protection as long as it
covers it; but it may be removed at any moment, and the
sword become as dangerous as if it had never been there.
Besides, the three resolutions were also completely similar
in this, that the proposed practical measures were in no
case such as the principles advocated suggested. While
the legislature of Kentucky employed the ominous word
"nullification,” it solemnly protested that it did not wish
to offer resistance except in a "constitutional manner.”
The year before, it had even declared, that it desired only
to urge the other states to "unite with this state to pro-
cure at the next session of congress a repeal of the uncon-
stitutional and obnoxious acts." Virginia, which had been
so over cautious, or rather so over-crafty, in the language
employed in her resolutions, did not permit herself to make
a similar declaration until 1800, and after the other states²
had unambiguously condemned her course, while the legis-
lature of Kentucky declared that it desired to request con-
gress to repeal these laws, it "resolved" they were com-
pletely void and without force, and it asked the other states
1 This paragraph is wanting in Jefferson's draft. It was substituted
for the sentence erased in the 8th paragraph of the draft. The rest of it
is the 9th paragraph of the resolutions adopted by the legislature.
Delaware, Rhode Island, Massachusetts, New York, Connecticut,
New Hampshire and Vermont. Massachusetts answered the resolu
tions with an exhaustive refutation. Elliot, Deb., IV., pp. 533-537.
66
EFFECT OF NULLIFICATION.
151
to pass similar resolutions. And did not the legislature
of Virginia make essentially the same demand when it
declared it the duty of the states "to interpose" and added:
Resolved, that the general assembly doth solemnly ap-
peal to the like dispositions in the other states, in confi-
dence that they will concur with this commonwealth in
declaring that the acts aforesaid are unconstitutional, and
that the necessary and proper measures will be taken by
each for co-operating with this state in maintaining, unim-
paired, the authorities, rights, and liberties reserved to the
states respectively, or to the people"? And finally, was
not nullification expressly declared by the legislature of
Kentucky to be a constitutional remedy in 1799? In a
word, as the "principles" advanced in the resolutions
were the same, they led to the same logical conclusions,
which were clearly expressed in the Kentucky resolutions,
namely, the right of the states, through the organ of their
legislatures, to "resolve" that laws of congress were un-
constitutional, and therefore void and of no effect.
If the claim to this right were well founded, the consti-
tution was, indeed, different from the articles of con-
federation in particulars; but the political character of the
Union was essentially unchanged, and it was now, as then,
a confederation of the loosest structure. If the right were
acknowledged, the people were placed at the very point at
which they had stood when Washington wrote: "We are
to-day one nation, and to-morrow thirteen." To the ex-
¹ Washington now again declared: "The constitution according to
their [the anti-Federalists'] interpretation of it, would be a mere cipher."
Washington, Dec. 25, 1798, to Lafayette. Works, XI., p. 378. Three
weeks later he wrote to P. Henry: "Measures are systematically and
pertinaciously pursued which must eventually dissolve the Union or
produce coercion." Works, XI., p. 398. Very shortly afterwards the
ultimate consequences of this interpretation of the constitution were
boldly drawn. Tucker, whose edition of Blackstone's Commentaries
appeared in 1803, writes, Vol. I., App., p. 175: "The federal government,
then, appears to be the organ through which the united republics com-
152
STATE SOVEREIGNTY AND SLAVERY.
tent that practice was in accord with theory, a mere mechan-
ical motion would have again taken the place of organic
life. Sooner or later even that must have ceased, for the
state is an organism, not a machine.
As certainly as thistles spring from the seed of the
thistle when it falls on the proper soil, so certainly must
the consequences mentioned above follow under the given
circumstances, from Madison's "to interpose." It is
ridiculous to observe, how, in the United States, the use of
this expression is declared to have been harmless, or even
meritorious, while the word "nullification" is looked up-
on as the source of the whole evil. The apprentice in
magic upbraids the spirits that they do not change their
form and turn back into brooms when he pronounces
the wrong charm. Here the spirits are conjured up, but
their conjurors turn their backs upon them, after the airy
beings have prepared for them the bath they prayed for,
and reproach heaven and earth, but not themselves, when
the flood rushes in thick volumes from their homes into
the highway. As if the spirits ever, of their own accord,
turn into brooms again when they have performed what
they have been commanded.
It was reserved for a later time and another man to
elaborate in detail the doctrine of nullification. John C.
Calhoun solved the riddle on paper in such a way that the
right of nullification appeared not only compatible with
the existence of the Union, but as the condition of its free
development, and of its strength. There was no time as
municate with foreign nations and with each other. Their submission
to its operation is voluntary; its councils, its engagements, its authority,
are theirs, modified and united. Its sovereignty is an emanation from
theirs, not a flame in which they have been consumed, nor a vortex in
which they have been swallowed up. Each is still a perfect state, still
sovereign, still independent, and still capable, should the occasion re-
quire, to resume the exercise of its functions, in the most unlimited
extent." See also Rawle, p. 302, etc.
THEORY OF NULLIFICATION.
153
yet to attempt to strangle the healthy human mind in a
net of logical deductions. The "X. Y. Z. fever," as
Jefferson expressed it, had made the anti-Federalists fear
that the vehicle would roll over them. This fear drove
them, after a little hesitation, to resolve to throw them-
selves between the spokes of the wheels. Perhaps they
might succeed in bringing it to a stand, and might even
cause it to move backwards. But they did not conceal from
themselves that they might be prostrated in the attempt,
or that the spokes might possibly be broken. If this be-
came probable, and the choice were left with them, they
were disposed to allow the vehicle to go to pieces. In
other words, they had yet to offer an exhaustive constitu-
tional defense of nullification; but they conceived its last
practical result as one of various contingencies.
If a minority of the states should insist on the exercise
of the alleged right of nullification, and if the majority
should claim with equal decision the unconstitutionality of
that right, the minority could consider secession only as a
question of expediency. The general government would
either be obliged to concede that every law of congress
should receive the tacit approval of each state before hav-
ing any force there, or it would be compelled to enforce such
laws under all circumstances, and to employ force for that
end if necessary. But if the general government should
attempt to enforce a nullified law, such action on its part
would, according to the doctrine of nullification, be a
breach of the pact which held the states together. The
state in question was no longer legally bound by the pact.
It would depend entirely on its judgment in any given case
to accept the breach of the treaty under protest, or if the
general government was willing, to agree to a compromise
with a reservation as to the ultimate decision of the legal
question, or, remaining for the time being in the Union, to
repel force by force, or finally, to announce its withdrawal
from the Union, dissolved by the breach of the contract.
154
STATE SOVEREIGNTY AND SLAVERY.
A part of the anti-Federalists were of the opinion that
in the case before us, it might well be expedient to employ
force. Of this there is ample documentary evidence. But
under what circumstances they intended to have recourse
to force, and whether in such a contingency they thought
of immediate secession, cannot be determined with any
certainty on account of the vagueness of the language they
employed.
Jefferson, as was his wont, wrote in terms chosen with
the greatest caution. But they are unambiguous enough
to establish this much, that he considered an appeal to the
sword or secession justifiable under the circumstances men-
tioned above; and that he thought it possible that, sooner
or later, he would declare the one or the other of these
steps to be advisable or necessary. He writes to Madison,
November 17, 1798: "I enclose you a draft of the Ken-
tucky resolutions. I think we shall distinctly affirm all
the important principles they contain, so as to hold to that
ground in future, and leave the matter in such a train as
that we may not be committed absolutely to push the mat-
ter to extremities, and yet may be free to push as far as
events will render prudent." Nine days later he writes
to J. Taylor: "For the present I should be for resolving
the alien and sedition laws to be against the constitution,
and merely void; and I would not do anything at this mo-
ment which would commit us further, but reserve ourselves
to shape our future measures or no measures by the events
which may happen."
He assumed precisely the same position a year later.
He now chose even fewer expressions of indefinite mean-
ing. It was in his opinion "essentially necessary" that
the legislatures of Kentucky and Virginia should issue a
reply to the states whose legislatures had declared against
Jeff., Works, IV., p. 25.
2
Ibid, IV., p. 260.
DOCUMENTARY EVIDENCE AGAINST JEFFERSON.
155
the resolutions of 1798 and 1799, "in order to avoid the
inference of acquiescence." On the 5th of September,
1799, he sent Wilson C. Nicholas a draft of such a reply.
The second paragraph reads as follows: "Making firm
protestation against the precedent and principle and re-
serving the right to make this palpable violation of the
federal compact the ground of doing in future whatever we
might now rightfully do, should repetitions of these and
other violations of the compact render it expedient." He
also insisted that expression of warm attachment to the
Union should be made, and added: "we are willing to sac-
rifice to this everything but the right of self-government
in those important points which we have never yielded,
and in which alone we see liberty, safety and happiness;
that not at all disposed to make every measure of error or
of wrong a cause of secession, we are willing to look on
with indulgence, and to wait with patience, till those pas-
sions and delusions shall have passed over," etc.
Madison did not wish that the reservation in the second
clause should be adopted in the answer. Jefferson wrote
on this subject to Nicholas: "From this I recede readily,
not only in deference to his [Madison's] judgment, but be-
cause as we should never think of separation but for re-
peated and enormous violations, so these when, they occur,
will be cause enough of themselves." How it can be
claimed, in view of all these utterances, that Jefferson did
not recognize secession and, as the inevitable and logical
consequence thereof, a resort to the sword as a constitu-
tional right, in the interpretation of the constitution, it is
difficult to understand.¹
¹ John Quincy Adams says in his eulogy on Madison: Concurring
in the doctrines that the separate states have a right to interpose in
cases of palpable infractions of the constitution by the government of
the United States, and that the alien and sedition acts presented a case
of such infraction, Mr. Jefferson considered them as absolutely null and
void, and thought the state legislatures competent, not only to declare,
156
STATE SOVEREIGNTY AND SLAVERY.
Nothing more can be granted to Jefferson's defenders than
that he was sincere when he declared that he would resort
to "extreme measures" only with great reluctance. The
same may be said of the other leaders of the anti-Federa-
lists, almost without exception. But it is a falsification
of the truth of history to pretend that they were now
thinking exclusively of the establishment of "principles."
Washington was of opinion that the peace of Virginia and
of the Union was, "hastening" towards "a dreadful cri-
sis." So deeply was he penetrated by this conviction that
he wrote a long letter to Patrick Henry imploring him to
appear as a candidate for the legislature, in order to stem
the current which was threatening ruin, by the whole
weight of his experience and popularity. The anti-Feder-
alists, and their successors, the Republicans and the Demo-
crats, have always asserted that he was ensnared by Hamil-
ton and his associates, and terrified by phantoms conjured
up only by their fancy and their inordinate desire to rule.
This excuse is a poor compliment to pay; for although
Washington was now on the brink of the grave, his per-
ception was clear enough not to allow that to be argued
away which was transpiring under his eyes. It was a fact
that Virginia had not only dug the mine which she in-
tended at some indefinite future time to use. She took
thought for the morrow, and with busy hands carried the
powder to it, even although she did not yet light the fuse.
2
Hamilton says in his very full letter to colonel Dayton,
speaker of the house of representatives, on the situation
of the Union generally, and especially on the Virginia and
Kentucky resolutions: "The late attempt of Virginia and
Kentucky to unite the state legislatures in a direct resist-
but to make them so, to resist their execution within their respective
borders by physical force, and to secede from the Union rather than sub-
mit to them, if attempted to be carried into execution by force."
¹ Wash., Works, XI.. p. 391.
2 Ibid, XI., p. 387, etc.
VIRGINIA PREPARES TO USE FORCE.
157
ance to certain laws of the Union, can be considered in no
other light than as an attempt to change the government.
It is stated, in addition, that the opposition party in Vir-
ginia, the headquarters of the faction, have followed up
the hostile declarations which are to be found in the reso-
lutions of their general assembly, by an actual preparation
of the means of supporting them by force; that they have
taken means to put their militia on a more efficient foot-
ing; are preparing considerable arsenals and magazines,
and (which is an unequivocal proof of how much they are
in earnest) have gone so far as to lay new taxes on their
citizens.”1
He attaches full faith to these reports, and
again, in January, 1800, declares it his conviction that the
leaders in Virginia were ready to possess themselves of
the government by force. Randall, Jefferson's biographer,
passes over these charges in silence, although he publishes
the letter to Dayton and discusses it minutely. It must
remain undecided whether this silence is to be regarded as
a confession, or whether it means that the person of the
complainant makes all refutation superfluous. The reader
must be satisfied with the declaration that from Hamil
ton's "programme" for the session of congress he will
discover "whether it was Jefferson or his opponents who
attempted to misstate them [party aims] to posterity."
2
When the state-rights party had long been in sure
possession of power, a distinguished member of it from
Virginia took care to let "posterity" know whether Ham-
1
Ham., Works, VI., p. 384.
The spirit of faction is abated nowhere. In Virginia it is more
violent than ever. It seems demonstrated that the leaders there, who
possess completely all the powers of the local government, are resolved
to possess those of the national by the most dangerous combinations;
and if they cannot effect this, to resort to the employment of physical
force. The want of disposition in the people to second them will be
the only preventive. It is believed that it will be an effectual one.”
Ham., Works, Vl., p. 416.
Randall, Life of Jefferson, II., p. 458.
>
158
STATE SOVEREIGNTY AND SLAVERY.
ilton's charges were calumnies and phantoms of his brain,
which, according to the anti-Federalists, always burned
with the fever of monarchy. It was a well-known fact
that at the time that Washington saw a "dreadful crisis
hastening," a large establishment for the manufacture of
arms was set up in Richmond, in which, however, work was
not commenced until some years later. John Randolph
thought it due to the reputation of his state to remove
every doubt as to the object of the erection of this estab-
lishment. He declared in 1817 in the house of represen-
tatives: "There was no longer any cause for concealing
the fact that the great armory at Richmond was built to
enable the state of Virginia to resist by force the encroach-
ments of the then administration upon her indisputable
rights, upon the plainest and clearest provisions of the
constitution—in case they should persevere in their out-
rageous proceedings."
It is not possible to say whether, or to what extent, these
preparations were directly incited by Jefferson and Mad-
ison. The suspicion resting on Jefferson is obviously the
greater, as Madison was from first to last more cautious in
his steps. Nor can any definite answer be given to the
question how far Madison recommended more moderate
measures, or how far a different interpretation of the con-
stitution lay at the foundation of these recommendations.
Every move of his was made with anxious deliberation, and
his native cautiousness, which sometimes degenerated into
weakness and indecision, contributed beyond doubt to cause
him to advise a milder and more tentative procedure.
Besides, it may be that the internal struggle between his
state and national patriotism, in both of which he was
equally honest, hindered him from explaining to him-
self the "interpose." Perhaps he desired to leave open to
¹ Reminiscences of J. A. Hamilton, p. 39, according to the National In-
telligencer.
CHARACTER OF JEFFERSON.
159
himself as well as to the legislatures of the other states all
possible ways of coming to a substantial agreement. It
may be, too, that he entertained some real doubt whether
the letter and spirit of the constitution quite justified the
last conclusion in the Kentucky resolutions of 1799, drawn
from the correct principles-correct in his opinion-which
were the common basis of the Virginia and Kentucky res-
olutions. Whatever estimate of the relative weight of
these two motives may be made, the rôle played by Madi-
son in the constitutional conflict which culminated in 1798
and 1799 throws much light on the real character of the
constitution itself and on the history of the development
of the national spirit during the last decade. Much weight
is not to be attached to the fact that Jefferson read the con-
stitution in such a way, that the union of the states was in
principle, perhaps a looser, and certainly not a firmer, one,
than it had been under the articles of confederation.¹ It was
not a difficult matter for Jefferson to act in opposition to his
own theories; and it was still easier for him to reconcile
himself to a contradiction between his words and his deeds.
Ambition was the sovereign trait in his character. He was
always ready to sacrifice much of his favorite theories to
his feverish thirst for power and distinction, the more
especially as his eminently practical instinct caused him
¹ Article 13 of the articles of confederation says: "Every state shall
abide by the determination of the United States in congress assembled,
on all questions which, by this confederation, are submitted to them."
The opponents of the doctrine of nullification have interpreted this pro-
vision to mean that the laws of congress are absolutely binding on the
states. In the constitution there are provisions which establish the
supremacy of the laws of congress in a still more undoubted manner.
If, spite of this, the doctrine of nullification could possibly and logical-
ly be deduced from it, it must have been much easier to deduce it from
the articles of confederation, for several of the most important links in
the proof are here expressly mentioned, whereas, in the latter, they can
only be inferred from other provisions or words. Hence the indirect
proof in opposition to the theory of nullification, from the 13th article
of confederation, has no value.
160
STATE SOVEREIGNTY AND SLAVERY.
often to doubt the tenableness of his ideal systems. More-
over, as he, partly from interest and partly because misled
by his idealistic reveries, concealed his ambition under the
mask of the greatest simplicity, stoical indifference, and even
of disinclination to accept any political honor or dignity,
so, too, his conscience was not precisely what would be
called tender in the weighing and measuring of words,
whether his own or those of others. Such a character could
scarcely always resist the temptation to make ink and pa-
per say what in his opinion they ought to say. His mode
of thought, which was a mixture of about equal parts of dia-
lectical acuteness and of the fanaticism of superficiality, as
shortsighted as it was daring, made this a matter of no
difficulty. Hence it is that not the slightest weight should
be attached a priori to his interpretation of the constitution.
The direct contrary of this is true of Madison. His
was not a character so thoroughly and harmoniously con-
stituted and developed as Washington's. He, too, con-
cealed the depth of his ambition under a plain and modest
exterior. When it or his over-sensitiveness was wounded,
he, too, could be unjust to his opponents. The violence
with which the party struggle was conducted by degrees.
carried him, also, so far away that he played a more covert
game than can be entirely justified by the excuse of politi-
cal necessity. And when it was a question of opposing a
measure in too great conflict with his own party programme,
he could descend to the letter, and to petty quibbling, if
he could not give his attack the necessary energy from the
higher standpoint of the statesman. Spite of this, how-
ever, there was nothing of the demagogue about him. He
is a purely constituted character, spite of the fact that his
moral principles did not so unconditionally govern him as
to leave his judgment entirely uninfluenced by his desires.
It cannot be charged that he ever consciously approached
the constitution with the intention of discovering in it a
word which he might make to serve his purposes by di-
POSITION OF MADISON.
161
alectical legerdemain. Great weight must therefore be
given to his exposition of the constitution; for he played
a leading part in the Philadelphia convention; was after-
wards the most conspicuous defender of the draft of the
constitution in the Virginia convention; in conjunction
with Hamilton and Jay wrote the Federalist; had a
precise knowledge of the constitution and had familiar-
ized his thought with the minutest details of its provis-
ions. But it can be shown that he now read the con-
stitution in such a way as to find in it something essen-
tially different from what he had advocated in Philadelphia,
and from what he thought he saw in the completed draft
of it. If it be conceded that he did not read the constitu-
tion now so as to introduce anything new into it-and this
will scarcely be denied to-day-these different interpre-
tations can be explained only on two assumptions, that,
leaving all sophistry aside, the terms of the constitution
must admit of essentially different meanings, and that
Madison's political proclivities and judgment had expe-
rienced a radical change since 1787 and 1788. This last
point is important for the understanding of the history of
the constitution, since the causes of the change in Madi-
son's political tendency were not of a personal, but of a
general, nature. Madison is in this respect only the most.
distinguished representative of a large fraction of the
whole people.
Madison did not agree in 1787 with the opinion that had
become current throughout the country, that the states were
sovereign in the proper sense of the word. Said he on
the 29th of June, in the Philadelphia convention: "Their
[the states'] laws in relation to the paramount law of the
confederacy were analogous to that of by-laws to the su
preme law within a state." And he added that the powers
of the states, under the proposed form of government,
¹ Compare the preceding note.
11
162
STATE SOVEREIGNTY AND SLAVERY.
would be still more hampered.¹ This language is very char-
acteristic of his position. All his efforts at the time had
their basis in this fundamental thought, and he followed
out its logical conclusions with as much acuteness as prac-
tical insight. He repeatedly and urgently warned the
country against the disastrous consequences of stopping
half-way. He would not change the legal basis of the re-
lation of the states to the Union, because it was not neces-
sary to do so from his conception of the nature of the
articles of confederation. He desired only to make the
theory of the articles of confederation a living fact by
means of the constitution. He would have the constitu-
tion give to the general government an express and definite
legal remedy, by which every attempt of the states to cur-
tail the legal and actual supremacy of the Union could be
nipped in the bud.
Even before the meeting of the constitutional convention
he writes to Edmund Randolph:2 "Let it have a negative in
all cases whatsoever, on the legislative acts of the states,
as the king of Great Britain heretofore had. This I con-
ceive to be essential, and the least possible abridgment of
the state sovereignties. Without such a defensive power,
every positive power that can be given on paper will be
unavailing."
During the course of the convention he returns again
and again to this point, insisting upon it as "absolutely
necessary to a perfect system," and from first to last does
not deviate by a hair's breadth from his original demand.
He declares, on the 8th of June: "But in order to give the
negative this efficacy, it must extend to all cases. A dis-
crimination would be only a fresh source of contention
between the two authorities. In a word, to recur to the
illustrations borrowed from the planetary system, this
¹ Elliot, Deb., V. p. 256.
* April 8, 1787. Elliot, Deb., V., p. 108.
MADISON IN THE CONVENTION.
163
prerogative of the general government is the great pervad-
ing principle that must control the centrifugal tendency of
the states, which without it will continually fly out of
their proper orbits, and destroy the order and harmony of
the political system." And when the convention finally
adopted the draft without any provision of this kind, he
again declared that it "alone could meet all the shapes
which these [the injurious acts of the states] should as-
sume." We must measure the change in his personal
views on the conditions precedent of a powerful common-
wealth, with a capacity for life and built on a federative
foundation, by these expressions. But this is not say-
ing that the change in his personal views influenced his
interpretation of the constitution, or, if so, to what ex-
tent. Our judgment on this point must depend upon how
far he considered his main object to be attained in 1787
and 1788, spite of the fact that he was not able to secure
an unlimited negative to the government of the Union.
The later school of Calhoun repeatedly appealed to a
word used by Madison in the constitutional convention,
to prove that even those who most strongly advocated a
"consolidation" of the states did not intend to give the
federal government the power to use force in order to com-
pel obedience on the part of a state.
During the debates on the clause authorizing the use of
the power of the whole nation against a delinquent state, he
remarked: "The use of force against a state would look
more like a declaration of war than an infliction of pun-
ishment, and would probably be considered by the party
attacked as a dissolution of all previous compacts by which
it might be bound."3
But this passage must not be separated from the context
if its meaning would be rightly understood. Madison in-
1 Elliot, Deb., V., p. 171.
2
Ibid, V., p. 539.
3
Ibid, V., p. 140.
164
STATE SOVEREIGNTY AND SLAVERY.
troduced his remarks with the declaration that "the more
he reflected on the use of force the more he doubted the
practicability, the justice, and the efficacy of it,” and at
the close he expressed the hope that "such a system would
be framed as would render this resource unnecessary."
The issue of the question, it seemed to him, should be de-
termined by its expediency. He did not contest the right
of the federal government to defend not only its existence
but its rights with force; but he doubted the advisability
of making the use of this extreme remedy necessary, and
the possibility of applying it with success. Hence he
desired that the general government should have the abso-
lute veto, for he could discover no third means; and that
congress should have power to "control" the states was a
question of which he entertained no doubt. Indeed, he
saw the only danger in the usurpation of the states, for
even if “a tendency of the general government to absorb
the states" should appear, it could, in his opinion, be at-
tended by no fatal consequence.¹ The veto was, therefore,
the mildest means which could be discovered to prevent
the evil which had grown out of the unconstitutional pre-
tensions of the state governments. "The existence of such
a check would prevent attempts to commit them. Should
no such precaution be engrafted, the only remedy would be
an appeal to coercion. Was such a remedy eligible? Was
it practicable? Could the national resources, if exerted to
the utmost, enforce a national decree against Massachu-
setts, abetted, perhaps, by several of her neighbors? It
would not be possible.”
Madison may have been right in thinking that the em-
ployment of force against a state would be impossible at
the time, and that hence it would be necessary to give the
general government a peaceable means to check any at-
Elliot, V. p. 222.
2
Ibid, V., p. 171.
PROPOSED VETO OVER STATE ACTS.
165
tempt at revolt before the agitation should become so
intense, and extend to a circle so large, that the authority
of the federal government would be seriously endangered.
But it is surprising that he, and with him all the distin-
guished members of the convention, should have been so
obstinate in declaring the veto to be the only means by
which this end could be attained. The debate had pro-
gressed a great way before he gave his decisive reasons for
this and at the same time clearly declared to what constitu-
tional means congress would be limited without such a pro-
vision. Said he on the 17th of July: "They [the states]
will pass laws which will accomplish their injurious ob-
jects before they can be repealed by the general legislature,
or set aside by the national tribunals." With the excep-
tion of the unambiguous prescription of the legal means,
the only essential difference between the absolute veto and
the power of resistance against the encroachments of the
states at the command of the federal government, accord-
ing to the form of constitution favored by the convention,
is the element of time. The extension of the veto power
over the states, which he proposed, would always at once
prevent, in cases of urgent need, a law which violated the
constitutional prerogatives of the federal government from
coming into force. But if the veto were withheld, delay
would be inevitable, and delay could only mean giving the
seed of an insignificant disagreement time to ripen into
open rebellion.
In the Federalist he advocated the same view. He says,
however: "But ambitious encroachments of the federal
government, on the authority of the state governments
. would be signals of general alarm. Every state
government would espouse the common cause. A corres-
pondence would be opened. Plans of resistance would be
concerted. One spirit would animate and conduct the
¹ Elliot, Deb., V., p. 321.
166
STATE SOVEREIGNTY AND SLAVERY.
whole. The same combination in short would result from
an apprehension of the federal, as was produced by the dread
of a foreign yoke; and unless the projected innovations
should be voluntarily renounced, the same appeal to a trial
of force would be made in the one case as was made in the
other." But he does not speak here of a right of the
states, but only mentions the probability of a fact. This
is evident from the comparison drawn. The forcible re-
sistance of the states to the general government might be
as justifiable as the forcible resistance of the colonies to
England; but in law, it would be, in this case as in that, a
revolution and not a mode of procedure warranted by the
constitution. In the one case as in the other, there would
have been but a naked fact presented, the fact, namely, that
the question had been taken out of the domain of law and
brought before the tribunal which is the ultima ratio of
every people and every age. Madison leaves no doubt as
to what, in contrast with these actual remedies, were the
legal remedies belonging to the states. "In the first in-
stance," he says, "the success of the usurpation will depend
on the executive and judiciary departments which are to
expound and give effect to the legislative acts; and in the
last resort a remedy must be obtained from the people, who
can by the election of more faithful representatives annul
the acts of the usurpers. Here there is nothing said of
the duty of the states "to interpose." It is conceded that
the general government has the exclusive right of decision,
and the only way to reverse this decision is to labor to the
end that, at the time appointed by law, other persons with
different views may be entrusted with it. And how, indeed,
could a constitution which accorded to the states other
means of defense, be advocated by the man who condensed
the knowledge he had learned from history into these words:
¹ Federalist, XLVI.
2 Ibid, XLIV.
992
MADISON'S EARLIER VIEWS.
167
"The important truth which it unequivocally pronounces
in the present case is, that a sovereignty over sovereigns, a
government over governments, a legislation for communi-
ties, as contradistinguished from individuals, as it is a sole-
cism in theory, so in practice it is subversive of the order
and ends of civil policy, by sustaining violence in place of
law, or the destructive coercion of the sword in place of the
mild and salutary coercion of the magistracy"? The say-
ing of John Quincy Adams already quoted, "that the con-
stitution itself had been extorted from the grinding neces-
sity of a reluctant people," will now be better understood.
1 Federalist. XX.
168
STATĚ SOVEREIGNTY AND SLAVERY.
CHAPTER V.
THE PRESIDENTIAL ELECTION OF 1801. THE FALL OF THE
FEDERALIST PARTY. JEFFERSON AND THE PURCHASE OF
LOUISIANA. THE BURR AND FEDERALIST INTRIGUES.
The Virginia and Kentucky resolutions produced no
further immediate consequences. The recognized leaders
of the anti-Federalists or Republicans had given their in-
terpretation of the constitution and of the Union created
by it. Their declarations remained a long time unused,
but also unrecalled and unforgotten. The internal con-
tests continued and their character remained the same.
The revolution in the situation of parties now necessitated
a change of front on both sides, and for a time also the
battles between them were waged over other points and in
part in another way.
The next collision was an actual struggle for supremacy.
An inadequate provision of the constitution alone made
this battle a possibility to the Federalists; but the struggle
over the question of the constitution was after all consid-
ered only as a mere accidental collateral circumstance.
The Republicans had won the presidential election by a
majority of eight or nine electoral votes. Their two can-
didates, Jefferson and Aaron Burr, had each received sev-
enty-three votes. They intended that Jefferson should be
president and Burr vice-president. Spite of this, however,
they gave both the same number of votes, either not to en-
danger Burr's election, or because he became a candidate
only on that condition. This was, considering Burr's want
1
1
Wolcott asserted that Burr proposed this condition and that it was
accepted by prominent Republicans. Gibbs, Mem. of Wolcott, II., p.
TIE-VOTE FOR THE PRESIDENCY.
169
of principle, and the boldness of his character, a dangerous
experiment. Judge Woodworth charged that Burr had won
over one of the electors of New York to withhold his vote
from Jefferson, and that this was prevented only by the fact
that the other electors of the state had discovered it in time.¹
If this charge be well-founded, it was by mere accident that
the country escaped electing a man president whose name
had never yet been connected with the presidency by any
party. But be this as it may, the danger that the bank-
rupt, foolish voluptuary, for whom no means was too low to
carry out the adventurous plans of his daring and mad am-
bition, should be made chief of the republic, was by no
means removed.
If an equal number of electoral votes should be cast for
two or more candidates, the house of representatives would
have to elect one of them to the presidency. In this case,
the votes would be cast by states, and it would be neces-
sary that a majority of all the states should vote for one of
the candidates in order to have a valid election. The Fed-
eralists had a majority in the house of representatives, but
voting by states they could control only one-half the votes.
This was just sufficient to prevent an election.
No one denied that the majority of the people, as well
as the republican electors, desired to make Jefferson presi-
dent. But party passion had reached such a feverish
height that the Federalists resolved, spite of this, to plant
themselves on the letter of the constitution, and to hinder
488. Randall, Life of Jefferson, II., p. 573, calls this an absurd state-
ment, but produces no proof therefor, except a letter of Jefferson's dated
Dec. 15, 1800, to Burr, in which he intimates that he expects to receive a
larger number of votes. J. C. Hamilton, Hist. of the Rep. of the United
States, VII., p. 425, gives, however, good grounds for the assumption
that Jefferson at this time was aware of the equality of the vote. A let-
ter (Ibid, VII., p. 424) from Madison to Monroe, quoted by Hamil
ton, tends rather to prove than to disprove that such a promise had been
made in favor of Burr.
¹J. C. Hamilton, VII., pp. 424, 425.
170
STATE SOVEREIGNTY AND SLAVERY.
Jefferson's election. The possibility of electing their own
candidates¹ was completely excluded by the constitution.
They could therefore do nothing except to obtain for Burr
a majority of the votes of the states, or prevent an elec-
tion. In case no president was elected by the states, they
thought of casting the election on the senate. The senate
was to elect a provisional president-from among the sena-
tors or not-who then might be declared president of the
United States. Such a proceeding could not be justified
by any provision of the constitution; the case had not been
provided for at all. It is impossible to say whether this
is the reason why the plan was soon dropped; certain it is,
however, that Gibbs's statement that such a plan never
existed is incorrect.4
3
After some hesitation they resolved to try to elect Burr.
Only six states, it is true, voted for him, but it was neces-
sary to win over only four votes in order to guaranty
him the legal majority of nine states.
1
¹ Adams and Pinckney.
2 They thought, for instance, of chief-justice Marshall.
3 It is impossible to understand how, spite of this, Adams could write:
"I know no more danger of a political convulsion, if a president pro
tempore of the senate, or a secretary of state, or speaker of the house,
should be made president by congress, than if Mr. Jefferson or Mr.
Burr is declared such. The president would be as legal [!] in one case
as in either of the others, in my opinion, and the people as well satis-
fied." Adams, Works, IX., p. 98.
* Mem. of Wolcott, II., p. 98.
5
Bailey and Livingston, of New York, Lynn, of New Jersey, and
Dent, of Maryland. New Jersey and Maryland gave him an equally
divided vote. Lynn inclined towards the Federalists, and Dent was a de-
cided Federalist. The two representatives from New York named above
were not considered very particular friends of Jefferson. The assump-
tion that, under certain circumstances, a majority might be obtained
for Burr does not seem to be quite as absurd as Randall represents it in
his life of Jefferson. Life of Jeff., II., p. 605. Its probability is in-
directly increased by the fact that the Federalists, who alone decided the
issue in favor of Jefferson, drew upon themselves the suspicion of cor-
rupt influence. See J. C. Hamilton, Hist. of the Rep. of the U. S. of
THREAT OF FORCIBLE RESISTANCE.
1
171
The prospect of the success of both plans was at least
great enough to inspire the Republicans with serious
fear. Jefferson had written on the 15th of December to
Burr that "decency" compelled him to remain “ com-
pletely passive" during the campaign. But now he con-
sidered the situation so serious that he thought himself no
longer bound by "decency." He personally requested
Adams to interfere by his veto, if the Federalists should
attempt to turn over the government, during an interreg-
num, to a president pro tem. Although he declared that
such a measure would probably excite forcible resistance,
Adams refused to be guided by his advice.²
Madison proposed another means of escape. He thought
that an interregnum until the meeting of congress in De-
cember, 1801, would be too dangerous; Jefferson and Burr
should therefore call congress together by a common proc-
lamation or recommendation. This step could no more
be justified by any provision of the constitution than an
interregnum under a provisional president. Madison
himself conceded that it would not be "strictly regular."³
But the literal interpretation was presumably the alpha
and omega of the political creed of the Republicans.
Spite of this the notion met with Jefferson's approbation.*
Between the two parties, or rather above them, stood the
founder of the Federalist party himself. Even Hamilton
Am., VII., pp. 464, 465, 467, 468. Benton, in his Abridgment of the
Debates of Congress, omits the passage cited by Hamilton from Bay-
ard's speech.
¹Jeff., Works, IV., p. 340.
2 The Anas., Jeff.'s Works, IX., p. 210.:
4
³ Madison to Jefferson, Jan. 10, 1801: “And if, in reference to the con-
stitution, the proceeding be not strictly regular, the irregularity will be
less in form than any other adequate to the emergency, and will be in
form only, rather than in substance." J. C. Hamilton, Hist. of the Rep.
of the U. S. of Am., VII., pp. 431, 432. Compare Ham., Works, VI.,
p. 509.
4 Jeff., Works, IV., p. 355. Edition of 1854.
172
STATE SOVEREIGNTY AND SLAVERY.
2
advised that a concession should be made to the interests
of political expediency.¹ The possibilities which the equal
electoral vote placed in the hands of the Federalists in the
house of representatives were to be used wherever possible,
to force certain promises from Jefferson. But Hamilton
did not wish to go any farther. He declared the project of
the interregnum to be "dangerous and unbecoming," and
thought that it could not possibly succeed. Jefferson or
Burr was the only question. When his party associates.
also seemed to have adopted this view, he used his whole
influence to dissuade them from smuggling Burr into the
White House. He had written to Wolcott on the 16th of
December, that he expected that at least New England
would not so far lose her senses as to fall into this snare.
When he was mistaken in these expectations he wrote let--
ter after letter to the most prominent Federalists who
might exert an influence directly or indirectly on the elec-
tion. "If there be a man in the world," he wrote to
Morris, "I ought to hate, it is Jefferson." Spite of this,
however, he pleaded for Jefferson's election harder than any
1 It cannot be denied that this concession was greater than is to be
desired for Hamilton's political fame. He writes to Wolcott, Dec. 16:
"Yet it may be well enough to throw out a lure for him [Burr] in order
to tempt him to start for the plate, and to lay the foundations of dissen-
sion between the two chiefs." Ham., Works, VI., p. 486. It is charac
teristic of the book written by Hamilton's son and often here referred to,
that he does not print this passage, although he gives a literal reproduc-
tion of a large portion of the letter. Hist. of the Rep. of the U. S. of
Am., VII., pp. 434, 435. Besides, this is not by any means the only in-
stance in which Hamilton's political morality suffered in the violence
of party strife.
2." It has occurred to me that perhaps the Federalists may be disposed
to play the game of preventing an election, and leaving the executive
power in the hands of a future president of the senate. This, if it could
succeed, would be, for obvious reasons, a most dangerous and unbecom
ing policy. But it is well it should be understood that it cannot suc-
ceed." Ham., Works, VI., p. 508.
9
' Ham., Works, VI., p. 499.
ELECTION OF JEFFERSON.
173
Republican: "for in a case like this," he added, "it would
be base to listen to personal considerations." Besides, he
always dwelt with emphasis on the folly, the baseness, the
corruption and impolicy of the Burr intrigue. In all these
letters, some of which are very lengthy, he shows himself
the far-seeing statesman, and examines everything with
calmness and incision; but at times he rises to a solemn
pathos. With the greatest firmness, but at the same time.
with a certain amount of regret, he writes to Bayard: "If
the party shall, by supporting Mr. Burr as president, adopt
him for their official chief, I shall be obliged to consider
myself as an isolated man. It will be impossible for me to
reconcile with my motives of honor or policy the contin-
uing to be of a party which, according to my apprehension,
will have degraded itself and the country.
92
Hamilton's intellectual superiority was still recognized
by the Federalists, but spite of this he stood almost isola-
ted from every one. The repulsive virulence with which
the party war had been waged during all these years, and
the consciousness that their defeat was in a great measure
due to the bitter and exasperating contentions among them-
selves, had dulled the political judgment and political mor-
als of most of the other leaders. Hamilton's admonitions
were not without effect, but he was not able to bring about
a complete surrender of the plan which was as impolitic as
it was corrupt. The electoral contest in the house of rep-
resentatives continued from the 11th to the 17th of Feb-
ruary. Not until the thirty-sixth ballot did so many of the
Federalists use blank ballots that Jefferson received the
votes of ten states and was declared the legally elected
president. According to the testimony of the Federalist
representatives themselves, the field would not even yet
have been cleared were it not that Burr had surrendered
¹ Ibid, VI., p. 501.
2 Ibid, VI., p. 419. This letter is erroneously dated Jan. 16, 1801.
174
STATE SOVEREIGNTY AND SLAVERY.
his ambiguous position. He could not completely and
formally renounce his Republican friends, and hence the
Federalists received from him only vague and meaningless.
assurances. Under these circumstances, it would have
bordered on insanity to have plied every art to secure Burr's
election, for, spite of his brilliant gifts, he was looked
upon as a thoroughly contemptible man.¹ All the dangers
to the party and the country which would have been the
consequences of the success of their intrigues, they would
have knowingly entailed in order to place an unworthy
character at the head of the government, one who would
have turned his back on them the moment they had helped
him into power. They would have been throwing dice to
determine the future of the Union, simply for the satisfac-
tion of venting their hatred on Jefferson.2
re-
Every one was fully conscious of the magnitude of the
crisis. Bayard wrote to Hamilton on the 8th of March
concerning the last "caucus" of the Federalists: "All
acknowledged that nothing but desperate measures
mained, which several were disposed to adopt, and but few
were willing openly to disapprove. We broke up each
time in confusion and discord, and the manner of the last
ballot was arranged but a few minutes before the ballot was
given."
Some years later he repeated the assertion under
oath, that there were some who thought it better to abide
by their vote, and to remain without a president, rather
than choose Jefferson.* But reason and patriotism at
1
¹ Sedgwick to Hamilton: "As to the other candidate [Burr], there is
no disagreement as to his character. He is ambitious, selfish, profligate.
His ambition is of the worst kind; it is a mere love of power, regardless
of fame, but as its instrument; his selfishness excludes all social affec-
tions, and his profligacy unrestrained by any moral sentiment, and de-
fying all decency. This is agreed." Ibid, VI., pp. 512, 513.
2 The political campaign of 1872 offers many analogies to this. See
the admirable article in the Nation of October 17, 1872, pp. 244, 245.
3 Ham., Works, VI., p. 523.
Randall, Life of Jeff., II., p. 608
THE REPUBLICAN ULTIMATUM.
175
length obtained the mastery. Bayard seems to have been
the instrument of this decision.¹
How much Hamilton contributed to the defeat of the
advocates of the va banque! it is not easy to estimate.
Randolph, at the time a member of the house of represen-
tatives, often expressed his conviction that the safety of the
republic was due to Hamilton.2 There was no difference
of opinion in the two parties on this, that the victory of
the stubborn Federalists would have seriously endangered
the republic.
One month before the balloting began we find the con-
viction prevalent among the Federalists that the Republi-
cans would, under no circumstances, be satisfied with
an interregnum, or with the election of Burr. James
Gunn, a federal senator from Georgia, wrote to Hamilton
on the 9th of January: "On the subject of choosing a
president some revolutionary opinions are gaining ground,
and the Jacobins are determined to resist the election of
Burr at every hazard.
I am persuaded that the
Democrats have taken their ground with the fixed resolu-
tion to destroy the government rather than yield their
point."3
The Republicans did not oppose this conviction, but de-
clared it to be well-founded with all the emphasis with
which such declarations have always been made in America.
Jefferson wrote to Monroe on the 15th of February, two
days before the election: "If they [the Federalists] had
been permitted to pass a law for putting the government
into the hands of an officer, they would certainly have pre-
vented an election. But we thought it best to declare
openly and firmly, one and all, that the day such an act
¹ John Adams to Jefferson, June 14, 1813: "You and Mr. Madison are
indebted to Bayard for an evasion of the contest." Adams, Works, X., p.
43.
2 Garland, Life of Randolph, I., p. 187.
3
Ham., Works, VI., p. 509.
176
STATE SOVEREIGNTY AND SLAVERY.
པད་
was passed the middle states would arm, and that no such
usurpation, even for a single day, should be submitted to.
This first shook them, and they were completely alarmed
at the resource for which we declared, to wit, a convention
to re-organize the government and to amend it." Armed
resistance, followed by a peaceful revolution;2 such was the
last word of the Republicans. The Federalists rightly
considered this ultimatum to be no vain threat. In a let-
ter written the day after the election to Madison, Jefferson
speaks of the "certainty" that legislative usurpation
would have met with armed resistance. And Jefferson's
testimony is by no means the only evidence. Even the
press began to treat the subject of "bella, horrida bella!”
More than this: In Virginia, where the excitement was
greatest, establishments had already been erected to supply
the necessary arms, and even troops. John Randolph, in
the speech already mentioned, had completely lifted the
curtain that hung over this subject. Reliance was to be
placed on Dark's brigade, which had promised to take pos-
session of the arms in the United States armory at Harper's
Ferry.5
1
¹ Jeff., Works, IV., p. 354.
3
2 The word revolution seems to be justified, because it is not to be as-
sumed that Jefferson here meant to speak of the calling of a convention
in the manner prescribed by the constitution.
* See the letter of St. George Tucker to Monroe (Jan. 7, 1801), in J. C.
Hamilton, Hist. of the Rep. of the U. S. of America, VII., p. 432, and that
of Th. Mann Randolph, Jefferson's son-in-law, to Monroe, Feb. 14, 1801.
* See an interesting extract from Porcupine's [Cobbet's] Gazette, in
Randall, Life of Jeff., II., p. 603.
5 "We did not then rely upon the Richmond armory, not yet in opera-
tion, but on the United States armory at Harper's Ferry. At that time,
when the constitution itself was put at hazard, rather than relinquish
the long-enjoyed sweets of power, when the sun rose upon the house
balloting-balloting through the night, and through successive days
for a chief magistrate—had we not the promise of Dark's brigade, and
of the arms at Harper's Ferry, which he engaged to secure in case of
an attempt to set up a pageant under color of law to supersede the pub-
PRESIDENTIAL POLICY OF JEFFERSON.
177
The idea of waging war on the Union with its own
weapons is very old; the secessionists did nothing more
than carry out the plan which the "fathers" of the re-
public had considered as embodying the proper course un-
der certain contingencies.
The victory of the Republicans did not by any means
produce the revolution in internal politics which was to be
expected. When the electoral vote had been made known,
Jefferson, in the first transports of his joy over the victory,
blew with all his might the trumpet of the opposition.
He tendered chancellor Livingston a place in his cabinet,
that he might be of some service in the "new establish-
ment of republicanism; I say for its new establishment,
for hitherto we have only seen its travestie." The stub-
born resistance of the Federalists, which wounded his
vanity not a little, increased his angry feeling against
them. On the 18th of February he furnished Madison
with an account of the election. He lays particular stress
on the fact that the Federalists did not finally vote for
him, but that there was an election only because a part of
them abstained from voting, or only used blank ballots.
"We consider this, therefore," he says, "a declaration of
war on the part of this band.'
192
These utterances are thoroughly in keeping with Jeffer-
son's preceding course, and with his words and actions
towards the Federalists and their policy. Spite of this,
however, his own future policy is not to be inferred from
them. Hamilton did not fall into this error, because he
was well acquainted with the main traits of Jefferson's char-
lic will, after defeating the election by the pertinacious abuse, under the
pretense of the exercise, of constitutional right to support one of the
persons returned by artifice, whom they professed to abhor. General
Hamilton had frowned indignantly upon this unworthy procedure, for
which he had paid the forfeit of his life.”
¹ Jeff., Works, IV., p. 339.
2 Ibid, IV., p. 355.
12
178
STATE SOVEREIGNTY AND SLAVERY.
acter, and estimated their relative value correctly, although
his judgment on the whole may have been somewhat too
severe. He therefore saw and foretold the character of
Jefferson's policy better than Jefferson himself could have
done while under the influence of the excitement of the
political campaign. Hamilton writes to Bayard, Jan. 16,
1801: "Nor is it true that Jefferson is zealot enough to
do anything in pursuance of his principles which will con-
travene his popularity or his interest. He is as likely as
any man I know to temporize, to calculate what will be
likely to promote his own reputation and advantage; and
the probable result of such a temper is the preservation of
systems, though originally opposed, which being once
established could not be overturned without danger to the
person who did it. To my mind, a true estimate of Mr.
Jefferson's character warrants the expectation of a tempo-
rizing rather than of a violent system."
This judgment of Hamilton found its confirmation in
the inaugural address of the new president. In it Jef-
ferson counsels that the rights of the minority should be
held sacred, that a union in heart and soul should be
brought about, and that an effort should be made. to do
away with despotic political intolerance as religious intoler-
ance had already been done away with. "We have called
by different names brothers of the same principle. We are
all Republicans-we are all Federalists."2
Jefferson could not only use such language without dan-
ger, but it was unquestionably the best key in which he
could have spoken, although the extreme Republicans would
have much preferred to listen to a vae victis! He had
asserted as early as the spring of 1796, that "the whole
landed interest," and therefore a large majority of the peo-
Ham., Works, VI., p. 420.
2 State Papers, IV., p. 10; Statesman's Manual, I., p. 150.
s Van Buren, Political Parties, rightly remarks that this expression
embraces the owners of the land as well as its cultivators.
DOWNFALL OF HAMILTON.
1
179
ple, belonged to the Republican party. There is now little
difference of opinion on the point that Jefferson would im-
mediately have followed Washington in the presidential
chair, if the electors had been nothing but the men of straw
into which they afterwards degenerated. But even if this
could be rightly questioned, it would not yet follow that
the majority of the people were then really inclined to the
Federal party. The Republicans were far inferior to the
Federalists in the numbers and the ability of their leaders;
and, moreover, the great monied interests of the northern
states were the corner-stone of the Federal party. These
were two elements which might very well keep them in
power a while longer, even if the majority of the people
were in reality more attached to the principles of their
antagonists. But they were not a support on which they
could establish lasting rule. In a democratic republic, the po-
litical influence of the monied interests, when they have not
attained the immense proportions they have in the Amer-
ica of to-day, is, as a rule, very limited, and that of talent
is very frequently still smaller. Hamilton's lead was fol-
lowed as long as the pressure of necessity was felt. But as
soon as the most difficult labor of organization was done,
his superiority became one of the greatest obstacles which
stood in the way of his public activity. Not only did the
Federalists put him aside by degrees, but their fault-find-
ing with his actions and omissions began here and there to
partake of the tone of the most odious attacks made by
the Republicans on his policy.2 This was a sign of the
time which deserved the most earnest consideration. When
in a political party in a popular state a breach occurs be-
tween its founders and the masses that compose it, its
days are as a rule numbered. If the breach takes place
'Jeff., Works, IV., p. 139.
2 "Hamilton is obnoxious and persecuted by popular clamors, in
which Federalists to their shame join." Fisher Ames, Works, I., p.
289.
180
STATE SOVEREIGNTY AND SLAVERY.
after the essential idea on which the party was founded has
been realized, it will not and cannot be long survived.
This one essential idea, which constituted the real spark
of vitality in the Federalist party, had been realized be-
fore the end of Washington's second term as president, and
the existence of the work as well secured as was possible
under the circumstances. The force which moved the
pendulum in its forward motion was exhausted. And if
it did not begin its backward course immediately, but
seemed to stand for a moment in suspense, it was because
an accidental force acted upon it from without. The pro-
longation of the supremacy of the Federal party was due
mainly to the unhealthy attitude assumed by the anti-
Federalists towards France. When the fruits of this be-
gan to be reaped in the transactions under the government
of the directory, the power of the Federalists, which was
then declining, at once mounted to its zenith. The con-
gressional elections of 1799 were very favorable to them.²
The value of this success, however, must not be over-esti-
mated, as it was owing to a question of external politics.
Only in case foreign politics, by the outbreak of war,
should be kept most prominently in the foreground, could
they hope that their success would obtain a more lasting
character. But the quarrel between France and the United
States had reached its height with the X. Y. Z. affair and
with Gerry's return. When Adams, contrary to a former
solemn assurance, resolved to send a new embassy to France,
the Republicans soon regained the ground they had lost;
for the attitude of the people towards questions of home
politics remained essentially unaltered.
"Then they were very strong." F. Ames, 1. c.
1
2
2 The change in the southern states especially was very great. In
Georgia two Federalists were elected. Of the six representatives from
South Carolina, five were Federalists, of the ten from North Carolina
seven, and of Virginia's nineteen, eight. In the New England states
only one anti-Federalist was elected. Only in the middle states could
the Federalists boast of no great success.
GROWTH OF THE REPUBLICAN PARTY.
181
The position of the Federalists in the presidential elec-
tion of 1801 had been a desperate one. The hopelessness or
their situation drove them to the rash and despicable game.
in the house of representatives. They would have been
deterred from it if they could have ascribed their defeat to
accidental and transitory causes. The correspondence of
their leaders, however, shows plainly that their faint hope
of better success after four years was only a hope against
their better judgment. The reaction had fairly set in.
The Republicans did not dare to touch the essential things
which had been accomplished during the twelve years' vic-
tory of the Federalists over them, and did not even desire
to do so; for the same matter is seen very differently from
the point of view of the administration and of the oppo-
sition. It might not be expected of them that they would
intentionally increase the heritage left them, but if they
would not immediately squander it, the capital would bear
interest and increase. More was not to be expected. The
defeat of the Federalists was a decisive one, for even the
citadel of their strength was undermined. While in the
southern states a more temperate feeling prevailed, the
Republicans in the New England states began to celebrate
triumphs. The decisive point, however, was that they
obtained a firm footing in the rural districts, whereas,
hitherto they had found adherents only among the more
mercurial population of the large towns.2 The choice
troops of the Federalists began to waver on every side, and
the intrigues of the leaders in the house of representatives
1
"While the eastern states have grown worse, I verily believe the
southern have grown better." F. Ames, Works, I., p. 288.
2 "Jacobinism is certainly spreading from towns and cities into the
country places. It is less watched and less warmly resisted in the latter
than in the former. It is therefore getting to be much at home in the
country, and will remain till the convulsion of some great internal
events shall change the whole political and moral order of our nation."
F. Ames to Wolcott, Jan. 12, 1800. Gibbs, Mem. of Wolcott, II., p.
321.
182
STATE SOVEREIGNTY AND SLAVERY.
1
gave the impulse to the complete dissolution of their
ranks. Yet neither the sense of honor, nor the healthy
judgment which drew from Hamilton the declaration that
he must renounce a party which had thus soiled its name,
was wanting among the masses. It was seen at the moment
how great was the mistake made. Even during the bal-
loting in the house of representatives, the Federalists
went over in swarms to the enemy; every vote for Burr
was another nail in the coffin of the party. This sudden
and violent fall of the Federal party explains the security
which the continuance of the Union enjoyed during the
two following decades. The party which represented partic-
ularistic tendencies was in possession of power, and had an
overwhelming majority. In the next presidential election
Jefferson and Clinton received each one hundred and sixty-
two electoral votes, while Charles C. Pinckney and Rufus
King received only fourteen each, and in 1805 there were
only seven Federalists in the senate. But even if the proba-
bility of a disruption was therefore very small, the character
of the internal struggle remained the saine. This character
was even placed in a clearer light by the fact that the parts
played by each were changed, so far as the question of right
was concerned, and that the opposition, spite of its weakness,
was not satisfied with wishes and threats of separation, but
began in earnest to devise plans of dissolution.
2
According as it became evident in what manner Jeffer-
son thought of carrying out in detail the abstract proposi-
tions of his inaugural address, the broken ranks of the
Federalists began to rally again. A large number had
¹ Jefferson writes to Madison the day after the election: "But their
conduct seems to have brought over to us the whole body of Federalists,
who, being alarmed with the danger of a dissolution of the govern-
ment, had been made most anxiously to wish the very administration
they had opposed, and to view it, when obtained, as a child of their
own." Jeff., Works, IV., pp. 355, 356.
2 The Republicans had obtained victories even in New Hampshire
and Massachusetts.
THE MISSISSIPPI QUESTION,
183
gone over permanently to the Republican party, but the
leaders resumed the struggle with redoubled energy and
acrimony. A division in the Republican camp, which had
been gradually broadened by Burr's ambitious plans, gave
them new hope that they would sooner or later obtain con-
trol of the helm once more.
1
Even Hamilton again drew near to his former associates.
He could not renounce politics and naturally sided with
the opposition, although he defended Jefferson against the
exaggerated charges of the rest of the Federalists, and fore-
told that his administration would be comparatively con-
servative. Neither a reconciliation, nor even a momenta-
ry suspension of the animosity between the ancient rivals,
was possible. Hamilton subjected the very first message
of the president to an exhaustive criticism which had a
strong admixture of trenchant irony.¹ Still more energet-
ically did he oppose the attacks on the then system of
taxation and on the federal courts. On these questions his
attitude was the same as that of the rest of the Federalists,
and they were therefore gratified to see him at his former
post as their representative. But in the most important
questions which called for a solution during Jefferson's
first presidential term, he deviated as far from them as in
the election of 1801.
The Mississippi question, which had played so impor-
tant a part in the times of the confederation, had arisen
again and demanded a solution, as Spain had on the 1st of
October, 1800, ceded the whole of Louisiana to France.
The United States had had experience enough already of
how dangerous and how great an obstacle in the way of
the commercial development of the country it might be-
come, if the mouth of the Mississippi were in the posses-
sion of a foreign power, even if it were no stronger than
Spain. Jefferson had not shared in this experience in vain.
¹ The articles were signed Lucius Crassus.
184
STATE SOVEREIGNTY AND SLAVERY.
This was one of the instances in which he gave evidence of
a really statesmanlike insight. He wrote on the 18th of
April, 1802, to his embassador Livingston in Paris: This
cession "completely reverses all the political relations of
the United States, and will form a new epoch in our politi-
cal course.
There is on the globe one single spot,
the possessor of which is our natural and habitual enemy."
Livingston was instructed to enter into negotiations im-
mediately for the cession of New Orleans and the Flor-
idas, in case France should consider the possession of
Louisiana indispensably necessary. As Bonaparte at this
very time entertained the idea of resuming the old French.
colonial policy, the negotiations remained long without'
result. The uprising of the negroes in San Domingo and
the warlike turn which the affairs of Europe began again
to assume, disposed him more favorably towards the Amer-
ican offer. On the 30th of April, 1803, the treaty, ceding.
the whole of Louisiana to the United States for $15,000,000,
was concluded in Paris.2 Hamilton shared Jefferson's view,
that the purchase of Louisiana was a question of the great-
est, and even of vital, importance for the Union. His
opposition on other occasions to the policy of the adminis-
tration, and his personal enmity to the president, did not
¹ Jeff., Works, IV., pp. 431, 432.
2 Stat. at Large, VIII., p. 200.
3
"You know my
* He writes, Dec. 29, 1802, to Charles C. Pinckney:
general theory as to our western affairs. I have always held that the
unity of the empire and the best interests of our nation require that we
should annex to the United States all the territory east of the Mississip-
pi, New Orleans included." Ham., Works, VI., pp. 541, 552. Randall,
Life of Jeff., VII., p. 87, says that nothing is known of Hamilton's at-
titude on this question. Wherever there is a point in Hamilton's policy
to which he cannot refuse his recognition he shows himself so ignorant
of it that design is the only explanation of the fact. Hamilton wrote
also in an artle in the Evening Post, signed Pericles: "Two courses
only present [themselves]: First, to negotiate and endeavor to purchase,
and if this fails, to go to war. Secondly, to seize at once on the Flori-
das and New Orleans and then negotiate."
PURCHASE OF LOUISIANA.
185
prevent his lending him a helping hand in this matter
when an opportunity offered.¹
The great majority of the Federalists opposed this in-
crease of the territory of the Union with as much decision
as Hamilton advocated it. They showed in their attitude
towards this question a shortsightedness which would have
been astonishing even among the doctrinarians of the
opposite party. The great extent of the southern states,
and their dominant position in politics, afforded ground for
the belief that their internal development would be more
rapid than that of the northern states, and that they would
be the governing power of the Union in all future times.²
The purchase of such enormous tracts of land was therefore
a matter of the deepest concern to New England, as it seemed
to give the southern states a preponderance for all time.
Little was thought on this occasion of the extension of the
slave territory, the only evil, in fact, connected with the
purchase of Louisiana. This point was not entirely un-
noticed, even now; but it did not become very prominent
'See J. C. Hamilton, Hist. of the Rep. of the U. S. of Am., VII., p.
604.
2 "The balance of power under the present government is decidedly
in favor of the southern states, nor can that balance be changed or de-
stroyed. The extent and increasing population of those states must for-
ever secure to them the preponderance which they now possess. What-
ever changes, therefore, take place, they cannot permanently restore to
the northern states their influence in the government, and a temporary
relief can be of no importance." The very interesting letter from
which this passage is taken is printed in full in J. C. Hamilton, Hist.,
VII., p. 781–786. Its author, according to the last-named writer, was a
leading member of congress, and it was directed to a member of Wash-
ington's cabinet, probably Pickering. Alexander Hamilton here again
gives a proof of his intellectual keenness and penetration. Major
Hoops relates that Hamilton said to him in a conversation in February,
1804: "The bare attempt to carry such a disunion into effect would
necessarily throw the people of the United States into two great parties,
geographically defined; that the northern division must prevail in the
struggle that must ensue," etc. J. C. Hamilton, Hist. of the Rep. of the
U. S. of Am., VII., p. 779.
186
STATE SOVEREIGNTY AND SLAVERY.
until several years later, when the disastrous influence of
slavery on the whole life of the people began to be better
understood. In the later struggles of party on the slavery
question this was overlooked, or intentionally covered up.
The first phase of the conflict over the Louisiana question
has been thus placed in an altogether false light. The
Federalists have been represented as the vanguard of free-
dom; whereas, in fact, they represented only a short-sighted,
ungenerous, particularistic policy.
The territory covered by the name Louisiana embraced
several of the present central and northwestern states.¹
And this of itself shows that the charge so often made, in
later times, against Jefferson and his party, that they
made this purchase mainly or only in the interest of
slavery, is wholly unfounded. The truth is, that the New
England states opposed the acquisition of this western ter-
ritory more than that which lay in the south. Gouverneur
Morris, indeed, declared it the "peculiar heritage" of the
eastern states.2 But most of the Federalists still assumed
the same standpoint which the New England states had
taken under the confederation on the Mississippi question.
They anticipated that the incorporation of the western
territory into the Union, and its economical development,
¹It stretched from the mouth of the Mississippi over Iowa, Minne-
sota, Dakota, and Funsas, and reached westward to the Rocky Moun-
tains.
2 “To the eastern states, when separately considered, this [the remain-
ing of Louisiana in possession of a foreign power] may appear a matter
of less moment than to the other great divisions of our country. But
they will perceive in it the loss of their navigation; they will see the
theater of their industrious exertions contracted; they will feel the loss
of the productions of that western world in the mass of their commer-
cial operations; and, above all, they will feel the loss of an ample re-
source for their children. . . . The exuberant population of the eastern
states flows in a steady stream to the western world, and if that be ren-
dered useless, or pass under the dominion of a foreign power, the fair.
est hope of posterity is destroyed." Speech in the senate, Feb. 24, 1803.
Sparks, Life of G. Morris, III., pp. 418, 419.
:
NEW ENGLAND'S THREATS OF SECESSION.
187
would prove injurious to their commerce, and they feared
a disturbance of the political equilibrium from this quar-
ter as much as from the south. The two elements to-
gether had weight enough with them to draw from them
the declaration that they would be thus forced to a separa-
tion from the Union.2
In the debate on this side of the question, the Federalists
¹ Eleven years later the judgment of the New England Federalists
was no better. In the resolutions of the Hartford convention, of which
more will be said below, it was declared necessary that there should be
an amendment to the constitution, limiting still farther the right of con-
gress to admit new states into the Union. The grounds of the demand
are as follows: "At the adoption of the constitution a certain balance
of power among the original parties was considered to exist, and there
was at that time, and yet is, among those parties a strong affinity between
their great and general interests. By the admission of these states that
balance has been materially affected, and unless the practice is modified,
must ultimately be destroyed. The southern states will first avail
themselves of their new confederates to govern the east, and finally, the
western states, multiplied in number, and augmented in population,
will control the interests of the whole. Thus, for the sake of present
power, the southern states will be common sufferers with the east in
the loss of permanent advantages. None of the old states can find an
interest in creating prematurely an overwhelming western influence,
which may hereafter discern (as it has heretofore) benefits to be derived
to them by wars and commercial restrictions." Dwight, History of the
Hartford Convention, p. 371. At the same time, a New England paper
wrote: "The western states beyond the mountains are not taken into
view in this connection for any other purpose than to show that they
do not, ought not, and never can belong to the Union. Let the western
states go off and take care of themselves." Ingersoll, Second War be-
tween the U. S. of America and Great Britain, II., p. 225.
2 Plumer, of New Hampshire, declared in the senate: "Admit this
western world into the Union, and you destroy at once the weight and
importance of the eastern states, and compel them to establish a separ-
ate, independent empire." And thus Griswold, of Connecticut, who
was looked upon as the leader of the Federalists, said in the house,
Oct. 25, 1803: The vast, unmanageable extent, which the accession of
Louisiana will give to the United States, the consequent dispersion of
our population, and the distribution of the balance which it is so im-
portant to maintain between the eastern and western states, threatens,
at no very distant day, the subversion of our Union."
188
STATE SOVEREIGNTY AND SLAVERY.
saw themselves, in consequence of the nature of the thing,
limited to a weak defense. They helped themselves now,
as the south had helped itself from the beginning in the
slavery question. As they could not refute the arguments
of their adversaries, but could only oppose assertions to
them, they played their best card,-made threats supply
the place of reason. There was another side, however, in
which their position was so strong that their opponents
even considered it in parts unassailable. The purchase of
Louisiana was a question which should have been judged
and decided only on statesmanlike principles. And in
truth, the position of both parties was determined by these
principles, but the constitution was destined again to serve
as sword and shield to the minority.
The Federalists claimed that the constitution did not
authorize congress to undertake such a transaction; and
that it should not be completed before the authority thereto
had been obtained by an amendment. To which Nicholson
of Maryland replied, that if he had been asked anywhere
else whether a sovereign nation had the right to acquire
new territory, he would have considered the question an
absurd one; that the right in question appeared so obvious
and undeniable that it scarcely needed to be proved. It
could not certainly be questioned that the idea of sover-
eignty embraces this right. But it might well be, that the
right belonged to the "sovereign nation" and not to con-
gress. Congress, according to the theory of the Republi-
cans, possessed only such power as was expressly given it
by the constitution, and the right in question was not given
by it. The only provision which could be produced in
support of the right is Article IV., Sec. 3, § 2: "The con-
gress shall have power to dispose of, and make all needful
rules and regulations respecting, the territory or other
property belonging to the United States." But here evi-
dently the only territory meant is such as the United States
possessed at the time, or which was claimed by them as
THE POWER OF ANNEXATION.
189
their property.¹ The Republicans could not question this.²
Their demonstration of its constitutionality was therefore
only a deduction from the general principles of political
science, a mode of interpreting the constitution which they
had always declared to be absolutely untenable.
The Federalists did not all view the constitutional ques-
tion from the same standpoint. The most important of all
the objections urged was based on the fundamental ques-
tion of the nature of the Union. Th. Pickering of Massa-
chusetts declared in the senate that it was not in the
power
of the president, or of congress, to incorporate the territo-
ry into the Union, as the treaty demanded: "He believed
that our administration admitted that this incorporation.
should not be effected without an amendment of the con-
stitution; and he conceived that this necessary amendment
could not be made in the ordinary mode by the concurrence
of two-thirds of both houses of congress and the ratifica-
tion by the legislatures of three-fourths of the several
states. He believed the assent of each individual state
to be necessary for the admission of a foreign country as an
associate in the Union; in like manner as in a commercial
house the consent of each member would be necessary to
admit a new partner into the company." If the constitu-
tion were a contract between sovereign states, this argu-
ment could not be assailed. But how did the Federalists
come to ascribe this character to it now, after they had for
twelve years governed the country on the assumption that
the constitution had transformed the confederation into a
nation? The Republicans repeated the Federal creed with
¹ Scott vs. Sanford, Howard's Reports, XIX., p. 615. The supreme
court did not base the constitutionality of the acquisition of foreign ter-
ritory on these provisions of the constitution, but on the authority of
the president and the senate to make treaties. American Insurance
Company vs. Canter, Peter's Reports, I., p. 542.
Jeff., Works, IV., pp. 505, 506.
³ Deb. of Cong., III., p. 13.
190
STATE SOVEREIGNTY AND SLAVERY.
the utmost fervor; and the Federalists with equal energy
preached the Republican gospel.
Under these circumstances a great deal might be said
about the constitutional question, and yet nothing accom-
plished. John Quincy Adams saw this. He thought that
constitutional considerations should not stand in the way,
even if well grounded; for he was certain that all the leg-
islatures would adopt an amendment " amply sufficient for
the accomplishment of every thing for which they had
contracted." This was not only a new way of securing
indemnity, but it was seeking indemnification in a case in
which there was no right to give it. If Pickering's view
was right, even the ratification of all the legislatures could
not make such an amendment valid. The constitution
would, on this supposition, be a contract between the states
and not between the legislatures of the states, and an alter-
ation not provided for by the contract could be considered
only by the states, the legal organ of which was not in this
case the legislatures, since the constitution did not give
them this right, and the state constitutions contained pro-
visions by which it was directly or indirectly withheld from
them.2
The solution, therefore, proposed by Adams was, viewed
from Pickering's point of view, also a violation of the con-
stitution, and consequently nothing could be gained by it.
If Pickering's demand, with all the logical consequences
to be deduced from it, were conceded, it would be neces-
1 Deb. of Cong., III., p. 19.
2 The matter must be presented in this way, because it is a universally
recognized principle of American constitutional law that congress has
no power except such as is expressly granted it, and that on the other
hand the powers of the state legislatures are limited only by the reser-
vations of the constitution of the Union and of the state constitutions.
Cooley, Constitutional Limitations, pp. 87, 88, 168, 173, in which work
the judicial decisions on this point are collected; Jameson, The Con-
stitutional Convention, pp. 86, 87; Tiffany, Government and Constitu-
tional Law, pp. 81, 175.
JEFFERSON VIOLATES THE CONSTITUTION.
· 191
sary that the amendment in question should be ratified by
all the states; that is, by state conventions or by the legis-
latures after they had been authorized thereto in one of the
various constitutional ways prescribed. An inevitable con-
sequence of this was, that it would be optional with any
state, which refused to join the ratification, to secede from
the Union; or that its refusal should, eo ipso, operate as a
nullification of the contract of purchase. Obviously the
federal government could accept this alternative under no
circumstances. There remained to it therefore-speaking
from the point of view of the opposing Federalists-only a
choice between a violation of the constitution and a sur-
render of the purchase which it rightly considered was of
the highest interest, and even necessary, to the nation. It
decided on a conclusion of the purchase, and accomplished
it in fact in such a way, that the government itself was
obliged to concede that it had been guilty of a breach of
the constitution.
1
Jefferson himself unconditionally granted that the con-
stitution did not warrant the acquisition of foreign terri-
tory, still less its incorporation into the Union. And
even the objections of some of his friends could not
change his view of the constitutional question. Spite of
this, however, he declared himself ready to attach no fur-
ther weight to it if his friends thought differently from
'He writes to senator Breckenridge, of Kentucky, Aug. 12, 1803:
"But I suppose they [both houses of congress] must then appeal to the
nation for an additional article to the constitution, approving and con-
firming an act which the nation had not previously authorized. The
constitution has made no provision for our holding foreign territory,
still less for incorporating foreign nations into our Union. The ex-
ecutive, in seizing the fugitive occurrence which so much advances
the good of their country, have done an act beyond the constitution.
The legislature, in casting behind them metaphysical subtleties, and risk-
ing themselves like faithful servants, must ratify and pay for it, and throw
themselves on their country for doing for them unauthorized what we
know they would have done for themselves had they been in a situation
to do it." Jeff., Works, IV., p. 500.
192
STATE SOVEREIGNTY AND SLAVERY.
himself. The inference of authority by "construction,"
which was the sole legal basis of his intemperate attacks
on Hamilton's policy, was now to be put a stop to "when"
it should produce any evil effect. There was no more
said about the amendment.
This manner of playing with his own convictions con-
cerning the legality of a political step was not the only
characteristic of the man. Long before the evil conse-
quences which the purchase of Louisiana had in extending
the slave territory were fully developed, this bold contempt
for the constitution proved exceedingly disastrous. An
invaluable precedent was afforded to the "country, and
especially to the south," inasmuch as it "made a violation
of the constitution dependent on the will of the majority,
subordinated principle to interest, and as a consequence
left no obstacle in the way of the interests and wishes of
the south."2
There was one danger to which the violators of the con-
stitution did not expose themselves, because, as they
claimed, the majority of the people favored the purchase
of Louisiana. Right, therefore, as the Federalists might
be, according to the letter of the constitution, every effort
to stir up the people against the reigning majority would
remain fruitless. Nor did they ignore this. Fisher Ames
wrote, Feb. 24, 1803: "They are lazy, or in despair, and
they urge, with wonderful eagerness, the futility of all ex-
ertions to retrieve the public mind from its errors, or to
prevent their consequences." This applied not only to
the Louisiana question, but to the entire policy of the
1 "I confess, then, I think it important in the present case to set an
example against broad construction by appealing for new power to the
people. If, however, our friends shall think differently, certainly I
shall acquiesce with satisfaction, confiding that the good sense of our
country will correct the evil of construction when it shall produce ill
effects." To W. C. Nicholas, Sept. 7, 1803. Ibid, IV., p. 507.
Kapp, Geschichte der Sklaverei, pp. 98, 99.
F. Ames, Works, I., p. 318.
FORMAL PLANS OF SECESSION.
193
country, home as well as foreign. "The Federalists know
that eo nomine they are gone forever."
There were now
only three Federalist state legislatures. "Connecticut,"
says Fisher Ames, "stands, but its good men should say
incessantly 'take heed lest we fall.' Massachusetts, on the
other hand," he complained, had only a "show of federal-
ism. It may last a year longer." Spite of this, however,
the radical wing of the Federalists did not give up all
hope. The undeniable ruin of the party caused them to
change their base of operations, but in all other respects.
it only urged them on to the adoption of measures which
grew more extreme every day.
3
An effort has often since been made to represent it as
one of many malicious and entirely ungrounded calumnies,
that there was at this time any serious thought of a dis-
ruption of the Union. This is only one instance of the
"white-washing" tendencies and decorative coloring char-
acteristic of the greater number of American historical
works. In the letters of the Federalists we find not only
that wishes to this end were expressed, but that formal
plans were devised. True, these had no prospect of success.
Even among the leaders the greatest want of unanimity
prevailed. Some of them, especially Hamilton, were very
decidedly opposed to the project, and the majority either
held that its time was not yet come, or they were wanting
in courage, or in the energy to act. In consequence of
¹ Jeff., Works, IV., p. 542.
2 Fisher Ames, Works, I., pp. 320, 321.
4
³ In the same proportion as their friends are painted in too glowing
colors, their enemies are drawn in colors altogether too dark.
4 We read in the letter of a "leading member of congress" to a mem-
ber of Washington's cabinet from Massachusetts, already referred to:
"We have endeavored during this session to rouse our friends in New
England to make some bold exertions in that quarter. They generally
tell us that they are sensible of the danger, that the northern states must
unite, but they think the time has not yet arrived.
It appears
impossible to induce our friends to make any decisive exertions."
13
194
STATE SOVEREIGNTY AND SLAVERY.
this all open agitation among the people was nipped in
the bud, and had it been attempted on a larger scale, it
would doubtless have found a pitiable and speedy end.
But the intrigue which was to introduce the realization of
the scheme was so nicely planned that in case it succeed-
ed there would have been room for very serious fears.
Hamilton was not wont to see phantoms in broad day-
light, nor will he be accused of uttering malicious calum-
nies against the Federalists; and yet he declared the plan
of secession to be a fact, and considered it necessary to give
a thorough exposition of his fears. He read on the 10th
of February, 1804, before an informal meeting of distin-
guished Federalists, gathered to discuss the pending gu-
bernatorial election in New York, a paper on the reasons
which made it desirable that Mr. Lansing should be success-
ful rather than colonel Burr. In the sixth paragraph of
this paper he says: "These causes are leading to an opinion,
that a dismemberment of the Union is expedient. It would
probably suit Mr. Burr's views to promote this result, to be
the chief of the northern portion; and, placed at the head of
the state of New York, no man would be more likely to suc-
ceed." This was, in a few words, the aim and end of the
intrigues of the Burrites and radical Federalists combined.
Burr was to be made governor of New York, and to use
the position as a stepping-stone to the White House.
Burr's organ communicated this much very frankly to the
public. Whether this plan was devised by Burr or by his
2
¹ J. C. Hamilton, Hist. of the Repub. of the U. S. of Amer., VII., p.
771.
2 Burr was nominated governor in the city of New York, Feb. 20,
1804. Two days later the Morning Chronicle wrote: They offer Burr
as a man who must be supported, or the weight of the northern states in
the scale of the Union is irrevocably lost. If the southern, and partic-
ularly the Virginia, interests are allowed to destroy this man, we may
give up all hope of ever furnishing a president to the United States.
The influence of the northern states in the affairs of the Union and their
future prosperity imperiously demand, therefore, that we sustain Aaron
FEDERALIST INTRIGUES WITH BURR.
195
Federal supporters, and whether Burr was advised by
these of their ultimate designs, it is not possible to dis-
cover.
The fact that these Federalists thought of using Burr, is
alone a judgment on themselves and their cause, and shows
satisfactorily how poor were their prospects of success.
The contempt with which Burr's moral character inspired
them remained as strong as ever, and they gave uncon-
cealed expression to it in their letters. Besides, they feared
that he might deceive them, because the field offered to
him by their plans might not seem broad enough for his
ambition. Yet, notwithstanding this, they inquired what
else they could do. To remain inactive, they said, was
certain ruin to them; their friends alone would make no
endeavors. As supporters of Mr. Burr, they would receive
some assistance, although even that was of a doubtful nature,
and they had reason enough to be jealous of it. This
was good reasoning. If they could realize their plans at
all, it could be done only with the aid of the Burrites.
And if Burr were made governor of New York, by the aid
of the Federalists, such a union was perhaps possible, for, as
Hamilton remarked, the leaders of the Republicans in New
England were Burrites, and Burr enjoyed no small popu-
larity among the masses of the New England Federalists.
If the union could be effected, what was essential was at-
tained. The Federalists did not at all desire to see Burr
elevated to the presidency. The real importance of the
whole project was in the thought of a fusion, and the prac-
tical consequences which its Federal advocates hoped to
draw from it were in keeping with the reasons which had
led to the adoption and prosecution of that idea.
When in 1796 it seemed possible that Jefferson would
be the next president, there appeared some articles in the
Burr from sinking in the fury of this contest. We can only do this by
making him our governor." Cited by J. C. Hamilton, VII., p. 777.
196
STATE SOVEREIGNTY AND SLAVERY.
Connecticut Courant which endeavored to incline the
northern states, in such a case, to a division of the Union.
We quote: "The northern states can subsist as a nation, as a
republic, without any connection with the southern.
I shall in future papers consider some of the grave events
which will lead to a separation of the United States.
endeavor to prove the impossibility of our union for any
long period in the future, both from the moral and politi-
cal habits of the citizens of the United States, and finally
examine carefully to see whether we have not already ap-
proached the era when they must be divided." This idea,
which then could find no support, was now again taken up
by the Federalists. The parties had from the beginning
corresponded, to a great extent, with the geographical sec-
tions; but henceforth the name of Federalist was to be
dropped and the war-cry to be expressly and exclusively "the
North!" and "the South!" There were interests enough
to recommend such a project. If there was no danger of
its realization at the present time, the conditions might
sooner or later be different. And if it should ever happen
that specifically sectional parties should take the place of
national parties in the country, the continued existence of
the Union would depend entirely on the nature of the fun-
damental question on which they should divide. But,
even assuming that no question should ever arise to make
the sectional division the only natural, that is, the only
possible, one, and therefore the existence of the Union
after the old fashion impossible, it was still imperative
that the mere plan should be promptly and energeti-
cally checked in the beginning. If this were not done, it
might frequently lead to the greatest embarrassment, even
if never carried into execution.
The project of fusion was not confined to the ultra Fed-
eral agitators. The articles of "New Englander" in the
¹ Randall, Jefferson, III., pp. 634, 635.
NORTHERN SECESSION SYMPATHY.
921
197
Connecticut Courant demanded only an intimate coalition
of the northern states to get rid of the "tyranny of the
south," and to establish a just "balance of power. The
ultras did not consider this possible. They based their
judgment on the diversity of material interests, and the
alleged assiduity with which the south and the middle
states so nurtured this that a reconciliation could never
take place.² Hence the northern party was to be consti-
tuted of men ready to go to the utmost extreme, that is,
even to division of the Union. The three Federal New
England states, and first of all Massachusetts, were to take
the initiative in the building up of the northern party. If
they could succeed in securing Burr's election in New
York, it might be possible to carry out the whole plan.*
The plan of the ultras was only an extension of the
"Are we to submit to the guidance and the tyranny of the south?
The purchase of Louisiana at the expense of fifteen millions of
dollars for the augmentation of the southern interest must finally con-
vince the states north of the Chesapeake, that they must unite in the
common northern interest. Let, therefore, the disinterested among our
Federal and Democratic Republicans lay aside their fatal dissensions,
which serve to no purpose, but to the purpose of their enemies. We
shall then be able to fix a just balance of power in the United States."
2 We quote from the letter already cited to a member of Washington's
cabinet: "Their [the southern states'] enmity of commerce, on which
our prosperity depends, is riveted and unyielding. Besides, there is an
inveterate enmity and jealousy of the northern states, which pervades
every part of the southern and middle states. This spirit is evidently
increasing. Since they have obtained the power, they have become arro-
gant, and appear determined to carry this spirit into all classes of socie-
ty, with a view of riveting the prejudices so strongly as to prevent a
union of views between north and south under all future circum-
stances."
3 LL
In forming the northern party, it is important to consider what the
ultimate views of that party ought to be, and to avoid as much as possi-
ble, embarrassing the party with men who will oppose the accomplish-
ment of those ultimate objects. I have no hesitation myself in saying,
that there can be no safety to the northern states, without a separation
from the confederacy." 1. c.
4 1. c.
198
STATE SOVEREIGNTY AND SLAVERY.
logical consequences of "New Englander's;" for, as Jeffer-
son said: "The idea of forming seven eastern states is,
moreover, clearly to form the basis of a separation of the
Union." He was right also in the expectation that the
project would fail. Jefferson owed it again to his bitterest
enemy that its development did not extend so far as to
cause any embarrassment.2 Hamilton frustrated Burr's
election as governor of New York, which was looked up-
on by both Burrites and Federalists as a condition prece-
dent of the fusion. It was, indeed, more than question-
able whether it could have been honorably accomplished,
even if Burr had been elected; because there were no
great differences between the Burrite and Jeffersonian
wings of the Republicans. The northern Republicans
were jealous of the southern, and their leaders were bent
on obtaining the seats at the head of the table. Since
they, as representatives of the minority, had no prospect
of being invited there by the majority of their own party,
they were prepared to lean on the opposite party which
offered them support. If the leaders of both sides had been
won over to the plan by its originators, they would per-
haps have had enough influence on the masses to make the
position of those Republicans led by Virginia a rather
hard one in a presidential election. But the ultimate ob-
¹ Jeff., Works, IV., p. 542.
2 The assertion made later by Plumer, of New Hampshire, to which
Ingersoll (Hist. Sketch of the Second War between the U. S. of Amer-
ica and Great Britain, II., p. 221, etc.) attaches so much weight, that
Hamilton desired to attend the proposed meeting of the conspirators at
Boston, is evidently entirely valueless. Even if no historical credit is to
be given to the message said to have been sent to Boston, and mentioned
by Hamilton's son (J. C. Hamilton, VII., p. 382) the memorial read in
Albany is sufficient proof that Hamilton was opposed to the project.
If, therefore, he wished to go to Boston, it could only be with the inten-
tion of hindering the further prosecution of the plan. It is scarcely
necessary to add that the insinuation to the contrary is not warranted,
because Plumer expected forgiveness for his participation in the in-
trigue, by accusing his accomplices.
ABSOLUTE POWER OF THE REPUBLICANS.
199
ject of the Federalists could never be attained in this way.
The motives of the Burrites were just sufficient to operate a
momentary fusion, but not to found a political party that
could live, and certainly not a party with such extreme ten-
dencies as the Federalists wished. The whole matter in-
volved not a political principle, but only a corrupt political
intrigue. Its significance lies entirely in this, that it serves.
as a measure by which to estimate how far, up to that time,
the national feeling had been developed, and in this also,
that it assumed as its basis an idea which, in the course
of years, grew, through another question, to be one of ter-
rible vitality.
The only immediate consequence of the intrigue was a
still greater diminution of the political credit of the Burr-
ites and Federalists. In New York the feuds between the
Republicans still continued, and in Pennsylvania violent
dissensions broke out among them. But, looked at from
a national point of view, the malcontents were still only a
faction, which might indeed be injurious, but not danger-
ous, while the Federalists, by their abandonment of sound
political morals, had clipped their own wings. The pre-
ponderance of the administration party was so great that it
seemed to depend entirely on their tact and moderation
whether the country should at last be secured some years
of internal quiet. Its foreign politics alone threatened
fresh embarrassment. The character which the struggle
between England and France began to assume placed the
United States in a situation from which they could not easily
escape uninjured. But it would have been readily possible,
by a firm, rational, and practical policy, to turn the exter-
nal dangers into a means of internal strength. But Jef-
ferson was not the man for such a policy, when his an-
tipathy to England and his sympathy for France came into
play, and when economical questions constituted an essen-
tial factor in the problem to be solved.
200
STATE SOVEREIGNTY AND SLAVERY.
CHAPTER VI.
THE EMBARGO.1 MADISON AND THE SECOND WAR WITH ENG-
LAND. THE HARTFORD CONVENTION.
Jay's treaty had not removed all the well-grounded
grievances of the United States against England, and by
degrees new ones were added to the old. The prospects of
a friendly understanding were few; partly because Jeffer-
son rode a very high horse, and would accept nothing un-
less he could obtain everything, and partly because Eng-
land's attitude, notwithstanding occasional advances, grew
more disregardful every day. Napoleon found herein a
convenient pretence to assert "might before right" in a still
more brutal manner, and it was not long before England
and France formally emulated one another in wilful al-
terations in the hitherto recognized laws of neutrality.
England's blockade declaration of May 16, 1806, and the
order in council of Nov. 11, 1807, on the one hand, and
Napoleon's Berlin decree of Nov. 21, 1806, and his Milan
decree of Dec. 17, 1807, on the other, were a Scylla and
Charybdis, between which the neutral seafaring nations
could not possibly sail uninjured. Neither interest nor
self-respect could allow the United States quietly to acqui-
esce in this violence. The Federalists desired to see the
knot cut in two. Their programme was to assume a bold
'See Hildreth (Hist. of the U. S.) for the history of the diplomatic
manœuvres precedent to the struggle which began with the embargo and
ended in the war of 1812. In Dwight's History of the Hartford Con-
vention, many of the most important documents are given, some in full
and some by extracts. The only worth of that verbose and badly-writ-
ten book consists in these reprints.
LAYING AN EMBARGO.
201
front towards France, and thus induce England to adopt a
more favorable policy, provided it were found impossible.
to make a formal treaty with the latter. Such was, doubt-
less, the best "political policy" that could be followed.
The administration party, on the other hand, would hear
nothing of war; it did not want one with France, and it
feared one with England. Hence there remained only one
thing for it to do: to make reprisals, or to surrender the
ocean commerce of the United States until it pleased the
two great European powers to conclude peace.
As early as 1806 an attempt was made, by putting ob-
stacles in the way of the importation of British goods, to
exert some influence on England. The provisions in ques-
tion were to go into force in November, but in December
the time was extended until the following July. The
measures were not sufficient of themselves to obtain the
desired object, and by this vacillation the little impression
which they had made on England was still farther weaken-
ed. Jefferson and the congressional majority, therefore,
soon came to the conclusion that it was necessary to take
a very decided stand. They resolved, as they supposed, on
making extensive reprisals, but as a matter of fact they
sacrificed their maritime commerce.
On the 18th of December the president recommended
an embargo.¹ Congress immediately took the message
under advisement with closed doors. Without taking the
least time for deliberation the senate adopted a bill in har-
mony with the message.2 In the house of representatives
the opposition were not allowed more time, and as the de-
¹ Amer. State Papers, V., p. 258. Statesman's Manual, I., p. 204.
2 There was a touch of the ridiculous in the over-haste of the senate.
John Quincy Adams exclaimed: "The president has recommended this
measure on his high responsibility. I would not consider, I would
not deliberate, I would act. Doubtless the president possesses further
information as will justify the measure." Hildreth, Hist. of the U. S.,
VI., p. 37.
202
STATE SOVEREIGNTY AND SLAVERY.
bates were there also carried on with closed doors, they
were completely kept from the people until an accomplish-
ed fact was before it. The bill was passed with a few
changes, to which the senate immediately agreed, on the
21st of December.1
The law was silently received by the population of the
commercial states. Since the time of the Revolution the
people had always entertained the opinion that the inter-
ruption of commercial relations was a very simple and in-
fallible means of defense against any injustice on the part
of the European powers.2 The National Intelligencer,
which might be considered the semi-official organ of the
administration, threatened two years before, in high sound-
ing phrases, the resumption of this policy. The embargo
could not, therefore, be a complete surprise, and the tradi-
tion concerning its wonderful power was still so prevalent
in the commercial states that it was accepted with resigna-
tion. It was, however, soon otherwise. The people felt
its weight, and before long began to murmur and to mur-
mur the louder, the more apparent it became that the
promised effects were not produced, and the more cogently
it was demonstrated in congress that they never could be
produced, by its means. The demonstration was so incon-
trovertible, that, after a long struggle, it could not fail to
be recognized as conclusive. Jefferson and his uncondi-
tional supporters took this all the more to heart, because
their opponents thrust sharp thorns into the weakest
parts of their policy, which more than once had exposed
the country to serious danger. Herein lies the importance
of the embargo struggle for the history of the democracy
and of the internal conflict of the United States. The Re-
publicans presented on this occasion a striking example of
1
2
By 82 against 44 votes. Deb. of Congress, III., p. 641.
Quincy in the house of representatives, Deb. of Congress, IV., p.
107. See also John Adams' interesting letter to Quincy, Dec. 23,
1808. Quincy, Life of J. Quincy, p. 162.
CONSTITUTIONALITY OF THE EMBARGO.
203
the frivolity and incapacity with which economical ques-
tions of national significance have as a rule been treated in
congress. The half-educated mediocrity, which has always
a broad field of action in the political life of all pure de-
mocracies, has probably nowhere shown itself more reck-
less or more presumptuous. The Federalists rightly
claimed that history afforded no other instance in which a
government had thus laid violent hands on the economical
existence of hundreds of thousands of its citizens. Great
blame would therefore have attached to the Republicans,
even if their senseless policy had not made the breach be-
tween the north and the south greater, after there seemed
to be some prospect that it was about to begin to close.
The opposition, to which some Republicans also, like
John Randolph, belonged, raised the constitutional ques-
tion on this occasion. In the debates of the Philadelphia
convention the question of the right to lay an embargo was
only incidentally touched upon. Madison understood the
clause prohibiting the taxation of exports to be a reserva-
tion of that right to the general government. Ellsworth
opposed this view and the convention clearly agreed with
him. No express provision on this subject was incorpo-
rated into the constitution. The right claimed by congress
was, therefore, to be deduced from its authority to regulate
commerce.2 The opposition acknowledged the correctness
of this construction. They did not question the right of
¹ Elliot, Deb., V., p. 455.
2 Art. I., Sec. 8, § 3. "Mr. McHenry conceived that power to be in-
cluded in the power of war." Elliot, Deb., V., p. 455.
3 An attempt was made later to confine the scope of this clause within
very narrow limits; but the supreme court favored the most liberal con-
struction which the terms of the constitution would admit of.
"Com-
merce
•
is intercourse. It describes the commercial intercourse
between nations and parts of nations, in all its branches, and is regula-
ted by prescribing rules for carrying on that intercourse. . . . It is the
power to regulate; that is, to prescribe the rule by which commerce is to
be governed. This power, like all others vested in congress, is com-
204
STATE SOVEREIGNTY AND SLAVERY.
congress to lay an embargo, which had already been done
in 1794. They insisted only that the embargo of 1807 was
unconstitutional for the reason that, unlike that of 1794, it
was not limited to a definite time; that an unlimited em-
bargo was not a regulation, but an annihilation, of com-
merce, which the constitution did not authorize.' Much
was advanced in favor of this theory which sounded very
plausibly, but which was for all that mere declamation.
The only thing in the whole debate on the constitutional
question which is worthy of mention is the characteristic
inconsistency of which the majority were guilty. The
Republicans did not hesitate to rely on the introductory
words of the constitution, although the orthodox mode
of interpretation set up by them declared it to be an ab-
surdity to endeavor to deduce from these any authority
whatever. There was scarcely any occasion for such a
denial of their old confession of faith. The constitutional
question was at least so doubtful that they would have had
little to fear from the opposition if the latter had not had
other arguments to advance against the embargo. The ma-
jority. therefore, liked to expatiate on the constitutional
question, while the opposition avoided it almost entirely
2
plete in itself, may be exercised to its utmost extent, and acknowledges
no limitations other than are prescribed in the constitution.
The wisdom and the discretion of congress, their identity with the peo-
ple, and the influence which their constituents possess at elections, are
in this, as in many other instances
the sole restraints on which
they have relied to secure them from its abuses." Marshall, in Gibbons
vs. Ogden, Wheaton's Rep., IX., pp. 190, 196.
1
¹ Ibid, p. 192. Story, the learned commentator on the constitution,
who at the time belonged to the Republican party, says:
"I have ever
considered the embargo a measure which went to the utmost limit of
constructive power under the constitution. It stands upon the extreme
verge of the constitution, being in its very form and terms an unlimited
prohibition or suspension of foreign commerce." Life and Letters of J.
Story, I., pp. 185, 186.
"Deb. of Congress, III., p. 679. Compare Madison's letter of Nov.
27, 1830, to Stevenson, Niles' Reg., supplement to vol. XLIII., p. 29.
THE PROS AND CONS.
205
and dwelt on the political and economic side of the ques-
tion, because here they felt the solid ground under their
feet.
The majority urged that the United States could not go
to war with England and France at the same time. But
the nation's honor and the nation's rights had been ignored
by both in the same way; and honor and interest therefore
demanded that the same redress should be had for the
wrong committed by both powers. As it was not possible
to obtain this redress with the sword, it was possible and
could be made efficacious, only by the laying of the em-
bargo.
The opposition charged that this mode of reasoning was
not only fallacious, but sordid. They claimed that the
administration party did not measure the two aggressive
powers with the same rule and did not wish so to measure
them. The whole world knew what the consequences of
the long war with England were to the navy and mer-
chant marine of France, and every child could infer that
all the weight of the embargo was intended to rest on Eng-
land alone. It helped France against England, and it was
intended to do so.
This reproach was a blow with a two-edged sword. The
old shibboleth of the French and English faction was ban-
died about once more, and was taken up with eagerness.
But it could no longer be represented as self-evident that
sympathy with France in opposition to the rest of Europe
was synonymous with sympathy for freedom against con-
spiring tyrants. Napoleon was, as became more evident
every day, striving after the supremacy of the world, and
England appeared to be the only insurmountable obstacle
in the way of the realization of his dream. But too many
requisitions had been made on the services of rhetoric to
permit them to have their old enchanting power over the
American people in the mouth of the emperor. Jefferson
and his associates took great care, therefore, not to orna-
206
STATE SOVEREIGNTY AND SLAVERY.
ment their policy as openly as they had been wont with the
French cockade. But they had by no means completely
broken with this part of their past. Whether their devo-
tion to France was still so great that they wished to afford
her indirect support in her war with England, has not yet
been settled with certainty, and it is doubtful if it ever
can be settled. But they were certainly aware that the
embargo would not operate to make reprisals on France,
and Napoleon did not consider that it did so operate.¹ This
was enough to throw a shadow over the political morality
of the administration and of the majority of congress, as
well as to refute their above-mentioned argument for the
embargo. They could not at least clear themselves of the
suspicion of a partiality which could be justified on no
political or moral grounds, nor could they justly claim that
they had thrown dust in the eyes of even one of the offend-
ing powers.
And even England had relatively very little to suffer
from the embargo. At first it was scarcely heeded, more
important events claiming the attention of the country.2
¹ General Armstrong, the American ambassador to France, wrote,
Aug. 30, 1808: "We have somewhat overrated our means of coercion of
the two great belligerents to a course of justice. The embargo is a
measure calculated, above any other, to keep us whole, and keep us in
peace; but beyond this you must not count upon it." (Dwight, Hist.
of the Hartford Convention, p. 96.) Jefferson himself wrote, Oct. 15,
1808, to Rob. L. Livingston, (Jeff., Works, V. p. 370): "He [Napoleon]
concludes, therefore, as every rational man must, that the embargo, the
only remaining alternative, was a wise measure." The duke de Cadore
gives still stronger expression to this fact. He writes to general Arm-
strong, Aug. 5, 1810: "The emperor had applauded the general cmbar-
go." Dwight, p. 163. Compare also Deb. of Cong., IV., p. 9. Fisk
of Vermont, an ardent defender of the embargo, admitted in the house
of representatives in April, 1808, that as regards France the measure
had no effect. In the debates on the suspension of the embargo he
inquired: "What do gentlemen now ask? That we should open
our ports to Great Britain alone: for that would be the effect of raising
the embargo." Deb. of Congress, III.,
p. 691.
Armstrong writes: "In England (in the midst of the more interest-
INEFFICACY OF THE EMBARGO.
2
207
Besides, it was soon shown that the injuries which England
was made to suffer by the embargo were compensated for
by many advantages.¹ Moreover, the injury was much
smaller than had been expected, even in England. Hill-
house, in the senate, and Quincy and Key, in the house of
representatives, did not weary of showing that it was im-
possible, on account of the great extent of sea-coast, to en-
force a strict observance of the embargo. They reaped
no advantage, however, from the abundance of actual
proof of the assertion that only the conscientious had any-
thing to suffer, while the unscrupulous grew rich, and that
England could with little difficulty obtain any desired
quantity of American goods. The misfortune was, it was
answered to this, that the embargo was not conscientiously
observed; that were it only so observed, it would be in-
fallibly attended by the promised results. When it was
objected that, in politics, all calculations should be based
on what is, and not upon what should be, the declaimers
answered that if the people had sunk so low that for the
ing events of the day) it is forgotten." Foreign Relations, III., p. 256.
Annals of Cong., 2, X., p. 1684.
"The British ministry also became acquainted about this time
[June] with the unexpected and unexampled prosperity of their col-
onies of Canada and Nova Scotia. It was perceived that one year of an
American embargo was worth to them twenty years of peace or war
under any other circumstances; that the usual order of things was re-
versed; that in lieu of American merchants making estates from the
use of British merchandise and British capital, the Canadian merchants
were making fortunes of from ten to thirty or forty thousand pounds in
a year from the use of American merchandise and American capital."
Lloyd, of Massachusetts, in the house of representatives, Nov. 21. Deb.
of Congress, IV., p. 9. "I consider the embargo as a premium to the com-
merce of Great Britain." Key, of Maryland, in the same place, Dec. 8,
1808, Ibid, IV., p. 66.
2 Even John Quincy Adams, who had just separated himself from
the Federalists and joined the administration party, says, in a letter
dated Dec. 21, 1808: "The law will not be executed. It will be resisted
under the organized sanction of state authority." Niles' Register,
XXXV., p. 220.
208
STATE SOVEREIGNTY AND SLAVERY.
love of filthy lucre they would not endure such a sacrifice
in order to preserve the national honor, they no longer de-
served to be free and independent, and that it were better
they should return to and be again under English rule.
This much was now granted: that the United States had
imposed a sacrifice upon themselves by the embargo. Jef
erson, in his message of December 18, 1807, had claim-
ed that its object was the protection of American com-
merce. The debates in congress, however, leave no doubt
that, in reality, the leading thought was the making of re-
prisals. It was only after experience had shown that as
such it was a mistaken measure, that greater stress was laid
on the words of the president. But little was gained by the
change. Quincy chastised the doctrinarians with his in-
cisive irony, and with equal severity under both subter-
fuges, so that they were obliged to shield themselves by
having recourse now to one and now to the other. He
had called the embargo a doubtful, uncertain, difficult, and
exceedingly costly measure, but as a protection to Amer-
ican commerce he remarked it was saving the golden egg
by killing the goose that laid it.¹
1
Quincy's argument could not be refuted. The choice of
the shield with which it was now attempted to receive his
arrows and those of his associates worthily closed the cir-
cle of contradictory absurdities. The representatives of
the planters and of the agricultural interests did not wish
to concede that the commercial portion of the population
had suffered most from the embargo. Such was the zeal
with which all parties strove for the honor of being the
1 "When all the property of a multitude is at hazard, the simplest and
surest way of securing the greatest portion is not to limit individual
exertion, but to stimulate it; not to conceal the nature of the exposure,
but, by giving a full knowledge of the state of things, to leave the wit
of every proprietor free to work out the salvation of his property ac-
cording to the opportunities he may discern." Debates of Congress,
III., p. 698.
INDUSTRIAL RUIN OF NEW ENGLAND.
209
greatest martyr, that one might believe the embargo had
been laid for no other purpose but to test the various de-
grees of patriotic devotion.
The question, what interests bore the burthen of the em-
bargo, and which the heaviest share of it, was, indeed,
important enough. And it became all the more important
when it was discovered that it grew more difficult every
day to find a satisfactory solution of the question of what
was intended by the pursuit of the senseless policy. Only
enough was established by this peculiar controversy to
show that all interests had suffered severely from the em-
bargo. In order to rescue the ships and their cargoes
which the United States would have lost by the unjust
procedure of England and France, all their ships must rot
in the docks, a large portion of their exports perish entire-
ly, and the rest remain for a long time unrealized upon.
The calculation was so simple that even financial artists
like Jefferson could not have failed to reach the right result
if they had not permitted themselves to be ruled by the
idea of making reprisals.
It was quite as easy to discover the proportion in which
the different interests had to suffer. The planters' staple
articles, principally tobacco and cotton, remained unsold,
but the planters themselves suffered relatively but little
damage. They were sure of finding a market again as soon
as the harbors were open. The farmers sold a considerable
portion of their products in the country itself; the rest was
for the most part a total loss. The productive industry of
the New England fishermen, ship-builders, ship-owners, im-
porters and exporters and all who depended on them, ceased
almost entirely.¹
In this dispute also it is impossible not to recognize a
division of parties arising from different interests produced
by geographical position, and every struggle in which this
¹ See Deb. of Congress, III., p. 692; IV., p. 64.
14
210
STATE SOVEREIGNTY AND SLAVERY.
played any part became in consequence doubly bitter. The
south, which held the balance of power in the reigning
party and was primarily responsible, would have least
to suffer, if the expectation of a moderate duration of the
embargo were realized. The powerless minority of the
New England states, the consideration of whose inter-
ests, as it was pretended, dictated the measures of the
administration, had greatest cause for complaint. The mid-
dle states occupied a medium position; their interests un-
questionably inclined them more towards the north, but
they wavered from one side to the other.
The manner in which the majority exercised their su-
premacy only added oil to the flames. The administration
permitted itself to adopt a mysterious course, proper in a
democratic state only when the interests of the country
indubitably demand it. This could not be pretended here
and in no case was it allowable towards the minority in
congress. The majority virtually adopted the standpoint
of John Quincy Adams, although it did not announce it as
frankly. The president must have reasons for his recom-
mendation, hence, such was the essence of the defense with
which the party, to whom, when in the opposition, no lim-
its to the powers of the government seemed too narrow,
gratified their brutal policy. When the minority rose up
in righteous indignation against this, the old, worn-out cry
of “want of patriotism" and "British faction" was raised
again. And when at last the choleric Gardinier of New
York, a man of small school education, but possessed of
excellent judgment, could no longer control his anger, and
spoke the unadorned truth to the house of representa-
tives, his boldness involved him in a duel in which he was
1
¹“All our surplus produce shall rot on our hands. God knows what
all this means; I cannot understand it. I am astonished; I am dis-
mayed. I see effects, but I can trace them to no cause. I fear there is
an unknown hand guiding us to the most dreadful destinies, unseen be-
cause it cannot endure the light. Darkness and mystery overshadow this
TYRANNY OF MAJORITIES.
211
severely wounded. The whole conflict, as carried on by
the administration, was an unworthy spectacle, and a co-
gent proof that the tyranny of majorities, in a popular state,
may often be placed on a footing with the tyranny of abso-
lute sovereigns. If, in the former case, the means of de-
fense are far greater than here, the dangers, on the other
hand, are more serious, because tyranny comes clothed in
the garb of free institutions. In the instance before us,
these dangers were all the greater because threatened by a
party which in theory placed no limit to freedom but the
widest, and honestly believed itself to be the sole possessor
of free tendencies.
But tyranny was bound to come to an end, no matter
how great the majority of the administration party. The
pockets of the people were made to feel daily that the
views advocated by the opposition were the right ones,
and this is an argument which no people can long resist.
It is exceedingly strange that it took more than a year to
prevail. The only explanation is that a majority of the
people as well as the president and the majority in con-
gress still adhered to the perverse faith of revolutionary
times in the effects which the interruption of commercial
relations with European countries would necessarily pro-
duce. The embargo controversy is one of the best illus-
trations of the tenacity with which this practical people
hold in the face of experience to political theories, once
they have accepted them as true.
•
house, and the whole nation. We know nothing, we are permitted to
know nothing. We sit here as mere automata. We legislate without
knowing, yea without wishing to know, why or wherefore. We are
told what to do and we do it. We are put in motion; but how, I for
one cannot tell.
We are treated as enemies of our country. We
are permitted to know nothing and are execrated because we do not ap-
prove of measures, the origin and tendency of which are carefully con-
cealed from us. We are denounced because we have no confidence in
an executive that refuses to discover to us or to the nation its actual po-
sition.” Hildreth, Hist. of the U. S., VI., pp. 54, 55.
212
STATE SOVEREIGNTY AND SLAVERY.
Nearly all the state legislatures formally approved the
embargo. Even New England was represented by New
Hampshire, and the legislatures of Massachusetts, Vermont
and Rhode Island expressed a desire that Jefferson should
be a candidate for the presidency a third time. But the
majority over-estimated the value of these manifestations.
In the north, the greater part of the population bitterly op-
posed the embargo, even when they supported the admin-
istration in everything else. In the middle states also, the
contrary current gained rapidly in strength. In the New
York legislature, a resolution favorable to the embargo was
carried only by the overpowering influence of Clinton, who
had changed his position on the question from personal
motives. Its opponents in Maryland by a happy combi-
nation obtained the upper hand in the house of represen-
tatives for a while. The number of the malcontents in
Pennsylvania was considerably increased. And while the
president was in receipt of a large number of approving
addresses, congress was stormed with petitions, which grew
more violent every day, for the raising of the embargo.¹ In
short, it became continually more evident in what direc-
tion the current of public opinion was setting.
The administration and its supporters in congress did
not learn anything better from all this, but, on the con-
trary, grew more obstinate in their courses. Act after act
was passed to enforce the observance of the embargo, and
providing means to enforce it which grew to be more and
more coercive.2 This was the best means which could have
1 Fisk, a warm defender of the embargo, said in the house of repre-
sentatives, April 13, 1809: "The table of the house has been loaded with
petitions against the embargo." Deb. of Congress, III., p. 690.
2 The administration party adduced as their principal ground of jus-
tification that an experiment should be made to ascertain whether the
federal authorities had the power to enforce the observance of the laws
of the Union. Quincy, in his journal, gives an account of a conversa-
tion held by him with Giles, of Virginia: "As to removing the embar-
go, he was in favor of adhering to it at all hazards. He was in favor of
FORCIBLE RESISTANCE TO THE EMBARGO.
2
213
been found to cause the opposition so to increase in extent
and intensity that it would have been the utmost folly to
resist it. When the president recommended that the
militia should be called out to enforce the law, the smug-
glers crossed over the Canadian border in armed bands;
when he removed a reluctant tax-collector, juries ac-
quitted the violators of the law;¹ when he dispatched gun-
boats to the eastern harbors, the opposition press struck
with increased energy the same threatening key in which
it had spoken in 1801, 1803, and 1804. It mattered not
how emphatically congress and the administration protest-
ed that they had only the best interests of the New Eng-
land states in view, these were at last firmly resolved not
to permit themselves to be economically ruined without
offering any resistance, and all for the sake of the theories.
of those in power. And whence could the administration
draw the resolution which would enable it to run the risk
of violent resistance on a greater scale, when it was already
convinced that war would soon be preferable to the em-
bargo?
Jefferson acknowledges this in his private correspon-
putting to trial what the strength of the federal arm was; and if it was
not sufficient to enforce its own laws, it might as well be known now as
hereafter." Quincy, Life of J. Quincy, p. 143. Compare Ibid, p. 151.
The Union has had to pay dearly for the failure to make this trial more
frequently. The claim was in poor keeping with the conduct of the.
party during the administrations of Washington and Adams.
¹ An article authorized by J. Q. Adams, in the National Intelligencer.
says: 'The people were constantly instigated to forcible resistance
against it [the embargo], and juries after juries acquitted the violators of
it upon the ground that it was unconstitutional, assumed in the face of
a solemn decision of the district court of the United States." Niles'
Register, XXXV., p. 138. In a precisely similar manner Adams, in a let-
ter dated Dec. 21, 1808, describes the course of the opposition in Massa-
chusetts. Ibid, XXXV, p. 220.
2 See a number of characteristic examples in Randall, Life of Jeff,
III., pp. 282, 283.
214
STATE SOVEREIGNTY AND SLAVERY.
dence, in June, 1808.¹ Spite of this, however, the opposi-
tion was obliged to hear for half a year more, with undi-
minished bitterness, that it had wished, Judas-like, to bar-
gain away the honor and independence of the country. In
January, 1809,Nicholas, of Virginia, the leader of the ad-
ministration party in the house and the special mouthpiece
of the president, made public avowal of the change of front.
He introduced a resolution which deserves to be cited
verbatim. It reads: "Resolved, as the opinion of this
house, that the United States ought not to delay beyond
the day of
to repeal the embargo laws, and to re-
sume, maintain, and defend the navigation of the high seas
against any nation or nations having in force edicts, or-
ders, or decrees violating the lawful commerce and neutral
rights of the United States." He desired that the first of
June should be fixed as the date of the repeal of the law.
Translated into the plain language of every-day life, this
resolution meant: "England and France have allowed
themselves to violate the rights which are ours by the law
of nations. To protect ourselves and punish these powers,
we have, for thirteen months, renounced completely the
exercise of the right which they had in part violated. We
now inform them that we shall persevere in this policy
four months longer. If by that time they do not promise
to deal more equitably with us, we shall be compelled to
surrender this policy, because we suffer too much from it.
We shall, at the end of that time, resume the exercise of
¹ He writes to Dr. Leib, June 23: "It is true the time will come when
we must abandon it. But if this is before the repeal of the orders of
council, we must abandon it only for a state of war. The day is not
distant when that will be preferable to a longer continuance of the
embargo. But we can never remove that, and let our vessels go out and
be taken under these orders without making reprisals. Yet this is the
very state of things which these federal monarchists [!] are endeavoring
to bring about, and in this it is but too possible they may succeed.”
Jeff., Works, V., p. 304.
CHANGE OF FRONT.
215
our rights, and, if necessary, defend them." Was it pos-
sible in a few words to give a more destructive criticism
of the policy of the administration than the administration
party had itself here given expression to?
The opposition would, of course, not listen to this "con-
ditional declaration of war," as Dana, of Massachusetts,
called the resolution. The administration party had vir-
tually lost its cause, and the opposition did not wish to
come to an agreement with it on terms thus easy. In a
democratic republic a policy in direct conflict with the in-
terests of the country can be prosecuted only so long as
the majority of the people remain ignorant of its true
character and consequences, and the government contin-
ues consistent in its error. When the people awake to a
correct understanding, and the government concedes its
error conditionally, or in part, the opposition must be very
badly led if it does not in a short time achieve a complete
victory.
In the opposition states, the administration was allowed
to know the minds and feelings of the people more unre-
servedly than ever.¹ In congress the opposition continued
its attacks with redoubled energy and the hitherto serried
ranks of the administration began to show marks of de-
moralization with astounding rapidity. From among
themselves they were destined to hear a voice, recalling to
their memory the principle which is the kernel of the idea
of the republican state, viz.: that it is the spirit and the
duty of republican governments to make laws agreeable to
the people, and not to endeavor to accommodate the people
'Thus the Massachusetts senate declared: "The people of New Eng-
land perfectly understand the distinction between the constitution and
the administration. . . . On such occasions passive obedience would,
on the part of the people, be a breach of their allegiance, and on our
part, treachery and perjury. The people have not sent us here to sur-
render their rights, but to maintain and defend them; and we have no
authority to dispense with the duties thus solemnly imposed." Hildreth,
Hist. of the U. S., V., p. 116.
216
STATE SOVEREIGNTY AND SLAVERY.
1
to the laws. Their charge that the opposition was fed only
by the British and "monarchical faction" was of no avail,
for their staunchest supporters declared now with solemn
earnestness, that the whole north was of one opinion on
this question. The fate of Nicholas's resolution was proof
enough of this. No time was allowed to those who had
remained true to the administration to collect their
thoughts. The deserters from the party went so far even,
as to offer their aid to hoodwink them by a parliamentary
stroke. Nicholas had so amended his resolution on the
30th of January, that letters of marque and reprisal were
to be issued in case the objectionable orders of the powers.
were not recalled at the date to be determined on. The
opposition moved for a division of the question, and ob-
tained it, because the majority were completely surprised
by the motion. The motion supported by the administra-
tion, to fix the 1st of June as the date of the raising of
the embargo, was rejected, and the 4th of March fixed in-
stead. After the first part of the resolution was thus
adopted with this amendment by seventy-six votes, the
second part was rejected by fifty-seven against thirty-nine
votes.
2
Jefferson was very much surprised by this defeat just
before his retirement to private life.3 He could not ex-
Cook, a Republican member of the Massachusetts house of represen-
tatives, said: “The south say embargo or war; the north and east say,
no embargo, no war.
To comply with the general wish of the
north, the embargo acts must be repealed at an early day." Hildreth, VI.,
p. 127. Story writes, Jan 4, 1809: "The southern states are all for a con-
tinuance; the middle and western are all ready to unite in any measure.
But with very few exceptious, the Republicans from New England re-
ceive almost daily letters which urge a repeal." Life and Letters of J.
Story, I., p. 174.
² The number of those voting “aye" was seventy; the number voting
"no" is not given. Annals of Congress, 1808-9, p. 1334. Hildreth er-
roneously gives the 1st of March as the date.
3
Quincy writes to John Adams, Dec. 18, 1808: "Fear of responsibility
REPEAL OF THE EMBARGO.
plain this sudden revolution of opinion.
217
Notwithstanding
his confession to Dr. Leib, seven months before, he uow
said that the "pseudo-Republican" Story was responsible
for the whole misfortune, and that the removal of the em-
bargo had inflicted an incurable wound on the interests of
the country.2
•
•
and love of popularity are now master passions and regulate all the
movements. The policy is to keep things as they are, and wait for
European events. The presidential term will have expired, and
then away to Monticello, and let the- take the hindmost. I do be-
lieve that not a whit deeper project than this fills the august mind of your
successor." Quincy, Life of J. Quincy, p. 146. Jefferson's character and
his personal attitude towards the embargo question during the last
months of his administration are described in these few words with
masterly skill.
I thought congress had taken their ground firmly for continuing
the embargo till June, and then war. But a sudden and unaccountable
revolution of opinion took place the last week, chiefly among the New
England and New York members, and in a kind of panic they voted the
4th of March for removing the embargo, and by such a majority as gave
all reason to believe they would not agree either to war or non-inter-
Jefferson to Th. M. Randolph, Feb. 7, 1809. Jeff., Works, V.,
course.
p. 424.
·
2 July 16, 1810, he writes to Dearborn: "The Federalists, during their
short-lived ascendency, have, nevertheless, by forcing us from the em-
bargo, inflicted a wound on our interests which can never be cured,
and on our affections which will require time to cicatrize. 1 ascribe
all this to one pseudo- Republican, Story. He came on
and
staid only a few days; long enough, however, to get complete hold of
Bacon, who, giving in to his representations, became panic-struck, and
communicated his panic to his colleagues, and they to a majority of the
sound members of congress. They believed in the alternative of repeal
or civil war, and produced this fatal measure of repeal." Jeff., Works,
V., p. 529. On the other hand, he writes to W. B. Giles, Dec. 25, 1825:
"He [John Quincy Adams] assured me that there was eminent danger
that the convention [of the New England states] would take place;
and that to enable its [the Union's] friends to make head against it the
repeal of the embargo was absolutely necessary. I expressed a just sense
of the merit of this information, and of the importance of the disclosure
to the safety and even the salvation of our country; and however reluctant
I was to abandon the measure (a measure which, persevered in a little
longer, we had subsequent and satisfactory assurance, would have effect-
218
STATE SOVEREIGNTY AND SLAVERY.
There was an element of truth in this view of Jefferson.
The terror which bad taken hold of the majority was in-
deed exaggerated. Heavy as the embargo weighed on the
northern states, it might have been continued some time
longer without any danger of entailing civil war. The
majority soon perceived that they had too hastily dropped
their arms, and the partial resumption of the policy
hitherto pursued by them was far from leading to an immedi-
ate crisis. The more moderate agreed, before the adjourn-
ment of congress, on the Non-intercourse Act, which
postponed the raising of the embargo to the 15th of March,
and allowed it to remain in force so far as France and
England were concerned to the end of the next session of
congress. Even this partial success of the opposition was suf-
ficient to operate powerfully as an appeasement of the ex-
citement. The masses had not as yet formed such an idea of
ed its object completely) from that moment, and influenced by that in-
formation, I saw the necessity of abandoning it, and instead of effecting
our purpose by this peaceable weapon we must fight it out, or break the
Union. I then recommended to yield to the necessity of a repeal of the
embargo, and to endeavor to supply its place by the best substitute in
which they could procure a general concurrence." Jeff., Works, VII.,
pp. 425, 426. There is no reason to ascribe this evident contradiction to
an impure motive. Jefferson was then 83 years old, and his memory
may therefore have proved treacherous. Story writes in his autobiog-
raphy: "Mr. Jefferson has honored me by attributing to my influence
the repeal of the embargo. I freely admit that I did all I could to ac-
complish it, though I returned home before the act passed. The very
eagerness with which the repeal was supported by a majority of the Re-
publican party ought to have taught Mr. Jefferson that it was already
considered by them as a miserable and mischievous failure.
The
truth is, that if the measure had not been abandoned when it was, it
would have overturned the administration itself, and the Republican
party would have been driven from power by the indignation of the
people, goaded on to madness by their sufferings." Story, Life and
Letters of J. Story, I., p. 185. In a letter to Everett he says: "The
credit of it [the repeal of the embargo] is due to the firmness and in-
tegrity of Mr. Bacon." Ibid, I., p. 187. Quincy agrees in this opin-
ion. Life of J. Quincy, p. 185.
¹ Annals of Cong., 2, X., 1824; Stat. at L., II., p. 528.
•
•
THE FEDERALISTS LACK LEADERS.
219
the ruinousness of the policy of the administration as to
seriously threaten the power of the Republicans. They
could again go back immediately, slowly but surely, over
the road which naturally ended in an unnecessary and not
very honorable war; a war which, it is true, was not fruitless,
but which left all the questions for which it was waged un-
solved. They could with impunity venture to introduce
their policy anew, by a second embargo of ninety days,
and during its continuance to lay a third one. At last,
indeed, the Federalists enjoyed a great moral triumph, for
the president himself recommended its recall; but Jeffer-
son's unfortunate policy had already borne fruit in abun-
dance.
The haste which characterized the course of the Feder-
alists when the dismay of the northern Republicans afforded
them the opportunity of a partial victory in February, 1809,
was therefore, a great political mistake. Since Hamilton's
death they were wanting in a leader with the coolness of
judgment absolutely necessary to turn the errors of their
opponents completely to account. They wasted their ammu-
nition in useless demonstrations and petty skirmishes, and
could therefore never engage in a decisive battle. Had
they had to deal with statesmanlike talent of a higher or-
der, they might perhaps have been schooled by the contest
to pursue their endeavors towards the realization of their
more correct political ideas in a more efficient manner.
The ultimate cause of their mistake was, as on so many
former occasions, that they had not discovered the right
political point of view. They over-estimated the momen-
tary excitement of the masses, and under-estimated their
loyalty to the federal authorities and their fidelity to the
Union. The Republicans had repeatedly fallen into the
same mistake when they were in the opposition, and they
now committed the very same errors in their calculations.
Hence the "panic terror" on their part, and on the part of
the Federalists the haste to take advantage of it. The
220
STATE SOVEREIGNTY AND SLAVERY.
majority of American historians have made use of this cir-
cumstance to paint the tendencies of the opposing party
towards resistance or separation in individual cases in too
glaring colors, or to deny that disloyal plans had been de-
vised or the thought of secession seriously entertained by
their own party. Judged from an impartial standpoint,
the fact that the possibility of a civil war or of a division
of the Union was so frequently, and on relatively insigni-
ficant occasions, thought of on both sides, may be taken as
a measure of the degree of consolidation the Union had at-
tained at the time. The leaders undervalued the solidari-
ty of material interests which already obtained, and the
instincts of the people were therefore juster than the well-
pondered judgments of the leaders. On the one hand, the
conflict of interests and the particularistic tendencies of the
masses were yet so great that the leaders were always
goaded into a policy disloyal and particularistic in its ten-
dencies, and they found so much sympathy with the masses
that what at first were only thoughts soon ripened into
plans. On the other hand, the solidarity of interests, and
the national feeling which it fed, were already so strong that
the masses refused their services even before the plans had
gone so far as to find expression in an attempt at action.¹
"It is a melancholy reflection—a subject that excites our best and
inmost feelings-that projects or speculations, as to a dissolution of this
Union, have been so frequently indulged. That leading men in Vir-
ginia looked to a dismemberment in 1798-9, when the armory was built,
etc., that Burr and his confederates had an eye to the establishment of
a western government, in 1805-6,—that many contemplated a building-
up of the 'nation of New England' from 1808 to 1815,--and that now [1828]
some in the south are calculating a division at the Potomac, seems to us
undoubted; but the lengths to which either party proceeded or will pro-
ceed rests very much on conjecture or depends on opinion.
These are fearful things to think of. But whatever have been, or may
be, the designs of individuals, we have always believed, and yet trust,
that the vast body of the people ever have been, and are, warmly at-
tached to the Union; and that it never perhaps was really more strong
than when it seemed most endangered, even during the darkest period
of the late war." Niles' Reg., XXXV., p. 210.
•
AN ENGLISH SPY.
221
It mattered not how often the laboring mountain had given
birth to nothing greater than a mouse, the labor itself and the
political judgment of American statesmen are not on that
account to be lightly estimated. The actual condition of
affairs presented so unusual a complication of positive and
negative factors so peculiarly grouped that it was, indeed,
no easy matter to discover their sum-total.
1
European statesmen, who observed from the nearest
point, fell into the same error. In February, 1809, Sir James
Craig, governor of Canada, sent a secret agent, Henry by
name, to Boston. His main task was to form an opinion
as to how great or how small the prospects of the Federal-
ists were to obtain control of the country, and how far they
would feel inclined in case of a disruption of the Union to
look for support to England. In very general terms, but
in such as were easily intelligible, his instructions further
directed him to find out from the leaders of the Federalists,
whether England, in case of a war with the United States,
could, to a certain extent, rely on them, and in what man-
ner indirect support was to be expected from them. Jef-
ferson asserts that John Quincy Adams said at the time
that this was to be done, according to Craig's plan, by a
declaration of neutrality.²
¹ Sir James Craig to Henry, Feb. 6, 1809: "It has been supposed that
if the Federalists of the eastern states should be successful in obtaining
that decided influence which may enable them to direct the public
opinion, it is not improbable that rather than submit to a contin-
uance of the difficulties and distress to which they are now subject, they
will exert that influence to bring about a separation of the general union.
The earliest information on this subject may be of great importance to
our government, as it may also be, that it should be informed, how far
in such an event they would look up to England for assistance, or be
disposed to enter into a connection with us." Dwight, Hist. of the
Hartford Convention, p. 200.
2 Jefferson to John Adams, April 20, 1812: "He [J. Q. Adams] stated a
particular which Henry has not distinctly brought forward, which was,
that the eastern states were not to be required to make a formal act of
separation from the Union, and to take a part in the war against it, a
222
STATE SOVEREIGNTY AND SLAVERY.
1
Henry himself became convinced after a short time that
his mission would remain fruitless. The federalists, later,
relying on this declaration, represented the whole plan as
an absurdity ab initio. Henry's disclosures were certainly
not worth the $50,000 which Madison paid for them, but
the plan cannot be looked upon as the clumsy mystifica-
tion of a common cheat, simply because it remained with-
out results. Henry had come to Boston at an unfortunate
moment. After the partial removal of the embargo and
the acceptance of the friendly proposals of Great Britain.
through Mr. Madison, he could expect no advances from
the extreme Federalists.2 But it does not follow from this
that he would have met the same reception if the adminis-
tration party had not yielded, as up to February seemed
probable. One of the most distinguished sons of whom
Massachusetts can boast was of opinion that Henry would
have found support enough for his operations, if the policy
hitherto pursued had been persevered in. As early as No-
vember, 1808, John Quincy Adams expressed the fear that
this might lead to civil war. Later he claimed to have “une-
quivocal evidence" tending to show that there was a sys-
3
mcasure deemed much too strong for their people: but to declare them-
selves in a state of neutrality, in consideration of which they were to
have peace and free commerce, the lure most likely to ensure popular
acquiescence." Jeff., Works, VI., p. 50.
¹ He writes, May 25, 1809: I beg leave to suggest that in the present
state of things in this country, my presence can contribute very little to
the interests of Great Britain." Niles' Reg., II., p. 25. The whole cor-
respondence bearing on this subject is to be found in Ann. of Congress,
1, XII., p. 1162, etc; Foreign Relations, III., p. 545, etc.; Niles' Reg.,
II., p. 19, etc.
2 See Henry's letters of the 5th and 25th of May.
Between the embargo and the non-intercourse system, under my
present state of information, I should strongly incline to the last. It
would, indeed, incur new hazard of eventual war abroad, but I think it
would remove the risk of war at home for the present." Nov. 17, 1808.
Niles' Register, XXXV., p. 220. Compare also the letters from Desausure,
Dec. 7, 1808, and Jan. 21, 1809, and from Crafts, Jan. 30, 1809, to Quincy.
Life of Quincy, pp. 189-192.
PROJECT FOR SECESSION OF THE EAST.
223
tematic attempt making to dissolve the Union. In his
opinion New England would have undoubtedly made sure
of the assistance of Great Britain if the administration
had made civil war inevitable by an effort to overcome the
resistance to the embargo by force.¹
1
The Federalists, on whom in particular the suspicion
would rest, declared Adams's disclosures to be malicious.
calumnies, wanting foundation in fact. How far Adams's
works and correspondence, the publication of which is
going on, will contain proofs of his assertion, it is impos-
sible to conjecture. The accuser and the accused were
both honorable men, whose words had equal weight, but
of course the burden of proof is on the former. As long
as this has not been produced, equity demands that the
peculiar position in which Adams was placed at the time
should be considered in favor of the party accused. He
¹ In an article in the National Intelligencer of Oct. 21, 1828, author-
ized by Adams, we read: "A separation of the Union was openly stim-
ulated in the public prints, and a convention of delegates of the New
England states to meet at New Haven was intended and proposed.
He [Adams] urged that a continuance of the embargo much longer
would certainly be met by forcible resistance, supported by the legisla-
ture, and probably by the judiciary of the state. That to quell that re-
sistance, if force should be resorted to by the government, it would pro-
duce a civil war; and that in that event, he had no doubt the leaders of
the party would secure the co-operation with them of Great Britain.
That their object was, and had been for several years, a dissolution of
the Union and the establishment of a separate confederation, he knew
from unequivocal evidence, although not provable in a court of law;
and that in case of a civil war the aid of Great Britain to effect that
purpose would be as surely resorted to as it would be indispensably
necessary to the design." Niles' Register, XXXV., p. 138. Story writes
Jan. 4, 1809: “If I may judge from the letters I have seen from the
various districts of Massachusetts, it is a prevalent opinion there, and
in truth, many friends from the New England states write us that there
is great danger of resistance to the laws, and great probability that the
Essex junto have resolved to attempt a separation of the eastern states
from the Union; and if the embargo continues that their plan may re-
ceive support from our yeomanry." Life and Letters of J. Story, I.,
p. 174. Compare also Ibid, p. 182.
224
STATE SOVEREIGNTY AND SLAVERY.
had just separated from the Federalists, and was a warm
advocate of the most essential points of the policy of the
administration, although he did not go over formally and
entirely to the Republican camp. The odium which he
thereby drew down upon himself might, indeed, have in-
fluenced him so far as to cause him to see more than there
really was to be seen. This assumption gains in probabil-
ity from the fact that he was not free from the morbid dis-
trust and the consequent easy credulity which were the
most prominent features in his father's character. On
the other hand, his whole political life is a sufficient guar-
anty that he would not have made the charges if he had
not been perfectly satisfied of their truth, and he was in
a position to obtain complete and reliable information in
regard to them. The final decision of history must there-
fore remain suspended. To the more important question,
however, what prospect there was of the probable success
of Craig's and Henry's plan, if the reigning party had
not in part retraced their steps, the history of the follow-
ing years gives a satisfactory answer.
One of the principal arguments by which the adminis-
tration had, from the beginning, defended the embargo,
was that the only choice lay between the embargo and
war, and that war should be avoided as long as possible.¹
The ultra-Federalists censured this view as one of im-
potent cowardice. In the winter of 1805-6, the most im-
portant commercial towns of the northern and middle
states sent memorials to congress, in which they urged it
to an energetic defense of the rights granted to neutrals by
international law, in the interest of American commerce.
The memorials were couched throughout in the most de-
"If we had put the question to every man in the nation, the head of
a family, whether we should go to war or lay an embargo, (the only
choice we had) nineteen out of twenty would have voted for an em-
bargo." Williams, of South Carolina, Dec. 9, 1808, in the house of rep-
resentatives. Deb. of Cong., IV., p. 76. Ibid, pp. 13, 14, 41, 57, 78.
HENRY CLAY APPEARS IN POLITICS.
1
225
cided terms, and some of them declared that war might per-
haps be necessary for the protection of the rights and honor
of the country. Later the administration party was oblig-
ed to hear that it was impossible to "kick" it into a war. But
the more the damage which commerce had sustained from
the violation of the neutrality laws and the irrational
policy of the administration was felt, the less loud grew
the warlike tone of the Federalists. At first they denied
that the choice really lay only between subjection, embar-
go, and war; then they reproached the majority that by
their shyness of war they made war inevitable, and be-
sides, that they did not seem to see that if there should or
must be war, it were better it should be begun before the
strength of the country had been weakened by the embar-
go; and lastly, they adopted as their battle-cry against the
Republicans unconditional opposition to a war with Eng-
land.
The administration party took at the same time a still
more radical turn and in the opposite direction. The de-
termining influence was exercised here by the extreme
Republicans of the south and the representatives of the
young western states. Williams of South Carolina was
still of opinion in December, 1808, that by a war they had
nothing to gain and everything to lose. And yet if
the embargo was not removed, he declared himself rejoiced
at the opportunity afforded by Jackson's motion of regis-
tering his vote for the war. One year later, Clay, who
already carried great weight, spite of his youth, made an
equally frank declaration in the senate. With the profuse
rhetoric of youth, and genuine American self-admiration,
he avowed most candidly that, in case of a war, it would
3
¹ See the extracts from a number of these memorials in Niles' Reg.,
VII., pp. 327-329.
gain by war, nothing by bloodshed;
Deb. of Congress, IV., p. 76.
2 "The people have nothing to
but they have everything to lose."
Hildreth, Hist. of the U. S., VI., p. 136.
15
226
STATE SOVEREIGNTY AND SLAVERY.
not only be necessary to look to the defense of the country
but that the conquest of Canada should be kept in view.¹
Clay was elected a member of the house of representa-
tives the following year, and was chosen speaker. He used
the disproportionately great influence of his position with
masterly skill and astounding recklessness to realize the
idea proposed in the above programme. He appointed
Calhoun, who had been elected to congress for the first time,
the second member of the important committee of foreign
affairs, and he (Calhoun) soon became its actual head. The
first month of the session had not yet passed, when the
two young zealots had brought it to such a pass that they
could proclaim as a fixed resolution, what a year and a half
before, Clay had given expression to as an eventual wish.
On the 29th of November, 1811, the committee on foreign
affairs made their report, and laid a mass of resolutions be
fore the house. The report recited: "Forbearance has
ceased to be a virtue.
The period has arrived when
3
1 "Your whole circle of commercial restrictions
•
•
•
•
presented
resistance--the peaceful resistance of the law. When this is abandoned
without effect, I am for resistance by the sword.
It is said, how-
ever, that no object is attainable by a war with Great Britain. In its
fortunes we are to estimate not only the benefit to be derived to our-
selves, but the injury to be done the enemy. The conquest of Canada is
in your power. I trust I shall not be deemed presumptuous when I state
that I verily believe that the militia of Kentucky are alone competent to
place Montreal and Upper Canada at your feet.
Is there no dan-
ger that we shall become enervated by the spirit of avarice unfortunately
so predominant? . . . A certain portion of military ardor (and that
is what I desire) is essential to the protection of the country.
We
shall want the presence and living example of a new race of heroes to
supply their [the heroes of the revolutionary war] places, and to ani-
mate us to preserve what they have achieved." Deb. of Congress, IV.,
pp. 177, 178. The plan, however, haunted the heads of the younger pol-
iticians a year earlier. See Quincy's speech of the 19th of Jan., 1809.
Compare also, Ibid, p. 203.
Life of Quincy, p. 176.
•
2 The speaker of the house has been rightly styled the second person-
age in the republic.
'Niles' Reg., I., pp. 252, 254.
ADOPTION OF WAR MEASURES.
227
in the opinion of your committee it is the sacred duty of
congress to call forth the patriotism and resources of the
country." The resolutions among other things asked for
an increase of the regular army by the addition of ten
thousand men, and that the president should be authorized
to call volunteers to the number of fifty thousand under
arms. Randolph said during the debates on the report
that the question lay between peace and war, and that war,
a war of conquest against England.¹ Wright of Maryland
claimed, on the other hand, that there was no longer any
question of peace; that there was no choice but subjugation
or war.2 The committee itself left no doubt as to what was
intended by the resolutions. Calhoun expressly declared
that the proposed measures had a meaning only when they
were looked upon as a preparation for war and that war
could not be be declared at once, only because the country
was not ready for it.³ The house adopted both the resolu-
tions, one by one hundred and ten to twenty-two and the
other by one hundred and thirteen to sixteen votes. By an
overpowering majority, it resolved also that the war should
begin as soon as the necessary preparations were made; for
this is the legitimate interpretation, which, according to
Calhoun's declaration, is to be put on the vote.
4
Randolph had said in his great speech of the 10th of
December, that the committee had gone farther than the
president. Madison was, indeed, far from being able to
master the situation. Endowed by nature with a clearer
insight into matters of state and with a much finer moral
'Deb. of Congress, IV., pp. 436, 438.
2 Ibid, IV., p. 445.
3 "I certainly understand that the committee recommended the meas-
ures now before the house as a preparation for war; and such in fact
was its express resolve, agreed to, I believe, by every member, except
that gentleman [Randolph].
Indeed the report could mean
Calhoun's Works, II., p.
•
nothing but war or empty menace."
4
* Deb. of Congress, VI., p. 465.
228
STATE SOVEREIGNTY AND SLAVERY.
constitution than Jefferson, he became like wax in his
hands, once the Republican party had permanently obtained
the mastery in Virginia. The gift of persuasion which he
possessed in an eminent degree, and which made him an
invaluable ally, became almost ruinous to him. When
there were obstacles placed in the way of his ambition,
which his moral sense would not permit him to evade, his
judgment was wont to be misled by his sharp and flattering
logic. The impulse in this direction he always received
from others. He was deficient in the independence and
energy of will which are the necessary requisites of a great
political leader. Hence, while he always remained a polit-
ical attorney of extraordinary ability, he never rose to the
height of the statesman. These were qualities which emi-
nently qualified him to serve as the right-hand man of his
predecessor in the presidency. But when he was himself
placed at the head of the state, he found himself entangled
in a terrible net, which he had wrought with his own
hands. He was not the man to tear it to pieces with
quick resolution. And his participation in the ruinous
work was so great that he could not see that the net could
be unraveled with success only on condition that the work
was begun without delay and prosecuted in accordance
with a well-matured plan. But even if he had seen it, he
would scarcely have taken such a resolution, for, in doing
so, he would have been passing judgment not only on Jef-
ferson, but on himself. Besides, now that the decision
rested with him, his real nature got the better of him.
Moderate in his thought and judgment, he had always
cautiously felt his way towards a middle course, in which
he followed only his own mind and inclinations. Under
the burthen of responsibility, this commendable modera-
tion was now transformed into a painful uncertainty.
Whatever was positive in the programme devised by Jeffer-
son crumbled away like baked sand in his hands. The
state of the country demanded more imperatively every
CHARACTER OF MADISON.
229
day, that a decided initiative should be taken, but the man
whose duty it was to take it was wanting not only in the
necessary qualities of character, but his whole programme
was, like that of the opposition, a purely negative one.¹
Under such conditions, the field belongs, in a popular
state, to those possessed of the courage to resolve and do.
The homines novi in congress had this courage, and Madi-
son therefore became their tool. Their unsatiated ambition
expected to earn in war, in rich abundance, the laurels
which the contest over questions of internal politics offered
them little prospect of winning in the near future, because
the Democrats' were possessed of an overwhelming prepon-
derance.
That there had been for years sufficient cause for war,
cannot be questioned, but it was, notwithstanding, the
work of a small ambitious party in congress. The country
was drawn into it, although the opposition party condemned
it in a manner and to an extent which excited fear of for-
cible resistance and of treason; although the bearer of the
executive authority and the head of the party did not de-
sire it; and spite of the fact that only a small minority
considered it really inevitable and wished for it with un-
affected enthusiasm. This is a remarkable instance how
little, under certain circumstances, even among peoples
who rejoice in the most unlimited self-government, there
is, in truth, any self-government, and how often facts give
the lie to the principle of the sovereignty of the majority.
The war party obtained control in congress because
vanity and the party interests of the majority prevented
their acknowledging their former mistakes. They had
imposed every kind of restriction on commerce, and all
that they had accomplished was to seriously damage their
1
¹ Compare Quincy's opinion. Life of Quincy, p. 204.
2 The names Republicans and Democrats were for a long time used
indifferently. From the 9th congress, the latter designation began to
encroach upon the other.
230
STATE SOVEREIGNTY AND SLAVERY.
own interests.¹ So long as it would not be conceded that
the idea which lay at the foundation of these restrictions
was a false one, it was necessary to hold that there was no
choice except between them and war, and that policy and
good morals had operated for a decision in favor of the
lesser evil, so long as by this means the attainment of the
wished-for end still seemed possible. From this it direct-
ly followed not only that war was justifiable, but that it
should be declared necessary.
The same burden of logical consequences, drawn from
premises which he had made himself, weighed heavily on
Madison. The enthusiasts in favor of war were in a con-
dition to give importance to another element, and this de-
cided the issue. The presidential election was impending,
and the war party made the unconditional adoption of
their policy a sine qua non of his renomination. That
2
¹ It has already been remarked that the planters had least to suffer
from the embargo. But it is evident that the grounds above adduced
could produce the effects mentioned only during a short time. When
the restrictions on commerce had lasted for years, the planters' states,
poor in capital and in manufactures and obliged to obtain the greater
part of the necessaries of life from the west, suffered most from it.
Randolph says in his speech of Dec. 10, 1811: "By a series of most
impolitic and ruinous measures, utterly incomprehensible to every
rational, sober-minded man, the southern planters, by their own votes,
had succeeded in knocking down the price of cotton to seven cents,
and of tobacco (a few choice crops excepted) to nothing, and in raising
the price of blankets, coarse woolens, and every article of first neces.
sity, three or four hundred per cent." Deb. of Cong., IV., p. 438. Th.
Pinckney, of South Carolina, wrote May 25, 1808: "We are here
smarting under the effect of the embargo." Quincy, Life of J. Quincy,
p. 140. Quincy writes in his diary, Nov. 8, 1808: "In the evening,
Lewis, of Virginia, called on us. He represented the sufferings of that
state under the embargo as extreme;" and on Nov. 16, "Conversation
with J. Randolph. He said the embargo was ruining Virginia." Ibid,
p. 143.
2 The fact was so notorious that it was mentioned in the most direct
way in congress. Said Quincy, on the 5th of January, 1813, in the
house of representatives: "The great mistake of all those who reasoned
concerning the war and the invasion of Canada, and concluded that it
THE THIRD EMBARGO.
231
the threat could be carried into effect was to be looked up-
on as certain, for Monroe and Clinton were already pre-
pared to accept the nomination from the war party, and
this party could not, therefore, be at a loss for candidates.
Madison was not a man of such rigid moral firmness
that his convictions could have withstood such a tempta-
tion. He fell a victim, like others before him, and like
men of the greatest political talents after him, to the
presidential fever. Clay and Calhoun, who had mainly
abetted him in this bargain, which was made at the expense
of the country, afterwards wasted away under the influence
of the same incurable malady.
1
Madison was forced farther step by step. At first he
was compelled to write a confidential message which recom-
mended an embargo of sixty days. Grundy, of Tennes-
see, replied, on inquiry, in the name of the committee on
foreign relations, that it was to be looked upon as the
immediate precursor of war. Clay and Smilie agreed in
this view, and expressed their great satisfaction that the
matter had progressed so far.3
2
Randolph had called attention to the fact that the em-
bargo had not in reality originated with Madison. True,
Calhoun and Grundy contested his assertion; but it was
was impossible that either should be seriously intended, resulted from
this that they never took into consideration the connection of both these
events with the great election for the chief magistracy, which was then
pending. It never was sufficiently considered by them that plunging
into war with Great Britain was among the conditions on which the
support for the presidency was made dependent." Deb. of Cong., IV.,
pp. 629, 630.
1 April 1, 1812. Statesman's Man., I., p. 292.
Mr. Grundy said
.. that he understands it as a war measure,
and it is meant that it shall lead directly to it; that with any other
view there was no propriety in it; as a peace measure he had no idea
that the president would have recommended it, nor would the committee
have agreed to it." Deb. of Cong., IV., p. 544.
3
Ibid, IV., pp. 545, 546.
4
* Ibid, IV., p. 546.
232
STATE SOVEREIGNTY AND SLAVERY.
their well-settled policy to make the president the mouth-
piece by which they made known their resolutions. Mad-
ison had already given evidence of his willingness to sign
a declaration of war. But this did not satisfy the war
party. They wanted him not only to join them, but to
completely identify himself with them. He was informed
that he would have either to do without their support, or
to prevail on congress to make the declaration of war.
He yielded, and sent congress another confidential mes-
sage, in which he laid before it at length the wrongs which
had been inflicted. England, he said, was already practi-
cally at war with the United States, and it was now incum-
bent on congress to decide whether force should be opposed
to force.1
This virtually decided the triumph of the war party; but
they nevertheless followed up their victory with such im-
petuosity, that it seemed they were not completely sure of
it until it was an accomplished fact. On the 30th of June,
Calhoun, in the name of the committee on foreign affairs,
presented a report on the message to the house in which he
recommended "an immediate appeal to arms." He moved
at the same time that a formal declaration of war against
Great Britain should be made, and it was passed to a
"We behold, in fine, on the side of Great Britain a state of war
against the United States, and on the side of the United States a state
of peace toward Great Britain. Whether the United States shall con-
tinue passive under the progressive usurpations and these accumulating
wrongs, or, opposing force to force in defense of their national rights,
shall commit a just cause into the hands of the Almighty disposer of
events
is a solemn question which the constitution wisely con-
fides to the legislative department of the government. In recommend-
ing it to their early deliberations I am happy in the assurance that the
decision will be worthy the enlightened and patriotic councils of a vir-
tuous, free, and powerful nation." State Papers, VIII., p. 132. States-
man's Manual, I., pp. 297, 298.
" Deb. of Congress, IV., pp. 554–558.
DECLARATION OF WAR.
233
third reading on the following day by a vote of seventy-
nine to forty-nine.¹
The senate did not show the same zeal. Now that the
last bridge was to be cut down, a part of the Democrats.
began to waver to such an extent that the motion made
by Gregg of Pennsylvania, to recommit the bill pro-
viding for the declaration of war, was adopted on the 11th
of June, by seventeen votes to thirteen.2 Not until the
17th of June, did a sufficient number of reluctant Demo-
crats yield, to allow the amended bill to be passed to a
third reading by a vote of nineteen to thirteen. The
house agreed to the amendments on the following day.
The majority had repeatedly recognized that the Feder-
alists had carried on their opposition during the whole
session of this congress in a most worthy manner. The
war party rewarded this course of theirs by the most reck-
less uses of its power.
The transactions of the house
were carried on in a manner which suggested rather a con-
clave of tyrants than the legislative body of a free people.
Since the beginning of the new difficulties with England,
the most important papers were kept from congress by the
executive authority; and the minority might deem them-
selves happy when their demands for the suppressed doc-
uments were received with an observance of at least exter-
nal decorum. And the majority of the people said amen
to it, when with blind-folded eyes they were carried on
¹ Deb. of Congress, IV., p. 559. The declaration of war thus received a
majority of only thirty votes, although the democratic majority in the
full house (one hundred and forty-two members) was seventy
Ibid, IV., p. 416.
2
3 Six Democrats voted to the last with the Federalists. Bayard de
clared on the 16th of June: "When the bill before us was first brought
up from the other house, it was the opinion of very few that it would
obtain the support of a majority of the body; and even now it was like-
ly to pass, not because it was approved by a majority, but of the differ-
ences of opinion which existed among gentlemen as to other courses
which had been proposed." Deb. of Congress, IV., p. 419.
234
STATE SOVEREIGNTY AND SLAVERY.
from one folly to another, till finally they were dragged
into war. The high-sounding hymns to Freedom, the Peo-
ple and Self-government directed their eyes away from the
unworthy game which their delegates were playing with
them. The principle of the necessity that the majority
should rule was carried to the greatest extreme, and the
principle no less true, that the conscientious respect of the
rights of the minority is the condition precedent of a ra-
tional republic, was forgotten, nay, not even as much as
conceived. Time was not left to the opposition to develop
their views on the most important questions, nor was an
opportunity offered them to bring them before the people
at the right time. The debates, on the embargo recom-
mended by Madison on the 1st of April, 1812, were car-
ried on with closed doors, and after the committee had
made its report, the war party desired to have it carried
through in a single day. Nelson wanted time for consid-
eration. Quincy requested the house to accord one day
more for debate, in order that he might take part in it.
Widgery answered that the responsibility rested on the
majority, and Quincy's motion was defeated by a vote of
fifty-seven to fifty-four.¹ The debates on the declaration
of war, also, were carried on in the same manner. Ran-
dolph's motion to open the doors was rejected by a vote of
seventy-seven to forty-five. Milnor renewed the motion
on the next day, but it met with the same fate. And when
the third reading of the bill was resolved upon, Stow asked
that it should be postponed to the following day, but this
motion also received only forty-eight ayes to seventy-eight
nays.2
In this way a surprise was prepared for the people. They
learned on the 18th of June that they were at war with the
greatest naval power in the world. There was no effort
¹ Deb. of Congress, IV., p. 547.
2 Ibid, IV., pp. 558, 559.
1
PROTEST OF THE MINORITY.
235
made to justify this except in the ingenuous manner
adopted by Widgery.
Thirty-four representatives of the minority published a
vigorous protest, in the form of an address to their constit-
uents, both against the war and the manner in which the
declaration of war was brought about. They would have
no share in the misfortunes which would grow out of the
war. When they were refused the privilege of public de-
bates, they had refrained from all participation in the dis-
cussion, for the reason that it would have been useless to
have taken part in it and that they did not wish in any
way to help to give "implied validity to so flagrant an
abuse of power.
""
The discussion of the history of the diplomacy anteced-
ent to this war, which was treated exhaustively in this ad-
dress as it had been in nearly all the speeches delivered, is
not within the province of this work. It is necessary to
mention particularly only one point of the protest, because
it embraces in a few words all that is of importance in the
war of 1812 for the constitutional history of the United
States and in part also for the history of American democ-
racy.
Those who protested against the war insisted that any war
was pregnant with great danger to the United States, because
of the peculiar nature of their union. The "moral bond"
which united "the powerful and independent sovereign-
ties" should not have been subjected to such a strain, so
long as its new institutions were not more mature. In this
instance, it was doubly foolish to fight, because the people
entered upon the war a divided people, on account of im-
portant "moral and political objections."
¹ Niles' Reg., II., pp. 309–315.
2“In addition to the many moral and prudential considerations which
should deter thoughtful men from hastening into the perils of such a
war, there were some peculiar to the United States, resulting from the
texture of the government in no small degree experimental, composed
236
STATE SOVEREIGNTY AND SLAVERY.
i
The ground last named was considered by the protesters.
as of the greatest weight. The presidential election gave
these words a special emphasis. The war was the great
question in the presidential campaign, and the result
showed the geographical separation of parties more clearly
than it had been seen for years. With the exception of
Vermont, all the New England states, and New York, New
Jersey, and Delaware gave their solid electoral vote for
DeWitt Clinton. Maryland was divided, and Pennsyl-
vania, with all the western and southern states, voted
unanimously for Madison.
But even if the division had not been to so great an ex-
tent of a geographical kind, an element of the highest im-
portance remained. Only the young men of the war party
were ready to say that it operated as a spur rather than as
a damper upon their blind war feeling. It was not re-
served for Webster to be the first, after the country had, for
a year and a half, tormented itself with the rashest experi-
ments, to lay bare the truth that a party war of such di-
mensions could not be brought to a successful issue in a
popular state, especially in a popular state of such
peculiar structure. Indeed, six months before the decla-
1
of powerful and independent sovereignties associated in relations, some
of which are critical as well as novel; should not be hastily precipi-
tated into situations calculated to put to trial the strength of the moral
bond by which they are united. Of all states that of war is most likely
to call into activity the passions which are hostile and dangerous to
such a form of government. Time is yet important to our country to
settle and mature its recent institutions. Above all, it appeared to the
undersigned from signs not to be mistaken, that if we entered upon this
war, we did it as a divided people; not only from a sense of the inade-
quacy of our means to success, but from moral and political objections
of great weight and very general influence."
"The truth is, sir, that party support is not the kind of support
necessary to sustain the country through a long, expensive and bloody
contest; and this should have been considered before the war was de-
clared. The cause, to be successful, must be upheld by other sentiments
and higher motives. It must draw to itself the sober approbation of
A PARTY, NOT NATIONAL, WAR.
237
ration of war, it was emphatically declared by one of
themselves, and a very distinguished personage, that the
end for which they contended could be attained only by a
really national war.¹
1
That the war from the beginning bore the character of a
mere party war was a fact so patent that not even the bold-
est advocates of the war party dared to deny it. This did
not by any means prove that it might not become a na-
tional war; but the hope that such would be the case was
based solely on the experience that in war the feeling of
nationality as a rule silences all others. The war party
had expected with so much certainty that this would be
the case, that they declared the mere existence of the war
made it a positive duty to abandon all further opposition,
of no matter what form. The Federalists and their Dem-
ocratic allies replied that if it was impolitic and unjust to
begin the war, it could not be politic and just to continue
it, only because it was begun. It did not follow that be-
cause they had not been able to prevent the war, they were
obliged to lend their aid to magnify the evil indefinitely.
It was incumbent on them, as men and citizens, to use all
lawful means in their power to put an end, as soon as
possible, to a course which, in their opinion, was simply
criminal. The war party, on the other hand, harped on
the great mass of the people. It must enlist, not their temporary or
party feelings, but their steady patriotism and their constant zeal. Un-
like the old nations of Europe, there are, in this country, no dregs of
population, fit only to supply the constant waste of war, and out of
which an army can be raised for hire at any time, and for any pur
pose. Armies of any magnitude can here be nothing but the people em-
bodied; and if the object be one for which the people will not embody
there can be no armies." Deb. of Cong., V., p. 139.
1
Macon, of North Carolina, said: “And here, sir, permit me to say
that I hope this is to be no party war, but a national war.
Such
a war, if war we shall have, can alone, in my judgment, obtain the end
for which we mean to contend, without any disgrace." Ibid, IV.,
p. 452.
238
STATE SOVEREIGNTY AND SLAVERY.
the honor of the country which was involved in the issue,
and branded these views as "moral high treason."
Looked at from an absolute standpoint, much might be
said in favor of both views; but it is the political philoso-
pher and not the practical statesman who should judge such
questions from an absolute standpoint. This the war party
had overlooked. Webster demonstrated to them, in a mas-
terly oration, that the given circumstances made this change
of this party war into a national one materially more diffi-
cult, and that they had, besides, done, and were doing, all
in their power to make it impossible. Their fundamental
error was that they had treated the whole question as a
legal one. True, it was necessary to make it appear that
there were sufficient reasons to declare war, but that was
not enough; its wisdom and expediency should also have
been proven. The strength of the government was based
on the united conviction of the people, and a rational gov-
ernment would not therefore have taken so important a
step without ascertaining whether such a united convic-
tion existed. Especially should the public opinion of those
states whose interests were mainly to be protected by the
war have been taken into consideration. But even all this
would not have been enough. "The nature and struc-
ture of the government, the general habits and pur
suits of the community,
the variety of impor-
tant local interests," should have been kept in view. In
a word, "reasons of a general nature, considerations which
go back to the origin of our institutions," should have
been taken into account. He had heard no justification of
the war on such grounds. If its advocates, he had said a
few days before, could show that it was undertaken on
grounds manifestly just, that it was necessary and unavoid-
able, and strictly an American war, it would then change
its character, and grow as energetic as it was now weak
1
¹ Deb. of Cong., V., pp. 137, 138.
POSITION OF THE FEDERALISTS.
239
and feeble. It would then become the affair of the people
and no longer remain that of a party.'
This "if" could never be met to the satisfaction of the
Federalists, which is only another way of saying that they
would never look upon the war as a national one. The
year and a half which had passed since its beginning
ought to have been enough to lead them to this conclusion,
if that were at all possible. The probability of such an
event was all the smaller, because the elements on which
the war party had calculated so strongly were not with-
out influence from the first. Even Monroe acknowledged,
in September, 1812, that success as well as defeat had con-
tributed to bring the opposition nearer to the war party.
But he took the erroneous view that this influence would
suffice to soon make the war a national one.²
This error of the war party, so pregnant with results, had
a very good foundation, which was pointed out in the pro-
test already mentioned, and by Webster. Wherever a vital
national feeling exists, it will always, with the vast majority
of the people, cast every other consideration into the shade,
when once a war has been begun for reasons as important as
2
1 Curtis, Life of Webster, I., pp. 117, 118.
Monroe to Clay, Sept. 12, 1812: "From the northern army we have
nothing which inspires a confident hope of any brilliant success. The
disaffection in that quarter has paralyzed every effort of the government,
and rendered inoperative every law of congress. I speak comparatively
with what might have been expected. On the public mind, however,
a salutary effect is produced even there by the events which have oc-
curred. Misfortune and success have alike diminished the influence of for-
eign attachments and party animosities, and contributed to draw the peo-
ple closer together. The surrender of our army excited a general grief,
and the naval victory a general joy. Inveterate toryism itself was com-
pelled in both instances to disguise its character and hide its feelings,
by appearing to sympathize with those of the nation. If Great Britain
does not come forth soon and propose honorable conditions, I am con-
vinced that the war will become a national one, and will terminate in
the expulsion of her force and power from the continent." Private
Correspondence of H. Clay, pp. 23, 24.
240
STATE SOVEREIGNTY AND SLAVERY.
in the case before us, and even when a very large portion.
of the people are decidedly opposed to the declaration of
war, because of doubts as to the possibility of bringing it
to a successful issue, or because of the injury it may be
calculated to entail upon certain special interests. But a
live national feeling can obviously be found only among a
people who constitute a nation in the real sense of the
word. The people of the United States, however, were yet
far removed from being a nation in this sense, although
they had among them the conditions precedent of a rapid
national intergrowth, and although these conditions had be-
come vastly more favorable since the revolutionary war. The
war party had calculated on a national feeling which did
not yet exist, although the war might contribute to beget
it. The national feeling that existed was not even so
strong that it could be credited exclusively or mainly
with the approximation of the opposition to the majority,
which Monroe conceded had taken place. The conscious-
ness of duty and a recognition of the interests which had
their root in the political unity of the states, had a much
greater influence in producing this result.
The leaders of the opposition declared from the first, in
express terins, that they would take this ground. They
were loyal, but they coldly and exactly calculated what the
laws made it their duty to do, and peremptorily refused to
do more. Even in January, 1812, during the debate on
' Neumann, in his "Geschichte der Vereinigten Staaten," speaks of
the "lawless conduct” of Connecticut and Massachusetts (II., p. 168), of
the "baseness” of the opposing Federalists (II., p. 176), and of the "long-
exploded objections" of the Federalist opponents of the administration.
Neumann has scarcely the most superficial knowledge of American con-
stitutional law, and without a thorough knowledge of it, it is simply
impossible to write a history of the United States. The Commentaries
of Kent and Story, the Federalist, Curtis on the History of the Constitu-
tion, Whiting on the War Powers of the President, etc., and one of Lu-
ther's essays, are the only works relating to the constitution named in
his three volumes, but even these the author has evidently not once
1
INTEREST THE ONLY BOND OF UNION.
241
the increase of the marine, Quincy remarked, that the
interests of the states should be the "polar lights"
of every American statesman in the decision of every ques-
tion of vital importance. This was predicated on the
sovereignty of the states. The "artificial ties of parch-
ment compact" would be found to be too weak the moment.
the interests of the states ceased to hold them together.¹
really studied. He has not even made any use of the decisions of
the supreme court or of the opinions of the attorneys-general. And
the other numerous sources which the author has used, he has worked
only very superficially. It is impossible to account on any other hy-
pothesis for the fact that he has been able to overlook or completely to
misunderstand the most essential matters in the documents which he
quotes. This last is accounted for in part by the fact that he had no
personal knowledge of the United States, and his idealistic republican
doctrines are the thread of Ariadne by which he guides himself through
the labyrinth of their history. He was not satisfied, however, with writ-
ing their history "for better or worse" but, as he says himself in the pre-
face (III., p. IX) for "a text book for all other nations." Yet the book is
not without its good points. He deserves credit especially for having,
during the darkest hours of the republic, with an enthusiasm which was
always honest if not critical, lauded its good and healthy parts, and
preached with the deepest conviction, that without any manner of doubt
the north, with its free labor and free political institutions, would win the
victory over the south, based on slavery and on slavery in the form most
antagonistic to morals and civilization. As a historical work, however,
I consider it of so little value, that I simply take occasion to refer to it
to point out some of the most flagrant errors. And here I wish to espec-
ially say that it is no place to look for information on constitutional
questions.
1 "I confess to you, Mr. Speaker, I never can look—indeed in my opin-
ion no American statesman ought ever to look-on any question touch-
ing the vital interests of this nation, or any of its component parts, with-
out keeping at all times in distinct view the nature of our political asso-
ciation and the character of the independent sovereignties which com-
pose it. Among states the only sure and permanent bond of union is inter-
est. And the vital interests of states, although they may be sometimes
obscured, can never for a very long time be misapprehended. ...
And need I tell statesmen that when great local discontent is combined
in those sections [the states] with great physical power, and with ac-
knowledged portions of sovereignty, the ties of nature will be too strong
for the artificial ties of parchment compact? Hence it results that the
16
242
STATE SOVEREIGNTY AND SLAVERY.
The anti-Federalists had not, even in the times of the
greatest excitement during the administrations of Wash-
ington and Adams, insisted more strongly on the confeder-
ate nature of the Union. Quincy not only looked upon it
as an unquestionable fact that the Union was not a nation;
in his opinion it was also undeniable that there was no
present national feeling or national interests which could
in a lasting and far-reaching struggle prevail over the sep-
arate interests of the individual states.
Webster gave more prominence to the other side of the
question. Apart from general political and moral consid-
erations, it was his conviction that the war could not and
should not become a national one, because the interests
of the northern and eastern states were especially in-
jured. He also charged the reigning party with endan-
gering the continued existence of the Union, for it could
not be preserved by law alone. But at the same time he
assured them that the demands of the government would
be yielded to, to the precise extent of constitutional liabil-
ity, because the war was the law of the land.²
2
essential interests of the great component parts of our association ought
to be the polar lights of all our statesmen-by them they should guide
their course.
No political connection among free states can be
lasting, or ought to be, which systematically refuses to protect the vital
interests of any of the sovereignties which compose it." Deb. of Con-
gress, IV., pp. 499, 500; Ann. of Cong., 2, XII., p. 208.
¹ In the Rockingham Memorial. Curtis, Life of D. Webster, I., pp.
107, 108.
2 In a speech delivered July 4, 1812, before the Washington Benevo-
lent Society of Portsmouth, he said: With respect to the war in which
we are now involved, the course which our principles require us to pur-
sue cannot be doubtful. It is now the law of the land and as such we
are bound to regard it. Resistance and insurrection form no part of
our creed. The disciples of Washington are neither tyrants in power,
nor rebels out. If we are taxed to carry on the war we shall disregard
certain distinguished examples, and shall pay. If our personal services
are required, we shall yield them to the precise extent of our constitu-
tional liability." Ibid, II., p. 105. Compare also his speech of Jan. 14,
1814, in the house of representatives. Deb. of Congress, V., p. 138.
a
SLANDER AND LIBEL.
243
The exaggerated and insulting charges of the majority
against the opposition were little calculated to move them
to a change of attitude. Even in Massachusetts the ad-
ministration party used its momentary supremacy in the
senate, notwithstanding the undoubted feeling of a major-
ity of the people, to issue an address which had the tone of
common libel against the leaders of the opposition."
They were not only branded as "enemies of republics"
who had acknowledged themselves as monarchists and did
not conceal their intention to attempt a revolution, but it
was also declared with assurance that they had formed " a
deep and deadly design against our happy Union." This
was the tone assumed by the majority everywhere and not
least of all in congress.2 Unmeasured praise and blame
have not become characteristics of the political life of the
United States only in recent times: they are as old as the
republic, and it is easy to show that democratic republics
have always to suffer more from this cause than states of a
different constitution.
The minority of the house of representatives of the
Massachusetts legislature expressed themselves, from pru-
dential motives, in more temperate terms in their memo-
rial to congress, but they endeavored to confine legitimate
opposition within much narrower limits. When, during
Adams's presidency, the Virginia resolutions were decided-
ly discountenanced by Massachusetts and other states,
Madison met their objections with the declaration that the
legislature had only given expression to its own view, and
wished to incite the other legislatures to similar expres-
sions of opinion. At that time, even the most extreme Fed-
¹ Niles' Reg., II., pp. 308, 309.
2 Thus, for instance, Henry Clay said: "His [Jefferson's] own beloved
Monticello is not more moved by the storms that beat against its sides,
than is this illustrious man by the howlings of the whole British pack,
set loose from the Essex kennel!" Life and Speeches of II. Clay, I.,
p. 38.
244
STATE SOVEREIGNTY AND SLAVERY.
eralists had not questioned that the legislature of Vir-
ginia had not trespassed its constitutional authority, if it
were granted that this was all its resolutions implied. It
was reserved for the Democratic representatives of Massa-
chusetts to question the "expediency, as well as the con-
stitutionality" of their Federalist colleagues, in "address-
ing congress on the subject of peace or war in their capac-
ity of legislators." The Federalist majority in the Massa-
chusetts house of representatives proposed in their address
to the people of the state precisely the same programme
proposed by Webster in his speech of July 4.2 He said.
that the war was 66
an instance of inconceivable folly and
desperation," but at the same time advised the people "to
discourage all attempts to obtain redress of grievances by
any acts of violence or combinations to oppose the laws;"
for it was the duty of every citizen "to support all consti-
tutional laws." How far, in this case, it was the opinion of
the legislature that their support should go, was pointed out
with sufficient clearness. It was the duty of the citizen
to defend the country against invasion without any refer-
ence to the necessity or justice of the war, and not to op-
pose the conscription; but, on the other hand, volunteers
should resort to arms only in a defensive war. The choice
of other men to fill the executive and legislative offices of
the Union and the organization of a peace party were pro-
posed as the only legitimate means of redress.
The other New England states, with the exception of
Vermont, assumed the same position as Massachusetts, in
which they were joined by New Jersey. The two leading
states of the northeast, Massachusetts and Connecticut, as
well as the small state of Rhode Island, immediately gave
a practical illustration to their declarations. General
Dearborn demanded that the governors should call out a
'Niles' Register, II., p. 274.
2 Ibid, II., pp. 417-419.
See the "Declaration" of the legislature. Ibid, III., p. 179
MILITIA-AID REFUSED BY NEW ENGLAND.
2
3
245
certain quota of the state militia and muster them into
the service of the United States. The governors refused
to acquiesce and raised the question of constitutionality.¹
The legislatures approved their decision. In Rhode Island
a council of war, called by the governor, decided that the
governor alone could determine whether a case had arisen
in which the constitution warranted such a demand on the
part of the federal executive. The supreme court of
Massachusetts expressed the same opinion in answer to a
question put to it by the governor. The president com-
plained in his message of Nov. 4, 1812, that under this
interpretation of the constitutional provision in question,
they [the United States] are not one nation for the pur-
pose most of all requiring it." The complaint was only
too well founded; but what party was it that for twelve
years had industriously labored to unravel, and even to
sever, the national bonds which the constitution was in-
tended to create? By what right did the anti-Federalists.
think they could assume that the old proverb, that he who
sows the wind shall reap the whirlwind, should not be true
as applied to them? Had not Madison, ten years before,
stood in the first rank of those who labored and inveighed
against the further strengthening of the nation with so
66
¹ Niles' Register, III, pp. 24, 117, 179.
2 Official Documents of the State of Connecticut, Aug., 1812. Niles'
Reg., III., p. 180.
3
Dwight, Hist. of the Hartford Convention, p. 256. The supreme
court of the United States in the case of Martin vs. Mott. 1827, decided:
“We are all of opinion that the authority to decide whether the exigency
[of calling forth the militia] has arisen belongs exclusively to the presid
ent, and that his decision is conclusive upon all other persons." Wheat-
on's Reports, XII., p. 30; Curtis, Decisions of the Supreme Court, VII., p.
12. See also Kent, Comm., I., pp. 278, 279; Story, Comm., §§ 1210-1215.
Compare also the act of congress of March 3, 1863. Statutes at Large,
XII., p. 731, etc. The constitutionality of this law has been variously
decided in the different states. See Paschal, Constitution of the U. S.,
p. 136.
* Amer. State Papers, VIII., p. 317. Statesman's Manual, I., p. 300.
246
STATE SOVEREIGNTY AND SLAVERY.
much ardor that the original national party now dared, in
the most important of all respects, to lay hands on the
very roots of the national character of the state.
The course of the New England states on the militia
question must have satisfied the administration that the
opponents of the war had not uttered mere idle threats
when they declared that, in their support of the war, they
would go only to the limits of their legal liability, so long
as there was no necessity of defending their own soil.
The New England states soon came, indeed, to a com-
promise on the question; but the following elections showed
that the party which offered aid only for a defensive
war increased in strength. In the especially important
state of New York, a coalition of the war party proper
with those who assumed on the war question a national
attitude, in harmony with that of the war party, elected
its candidate for governor. Tompkins, however, re-
ceived a majority of only 3506 votes over his opponent,
Van Rennselaer, and in the house of representatives the
Federalists had a majority of eight votes.' Delaware was
represented in both houses of congress by peace members,
and the opponents of the war had a majority in the legis-
lature of Maryland. In the house of representatives of
the thirteenth congress, in which the number of members
had been increased from 142 to 182, the Democratic major-
ity of 70 in the twelfth congress shrunk to 46.
2
No change took place in the position of the minority in
congress. They urged peace. They were ready to vote
the means necessary to carry on a defensive war, but stead-
ily refused to agree to the demands made by the govern-
ment for men and money, because they considered that it
was proposed to carry on an aggressive war. The majority
2
¹ Niles' Register, IV., p. 432.
Ingersoll, Second War between the United States and Great Britain,
II., p. 20.
GEOGRAPHICAL DIVISION OF PARTIES.
247
did not concede this and defended their protest on the prin-
ciple that attack was often the best means of defense. As
an abstract truth this could not be questioned; and looked
at from a military point of view, it might have been correct
in this particular instance. But it was now too late to
represent the conquest of Canada only as a means to the
end, and still less was it politic to refrain from holding it
out to the people as the most brilliant fruit of the war. To
this allurement was due, in a great measure, the popularity
of the contest in the west and even in the south; and
there was now double need of it because the great prom-
ises of the first year had shamefully and disgracefully
failed of realization. The Federalists were guilty of ridic-
ulous exaggeration when they represented that the princi-
pal cause of the conflict was a longing to take possession of
Canada. But when the wrongs inflicted by England had
become so intolerable that there was just ground for a dec-
laration of war, the hope of its acquisition silenced many
considerations which otherwise might easily have decided
the issue in favor of the peace party. That the love of
conquest had its home now as later in the aristocratic south
and in the west-from the very first the seat of American
ambition-was not a mere accident. The northeast, to
which the acquisition of Canada would have been of the
greatest advantage, and which would have been benefited.
by it soonest, could not be won over to the project,¹ partly
on account of the narrow view, so disastrous to its own in-
terests, which had governed its policy in the question of
the Louisiana purchase and the admission of new states
into the Union.
The sectional separation of parties came to light not only
as to the question of war in general, but also as to the mode
1
¹ On the alleged gain of Goodrich to the plans of the war party see
Ingersoll, Second War between the U. S. and Great Britain, II., pp. 236,
237.
248
STATE SOVEREIGNTY AND SLAVERY.
of conducting it,' and as to one of the principal objects
'This contest turned mainly on the question whether the decision of
the struggle should be made on land or on the water. The south and
west here gave evidence of the same short-sightedness and want of gen-
erosity which the north had shown in relation to the points men-
tioned in the text. The course of events quickly decided the question
in favor of the policy advocated by the north. Little as was done for
the fleet, it accomplished most of what the Americans had to boast of.
If the south and west had surrendered their irrational prejudices in the
first year of the war, its course might perhaps have been more favorable.
On this condition Webster promised even the strong support of the
New England states. He closed his speech of Jan. 14, 1814, with
these words; "If, then, the war must be continued, go to the ocean.
If you are seriously contending for maritime rights, go to the theatre
where alone those rights can be defended. Thither every indication of
your fortune points you. There the united wishes and exertions of the
nation will go with you. Even our party divisions, acrimonious as they
are, cease at the water's edge. They are lost in attachment to national
character on the element where that character is made respectable. In
protecting naval interests by naval means, you will arm yourselves with
the whole power of national sentiment and may command the whole
abundance of the national resources. In time you may enable your-
selves to redress injuries in the place where they may be offered, and if
need be, accompany your own flag throughout the world, with the pro-
tection of your own cannon." Deb. of Congress, V., pp. 140, 141. To
the honor of Henry Clay, it must be said that he did not adopt the nar-
row views of the majority of his party allies. He said in January, 1812:
"It appears a little extraordinary that so much unrcasonable jealousy
should exist against the naval establishment." Life and Speeches of
H. Clay, I., p. 23. But he remained far behind the broader and really
statesmanlike views of Webster. In the same speech he says: "Indeed,
I should consider it as madness in the extreme in this government to
attempt to provide a navy able to cope with the fleets of Great Britain.”
Ibid, p. 25. He contented himself with demanding a fleet sufficient for
coast defense, but was of opinion that it would require ten years to pro-
cure this. For the present he stated that he was satisfied with a naval
force sufficient successfully to repel the attacks of individual ships. As
far back as the 23d of December, 1807, John Adams had written: "The
resources of the country ought at present to be appropriated to the sea.
Quincy, Life of Quincy, p. 162. See also the declarations of Ch. C.
Pinckney, in 1788, in the convention of South Carolina. Elliot, Deb.,
IV., p. 284. What was done immediately before the war and during it for
the fleet is to be found in Stat. at Large, II., pp. 699, 788, 821; III., pp.
104, 144.
POSITION OF THE SEVERAL STATES.
249
sought to be attained by it. The ruinous consequences of
this separation made themselves felt more and more every
day; but the majority cast all considerations of political
wisdom to the wind. Infinite variations were played on
the old theme, that the fact of the war sufficed to make it
the duty of every citizen to support it by all means in his
power. The opposition answered that it was time that the
majority should really place itself on the ground of facts.
Now it was a fact that the Union was made up of different
sections, and congress in its legislation should consider this
fact, for better or worse. The majority were warned that
they undermined the assumption on which the Union was
built in not yielding to the justice of this demand; but the
warning came this time not from a New Englander, but
from a member from Virginia.2
It was the policy of the majority to pour all the vials of
their wrath upon the New England states, as if there alone
the opposition was to be found. By this means the false
appearance was created that the sectional division of par-
ties was much more clearly defined than it was in reality.
The so-called middle states took a medium course, as they
had done on so many previous occasions. Pennsylvania,
by a large majority, remained faithful to her close alliance
with the south. In New Jersey, parties were so nearly
equally divided, that first one and then the other had the
preponderance. In New York the peace party was so
powerful that it was only with great difficulty that gov-
ernor Tompkins could keep it under to such an extent that
the majority could count the state among the "patriotic."
Delaware and Maryland could not be unconditionally
claimed by any party, but at times their peace tendencies
¹See the speech by Bleeker of New York, Deb. of Congress, IV., p.
645. Randolph shows, in a letter dated Dec. 15, 1814, how sectionalism
and particularism were fed by ignorance of the situation and condition
of affairs in other states. Niles' Reg., VII., p. 260.
Deb. of Congress, IV., p. 666.
2 See Sheffey's speech.
250
STATE SOVEREIGNTY AND SLAVERY.
1
greatly preponderated; and finally there was even in Vir-
ginia a considerable minority against the administration.
We need only to examine the vote in the house of repre-
sentatives on some of the most important laws to be con-
vinced of the injustice there was in casting the whole odi-
um of the opposition on the New England states. If,
notwithstanding the fair estimate of the actual situation of
things during this period, which all democratic writers
have made, the New England states must be reproached
with having soiled their name by their opposition, the re-
proach must, more or less extenuated it is true, be exten-
ded to a large portion of the population of the other states.
It is not equitable in this case to speak only of the states,
instead of the population of the states. The simple repe-
tition of the untruth has, because of the admixture of
truth it contained, been sufficient to falsify historical judg-
ment for several decades.
The democratic press endeavored to show that the in-
terests of the New England states had suffered least from
the war, and even that they had been benefited by it; that
therefore their opposition was all the more inexcusable.2
In this assertion, too, there was a certain amount of truth,
although the proofs adduced might be attacked on more
than one ground. In view of the urgent questions of
1
¹ Of the forty-two members who voted on the 14th of January, 1813,
against the increase of the army, there were two from Maryland, one
from Delaware, six from New York and eight from Virginia. Deb. of
Congress, IV., p. 702. In the vote on the bill providing for further en-
listments, of the fifty-eight who voted against it, there were two from
Delaware, four from New Jersey, four from Virginia and fifteen from
New York. Ibid, V., p. 147. On the 3d of March, 1814, fifty-five mem-
bers voted against the authorization of a loan of $25,000,000; of these
six were from Virginia and fifteen from New York. Ibid, V., p. 287.
2 See Niles' Reg., VII., pp. 193-197.
3
³ It is characteristic of the politico-economical ignorance of the time
that the opinion was very prevalent among the Democrats that the loss
of New England's carrying trade would be of no consequence to the
rest of the Union, and might even be advantageous to it.
THE SECOND MASSACHUSETTS MEMORIAL.
251
political expediency, which grew out of their dissatisfac-
tion, it was a matter of complete indifference whether, and
to what extent, their charges were exaggerated. The ad-
vantages which they enjoyed at the beginning of the war
were not, in large part, lasting. England had at first
treated them with great consideration. But when she was
satisfied that there was little prospect of their rising up
against the federal government, or of her coming to a
separate understanding with them, their ports also were
subjected to a strict blockade.¹ Dissension, in consequence
of this, and of the increasing losses of human life, and
of the other misfortunes always attendant upon war,
as well as of the want of success of the war in general,
steadily increased. The legislature of Massachusetts voted
on the 12th of June, 1813, another memorial to congress,
couched in terms much more decided and excited than that
of the preceding year. The declaration of war was called
premature,” and its prosecution after the publication of
the English orders in council "improper, impolitic, and
unjust." All the other grievances, both earlier and later,
66
2
¹ The Democratic press of the time, and many later historians of the
same political complexion, have adduced a correspondence of the Bos-
ton Daily Advertiser as one of the most damaging pieces of evidence to
prove the treasonable plans which were devised in the New England
states. The truth is, however, that the correspondence has no signifi
cance further than as an illustration of the ingenuousness with which
the lack of national feeling and the view of the confederate nature of the
Union found occasional expression. The correspondent recommended
that the New England states should conclude a separate treaty with
England. He did not in this contemplate an unconstitutional measure,
for he said that the permission of congress to this end should first be
obtained. The constitution only forbade the states to make treaties
with foreign powers without the consent of congress. The Netherlands
and Germany were cited to prove that such separate treaties and wars
were not at variance with the idea of a federated state. But if congress
should “unreasonably refuse" this just, reasonable, and constitutional
effort, it would "then remain for the wise and prudent to decide" what
should be done. Niles' Reg., V., pp. 199, 200.
2 Niles' Reg., IV., pp. 297–301.
$
252
STATE SOVEREIGNTY AND SLAVERY.
were also brought forward again. A solemn protest was
raised against the creation of new states out of the terri-
tory which lay without the limits of the original union.
The address concluded with an urgent prayer that every
effort should be made to bring about a just and honorable
peace. These and similar demonstrations in the other New
England states met with as little success as the former
ones. Instead of endeavoring to effect a reconciliation,
the irritation was increased by insulting insinuations; in-
stead of thinking of removing well-founded grievances,¹
the thorn was pressed still deeper into their sides by ex-
aggerated mistrust and open injustice. The minority of
the Massachusetts legislature issued a protest against the
memorial of the majority, in which they declared that only
those who were "altogether and exclusively British" could
read this "humiliating remonstrance" without the deep-
est indignation. The administration made the New Eng-
land states keenly feel that, on account of their behavior,
they deserved only the treatment accorded to step-children.
Viewed from a purely military standpoint, the administra-
tion might be justified in employing all its strength to
carry out its plan for the conquest of Canada, and leaving
the defense of the coast to the militia of the Atlantic
states. But such a mode of warfare is always dangerous
in a state of loose structure, and hazardous when the parts
most exposed share in the war only with reluctance.
1
2
¹ Story, himself a Republican, but not of the Jefferson school, asserted
that Jefferson had extended this mistrust even to the Republicans of
New England. He writes: "One thing, however, I did learn
while I was a member of congress: and that was that New England
was expected, so far as the Republicans were concerned, to do every-
thing and to have nothing. They were to obey, but not to be trusted.
This, in my humble judgment, was the steady policy of Mr. Jefferson
at all times. We were to be kept divided, and thus used to neutralize
each other. So it will always be unless we learn wisdom for ourselves
and our own interests." Life and Letters of J. Story, I., p. 187.
2 Niles' Reg., IV., p. 301.
THE LAST EMBARGO.
253
can be politically justified only on the ground that power,
when compact and centralized, deals blows of the greatest
weight. The Madisonian mode of warfare was characterized
by bold plans, to be carried out at a distance and slowly and
weakly prosecuted. But even apart from this, the course
of the administration can not be justified. It not only
left New England to itself, but refused Massachusetts the
arms she needed for her protection, and to which she was en-
titled. This was not only a contemptible piece of perse-
cution, but it showed also that, under certain circum-
stances, the administration, as well as the New England
states, was wanting in the national feeling. But it was
wanting still more in political judgment. The rich ex-
perience which had already been gained was of no avail
to it. It stuck fast in the swamp into which the head
master of the Democratic party had guided the commerce
and policy of the country. On the 9th of December, 1813,
Madison, in a confidential message to congress, recom-
mended a new embargo and greater restrictions on impor-
tation.¹ As ground for this he adduced the extensive
smuggling trade carried on with the enemy, the introduc-
tion of British products and manufactured articles, and
other illegal importations.
Mason of New Hampshire exposed the folly and the
danger of the measure in a short, clear speech in the senate.2
That body was compelled to hear again that it danced in
the dark to the president's music. If, as was asserted in the
message, the enemy obtained provisions from the United
States, the president must have evidence of that fact in his
possession, and if he had such proofs it was his duty to lay
them before congress. And, besides, what sense was there
in prohibiting all exportation in order that the enemy
might be prevented from obtaining provisions?
¹ Amer. State Papers, VIII., p. 503; Statesman's Manual, I., p. 317.
'Deb. of Congress, V., p. 79.
254
STATE SOVEREIGNTY AND SLAVERY.
Mason had not expected to make any impression; he said
that he desired only to register his "solemn protest." The
opposition had grown used to have their remonstrances
looked upon only as an exercise in declamation. The em-
bargo was resolved on by both houses in secret session, and a
bill passed which imposed the most unbearable restrictions
on commerce on inland waters.1 The administration and the
majority acted as if they were testing how far they might
go with impunity, in imposing on the patience of the com-
mercial states. They did not accomplish what they had
intended; but they were fully enlightened as to the feeling
of the New England states.
Numerous petitions praying for relief from a state of things
which grew worse daily poured in upon the Massachusetts
legislature. On the 18th of February,2 the joint committee
of the two houses reported on them.3 The committee, in ac-
cord with the petitioners, declared the embargo unconsti-
tutional: "A power to regulate commerce is abused when
employed to destroy it; and a manifest and voluntary abuse
of power sanctions the spirit of resistance, as much as a
direct and palpable usurpation. The sovereignty reserved
to the states was reserved to protect the citizens from acts
of violence by the United States, as well as for purpose of
domestic regulation. We spurn the idea that the free,
sovereign and independent state of Massachusetts is reduced
to a mere municipal corporation, without power to pro-
tect its people and defend them from oppression, from
whatever quarter it comes. When the national compact is
violated, and the citizens of the state are oppressed by cruel
and unauthorized law, this legislature is bound to interpose
its power and wrest from the oppressor his victim."
Thus the point of the sword was turned against those
¹ Stat. at Large, III., pp. 88-93.
2 Hildreth, Hist. of the U. S, VI., p. 470, erroneously gives Feb. 16 as
the date.
3 Niles' Reg., VI., pp. 4–8.
THE MASSACHUSETTS REPORT OF 1814.
255
who had forged it. The "bound to interpose" is a ver-
batim transcript from the Virginia resolutions, and the
Massachusetts legislature was well aware of the fact. The
report went on to say that this was "the spirit of our
Union," and that it had been so declared by the very man
who now bade defiance to all the principles of his earlier
political life. It asserted that the question was not one
of might or right, but of time and expediency.¹
The "sage of Monticello" could not remember exactly
where the last significant words were first used. The whole
report was in fact but a second edition of the Virginia and
Kentucky resolutions. Political parties never more com-
pletely changed places. The originators of the disintegra-
ting doctrine cried out now, with one voice, Treason! and
the Federalists who at its first appearance had branded it
as treasonable, now saw in it "the spirit of the Union;"
but both parties claimed in 1798 and 1799, as in 1814, that
they and they alone stood on the platform of the constitu-
tion!
The report went a step, and not an unimportant one,
farther than the Virginia and Kentucky resolutions. The
petitioners, among many measures recommended for the
removal of all grounds of complaint, introduced a resolu-
tion providing that a convention of the commercial states
should be called to propose the necessary amendments to
the constitution and to labor for their adoption. The re-
port stated that such a course was perfectly warranted and
cited Madison as a witness. Only on various grounds of ex-
pediency was the advice given to leave the decision whether
this course should be adopted to the next legislature.
¹ Even in congress itself the right of resistance was now claimed.
Webster wrote, Feb. 5, 1814, to his brother: "I do not know how it
happened, but one thing led to another, till Mr. King came out in plump
terms on the right of remonstrance and of resistance. He said it was
a question of mere prudence how far any state would bear the present
state of things, etc., etc." Private Correspondence of Daniel Webster,
I., p. 241.
256
STATE SOVEREIGNTY AND SLAVERY.
The "Jacobins," as, by a strange perversion of the lan-
guage employed during the last decade of the preceding
century, the Federalists were now called, were content with
mere oratory. That this consoling conviction was won,
was the only fruit which the new experiment with embargo
policy brought to the administration. Its situation, how-
ever, was by no means an enviable one. Its credit was not
the best, and it became continually harder for it to obtain
the necessary troops. There could be no question of an
exhaustion of the country in either respect. Besides, this
was the last ground which the war party would have con-
ceded. But neither would they grant that the war did not
enjoy the popularity which they had claimed for it from
the first. The harder it became to carry it on, the more
firmly was it asserted that nearly the whole people sup-
ported it with enthusiasm, and that only the barren quar-
rels of a few malcontents created the semblance of a pow-
erful opposition; and yet the opposition was blamed for
every failure. Webster strikingly demonstrated the con-
tradiction in this mode of reasoning, and between it and
the actual demands which they saw themselves com-
pelled to make.¹
"Gentlemen, sir, fall into strange inconsistencies on this subject. They
tell us that the war is popular; that the invasion of Canada is popular;
that it would have succeeded before this time had it not been for the
force of opposition in this country. Sir, what gives force to opposition
in this country? Certainly nothing but the popularity of the cause of
opposition, and the members who espouse it. Upon this argument, then,
in what an unprecedented condition are the people of these states? We
have on our hands a most popular war; we have also a most popular
opposition to that war. We cannot push the measure, the opposition is
so popular. We cannot retract it, the measure itself is so popular. We
can neither go forward nor backward. We are at the very centre of
gravity-the point of perpetual rest.
Look to the bill before
you; does not that speak a language exceeding everything I have said?
You last year gave a bounty of sixteen dollars, and now propose to give
a bounty of one hundred and twenty-four dollars, and you say you have
no hope of obtaining men at a lower rate. This is sufficient to convince
•
STRUGGLES TO CARRY ON THE WAR.
257
The message which the president sent to congress on the
20th of September, 1814, was also written in the same pe-
culiar double tone. Madison assured the country that the
direct and indirect taxes had been paid with the utmost
promptness and alacrity, and that the citizens had rushed
with enthusiasm to the scenes where danger and duty
called them.' The enemy, he said, had little cause to con-
template his last feats of arms with pride. At the same
time, however, he acknowledged that the situation of the
country made the greatest efforts necessary. The secreta-
ry of war gave a fuller explanation of what was to be un-
derstood by the vague innuendoes which the president had
made in his message. After the confidence with which it
was represented that Canada was the easy and certain prize
of the war, it was strange now to hear that the United
States were fighting for their " independence" and even
for their life.2 The defense of the coast and the further
prosecution of the plan in relation to Canada demanded,
according to Monroe, that the regular army should be in-
creased to one hundred thousand men. How impossible
he considered it to obtain so great a force by the enlist-
ment of volunteers is evident from the plan which he rec-
ommended to congress. The whole free male population
from eighteen to forty-five years of age was to be divided
into classes of one hundred, and each class was to be re-
quired to furnish a definite number of recruits. If any
class failed to meet the demands made upon it, the recruits
were to be drawn by lot. The bounty hitherto paid by the
United States was to be furnished by each class to its own
3
me, it will be sufficient to convince the enemy and the whole world,
yourselves only excepted, what progress your Canada war is making in
the affections of the people." Deb. of Congress, V., p. 139.
¹ Amer. State Papers, VIII., p. 537.
2 Dwight, History of the Hartford Convention, p. 313. The docu-
ments bearing on the question are also to be found in Niles' Reg., VII.,
pp. 137–141.
"Dwight, pp. 318-322.
17
258
STATE SOVEREIGNTY AND SLAVERY.
recruits. If not paid within a definite time, it was to be
assessed and levied on all the property of the members of
the class. A similar classification of the sea-faring popu-
lation was proposed to procure recruits for the navy, but
the demands made on the services of the latter were much
greater than those made on the former. At the same
time that the secretary of war submitted this plan to con-
gress, a bill was introduced into the senate providing
among other things for the conscription of minors without
the written consent of their parents, guardians or tutors.
1
All these projected measures excited dissatisfaction and
consternation in many parts of the country. Naturally the
discontent was again greatest in the New England states.
The legislature of Massachusetts once more took up the
idea, from the immediate carrying out of which the report
of the committee, February 18, had dissuaded it. The
prospect of the co-operation of the other New England
states seemed good. The legislature of Rhode Island had
in its previous session authorized the governor to enter
into communication with the governors of the other states
to bring about a co-operation to this end.²
3
The programme recommended in the report made by
Otis in the Massachusetts house of representatives was
cautious and vague. The remaining New England states
were to be requested to nominate delegates to a convention
to propose such measures in relation to the grievances and
other matters affecting them all as should seem to them
appropriate,* and if they considered it desirable, to adopt
measures to have a convention of all the states called for
the purpose of revising the constitution.
¹ Dwight, p. 333.
2 Niles' Reg., VII., p. 181.
3 Oct. 8, 1814. Niles' Reg., VII., pp. 149-152.
'Otis had already proposed the holding of such a convention at
Hartford in Dec., 1808. The claim to the paternity of the thought seems
to belong to him. See his letter of Dec. 15, 1808, to Quincy. Life of
Quincy, p. 165.
MASSACHUSETTS ARMS HERSELF. :
259
These resolutions were preceded by others which afford
a deeper insight into the spirit which dictated the calling
of the convention. Governor Strong had already informed
the secretary of war that he had considered it necessary,
in the interest of the state, not to place the militia, who
had been called out to defend the coast, under the com-
mand of an officer of the federal army. At the same
time he inquired whether the general government would
be willing to make good the expenses which had been in-
curred by the state in the adoption of measures necessary
to its protection.' Monroe answered that this could not
be when the state acted of its own accord, and maintained
itself the command of the militia who had hitherto been
called out. Strong laid the correspondence before the leg-
islature, which approved his course. It resolved, more-
over, in accordance with the proposals made in the report
above named, to organize an army of not more than ten
thousand men for the defense of the state, by enlistments
for one year, or for the war, who should remain under the
command of the governor. The governor was, besides,
authorized to borrow, from time to time, a sum of not more
than a million of dollars.
It was not necessary to put the worst of interpretations
on these resolutions to consider them of a very serious
nature. If Madison had rightly claimed that the national
character of the Union was destroyed in that which was
most essential to it, in case the governors had the right to
decide when the president was authorized to call the mili-
tia into the service of the Union, it might be said with
much more truth that a still more severe attack would be
made on the national character of the Union if troops
might be conscripted by the states and kept in their ex-
clusive service. True the constitution only provided: "No
'Niles' Reg., VII., p. 143.
260
STATE SOVEREIGNTY AND SLAVERY.
state shall, without the consent of congress, keep troops
in time of peace." At the very beginning
of hostilities Connecticut, too, had made known her be-
lief that this right belonged to the states in time of war.2
The wording of the clause seems to fully justify this
interpretation, and if the question should ever be brought
before the supreme court of the United States³ this view
of the case will probably be sustained. But it should
not be inferred from the constitutionality of the power
that its exercise might not, under certain circumstances,
be dangerous to the internal peace of the Union. Much
less does its constitutionality show that Connecticut and
Massachusetts, by exerting it in this particular case, did
not manifest a significant increase of the particularistic
spirit.
At the time the possible consequences of this resolve of
the legislature of Massachusetts were not overlooked.
Greater attention was directed, however, to the invitation
to the Hartford convention, since Massachusetts, if she
were left to stand alone, could not, in the gloomiest view
of the case, be looked upon as really dangerous.
In a time of calm judgment the reception given the in-
vitation would have necessarily quieted the exaggerated
fears which part of the Republicans cherished. In Ver-
mont the committee to which the request had been referred
for consideration reported unanimously in favor of declin-
ing it. Yet the majority of the committee were Federal-
ists. The house of representatives unanimously adopted
1 Art. I., Sec. 10, § 3.
2 Niles' Reg, V., p. 199.
⁹ As far as I know, this has not yet happened. In Luther vs. Borden,
the supreme court declined to discuss in detail the powers belonging to
the states in this respect. It simply decided that "the government of
a state by its legislature has the power to protect itself from destruction
by armed rebellion by declaring martial law." Howard, Rep., VII.,
pp. 33, 45; Curtis, XVII., pp. 2, 13. Compare Story, Comm., § § 1401–
1409.
THE HARTFORD CONVENTION.
261
the report. No delegates were named from New Hamp-
shire, because the legislature was not in session, and in
the council, which had to authorize its convocation, the
Democrats had the majority. Rhode Island² and Connec-
ticut' accepted the invitation. Yet both states, like Massa-
chusetts, denied their delegates all powers except that of
making proposals, and especially charged them that their
proposals must be in harmony with the duties owed to the
Union.
4
The ultra-Democrats saw in these declarations a bold
political trick, designed to win the support of the waver-
ing elements which would have declared decidedly against
the Federalists, if the latter had made known their true
aim the destruction of the Union. Only party passion
could so greatly misjudge the true state of the case. There
were certainly only a few Federalists—if there were any at
all-who would have unconditionally preferred a league of
the New England states to the relations that then existed.
If it is to be inferred from single utterances of the most
extreme Federalist journals that this idea was widespread,
yet this would not prove the existence of a plan of separa-
tion, for there is a great difference between a wish and a
belief in the possibility of its realization. Moreover, the
possibility of executing such a plan was evidently still less
now than in 1804. Taken all in all, the war had not weak-
ened, but strengthened, the bands of the Union. This
was, in fact, its best result. Although it gave the New
England states more reason for complaint, they would have
been much more ready to receive such a project in 1808,
when the embargo paralyzed their trade, than they were
now. Among the masses of a vigorous people, there al-
ways lives a strong feeling of honor, and in democracies
2
¹ Niles' Reg., VII., p. 167.
Ibid, VII., p. 181; in the house of representatives by 39 to 23 votes.
³ Ibid, VII., p. 158; in the house of representatives by 153 to 36 votes.
4
Compare Randall, Life of Jeff., II., pp. 412, 414.
262
STATE SOVEREIGNTY AND SLAVERY.
this feeling is even pitched too high, as far as the position
of the state toward foreign powers which maintain a
hostile attitude toward it is concerned. The great fault of
the Federalist leaders lay in this, that in their coolly-reck-
oned policy of self-interest they did not estimate this fac-
tor high enough. But the experience already acquired
had not been without effect upon them. They were there-
fore able to persuade the majority of the people of the
New England states, by appealing to their interests and
their prejudices, to give the most sluggish possible support
to the administration, as long as they were not too hard
pressed themselves. But they would have had to have
been not only far worse patriots, but also far worse politi-
cians, than they were, if they had ventured to dream that
they could bring the states, during the war, to open re-
volt, either by separation from the Union or by the con-
clusion of a separate peace. The cowardice of such an
action would alone have sufficed to ensure the angry rejec-
tion of every such proposal.
Aside from these general grounds, the instant in which
the convention was called together and met was especially
unfavorable for such suggestions. The victory at Platts-
burg, the successes of Chauncey and Brown, the patriotic
conduct of governor Tompkins of New York and Jackson's
energetic action in the south had made an impression
which could not be effaced by the abandonment and blow-
ing-up of Fort Erie, the blockading of Chauncey's squad-
ron and the wretched condition of the finances. More-
over, the peace negotiations at Ghent were in progress, and
as long as they were not broken off, there was no need of
despair, even if the reports were not of a favorable tenor.
But with the conclusion of peace, the main grievances of
the New England states ceased to exist of themselves.
All these things co-operated to prevent, even in the most
radical circles, any enthusiasm for the convention project.
Even in Massachusetts it had a surprisingly lukewarm re-
THE CONVENTION MEETS.
263
ception. This could not be misinterpreted by the origin-
ators of the plan, and could have been just as little disre-
garded, even if they had thrown all other reasons to the
wind. Nothing had happened which could have nerved
them to the point of suddenly cutting themselves off from
any way of retreat. All the reasons drawn from the inner
and outer facts of the case led much more to the conclu-
sion that the best course was to really entertain no design
except the one that had been stated. Awaiting the fur-
ther course of events, men wished to try to unite upon a
common programme and-whatever might be decided
upon-make a stronger impression upon the dominant
party by harmonious action. The method and way in
which the convention went to work and the result which it
brought about, are the practical confirmation of this view
of the case.
Dec. 15, 1814, twenty-six delegates¹ met together at
Hartford and began their deliberations with closed doors.
If, as the Democrats wished to have it thought, a conspira-
cy was being worked up which aimed at the separation of
the New England states from the Union, the sentence of
death had already been passed upon the affair. A con-
spiracy which aims at the overthrow of a government is
a chimera in the United States. And if the conspirators
meet on a publicly appointed day, but exclude the public
from their deliberations over the method of executing their
project, the conspiracy becomes a complete absurdity. In
this country thorough political changes can be effected on-
ly by the direct and energetic participation of the people,
and the only way to make sure of this is to carry on a
public and long-continuing agitation. As far as the Dem-
ocrats feared in good faith a dissolution of the Union on
account of the resolutions to be adopted in. Hartford, they
'Three of them were irregular, two from New Hampshire and one
from Vermont, who had been chosen by local conventions.
264
STATE SOVEREIGNTY AND SLAVERY.
not only underestimated the attachment of the Federalists
to the Union, but failed to appreciate how thoroughly the
people were really pervaded by the democratic spirit.
The Democrats pleased themselves then and thereafter by
roundly denying that they had nourished any fears whatev-
er. Jefferson wrote, Feb. 15, 1815, to Lafayette: "But they
[the British ministers] have hoped more in their [!] Hart-
ford convention.
The cement of this Union is in the
heart-blood of every American. I do not believe that there
is on earth. a government established on so immovable a
basis.
They [the members of the convention] have
not been able to make themselves even a subject of conver-
sation, either of public or private societies. A silent
contempt has been the sole notice they excite." It
is true that Jefferson had never feared that the Union
would be brought to an end by the convention. But before
Jackson's victory at New Orleans and before the receipt of
the news of the signing of the treaty of Ghent, he would not
have used such language. It corresponded with his char-
acter to blow a great blast of triumph, now that the con-
vention, whatever significance it might have had for the
moment, stood before the world as a wretched farce. It is,
indeed, not difficult to obtain from his writings the proof
that he had by no means such an unconditional trust in
that "cement." Yet, whatever he might think, the asser-
'Jefferson, Works, VI., pp. 425, 426. The passage left out in the
text may show with what shallowness Jefferson judged the case:
"Their [the English ministry's] fears of republican France being now
done away, they are directed to republican America, and they are play-
ing the same game for disorganization here which they played in your
country. The Marats, the Dantons and Robespierres of Massachusetts,
are in the same pay, under the same orders, and making the same efforts
to anarchize us that their prototypes in France did there. I do not say
that all who met in Hartford were under the same motives of money.
Some of them are Outs and wish to be Ins; some the mere dupes of
the agitators or of their own party passions, while the Maratists alone
are in the real secret."
ANXIETY ABOUT THE CONVENTION.
265
tion that the convention had not even become a subject of
conversation, misrepresented the facts in a foolish way. As
early as the spring of 1814, the position of the New Eng-
land states excited serious apprehension even among the
ambassadors to Europe, although the latter looked at things
more clearly for not being exposed to the immediate influ-
ence of the daily squabbles and exaggerated descriptions
of the press.¹ As soon, then, as the three states which
were represented in the convention took a position which
must lead to a new phase of the struggle, the Democratic
party began to hurl its anathemas against the "Jacobins"
with threefold zeal. At the same time, it lavished loud
praise upon the noble community which (it said) was
about to thrust the traitors into the abyss of eternal shame
and political oblivion. From an easily intelligible policy,
exaggeration was resorted to in both directions. If the
student disregards these exaggerations, which pretty near-
ly balance each other, he still finds traces of more anxiety
than was reasonable. This was even more true of the ad-
ministration than of the press. The constitution did not
give the president the power to hinder the meeting of the
convention. There was no cause for this, inasmuch as the
delegates were only empowered by their respective legisla-
tures to make proposals. It was also not easy to see
how the twenty-six men could be able to surprise the gov-
ernment by suddenly lighting the torch of insurrection.
Yet it was considered necessary to notify col. Jessup to
watch them carefully. The letters exchanged between
Jessup and the president have unfortunately been in great
part lost, but enough is known of them to prove that Mad-
ison took the matter very seriously. From Dec. 15, 1814,
to Jan. 23, 1815, Jessup sent a daily report to the presi-
¹ Thus, for instance, Gallatin writes, April 22, 1814: Above all, our
own divisions and the hostile attitude of the eastern states give room to
apprehend that a continuance of the war might prove vitally fatal to the
United States." Priv. Cor. of H. Clay, I., p. 30.
266
STATE SOVEREIGNTY AND SLAVERY.
dent.¹ The letters were mostly sent in a private way and
sometimes the colonel himself brought them to New York
in order that they might not be intercepted. This precau
tion was superfluous, indeed, inasmuch as the news to be
sent was by no means of such an important nature. Jessup
wrote from New Haven, on the day the convention met:
"I am surprised how little interest [among the Federal-
ists] the meeting excites."" Writing later from Hartford,
he had only to announce that so far as he could learn, the
convention kept strictly within the limits of the law.
If he nevertheless kept on sending his daily reports for
fourteen days after the adjournment of the convention and
spoke in them of "plans to destroy the government," "at-
tempts to gain possession of the public stores," etc., we
may well infer that Madison did not share Jefferson's
pretended view.
People in Washington and in the whole country were
surprised, and, to speak truth, not merely pleasantly sur-
prised, that the report of the convention, in which the re-
sults of its secret deliberations were summed up, was not
a more revolutionary document. As affairs now began to
shape themselves, the ruling party would have preferred a
somewhat more decided manifesto in order to master the
conspiracy" with greater eclat. It was not contented
with being able to punish it only by scorn and "contempt."
(6
After a thorough recapitulation of the complaints so
often discussed, the report recommends to the legislatures
of the represented states certain measures for the removal
of the most pressing hardships, suggests a series of amend-
ments to the federal constitution, provides for the calling
of a new convention in certain eventualities, and finally
authorizes some of the delegates to again convoke the
present convention. The report starts on the assumption
2
3
¹ Ingersoll, Second War between the U. S. and Great Britain, II., p. 238.
Ingersoll, Second War between the U. S. and Great Britain, II., p. 225.
The whole report is given in Niles' Reg., VII., pp. 305–313 and in
Dwight's Hist. of the Hart. Con., pp. 352-379. Niles' Reg., VII., pp. 328.
REPORT OF THE CONVENTION.
267
that a "summary" removal of the evils complained of
would be possible only by "direct and open resistance,"
since they had become a "system." The view had already
struck root, that the final reasons for this were to be found
in "intrinsic and incurable defects in the constitution."
The delegates, however, did not consider this as yet suffi-
ciently proved, but confessed their conviction that perma-
nent help could be procured only by various amendments
to the constitution. In their opinion, then, these formed
the most important part of the report. Their substance
was, in brief, as follows: Representation in the house
should henceforth be based upon the free population alone;
the president must not be eligible for re-election; state
offices should be entrusted only to native-born citizens;
embargoes should be limited to sixty days; and a vote of
two-thirds of each house should be necessary for a prohibi-
tion of commercial intercourse, the admission of new states.
into the Union, the authorization of hostilities (except in
case of invasion) and a declaration of war.
It was not meant by the substitution of these constitu-
tional changes for summary relief by direct and open re-
sistance, that until their adoption or rejection the critical
condition of affairs which had been brought about by the
ignorance and the unconstitutional encroachments of the
government should be quietly borne. The convention
recommended the most energetic opposition to the follow-
ing measures, already executed or projected by the federal
authorities: Calling out the militia by the president with-
out the co-operation of the state governments; the trans-
fer of the command of the militia to officers of the reg-
ular army; the classification of the militia proposed by
Monroe; the recruiting of the regular army "by a for-
332, gives also the statistical lists contained in the report, and Dwight, pp.
383-398, prints the whole journal of the convention. The latter, how-
ever, is quite worthless, since it records only the meetings, adjourn-
ments, etc.
268
STATE SOVEREIGNTY AND SLAVERY.
cible draft or conscription"; and the enlistment of minors
without the consent of their parents or guardians. Finally,
the federal government should act in such a way that the
states concerned "may, separately or in concert, be em-
powered to assume upon themselves the defense of their
territory against the enemy." To this end, a part of the
federal taxes should flow into the treasuries of the states.
This resolution then recommended the legislatures to re-
ciprocally pledge themselves to help each other with a part
of their militia, or volunteer regiments raised especially
for this purpose, or their regular troops, in order to repel
invasion.
In these last-mentioned resolutions the absurd notion of
a separate league reached its highest point. Further prac-
tical results were not to be attributed to the little league
of three states in opposition to the federal government.
The dissolution of the Union was of course thought about,
but only as perhaps desirable in the future. If this con-
viction was arrived at, then the separation "should, if
possible, be the work of peaceable times and deliberate
But a severance of the Union by one or
more states against the will of the rest, and especially in
time of war, can be justified only by absolute necessity."
These "objections against precipitate measures tending to
disunite the states
must, it is believed, be deem-
consent.
ed conclusive."
The form of these sentences was so skillfully selected
that it cannot be said with certainty whether the conven-
tion deduced from the nature of the Union a positive
right in the individual states to withdraw from the Union,
or whether it claimed only a moral justification for revolu-
tion. It was prudent enough in the declaration of its
position on the constitutional question not to venture
beyond vague, double-meaning expressions, except so far
as it could appeal to its opponents. But it went just far
enough to repeat almost verbatim the declaration of
SIGNIFICANCE OF THE CONVENTION.
269
faith laid down in the Kentucky resolutions of 1798. If
the members of the convention, and those in sympathy
with them, were (6
Maratists," they could claim that they
had become so in the school of Madison and Jefferson.
They had learned from Madison that a state had not only
the right but the duty to "interpose its authority" as a
shield between its citizens and the federal powers; and
Jefferson had taught them that the fundamental principle
of the autocratic right of deciding in strifes between
parties without a common umpire applied to the relation
of the states to the Union.¹
The report was adopted by the legislatures of Massa-
chusetts and Connecticut. Both these states thus formally
declared their acceptance of the constitutional theories
maintained in it as their own. American historians have
laid only little weight upon this. They have almost wholly
limited themselves to giving the proof or repelling the as-
sertion that the originators and the members of the con-
vention had plans which were inimical to their fatherland,
or thoroughly treasonable. They have pushed the senti-
mental and moral side of the question so far into the fore-
ground that they have thus lost the proper point of view
whence its political significance is especially to be sought.
The passage bearing on this point in the report of the convention
reads: "It does not, however, consist with the respect and forbearance
due from a confederate state towards the general government to fly to
open resistance upon every infraction of the constitution. The mode
and the energy of the opposition should always conform to the nature
of the violation, the intention of its authors, the extent of the injury
inflicted, the determination manifested to persist in it, and the danger
of delay. But in cases of deliberate, dangerous, and palpable infrac-
tions of the constitution, affecting the sovereignty of a state and the
liberties of the people, it is not only the right but the duty of such a
state to interpose its authority for their protection in the manner best
calculated to secure that end. When emergencies occur which are
either beyond the reach of the judicial tribunals, or too pressing to ad-
mit of the delay incident to their forms, states which have no common
umpire must be their own judges and execute their own decisions."
270
STATE SOVEREIGNTY AND SLAVERY.
The convention and its resolutions are of weight only so
far as they were not simply the product of a few scattered
"Catalinarian existences," but gave expression to the be-
liefs and ideas living in an important fraction of the peo-
ple, or in the whole people. If the convention had been,
as historians of Democratic tendencies make it out to be,
a quite exceptional bit of infamy, it would have been
simply meaningless. If the Hartford convention had not
been the culmination of the inner struggle from 1801 to
1815, it would be mentioned, like the proposal made al-
most half a century later by Fernando Wood, that the
city of New York should cut loose from the Union and
constitute itself an independent state, as an entertaining
historic anecdote.
Hate of England and admiration of France did not allow
the domineering south to attribute an equal share of the
guilt of infringing neutral rights to each of the belligerant
powers. Ignorance of the laws which govern industrial
life drove it into a policy of defense which was practically
a policy of reckless attack upon the commercial interests
of its own country. Long-cherished prejudices against
the commercial interests and the peculiarly commercial
states and a misjudgment of the intimate connection of
these with the other economic interests of the whole
country, made it stray ever deeper into these unfortunate
politics, until party policy made return impossible.
Wholly unprepared for war, the party had to adopt the war
policy which its few young and ambitious leaders dic-
tated to it. The declared aim of the war was the vindica-
tion of the rights, the infringement of which was espe-
cially injurious to the interests of the commercial states.
But the latter persuaded themselves that the dominant
party had tried, under a false mask, to injure the commer-
cial interests from the beginning. They expected only an
aggravation of the evils from the war with England and
condemned the way of conducting the war as the crowning
CHARACTER OF THE OPPOSITION TO THE WAR. 271
of a reprehensible policy, directed by sectional spirit. The
stronger this conviction became, the more decided was
their reaction. Thus they themselves constantly gave the
struggle a more marked sectional character. They fought
the fight not as a national party, but as an isolated geo-
graphical section, the well-being of which depended upon
commerce and the opposition of which was therefore a
struggle against ruin, because the rest of the Union syste-
matically, and perhaps, indeed, on principle, made war upon
this interest. On this account they did not limit them-
selves to making representations and presenting protests as
states, but they tried to form a formal league with each
other which would have made them a union within the
Union. And all these steps were not justified by the iron
law of necessity, but were put on the ground of a positive
constitutional right. The threat of revolution was not
made, but acting on the principle of the sovereignty of the
states, an ultimatum was reserved in the utterances of the
founders of the opposition party and of the originators of
its confession of faith.
In these last sentences I have condensed the true mean-
ing of the strife which reached its culmination in the
Hartford convention and came to a sudden end by the con-
clusion of peace with England. The convention consisted
of delegates from three state legislatures and the state leg-
islatures represented not only legally, but actually, the
majority of the population of the states, for the latter had
had repeated opportunities to choose men of other opinions.
And a very strong minority in several other states enter-
tained the same or similar views. It is therefore laugha-
ble folly to consider the convention as a gathering of brain-
sick conspirators, although it must be admitted that the
leaders of the party formed its radical wing. But the pro-
gramme of the convention was always a party programme,
and this party programme adopted, on the fundamental
constitutional question, the position first chosen by the
272
STATE SOVEREIGNTY AND SLAVERY.
radical wing of the opposite party. Ultra-Federalists and
ultra-Republicans met on a principle of constitutional law,
the logical result of which was the dependence of the ex-
istence of the Union upon the free will of every single
state. If the practical application of this principle in a
way which would have seriously endangered the existence
of the Union was attempted, at the moment, in neither of the
two cases, this was only of secondary importance. The one
or the other party could sooner or later hold that the time
had come for such an attempt, and neither the one nor the
other could oppose the attempt on the ground of positive
right, without putting itself into contradiction with its own
past.
THE TREATY OF GHENT.
273
CHAPTER VII.
HISTORY OF THE SLAVERY QUESTION TO 1787. THE COM-
PROMISES OF THE CONSTITUTION ON SLAVERY.
The news that the treaty of peace had been signed at
Ghent was received with loud jubilation. Jay had been
denounced as a British hireling and a traitor, while the
contents of the treaty negotiated by him were still kept
secret. The same party now boasted of a magnificent tri-
umph, before it knew the stipulations of the peace con-
cluded by its ambassadors. This over-hasty joy was the
best proof in what straits the administration found itself
and how weary of war the whole nation was.
The extraordinary capacity of political parties to forget
at the demand of the moment, stood the Democrats in good
stead. If the declaration of war had been delayed only a
short time, the United States would have heard that the
orders in council already mentioned had been recalled.
From the beginning of the war, the so-called pressing of
alleged British subjects found on American ships was
the only one of the officially stated causes of the declara-
tion of war which remained in existence.¹ The report
made to the house of representatives, June 3, 1812, by the
committee on foreign affairs, declared that “it is impossible
for the United States to consider themselves an indepen-
dent nation" as long as this mischievous practice was not
put an end to.2 In the course of hostilities, it was reiter-
ated by the executive as well as sharply declared by con-
gress, that a prime object of the war was to force England
¹ Am. State Papers, VIII., p. 125.
2 Ibid, VIII., p. 159.
18
274
STATE SOVEREIGNTY AND SLAVERY.
1
to give up this pretended right. Even the conclusion of a
truce was made dependent upon England's abandonment of
this practice.2 Monroe, in his instructions of April 13,
1813, to the plenipotentiaries who were charged with the
negotiations for peace, declared that "a submission to it
by the United States would be the abandonment, in favor
of Great Britain, of all claim to neutral rights and of all
other rights on the ocean." But on June 27, 1814, he com-
municated to the peace commissioners, by order of the
president, the advice that they should conclude the treaty
without any stipulation on this point, if it should appear
to be an impassable obstacle. It so happened that in the
treaty of peace not a word was said on either this point,
or the whole question of neutral rights.5
4
Under these circumstances it needed a bold front to be-
gin the message, in which the president announced to con-
gress the conclusion of peace, with the words: "I con-
gratulate you and our constituents upon an event which
is highly honorable to the nation, and terminates with
peculiar felicity a campaign signalized by the most bril-
liant successes." 16
The Federalists naturally did not fail
to point out with biting mockery the contrast between the
facts and this presumptuous assertion. But the people by
no means always see events in a new light on account of
their results. The nation wished peace if it did not have
to be bought in a precisely shameful way, and had feared
for some time lest it should perhaps cost some unbearable
S
¹ Am. State Papers, VIII., pp. 333, 425, 560..
2 Ibid, VIII., pp. 318, 336, 345.
s Ibid, VIII., p. 567. There are two differently paged editions of the
State Papers. In the other edition, this reference would be: Amer.
State Papers, Foreign Relations, 1II., p. 695.
4 Ibid, VIII., pp. 593-4.
5 Statutes at Large, III., pp. 218-223.
* American State Papers, VIII., p. 653. Statesman's Manual, I., p.
325. In the latter the message is erroneously dated on the 20th instead
of the 18th of February.
DEATH OF THE FEDERALIST PARTY.
275
sacrifice. It was not difficult, then, for it to persuade it-
self, with the help of the national pride, that the restora-
tion of the status ante was "highly honorable.” The
picture, seen "through the smoke of Jackson's victory,"
was fair enough to look upon. It happened, moreover,
that the state of things in Europe promised a long
peace, and so there was practically little ground for the
fear that England would soon again have occasion to at-
tempt a violation of neutral rights or the impressment of
sailors. And her inclination to risk such an attempt
must decrease every day with the powerful growth of the
United States in population as well as in wealth.
Despite the mockery and the blame, thoroughly justified
in certain respects, which the Federalists lavished upon the
Democratic party, the latter came out of the war strength-
ened, while all was now over with the Federalists. Holmes
had warned them that they were driving on to the "ship-
wreck of their party." Now that the sufferings of the war
and of the whole "policy of restriction" were over and,
thanks to the great prosperity of the country, were quickly
forgotten, men only remembered how tardily the Federalists
had discharged their duty to the Union in its hour of need.
The latter could not free themselves from the suspicion
that they had been willing to wholly withdraw their aid
from the country, or even to turn against it, for a convinc-
ing proof against such a suspicion can not be brought for-
ward when a man will not be convinced. The positive
assertions of their opponents left a shadow upon them,
and the mass of the party was well contented to let itself
be considered as innocently led astray. All the blame
lavished upon the Federalists on account of their conduct
during the war was ever more and more summed up in
the one expression "Hartford convention," and the inex-
piable guilt which was conveyed by these words rested
¹ See the whole speech in Niles' Reg., VI., Sup., pp.180–184.
276
STATE SOVEREIGNTY AND SLAVERY.
only on the leaders. These apt tactics isolated the leaders
more and more, and soon made the number of their follow-
ers dwindle into a little crowd, not worth noticing.¹
The Democrats remained masters of the field, practically
without a contest, and until circumstances developed new
questions which could serve as a basis for party action
their supremacy could no longer be endangered. The
European commotions which had given rise to dangerous
crises in American politics since Washington's first ad-
ministration, had finally come to an end. On this side of
the water, too, there was no longer any great danger of
internal commotion to be cared for. The dawn of the
era of good feeling" had come.
66
This time of outward rest was of no slight value for the
inner strengthening of the Union. In this commonwealth,
which developes with truly wonderful rapidity, as much
progress is often made in months as in years in the more
completely crystalized states of Europe. But it was a de-
structive delusion which now mastered many heads, that
this momentary rest could become permanent. If a repub-
lican form of government were the condition precedent of
the millenium, when lion and lamb will lie down together;
if the United States was the land chosen by fate; yet the
realization of this dream was now more distant than on
'In the next presidential election only 34 of the 217 electoral votes
were cast for the Federalist candidates. Even Rhode Island had now
cut loose from her union with Massachusetts and Connecticut, while
little Delaware voted for Rufus King. How demoralized the party had
become appears still more clearly from the fact that the three states
divided up their vote for vice-president. Massachusetts voted for
Howard, Delaware for Harper, and Connecticut divided her votes be-
tween Ross and Marshall. (Deb. of Cong., V., p. 662.) The union of
the Federalist votes upon King was, on account of his peculiar position
in regard to the war, an equally convincing proof of how deep the
party had sunk in public estimation. He, like the other Federalists,
had been opposed to the declaration of war, but had wished, when it
had once been declared, that they should support it with all their
strength. Compare Niles' Reg., VII., pp. 318, 326, 327.
LEGALITY OF SLAVERY.
277
the day of the birth of the Union. The dragon-seed of
slavery had steadily grown rank and had already budded
out so far that its true nature had often been recognized
and very plainly pointed out. The violence with which
former questions had been fought out, and their pressing
importance, had, up to this time, only pushed this weight-
iest of all questions again and again into the background.
But now it began every day to protrude itself more into
tle foreground, and in a few years it led to a crisis which
was more dangerous than all the others through which the
Union had passed since the adoption of the new constitu-
tion. The contest over the conditions of the admission of
Missouri to the Union cannot be discussed until the his-
tory of the slavery question up to this time has been re-
called.
At the outbreak of the American revolution slavery was
a recognized fact in all the thirteen colonies. Whether it
was thoroughly legal may at least be questioned. Neither
according to the common nor the statutory law of England
had slavery a legal existence, and both common and statu-
tory laws were valid in the colonies so far as they applied
to their circumstances and were not in opposition to their
peculiar rights and privileges.¹ But the charters of the
colonies make no mention of slavery, and give the colonies
no legal powers from which an undeniable right for the
1 The supreme court of the United States declared in 1815, in the case
of the town of Powlet vs. Clark: "Independent, however, of such a
provision [as appears in the first “royal commission" for the provinces]
we take it to be a clear principle that the common law in force at the
emigration of our ancestors is deemed the birthright of the colonies,
unless so far as it is inapplicable to their situation or repugnant to their
other rights and privileges. A fortiori, the principle applies to a royal
province." Cranch, Reports, IX., p. 833; Curtis, Dec. of the Sup. Ct.,
III., pp. 370, 371. The first congress mentioned the common law, in its
declaration of rights of Oct. 14, 1774, among the "indubitable rights
and liberties to which the respective colonies are entitled." Journal of
Congress, I.. p. 28.
278
STATE SOVEREIGNTY AND SLAVERY.
introduction of negro slavery can be deduced. Although
the matter has no practical value, yet, based upon these
grounds, the question may be asked whether the colonial
laws, which start out on the supposition of the legality of
existing facts, were of such a sort as to give slavery a really
legal existence.¹ The fact of its existence was not only al-
ways recognized by the mother country, but the king's gov-
ernment constantly favored the introduction of slaves; and
when different colonies wished to forbid their further im-
portation it had repeatedly interposed with its decisive veto.2
The colonists were fully convinced of the rightfulness of sla-
very, and up to the beginning of the revolutionary period
3
there was only here and there a doubt expressed about its
moral justice. There are many reasons for the supposition
that in some states, for instance in Virginia, the knowledge
of the political and economic disadvantages of slavery found
expression in these doubts. One of the first results of the
contest with the motherland in regard to colonial rights
was to direct attention, on a somewhat greater scale, to the
moral side of the question. Until then the matter had
been regarded almost exclusively in the light of positive
religion. The Quakers have the honor of having begun
the agitation from this standpoint earliest and most radi-
cally. Thanks to the fiery zeal of some members of this
¹ S. Hopkins, one of the first and most energetic opponents of slavery,
declared in 1776, in his letter dedicated to congress, A Dialogue Con-
cerning the Slavery of the Africans, Showing it to Be the Duty and In-
terest of the American States to Emancipate all their African Slaves:
"The slavery that now takes place" is "without the express sanction
of civil government." Goodell, Slavery and Anti-slavery, p. 76. See
also p. 112, where a judicial decision of the supreme court of Massa-
chusetts, which maintains this view, is quoted from Washburn's Judi-
cial History of Massachusetts, p. 202.
2 Lord Dartmouth declared in 1774: "We cannot allow the colonies
to check or discourage, in any degree, a traffic so beneficial to the na-
tion." W. Jay, Miscellaneous Writings on Slavery, p. 210. See also
Bancroft, Hist. of the U. S., VI., pp, 413–415.
³ See Life of J. Jay, I., p. 233; Adams, Works, X., p. 380.
INFLUENCE OF FRENCH PHILOSOPHY.
279
sect, the religious and moral instruction of the slaves and
the struggle against any further importation of the negroes
were begun by the close of the seventeenth century. By
the middle of the eighteenth century the emancipation of
slaves had gradually become a matter of action by the
whole Quaker body, while similar attempts in other sects.
were rather the acts of individuals. If the agitation had
been wholly left to the churches it would have been long
before men could have rightly spoken of a "slavery ques-
tion."
1
2
It was due to the political philosophy of the 18th cen-
tury that American politicians now began to concern them-
selves about slavery much more and from wholly new
standpoints. The negro had been long looked upon,
uprightly and honestly, as an animal. There was no con-
sciousness whatever that any injustice had been done him.
When conscience began to slowly assert itself, it was
quieted by the argument that bringing heathen doomed to
hell to America made the blessings of Christianity attaina-
ble to them. A sluggish faith could content itself with
this lie, since it harmonized with worldly interests. But
it could not stand before "sound common sense." The
most notable characteristic of this period of the history of
western civilization was that the French philosophers made
the demands of sound common sense the basis of their
political speculations and that the revolutionary politicians
wished to make the results of these speculations the rule of
conduct and the goal for practical politics. The American
revolution was not based upon this philosophy, but the
"By a resolution of that year [1774] all members concerned in im-
porting, selling, purchasing, giving, or transferring negroes or other
slaves, or otherwise acting in such a manner as to continue them in
slavery beyond the term limited by law or custom [for white men], were
directed to be excluded from membership, or disowned." Clarkson, p.
60. Two years later this resolution was extended to cover the cases of
those who delayed to set their slaves free.
* See some interesting notes in Goodell, pp. 106–108, and elsewhere.
280
STATE SOVEREIGNTY AND SLAVERY.
majority of its leaders were more or less affected by it. The
more the struggle for definite political rights clothed itself
in the glittering garb of a struggle for "freedom" in gen-
eral, the more unavoidable it was that men should earnestly
ask themselves whether their idealistic theories could be
reconciled with the fact of slavery.¹ The idealistic impulse
was not strong enough to overcome all the delays due to
self-interest and political policy, but yet it was so great
that the contrast between the institution of slavery and the
theory of human rights was recognized as a question of
practical politics, the solution of which must be found
forthwith.
There was no thought of a direct attack upon slavery.
It was supposed that by forbidding any farther importation
of slaves, the gradual destruction of the institution would
be accomplished. Erroneous as this hope was proved to
be, it is readily explainable. The number of slaves at the
outbreak of the revolution was about half a million.2 But
as the increase of the free population was greater than that
of the slaves, the comparative number must have been
more in favor of the former every year. Moreover, eman-
¹ Life of Jay, I., pp. 229, 231; Laurens, of South Carolina, in the Col-
lection of the Zenger Club, pp. 20, 21, quoted by Greeley, in The Ameri-
can Conflict, I., p. 36; Bancroft, VI., p. 417; and many other author-
ities.
2
According to the census of 1790, there were 697,897 slaves in the
United States. These were divided among the different states as fol-
lows:
NORTH.
New Hampshire.
158 Delaware.
• •
SOUTH.
Vermont.
• •
Rhode Island.
Connecticut.
•
Massachusetts [6].
New York....
New Jersey.
Pennsylvania..
Totals.......
8,887
17 Maryland…………..
103,036
952 Virginia.
•
293,427
2,759 North Carolina.
100,572
South Carolina.
107,094
21,324 Georgia.
•
29,264
11,423 Kentucky.
3,737 Tennessee..
►
11,830
3,417
40,370
657,527
ANTI-SLAVERY SENTIMENT IN THE SOUTH.
281
cipation was expected to make great advances everywhere
and to become a rule almost without an exception, so that
the abolition of slavery would be striven for on political
and economic as well as moral grounds. According to the
avowals everywhere inade, it was only natural to suppose
that sooner or later all slave-owners would say with Lau-
rens of South Carolina: "I am devising means for man-
umitting many of my slaves.
Great powers oppose
me, the laws and customs of my country, my own and
the avarice of my countrymen.
These are difficul-
ties, but not insuperable. I will do as much as I can in my
time and leave the rest to a better hand.”
As long as it was generally considered advisable that
these wishes should have practical results, men acted with
great unanimity. In the articles of the so-called "associa-
tion," which the first congress adopted Oct. 20, 1774 and
which was considered as the corner-stone of the Union, it
was declared that after December, no more slaves should
be imported and that the importations should not be aided
in any way whatever.¹ Article II. declared that those who
acted contrary to these articles of union ought to be "uni-
versally condemned as the enemies of American liberty,"
and article XIV. signalized "any colony or province"
which did not enter into the union as "unworthy the
rights of free men." These articles, as Chase of Ohio.
expressed it in the senate in 1850, were "ratified by col-
onial-conventions, county-meetings, and little gatherings
throughout the country, and became the law of America—
so to speak, the fundamental constitution of the first Amer-
ican union." It is noteworthy that some of the most
emphatic declarations in favor of article II. and so against
the importation of slaves came from slave states which
¹ Amer. Archives. 4th Series, I., p. 915.
282
STATE SOVEREIGNTY AND SLAVERY.
were afterwards the earliest and most determined cham-
pions of slavocratic interests."
2
During the next two years, the same standpoint was
maintained. April 6, 1776, congress repeated the prohibi-
tion of the importation of slaves without any opposition
from any quarter. But a few months thereafter it became
evident that in some states the suggestions of momentary
self-interest had begun to be listened to. In the draft of
the Declaration of Independence, Jefferson had bitterly
complained of George III., because the latter had forbidden
the attempts "to prohibit or restrain this execrable com-
merce." This passage was struck out, mainly at the re-
quest of the delegates from South Carolina and Georgia.3
When we think of the later modes of speech of the slave-
barons, we must admit, to the honor of South Carolina and
¹ This appears, for instance, in the declaration of the representatives of
the Darien district in Georgia: "To show the world that we are not
influenced by any contracted or interested motives, but a general phil-
anthropy for all mankind of whatever climate, language or complexion,
we hereby declare our disapprobation and abhorrence of the unnatural
practice of slavery in America (however, the uncultivated state of our
country or other specious arguments may plead for it) a practice
founded in injustice and cruelty, and highly dangerous to our liberties
(as well as lives), debasing part of our fellow-creatures below men, and
corrupting the virtue and morals of the rest, and is laying the basis of
that liberty we contend for
upon a very wrong foundation. We
therefore resolve at all times to use our utmost endeavors for the manu-
mission of our slaves in this colony, upon the most safe and equitable
footing for the master and themselves." Amer. Archives, 4th Series, I.,
p. 1136.
2 Elliot, Deb., I., p. 54; Adams, Works, III., p. 39.
Jefferson writes: "The clause was struck out in complaisance to
South Carolina and Georgia, who had never attempted to restrain the
importation of slaves and who, on the contrary, still wished to continue
it." Jeff., Works, I., p. 170. This passage has been quoted in nearly
every work on this period, but the fact has been almost wholly unno-
ticed that in South Carolina, at any rate, such attempts had been made.
These efforts, however, had never attained so much significance that
England had needed to oppose them, as she did in the case of Virginia.
Elliot, Deb., V., p. 459.
SLAVERY AND THE DECLARATION OF INDEPENDENCE. 283
Georgia, that they did not demand a strengthening of the
passage because they had resolved, like Patrick Henry, to
pay "the devoir to virtue" in gambling coin, that is, to sat-
isfy their consciences by openly acknowledging the duty of
reform and then to announce, by appealing to the weak-
ness of the flesh, that they meant to persevere in the sweet
sin.¹
The excision of the passage I have mentioned from the
Declaration of Independence was a turning point in the
relation of congress to the slavery question. Men did not
at once retreat, but they stood still, and eo ipso lost the
ground already won. Up to this time congress, as a revo-
lutionary body, had used only de facto power. Now, when
it was endowed with legal powers, all control over slavery
was taken away from it. The responsibility for this lies
mostly on congress itself, since it elaborated the draft of
the articles of confederation. It is not probable that the
states would have made weighty concessions, but at least
an attempt should have been made to keep what had al-
ready been obtained. The resolutions of 1774 and 1776
had not the force of law, and with the provision for leaving
¹ Patrick Henry writes, in January, 1773, to a Quaker: "Is it not
amazing that, at a time when the rights of humanity are defined and un-
derstood with precision, in a country above all others fond of liberty, in
such an age, we find men, professing a religion the most humane, mild,
meck, gentle and generous, adopting a principle as repugnant to hu-
manity as it is inconsistent with the Bible and destructive of liberty?
Every thinking, honest man rejects it in speculation, but how few in
practice from conscientious motives!
Would any one believe
that I am master of slaves of my own purchase? I am drawn along by
the general inconvenience of living without them. I will not, I cannot,
justify it; however culpable my conduct, I will so far pay my devoir to
virtue as to own the excellence and rectitude of her precepts, and la-
ment my want of conformity to them.
We owe to the purity
•
•
of our religion, to show that it is at variance with that law which war-
rants slavery.
I could say many things on this subject, a se-
rious view of which gives a gloomy prospect to future times." Ban-
croft, VI., pp. 416, 417.
284
STATE SOVEREIGNTY AND SLAVERY.
the regulation of commerce to the individual states con-
gress resigned all right to again bring before its forum
the question of slave-importation in any shape whatever.
The development of circumstances has shown the great-
ness of this mistake. Yet the blame should not be meas-
ured only by the greatness of the fault. During the years
of war the slavery question could only find scanty atten-
tion, since congress was completely absorbed in the con-
sideration of more pressing needs. Even in the north its
consideration was postponed, so far as it was a national
question. In regard to their own slaves several of the
northern states went much farther than the continental
congress had done. In New York gradual emancipation
became a subject of earnest debate, and if the proposals
in relation thereto could not at once be carried through,
at least there was developed a righteous conviction that
slavery could not exist there much longer. Pennsylvania
did not put off the decision of the matter into the uncer-
tain future, but at once assured her speedy and complete
deliverance from the evil. In Massachusetts, before the
Declaration of Independence, decisions had repeatedly
been given by juries which can be justified only by the
supposition that slavery had no legal existence in the
colony. But it was not till after the end of the war that
the anti-slavery efforts again assumed more of a national
character. The abolition societies of Pennsylvania sprang
again into activity with greater energy and a broader pro-
gramme; and in New York, Rhode Island, Connecticut,
Maryland, Virginia, and New Jersey, abolition societies
1
¹ See this more in detail in Goodell, pp. 109–117. Yet the complete
abolition of slavery in the north took a long time. It will astonish
many readers to know that as late as 1840 Massachusetts, Maine, Ver-
mont, and Michigan were the only states which contained no slaves at
all. The number of slaves in the so-called free states in this year was
1,129. Census of 1840.
ABOLITION SOCIETIES.
285
1
were founded by the aid of the most prominent citizens.¹
The southern states by no means saw in this movement
from the beginning any interference with their "sovereign"
right of autonomy or a declaration of war against an in-
terest vital and peculiar to them. In them that spirit had
not as yet wholly died out which not only wished a sweep-
ing, practical acknowledgment of human rights, but also
considered it as practicable and sought to compass it. Thus
for instance, Virginia, in 1788, forbade the importation of
slaves, and a committee which was charged with a revision.
of the statutes drew up a plan for a law for the gradual
emancipation of all slaves. But wherever federal affairs
which concerned slavery came up for discussion and for
the passage of resolutions, there the southern states went
boldly on in a way which showed how little belief they
really had in the speedy end of the "abominable institu-
tion." July 12, 1777, the question of federal taxation was
debated in congress. The article relating to it in the draft
of the articles of confederation proposed that federal taxes
should be laid in proportion to the total number of inhab-
itants in the different states. Chase of Maryland moved,
instead of this, their imposition in proportion to the num-
ber of "white inhabitants," because taxation should be
regulated by population and the slaves were property,"
and the southern states would therefore be doubly taxed if
the clause should be adopted in its present form. This ar-
gument was opposed by the delegates of the northern
states. It is noteworthy that John Adams rested his op-
position upon the assertion that the number of inhabitants
should be adopted as the measure of the wealth of a state,
and that slaves produced no less surplus wealth than free-
men did. Wilson supported this view, and explained it
1
66
In the five states last named the societies were first organized after
the new constitution had come into force.
286
STATE SOVEREIGNTY AND SLAVERY.
by saying that free laborers always produced more, but
also, and in the same proportion, consumed more.¹
On the 13th of October the question came once more
before congress. After the proposition to lay federal taxes
in proportion to the aggregate property of each state had
been defeated, it was moved that slaves should be wholly
exempt from taxation. The four New England states
voted against this, Virginia, Maryland, and the two Caro-
linas for it. The decision then lay with the middle states.
The vote of Pennsylvania and New York was divided.
New Jersey, therefore, had the decision of the issue, and
decided it in favor of the south. In the debate of July
12, Harrison had proposed to reckon two slaves as one free-
man in reference to taxation. Wilson had said, in reply,
that this would be setting a premium on the fart er im-
portation of slaves. A northern state, and, indeed, & third-
rate northern state, now paid this premium to the sc 1th at
the cost of the Union.3
2
The full meaning of this first victory of the slave hold-
ing interest was not appreciated at the south or t the
north. The southern states were now thinking o: y of
the protection of their own immediate interests; the idea
of a slavocratic propaganda lay far beyond. After Vir-
ginia (March 1, 1784) had ceded her territory northeast of
the river Ohio to the Union, a committee appointed on
¹ See the whole debate, according to Jefferson's notes, in Elliot, Deb.,
I., pp. 70-74.
2 Bancroft, IX., p. 442: Wilson, Rise and Fall of the Slave Power in
America, I., p. 16.
3
³ In March, 1783, the report of the committee on the finances brought
the question again before congress. The committee went back to the
proposition made by Harrison in 1777. Madison moved, in place of
this, that five slaves should be counted as three freemen. The amend
ment was adopted, but immediately thereafter the whole clause was
stricken out. (Elliot, Deb., V., p. 79.) Hamilton, however, April 1,
moved a re-consideration, and Madison's proposition was then adopted
without opposition. (Ibid, V., p. 81.) Then and there the germ of the
notorious "three-fifths compromise" was planted.
EARLY LEGISLATION ON SLAVERY.
287
Jefferson's motion laid before congress a plan for the gov-
ernment of "the territory ceded or to be ceded by the dif
ferent states to the United States." The latter phrase was
understood as referring to the territory then belonging to
North Carolina and Georgia, between 31° and 47°, which
comprises the present states of Tennessee, Alabama, and
Mississippi. The plan divided the whole territory into
future states, and declared, among other things, that after
the year 1800 "neither slavery nor involuntary servitude"
should exist in them. Spaight of North Carolina moved,
April 19, to strike out this passage. The four New Eng-
land states, New York, and Pennsylvania voted to retain
it; Maryland, Virginia, and South Carolina voted against
it, and the vote of North Carolina was lost by the division
of its delegates. The decision, therefore, lay again with
New Jersey, since the articles of confederation made the
vote of a majority of all the states necessary for the adop-
tion of a resolution. As only one delegate from New
Jersey was present, the vote of the state could not be given,
and the slave interest therefore gained a victory again by
this chance. The significance of this triumph was far
greater than that of the first, on the question of taxation.
If slavery had been eradicated from Kentucky, Tennessee,
Alabama, and Mississippi, the free states would have soon
had a decisive superiority. Without doubt this circum-
stance decided the votes of Maryland, Virginia, and South
Carolina. But it would be transferring the spirit of a
later time to this period if we should suppose that they
aimed in this at the perpetuation of slavery and the forma-
tion of a slavocracy. The territories about which the dis-
cussion took place were ceded to the Union by slave states,
and the latter therefore thought it only right and proper
that slavery should be permitted to continue to exist in
them as long as they were not free from it themselves.
Their moral and political judgment on slavery was not
shown by the vote. Interest had not yet become of such
288
STATE SOVEREIGNTY AND SLAVERY.
power that self-deception had changed to conscious false-
hood.
The so-called ordinance of 1787 gives a practical proof
of the justice of this view of the case. July 11, 1787, a
committee of which Nathan Dane, of Massachusetts, was
chairman, laid before congress a plan for the government
of the territory northwest of the Ohio. Article VI. of
the "compact between the original states and the people
and states in the said territory" forbade forever slavery
and involuntary servitude, but provided for the surrender
of fugitives "from whom labor or service is lawfully
claimed in any one of the original states." The whole
plan was unanimously adopted July 13 by the states, and
the only member of congress who voted against it was
Yates of New York.1
The readiness with which the northern half of the ter-
ritory had been devoted to free labor was in sharp contrast
with the stiff-neckedness with which the slaveholding in-
terest of the southern states was simultaneously defended.
While congress, in session at New York, voted the ordi-
nance of 1787, the convention which was to draw up a
practical constitution for the Union sat at Philadelphia.
In this, too, some of the southern delegates remained true
to the principles they had followed in revolutionary times;
but the decisive votes belonged to those who dismissed
freedom and human rights with words, and demanded
privilege after privilege for the sake of supporting slavery.
An exhaustive history of all the incidents of the struggle
over these demands would exceed the limits set to this
book. The bare statement of the result does not come up
to those limits. In these debates, for the first time, the
2
¹ The first congress under the new constitution ratified the ordinance
August 7, 1789. Both acts are in the Statutes at Large, I., pp. 50–53.
2 The reader who wishes to gain a more exact knowledge without
searching at the sources (Elliot's Debates) will find a correct and inter-
esting sketch in Curtis, History of the Constitution.
THE THREE-FIFTHS COMPROMISE.
289
veil was rent which had hitherto made a clear conception.
of the true state of the slavery question impossible. The
rents were wide enough to let it be seen that behind
them lay a world of war, of war to the knife, although
they did not show how this war would develop and how it
would end.
The strife broke forth over the question of representa-
tion and of direct taxation. Wilson of Pennsylvania, a
man of clear, statesmanlike ways of thinking, and a de-
termined opponent of slavery, suggested that in regard to
representation five slaves should be considered equal to
three freemen.' He who draws his political inspiration
simply and solely from his bible of principles plays Don
Quixote. Political policy is a necessity. But a concession
which involves a principle that can be neither morally nor
politically justified is a heavy weight, which sooner or
later becomes too heavy for the strongest political swim-
mer. In 1777 Wilson had branded Harrison's similar
proposal as a premium on the importation of slaves.
Now he himself offered the premium, but paid it in more
valuable coin. The proposition was hastily adopted by
nine votes to two, and was afterwards again brought be-
fore the convention by a committee. Thus Wilson did not
alone encounter the reproach of having been faithless to
his principles. The great majority of the convention ap-
proved of his proposition, and it was at the same time ex-
pressly pointed out that congress had already united on
the same compromise between the northern and southern
states on the question of taxation.
3
Wilson justified himself by the "necessity of a com-
promise." In the course of the debate, Sherman and
Ellsworth sought through each other to bring the parties
¹ Elliot, Deb., V., p. 181.
2 Delaware and New Jersey.
3
* Elliot, Deb., V., p. 190.
'Ibid, V., p. 301.
19
290
STATE SOVEREIGNTY AND SLAVERY.
·66
2
nearer to one another and so urged the unavoidableness of
a compromise. Gradually propositions were found on
which the requisite majority agreed. The race of north-
ern politicians who sated their thirst for glory by serving
as trainbearers to the slavocracy had not yet arisen. The
struggle was therefore severe. When the "three-fifths
compromise" came up for the decisive vote, only Connec-
ticut, Virginia, North Carolina and Georgia voted for it,
and Massachusetts, New Jersey, Pennsylvania, Delaware,
Maryland and South Carolina against it. Among the
states in the negative, the first three and South Carolina
naturally belonged there, although the latter's vote was de-
termined by exactly opposite reasons. All the southern
states agreed with Randolph that they must demand an
especial assurance" in regard to their slaves by reckoning
them in making up the ratio of representation." Pinckney
was not contented with this. He demanded the complete
equality of slaves and freemen in this respect. On the
other side, the delegates of the northern states refused "to
give such an encouragement to the slave-trade as would
be involved in an allowance of representatives for the ne-
groes." Gouverneur Morris added that the complete ex-
clusion of the negroes would be unjust to the southern
states, but, if he had only the choice between this or being
"unjust to human nature," his decision could not be
doubtful. But at the same time he expressed his convic-
tion that the southern states "would never confederate on
terms that would deprive them of the slave-trade." The
legalizing and direct encouragement in the constitution of
a crying sin against human rights or the surrender of the
Union-this, according to Morris, was the dilemma which
¹ Elliot, Deb., V., p. 301.
Maryland wished only a change in the wording.
2
3
Elliot, Deb., V., p. 304.
4
4 Ibid, V., p. 305.
♪ Ibid, V., p. 301.
THE SLAVE TRADE.
291
confronted them. His judgment found proofs of this in
the expressions of part of the southern delegates during
the debate over the slave-trade.
1
In the committee-report, which Rutledge laid before the
convention August 6, art. VII., sec. 4 of the draft of the
constitution provided that "no tax or duty shall be laid by
the legislature upon the migration or importation of such
persons as the several states shall think proper to admit;
nor shall such migration or importation be prohibited."
Both the Pinckneys declared that South Carolina, Baldwin
that Georgia, and Williamson that the southern states in
general, could not adopt the constitution unless all legal
power in these two particulars was denied to the legisla
ture of the Union. The northern states, they said, should
be content with the assertion that "perhaps" all the south-
ern states, following the example of Virginia and Mary-
land, would voluntarily forbid the importation of slaves,
if the whole matter was left for them to decide. Charles
C. Pinckney scorned to cover his views with such juggling
dissimulation. He freely confessed that the most to be ex-
pected from South Carolina was an occasional prohibition
of the importation.2 The delegates from Connecticut have
the sad honor of having encouraged the remainder of the
southern delegates to throw off their masks. Roger Sher-
man deprecated the slave-trade, but thought that "the pub-
lic good did not demand" that the right of importing slaves
should be taken away from the states. Ellsworth went still
farther. To the future chief justice of the United States,
the "morality and wisdom of slavery" were matters which
did not concern the Union. With a bold hand, he threw
the dollar as a decisive weight into the balance. And if
¹ Elliot, Deb, V., pp. 379, 459, 460.
'Ibid, V., p. 460; compare IV., pp. 272, 273.
3
3 "Let every state import what it pleases. The morality or wisdom
of slavery are considerations belonging to the states themselves. What
enriches a part enriches the whole, and the states are the best judges of
292
STATE SOVEREIGNTY AND SLAVERY.
some of the most cultured men in the north treated the
slavery-question with such moral and political stupidity,
it is not strange that there were some men in the south
who had completely done with the dreams of the revolu-
tionary period about a speedy general
about a speedy general emancipation.
Charles C. Pinckney bluntly said: "South Carolina and
Georgia cannot do without slaves." Far from seeking ex-
cuses for this, he minutely followed up Ellsworth's argu-
ment.¹ Rutledge took the last step. He systematically
rejected every argument drawn from "religion or human-
ity" because "interest alone is the governing principle
with nations." South Carolina, Georgia and North Caro-
lina would not be "such fools" as to deprive themselves of
such an important advantage. So said another man, who
was afterwards chosen for chief justice of the United States.
The extreme champions of the slaveholding interest can-
not be reproached with not having clearly defined their
position. The delegates of the northern states made the
compact with open eyes and complete knowledge. Their
motive, as they repeatedly declared at Philadelphia and
later in the ratification conventions of the different states,
was the firm conviction that only in this way could the
Union be maintained.
their particular interest. The old confederation had not meddled with
this point; and he did not see any greater necessity for bringing it
within the policy of the new one." Elliot, Deb., V., p. 457.
"He contended that the importation of slaves would be for the inter-
est of the whole Union. The more slaves, the more produce to employ
the carrying trade; the more consumption also; and the more of this,
the more revenue for the common treasury." Ibid, V., p. 459. Compare
IV., p. 296.
216
"Religion and humanity had nothing to do with this question. In-
terest alone is the governing principle with nations. The true question
at present is, whether the southern states shall or shall not be parties to
the Union. If the northern states consult their interest, they will not
oppose the increase of slaves, which will increase the commodities of
which they will become the carriers." Ibid, V., p. 457.
* Ibid, V., p. 460.
THE GREAT COMPROMISE.
1
293
The compromise, as the bargain was called, contained two
points: (1) representation and direct taxation should be in
the same ratio, and in estimating them five slaves should
be reckoned as three freemen; (2) congress was forbidden
to prohibit the importation of slaves into the states then
existing before the year 1808, but it was allowed to lay a
tax of not more than $10 per capita on the importation.²
These provisions did not concede everything which had
been asked by some of the southern delegates. Whether
and how far they can be called a compromise demands.
more careful examination.
Under the confederation the states, as such, were repre-
sented, and hence each had an equal voice. This principle
was preserved in a modified form by the system of repre-
sentation in the senate. For representation in the house,
the population was taken as a basis. This was not the de-
velopment of one distinct and clearly formulated concep-
tion. In the debates the most common expression was
that the population was the best measure of the industrial
capacity, that is, of the public well-being. But if this
supposition was just and if the representation should be
measured by the public well-being, then no objection can
be made to the first part of the compromise, provided the
relation between the productiveness of slaves and of free-
men was measured with approximate accuracy. Yet the
south pretended that it far surpassed the north in wealth
and constantly used this circumstance as a pretext for the
more emphatic urging of its claims. If this assertion was
well founded, then its quota of representatives as well as of
taxes was set too low. It did not rest its claim to greater
wealth upon higher industrial capacity or greater industry.
The extent of the states, the fertility of the soil, the re-
markable value of its products and its slaves were the main
1
¹ Art. I., Sec. 2, § 3.
* Ibid, Sec. 9, § 1.
294
STATE SOVEREIGNTY AND SLAVERY.
features in its inventory. It acknowledged by this that
outside of the number of people, many other causes must
be taken account of in order to determine, even approxi-
mately, industrial capacity. It was, therefore, evidently
unjust to apportion representation and direct taxes simply
according to the number of people, when this was con-
sidered only as a measure of industrial value. But besides
this, and above all, the selection of public wealth as the
basis of representation is in contradiction to the idea, not
only of a democratic republic, but of any sort of represen-
tative state. The idea of representation is always based,
more or less, upon the individual, to whom as a member
of the political community, an indirect share in the regu-
lation of political affairs by representation belongs. The
fact that the political institutions of no state have ever
fully realized this idea, and that they never can fully real-
ize it, is a matter of no moment. Institutions realize the
idea more or less closely, and whether this right belongs
to all men of full age or only to a part of them, who thus
act, so to speak, as trustees for the whole people, involves a
difference of degree, not kind. Even where a so-called rep-
resentation of interests or a grouping of population with
a graduated quota of representation exists, the idea of repre-
sentation remains the same. Interests as such are not repre-
sented, but, instead, a number of individuals, as the mana-
gers of certain interests; and the gradation of the right of
representation only recognizes the principle that this right
should be measured by the proportion of certain industries
to the whole, but does not thrust out of sight the principle
that to the individual, as a member of the political com-
munity, an indirect share in the regulation of political
affairs by representation belongs. But, by the nature of
things, the supposition of this right must rest on the po-
litical existence of the individual, or, at least, on the full
recognition by the state of his personal existence. The
slaves were evidently not citizens, and in the southern states
REPRESENTATION OF SLAVES.
295
they practically lacked, in the right meaning of the word,
a personal existence, although the constitution designated
them as 66
persons." As a general rule, the slave had no
rights, for every right is positive, while the so-called rights
of the slave were merely negative, that is, were limitations.
of the arbitrary power of his master. It was therefore a
contradiction in itself to speak of the representation of
slaves. The rights and interests of the slaves were not
represented, but the people who considered it their interest
to keep the slave absolutely without rights were, as the
owners of human chattels, more fully represented than
others entitled to representation. It has never been denied
that not only were the states represented in relation to
their population, but that also the population of the states
ought to be represented. Yet Charles C. Pinckney openly
declared in the debates of the legislature of South Caro-
lina over the constitution that the slaves would be reckoned
in the representation as property, so that the slaveholders,
besides their right of representation in proportion to the
population of freemen and of persons bound to service for
a certain time, would have a still further right of represen-
tation as the owners of this especial sort of property.'
This, indeed, cannot be read in plain words in the constitu-
tion. It does not at all say Who or What is to be repre-
sented, but speaks only of the apportionment of represen-
tation. This circumstance was made great use of by those
northern politicians who did not justify the bargain by sad
necessity, but sought to demonstrate its complete equity.
Through all this whirl of sophisms, however, we always
come back to the simple facts that a representation of prop-
erty was granted to the south, which the north did not
have, and that as a result of this the vote of the owner of
"We thus obtained a representation for our property; and I confess
I did not expect that we had conceded too much to the eastern states,
when they allowed us a representation for a species of property which
they have not among them." Elliot, Deb., IV., p. 283.
296
STATE SOVEREIGNTY AND SLAVERY.
fifty slaves was of as much weight, in regard to representa-
tion in the house of congress, as the votes of thirty free-
men.
In the ratification conventions of the northern states,
the defenders of the constitution made the farther asser-
tion that, since the slaves were also reckoned in the appor-
tionment of direct taxes in the proportion of five to three,
a just recompense was made. to the north for this conces-
sion. The fictitiousness of this statement, however, is
shown by the fact that the direct taxes which were to be
raised were not worth speaking of. Moreover, the north
paid much more than its share of indirect taxes, because
as good as nothing flowed into the federal treasury from
the whole slave population in this way. The south had
gained the advantage in representation as well as in the
taxes for the support of the federal government.
In regard to the second part of the compromise, it was
possible for the northern delegates to assert, at the same
time, that the maintenance of the Union would have de-
pended upon its adoption, provided the threats of the dele-
gates of the two Carolinas and Georgia would have been
made true by their respective states. But many of the
defenders of the constitution also praised the provision
concerning the importation of slaves as a great gain for
the north and for freedom. This view, as well as its op-
posite, can be better defended the farther back a man
1
¹ Some later utterances of the delegates show that these states might
safely have been put to the test. Thus, for instance, Charles C. Pinck-
ney said in the legislature of South Carolina: "The honorable gentle
man alleges that the southern states are weak. I sincerely agree with
him. We are so weak by ourselves that we could not form a union
strong enough for the purpose of effectually protecting each other.
Without union with the other states South Carolina must soon fall. Is
there any one among us so much a Quixote as to suppose that this state
could long maintain her independence if she stood alone, or was only
connected with the southern states? I scarcely believe there is." Elliot,
Deb., IV., pp. 283, 284
THE TWENTY-YEARS REPRIEVE.
297
chooses his standpoint from which to judge. Under the
articles of confederation it was claimed that congress had no
control whatever over the importation of slaves. It was
evidently, then, an advance that it could now hinder it by
taxation, and could, after twenty years, forbid it altogether.
This was answered by Madison's remark in the convention,
that twenty years would be sufficient for working the evil
that was to be feared from permitting the importation of
slaves.¹ Mason had been of the same opinion, and had
given as the ground of his belief that the west was already
strongly desirous of introducing slavery. On the other
side, men consoled themselves with the hope that a pro-
hibition of importing slaves from Africa, even after twenty
years, would still suffice to assure the gradual destruction
of slavery. This view was contradicted with great deci-
sion by a very important section of the country. In the
legislature of South Carolina, the clause concerning the
import of slaves met with the strongest opposition that
was anywhere shown against the constitution. Charles
C. Pinckney considered the reprieve of twenty years that
had been agreed upon as amply sufficient, and declared, in
relation to it, that he would oppose every limitation of the
importation" as long as an acre of marsh is uncultivated
in South Carolina." Barnwell, too, ridiculed the fear that
the eastern states, even after twenty years, would so little
grasp their true interest as to put obstacles in the way of
the importation,-" without we ourselves put a stop to
them, the traffic for negroes will continue forever." The
}
Elliot, Deb., V., p. 477.
*“But we may say that although slavery is not smitten by apoplexy,
yet it has received a mortal wound and will die of a consumption.”
Dawes, in the ratification convention of Massachusetts, Elliot, Deb.,
II., p. 41. Compare also Wilson, in the Pennsylvania convention, Ibid,
II., p. 452. John Adams wrote in 1801, with a mistaken view of facts
that is hard to understand: "The practice of slavery is fast diminish-
ing." Adams, Works, IX., p. 92.
3 Elliot, Deb., IV., pp. 296, 297.
298
STATE SOVEREIGNTY AND SLAVERY.
doubt cast on the pretended victory of the cause of free-
dom by such utterances seemed still more grave when men's
minds went back to the history of the time from 1774 to
1776. Then the delegates from all the colonies had been
for putting an end at once and forever to the slave-trade.
Now Virginia was reproached with opposing unlimited
importation only through motives of "interest" and South
Carolina was aware only of religious and political prej-
udices" of the eastern states against slavery.
“
Yet men's minds needed not to go back so far in order
to find reasons for thinking that the public judgment on
slavery had become more lax. The constitution contains
still a third provision affecting slavery, which, strangely
enough, received very little attention in the ratification
conventions of the northern states. Art. IV., sec. 2, §3
provides that persons lawfully bound in any state to "ser-
vice or labor," who fled into another state, should not be
released from the service or the labor by a law or "any
regulation" of the latter, but should be delivered up on
demand. This clause was unanimously adopted, without
debate, by the convention at Philadelphia. This was a
backward step of great import and disastrous consequen-
ces. The articles of confederation had contained no similar
provision and it had never been pretended that the rendi-
tion of fugitive slaves was a self-evident duty. Even Charles
C. Pinckney admitted that the south had gained a new
right in this. If the articles of confederation had imposed
no limits whatever upon the states in regard to slavery,
they had also, on the other hand, imposed no duties what-
ever upon the Union. The new constitution did this and
this is the weak point of the slavery compromise of the
2
1
¹ Elliot, Deb., V., p. 492. Only the wording was changed in the final
revision of the constitution. The clause referred, too, to apprentices
and the so-called “"bound servants," but it was self-evidently especially
directed against fugitive slaves.
2 Elliot, Deb., IV., p. 286; see also p. 176
THE CONSTITUTION ON SLAVERY.
299
constitution. Slavery was not made a federal institution
and the constitution did not contain, as was later asserted,
a formal "guaranty" of the "peculiar institution," but
it recognized it not only, as the articles of confederation
did, by silence; there were three provisions of the great-
est weight in favor of slavery contained in the funda-
mental law of the Union, and, without regard to the con-
tents of these provisions, by means of them a mighty
pillar of support was thrust under the rotten structure. Al-
though the words "slave" and "slavery" were not used in
them, yet this was not only a matter of no value, but made
the thing still worse. Never have men tried by such a pit-
iable trick to lie to themselves and the world about facts
which could no more be lied away than the sun from the
firmament. But the worst of it was that these circumlo-
cutions were used on the demand, not of the south, but of
the north. The plantation-owners had already become such
complete slavocrats that their ears were no longer offended
by the word which carries in its sound its condemnation;
and the north, which was henceforth to bear the banner of
freedom alone, had already become such a moral coward
that it tried to escape, by shunning the word, the respons-
ibility for the legal recognition of the thing.
Some of the most determined opponents of slavery af-
terwards sought, strange to say, a just basis for their strug-
In Prigg vs. The Commonwealth of Pennsylvania, however, the
supreme court of the United States declared: "Historically, it is well
known that the object of this clause was to secure to the citizens of the
slaveholding states the complete right and title of ownership in their
slaves, as property, in every state in the Union into which they might
escape from the state where they were held in scrvitude. The full recog-
nition [!] of this right and title was indispensable to the security of this
species of property in all the slaveholding states, and, indeed, was so vital
to the preservation of their domestic interests and institutions that it
cannot be doubted that it constituted a fundamental article without the
adoption of which the Union could not have been formed."
Rep., XVI., p. 611; Curtis, XIV., pp. 420, 421.
2
Elliot, Deb., II., pp. 451, 452; IV., pp. 102, 176; V., p. 477.
Peters,
300
STATE SOVEREIGNTY AND SLAVERY.
gle against it in the fact that the constitution recognizes no
"slaves" but only "persons." This would make a good
theme for very logical dissertations, but the dissertations.
cannot destroy the strong band of the logic of facts, by
which the south tugged the north, step by step, farther along
its path. It has already been related in another chapter,
with what arrogance the south seized the first opportunity
to do so. It could be answered, but it could not be si-
lenced. Fig-trees do not grow from thistles in America
any more than elsewhere. The principle had been bar-
gained away for the sake of the Union, and hence every
new demand dictated to the slavocracy by the impulse of
self-preservation presented to the north the alternative of
yielding and therewith taking a farther step away from the
right principle or of endangering the Union. This was the
result which the relentless logic of historic justice, that is,
of the moral order of the world, involved. Taxes could be
laid without tearing the Union asunder, only as long as in
the south the interests bound up in the Union outweighed
the slavocratic interests. The longer men shrank back
from the test, so much the more dictatorially did the south
necessarily speak, so much the more did it necessarily de-
mand, so much the more was necessarily conceded to it, so
much the more did the distinct slavocratic interest neces-
sarily outgrow the interests connected with the Union.
An earnest struggle of the southern states against slavery
on their own initiative was impossible as long as they
thought that not only their industrial well-being, but their
very industrial existence, depended upon it. But this con-
viction already existed, at least in South Carolina and
Georgia.¹
¹ In the debates of the legislature of South Carolina over the consti-
tution, Lowndes said: "Without negroes, this state would degenerate
into one of the most contemptible in the Union," and Charles C. Pinck-
ney: I am as thoroughly convinced as that gentleman is, that the na-
ture of our climate and the flat, swampy situation of our country oblige
แ
THE SLAVERY DILEMMA.
301
If it remained confined to these states and grew
weaker elsewhere, then human rights and the blessings
of free labor would necessarily and steadily gain ground.
If it struck deeper root and spread wider, then human
rights, free labor and all freedom, political, religious
and moral, would perforce ever bow lower under the
yoke of the slavocracy, as long as men would neither sac-
rifice the Union nor venture to fight for the Union. The
preservation of the status quo was impossible.
us to cultivate our lands with negroes, and that without them South Car-
olina would soon be a desert waste.
We .. assigned rea-
sons for our insisting on the importation, which there is no occasion to
repeat, as they must occur to every gentleman in the house." Elliot,
Deb., IV., pp. 272, 285. The debates of the Georgia convention are not
preserved, but the votes of the Georgia delegates at Philadelphia and
the way in which they let the South Carolina delegates speak for them
fully justify the assertion made in the text. In May, 1789, the first skir-
mish in congress on the slavery question took place. The provocation
thereto was the motion by Parker of Virginia to lay a tax of $10 per
head upon slaves imported. Jackson of Georgia said on this occasion:
They [gentlemen] do not wish to charge us for every comfort and en-
joyment of life and at the same time take away the means of procuring
them; they do not wish to break us down at once." Deb. of Congress,
I., p. 73. Georgia was for a long time the only state which permitted
the importation of slaves. South Carolina did not repeal her prohibition,
which had existed since the time of the Philadelphia convention, nntil
1803. Georgia had then again forbidden it and by a clause in the con-
stitution of 1798. Opinions of the Attorneys General, I., p. 449.
302
STATE SOVEREIGNTY AND SLAVERY.
CHAPTER VIII.
HISTORY OF THE SLAVERY QUESTION FROM 1789 UNTIL THE
MISSOURI COMPROMISE.
Washington had written as early as 1786 to Lafayette
that he "despaired" of seeing the spirit of freedom gain
the upper hand.¹ Politicians and people, however, contin-
ued to be convinced of the contrary, although under the
new constitution proofs of the justice of Washington's
view rapidly accumulated. A most notable symptom of
this was that no one was conscious how quickly the nation
was striding forward on the wrong path. The constant
speaking and writing about freedom during the revolution
bore evil fruits. The gulf between abstract political rea-
soning and the actual development of freedom had become
perilously broad. Not only was the faculty of political
judgment hurt, but the political will of the nation had
suffered. Men became impatient and unjust because they
had talked themselves into believing the flattering illusion
that in the struggle against the injustice of others, one
starts from the absolute principle of justice. The speediest
courser on the road to despotism is a principle ridden
without reins. If men had given themselves up to gross
illusions, at first, in regard to the readiness with which real
interests would be sacrificed at the altar of principle, they
now ruthlessly rejected the principle for the sake of empty
prejudices. Their position on the slavery question might
have been more or less excused by sad political necessity.
But for the shameful treatment of the free men of color,
not even this dubious justification can be brought forward
Wash., Writ., IX., p. 163.
TREATMENT OF FREE NEGROES.
303
-at least not yet-and it therefore throws an especially
clear light upon how far the principles of the Declaration
of Independence, with their consequences, had become
flesh of the flesh and bone of the bone of the people.
The free men of color, especially those in the northern
states, had had an honorable share in the war of independence.
On different occasions, as, for instance, at the defense of
Red Bank, they had greatly distinguished themselves. The
republic now praised them for this, while congress de-
clared them unworthy to serve in the militia.' This did
the slaveholders a service that involved the greatest con-
sequences, for it had now been recognized as a fundamental
fact that race and color were principles which should nec-
essarily be taken account of in making laws.
The consequences logically resulting from this fact were
practically followed up so widely that they almost instant-
ly amounted to an emphatic recognition of slavery as a
national institution. In the southern states, slavery was
looked upon as, without doubt, the natural position of per-
sons of color, so that the presumption of the law was that
every colored man was a slave.2 If the freedom of a col-
ored man was questioned by any one whatever, the burden
of proof to the contrary rested on him. This upsetting of
the fundamental principle of law recognized by all civil-
ized peoples-affirmanti, non neganti, incumbit probatio-
was formally approved by congress when it resolved that,
in the District of Columbia, over which the constitution
gave it unlimited power, the laws of Maryland and Vir-
ginia should respectively remain in force. Yet this is not
3
'Law of May 8, 1792. Stat. at Large, I., p. 271.
4
2 "In a state where slavery is allowed, every colored person is pre-
sumed to be a slave." Prigg vs. Commonwealth of Pennsylvania.
Peters, Rep., XVI., p. 669; Curtis, XIV., p. 470.
Art. I., Sec. 8, § 17.
4 Law of Feb. 27, 1801; Stat. at Large, II., p. 105. The part of the Dis-
trict ceded by Virginia was afterwards given back to that state. In the
report of the committee for the District, Jan. 11, 1827, it is affirmed:
304
STATE SOVEREIGNTY AND SLAVERY.
•
all. Henceforth slavery existed in the District only by
virtue of this law,-a slavery with a code which was a veri-
table muster-roll of horrors. It is possible, and in truth
probable, that most members of congress were not aware
what sort of abominations they had made laws of the Union
by adopting the slave-code of Maryland, then nearly a cen-
tury old.¹ But how far does the excuse reach? If human
rights had already become so much of a lie, as far as race
and color were concerned, that it was no longer deemed
worth the trouble to inquire what laws were made about
them, then the nation was only one step from letting such
outrages against the first demands of justice, humanity and
morality, to say nothing of the principles of freedom, be
framed into laws with the full consciousness of their mean-
ing. History affords proof of this. Some decades after-
2
"In this District, as in all the slave-holding states in the Union, the le-
gal presumption is that persons of color going at large without any evi-
dences of their freedem are absconding slaves and prima facie liable
to all legal provisions applicable to that class of persons." Reports of
Committees, XIX Congress, 2d Sess., I., No. 43.
"Laws of the Union" so far as congress, according to the decision of
the supreme court of the United States, is not simply the local legisla-
ture of the District, but acts, even in this respect, as the legislature of
the Union. In Cohens vs. Virginia (1821) the court affirmed that "this
power
is conferred on congress as the legislature of the Union;
for strip them of that character, and they would not possess it. In leg-
islating for the District, they necessarily preserve the character of the
legislature of the Union. . Those who contend that acts of congress
made in pursuance of this power do not, like acts made in pursuance
of other powers, bind the nation, ought to show some safe and clear rule
which shall support this construction and prove that an act of congress
clothed in all the forms which attend other legislative acts, and passed
in virtue of a power conferred on and exercised by congress as the legis-
lature of the Union, is not a law of the United States and does not bind
them." Wheaton, Rep., VI., pp. 424, 425; Curtis, V., p. 112.
2 In the report already quoted of the committee for the District of
Columbia, it is said: "If a free man of color should be apprehended as a
runaway, he is subjected to the payment of all fees and rewards [!] given
by law for apprehending runaways; and upon failure to make such
payment is liable to be sold as a slave." The committee recommend ed
SLAVE CODE OF CONGRESS.
305
wards, through the direct action of congress, it became law
at the seat of the national government that persons known
to be free should be sold as slaves in order to cover the costs
of imprisonment which they had suffered on account of
the false suspicion that they were runaway slaves. And
this law was repeatedly put into full effect. How many
crowned despots can be mentioned in the history of the old
world who have done things which compare in accursed-
ness with this law to which the democratic republic gave
birth? Can all history furnish a second example of a na-
tion throwing so great a lie, with such insolent hardihood,
in the face of the world, as the United States, with their
belief in the principles of the Declaration of Independence,
did for almost a century?
""
The judgment is hard, but just. Many people will not
allow the least blame to be cast on this period, because it
does not harmonize with their admiration of the "fathers,'
and because they have adopted, without any proof, the
common view that the deeper shadows of slavery and slav-
ocracy first appeared comparatively late. If we consider
the spirit which filled the law-makers as the essential thing,
we can still accept this view only as a partial justification.
In order to judge of the spirit rightly, we must by no
means fall into the very common error of overlooking the
sins of omission chargeable to congress. In reading
through the debates, single striking instances of injustice
do not make the deepest impression. It is the omnipres-
ent unwillingness to practice justice towards colored per-
son,—yes, even to recognize them as actual beings. When
the defense of their rights is demanded, then congress has
always a deaf ear. The representatives of the slave states
oppose to every demand their firm and yet passionate Non
possumus with a consistency and energy which would have
that the municipality of Washington should be charged with the costs,
but the law remained unchanged.
20
306
STATE SOVEREIGNTY AND SLAVERY.
reflected honor on the papal curia. And in most cases
they carry the majority with them.
swer.
Swanwick of Pennsylvania laid before the house of rep-
resentatives, Jan. 30, 1797, a petition from four North
Carolina negroes who had been freed by their masters.
Since a state law condemned them to be sold again, they
had fled to Philadelphia. There they had been seized un-
der the fugitive slave law, a full explanation of which is
given hereafter, and now prayed congress for its interven-
tion. Blount of North Carolina declared that only when
it was "proved" that these men were free, could congress
consider the petition. Sitgreaves of Pennsylvania asked,
in reply to this, what sort of proof was offered that the
four negroes were not free. This question received no an-
Smith of South Carolina and Christie of Maryland
simply expressed their amazement that any member what-
ever could have presented a petition of "such an unheard-
of nature." Swanwick and some other representatives
affirmed that the petition must be submitted to a commit-
tee for investigation and consideration, because the peti-
tioners complained of violation of their rights under a law
of the Union. No reply could be made to this and no
reply was attempted. This decisive point was simply set
aside, and it was voted by fifty ayes to thirty-three noes.
not to receive the petition.¹ Congress acknowledged by
this vote the truth of the view expressed by Christie, that
under the fugitive slave law no injury could happen to a
freeman. In order to reach this result, Smith had pro-
duced the customary impression by the declaration that the
refusal of the demand made by the representatives from the
southern states would drive a "wedge" into the Union.
When, three years later, the same question was brought
before congress again by a petition of the free negroes o
Philadelphia, Rutledge of South Carolina declared in even
'See the debate in Deb. of Congress, II., pp. 57-60.
RIGHT OF PETITION.
307
plainer terms that the south would be forced to the sad
necessity of going its own way.¹
It was always especially distasteful to the representatives
of the south to see the crime of slavery brought before
congress by colored people. But the whites who troubled
themselves about slaves or free colored persons had no bet-
ter reception. Year after year the Quakers came indefat-
igably with new petitions, and each time had to undergo
the same scornful treatment. In 1797, the yearly meeting
at Philadelphia set forth some especial wrongs in a petition.
The most prominent place in the document was occupied by
a complaint against the law of North Carolina, which con-
demned freed slaves to be sold again. Many southern del-
egates expressed, in a bullying fashion, their scorn for the
tenacity with which these men of earnest faith ever con-
stantly came back again to their hopeless work. Rutledge
and Parker demanded that the petition should be laid “un-
der the table." Rutledge even wished that "a sharp re-
proof" should be sent to the petitioners. But the defend-
ers of the right of petition succeeded, this time, in
having the memorial referred to a special committee. No
attention, however, was paid to it there.
The year before, Delaware had laid before congress a
memorial in regard to kidnapping. In reply to a question
put by Murray, Swanwick declared that the term "kid-
napping" was to be understood as referring both to run-
ning slaves off in order to free them and to the stealing of
free negroes in order to sell them as slaves. Although
congress was asked to take action in this case by a slave
state, yet the representatives from the rest of the south
¹ Deb. of Congress, II., p. 443.
3
2 Ibid, II., pp. 183, 185. The proposal was applauded. Christie and
Jones of Georgia repeated it in 1800 on a similar occasion. Ibid, II.,
p. 439.
* Yet it appears from an utterance of J. Nicholas of Virginia, that it
was especially desired to put an end to the hunt after free colored men.
308
STATE SOVEREIGNTY AND SLAVERY.
were not willing to allow it to "meddle" in any way what-
ever with matters concerning slavery, since the power to
do so might be afterwards used against slaveholding inter-
ests. W. Smith affirmed that slavery was a "purely mu-
nicipal" affair. Representatives from the northern states
supported this view from different motives. Coit of Con-
necticut asserted that "the laws of the different states were
amply sufficient" to stem the evil. On his motion, and
by forty-six to thirty votes, the question was postponed
in such a way that it could not come before the house again.
The assurance given by the states most concerned that
their laws could not suffice for this purpose, especially
since they could have no jurisdiction whatever on the wa-
ter, received no attention, although it was generally admit-
ted that the evil existed to a marked extent.
In all the cases mentioned, the tactics of the representa-
tives of the slaveholding interest were the same and they
maintained them unchanged up to the last. If congress
was urged to act in any way which did not please them,
then slavery was always a "purely municipal affair." Then
the literal interpretation of the constitution was insisted
upon; every constructive power of congress was declared
to be inadmissible; and it was thus stripped of all power,
since no authority over slavery, except in regard to the
importation of slaves, was directly granted it. But if the
act of congress was in their interest, then, just as steadily,
exactly the opposite path was pursued. Then was heard
the reasoning: the southern states would never have rati-
fied the constitution if complete security in regard to
slavery had not been promised them; all interests should
have equal rights and equal claims to the protection of the
Union. And from the first instant a sufficient number of
members from the north clasped hands with the south to
make the laws a mere nose of wax in the hands of the latter.
So the slaveholding interest found it as easy to carry
SLAVERY RECOGNISED IN TREATIES.
309
through its own demands as to reject the demands of its
opponents.
December 22, 1789, North Carolina ceded the territory
claimed by her to the Union. The deed of cession stipulated
ten conditions,—among them "that no regulations made
or to be made by congress shall tend to emancipate slaves.”
April 2, 1790, congress accepted the cession without any
discussion. April 2, 1802, Georgia ceded, in a similar
way, her western territory, and in doing so imposed the
condition that the ordinance of 1787 should be valid there-
in, in all its parts, "except only the article which forbids.
slavery." That congress accepted the cessions in this.
form without even an attempt to make a change in the
conditions, is the more remarkable, because in this case the
constitution can well be relied upon. The constitution
declares that "congress shall have power to dispose of the
territory and all the property belonging to the United
States and to make all necessary rules and regulations for
the same." This clause is quite absolute and peremptory.
Congress had also unquestionably a right, if it seemed good
to it, to legalize slavery in the territories, but it could not
bind itself and all future congresses (for this was what the
states which made the cessions wished to have publicly un-
derstood) to a limitation of its constitutional powers.
In the same year that congress took into the possession
of the United States, under the conditions already given,
the western territory of North Carolina, the treaty power
had already been used in favor of the slave-holders. The
irony of fate willed that this should be the first treaty to
be completed under the new constitution. August 7, 1790,
a treaty with the Creek Indians was agreed upon in New
¹ Stat. at Large, I., pp. 106-109.
2 In Little, Brown and Co.'s edition of the statutes at large, which I
used, the deed of cession and its acceptance by congress are not given.
In Bioren and Duane's edition they may be found in vol. I., p. 488.
3 Art. IV., Sec. 3, § 2.
310
STATE SOVEREIGNTY AND SLAVERY.
York.¹ By its terms the Creeks bound themselves to de-
liver up the slaves who had fled to them from Georgia, and
to hold the Seminoles, who lived in Spanish Florida, to the
same duty. That the president and senate had the right
to insert in a treaty stipulations in favor of the slavehold-
ers, cannot be questioned, since the treaty power, according
to the provisions of the constitution, is unlimited. But a
duty to do so could under no circumstances exist, since
slavery was only an institution of the individual states, but
not of the United States. The Union therefore made it-
self a direct accomplice in the crime of slavery, when it
voluntarily used its power in behalf of the specific interests
of the slaveholders. If, in regard to the slavery compro-
mises of the constitution, it should be boldly affirmed that
so far as the Union was concerned, slavery was only a rec-
ognized fact, with which it had nothing to do, yet this was
now, at least, no longer true. According to the constitu-
tion, treaties are "the supreme law of the land." Such
treaty stipulations practically recognized slavery as an in-
stitution, in behalf of which the legislative power of the
Union should be used.
Three years later this happened in a much more direct
way. Mention has already been made of the clause of the
constitution which provides that persons bound to service
or labor who flee into another state shall not be released
from their service or labor, as the result of any law or
regulation whatever of this state, but shall be delivered
up upon the demand of the person to whom the service or
labor is due. This clause thus limited the legislative
power of the states, and laid upon the states an obligation."
1
1 Stat. at Large, VII., p. 35.
2 This view is in opposition to the decision of the supreme court of
the United States. In the case of Prigg vs. Commonwealth of Penn-
sylvania it is declared that "the clause is found in the national constitu-
tion, and not in that of any state. It does not point out any state func-
tionaries or any state action to carry its provisions into effect. The
FUGITIVE-SLAVE LAW.
311
Action by congress on this matter was not demanded, at
least not immediately. Yet in 1793 it passed, of its own
states cannot therefore be compelled to enforce them, and it might well
be deemed an unconstitutional exercise of the power of interpretation
to insist that the states are bound to provide means to carry into effect
the duties of the national government nowhere delegated or entrusted to
them by the constitution. On the contrary, the natural, if not the neces-
sary, conclusion is that the national government, in the absence of all
positive provisions to the contrary, is bound, through its own proper
departments, legislative, judicial, or executive, as the case may require,
to carry into effect all the rights and duties imposed upon it by the
constitution." Peters, Rep., XVI,, pp. 615, 616; Curtis, XIV., p. 424.
But it is a fundamental doctrine of American constitutional law, which
has never been questioned, that "the constitution of the United States
is a part of the law of every state." (Chief justice Taney said in the
same case: "And the words of the article which direct that the fugi-
tive shall be delivered up seem evidently designed to impose it as a
duty upon the people of the several states to pass laws to carry into
execution in good faith the compact into which they thus solemn-
ly entered with each other. The constitution of the United States, and
every article and clause in it, is a part of the law of every state in the
Union, and is the paramount law." Peters, Rep., XVI., p. 623; Curtis,
XIV., p. 435.) It repeatedly applies directly to the states, as well in
prohibition (Art. I. Sec. 10.) as in command (Art. I. Sec. 4, § 1). It can
not be inferred from the simple fact that the clause is in the constitution
of the Union, that it does not bind the states to perform a direct action,
but the decision of the supreme court is supported only by this fact.
The clause is not expressed with especial clearness, but, judged by the
usual meaning of the words, it unquestionably applies much more
directly to the states than to the federal powers. However great weight
I generally give to Story's reasoning, I cannot in this case find any
sound argument in his work against my view that the states were not
only allowed, but obliged, to provide, of their own motion, until the
passage of a federal law, a means by which the rights given the slave-
holders by this clause could be secured. This does not contradict the
broader and evidently just decision of the supreme court of the United
States, that congress had the right, and that it was its eventual duty, to
regulate this question by a federal law, which would then evidently
and eo ipso set aside all the state laws concerning the matter. Art. I.,
Sec. 8, § 4 (the provision concerning a bankrupt law) is a proof that
the constitution recognizes rights which congress may or may not use,
and which belong to the individual states until it sees fit to use them.
The same fundamental fact seems to me applicable also to duties.
312
STATE SOVEREIGNTY AND SLAVERY.
2
3
motion,¹ a fugitive-slave law. In the house of representa-
tives the bill was passed by 48 votes against 7, and, as it
seems, without any debate worth mentioning. The vote
on this truly barbarous law shows what claim colored peo-
ple had to human rights; how much truth there was in
the exaggerated complaint that hard fate imposed the curse
of slavery upon the land; and how terribly earnest, not
only at the south, but in the congress of the Union, the
"legal presumption" of the slavery of every colored per-
son was.
4
The law empowered the pretended owner, or his agent,
to bring the alleged fugitive "before any magistrate, of
a county, city, or town corporate," in order to obtain a
decision which ordered the return of the fugitive to the
state or territory from which he had escaped. The su-
preme court of the United States afterwards acknowledged
that doubt might be cast upon the constitutionality of this
provision. It declared that state magistrates could use
the authority thus entrusted to them by congress when
Only here the freedom of action of congress is limited by time. It
ceases as soon as a decisive cause makes the conditional duty an un-
conditional one.
¹In order to escape the reproach of inexactness the history of this law
must be given somewhat more in detail. The immediate cause of it
was a message of Washington. This was due to the governor of Penn-
sylvania, who reclaimed a criminal who had fled to Virginia. The
expression used in the text is therefore so far justified that complaint
had not been made of an ineffectual reclamation of a fugitive slave.
Approved by the president Feb. 12. Statutes at Large, I., pp. 302–305.
³ Deb. of Congress, I., p. 417. It is not apparent what the motives of
the seven representatives (among them two from slave states) who voted
in the negative were.
2
* Bouvier, Law Dictionary, II., p. 86, defines "magistrate" as a pub-
lic civil officer invested with some part of the legislative, executive, or
judicial power given by the constitution; in a narrower sense this term
includes only inferior judicial officers, or justices of the peace." I
know of no judicial decision in which the meaning of magistrate in
this connection is exactly stated.
DISREGARD OF HUMAN RIGHTS.
313
they were not prevented from doing so by state laws.¹ But
this may well be doubted. Congress certainly could not
oblige these state magistrates to use the powers given
them, inasmuch as in their capacity as magistrates it could
impose no duties whatever upon them. The voluntary
use of the power, with the silent consent of the states,
therefore appears possible only under the fiction that con-
gress made all the state magistrates mentioned in this law
federal magistrates for certain defined cases. Yet this for-
mal reasoning is the least reproach which can be brought
against the law. Legally, the decision of the question
whether the fugitive was a runaway slave was not in the
least prejudged by the permission given to take him back;
but actually his fate was thereby sealed in nearly every
case. That which is dearest to man was made subject to
the judgment of a single person, an inferior magistrate.
This was not only a shocking disregard of the first prin-
ciples of justice, humanity, and freedom, but it was also a
crying wrong to the spirit of the constitution, provided, of
course that the "legal presumption" of the slavery of
every colored person was not already to be found in the
constitution. The Seventh Amendment provides:
suits at common law, where the value in controversy shall
exceed twenty dollars, the right of trial by jury shall be
preserved." Men learned in the law might dispute
2
"In
¹ Prigg vs. Commonwealth of Pennsylvania, Peters, Rep., XVI., p.
622; Curtis, XIV., p. 430.
Judge McLean says in the case of Prigg vs. Commonwealth of Penn-
sylvania: “Both the constitution and the act of 1793 require the fugi-
tive from labor to be delivered up on claim being made by the party
or his agent to whom the service is due, not that a suit should be reg.
ularly instituted." (Peters, XVI., p. 667; Curtis, XIV., p. 469.) If
this can be deduced from the wording of the constitution,-and there is
much to be said for this view,-then, indeed, "the proceeding authorized
by the law" must be "summary and informal." In this case each atro-
cious provision of the law becomes less of a burden for congress and
more of a burden for the Philadelphia convention.
314
STATE SOVEREIGNTY AND SLAVERY.
whether the question of freedom or slavery was "a suit
at common law"; slaveholders might deny that the
freedom of the colored person was worth twenty dollars;
but it must shock the sound common sense of every right-
thinking man that in a land where suits for anything worth
twenty-one dollars could be brought on demand before a
jury, a man could be handed over to life-long slavery by
any village judge willing to do so. And in such a case
the "parole testimony" of the pretended master or his
agent, if it seemed sufficient to the judge, was to suffice
for the award of the "certificate."
If the law-making power of a popular state unconscious-
ly plays in this way with the highest questions, then it
may be inferred, a priori, that an evil is eating into the
political, social and moral, yes, into each and all of the
ways of life of the people,-an evil which leads the nation
to inevitable death, unless it frees itself from it betimes
with knife and hot iron.
If the whole responsibility and guilt rested upon con-
gress, as Americans usually say and write, then all the
preceding facts would be of little worth for the history of
democracy in the United States. But outside of America,
it is not so easy to forget that congress is not independent
of the people. If the representatives of the north could
voluntarily and with impunity serve the peculiar interests
of the slaveholders, then the population of the north must
have been, at least to a great extent, indifferent to the
rights and interests of persons of color. And this is ex-
actly the complaint which can be brought against the rep-
resentatives of the north in congress. They had not yet.
sunk into submissive servants of the slavocracy. When,
as in the compromises of the constitution concerning slav-
ery, the political interests of the northern states, that is, of
the white population of the north, were concerned, then
the south always had to fight a hard fight; but when ques-
tions of humanity, questions which directly concerned only
NORTHERN SLAVE-TRADERS.
315
persons of color, were reviewed, then it was allowed to
carry its point almost without opposition. The moral ab-
horrence of slavery was at no time great enough to hinder
the participation of northerners in the blackest crimes of
slavery.
As early as 1785, Hopkins complained that "some New
England states and other states" had again begun to im-
port slaves from Africa. Such extraordinary prices were
paid for negroes in the West Indies and some southern
states, "for instance, in South Carolina," that the evil
would soon be as great as before if it were not checked
without delay. After the adoption of the constitution,
the complaint was often repeated. In 1800, Waln of
Pennsylvania declared in congress that the slave-trade was
carried on in great part by Rhode Island, Boston and
Pennsylvania. In 1804, Bard of Pennsylvania repeated
the same complaint in a much sharper form.³ And no one
denied the fact, for it was too publicly known. When an
attack was made in congress upon slavery, the representa-
tives of the southern states were always ready with the sneer-
ing suggestion that the assailants should sweep in front of
their own doors; and in truth, the dirtiest business
connected with slavery was carried on in the north. Any
excuses designed to palliate this proved reproach could be
brought forward with less weight, since there were already
delegates from the north who justified the slave-trade with
an insolent boldness that could not be surpassed by the
South Carolinians themselves.*
Goodell, Slavery and Anti-slavery, p. 122.
2 Deb. of Congress, II., p. 438.
³ Deb. of Congress, III.,
p. 132.
* Brown of Rhode Island said in 1800: “He was certain that this
nation having an act against the slave-trade did not prevent the expor-
tation of a slave from Africa. He believed we might as well, therefore,
enjoy that trade, as to leave it wholly to others. It was the law of that
country to export those whom they held in slavery-who were as much
slaves there as those who were slaves in this country-and with as
316
STATE SOVEREIGNTY AND SLAVERY.
The single practical result which could be rightly de-
duced from the undeniable fact, was evidently the pressing
necessity of struggling against it with the greatest energy.
A great part of the northern representatives wished, in-
deed, to go as far as the constitution then allowed them.
But the representatives of some of the southern states,
which wished a farther importation of slaves, acted as if
the north was deprived by that fact of any moral justifica-
tion for acting against their wishes in this respect. They
carried their point, at least so far that congress did not for
a long time express, even indirectly, its disapprobation.
The attempt was repeatedly made to impose a tax of $10
upon every slave imported. South Carolina's repeal of
her prohibition of the importation was the main cause of
this. The representatives of that state did not venture to
defend this, but sought only to excuse it. Lowndes ex-
plained that the continual violation of the prohibition
could not be prevented, and that it had therefore been
judged better to legalize what would at any rate exist, than
to accustom citizens to such a disregard of the law.¹ The
rest of the members of the house of representatives were
unanimous in their condemnation of the legislature of
South Carolina. But yet there were manifold obstacles
against giving official expression to this judgment, by vot-
ing the tax. Some affirmed that congress would thus give
its sanction to the importation of slaves, and that the men
engaged in the trade would at once claim its protection;
much right. The very idea of making a law against this trade which
all other nations enjoyed, and which was allowed to be very profitable,
was ill policy. He would further say that it was wrong when consid-
ered in a moral [!] point of view, since by the operation of the trade
the very people themselves much bettered their condition. It ought to
be a matter of national policy, since it would bring in a good revenue to
our treasury." Deb. of Congress, II., p. 475. Rutledge expressed the
same views, but even he shrank from stating them with such shameless
nakedness. Ibid, II., p. 476.
¹ Deb. of Congress, III., p. 129.
IMPORT OF SLAVES FORBIDDEN.
317
others wished to draw no national revenue from such an
unclean source; others contested the justice of the tax,
because it would fall only upon one state; and still others
affirmed that the representatives of the opposite views had
almost a majority in the South Carolina legislature and
that they would certainly renew the prohibition soon, if
congress would but show a little patience. But the weight-
iest objection was that it would be malicious, unjust and
imprudent to thus point out one state of the Union and
to formally invite the world to condemn it. South Caro-
lina was therefore uselessly given two years' respite before
the house of representatives voted the tax of $10.¹ If the
interest of the northern slave states had not in this case
agreed with the wish of the north, the opposition of the
minority might have even now met with scant success.
2
It was also due to this circumstance that in the follow-
ing year the importation of slaves was completely forbid-
den by an unanimous vote of congress, from January 1,
1808,-in fact, from the very day from which congress had
the right to forbid it. No opposition was attempted, be-
cause it was recognized as bootless, and no one was will-
ing to uselessly incur the odium. The unanimous vote is
placed in the right light only by the negotiations and con-
clusions on the details of the question.
The struggle was next renewed in the disposition to be
made of negroes smuggled into the country. According to
the bill as it was submitted to the house, these were to be
forfeited to the United States. The opposition to this was
mainly confined to delegates from the north. Their ob-
jection was that this would be a direct recognition of
slavery, since the United States would thus actually become
slave-traders themselves. As the bill was framed, this
could be, of course, only a technical consideration. The
¹ Jan. 22, 1806. Deb. of Congress, III., p. 391.
* The act was approved by the president, March 2, 1807. Stat. at L.,
II., pp. 426–430.
318
STATE SOVEREIGNTY AND SLAVERY.
clause referred to the provisions of a certain tax law, and
Pitkin of Connecticut objected that, according to this, the
forfeited negroes must be sold at public auction to the
highest bidder, and that at least half what they brought
would flow into the treasury of the United States.¹ But
Quincy was of the opinion that congress could, and, as he
did not doubt, would, "devise means to make them use-
ful members of society, without any infringement of the
rights of man."2 But if the very most zealous defenders
of the slaveholding interests expressed themselves decid-
edly in favor of this provision, this was due not at all to
any consideration for the "rights of man," but only to the
supposition that the negroes would be sold as slaves. The
opposition was therefore justified in not yielding. But
it saved thereby only a beggarly appearance. On the
motion of Bidwell of Massachusetts, the disposition to be
made of the smuggled negroes was left entirely to the leg-
islatures of the different states and territories. Quincy
had asked whether they were not thereby "made slaves as
absolutely as by a vote of the house?"
3
Although this was not simply a question of policy, but
one which involved a principle, the debate over it was
marked by a tone of policy. The discussions concerning
the punishment of the smugglers were not free, however,
from the violence and bitterness which were usually shown
at every mention of slavery. According to Tallmadge of
Connecticut, the crime of the slave-trade should be consid-
ered as "felony." The representatives of the south op-.
posed to the utmost the imposition of the death penalty,
which was demanded by a part of the northern delegates
as the only effectual means of prevention. Negative ex-
¹ Deb. of Congress, III., p. 496.
2 Ibid, III., p. 499.
3 Macon of North Carolina asserted that the matter was simply a
"commercial question." He said: "It is in vain to talk of turning
these creatures loose to cut our throats."
SLAVEHOLDING SENTIMENT.
319
perience favored this view, then and thereafter; all other
punishments failed to put an end to the trade. But,
on the other side, it was agreed that it was probable that
the threat of the death penalty would also be fruitless. It
is an old teaching of experience that the effectiveness of a
law which fixes penalties depends much less on the great-
ness of the penalty than on the certainty of its infliction.
Relying on this, the opponents of the clause urged that in
the southern states, which were practically alone concerned
in the matter, the law would remain a dead letter.¹ These
arguments were striking, but they opened a dismal vista
into the future which awaited the land, if men went on
treating the slavery question in the way they had up to this
time. Early of Georgia said: "I should like to know how
the fear of death will operate on a man who is bound with
his slaves to a country where he knows the punishment
will not be enforced. He will be bound to a country where
the people see slaves every hour of their lives; where there
is no such abhorrence of the crime of importing them, and
where no man dare inform. My word for it,—I pledge it
to-day and I wish it may be recollected,—no man in the
southern section of the Union will dare to inform. It
would cost him more than his life is worth. . . . A large
majority of the people in the southern states do not con-
sider slavery as a crime. They do not believe it immoral
to hold human flesh in bondage.
I will tell the
truth. A large majority of people in the southern states
do not consider slavery as even an evil." If the majority
of the southern people were of this opinion and if the
number of the northern politicians who prided themselves,
with Brown of Rhode Island, on supporting "the rights
1
Clay of Pennsylvania asserted that the death penalty could not be
carried out, even in his state. Yet his colleagues did not fully agree
with him in this, for it had been proposed by Smilie of Pennsylvania.
'Deb. of Congress, III., p. 501. Holland of North Carolina re-affirmed
this statement in all its essential parts.
320
STATE SOVEREIGNTY AND SLAVERY.
1
and the property" of the slaveholders, as if they were
themselves slaveholders, increased; then the importation.
of slaves was not needed in order to quickly make
the Union a slavocratic republic in the full sense of the
word; then there was no need of buying a single
negro more in Africa, for the time must surely come
when men would be declared crazy if they did not repeat
the words which Sedgwick of Massachusetts (!) had used
as early as 1795: "To propose an abolition of slavery in
this country would be the height of madness. Here the
slaves are, and here they must remain;" and then the law
which threatened the importer of slaves with death
must become a mockery. Early had accompanied the
statements already quoted with the noteworthy commen-
tary that in the south "thinking men feared in the distant
future evil, unmeasurable evil, from slavery." The hope-
lessness of seeing the penalty fully enforced, and unques-
tionably in great part also the conviction expressed by
Lloyd that the punishment was out of proportion to the
crime, left the advocates of the death penalty in a minority
of ten votes.³ Other causes also may have contributed to
their downfall. The Union would have pronounced a
peculiar judgment upon itself if it had now punished the
importation of slaves with death after it had in its funda-
mental law expressly forbidden congress to prohibit, dur-
ing twenty years, their importation. The bill in its final
form condemned the importer of slaves to an imprison-
ment of not less than five and not more than ten years and
a fine of not less than $1,000 and not more than $10,000.
Yet this measure of punishment did not especially har-
monize with the confident expectation that the slave states
would sell the forfeited negroes, to the advantage of their
¹ Deb. of Congress, II., p. 438.
2 Ibid, I., p. 559.
3 Ibid, III., p. 502.
INTERIOR SLAVE TRADE..
321
treasuries.¹ And it scarcely harmonized with the permis-
sion to carry on the slave trade within the Union as
before.2
¹ See Goodell, Slavery and Anti-slavery, pp. 261, 262. Attorney-Gen-
eral Wirt said in 1820, in an opinion on this law: "Should they have
been turned loose as free men in the state? The impolicy of such a
course is too palpable to find an advocate in any one who is acquainted
with the condition of the slaveholding states.” Opinions of the At-
torneys General, I., p. 451.
•
2 The senate bill had also forbidden this interior trade. The house
struck out the clause, but the senate refused to agree to the amendment.
A committee of conference then arranged that only the "shipping of
slaves in vessels of less than forty tons, with the intention of selling
them" should be forbidden. Both houses agreed to this. The clause
in the senate bill was evidently within the power of congress, for the
constitution gives it authority "to regulate commerce
among
the several states." (Art. I., Sec. 8, § 3.) It is an interesting fact that
Henry Clay, relying upon the same argument which the Federalists
had used against him and his party in the embargo controversy, declared
it to be inadmissible that the power here spoken of should be deduced
from this clause. In his speech of Feb. 7, 1839, on the abolition peti-
tions, he says: "I deny that the general government has any authority
whatever from the constitution to abolish what is called the slave trade.
The grant in the constitution is of a power of regulation and not
prohibition." (Clay, Speeches, II., p. 407.) Chief-justice Taney says
in Groves vs. Slaughter: "In my judgment, the power over this subject
is exclusively with the several states; and each of them has a right to
decide for itself whether it will or will not allow persons of this descrip-
tion to be brought within its limits from another state, either for sale or
for any other purpose; and also to prescribe the manner and mode in
which they may be introduced and to determine their condition and
treatment within their respective territories; and the action of several
states upon this subject cannot be controlled by congress, either by vir-
tue of its power to regulate commerce or by virtue of any other power
conferred by the constitution of the United States." (Peters, Rep., XV.,
p. 508; Curtis, XIV., p. 148.) This is not, however, the judgment of the
court, but only Taney's personal judgment. The striking out of the
clause from the senate bill must unquestionably be considered as an in-
direct sanction of slavery by congress. But the bill as it was finally
agreed upon and signed by the president, that is, the law, contained a
very direct sanction, since it “authorized" the slave trade under certain
conditions. Section 9 provides that the captain of a ship of over forty
tons, who has negroes and mulattos on board, "shall, previous to the
21
322
STATE SOVEREIGNTY AND SLAVERY.
From a political point of view, another side of the slav-
ery question, which had already been a subject of debate
for some years, but had hitherto attracted comparatively
little attention, was infinitely more important than the
methods of punishing importers of slaves. Mason's decla-
ration in the Philadelphia convention that the west was
beginning to wish for slaves, in order to cultivate its bound-
less stretches of land, had found its justification. Since
1802, the territory of Indiana had been working upon con-
gress to induce it to suspend for a term of years the pro-
hibition imposed by the ordinance of 1787. At first the
request was unconditionally rejected. Later, however, it
was favorably reported upon by different committees of
both houses of congress. But it got no farther, before the
opponents of the request gained the upper hand in the ter-
ritory itself. Yet for full five years it remained an open
question, despite the ordinance of 1787, whether the north-
west would be saved to free labor.¹ 1
As early as 1798, the question had been decided in favor
of slavery for the Mississippi territory. In March of that
year, the house of representatives took under consideration
the organization of the territorial government. It had
been moved that the ordinance of 1787 should be allowed
to come into force there also, with the single exception of
the prohibition of slavery. Thatcher of Massachusetts, the
most determined champion of freedom on every occasion,
wished to strike out this excepting clause. He, as well as
Gallatin, expressly claimed for congress the power of for-
2
departure of such ship or vessel, make out and subscribe duplicate man-
ifests of every such negro, mulatto or person of color
deliver such manifests to the collector of the port
the said collector or surveyor shall certify
•
and shall
whereupon
with a permit
and authorizing him to proceed to the port of his destination."
}
•
Compare Deb. of Congress, III., pp. 383, 406, 503, 519, 550, 551. For
the later attempts to introduce slavery into Illinois, see Ford, History of
Illinois, p. 50, seq.
2 Deb. of Congress, II., p. 221
MISSISSIPPI ABANDONED TO SLAVERY
2
323
bidding slavery in all the territories. Not a single voice.
was raised against the justice of this claim, and it was just
as little urged that the conditions on which Georgia had
ceded the territory forbade the exercise of the power in
this especial case. Only reasons of expediency and equity
were made use of against Thatcher's proposition. Nicholas
affirmed that it was not the part of congress to try to make
one part of the Union happier than the other. He said
that the south should not be made to bear the evil of slav-
ery alone, but that the possibility of arriving at a general
emancipation by scattering its slaves over wider stretches
of country should be offered it. Despite the untenable-
ness of these objections, Thatcher's proposition received
only twelve votes.3
These "signs of the times" were not wholly without
effect upon the north. Here and there was a person who
understood how to read them in their full meaning, and
they kept awake in a strong minority the old jealousy and
the old distrust of the south. But only a very few recog-
nized the fact that the slavery question was the pivot about
¹ Deb. of Congress, II., p. 223.
2 For the first time in 1808, Bibb and Troup claimed, on another oc-
casion, that congress did not have the right to alter the conditions ac-
cepted by the earlier congress without the consent of Georgia. (Deb.
of Congress, IV., pp. 42, 44, 46. Compare also p. 324.) Poindexter, a
delegate from the territory of Mississippi, urged in opposition to this:
"It was decided at the last session by both houses that the United States
had a right to rule the territory without the consent of Georgia. The
constitution of the United States says that congress shall have power to
dispose of and make all needful rules and regulations respecting the
territory or other property belonging to the United States.' Can an ar-
gument arising from the exercise of this power supersede the right of
exercising the power expressly delegated by the constitution itself? Cer-
tainly not." (Deb. of Congress, IV., p. 43.) Yet only seven months
later, Poindexter defended the claim made by Bibb and Troup. (Ibid,
IV., p. 141.) This is one of many instances of the way in which not
only arguments but convictions have been "cheap as blackberries"
among distinguished American politicians.
³ Deb. of Congress, II., p. 224.
324
STATE SOVEREIGNTY AND SLAVERY.
1
2
1
which the fate of the Union would revolve for decades.
The prohibition of the importation of slaves completely
lulled to sleep the fears in regard to this, which had occa-
sionally appeared with fitting vigor. Men congratulated
themselves that they were again leading the world on the
way of freedom and true humanity, and then they turned
more indifferently and more thoughtlessly every day from
the real question, for they honestly thought that they had
bound up the arteries of the institution, and that they
might therefore trouble themselves no more about it.¹
Since 1794 one anti-slavery society after another had given
up its activity. And those who worked on indefatigably
henceforth had often to bitterly complain that they no
longer found in the public any sympathy with their efforts.3
For a full decade, slavery could grow in breadth and depth
without any opposition worth speaking of. There was
only a rare mention of it now, either in the press or in the
debates of congress, and then mostly in an indifferent way.
All sorts of questions had to be treated which were in the
closest connection with it and some of which sprang di-
rectly from it, but one had to go back laboriously to their
inception, in order to find out this hidden interconnection.
The slaveholding interest knit mesh after mesh in the net
in which it sought to entangle the Union, but men did not
or would not see this. It was permitted to conceal its real
1 "Owing to this mistaken expectation of the act of 1808 [1807] abol-
ishing the slave trade, the attention of philanthropists was in a great
measure withdrawn from the subject of slavery for ten years or more.”
May, Some Recollections of our Anti-slavery Conflict, p. 6.
2 In 1833, the abolition society of Pennsylvania complained that
"since that time we have seen one after another discontinue its labors
until we were left almost alone." Wilson, I., p. 125, and elsewhere.
Compare Clay, Speeches, II., p. 400.
⁹ In 1809, the same society complained that "hitherto the approving
voice of the community and the liberal interpretation of the laws have
smoothed the path of duty and promoted a satisfactory issue to our hu-
mane exertions. At present, however, the sentiments of our fellow-citi.
zens and the decisions of our courts are less auspicious."
GROWTH OF THE SLAVE TRADE.
325
aims, and even when it scorned to do this, no obstacles were
laid in its way. The embers left by the earlier struggles
seemed glimmering into nothingness. Men covered them
up, but not with ashes,-with materials that kept the fire
down, but made it burn with so much the greater heat.
If the prohibition of the importation of slaves had been
the only or even the main reason of this apathy, the
latter could not have long continued. The slave trade was
a too enticing business to be completely given up, as long
as no examples whatever were made of offenders against
the law which forbade it. Yet the federal government did
nothing to suppress it and the importation therefore quick-
ly assumed greater proportions. Ignorance could not be
pleaded as an excuse, for there were certain magistrates who
kept a watchful eye on the evil and conscientiously in-
formed the administration. But their reports remained
unconsidered.¹ The regular station for slaveships at
Amelia Island was of course finally broken up, but there
was no interference until the evil had become altogether
too great. The lawless folk settled there were engaged,
besides, in smuggling and in mischief of every sort. It
remains therefore an open question, how far their disper-
sion is to be ascribed to the aid which they gave the slave-
holders.2 The prior conduct of the executive as well as of
congress does not favor the view that the main reason of
the interference is to be sought just in this. As early as
1813, the Pennsylvania anti-slavery society had called the
attention of congress to the fact that American ships were
'Jay, Misc, Writ., p. 278, seq., gives a number of verbatim extracts
from such reports.
2 Monroe says, in his message of Dec. 2, 1817: "The island [was] made
a channel for the illicit introduction of slaves from Africa into the Uni-
ted States, an asylum for fugitive slaves from the neighboring states [!]
and a port for smuggling of every kind." States. Man., I., pp. 398, 399.
Compare the message of Jan. 4, 1818; Deb. of Congress, VI., p. 19 and
Niles' Reg., II., p. 93; X., p. 400; XIII., pp. 12, 28, 47, 62, 78, 221, 296;
XIV., p. 100.
326
STATE SOVEREIGNTY AND SLAVERY.
engaged in the slave trade under foreign flags.¹ Congress
referred the memorial to a committee and the slave-traders
went on with their business. By degrees the trade was
pursued with such impudent boldness that wider circles.
began to shake off the lethargy. Anti-slavery petitions
were again presented to congress, and especially after 1818,
in greater numbers than ever. From the midst of the
supreme court of the United States came the complaint
that the crime was not checked, although the president had
been authorized to use ships of war for that purpose.2
Joseph Story, one of the greatest ornaments as a man and
as a judge of the highest court of the Union, repeatedly
exhibited to the grand jury of his circuit, and thereby to
the whole nation, the horrible picture of facts which lay
behind the veil of the stringent penal law. In congress
itself, it was not denied that there was cause for the com-
plaints. Southern members estimated the number of ne-
groes smuggled into the country every year at from
thirteen thousand to fifteen thousand. But in the same
year the registrar of the treasury officially informed con-
gress that the records of the department did not show a
3
¹ Deb. of Congress, IV., pp. 7, 14. See also Niles' Reg., V., p. 334.
Since Spain and Portugal still allowed the slave trade, the flags of these
two powers were especially used.
2 Law of March 3, 1819. Stat. at L., III., p. 532.
3 In one of these warnings (1819) it is declared: "We have but too
many melancholy proofs from unquestionable sources, that it [the slave
trade] is still carried on with all the implacable ferocity and insatiable
rapacity of former times. Avarice has grown more subtle in its eva-
sions; it watches and seizes its prey with an appetite quickened rather
than suppressed by its guilty vigils. American citizens are steeped up
to their very mouths (I scarcely use too bold a figure) in this stream of
iniquity. They throng to the coasts of Africa, under the stained flags of
Spain and Portugal, sometimes selling abroad their cargoes of despair'
and sometimes bringing them into some of our southern ports, and
there, under the forms of the law, defeating the purposes of the law it-
self, and legalizing their inhuman, but profitable, adventures. I wish I
could say that New England and New England men were free from
this deep pollution." Life and Letters of J. Story, I., p. 340.
THE SLAVE TRADE IS DECLARED PIRACY.
327
single forfeiture under the law of 1807.¹ In view of these
facts, the assertion that the federal government honestly
and to the full extent of its power tried to enforce the law,
is laughable. As long as it was unwilling to do so, each
added vigor of the penal laws only served still more to
throw dust in the eyes of the nation and of the world in
regard to the true state of things. If the suspicion that
the federal government willfully did this was not justified,
it was nevertheless near the truth.
In the tenth article of the treaty of Ghent, England and
the United States pledged themselves to their "best en-
deavors" to bring about the "entire abolition" of the slave
trade, because it was "irreconcilable with the principles of
humanity and justice." Taking this article as a basis,
senator Burrill of Rhode Island moved, in January, 1818,
the appointment of a committee for the consideration of
the question whether it was advisable to enter into treaties.
with other powers in order to attain this end. The mo-
tion was adopted by a majority of one.³ But the minority,
which made great use of Washington's warning against
"entangling alliances," finally carried its point. The
advances of England in the following year received no at-
tention. Congress gave satisfaction to public opinion and
its own conscience, when, about a year later, it declared
the slave trade to be piracy. How far the enforcement of
Jay, Misc. Writ., p. 281.
2 Stat. at Large, VIII., p. 223.
³ See the debate in Deb. of Congress, VI., pp. 11–19.
* Law of May 15, 1820. Stat. at L., III., p. 600. Magrath, United
States judge for the district of South Carolina, decided, in The United
States vs. Corrie, that only the individual crimes enumerated in the law
were piracy, and that the slave trade was not. Kent's Comm., I., p.
196. When England, in 1823, again entered into negotiations, the Uni-
ted States made it a condition of united effort, that the slave trade should
be declared piracy by international law. It is possible to be of the
opinion that too much was asked for the sake of obtaining nothing, for,
according to the English law, the slave trade was not piracy. Yet par-
328
STATE SOVEREIGNTY AND SLAVERY.
:
this law was to be expected could be inferred from the fact
that courts,' congress,2 and presidents had refrained from
enforcing the earlier and milder law whenever the oppor-
tunity of making an example under it was offered them.
The zeal with which congress continued to increase the
severity of the laws against the slave trade from 1807 on,
was connected with another question, which contributed
greatly to the strengthening of the slaveholding influence.
If, in earlier times, the further importation of slaves had
been contrary to the interest of northern slave states, this
was now still more the case. This fact alone preserved
their representatives from the accusation that they were
playing parts in a treacherous comedy by voting for the
liament passed an act to that effect, and a treaty signed at London,
March 13, 1824, was sent to Washington for ratification. The senate,
after long delays, and only when urged by the president, decided the
question, but first mutilated the treaty to such an extent that it was made
entirely worthless. England rejected it in this form, but did not cease
from her efforts until Henry Clay, at that time secretary of state, ex-
pressed the opinion that it "appears unnecessary and impolitic to con-
tinue the negotiations."
¹The collector of Mobile advised the secretary of the treasury, No-
vember 15, 1818, that three slave ships had been seized, "but this was
owing rather to accident than any well-timed arrangement to prevent
the trade." And in a later letter, he says: "The grand jury found true
bills against the owners of the vessels, masters and supercargos, all of
whom have been discharged, why or wherefore I cannot say, except that
it could not be for want of proof against them." Jay, Misc. Writ.,
p. 281.
2 In April, 1820, the house of representatives released to three persons
the fine imposed on them for importing slaves, so far as the United States
were competent to do so under the laws. The pretense for this was that
these were house servants, and the violators of the law had been assured
upon inquiry of an American consul that such slaves could be im-
ported. Deb. of Congress, VI., pp. 573, 574.
3
A slave trader by the name of Lacoste was condemned in Boston in
1820 to three years imprisonment and three thousand dollars fine.
Monroe gave him a full pardon at the beginning of 1822, although the
slave trade had in the meantime been declared to be piracy. Niles'
Reg., XXII., p. 114.
+
THE COLONIZATION SOCIETY.
2
329
laws supplementing the act of 1807. But the consider-
ations brought forward at that time against the imposition
of the death penalty would now have had still greater
weight with them, if they had not had reason just at this
moment to act as if they had resolved in sober earnest to
take some thorough steps towards a radical and comprehen-
sive struggle against the evil. In January, 1817, Randolph
laid before the house of representatives a petition of the
"colonization society," founded at Washington, December
28, 1816,¹ which asked congress to aid its plan for coloniz-
ing free negroes in some part of Africa. The plan of
organizing such a society had originated in Virginia, and
its first beginnings dated back to the time of the revolu-
tion. Early in the 19th century, it began by degrees to
obtain a more fixed form.3 The cause of this was the
growing fear of slave insurrections which might be excited
by free negroes. A considerate reception had already been
assured to the petition by the fact that a number of the
first men of the slave states were among the founders of
the society, and the legislature of Virginia had passed,
a short time before, a formal resolution, with the same object
in view. In the house of representatives the request was
referred at the suggestion of Randolph to a committee, which
submitted a report February 11. The committee did not
5
¹ Niles' Reg., XI., p. 296.
2 Ibid, XI., p. 355.
³ See Jefferson's Works, IV., pp. 419–422, 442–444; V., pp. 563–565.
* Such fears had been entertained even before the close of the 18th
century. See Gibbs, Mem. of Wol., I., pp. 482, 486, 496; Jeff., Works,
IV., pp. 196, 422. Randolph said in a speech of Dec. 10, 1811: "Within
the last ten years, repeated alarms of insurrection among the slaves;
some of them awful indeed.
I speak from facts when I say that
the night-bell never tolls for fire in Richmond that the mother does not
hug the infant more closely to her bosom." Garland, Life of J. Ran-
dolph, I., pp. 294, 295.
5 Bushrod Washington, Henry Clay, John Randolph, R. Wright, etc.
Niles' Reg., XI., p. 275.
'The report is printed in Niles' Reg., XII., p. 103.
330
STATE SOVEREIGNTY AND SLAVERY.
consider it proper that the house should at once pass final
resolutions, but recommended that the president should be
authorized" to consult and negotiate" with all foreign pow-
ers for the "entire and immediate abolition of the traffic in
slaves; and also to enter into a convention with the govern-
ment of Great Britain for receiving into the colony of Sierra
Leone such of the free people of color of the United States
as, with their own consent, shall be carried thither." This
double recommendation met with the full approval of the
colonization society. Yet the house came to no definite
conclusion. At the next session the question again came
under consideration. By a law of March 3, 1819, against
the slave trade, the president was empowered to issue the
necessary orders for transporting illegally imported negroes
back to Africa. This decision was recognized as an ap-
proval of the colonization plan, and was therefore very
helpful to the society. Besides this, the latter got a con-
siderable money subsidy from the treasury of the Union,
for Monroe, who had been in favor of the plan since the
beginning of the century, construed the law just mentioned
in a way that was more than liberal. The government was
far removed from making the cause of the society its own,
but it showed such an interest in it that the propagandisın
among northern philanthropists was thereby powerfully
aided.
2
Both the petition of the society, in which it explained its
aims, and its constitution were framed in the most discreet
way. It did not pretend to labor for the abolition of slav-
ery. The press emphatically declared that such an aim
would be wholly foreign to it, even in the most distant fu-
ture. The only notice taken of the slaves in the petition
3
¹ See its address, Niles' Reg., XVI., p. 65.
2 Stat. at Large, III., p. 533.
"It is scarcely necessary to add that all connection of this proposi
tion with the emancipation of slaves, present or future, is explicitly
disclaimed." Niles' Reg., XI., p. 296.
FAILURE OF COLONIZATION.
331
was to argue that emancipation was hindered by the in-
crease in the number of free negroes then resident in the
country. But "humanity" was rung in with such dexter-
ity, in the statement of the motives and views of the orig-
inators of the plan, that the north was actually of the
opinion that here a way had been found by which the na-
tion could gradually rid itself of slavery. It was thought
that the process would be in this wise: By the departure
of the free negroes, the weightiest objections of humane
slaveholders against freeing their slaves would be removed,
and emancipation and the transportation of the emanci-
pated would thenceforth keep pace with one another until
the United States would be completely rid of their colored
population. But in this reckoning no account whatever
was taken of the true disposition of the slaveholders.
Even Jefferson now began to doubt the illusions concern-
ing slavery, which he had all his life entertained."
under all circumstances, the plan would have been an ab-
surdity. This was so plain that even from the first instant
there were persons who gave the proof of it in suber facts
and figures. The number of slaves was already much
more than a million. Even if all the emancipated ones
would consent to be transported, and if as many slaves
were freed every year as could be transported and colon-
ized, yet the growth of the slaves through natural increase
must constantly far exceed their decrease by colonization.*
2
'Jeff., Works, VII., p. 58.
3
2 See the article in Niles' Reg., XIII., pp. 82, 177.
But
³ It had been expressly guarantied that their voluntary consent should
be obtained.
4 Up to the eighteenth year of the existence of the society (Jan. 1,
1835) eight hundred and nine emancipated slaves had been taken to
Africa, a number which equals the natural growth of the slave popula-
tion in five and a half days. (Jay, Misc. Writ., p. 80.) It is easy to see
from this what would have been accomplished in the course of the “cen-
tury” within which the society promised to rid the country of all its
negroes. African Repository, I., p. 217; IV., p. 344; and elsewhere.
332
STATE SOVEREIGNTY AND SLAVERY.
But figures prove nothing to a man who will not be con-
vinced. A more kindly and humane way to get rid of the
terrible evil could not be easily devised, and therefore men
believed in the possibility of the plan.
The slave states in which the project originated indulged
in no illusions. They knew exactly what they wished and
laughed in their sleeve at seeing the philanthropists of the
north fall so readily into the trap.¹ A bait thrown out by
the founders of the society was the gaining of Africa to
the Christian religion and western civilization by means of.
the settlement of the negroes there. But yet they seized
every opportunity to brand free colored persons as the ref-
use of the population, whose departure could not be too
dearly bought by any sacrifice. At the same time, the
colonization society protested that its object was not in any
sense the elevation of free persons of color.3 What its
"humanity" was, is clearly shown by this, and its true
aims, too, could be inferred from this without difficulty.
Moreover, it made no secret of them. Randolph had de-
2
It is certain that there were victims among the victimizers. The
brutal energy with which the "voluntary consent" of the free negroes
to their transportation was wrung from them is proof of this. See, on
this point, Jay, Misc. Writ., pp. 50–58. A Florida slaveholder wrote in
a book entitled A Treatise on the Patriarchal System of Society: “Col-
onization in Africa has been proposed to the free colored people, to for
ward which, a general system of persecution against them, upheld from
the pulpit, has been legalized throughout the southern states.”
·
2 On one page of a speech delivered by Henry Clay, in 1827, are the
following sentences: "They will carry back to their native soil the rich
fruits of religion, civilization, law and liberty. . . Of all classes of
our population, the most vicious is that of the free colored. Every
emigrant to Africa is a missionary carrying with him credentials in the
holy cause of civilization, religion and free institutions." (Speeches,
I., p. 282.) This is an example of the logic of slavocratic Democrats.
See Wilson, The Rise and Fall of the Slave Power in America, I., p.
213; Jay, Misc. Writ., pp. 22-24.
3 The society said, in one of its addresses: "The moral, intellectual
and political improvement of free people of color within the United
States are objects foreign to the power of the society."
3
COLONIZATION AS AN AID TO SLAVERY.
333
clared, in the first meeting for the organization of the
society, that it "must tend essentially to make slave prop-
erty safe."
With every year, not only did this show itself
more plainly, but it was also roundly stated that the so-
ciety's true aim was in fact the purification of the land
from the pest of the free colored population in order to give
increased security to slavery. The time came when men
of the north who could not entertain the idea of a com-
promise between slavery and freedom, laid the hypocrisy and
falsehood of the colonization plan so naked in the light
of day that it could scarcely claim the dignity of a farcical
interlude in the terrible tragedy, which hastened with giant
steps towards its issue. But for a long time the upright
philanthropists and friends of freedom in the north were
lured on false paths. It was this and not the number-
scarcely worth mentioning-of free negroes who were taken
over to Africa, which made the colonization swindle of
such priceless worth to the slavocracy. Such a piece of
Don Quixoterie has never been indulged in, in more bitter
earnest, and especially by such men. It would not have
been possible if political thought had not already begun
severely to feel the baleful influence of slavery.
While law after law was passed against the African
slave trade, and no words could be found which condemned
it sharply enough, the interior slave trade constantly as-
1
¹ Clay denied this, but in the same speech he said: "Any project . .
by which, in a material degree, the dangerous element in the general
mass can be diminished or rendered stationary, deserves deliberate con-
sideration," and "the execution of its [the society's] scheme would aug-
ment instead of diminishing the value of the property [that is, the
slaves] left behind." Speeches, I., pp. 275, 283. Webster himself said
in his notorious speech of March 7, 1850: "If Virginia and the south
see fit to adopt any proposition to relieve themselves from the free peo-
ple of color among them, or such as may be made free, they have my
full consent that the government shall pay them any sum out of the pro-
ceeds of that cession [the western territory] which may be adequate to
the purpose." Webster, Works, V., p. 364.
334
STATE SOVEREIGNTY AND SLAVERY.
be seen.
sumed greater dimensions and a more shocking form.
And a centre of this trade was the capital of the country.
Not in the darkness of night and against the law did the
traders conduct their business. They paid out their blood-
money for permission to carry on their trade; the papers
were filled with their advertisements; and from the win-
dows of the capital long trains of fettered slaves on their
way to the sugar and cotton plantations of the south could
And behind those windows the white men of
the republic spoke oracularly of the rights of man and of
freedom. The scene was so disgraceful that a Virginian-a
slaveholder, whose body quivered with rage when he thought
he saw the slightest attempt to infringe upon the "rights"
of the slaveholders--held up the shame before the eyes of
congress in words of thunder. John Randolph's long
finger, the terror of all the little and sinful spirits in the
house of representatives, was pointed, not at a single vic-
tim, but at all congress, and it might have been thought
that he wished to let his shrill voice scream his words into
the conscience of the whole country when, on March 1,
1816, he moved, after a scathing philippic, the appoint-
ment of a committee which should inquire whether "the
inhuman and illegal traffic in slaves" was carried on in
the district, and report whether any, and if so, what means
could be used to put a stop to it. No one ventured to
refuse the demand. Randolph himself was named chair-
man of the committee. His report contained a crowd of
facts which justified only too fully his complaints; but he
submitted no resolution, and the whole thing, like all
earlier complaints against slavery, was simply placed upon
1
¹ Deb. of Congress. V., p. 609. This haughtiest of the slave-barons,
who declared that he "would never weaken the form of the contract be-
tween the owner and the slave," asserted: "It is not necessary that we
should have, here in the very streets of our new metropolis, a depot for
this nefarious traffic, in comparison with which the traffic from Africa
to Charleston or Jamaica was mercy-was virtue."
FEDERAL RECOGNITION OF SLAVERY.
335
record. The tragic comedy was the richer for one scene,
and that by no means the worst.
When it was to the interest of the slaveholders to take
an active part, men were not satisfied with fruitless resolu-
tions. In the first article of the treaty of Ghent, slaves
were enumerated among the things which were to be re-
stored. During the fulfillment of the treaty a strife arose
over the question whether only the slaves found in the
places occupied by the English, or also those who had fled
to their ships or their armies, were to be understood as
comprised under this provision. The Americans claimed
all these slaves, while the English would deliver up only
the first-named class. Negotiations on this point were
carried on for twelve years. By its incomparable tenacity
the American government wrung from three conventions
a decision, the final result of which was the payment of
$1,204,000. The owners of the escaped slaves made a
good profit out of this. After they had received the
settled average value of the runaways, with twelve years' in-
terest, there still remained a surplus, which was also
shared among them. It is not easy to see how the federal
government could more clearly recognize the slaves as
property which, like all other property, must be protected
by the whole power of the Union. But yet the old prin-
ciple that slavery was only a municipal institution, of
which the Union, as such, knew nothing, was adhered to.
A long time before this matter was settled the govern-
ment had employed the armed power of the Union in
Florida in the interest of the slaveholders. The aboli-
tionists afterwards often asserted in their zeal that the
contests of many years' duration which were here fought
were only a slave-hunt, and that the final acquisition of
the territory was only for the sake of increasing the do-
mains of slavery. The assertion is as little justified in
this case as in that of Louisiana. From the beginning of
the century the United States had eyed the Floridas with
336
STATE SOVEREIGNTY AND SLAVERY.
In
a longing due to political and very cogent reasons.
consequence of the violation of rights guarantied to the
United States in New Orleans the house of representatives
appointed a committee in 1803 to prepare a report on the
propriety and possibility of annexing Florida. This com-
mittee came to the conclusion that "New Orleans and
the Floridas must become a part of the United States,
either by purchase or by conquest."" This report was fol-
lowed by no practical result, until, on account of European
troubles, Spanish embarrassments offered a favorable op-
portunity therefor. A resolution and act of Jan. 15, 1811,
empowered the president "under certain contingencies"
and "with a due regard to the safety" of the United States,
to take "temporary" possession of the territory east of
Perdido and south of Georgia.2 In accordance with this
act, Madison had West Florida occupied. His secretary
of state, Monroe, in response to the "solemn protest" of
the English ambassador against this step, justified it by
asserting that West Florida belonged to the Louisiana
territory ceded by France, but at the same time took the
ground that the demands for indemnification which the
United States had against Spain were a sufficient justifica-
tion of the occupation. These claims had to serve, after-
wards, as a justification for the attack upon East Florida.
In the following year the territory as far as Pearl river
was formally united with Louisiana, and that from Pearl
river to Perdido with the Mississippi territory. The
house of representatives wished to also authorize the presi-
dent to take possession of East Florida, but the senate
rejected the bill on account of the critical condition of
the country. During the war with England Mobile also
fell into the hands of the Americans, and the possession
¹ Niles' Reg., III., p. 52.
3
2 Statutes at Large, III., p. 471.
* See the correspondence in Niles' Reg., I, pp. 187-189.
Niles' Reg., I., pp. 189, 190.
4
THE SEMINOLE WAR.
337
of West Florida was thereby completely assured to them;
but, on the other hand, they had to evacuate East Florida.
All these steps, as well as the temporary occupation of
Pensacola by Jackson, had no connection whatever with
the slavery question. The latter was considered for a long
time only as an interest pertaining peculiarly to Georgia
and scarcely worth notice. And it was not until after the
end of the war that it was brought into prominence by a
curious occurrence.
91
In November, 1812, a committee of the legislature of
Georgia expressed its views very freely concerning the
action of the federal senate in refusing its approval to the
bill of the house of representatives, which authorized the
president to occupy East Florida. The committee consid-
ered this policy "inexplicable" and "subversive of the
safety and tranquillity of this section of the United States."
These words contained the clue to the peculiar interest
which Georgia had in the question. For a long time, the
fugitive slaves of Georgia found an asylum among the In-
dians of Florida. This "evil" was so severely felt that the
state was constantly urging upon the federal government,
that it should redress it by acquiring the territory. The
complaints were not without effect. Secretary of war
Crawford ordered general Jackson, March 15, 1816, to no-
tify the commandant at Pensacola of the fact that a fort
which had been built at Appalachicola, during the war, by
the Englishman Nichols, was occupied by Indians and
negroes, who enticed slaves to flee from the territory of the
United States. If the commandant refused to interfere,
then the fort was to be seized, provided this could be done
without the authorization of congress. Before the com-
mand reached Jackson, he had already, on his own responsi-
bility, sent general Gaines against the fort, with the orders
"to advise the governor of Pensacola of your [his] inroad
¹ Niles' Reg., III., p. 259.
22
338
STATE SOVEREIGNTY AND SLAVERY.
into the territory, and with its expressed object, to destroy
these lawless banditti." Gaines charged colonel Clinch
with the execution of the command. The latter took some
gunboats with him. During the bombardment, which was
preceded, as Clinch affirmed in his dispatches, by an attack
from the negroes, a red-hot ball flew into the powder mag-
azine. Of the three hundred negroes and about twenty
Indians, who, according to the official report, were in the
fort, two hundred and seventy were instantly killed by the
explosion, and the rest were mortally wounded.' This
"heroic deed," which was rewarded by congress in 1818,
upon the motion of Pleasant of Virginia, with a grant of
$5,465, was the beginning of the Seminole war, which cost
the United States millions on millions and perhaps sur-
passed all other Indian wars in ferocity. And the object
of the campaign which ended in this heroic deed was, ac-
cording to the official records, the destruction of the refuge
of fugitive slaves and the return of the fugitives to their
rightful owners. The troops of the Union were degraded
into slave-hunters; the victor of New Orleans and the fu-
ture president of the republic had stooped to this; and
congress crowned the glorious transaction by voting a re-
ward. In the heated debates which the Seminole war
excited, men shunned going back to its first cause, although
the hunt for slaves continued to play a leading part in it.
Only one Pennsylvanian betrayed, in an unguarded moment,
how deeply slavery was entangled in the struggle, and he
defended the man-hunting. For the rest, men quarreled
over the question whether the war had been begun by the
Indians, or whether the latter had first had reason to com-
plain of the injustice of the whites.
2
¹ The records of these occurrences are in the fourth volume of the
State Papers, XIX. Cong., 2d Sess. An interesting report is to be found
in Niles, XI., p. 37.
² Baldwin, Deb. of Congress, VI., p. 322.
THE THIRTY YEARS' WAR.
339
So the last of the long series of games which had been
played during the first thirty years of the Union under
the new constitution, on the white and black chess-board
of free labor and slavery, was of a bloody character. The
stakes had been high enough, and the north had lost them
all. Even for its half-victory in the question of slave im-
portation, it had to thank its league with the northern
slave states. It would have been contrary to human nature
if the south had not, after these successes, played the game.
with doubled assurance, and, where possible, for doubled
stakes. The stake and the hardihood of the play increased
in the same ratio, as slavery swallowed up in the south
all other interests and came to be the one interest on which
all others were dependent.
¹ I call it the last, because it had the most widespread influence in
the following period.
340
STATE SOVEREIGNTY AND SLAVERY.
CHAPTER IX.
THE ECONOMIC CONTRAST BETWEEN THE FREE AND SLAVE
STATES. THE MISSOURI COMPROMISE.
From the instant that slavery was brought into connec-
tion with the constitution, the south had shown a feverish
irritation as soon as the "peculiar institution" was made a
theme of discussion in any way whatever. A great part
of the questions it called forth had been settled only after
long and heated struggles. And during these struggles
many a word had fallen on both sides which lifted with
terrible certainty the veil of the future. But yet all the
contests over the slavery question, with the exception of
the debates in the Philadelphia convention, had been, so to
speak, mere incidents. They constituted only one element
of the regular political order of the day. "South" and
"North," spoken in tones pregnant with meaning, soon
became among the most frequent expressions of politicians.
But "slaveholding" and "free" states had not yet become
political catch-words. When they had become such, and
when they became, as they did every day, more and more
the keynote in all debates, fractional parties were formed on
both sides, but especially in the north, which, appealing to
the olden time, protested against this with increasing vio-
lence. Even since the end of the civil war, thick books have
been written to prove that the slaveholding and free states
might have peaceably got along with one another till the end
of time, if on this side and that, political short-sightedness,
fanaticism, and demagogism had not awakened discord and
artfully kept it alive. The whole history of the Union since
1787 so clearly contradicts this view that it can be attrib-
AN ECONOMIC CONTRAST.
341
uted only to moral enervation. Luther and his opponents
could have more easily remained true to their argument,
and by keeping silent, have set a limit to the reformation
already begun, than the contest in the United States be-
tween the free and the slaveholding states could be kept,
by simply not noticing it, from growing more violent every
day until it finally culminated in an incurable breach.
Even if this mutual opposition had been only a moral and
political one, there was no possibility of mediation or rec-
onciliation between them because it was a question of prin-
ciple. But, besides this, it was also of an industrial nature
and was therefore of greater signification, since it nec-
essarily influenced practical politics earlier and more
directly.
Free labor, with unlimited competition, makes the high-
est development and the highest employment of individual
power the formative principle of the collective life of a
nation. On the contrary, the only means of industrial ad-
vancement with slave labor is the increase of the weight of
the dead mass. The essence of free labor is intensity; the
condition of existence for a slavocracy competing with free
labor is boundless expansion.¹ Moreover and above all, in
the United States, expansion was offered to the free north
1 During the last five years before the outbreak of the civil war, the
leading statesmen of the south not only admitted this, but used it as an
argument for the justice of their new demands. Robert Toombs de-
clared, Jan. 24, 1856, in a speech at Boston: "Expansion is as necessary
to the increased comforts of the slave as to the prosperity of the master.”
But Barringer of North Carolina laid the most open statement before
the peace convention of 1861. He said: "In my opinion you will
never get back the seceded states, without you give them some hope of
the acquisition of future territory. They know that when slavery is
gathered into a cul de sac, and surrounded by a wall of free states, it is
destroyed. Slavery must have expansion. It must expand by the ac-
quisition of territory which now we do not own. The seceded states
will never yield this point-will never come back to a government
which gives no chance for the expansion of their principal institution."
Chittenden's Report, p. 340.
342
STATE SOVEREIGNTY AND SLAVERY.
in a high degree, and intensity of labor could therefore
come into play only upon one side, and that the quantita-
tive one. The final result in the struggle between the
opposing industrial principles would not, however, be there-
by changed.
The industrial development of the slave states soon fell
far behind that of the north, because this development on
account of slavery continued to be thoroughly one-sided.
The south remained essentially limited to agriculture, and
this could be carried on only on a large scale, while the
condition precedent of intense agricultural industry is the
predominance of the small and middle-sized farm. But
slavery has an invincible tendency in favor of planta-
tion industry, which suppresses or swallows small farms.¹
1
1
According to the census of 1850 (Compend., p. 170), in the southwest
the average size of landed properties, including the farms and the so-
called “patches” of the cottagers who owned a few slaves, was two hun-
dred and seventy-three acres. Cotton plantations were seldom less than
four hundred acres. According to De Bow, the first class of slavehold-
ers, those owning from fifty slaves up, altogether numbered in all the
slave states only seven thousand nine hundred and twenty-nine. The
majority of the cotton planters, who owned from ten to twenty-five slaves,
lived, according to Olmstead, in great indigence (The Cotton Kingdom,
I., p. 18. Compare also, II., p. 233). De Bow-an authority who can-
not well be doubted when the misfortunes of the slave states are the
subject of discussion-writes: "But what would be his [the hearer's]
surprise, when told that so far from living in palaces, many of these
[cotton] planters dwell in habitations of the most primitive construc-
tion, and these so inartificially built as to be incapable of defending the
inmates from the winds and rains of heaven; that instead of any artis-
tical improvement, this rude dwelling was surrounded by cotton-fields,
or probably by fields exhausted, washed into gullies and abandoned."
Resources of the South and West, II., p. 113. The same authority
writes: "I am satisfied that the non-slaveholders far outnumber the
slaveholders, perhaps by three to one. In the more southern portion of
this region [the southwest], the non-slaveholders possess generally but
very small means, and the land which they possess is almost universal-
ly poor, and so sterile that a scanty subsistence is all that can be derived
from its cultivation, and the more fertile soil, being in the hands of the
slaveholders, must ever remain out of the power of those who have
none." II., p. 106.
SOUTHERN SOCIETY.
343
The great planter gave the tone to industrial life. He
abandoned himself, in great part, to the finer enjoyments
of life, leaving the control of the plantation to the overseer,
who, as a rule, paid attention only to the greatness of the
crop, since this was usually looked upon as a measure of
his capacity and served also as the measure of his remuner-
ation. In most cases the soil was systematically exhausted.
The surplus yield was laid out when necessary in new
lands, but especially in new slaves; for wealth was esti-
mated according to the number of slaves, and social posi-
tion depended, in certain respects, upon this also. The
price of slaves rose more quickly than their value. He
who had fewest slaves suffered most on this account, as
well as from the lack of means of exchange. His labor
power was only sufficient to wring from the ground what
was needed for the acquisition of the barest necessaries.
There was no spur to emulation, for the great planter stood
too far above him, and a moderate advance brought with it
no increase of the enjoyments of life which could exercise
a marked influence upon him. If he was especially indus-
trious, and if fortune smiled upon him, he aped the large
planter and like him devoted his savings to the purchase
of new slaves. Production was increased without any in-
crease in comfort. What was considered as the growth of
wealth was really, in great part, only an increase of the
laboring population, together with an increasing destruc-
tion of capital. The south lived almost exclusively by
agriculture, and with every decade the price of land fell
farther behind its price in the north, a country much less
richly endowed by nature.¹
According to the census of 1850 the average price of an acre in
Virginia was $8, and in Pennsylvania, her next-door neighbor, $25.
The same remarkable difference in price appeared in the slave states
themselves, where, in different sections, the proportion between the
slaves and the free population was notably different. Thus Olmstead
found that the price of an acre in the northwestern portions of Virginia,
344
STATE SOVEREIGNTY AND SLAVERY.
And recompense for this in other branches of industry
was utterly lacking. Manufacturing on a great scale
found no footing in the peculiarly slave states, and could
find none.¹ The capital of the section was monopolized
by agriculture. Manufacturing industry did not accord
with the longing for aristocratic leisure which must char-
acterize the free population in a community which owes its
specific industrial character to slave labor. The natural
resources of the section had to offer quite extraordinary
advantages to foreign capital before the latter would ven-
ture to try to overcome the difficulties which an industrial
system founded on slavery laid in the way of every great
industrial undertaking. Skilled labor was more difficult
to get there than anywhere else. The slaves could not be
trained to it. Since they did not enjoy the fruits of their
labor they labored only under the impulse of fear.
constant conscientious watchfulness which is the first
requisite for a successful factory-hand could not be got
under the lash. There was, indeed, no lack of free work-
men, but in every respect they were far behind the work-
men of the free states. The demoralizing influence of
the scorn entertained for labor showed itself especially up-
The
where the proportion was 1: 15, was above $7.75, and in the other coun
ties, where the proportion was 1: 2 2-10, was only $4.50. The Cotton
Kingdom, I., p. 114.
¹ Other conditions being the same, the manufacture of a raw material
will always be carried on in the neighborhood where the material is
produced. The tendency of both sections to the development of manu-
factures can best be compared in the case of the cotton manufacture.
According to the report submitted June 30, 1855, by R. C. Morgan and
A. Shannon to the secretary of the treasury, this represented, in 1820, in
the slave states, a value of $885,608, and in the free states of $4,048,549;
in 1860 it had reached in the slave states $9,367, 331, and in the free
states $52,501,853. All the manufactures of the south represented, in
1850, the value of $93,362,202, and those of the north $347,748,612.
Kettell, Southern Wealth and Northern Profits, p. 55. The number of
persons engaged in manufacturing was, according to the census of 1850,
in the slave states 151,944, and in the free states 807,125.
LABOR AND POPULATION.
345
on them. Moreover, the independent artisan, whose work
forms the natural basis of a healthy general industry,
had only a precarious existence in the slave states. The
possibility and necessity of a division of labor stand in a
certain relation to the density of population.¹ It was there-
¹ At the end of the revolutionary war the population of the southern
states was about 1,600,000 souls. Their area was 128,000,000 acres.
There were therefore about eighty acres per head. By 1860 the popula-
tion of the slave states had increased to 12,000,000, and their territory
embraced nearly 540,000,000 acres, about forty-five acres per head.
While the population had increased in the proportion of 1: 7.5, the area
of slavery had been extended in the proportion of 1: 4.5. Carey (The
Slave Trade, Domestic and Foreign, p. 99, seq.) gives a series of author-
ities from the slave states in support of the fact that in those states the
ground was rapidly used up, and soon completely exhausted, so that the
population either grew poor or had to exchange their old abandoned
homes for new stretches of virgin soil. He then says (p. 102): "When
they [men] separate from each other the greater is the tendency
to a decline in the value of land, the less is the value of labor, and the
less freedom of man. Such being the case, if we desire to ascertain
the ultimate cause of the existence of the domestic slave trade, it would
seem to be necessary only to ascertain the cause of the exhaustion of
the land." This cause is commonly and quite wrongly, he says, sought
in slavery; for in the northern states " exactly the same exhaustion" [?]
of the soil takes place. It is not slavery that produces exhaustion of
the soil, but exhaustion of the soil that causes slavery to continue"
(p. 105). He then estimates the products of the slave states in 1850
at $300,000,000 and those of the free states at $1,250,000,000, and con-
tinues: "The difference is caused by the fact that at the north artisans
have placed themselves near to the farmers, and towns and cities have
grown up, and exchanges are made more readily, and the farmer is not
to the same extent obliged to exhaust his land, and dispersion goes on
more slowly.
With each step in the process of coming to-
gether at the north, men tend to become more free; whereas the disper.
sion of the south produces everywhere the trade in slaves of which the
world complains, and which would soon cease to exist if the artisan
could be brought to take his place by the side of the producer of food
and cotton. . . (p.115). Upon whom, now, must rest the responsi-
bility for such a state of things as is here exhibited? Upon the planter.
He exercises no volition. He is surrounded by coal and iron ore, but
the attempt to convert them into iron has almost invariably been
followed by ruin. He has vast powers of nature ready to obey his will,
346
STATE SOVEREIGNTY AND SLAVERY.
fore exceedingly limited in the slave states. The market
for manufactured articles outside of the few great cities
had such a wide range that the needed competition unfor-
tunately could not be built up. Not only were the con-
sumers too widely scattered, but their absolute number
was too small. The great landowners numbered only a
few thousand, and their demand for luxuries could be easily
and cheaply supplied by importation. The planters of the
second class usually tasted according to their means the
luxurious enjoyment which their rich exemplars allowed
themselves, and lived, for the rest, in the self-satisfied con-
yet dare he not purchase a spindle or a loom to enable him to bring
into use his now waste labor power, for such attempts at bringing the
consumer to the side of the producer have almost invariably ended in
the impoverishment of the projector, and the sale and dispersion of his
laborers." According to Carey the blame for this falls upon England
and those who, by supporting free trade tendencies, have aided her
efforts to make herself the "sole workshop of the world" for all man-
ufactured and industrial articles. Space does not allow me to make
further extracts, but it is worth while to answer the reasoning of this
famous politico-economist, inasmuch as this will be an excellent proof
of the view developed in the text. What he wishes to prove is opposed
to this. Carey wholly forgets one fact, and this one fact turns all his
arguments against himself. The commercial policy of the United
States has not been different for the two sections, but precisely the same
for the whole country. Whether it has been good or bad, in either event
under it countless towns and cities have grown up in the north; manu-
facturing and industry have struck root; the population has grown
denser; “anvil and loom" have "taken their places beside the plough
and the rake"; while all this has not happened at the south. If it
"could" not happen at the south, as Carey-and rightly indeed—affirms;
if all attempts to bring it about ended with the ruin of the projector,—
the reason for this must be sought elsewhere, But this reason can
be found only in slavery, for slave labor and free labor was the only
difference which influenced the industrial institutions and the industrial
policies of the two sections. It cannot be denied that the exhaustion of
the soil and the consequent "dispersion" of the population, tended to
make the free whites of the south ever more and more the slaves of
slavery. Cause and effect were here, as they so often are, entangled with
each other in such a way that each influenced the other, so that each
appeared both as a cause and as an effect.
MANUFACTURES AND TRADE.
347
tentment of an idle semi-civilization. The mass of the
small slaveholding landowners and of the poor artisans.
was the most sorrowful social product which the history of
civilized nations has to show, an aristocratic proletariat
which, both from its lack of culture and its arrogance,
was terrible material in the hands of a self-seeking aristoc-
racy and of politicians greedy for power. Partly poverty
and partly savagery allowed manufacturing industry to
find no market here for anything save the most necessary
tools, articles of clothing, small arms, and the whisky flask.
Finally, the slaves, with the exception of the house-slaves
of the wealthy, figured among the consumers of manu-
factured articles only as users of agricultural implements
and of the coarse stuffs which served to cover their naked-
ness.¹
The wholesale trade was mainly in the hands of northern
merchants. In all contests with the north, the right-bower
of the southern politicians was the fact that the profit
yielded by the export of southern raw products to Europe
and the import of European manufactured goods to the
south fell to the north. As threats of secession became the
staple seasoning of political debates, the taunt was contin-
ually thrown out that the shopkeeping-spirit of the north
would think twice before it drove the south to separation.
and so deprived itself of the profit which the great-hearted
south allowed it to make. Retail business languished un-
der the conditions which held down all handicraft.
Com-
'The Lynchburg Virginian said: "Dependent upon Europe and the
north for almost every yard of cloth, and every coat, and boot, and hat
we wear; for our axes, our scythes, tubs and buckets,-in short, for
everything except our bread and meat!—it must occur to the south that
if our relations with the north should ever be severed-and how soon
they may be, none can know (may God avert it long!)-we would, in all
the south, not be able to clothe ourselves. We could not fell our forests,
plough our fields, or mow our meadows. In fact, we would be reduced
to a state more abject than we are willing to look at even prospective.
ly." Quoted by Olmsted, The Cotton Kingdom, II., p. 366.
348
STATE SOVEREIGNTY AND SLAVERY.
mercial life was confined, far more than at the north, to a
few places, and commerce could therefore exercise its civil-
izing influences only on a much smaller scale than there.¹
The population of the slave states therefore lacked that
manifold interlinking of interests which goes on develop-
ing forever in a community that rests on a moral basis. In
the free states, indeed, the social extremes constantly be-
came farther apart, but the transitions from one social
stratum to the other were unnoticed and the whole com-
munity was an organism which not only grew outwardly,
but was continually developing within. In the south, on
the contrary, society ever became more distinctly divided
into three separate classes-the ruling great land owners;
the less wealthy slaveholders, who had no leisure for in-
tensely active participation in political life and neither
leisure nor inclination for self-culture; and the free rab-
ble. The foundation of the whole structure was formed by
the slaves, who had no social standing. Of course there
was no lack of connecting-links, but they were not numer-
ous and important enough to exercise a determining influ-
ence. The character of the political and social life of the
south was determined by the natural three-fold division of
society which grew out of slavery.
The consequences of this peculiar arrangement of social
circumstances were the more destructive, the more the po-
litical institutions assumed a purely democratic character,
for in just this proportion the whole politico-social system
was based on a broader lie. All class-government is de-
moralizing, and the ruling class is so much the more de-
moralized the more its mastery is merely a matter of fact
1 According to the census of 1850, commerce, trades and mining em-
ployed 180,334 persons in the slave states and 456,863 in the free states.
2 In this general estimate, I have had in mind the state of things in
the regular plantation-states. In the so-called border states there were
manifold and not unimportant modifications. Their kind and degree
as well as their political significance, will be hereafter discussed.
AN ARISTOCRATIC PROLETARIAT.
349
and not grounded in law, for then the disproportion
between power and lawfully-imposed duty is so much the
greater. The careful preservation of democratic appear-
ances was so much of a necessity that the ruling class did
not appreciate how far the democracy had become an empty
appearance. It was no conscious, naked lie, when the
Pinckneys, Lowndes, Calhoun, Cobb, Davis and others
praised the slave states as the chief stronghold of political
freedom. Men of this sort do not consciously lie to them-
selves for generations. The insolent compassion with
which the rôle of Cinderella was assigned to the free states
bore the unmistakable stamp of unfortunate conviction.
It sounds absurd, and yet it was true, that just because the
multitude followed them blindly, the leaders honestly
thought that the south was inspired by that earnest spirit
of freedom which was ascribed to the fathers of the re-
public. The multitude had an undeniable right to make
its will the determining element, and it followed its leaders
on the path on which their safety lay and which they
looked at, from their standpoint, not without reason, as the
path to freedom. And, in fact, the multitude applauded
them the more loudly, the greater demands they made in
the interest of their own safety. The wider the chasm
between the mass and the great planter became, so much
the more deeply the former, relying on the fact of equal
political rights, intoxicated itself with a ludicrous belief in
political equality and thought that the inevitable result of
this was an equality of interests. There was no sober in-
vestigation of the question how far the facts justified this
view, because the multitude blindly confused power and
freedom. It was precisely the poorest, and from every
'Yet I do not mean by this to say that the aristocracy had no eye
whatever for the degradation of the city and country proletariat. When
it considered the circumstances of the south by themselves, and not in
comparison with those of the north, it was fully aware of this. The
expression "white trash" originated, not in the north, but in the south.
350
STATE SOVEREIGNTY AND SLAVERY.
point of view the most abject, whites who found the great-
est satisfaction for their self-love in the thought that they
were members of the privileged class. He who wished to
span the broad gulf which separated them from the slaves
(who had no rights) or was suspected of entertaining this
wish, was their deadly enemy, for he threatened to expose
them in all their neediness, defenseless and naked; he dis-
puted their "right" to the beggarly pomp that was due
only to the deeper degradation of others; and he there-
fore trespassed upon their "freedom." Attempts to show
that the first cause of their material, spiritual and moral
needs lay in this deeper degradation of others, could not be
made. And if they could have been, they would have re-
mained without result.
When slavery had once become a controlling interest,
a change for the better could not come except by means
of a powerful impulse from without. There were no ele-
ments within which could make an opposition to it of any
weight whatever. The natural advantages of the section
invited the immigration of fresh elements with sound
moral, industrial, and political views; but the paralyzing
curse on every effort prevented any especial result from
this cause. Slavery became more and more of a Chinese
Wall, which separated the south from the rest of the civil-
ized world. Safety demanded that the comparatively
small number of immigrants should be forced by moral
pressure to swim with the stream. If this pressure did
not at least impose silence upon them, then men soon
ceased to limit themselves to moral suasion. And yet at
every moment the fact made itself felt that modern civili-
zation is not the peculiar possession of different nations;
but has a universal, world-embracing character. The re-
sult of this was a growing violence and brutality in the
efforts to resist its influence. Everything was considered
in reference to the "peculiar institution," and therefore
hostile distrust of everything was felt, because this insti-
THE COTTON GIN.
351
tution was in ever sharper contradiction with the spirit of
the age. Slavery in the United States showed itself each
day, to civilization, as more and more clearly the greatest
piece of theft of all time, and the slavocrats, like a com-
mon thief, began to fear the rustling of every leaf.
The reconciling and healing power of time had, in this
case, to be put to shame. North and south had to ever
go farther apart, since their opposition in all the points al-
ready mentioned was a natural result of their different in-
dustrial systems.
These systems had to develope themselves, and as they
did so their results had to be more keenly felt, and the
sectional separation had to become more sharply marked.
This explains the frightful rapidity with which the contest
narrowed down to "either-or." If the industrial devel-
opment of both sections had been less rapid, then the
Union would probably be divided to-day into slave and
free states.
•
The unexpectedly speedy development of the industrial
system of the slave states was the result of a single inven-
tion. Cotton was exported from the United States for the
first time in 1791. It is apparent from art. XII. of the
treaty negotiated by Jay with England, that cotton was
not then known to Jay as an article of export. It had
already become evident that some of the southern states
were especially adapted to the cultivation of cotton. Up
to this time the plant had not been cultivated on a greater
scale only because the separation of the seed involved too
mnch labor. The cotton gin, invented by Eli Whitney in
1793, cured this misfortune. While a man could then
make ready for the market only one pound per day, the
cotton-gin cleaned three hundred and fifty pounds a day.
As soon as the worth of this invention had been tested by
experience the cultivation of cotton received a tremendous
1
¹ 19,200 lbs. Webster, Works, V., p. 388. Compare Hamilton's Report
on Manufactures, Dec. 5, 1791. Ham., Works, III., pp. 272–275.
352
STATE SOVEREIGNTY AND SLAVERY.
2
impulse. As early as 1800, 19,000,000 pounds, worth
$5,726,000, were exported. By 1824 the export had in-
creased to 142,369,663 pounds, worth $21,947,401.¹ This
sudden gigantic development of the new branch of indus-
try involved a corresponding increase of the demand for
labor, that is, a corresponding increase in the price of
slaves. The vague dreams of emancipation in which the
people of the northern slave states indulged during the
first years under the new constitution, had a realistic
basis. Slave labor proved to be so unsatisfactory that men
began to think about the possibility of a time when it
would become a mere consumer of capital. The emanci-
pation of slaves became more common because it demand-
ed only a small sacrifice. The invention of the cotton-gin
altered these circumstances at a blow. The demand for
slaves could no longer be satisfied, although the northern
slave states-especially Virginia and Maryland--at once
devoted themselves to slave-breeding. In this way cotton.
1
3
Compare the statistical tables of the products and exports of the
south, completed to 1860, in Kettell, Southern Wealth and Northern
Profits, p. 21. Kettell does not give his authorities. Compare also the
somewhat different views of Kapp, Geschichte der Sklaverei, p. 107.
2 I have not been able to find trustworthy statistical data on this
point. Kapp's statement (p. 108) that the whole slave property was es-
timated, in 1790, at $10,000,000 and in 1820 at $1,200,000,000, certainly
rests on an error. According to the census of 1790 the number of slaves
in the southern states was 657,047. By that of 1820 it was 1,524,580.
The average price of a slave, when children and the old were reckoned,
would then have been in the earlier years about $15, and in the later
ones about $780. The first sum is evidently too low and the last is
probably too high. The Virginia Times, in 1836, estimated the average
value of the negroes exported out of the state at $600 per head. (Niles'
Reg., LI., p. 83.) Kettell, p. 130, estimates the value of the slaves in
1798 at $200 and in 1815 at $250 per head.
3
³ In 1829, in the Virginia convention, Mercer estimated the value of
the slaves annually exported from that state at $1,500,000. Deb. of
Cong., p. 99. In Alabama the value of the slaves imported from the
northern slave states from 1833 to 1837 was estimated at $10,000,000.
Jay, Misc. Writ., p. 267.
COMPARATIVE DEVELOPMENT.
353
culture became a profitable pursuit for those slave states
that were not especially fitted for it. The whole south.
saw the most brilliant future before it. It thought itself
sure, not only of unmeasured wealth, but also of political
mastery. If the north, despite the efforts of the New
England states, had hitherto steadily followed the leader-
ship of the south, how could it emancipate itself from it
when the cotton culture, to which no limits seemed to be
set, should have reached its full development? In the de-
bate over the Missouri question M'Lane of Delaware.
thought he could safely prophesy a more speedy develop-
ment for the south than the north,' and the latter by no
means threw back the assertion as nonsensical rhodomon-
tade. Roberts of Pennsylvania admitted its probability,
and used it for a justification for the refusal to extend the
slavery area.2
On a superficial view this idea might seem justified.
The north only recovered slowly from the blows of the
Revolutionary war. Nothing happened which could give
its development a sudden, mighty impulse, and the embar-
go policy of the Republican party, as well as the war of
1812, put brakes on its progress. But this lagging of the
north behind the south was only in appearance. Compari-
son of the population of the two sections was the only
thing needed in order to show this. As yet there was no
noticeable immigration into the northern states, and yet
the south was farther outstripped each year. The indus-
trial development of the north struck its roots deep into
the ground, so that a stem of hitherto unknown dimensions
could shoot out from them in course of time; in the south,
on the other hand, the stem, under hot-house pressure,
burst into luxurious foliage, but the roots lay on the sur-
face and withered away. The population of the two sec-
2
¹ Deb. of Cong., VI., p. 361.
Ibid, VI., p. 492.
23
354
STATE SOVEREIGNTY AND SLAVERY.
tions, according to the first four censuses, was as follows:
North....
South
•
1790
.1,968,455
· ·
1,961,327
1800
1810
1820
2,684,625 3,758,820 5,132,372
2,621,300 3,480,994 4,522,224
This slower increase of population in the south was mainly
due to two causes. The slaves' impulse of self-preserva-
tion was subject to the control of the masters. Food,
clothing, shelter, the kind and amount of labor,-these de-
pended solely on the will of the masters. Although, as a
general rule, interest demanded the longest possible pres-
ervation of the living capital, yet evidently, in both big
and little things, less care would be shown for the slaves
than the free workmen of the north showed for themselves.
As the slaves produced less than the free laborers, the
cost of supporting them had to be much less in order
that their labor should pay. But less care involved
a greater death-rate. Moreover, a good share of the
best plantation-districts was exceedingly unhealthy, and
for this reason too the consumption of human life was
quite peculiarly great. In this section, men partly came
to the conviction, through experience, that interest de-
manded, not the longest possible preservation of the negro,
but the greatest possible use of his strength during a shorter
time. This conviction was naturally acted upon.2 The
1
¹ According to the report of the secretary of the treasury of Jan. 19,
1831, the number of deaths on the sugar plantations of Louisiana ex-
ceeded the births by two and one-half per cent. According to an article
in the New Orleans Argus in January, 1830, the loss of Louisiana plant-
ers on the negroes imported from more northern states amounted to
twenty-five per cent. This statement may be exaggerated, but that the
death-rate among this class of slaves must have been very great is plain
from the fact that in the advertisements of slaves offered for sale, accli-
mated negroes play a great part. Jay, Misc. Writ., p. 272.
"According to Giddings, the negroes imported from the slave-breeding
states to the cotton plantations remained capable of work, on an average,
only seven years. A convention of slaveholders in South Carolina came,
after careful discussion, to the conclusion that it was most profitable for
the masters to use up the slaves within this time. Giddings, Speeches,
p. 142.
POPULATION.
355
business of the slave-breeders increased all the more, but the
artificial impulse which they gave to the speedy increase
of the slave population could not keep pace with the natural
forces which caused the extraordinarily rapid increase of
the population in the free states. The difference was not
at first very marked, but it grew-especially after immi-
gration into the northern states began to assume significant
proportions—in geometrical progression.
This difference in the increase of the population of the two
sections was of the greatest significance for their power in the
federal legislature, since the representation in the lower
house of congress was decided according to the number of
people. Since, moreover, in making up the representation,
five slaves were reckoned as only equal to three white men,
the difference of representation in favor of the north was
much greater than the difference in the absolute number of
people. The absolute increase of the slave population of the
southern states from 1790 to 1820 was 867,533, but this
amounted to only 520,520 as far as representation was con-
cerned. In 1820, the total slave population of 1,524,580
souls counted as a represented population of 914,748. In this
year, while the real difference between the populations of
the two sections was 610,148, the difference, considered
from the point of view of representation, amounted to
1,219,980. The representation of the two sections in the
lower house of congress until the rearrangement in accord-
ance with the census of 1830 was as follows:
Before the first census
1790
1800
1810
1820
North....
South.
..35
57
77
104
133
.30
53
65
79
90
In these figures it was written, clear as day, that the
slave states would have to yield the mastery of affairs to
the north soon and forever, if they could not find in some
other place a counterpoise to the north's growing power
in the house of representatives. Threats and other politi-
cal acts of every sort and of all manner of duplicity might
356
STATE SOVEREIGNTY AND SLAVERY.
for a while hold a sufficient number of northern represen-
tatives under their control, but in the long run this was
impossible, for the northern people had to come to believe
that they were being driven by their politicians in direct
opposition to their material interests. But the political mas-
tery of the slave states was an essential condition for the
continued existence of slavery in the Union. The south
had, then, to pay especial attention to the senate. In this
body, representation was independent of the population.
It could not orly paralyze every action of the house of
representatives, but it had besides this several especial
privileges of the weightiest character. As long as the
slaveholders controlled an equal number of states, so long
was the equality of power maintained, as far as it possibly
could be. And wherever the south had raised the question
of slavery in any way, it was now practically certain that
there the slaveholding interest would be the ruling one, for
it had the whole power of the section behind it, since self-
preservation made it necessary for the south to form in solid
phalanx in its support. This gives the key to the stubborn
tenacity and passionate energy with which the south for
three years fought out the Missouri struggle and all the
later contests in behalf of the extension of slave territory.
The outer history of the struggle between the two sec-
tions over Missouri can not be followed out here in all its
different phases.¹ The facts, a knowledge of which is nec-
¹ It can be found in Kapp, Lunt, Giddings, Wilson, and in many other
easily attainable books. Neumann's Darstellung (II., p. 324, seq.) should
not be used, since the most essential facts are wrongly judged. He
turns matters around wrong end foremost, in a laughable way, since he
makes the Missouri question appear as an appendix to the organization
of Arkansas as a territory. March 16, 1818, a petition was presented to
the house of representatives from inhabitants of Missouri, who asked
permission for that territory to form a state constitution in order to be
admitted as a state. This petition, with others of similar contents, was
referred to a committee which brought in a bill April 3. But it was not
until Dec. 16, 1818, that a committee was appointed, on the motion of
THE MISSOURI LIMITATION.
357
essary in order to judge of the position of both parties, the
character of the constitutional questions involved, and the
consequences of the final issue, can be concentrated into a
few words.
In February, 1819, the house of representatives went
into committee of the whole over the admission of Mis-
souri as a state. The recommendation of the committee
provided in the ordinary manner what was necessary
to this end. Tallmadge of New York moved the
amendment that the admission should be made dependent
on the two following conditions: prohibition of the fur-
ther introduction of slaves, and emancipation of all the
slave children born after the admission as soon as they
reached the age of twenty-five. This motion gave life to
the whole strife, and the idea embraced in it remained the
essence of the strife until the decision of its most impor-
tant points. The majority of the house of representatives
voted to make the admission of Missouri as a state depen-
dent upon such a limitation of her power in regard to
slavery; but the majority of the senate decided against
this. Both houses insisted on their respective resolves, and
congress adjourned without coming to any final decision.
When the question again came up in the next session the
opponents of the so-called "Missouri limitation" found
Robertson of Kentucky, to consider the propriety of organizing Arkan-
sas as a territory by itself. (Compare Deb. of Congress, VI., pp. 122,
222.) It is a much weightier fact that Neumann puts the north in a
thoroughly false light, in that he makes Tallmadge bring in a motion
according to which precautions should be taken for the emancipation
of the slaves already living in the territory." Tallmadge and his com-
panions affirmed on numberless occasions, in the debate, that they had
never had the intention of interfering with the right of property in the
slaves already living there, and their opponents often used this to re
proach them with inconsistency. On p. 327, the author makes the
strangest statements about the growth of population of the two sections
and the relation which the growth of representation had to this, etc.
These short notes may serve as a further reason for the opinion already
expressed concerning the thoroughness and reliability of this work.
358
STATE SOVEREIGNTY AND SLAVERY.
themselves materially aided by a new circumstance. Maine,
which had hitherto been a district of Massachusetts, ap-
plied for admission as an independent state. The major-
ity of the senate coupled together the Maine and Missouri
bills, and so put before the majority of the house the al-
ternative of admitting Missouri without any limitation, or
denying, for the present, the admission of Maine. The
house was not yet ready to acknowledge itself so easily
beaten. Neither earlier nor later has a struggle been
fought out in congress in which the majorities of both
houses have stood by the decision once arrived at with such
stiff-neckedness. The close of the session constantly drew
nearer, and an agreement seemed farther off than ever.
The whole country was in a state of feverish excitement.
At the last moment, in the night between the second and
third of March, 1820, free labor and the principle of na-
tionality yielded to slavery and the principle of state sov-
ereignty. If the matter had affected Missouri alone,
the defeat would have been of comparatively small
practical significance; but two principles had been given
up, and these two principles involved the weal and woe
of the republic.
The statesmen of the south had always pursued the sly
policy of accusing the north of narrow-hearted and selfish
policy and of claiming for themselves a lofty ideal stand-
point, from which they, impelled by brotherly love and in-
born nobility, were ready to carry self-renunciation to the
verge of folly, but could not yield an iota of the demands
of the right for the sake of all the whole world could offer.
This rough mask was good enough to serve as a pretext, not
only for putting forward the most unjust demands, but also
for declaring, in the same breath, with sublime shame-
lessness, that the interest of the south demanded such and
such a thing, and that the north must therefore comply
with it, whether or no. In the struggle over Missouri,
Brown of Kentucky repelled, in brilliant pomp of language,
MISSOURI AND MAINE.
359
as a pitiful and lying insinuation, the statement that the
south was paying any attention to the "balance of power";
he had been "alarmed" by such thoughts; the inexorable.
demands of justice and intelligence were alone in ques-
tion.¹ It was foolish to twit the north with such phrases,
after the south had reached its end by the unnatural al-
liance of the Maine and Missouri bills. Smith of South
Carolina had roundly declared in the senate that consent
to the admission of Missouri without limitation "must"
be given before Maine could be let in.2 Clay had spoken
just as plainly in the house, and no one had pretended
that the union of the two bills was only a harmless whim
of the senate. It would have been unreasonable to make
Maine suffer because the north wished to curtail the "con-
stitutional rights" of Missouri. The matter was intelligible
only on the supposition that it compelled a bargain which,
as the south affirmed, gave equal chances to both sections.
We should do injustice to the political insight of the states-
men of the south, if we admitted that they really looked at
the bargain in this way. Hardin of Kentucky' and Tucker
of Virginia openly explained: "We are struggling for
our political existence."
The south by no means limited itself to a discussion of
the mere question of law, but brought forward a crowd
of pleas in justification. It was asserted that the Louis-
iana territory, to which Missouri belonged, had been ob-
tained at the cost of the whole Union, and that it would.
¹ Deb. of Cong., VII., p. 103.
2 Ibid, VI., p. 383.
3
Ibid, VI., pp. 472, 474.
4
Ibid, VI., p. 499.
8 Ibid, VI., p. 559.
John Randolph wrote: "They [Arche, Mason, and himself] deter-
mined to cavil on the ninetieth part of a hair in a matter of sheer right,
touching the dearest interests, the life blood of the southern states."
Garland, Life of J. Randolph, II., p. 128.
360
STATE SOVEREIGNTY AND SLAVERY.
therefore be unjust to deprive the inhabitants of half the
Union of the "colonization right"; but this would evi-
dently be the case if they were forbidden to take their
property with them. It was said, on the other hand, that
slavery would present an impassable wall to immigration
from the north. Where labor bears the stamp of shame
the free laborer cannot turn his steps. But how could
there be hesitation when the choice was to be made be-
tween the exclusion of slavery or free labor? The Union
should be a nursery of freedom, and not a breeding-place
for slavery. The south itself declaimed with the greatest
pathos over the curse of slavery. Was it not, then, a self-
evident duty to preserve the land from any extension of
the curse?
The last part of this argument was repelled with great
decision by the majority of southern members. They af
firmed that when it was proposed to allow the importation.
of slaves from Africa or from any foreign country, the
south would be first and most earnest in protesting against
it. But by compliance with the wish expressed by the
south, the slave population of the Union "would not be
increased by a single soul." Ever and ever again it was
affirmed with Jefferson in his old age: "All know that
permitting the slaves of the south to spread into the west
will increase the happiness of those existing and
by spreading them over a larger surface will dilute the evil
everywhere and facilitate the means of getting rid of it, an
event more anxiously wished by those on whom it presses
than by the noisy pretenders to exclusive humanity.' The
991
'Jefferson's Works, VII., p. 194. In the same letter, he curtly de-
clares: "It is not a moral question, but one merely of power." Yet he
was not willing to admit that the south was fighting merely for the bal-
ance of power. In another letter he writes: "The Missouri question
is a mere party trick. The leaders of Federalism, defeated in their
schemes of obtaining power by rallying partisans to the principle of
monarchism,
have changed their tack and thrown out another
DILUTING SLAVERY.
361
north had to let its "pretended humanity " be thrown into
its face, as an impudent lie. Instead of lightening the lot
of the unfortunate slaves, it wished, said southern men, to
hedge them into a fixed territory, where they must infalli-
bly "perish of hunger and want" in the course of time.¹
It was not difficult for the representatives of the north to
overthrow this dishonest as well as weak reasoning. The
assertion that the number of slaves would not be increased
by the extension of the slave territory-said Roberts-is
plainly false, because the extension of the market must re-
sult in an increase of price, and the latter must give a
strong impulse towards increasing the supply of slaves.
Moreover, it is a known law that when the means of sub-
sistence increase, an increase of population takes place.
These reasons were so convincing that Barbour of Virginia'
and Pinckney of Maryland could not but recognize their
validity. Yet despite this, just as before, speech upon
speech was piled up on the theme that an extension of the
evil would be a "dilution" and, therefore, a mitigation
of it.
2
After these reasons for justification, the treaty of pur-
chase with France was brought in as a legal objection
against the limitation. Art. III. read: "The inhabitants.
of the ceded territory shall be incorporated in the Union
of the United States and admitted as soon as possible, ac-
cording to the principles of the federal constitution, to the
enjoyment of all the rights, advantages and immunities of
citizens of the United States; and in the meantime they
barrel to the whale." Works, VI., p. 180. From another point of view,
as we shall see, he recognized with perfect clearness the tremendous
range of the question.
1 The Baptist churches of Missouri" protested" against the limita-
tion and "warned" congress "in the name of humanity" not to adopt
it. Niles' Reg., XVII., p. 210.
2 Deb. of Congress, VI., p. 432.
3
Ibid, VI., p. 429.
4
✦ Ibid, VI., p. 441.
362
STATE SOVEREIGNTY AND SLAVERY.
shall be maintained and protected in the free enjoyment of
their liberty, property and the religion which they pro-
fess."1
The south sought to deduce from this article the im-
possibility of obliging Missouri to free the children born
of slaves, after her admission into the Union, as soon as they
reached their twenty-fifth birthday, because this would in-
fringe upon the right of property guarantied by the treaty
to the masters. This was denied by the champions of the
limitation, because it was against natural right and sound
common sense to recognize in the master an endless right
of property in the yet unborn descendants of his slaves.
It was just as little possible to use the assurance “of all
the rights, advantages and immunities of citizens of the
United States" as an argument against the limitation.
Slavery existed only through municipal law; as a citizen of
the United States, no one had the right to hold slaves.²
The opponents of the limitation found a further ground
in the provision of the treaty that the inhabitants of the
Louisiana territory should be admitted to the full enjoy-
ment of the rights of citizens "as soon as possible." It
was affirmed that Missouri now had the necessary number
of inhabitants to organize as a state, and that therefore,
according to the treaty, her admission must follow without
delay.
Despite the evident absurdity of this objection, the exhaus-
tive debates over it must be reviewed, because constitutional
questions of deep significance were touched upon in them.
If, on one side, the expression "as soon as possible" was
¹ Stat. at L., VIII., p. 202.
2 M'Lane, of Delaware said: "As such, as citizens of the United
States, the right to possess slaves is unquestionable." (Deb. of Congress,
VI., p. 362.) This assertion was so bold that it was not made party doc-
trine. But men sought to attain the same end by a thorough trick.
They "proved" that the states had the right of allowing or forbidding
slavery, and then argued with bold misuse of language, as if they had
spoken not of states, but of "citizens of the United States."
POWERS OF CONGRESS.
363
emphasized, upon the other, emphasis was laid upon the
phrase "according to the principles of the federal consti-
tution." These certainly did not require exclusive attention
to the population of a territory. What they required
in the case now before us, congress had to discover and
decide for itself; only it could not delay admission without
a reason. But even if a more sweeping duty could be in-
ferred from the clause of the treaty quoted, yet it is unde-
niably true that congress could not be further bound by
any sort of stipulation. Treaties are, indeed, according to
the constitution, "the supreme law of the land," but only
so far as they do not stand in opposition to the constitu-
tion itself.¹ President and senate, to whom the treaty
power is confided by the constitution, could not, by their
one-sided action, curtail the constitutional powers of con-
gress. Whether this has been done in a given case, is not
simply a question for the supreme court to decide. The
three branches of the government are co-ordinate,
and each of them, therefore, has the right to decide inde-
pendently concerning the extent of its constitutional power.
The first part of the argument was absolutely unanswer-
able, and if the rest may perhaps be questioned, yet it
could not be readily contradicted by the party which passed,
April 7, 1796, a resolution which claimed for the house of
representatives the right, in all cases in which its co-opera-
tion was necessary for the accomplishment of treaty stip-
1
Compare Story, Comm., §§ 1836-1841. "The stipulations in a treaty
between the United States and a foreign power are paramount to the
provisions of a constitution of a particular state, or the confederacy.”
Lessee of Harry Gordon vs. Kerr et al., Washington Circuit Court Rep.,
I., p. 322; Stat. at L., VIII., p. 3. According to this the senate and
president could overthrow the whole constitution. The treaty power is
created by the constitution. It is therefore subordinate, and not supe-
rior, to it. The constitution can not give its creatures the right to arbi-
trarily destroy it.
364
STATE SOVEREIGNTY AND SLAVERY.
ulations, to deliberate and determine on the "expediency"
of the stipulations."
These justifications and the treaty were brought forward
by the slaveholders and their comrades only as props for
their position. They were neither able nor willing to rest.
the decision of the question of law upon any other ground
than that of the constitution. We must do the south the
justice to admit that in this struggle over constitutional
questions it did not indulge in the verbal quibbling which
became more and more the rule in such debates. It placed
itself openly, and without any duplicity, on the broadest
basis upon which it could take position. It denied to con-
gress the least shadow of right to make the admission of
a territory as a state of the Union dependent upon any
conditions whatever. This view was not based upon cer-
tain clauses of the constitution, but on the nature of the
Union, that is, on state sovereignty. Pindall of Virginia
stripped off all the vagueness which had hitherto envel-
oped the definition of this expression, and with a rigorous
logic drew from it the last consequence, which was first
recognized as a fundamental party belief when formulated
with the same rigor many years after this by the state-
rights men; he explained the federal constitution as an
"international compact." On this basis the whole argu-
ment for the general, as well as the specific, cases can be
condensed into four short sentences: The federal govern-
ment has only the powers granted it by the sovereign
states; newly admitted states become members of the
Union with equal rights; no other grants of power can
therefore be demanded from them than those voluntarily
'Deb. of Cong., I., pp. 696, 702. When, in 1816, the same question
came up again, the house of representatives abandoned these preten-
sions, but the position it took did not contradict the doctrine developed
in the text in any way whatever.
2 Deb. of Cong., VI., p. 361, and in many other places.
3
³ Ibid, VI., p. 527.
*
THE ADMISSION OF NEW STATES.
365
made by the thirteen original states, and exactly stipulated
in the constitution; no one affirms that the thirteen orig-
inal states gave up the right to decide whether slavery
should be permitted or forbidden within their boundaries.
On the other side, the principle of nationality was by
no means used with equal decision in opposition to this
extreme particularism. The general reasoning had more
of a moral than a legal character. Men went back to the
principles of the Declaration of Independence, and appealed
to the clause of the constitution according to which "the
United States shall guaranty to every state a republican
form of government." The elucidation of the question
from these two points of view was not worthless, but so
far as the decision of pending legal questions was con-
cerned, it was irrelevant. The Declaration of Indepen-
dence was no binding, legal instrument, and slavery could
not legally be regarded as in opposition to a republican
form of government, since it existed in most of the states
as a fact recognized by the federal constitution, and even
cared for therein by positive provisions. Search was there-
fore made for a constitutional provision from which, in
other ways, the legal right could be inferred, first, to im-
pose conditions upon the admission of states to the Union,
and second, to impose just the condition now under dis-
cussion.
In regard to the general right, reliance was placed upon
the fact that Ohio, Louisiana, Indiana, and Illinois had
been admitted under certain conditions, without any oppo-
sition being made to this from any side. Even in the
Missouri bill, then under discussion, other conditions had
been inserted with the approval of the same members of
congress who now wished to deny the existence of the
right.² Moreover, this right was undoubtedly conferred
¹ Art. IV., Sec. 4.
2 An amendment submitted by Taylor was adopted, which forbade
the state to tax, for five years, the lands of soldiers. Deb. of Cong., VI.,
p. 352. Compare Statutes at Large, III., pp. 547, 548, Sec. 4 and Sec. 6.
366
STATE SOVEREIGNTY AND SLAVERY.
in art. IV., sec. 3, § 1, of the constitution: "New states
may be admitted by congress into this Union." This does
not impose a duty upon congress, but grants a right which
it can use in accordance with its discretion.
The opponents of the limitation tried to escape from
these precedents by every sort of possible pretext. They
paid especial attention to the constitutional provision.
Pinckney of Maryland made the keenest argument on this
question.¹ He admitted without reserve that congress
could reject an application for admission into the Union,
but contended just as unreservedly that from this the right
to attach conditions to the granting of the application
could not be inferred. The doctrine that the powers of
the Union consisted only of those "expressed”² has never
been more recklessly followed out to the verge of absolute
absurdity than in this debate. But Pinckney, who, de-
spite his unbearable pomposity of language, was a sharp-
witted lawyer, saw himself compelled to choose this course.
State sovereignty did not suffice to maintain the position
already taken, even if the other absurdity had been admit-
ted that a territory which wished to become a state became
possessed of full state sovereignty by merely expressing
this wish. Directly from this "sovereignty" the right
could be deduced to conclude a treaty with the Union
through congress, or, if this expression falls short of the
truth, to impose certain conditions upon the proposal. If
this should be denied, then, too, the right of congress to
make such proposals, that is, to conclude such a treaty,
must also be denied.
All the state-rights men would not go as far as Pinckney.
Some of them laid especial emphasis, in their argument,
upon another idea. They affirmed that it would be use-
less to burden the territory with a condition, because the
'Deb. of Cong., VI., p. 440.
2 I speak here only of this one side of the argument; another side of
it will be discussed later.
LIMITATIONS OF STATE POWER.
367
sovereign state would not be bound by it. Quite consist-
ently they then farther affirmed that the states formed out
of the northwestern territory and admitted under the anti-
slavery provision of the ordinance of 1787, were free to
legalize, at any moment, the introduction of slavery.
3
2
On this question, which involved the fundamental prin-
ciples of the whole constitutional law of the United States,
the defenders of the limitation were not all of the same
opinion, and they entirely failed to grasp its whole range.
Roberts wished to have the prohibition declared "absolute
and irrevocable." Otis thought it laughable that a duty,
without undertaking which the territory could not become
a state, and which was not to take effect until the instant
when it did become a state, could yet lose its binding
force because the territory had become a state. Taylor
did not consider the assertion of the state-rights men as
correct, but expressly declared that he would be in favor of
the restriction in the opposite case, because the desired
end would be reached by its moral influence. Others ap-
proached the difficult question with still greater foresight.
Yet not one rejected the claim that had been made on the
ground that it was clearly and certainly in direct contra-
diction to the fundamental law of the Union. As a terri-
tory-and this was now commonly recognized-Missouri
was absolutely under the legislative control of congress.
If her admission as a state was made subject to such a
condition, then the state of Missouri found itself confront-
ed by a federal law in full force, which might be eventu-
ally declared unconstitutional by the supreme court of the
United States, but upon which the state could in no way
lay its hand. The "holiness of treaties," the "sacredness.
of compacts," etc., to which men appealed,¹ were not
¹ Deb. of Cong., VI.. p. 389.
2 Ibid, VI., p. 418.
3
Ibid, VI., p. 338.
4
¹ Ibid, VI., p. 353, and in many other places.
368
STATE SOVEREIGNTY AND SLAVERY.
needed to prove this,-always supposing that the separate
states, as far as they came in question, had not the right
to decide concerning the constitutionality of federal laws,
to decide, that is, whether they were laws.
The debate over the other question, whether a provision
could be found in the constitution which especially author-
ized the prohibition of slavery in a state about to be ad-
mitted, is of little importance in constitutional history,
inasmuch as it was only a wrangling about words.¹ There
was, moreover, no need whatever of any special authority,
if the general power was maintained. This was the kernel
of the whole strife. The fundamental question of the
nature of the Union was contained in it and only in con-
nection with this could the strife between slavery and free
labor come to a decisive result.
From the nature of the Union, then, an argument was
drawn which the reasons advanced in behalf of the limita-
tion shook but could not overthrow. Charles Pinckney
affirmed with great keenness that the constitution author-
ized the admission of new states" into this Union," that is,
into the Union as it then was.2 He went on to say that it
was an undeniable fact that the rights of the thirteen orig-
inal states under the constitution had been absolutely equal.
No one will deny that the constitution could never have
¹It was made a matter of discussion whether the words "importa-
tion" and "migration" in the clause which in negative form gave con-
gress the right to prohibit the foreign slave-trade from 1808, were synony-
mous. Charles Pinckney (Deb. of Congress, IV., p. 534), recalling his
participation in the deliberations of the Philadelphia convention, af-
firmed that "migration" was understood to refer only to "free whites.”
Madison, however, declared in a letter written Nov. 27, 1819, to J. Walsh
that both words were used as meaning exactly the same thing. The
superfluous "migration" had been used instead of "importation” for
precisely the same reason that caused the avoidance of the word “slave."
However this may be, it seems to me that there cannot be the slightest
doubt that" migration" was used for "importation" and was not under-
stood as "migration from one state into another."
² Deb. of Congress, VI., p. 440.
EQUALITY OF THE STATES.
369
come into being if this had not been the case. It is there-
fore no longer this, but a substantially different, Union if
the members of it are to have different rights. That the
thirteen original states had and have to-day the right to
forbid or allow slavery, will not be questioned. If this
right is taken away from newly-admitted states, then the
Union evidently consists no longer of equal members. But
if congress has the power to deprive newly-admitted states
of a substantial right belonging to the original states, it
can do the same thing with other rights. No boundary
can be drawn, if the principle is once admitted. The as-
surances that congress would never wish to impose other
essential limitations are worthless. Since the majority of
the house of representatives is now of the opinion that the
prohibition of slavery is demanded by the well-being of
Missouri as well as of the whole Union, a future congress
may be of the same opinion in regard to any other prohi-
bition whatever. The principle of choice is introduced
into a fundamental constitutional question. It must tend
to change the harmonious formation of the Union into a
chaotic confusion.
It was not wholly without reason that the slaveholders
and state-rights men declared that a comparison between
the slavery-limitation and the other conditions which had
been laid upon newly-admitted states was not possible.
From the beginning the latter had either been self-evident
or had concerned relatively unimportant questions and had
bound the states concerned only for a certain time, but this
was permanent and concerned a right that could be consid-
ered, without doubt, as a fundamental one. It was indeed said
that the slavery-limitation did not really withdraw a "fun-
damental right," but rather did away with a "fundamental
wrong." But the constitution had left to the original
states the right of tacitly letting the fundamental wrong
stand as a "right" or of making it one. If several states
made no use of this prerogative, and if the facts of every
24
370
STATE SOVEREIGNTY AND SLAVERY.
day showed it to be more than a destructive fiction that
slavery was a “purely municipal institution," yet this did
not change the positive right. Slavery ate into the life-
marrow of the whole Union; therefore not only considera-
tions of morality, but the highest self-interest of the Union,
demanded the absolute prohibition of its further extension.
But morality and self-interest could not do away with the
fact that the whole constitution rested upon the foundation.
of the equality of the members of the Union, and that the
original members had full freedom of action in regard to
this particular question.
The unconquerable obstacle can be expressed in a single
sentence: the fact could not be done away with that the
Union was composed of free and slave states, that is, the
fact could not be done away with that the attempt had been
made to construct out of heterogeneous elements not only
a harmonious, but a homogenous, whole.
Arguments could not bring the question any nearer to a
solution. After the differences of principle between the
two parties had been clearly established, the debates served
only to excite passion. The slaveholders sought more than
ever to make a bridge of threats upon which they could
cross to their goal. It is said that Randolph proposed to
Clay to abandon the house to the northern members and
that Clay actually gave the project serious consideration.2
Missouri herself took an extremely arrogant position.
When Taylor moved, Dec. 16, 1819, to defer the considera-
tion of the bill until the first Monday in February, 1820,
Scott, the delegate of the territory, objected that Missouri
' Even in brutality of expression, a marked advance was made. Thus,
for instance, Colton of Virginia said : He [Livermore of New Hamp-
shire] is no better than Arbuthnot or Ambrister and deserves no better
fate." (Deb. of Congress, VI., p. 351.) Arbuthnot and Ambrister had
been sentenced to death, under martial law, by Jackson on account of
their alliance with the Seminoles.
Garland, Life of Randolph, II., p. 127; Colton, Life, Correspon-
dence, and Speeches of Henry Clay, II., p. 263.
IMPORTANCE OF THE MISSOURI CONTEST.
371
would, in this case, go on and organize a state government
without waiting any longer for leave from congress.' And
this threat of the territorial delegate against the whole.
Union was not punished as a piece of laughable insolence.
Reid of Georgia declared that Missouri would "indignant-
ly throw off the yoke" and "laugh congress to scorn."
Tyler of Virginia, the future president, asked what would
be done if "Missouri sever [herself] from the Union?"
And Jefferson, the ex-president, expressed the fear that
Missouri would be "lost by revolt." However serious or
little serious these threats and expressions of fear were
intended to be, it may yet be inferred from them how high
the slaveholders and state-rights men estimated the strength.
of the Union. They had a truer idea of the nature and
the range of the question than their opponents. It was a
really true prophecy when Cobb of Georgia cried out:
"You are kindling a fire which all the waters of the ocean
cannot extinguish; it can be extinguished only in blood.'
But indeed the prophecy was verified only because ever
and ever again representatives of the north were found
who paid the price upon which dear peace apparently de-
pended.
295
During the whole struggle the decision had depended
only upon a few votes, for a number of northern represen-
tatives had voted, from the beginning, with the south.
¹ Deb. of Cong., IV., p. 469; Colton, Clay, I., p. 278.
Ibid, VI., p. 490.
S Ibid, VI., p. 551.
* Jeff., Works., VII., p. 148. Even the state legislatures took a lively
part in the strife. As a general rule the agitation was much more
vigorous in the north than in the south. The northern legislatures,
and with them that of Delaware, expressed themselves in very decided
resolutions against the extension of the slave area. The house of dele-
gates of the Virginia legislature, on the other hand, passed resolutions
containing the expressions "bound to interpose" and "resist." Niles'
Reg., XVII., pp. 343, 344.
5 Deb. of Cong., VI., pp. 351, 372.
372
STATE SOVEREIGNTY AND SLAYERY.
That it was, nevertheless, so long before the south obtained,
by threats and worse means, the necessary number of votes,
is a plain proof that an independent and honorable spirit
was then much more common among northern politicians
than later. The restriction was finally stricken out by a
majority of only three votes.¹
1
The results of this defeat were immense; but still more
fraught with evil was the second defeat which the north
suffered at the same time, and almost indeed without a
struggle. This question has often been treated in connec-
tion with the first, but it was not only actually indepen-
dent of it, but essentially different from it, as a matter
both of constitutional law and practical politics.
Since only the northern part of the Missouri territory
was to be organized as a state, the southern part, the so-
called Arkansas district, had to receive a territorial govern-
ment of its own. When the bill concerning this came up
for discussion in the house, Taylor proposed an amend-
ment in regard to slavery like the one which Tallmadge
had brought up in the case of Missouri. In committee of
the whole the amendment was rejected by eighty to sixty-
eight votes. In the house it had a somewhat better fate.
The first part, which forbade the further introduction of
slaves, was rejected by seventy-one to seventy votes; but
the second part, which freed slave children born in the
territory upon their twenty-fifth birthday, was adopted by
seventy-five, to seventy-three votes. With the help of
parliamentary rules, however, the question was brought
once more before the house. By the casting vote of the
speaker, Clay, the bill was referred back to the committee,
and on the same day, in accordance with its report, the
previously adopted amendment was rejected by eighty-nine
to eighty-seven votes.2
The attempt to lay hand upon the peculiar institution
1
Ninety against eighty-seven.
2 See all the votes in Deb. of Cong, VI., pp. 363–366.
ARKANSAS.
2
373
in this territory was regarded by the slaveholders as an
especial bit of spitefulness, because Arkansas was consid-
ered as belonging to the peculiar domain of the south.
This opinion influenced some northern representatives,
and to it the easy victory of the south is to be ascribed.
The arguments brought forward on both sides of the de-
bate were the same as in that over Missouri, only the con-
stitutional question was not raised. Taylor of New York
laid stress upon the fact that the "sovereignty" of con-
gress over the territories was "full and undisputed."
M'Lane, indeed, did not unconditionally admit that con-
gress could forbid slavery in the territories, but he could
only allege in justification of his doubt that the territories
would become states in time. But when Taylor after-
wards expressed his conviction that no member of the
house doubted the power of congress to do this thing, then
neither M'Lane³ nor any other member of the house in-
terposed any objection, and some leading slaveholders ex-
pressly admitted the right. The thing was considered, as
Taylor plainly expressed it, only as "a question of policy."
And yet the victory of the south was so easy. This must
be closely looked at in connection with the stiff-necked
strife over Missouri, if we are to rightly judge the position
of the north at this time in regard to slavery. When the
territorial question soon after this came up again in anoth-
er and much more important form, not a blow was struck
for the universally recognized right and for the uncondi-
tional supremacy of free labor.
4
The eighth section of the Missouri act of March 6, 1820,
¹ Deb. of Cong., VI., p. 358.
2 Ivid, VI., p. 362.
In the Missouri debate he declared afterwards: "I admit it [the
power to give laws to a territory] to be plenary, so long as it remains
in a condition of territorial dependence, but no longer." Ibid, VI., p.
513.
4 * Ibid, VI., p. 341, and elsewhere.
374
STATE SOVEREIGNTY AND SLAVERY.
provided "that in all that territory ceded by France to the
United States, under the name of Louisiana, which lies
north of 36° 30′ north latitude, not included within the
limits of the state contemplated by this act, slavery and
involuntary servitude. . shall be, and is hereby, for-
ever prohibited." This was the second half of the so-
called Missouri compromise and the responsibility for its
adoption does not wholly rest upon a few weak or venal
delegates from the north. Only five northern members
voted against it. The north thus gave its approval by an
overwhelming majority to the division of the territories
between free labor and slavery. It was indeed only declared
that slavery should not be allowed north of 36° 30', but this
was self-evidently equivalent to saying that south of this
line no hindrance would be put in the way of the slave-
holders. The first suggestion of such a compromise was
made by M'Lane in February, 1819, and he then ex-
pressly declared that the territories should be "divided"
between the free and slave states. It was never afterwards
denied that this was a fair interpretation of the compromise.
The action of the northern members can be justified from
no point of view. Even in mitigation of their fault, it can
only be alleged that, when they had decided to make a bar-
gain, the one agreed upon seemed not disadvantageous,
provided men did not look beyond the present time. The
Louisiana territory-according to the boundaries set to it
by the United States-was divided into two nearly equal
parts by the line of 36° 30′. But while the Missouri ques-
tion was still pending, an agreement was reached with
Spain concerning the boundary line by which a great part
of the southern half was lost to the United States.
3
How far the north soothed itself with the hope that the
1 Stat. at L., III., p. 548.
² Deb. of Cong., VI., pp. 570, 571. Benj. Adams, Allen and Folger of
Massachusetts, Buffum of New Hampshire, and Gross of New York.
3
Ibid, VI., pp. 359, 363.
THE LINE OF 36° 30'.
375
utmost bounds of slavery had now been definitely and per-
manently fixed, cannot be decided. But it needed no won-
derfully great political insight in order to know that the
slaveholders would sooner or later bend every nerve in or-
der to make this hope an illusion. If they did not yet.
oppose the right of congress to forbid slavery in the ter-
ritories, yet they showed themselves prepared to question
it whenever circumstances demanded such action. Rhea
of Tennessee had already used the word "unconstitution-
al." Smyth of Virginia went much straighter to the goal
when he remarked, in relation to the constitutional provis-
ion for the territories: "This clause speaks of the territory
as property, as a subject of sale. It speaks not of the
jurisdiction." Yet the clearest utterance was that of the
fact that the most violent opposition to the "Missouri
line" came from slaveholders. No less than thirty-seven
southerners voted with the five northern members against
this part of the compromise.
1
3
If men thought these signs worthy of no further atten-
1 ¹ Ibid, VI., p. 366. It is evident from later discussions that he
must have used the expression in relation to the division of the terri-
tories by a fixed line.
2
Ibid, VI., p. 487.
D
3 This fact was the foundation of the later assertion of the south that
the compromise was a northern and not a southern measure. The asser-
tion was not wholly ungrounded, if it was substantially false. Benton,
the first senator from the new state, writes: "This 'compromise' was
the work of the south, sustained by the united voice of Mr. Monroe's
cabinet, the united voices of the southern senators and a majority of the
southern representatives. This array of names shows the Missouri
compromise to have been a southern measure, and the event put the
seal upon that character by showing it to be acceptable to the south."
Thirty Years View, I., p. 8. Crowninshield of Massachusetts said, in
1861, at the so-called peace convention: "Southern men forced the
measure upon the north. The few northern men who voted for it were
swept out of their political existence at the election which followed its
passage." (Chittenden's Report, p. 318.) If this is to be applied to
those who voted for the "Missouri line", then the assertion has no his-
torical foundation whatever.
376
STATE SOVEREIGNTY AND SLAVERY
tion, because the United States had at that time no further
territorial possessions, they understood very badly the his-
tory of the Union and of slavery up to that time. Expe-
rience had already shown that the politics of the United
States was not a pastoral idyl. As Louisiana and Florida.
had been acquired, a hand might be stretched out towards
other territory. Circumstances offered any number of al-
luring opportunities. And if new acquisitions were ever
made in southern latitudes, the slave states would doubt-
less claim that the Missouri line was self-evidently binding
in respect to these, too. The north might thenceforth for-
ever oppose the soundness of this logic and depend upon
constitutional rights; the fact still remained that it had
been indirectly stipulated in a solemn compact by the almost
unanimous consent of the northern representatives that in
a certain territory south of a certain line slavery should be
allowed, whether or not congress forbade it. That the
south knew how to use such facts had already been suffi-
ciently shown. As surely as a slave-territory became a
slave-state, so surely no veto of congress could hereafter
prevent the existence of slavery "in this Union” in a state
or territory lying south of 36° 30′.
The south had allowed itself to pursue a purely idealistic
policy, where European relations were concerned, but where
the interest of the slaveholders was touched upon, it had
followed from the beginning a policy that was not only
realistic in the highest degree, but wise. It took good care
to demand everything forthwith. What it needed at the
moment satisfied it for the moment. It propped the
planks securely and then shoved them just so much farth-
er that it could safely take the next step when it became
necessary. It had done this at present and was therefore
contented for the present. Up to this time the free states
had always been one more in number than the slave states.
Now the latter got Alabama and Missouri into the Union,
and the former only Maine. The balance of power in the
A GEOGRAPHICAL PRINCIPLE.
377
senate was therefore fully established. Their territorial
possessions were, in the meantime, ample; Florida, just
acquired from Spain,' Arkansas and the rest of the southern
part of the Louisiana territory balanced for a while the
northwest, which, as Charles Pinckney wrote, had been
inhabited until now only by wild beasts and Indians. Why
express alarm now over things which could become reali-
ties only after the lapse of many years? But it did not
follow from this that alarm should never be expressed
over them. Reid of Georgia had already asked why a
partition line should not be drawn between the two sec-
tions "to the Pacific Ocean."2
Until the time came when the Missouri compromise
could no longer be considered as the "final issue" of the
question whether the territories and the new states should
belong to slavery or free labor, it was permanently fixed.
What M'Lane praised as the simplest and therewith the
happiest means of permanently adjusting the controversy,
Jefferson rightly recognized as the most destructive part
of the whole unfortunate compromise. April 3, 1820, he
wrote to W. Short: "The coincidence of a marked prin-
ciple, moral and political, with geographical lines, once
conceived, I feared would never more be obliterated from
the mind; that it would be recurring on every occasion
and renewing irritations, until it would kindle such mutual
and mortal hatred as to render separation preferable to
eternal discord. I have been among the most sanguine in
believing that our Union would be of long duration. I
now doubt it much." This was a truly statesmanlike
idea. If it could have given the text for the half of the
speeches which were delivered in favor of the prohibition
¹ Feb. 22, 1819. Stat. at L., VIII., p. 252, seq. The ratification of the
treaty by the United States was not given until Feb. 19, 1821.
2 Deb. of Cong., VI., p. 502.
Jeff., Works, VII., p. 158. Compare also the letter to Holmes of
April 22, 1820, VII., p. 159.
378
STATE SOVEREIGNTY AND SLAVERY.
of the further importation of slaves, the fate of the Union
would perhaps have had a wholly different turn. Up to
this time the division of the Union into two sections had
been only a fact: henceforth it was fixed by law. In inter-
nal politics no question of cardinal importance could arise
in which the opposition of the two industrial principles
did not play a greater or less part. And in all such ques-
tions the law-making power stood not only before a num-
ber of states, but before two geographically divided groups
of states. Each of the two groups inevitably constantly
consolidated more and more; and the more they consoli-
dated the more the Missouri line lost its imaginary char-
acter. For the first time there was, in the full sense of
the term, a free north and a slaveholding south. "Politi-
cal prudence," as it was hyper-euphemistically called,
might lead one to oppose this with the strength of de-
spair; but all political artifices were put to shame by the
power of facts. Even the last resource, the erasure of the
black line from the map by another law and by judicial
decisions, remained without effect; the line was etched too
deeply into the real ground. Only one thing could erase
it, and this one thing was the destruction of the gloomy
power that had drawn it. From the night of March 2,
1820, party history is made up, without interruption or
break, of the development of geographical parties.
This was what was really reached when men breathed
free, as if saved from a heavy nightmare. The little and
cowardly souls congratulated themselves that the slavery
question had been buried for ever, and yet men never
shook themselves free from the Missouri question.
The strife was kindled again by a clause of the constitu-
tion of Missouri, by which the legislature was obliged to
pass laws against the entry of free colored persons into the
state. The north declared that this clause infringed upon
the constitutional provision, according to which "the citi-
zens of each state shall be entitled to all privileges and
7
CITIZENSHIP OF FREE NEGROES.
379
The slave-
immunities of citizens in the several states."
holders affirmed that free blacks were not to be considered
as citizens "in the sense of the constitution." The north-
ern congressmen opposed to this the fact that free blacks
were citizens in some northern states, and that the clause
in question spoke of "citizens of every state." The de-
bate was finally lost in endless arguments over the mean-
ing of the words "citizens" and "citizens of the United
States," without reaching any result. 2
¹ Art. IV., Sec. 2. Art. IV. of the articles of confederation contained
the same provision, except that in it the common expression "all free
inhabitants" was used.
2 The discussion of this question more in detail belongs to the second
part of this work. I will here refer only to Bates, On Citizenship, and
to Livermore, Opinions of the Founders of the Republic on Negroes as
Slaves, as Citizens, and as Soldiers, and will remark that in the same
year in which the question was discussed in congress attorney-general
Wirt gave an opinion in which he says: “I am of the opinion that the
constitution, by the description of 'citizens of the United States,' in-
tended those only who enjoyed the full and equal privileges of white
citizens in the state of their residence." Opinions of the Attorneys-Gen-
eral, I., p. 507. Wirt was a skillful jurist, but in this argument his reason-
ing is not only weak in the highest degree, but also illogical. In Bou-
vier's Law Dictionary, I., p. 275, is the statement that the constitution of
the United States "does not authorize any but white persons to become
citizens of the United States." This can be understood in no other
way than that the constitution contains a clear provision to this effect,
while in fact the only grounds for the assertion are some judicial dicta
and decisions, which must be a stain on the annals of the United States
forever, and from every point of view. Such a statement in a thorough-
ly scientific work is simply inexcusable, for either the choice of expres
sions is made with inexplicable carelessness, or party politics has crept
into the book. It may also be noted that the edition of the Law Dic-
tionary which I used was dated 1872, while in 1868 the 14th amend
ment was adopted, in which it is provided: "All persons born or nat-
uralized in the United States, and subject to the jurisdiction thereof,
are citizens of the United States and of the states wherein they reside.”
The editor, Childs, is, indeed, not to be blamed for failing to take notice
of this amendment. The edition is actually that of the year 1867, and
the date 1872 is only a mercantile trick, which is only too often resorted
to by American booksellers.
380
STATE SOVEREIGNTY AND SLAVERY.
The discussion of the question of law from other points
of view was also fruitless. The slaveholders and state-
rights party argued that not only were similar laws against.
free blacks in existence in other states, but that even in
free states there were excluding laws, which concerned
white citizens, and were doubtless unconstitutional, if this
reproach could rightly be brought against the constitution
of Missouri. These assertions were partly well founded,
but it did not follow from this that the clause was not in-
consistent with the federal constitution.
As little tenable were the arguments by which it was
attempted to prove the uselessness of any objection to this
clause by congress. If it is unconstitutional-so the argu-
ment ran—then it is eo ipso null, and the decision of the
supreme court of the United States will give it that effect.
The overwhelming answer to this was that the clause, de-
spite its abstract worthlessness, would actually be in force
until it had been declared unconstitutional. Moreover,
congress could not impose upon the judiciary the responsi-
bility which the spirit of the constitution placed upon it;
to it belonged the right of admitting new states, and upon
it, therefore, rested the duty of deciding in such cases
whether the conditions had been fulfilled which were nec-
essary in order to make admission possible.
Although these points were of slight importance in
comparison to those decided at the previous session, the
debates-which lasted some weeks-were not less violent.
The main reason of this was the well-known wish of a
minority in the house to use this opportunity to overthrow
the compromise. The slaveholders therefore did not ven-
ture to insist upon the alternative of an unconditional ad-
mission of the state or an unconditional rejection of the
constitution that had been submitted. The senate first
showed a disposition to find a middle course. This gave
¹ Compare Deb. of Cong., VI., p. 672, seq.
THE FINAL COMPROMISE.
381
Clay an opportunity to lead back again into the path of
compromise the house, which had already, thanks to the
members hostile to compromise, rejected a motion to strike
out the offensive clause. The two houses finally agreed to
allow the state admission, provided its legislature "by a
solemn public act shall declare the assent of the said state
to the fundamental condition" that a right should never
be deduced from this clause to pass a law and that a law
should never be passed "by which any citizen of either of
the states in this Union shall be excluded from the enjoy-
ment of any of the privileges and immunities to which
such citizen is entitled under the constitution of the United
States." The legislature complied with this condition and
therewith the Missouri conflict ended.
Three constitutional questions-two of them of cardinal
importance—had been discussed. Men had fought shy of
all three for the moment, and for this reason the origin-
ators of the compromise claimed that they had postponed
the decision to the Greek calends. From a legal point of
view, only one positive result had been reached, and this
was on a point concerning which no legal question existed.
The northern majority had indirectly renounced the right
of congress to forbid slavery, as far as the territory lying
south of the line of 36° 30′ was concerned, and it had
agreed to this renunciation, because the southern minority
had renounced, on its side, its claims to having the ques-
tions of law involved decided now in its favor,—provided
its concrete demands, which it based upon its interpreta-
tion of the constitution, were complied with.
This was the true nature and the substance of the "com-
promise" which gave Henry Clay the first claim to the
proud name of "the great peace-maker.
¹ Stat. at L., III., p. 645.
382
STATE SOVEREIGNTY AND SLAVERY.
CHAPTER X.
DEVELOPMENT OF THE ECONOMIC CONTRAST BETWEEN THE
FREE AND SLAVE STATES.
The Missouri compromise produced no change in party
relations. Monroe was re-elected president by all the elec-
toral votes except one. The "era of good feeling," which
had begun to dawn just after the end of the war with Eng-
land, now really commenced. The people, wearied by the
feverish excitement of the last years, abandoned politics to
the politicians and the latter had to content themselves
with routine business, since there was, for the moment, not
burning question and no noteworthy opposition. But as
yet a peace had not been made; only a truce had been con-
cluded. New questions appeared, which sprang from the
self-same roots as the earlier ones. Their germs could be
traced back to the first year of the existence of the new
constitution and their development had kept pace with the
industrial development of the country. If their full im-
portance was not yet appreciated, this could be partly as-
cribed to purely accidental circumstances and it was partly
due to the fact that the opposition of principles in the in-
dustrial life of the two sections was less and less under-
stood as it assumed a concrete form in the different indus-
trial regions. A little while therefore elapsed before the
party-programmes became clear, and meanwhile the parties.
became more and more geographical ones. This time of
transition was rich in strange transmutations in party-
relations. Leading statesmen changed their positions in
the most barefaced manner.
¹ Deb. of Cong., VI., p. 706.
THE NATIONAL DEBT.
383
During the first presidency of Madison, the bank-ques-
tion again arose, although it was still partially clad in the
old party-robe which it was soon to lose entirely. The
national bank called into life by Hamilton, in 1791, pre-
sented a petition for the renewal of its twenty-year char-
ter. Since the Republicans, who had not yet lost their
old dislike of the institution, formed the majority of con-
gress, the request was refused. At the moment the govern-
ment did not need the support of the bank; the cry against
the "monopoly of the money-aristocracy and the specula-
tors" could reckon, now as twenty years before, upon a
favorable reception with the masses; numerous capitalists
were only waiting until this dangerous competition should
be taken out of the way in order to start banks under state
charters; and the constitutional objections brought forward
in 1791 were again vigorously urged, especially by Clay.¹
The reasons were too many for the influence of the bank to
overcome.
In three years, the picture had completely changed. One
of the most effectual means which the Republicans used
in the struggle against the Federalists had been the con-
stant cry against high taxes. When they came into power
they had to pay some attention to this in their financial
management and, owing to the general prosperity, they
could easily do this without causing any immediate dam-
aging results. After the embargo-policy had begun to
weigh heavily upon the whole industrial life of the nation,
the weak points of the new financial system were soon ap-
parent. The system itself, moreover, was not so different
from that of Hamilton as the earlier utterances of Jeffer-
son and his secretary of the treasury, Gallatin, might have
led people to suppose. The war destroyed the plan. The
reproach of the Federalists that a contest with the greatest
maritime power of the world had been entered into wholly
¹ Deb. of Cong., IV., pp. 279, seq., and 311.
384
STATE SOVEREIGNTY AND SLAVERY.
without preparation was truer from no point of view than
from that of the finances. The heavier capitalists, who
could have made the more important contributions, be-
longed for the most part to the dissatisfied states of the
northeast, and the Republican party did not dare to vote.
taxes which would have laid the financial strength of the
country under heavy contributions, for fear of injuring its
popularity. So the government laboriously slipped along
from month to month by means of small loans which were
only placed with the greatest difficulty, by the issue of
treasury notes, and by other palliatives. All government
securities quickly depreciated, gold and silver constantly
became more scarce, paper money more abundant and
more worthless, and the credit of the nation was smaller
every day. The country was rich all the while, but the
government was rapidly approaching bankruptcy.
Under these circumstances the project of a national
bank was again brought before congress by the petition of
New York. Eppes, the son-in-law of Jefferson, brought
in a report as chairman of the committee on ways and
means, Jan. 10, 1814, which denied to congress the power
"to create corporations" within the limits of the states
without their consent.¹ This was the first change in the
party's position on the constitutional question. The orig-
inal Republican doctrine was that congress could create no
corporations at all. Calhoun at once sought to take ad-
vantage of this first breach made by the English cannon
in the party principles. He moved the appointment of a
committee to consider the propriety of founding a national
bank in the District of Columbia.2 The motion was
agreed to without opposition, but the matter ended there.
Late in the summer of the same year affairs took a new
turn. After the capture of Washington (August 24), all
the banks incorporated by the states, with the exception of
¹ Deb. of Cong., V., p. 122.
2
Ibid, V., p. 171.
DALLAS'S BANK REPORT.
385
those of New England, suspended specie payments.¹ The
fearful confusion of all financial affairs which resulted
from this bore hard upon the treasury. The secretary of
the treasury, Dallas, declared in a report of Oct. 17, 1814,
to the committee of ways and means: "The monied trans-
actions of private life are at a stand, and the fiscal opera-
tions of government labor with extreme inconvenience.
It is impossible that such a state of things should be long
endured." And the sum and substance of his reasoning
was that, "after all," a national bank was the "only effi-
cient remedy."2 At the end of the report he touched upon
the constitutional question, and came to the conclusion
that "discussion" must cease and "decision" become
"absolute"; that the judgment of a congress must be
recognized as settling the question; and that a national
bank was "necessary and proper for carrying into execu-
tion some of the most important powers constitutionally
vested in the government." The man who had said, in
1791 or 1798, that a member of a Republican cabinet
would ever use such language, would have been looked up-
on as crazy. The crown was set to this change of parts,
however, by the accompanying provisions: The capital of
the bank was to be fixed at $50,000,000; the United States
were to subscribe $20,000,000 of this; the bank was to be
obliged to loan the United States $30,000,000; of the
fifteen directors, five, the president among them, were to
be named by the president of the United States; the bank
was not to be taxed, except on its real estate, by the gen-
eral government or the different states; the obligation of
redeeming its notes with specie was not to exist, but other
means were to be tried in order to prevent their deprecia-
¹ See the details in Ingersoll, Second War between the United States
and England, II., p. 251.
2 Life and Writings of A. J. Dallas, p. 236. Annals of XIII. Con-
gress, p. 1285.
25
386
STATE SOVEREIGNTY AND SLAVERY.
tion.¹ Even Hamilton would scarcely have ventured to
lay such a plan before congress.
Congress at once took the proposal under consideration.
Dallas urged speedier action, while he laid bare the whole
financial misery of the government, without regard to
consequences. In a second report of Nov. 27 he said:
"The dividend on the funded debt has not been punctually
paid; a large amount of treasury notes have already been
dishonored; and the hope of preventing further injury and
reproach in transacting the business of the treasury is too
visionary to afford a moment's consolation.
Thus
public opinion, manifested in every form and in every
direction, hardly permits us, at the present juncture, to
speak of the existence of public credit; and yet it is not
impossible that the government, in the resources of its
patronage and its pledges, might find the means of tempt-
ing the rich and the avaricious to supply its immediate
wants. But when the wants of to-day are supplied, what
is the new expedient that shall supply the wants of to-mor-
row?" Jan. 17, 1815, Dallas summed up his accounts,
and showed that "pressing" demands of the previous year,
amounting to $13,186,929, must be satisfied, and that
there were no means provided for doing so. In the house
of representatives Hanson of Maryland illustrated this
general statement by giving some particulars. He affirmed
that in the state department the bills for writing materials
could not be paid; that the government "was obliged to
borrow pitiful sums which it would disgrace a merchant
of tolerable credit to ask for"; that the paymaster could.
not satisfy bills for thirty dollars, etc. Grosvenor of
New York added that $40,000,000 of national paper was
es
¹ Life and Writings of Dallas, pp. 238, 239.
2 Ibid, pp. 245, 246.
3 Ibid, p. 265.
4 Deb. of Cong., V., p. 380.
3
BANK DEBATES.
387
in the market and that it had sunk from eighty to sixty-five
per cent.¹
The necessity of creating some means of help in almost
any way was plain to see from these facts. Yet the de-
bates of congress spun out endlessly. Some Democrats
remained true to the old party doctrine, and denied the
right of congress to call into life a corporation of any sort.
whatever. With the great mass of the Democrats, as
well as of the Opposition, the only question was over the
details of the bill.
2
3
In the first weeks of the new year the two houses of
congress finally agreed upon a bill. Madison sent it back
to the senate, Jan. 30, 1815, with his veto, expressly stating
that he "waived" the constitutional question.¹
Three weeks later the administration was freed from its
most pressing needs by the close of the war; but the de-
plorable condition of the finances and the disturbance
of foreign exchanges still continued, and men knew no
way of extricating themselves from the difficulty, except
by the establishment of a national bank. Madison, in his
message of Dec. 5, 1815, recommended congress to once
more take the question into consideration. Calhoun, too,
brought in a bill, Jan. 8, 1816, and defended it, Feb. 26,
in a very long speech.' He did not touch upon the con-
stitutional question, because, as he said, it would be " use-
less consumption of time" to discuss that any further.
Clay took a prominent part in the debates and warmly
supported the establishment of a bank. He justified him-
¹ Ibid, V., p. 383.
2 Ibid, V., pp. 369, 401.
Webster, Works, III., pp. 35-48.
* Statesman's Manual, I., p. 323. !
"Gold and silver have disappeared entirely.
. Since 1810 or
1811 the amount of paper in circulation had increased from eighty or
ninety to two hundred millions." Calhoun, Works, II., pp. 155, 158.
* Statesman's Manual, I., p. 330.
Calhoun, Works, II., pp. 153–162.
388
STATE SOVEREIGNTY AND SLAVERY.
self for this by saying that "the force of circumstances and
the lights of experience" had made him see "the necessity"
of attributing to congress this "constructive power."
Both houses agreed, at the end of three months, upon a
bill, and on April 10 it received Madison's approval,² al-
though in 1791 he had questioned the power of congress³
and in 1799, in his report to the legislature of Virginia,
had mentioned the incorporation of the bank as one of the
examples of the usurping tendencies of the federal govern-
ment.4
The second national bank was also a purely Democratic
creation, and the most noted Democrats had most to do
with it. Necessity is the mother, not only of invention,
but also of the interpretation of constitutions. Three years
later, the supreme court of the United States gave an unan-
imous decision in favor of the constitutionality of a na-
tional bank. Yet the bank question once more raised a
fearful storm. In this, indeed, the two sections were not
opposed to each other, but the economic differences came
straightway into play, and the result was the strengthening
of the power of the slaveholding aristocracy. But this
last and most heated struggle belongs to a later period.
5
Of much greater and especially of much more permanent
importance was the question of so-called internal improve-
ments, that is, the question whether and how far the federal
government was empowered to undertake or to aid the
construction of roads or canals, the improvement of rivers
and harbors, and the like. Even before the adoption of
the constitution of 1787, negotiations had taken place be-
tween different states, in regard to undertakings of this
¹ Deb. of Cong, V., pp. 622, 623. Compare Benton's note, V., p. 627.
2 Stat. at L., III., p. 266.
3 Deb. of Cong., I., pp. 274, seq., 306.
* Elliot, Deb., IV., p. 550.
5 M'Culloch vs. the State of Maryland. Wheaton's Rep., IV., p. 442;
Curtis, IV., p. 432.
INTERNAL IMPROVEMENTS.
3S9
sort which would be to their mutual advantage. Madison
pointed out in the Federalist (No. XIV.) how greatly the
Union would be strengthened in the future in this way,
and prophesied a rapid advance in this respect. Under
the two first presidents, however, the fulfillment of these
prophesies was impossible, because bringing order out of
the financial confusion absorbed every exertion. During
the administration of Jefferson, the idea was again brought
up, and the building of the so-called Cumberland road was
undertaken. But soon after the embargo-policy and the
war with England turned the public attention and the na-
tional revenues to other affairs.¹ It was not until the
beginning of the third period of the history of the Union
that internal improvements became a fixed question, which
occupied a permanent and prominent place in all political
programmes. Up to this time, and for some time after,
practically only one view prevailed, and this was that it
was desirable or quite necessary to develope a comprehen-
sive and systematic activity in this application of the
federal resources. Jefferson, in his message of Dec. 2, 1806,
directed the attention of congress to this point; Madison
came back to the question, as Calhoun said, "every year,
and even Monroe favored the idea, although he drew the
boundaries of its practical application vaguely and narrow-
ly. The only question was whether congress already had
the necessary power, or whether it was necessary to first
give this to it, by an amendment of the constitution. All
the three presidents named held the latter view. The fact
that they came from a slave state had no influence on this.
They were "strict constructionists," that is, they found in
the constitution no "express" grant of the right and
thought that it therefore could not exist. In the part of
¹ Compare Deb. of Congress, V., p. 676.
2 Statesman's Mann., İ., p. 191.
3
* Ibid, I., pp. 332, 335.
2
993
4
◄ Ibid, I., pp. 402, 491.
390
STATE SOVEREIGNTY AND SLAVERY.
the message already mentioned which touched upon this
point, Jefferson seems to have flatly denied the right.
Madison had not yet wholly given up the position defended
by him in 1796,' but it is impossible to say exactly how
firmly he still held to it. In his message of Dec. 3, 1816,
he spoke expressly of the "existing powers" of congress
which needed only "enlargement",2 and yet, on March 3,
1817, he vetoed an appropriation for the Cumberland road,
on constitutional grounds, without pointing out how far
the "existing powers" reached and wherein congress, in
this particular case, had exceeded them. He spoke quite
clearly on this point, that the consent of the states, within
whose limits internal improvements were to be undertaken
by the Union, could not supply the needed constitutional
power. Monroe seems to have had exactly the opposite
opinion on this point. His view is still more hard to as-
certain than Madison's, although he sketched it in his veto
message of May 4, 1822, in tedious detail. In this mes-
sage he affirms that the building of the Cumberland road
had been "originally commenced and so far executed.
under the power vested in congress to inake appropria-
tions," but that the present bill contained provisions which
could not be justified by that power. Clay, however, de-
clared it absolutely inadmissible to appeal to this particular
right, because the appropriation of money was a result, not
a cause. Monroe's message contains a long argument,
which is wholly based upon this view. It is difficult to
4
¹ See Niles' Reg., XL., p. 208.
2.4
I particularly again invite their attention to the expediency of ex-
ercising their existing powers and, where necessary, of resorting to the
prescribed mode of enlarging them, in order to effectuate a comprehen-
sive system of roads and canals." Statesman's Manual, I., p. 335.
3 Deb. of Cong., V., p. 721.
4
6
Compare Clay, Speeches, I., p. 69.
5 See Statesman's Manual, I., p. 491.
Statesman's Manual, I., p. 515, seq.
CONGRESSIONAL QUIBBLING.
391
see where he found the reconciliation of the two directly
contrary views.
At the same time, very vague ideas prevailed in congress
on the constitutional question. Its discussion was marked
by the same narrow legal spirit which had dictated Monroe's
message and which now reasoned in circles and quibbled
over words. The house of representatives, in 1818, took
refuge behind the right of making appropriations. It de-
cided, March 14, by ninety to seventy-five votes, that con-
gress could "appropriate money" for the construction of
roads and canals, but voted down, by eighty-four to eighty-
two votes, a resolution that it had the right to "construct"
post and military roads and-by eighty-three to eighty-one
votes--that it could "construct" canals for military pur-
poses.¹ As soon, however, as men tore themselves loose
from the literal reading of the constitution, a freer, more
statesmanlike method of thought came into play. It was
infinitely petty to raise a constitutional question at first
and then to crawl out of the difficulty by the shallowest
excuses; but the main point was that the majority of con-
gress was always thereafter prevailed upon to make appro-
priations for internal improvements of national importance.
The quibblers were overwhelmed with such a flood of
arguments appealing to sound common sense that, despite
all their efforts, they remained steadily in the minority.
Clay asked whether the federal aims of the government
could be reached in any other way than by the use of the
federal resources. They could not answer, and it thrust
aside all their hair-splitting objections. It was proved to
them, by a multitude of examples, how greatly the essen-
tial ends of the Union had already suffered, simply because
the resources of the Union had not been earlier applied in
this way. And it was farther argued, with unanswerable
logic, that their principles gave every state the right and
1
¹ Deb. of Cong., VI., pp. 121, 122.
392
STATE SOVEREIGNTY AND SLAVERY.
the might to make the attainment of the main ends of the
Union impossible. Despite the superfluity of spiritless
bits of subtlety which were brought forward at every suc-
ceeding session of congress, the strife finally came to
depend, in every instance, upon the simple question whether
in the certain case a certain sum of money should be voted
by congress. This was so plainly the only solution of the
question, at once intelligent and corresponding to the press-
ing demands of circumstances,' that even the three presi-
dents who denied the constitutional right signed a great
number of bills, which had no other end save the appro-
priation of moneys for internal improvements.2
The most decided champions of the right and the most
zealous defenders of its extended use belonged to the young
states of the west.3 The development of these states would
necessarily remain far behind their capacity for develop-
ment unless the general government, by constructing
canals and roads and regulating river-courses, gave a strong
impulse to immigration and created a profitable market for
their products. Their own resources were not sufficient as
yet for great undertakings, and, moreover, the proportionate
co-operation of several states, needed in most cases, would
have been an almost insuperable obstacle. But sufficient
means of communication became, every year, a more
pressing necessity. Even the lower classes of the population
began to see that these must be created, even if this in-
In response to repeated recommendations to lay a constitutional
amendment before the states, the majority pertinently answered that
they had no reason for doing so, since they did not doubt that congress
already had the right. See the short but excellent discussion of the
constitutional question in Kent, Comm., I., pp. 282–284.
2 Jefferson's presidency: Stat. at Large, II., pp. 180, 359, 397 (three
different appropriations), 524; Madison's: II., pp. 555, 661, 669, 671,
730, 820; III., pp. 206, 282, 315, 318, 377; Monroe's: III., pp. 412, 426,
480, 500, 560, 563, 605, 634, 728, 779; IV., pp. 5, 6, 23, 33, 71, 83, 94, 101,
124, 128, 132, 135, 227. See also IV., pp. 83, 151.
3 Deb. of Cong., VI., p. 450; Clay, Speeches, I., pp. 182, 183.
THE ERIE CANAL.
393
volved, at the beginning, great sacrifices of money. The
completion of the Erie canal contributed greatly to open
the eyes of the masses to this fact. DeWitt Clinton had
experienced the greatest hostility and unmeasured mockery
on account of the work which has made his name immor-
tal. Now, not only was its feasibility proved, but under
its influence wildernesses were converted into fruitful, cul-
tivated lands with magical rapidity. These and many
other less striking experiences imbued the west with an
enthusiasm for internal improvements, which afterwards
brought it into peculiar discord with party-orthodoxy.
When the Democratic party split in two, it was sharply
affirmed though, indeed, the assertion was scarcely justi-
fied by the facts--that Jackson and Adams took substan-
tially different positions on the question of internal im-
provements. Jackson was praised by the majority of his
supporters, because he had given a strong check to the
reckless mischief of the work of this sort carried on under
Adams. But Missouri, which supported Jackson with
spirited enthusiasm, declared with triumphant joy that
this was a wholly groundless calumny, since more had been
spent upon internal improvements during the first two
years of Jackson's presidency than during the whole of
Adams's administration."
At first, the leading statesmen of the south went hand
in hand with the west. Calhoun urged, in 1816, a plan for
constant and systematic action, on the part of the general
government, for the improvement of the means of inter-
communication. On his motion, a committee was ap-
pointed in order to investigate whether it was advisable to
devote the revenue derived by the government from the
national bank to this end. December 23, 1816, he re-
ported a bill, corresponding to this motion, which was
¹ See Niles' Reg., XL., p. 58 and XLII., p. 79. During Adams's ad-
ministration, $2,083,331, and in 1829 and 1830, $2,501,590.
394
STATE SOVEREIGNTY AND SLAVERY.
passed by eighty-six to eighty-four votes.¹ Lowndes took a
similar position. In the vote of March 14, 1818, thirty south-
ern representatives openly declared their belief in the right
to appropriate money for the construction of roads and ca-
nals. Moreover, in December, 1824, Johnston of Louisiana
submitted a resolution in favor of the right to make internal
improvements.2 Only by slow degrees was it clearly seen
that this question too tended to a geographical consolida-
tion of parties, although this tendency could never be fully
carried out. The northwestern slave states, in which slave-
industry was not the sole master, were deeply interested in
having the general government help them to a closer union
with the eastern and southern seaboard states. The north-
east long remained, in part, in a cautious and even suspi-
cious position. It had the least need of federal aid and had
not yet so wholly outgrown its old jealousy of the west as
to clearly see how greatly the industrial development of
the west would be to its advantage. Moreover, the princi-
ple of state rights played a part in this question among the
politicians who sought to make their way by servility to-
wards the south. Thus, Van Buren brought in resolutions
in December, 1825, which opposed the right of congress to
construct roads and canals and favored the introduction of
an amendment to the constitution which should define the
limits of the congressional prerogatives in this respect in
such a way as should "effectually protect the sovereignty
of the respective states" and should insure to every state a
more exact proportional part of the sums voted for internal
improvements.3
In the south proper and in the remaining slave states, in
which the slaveholding interest was supreme, a sectional
opposition to the whole system developed itself very
¹ Deb. of Congress, V., pp. 676, 682, 711; Calhoun, Works, II., pp.
186-197.
2 Niles' Reg., XXVII., p. 270.
3 Deb. of Congress, VIII., pp. 364, 365.
SOUTHERN OPPOSITION.
2
395
strongly in course of time. The simplicity and crudeness
of their industrial methods did not let them feel sufficiently
the need of a great network of means of intercommunica-
tion. They were always glad to see the improvement of
their harbors and of their rivers, by which the products of
the west reached them, undertaken by the federal govern-
ment, but yet the conviction curtly expressed by a Louis-
iana congressman as early as 1817: "Louisiana wants no
roads!"" steadily gained ground. If they did not wish to
go as far as this, they declaimed against the injustice with
which everything was lavished upon the north, while the
south went empty-handed away. That the facts gave not
the slightest support for these complaints made no differ-
ence. The south never asked for facts when its presumed
interests demanded that it should wail over the tyranny of
the north. The legal grounds for the opposition were
found, of course, in state rights, but as a general rule this
doctrine was kept within comparatively narrow limits.
Yet the legislature of Virginia suffered itself once (1826)
to be carried away so far as to declare, by a verbatim quota-
tion of the decisive sentences in the resolutions of 1798
and 1799, that the increase of duties for the purpose of
protecting home industries and the passage of acts "pre-
paratory to a general system of internal improvements"
were unconstitutional."
3
66
When the Jacksonian wing of the Republican party
came into power, the Opposition thought its time had come.
¹ Deb. of Cong., V., p. 710.
2 The Charleston Mercury of Feb. 20, 1830, said: "The uniform prac-
tice of that system proves that the south, so far from partaking equally,
has been totally excluded, and that the system itself has been wholly
used as an engine for the oppression of the south and the enrichment of
the north.” Niles' Reg., XXXVIII., p. 255.
³ See Niles' Reg., XXXVI, p. 168, and XXXVIII., p. 255, where there
is an exact statement of how much of the sums voted for internal im
provements up to the end of 1828 fell to each state.
4
* Ibid., XXX., p. 38.
396
STATE SOVEREIGNTY AND SLAVERY.
66
This hope seemed justified when the president vetoed the
Maysville road bill. But it soon appeared that Jackson
only laid claim to the right to decide in each particular
case whether or not the matter was properly a national"
undertaking and whether the use of federal resources was
"expedient." The constitutional question did not pro-
gress an inch. The strife continued with varying violence,
but one internal improvement after another was under-
taken, and the system was constantly pushed farther and
farther.
The industrial contrasts of the free and slave states
entered much more directly into the tariff struggle than
into the questions of a national bank and internal improve-
ments. In modern civilized countries free trade and pro-
tection have fought an almost constant battle, which dates
much farther back than the origin of the North American
republic. Here it began independently of slavery, as it has
continued since the abolition of slavery. But yet the
thirty-year tariff war (1816-1846) finds its explanation
only in the form given by slavery to the industrial circum-
stances of the south. It is, in fact, "the expression of
the struggle, in the sphere of economics, between freedom
and slavery." All the great questions upon which the in-
ner contests of the republic from 1789 to 1861 were
fought did not have their origin in slavery; but it was
slavery which, in this as in all the others, made parties
coincide with geographical sections.
The necessity of a common commercial law and of as-
sured national revenues, which could be most easily raised
by duties, had given the strongest impulse to the call of
the convention at Philadelphia. One of the first ques-
tions, then, that came before congress for action was the
regulation of duties on imports. The preamble to the
¹ Compare Niles' Reg., XL., p. 106.
2 Kapp, Geschichte der Sklaverei, p. 171.
•
THE TARIFF.
397
bill signed by the president July 4, 1789, provided that
the customs and other taxes were to serve "for the en-
couragement and protection of manufactures." Repeated
reference was made in the debate to this side of the ques-
tion. Fitzsimmons of Pennsylvania demanded protection
for the makers of tallow candles. Hartley, of the same
state, expressed himself as generally in favor of protective
duties, and Madison recognized the justice of the demand
to a certain degree. Clymer of Pennsylvania went far-
thest, and declared that the protection of home industries
by duties was a "political necessity." On the other
hand, Bland of Virginia, and especially Tucker of South
Carolina, demanded that in deciding upon duties only the
revenue to be obtained should be considered, because under
a protective system all are taxed for the benefit of a few.
Partridge and Ames paid especial attention to the shipping
interest, and opposed the taxation of hemp and rope.2 Here
the party-grouping of the next five-and-twenty years is
already indicated. Madison expressed his especial satis-
faction over the fact that no geographical division had be-
come noticeable; he said that it was plain that different
views about the propriety of a protective policy prevailed
in all parts of the Union. The constitutional question
was not once raised. But then at least no one thought of
taxing imported wares simply for the purpose of protect-
ing existing American manufactories from foreign compé-
tition, or, indeed, for the sake of making it possible, for
the first time, to establish American manufactories. Men
only wished to see the duties necessitated by the needs of
the treasury laid in such a way that they would actually
serve to encourage American industry. A large majority,
at the moment, wished that this should be done. Hamil-
ton was directed by the house of representatives to prepare
¹ Statutes at Large, I., p. 24.
2 Deb. of Cong., I., pp. 25, 26, 27, 35, 36.
³ Deb. of Cong., I., p. 55.
398
STATE SOVEREIGNTY AND SLAVERY.
a report upon "the means of promoting such [manufac-
tures] as would render the United States independent of
foreign nations for military and other essential supplies."
Hamilton prefaced his long report with the remark that
the propriety of a protective tariff, in the sense already
given, was now "pretty generally admitted," and then
defended the view himself with great ability."
During the war with England, the question assumed a
new phase. Thanks to the European war troubles, the
American shipping business, which was mainly in the
hands of New Englanders, received a great impulse, until
the embargo policy began to lay fetters on its further de-
velopment. Manufacturing industry, which quickly re-
vived when the war closed the European sources of supply,
offered a certain compensation for this. The financial
difficulties of the government had already, in 1812, com-
pelled a doubling of all the customs, with a further tax of
ten per cent. on goods imported in foreign ships. In
order to make this heavy imposition seem more endurable
to the discontented New England states, they were com-
forted with assurances that this proviso was to give an im-
pulse to their own peculiar industry. The prophecies of
the comforters proved true, but only as long as the abnor-
mal state of things continued. The end of the Napoleonic
wars and the peace of Ghent threatened the ship-owners
as well as the manufacturers with speedy ruin. The seas
5
4
¹ Dallas' report of Feb. 12, 1816. Niles' Reg., IX., p. 441.
Ham., Works, III., p. 192.
3 Statutes at Large, II., p. 768.
" Webster, Works, III, p. 230.
3
Randolph wrote, Dec. 15, 1814, to a New Englander: "Of all the
Atlantic states you have the least cause to complain. Your manufac-
tures and the trade which the enemy has allowed you have drained us
of our last dollar.” Garland, Life of Randolph, II., p. 60. Ingham
of Pennsylvania estimated, in 1816, the capital invested in manufactures
within the last eight or ten years at $100,000,000. Debates of Congress,
V., p. 628.
TARIFF OF 1816.
399
were again free to all ships, and England threw an over-
supply of goods upon the American market, in order to
destroy the home competitors before they acquired a firm
footing. Congress was therefore overwhelmed with peti-
tions for aid from persons engaged in manufacturing pur-
suits, who complained the more earnestly because, accord-
ing to the law of July 1, 1812, the double duties were to
cease one year after the conclusion of peace. The failure
of many manufacturers gave proof that the young indus-
tries could really be maintained only by artificial aid. But
this could scarcely be given without sadly interfering in
many ways with the interests of the ship-owners. The
New England states were therefore at odds with one an-
other on the tariff policy to be followed. In New Hamp-
shire and in Massachusetts, to which Maine then belonged,
the shipping interest prevailed; in Rhode Island and Con-
necticut the manufacturing interest. The agricultural
states held fast to the latter. The south wavered, for it
had not yet learned to see that slave labor and manufactur-
ing on a large scale exclude each other.
Under these circumstances a sort of compromise was
brought about in 1816. The report of secretary of the
treasury Dallas emphatically advocated protection to home
industry by high duties, especially in the case of those
goods which could be produced in sufficient quantity in
the United States. He wished to see the goods which
would be produced, beyond question, in the United States
subjected to a light revenue tax, and those which must be
in the main imported placed under medium duties. The
bill which was introduced by Lowndes of South Carolina,
as chairman on the committee on ways and means, adopted
this classification, but in general agreed with the funda-
mental theory that the raising of revenue should be the
leading principle in the calculation of the duties. The
¹ Niles' Reg., IX., pp. 436–447
400
STATE SOVEREIGNTY AND SLAVERY.
principle of protection was only incidentally recognized
here. The makers of cotton and woolen wares, who had
been the especial subjects of congressional care, had to
satisfy themselves with a duty of twenty-five per cent.,
which was to be lowered to twenty in three years. It is
characteristic of the position of parties at that time that
Calhoun appeared as a champion of protective duties, es-
pecially in reference to cotton and woolen manufactures.¹
He was of opinion that "things naturally tend at this
moment" to the "introduction of manufactures." Web-
ster stood up for the opposite side. Louisiana demanded.
protection for the sugar planters.³
The agitation for
The tariff adopted
This compromise satisfied nobody.
higher duties was at once begun again.
by the house of representatives in 1820, but rejected by
the senate, bore the mark of an undisguised protective
system. The ship-owning states took, in part, the position
they occupied in 1816. Whitman of Massachusetts was
among the most violent opponents of protection. In all
things else parties had evidently already reared the posi-
tion which they finally occupied.5 The south had gained
clearer views of its interests, and the young west strove
for the leadership on the side of protection. Yet Henry
Clay, the father of the so-called "American system,"
still showed some foresight in his expressions. He was on
his guard, lest manufacturing should be given unreason-
able encouragement by protective duties.
6
Defeat did not discourage the protectionists, but rather
spurred them on to redoubled activity. Other causes,
which were in great part of a purely personal nature, con-
6
¹ Calhoun, Works, II., pp. 163, 164; Deb. of Cong., V., p. 640.
Calhoun, Works, II., p. 169.
³ Debates of Congress, V., p. 632.
4 Clay, Speeches, I., p. 158.
See Niles' Reg., XVIII., p. 169.
Clay, Speeches, I., p. 155.
TARIFF STRUGGLE OF 1824.
401
tributed to split the Republican (Democratic) party into
the Democrats¹ and the National Republicans (Whigs), but
the tariff was the leading political question for a series or
years. The load which had weighed down all industrial
life during the last few years put a priceless means of agi-
tation into the hands of the protectionists. Under the
Teadership of Clay they availed themselves of this with
such dexterity that Monroe yielded to their pressure, and
recommended, in his messages of Dec. 2, 1822 and Dec.
2, 1823, a revision of the tariff in behalf of protection.2
Strengthened in this wise, the protectionists again began
the fight in 1824. Its character was from the first mark-
edly different from that of the earlier debates. The con-
stitutional question, which had hitherto been raised quite
incidentally and in the form of doubts, was now sharply
urged. The constitution gives congress simply the power
"to lay and collect taxes" and "to regulate commerce
with foreign nations." Nowhere in the instrument is
there a limitation or any sort of qualification in regard
to duties, except that they must be the same for the whole
Union. The party which had such an abhorrence of every
"construction" of the constitution and of all "derived
powers" saw itself, therefore, again obliged to use the art
of construing in a really wondrous manner, in order to
settle the legal question. The right of taxation, they
affirmed, had only been granted to congress in order to
obtain the money needed for the legitimate aims of the
government. To levy a tax for any other purpose, or to
¹The official name, so to speak, of the party had been, up to this
time, Republicans.
* Statesman's Manual, I., pp. 448, 458.
3 Art. I., Sec. 8, § § 1, 3.
As far as this was concerned Madison stood unconditionally with
the protectionists. Niles' Reg., XLIII., Suppl., pp. 33-37. Jefferson
took practically the same ground in his reports on the fisheries (Feb. 1,
1791) and on the limitations of trade (Feb. 23, 1793). Compare also, his
letter to Dr. Leiper, Jan. 21, 1309, Works, V., p. 416, seq.
26
402
STATE SOVEREIGNTY AND SLAVERY.
fix a customs duty imposed for such a purpose in any
other way than that dictated by an exclusive consideration
of the needs of the treasury, was, they said, beyond the
power of congress. The first condition precedent to the
Union, the equality of all its members, would be over-
thrown if all were burdened for the benefit of a few. It
would be madness to authorize congress to fatten northern
manufacturers on the life-blood of the south.
1
2
This was the real party-cry and it was now uttered in
all distinctness for the first time. Randolph called atten-
tion, with natural boastfulness, to the fact that Massachu-
setts, now as at the time of the Revolution, stood side by
side with Virginia in the cause of freedom. And besides
Massachusetts, Maine and New Hampshire went with the
south. But yet it was the fashion to decry the protective
system as an attempt of selfish New England, and the
south sought to monopolize the rôle of the maltreated vic-
tim. Randolph dwelt with bitter satisfaction upon the fact
that the south stood together in solid phalanx. Of course,
the geographical division of parties was not precisely in
accordance with his view. Clay himself represented a
state which is commonly spoken of as belonging to the
south. The inhabitants of the plantation states were of
course opponents of protection to a man, and this was amply
sufficient to give the strife the hatefulness and perilousness.
of a sectional struggle. They were, indeed, still half in
doubt whether every possibility of manufacturing develop-
ment had been taken away from them by slavery, but they
appreciated the fact that they had no sort of manufactures,
and showed no inclination whatever to venture upon man-
¹ Deb. of Cong., VIII., pp. 10, 16. Webster, Works, III., p. 229.
2 "I bless God that in this insulted, oppressed and outraged region,
we are, as to our counsels in regard to this measure but as one man;
that there exists on the subject but one feeling and one interest." Deb.
of Cong., VIII., pp. 10, 15.
* The sugar and indigo planters always formed an exception.
DEFEAT OF THE SOUTH.
1
403
ufacturing enterprises. They had only their staple ex-
ported articles and depended for every other thing upon.
the rest of the world. They could therefore obtain no
direct compensation for the heavy burdens of a protective
tariff, and they either wholly failed to recognize the indi-
rect advantages which accrued to the whole Union from
the protective system, according to its champions, or con-
sidered them of a worth which could bear no sort of com-
parison with the burden of taxation. They rightly under-
stood that the promises of a speedy lessening of the load
would only be fulfilled when their opponents reconciled.
themselves to a partial abandonment of their main princi-
ple. The latter evidently thought nothing of their own
promises. Tyler of Virginia had foretold, as early as 1820,
that the manufacturers would have to come back again and
again with increased demands. This explains the sharp-
ness of speech noticeable from the first in the debates of
the representatives of the plantation states. They held it
necessary to use at once the threat of a full enforcement of
state sovereignty as a radical check to all displeasing meas-
ures of the general government. Randolph spoke with
more than customary emphasis of "the might" of the
south and reminded his hearers that under every constitu-
tion "by an unwise exercise of the powers of the govern-
ment, the people may be driven to the extremity of re-
sistance by force."2 Such pregnant words had been let
fall in congress too often to frighten the majority of mem-
bers, as long as it was not known whether there lay behind
the words an earnest, determined will. The bill passed
both houses, in the lower, indeed, by only one hundred and
seven to one hundred and two votes, and in the senate by
twenty-five to twenty-one.3
¹ Deb. of Cong., VI., p. 617.
2 Ibid, VIII., p. 11.
3 Benton, Thirty Years' View, I., p. 34; compare Niles' Reg., XXVI.,
p. 113.
404
STATE SOVEREIGNTY AND SLAVERY.
The plantation states used this scanty majority as a con-
vincing answer to the accusation of the protectionists that
the south sought to overthrow, by threats, the highest fun-
damental principle of a republic, the rule of the majority.
In a political organization of the peculiar composition
of the Union, they objected, it is not only imprudent, but
unjust, to allow a majority of half a dozen votes to be suf-
ficient to decide a question of this nature and of such deep
significance, when the separation of economic interests is
so sharply marked by a geographical line. There was
truth and important truth in both views, but interest was
so overpowering on both sides that men were incapable of
a sober consideration of the just complaints of their op-
ponents. The battle continued and assumed a still more
bitter and critical character, inasmuch as the manufacturing
interest began to identify itself with the National Republi-
cans or Whigs. Before this, the protectionists had always
brought forward their demands at the time of the presi-
dential election, and now their leaders sought to fully
entwine it with this question, in which, every four years,
all the passion and the hate of American party politics are
summed up. Both parties were carrying on the agitation
among the masses of the people with energy and system,
when the request of the woolen manufacturers and wool-
growers for more effective protection gave, in 1828, an
impulse to a new protectionist revision of the tariff. South
Carolina and Georgia formed the extreme wing of the
anti-tariff party, while Webster, now in league with Clay,
stood at the head of the protectionists. Webster justified
his desertion to the other camp by explaining that the
adoption of the tariff of 1824 had given the country to un-
derstand that the protective system was to be the permanent
policy of the nation; New England had guided itself by
this decision and was now obliged to demand protection
for the manufactures which had arisen in consequence of
THE TARIFF AND SLAVERY.
3
405
this.¹ This justification was not adapted to weaken the
opposition of the plantation states. Whether or not the
protective system had been recognized as the permanent
policy of the country, they could only lose by giving up.
According to their views of the working of the system,
they were, as Hamilton of South Carolina expressed it,
"coerced to inquire whether we can afford to belong to
[such] a confederacy." They could not shut their eyes to
the fact that they were going backwards, in an economic
sense, despite the increasing demand for cotton and their
other staple products, and they painted their own decline
in the most glaring colors, because they ascribed it wholly
to the tariff and the other features of the economic policy
of the general government. This was the way to handle
the theme in order to drive the southern people to frenzy,
for if this assertion was true, they were practically given
the alternative of putting an end at any cost and by all
means to that policy or of abandoning themselves, with
torpid resignation, to inevitable ruin. But yet these com-
plaints of the retrogression of the south gave the north a
trump card, which it did not fail to play. Not the tariff-
said the northerners--lets "the fox house himself where the
hearthstones of your fathers stood": it is slavery that has
turned fields which bore rich fruit twenty and thirty years
ago into deserts. In the heat of the conflict, many a word
slipped from southern lips which proved the justice of this
reproach. But for the very reason that this was well
founded, it kindled the strife to a more fiery glow, so that
slavery was again directly pointed out as the demon which
sowed discord between north and south.
4
¹ Webster, Works, III., pp. 228–247.
² Deb. of Congress, X., p. 112.
³ Niles' Reg., XXXV., p. 205; Benton, Thirty Years' View, I., pp. 98,
99, and in many other places.
* See the eighth paragraph in the protest of the legislature of South
Carolina. Niles' Reg., XXXV ; p. 309.
406
STATE SOVEREIGNTY AND SLAVERY.
The loss of the greater part of those who had been up to
this time its allies in the north made the defeat of the
south a certainty if its opposition was managed in the same.
way as in 1824. The representatives of South Carolina
therefore labored to bring about common action by all the
anti-tariff states in accordance with a definite programme.
The discussions in their meetings for counsel showed that
matters must come to a decided crisis if everything went
according to their wishes.¹ Hamilton, the future governor
of South Carolina, already weighed the possibility of an
attempt to execute the law by force, and declared that the
idea of a man's really thinking of this was " an absurdity
not to be heard of." No conclusions could be arrived at,
and still less was it possible to succeed in forming a com-
mon plan of operations with the other members who were
of the same general opinions.
A part of the press outdid even the members of congress
in the violence of its opposition as well as in the scope of
its projects. Thus the Southron and the Columbia Tele-
scope, for example, advised the calling of a congress of the
Opposition states, an idea, the meaning of which was gen-
erally recognized, but which had to be dropped because
discontent, at any rate in Georgia, had reached such a height
that the extreme proposals of South Carolina might have
been agreed to.² There was also no lack of moderate coun-
sels on the part of the press-counsels which condemned
all unconstitutional opposition.3
The legislatures took up the matter. The South Caro-
lina legislature did so most vigorously. Protests were the
order of the day. Every member considered himself bound
to introduce a series of resolutions which strove to outdo
1
Compare the declarations called forth from different members by
the Hayne-Mitchel debate. Niles' Reg., XXXV., pp. 183-185, 199-203.
2 Ibid, XXXIV., pp. 300, 301.
3 Compare the numerous extracts in Niles' Reg., XXXIV., pp. 352–
:
356.
PRACTICAL NULLIFICATION.
407
each other in bitterness.¹ Passionate speeches were, more-
over, made at meetings in different districts, at banquets
and on similar occasions. Men especially delighted in
toasts, in which eloquence went far beyond the bounds of
good taste, and threats extended to the farthest limits of
the "moral high treason" so greatly blamed a short time
before.
The terrible earnestness of all these demonstrations lay
in the theories of constitutional law upon which they were
based. They rested wholly on the Virginia and Kentucky
resolutions, to which, indeed, the legislature of South Car-
olina directly appealed." The Colleton district declared:
"We must resist the impositions of this tariff . . and
follow up our principles
to their very last conse-
quence." Resolutions introduced by Dunkin in the leg-
islature gave the legal formula by which this was to come
to pass in a way commensurate, so to speak, with the mat-
ter. He demanded in this and in all similar cases the
convocation of a convention of the states in order to nul-
lify the laws objected to.¹
Simultaneously, all sorts of other means were brought
into play in order to nullify the tariff practically if not
legally. Numerous leagues were formed, which bound
A passage in the resolutions introduced by Cook in the legislature
of South Carolina deserves to be quoted, because it is a sign of the
spirit in which the radical wing of the state-rights party began to look
upon the relation of the states to the federal government. It says:
"When a state solemnly protests against an act of congress because it
is an usurpation of power, congress ought forthwith to call a convention
of the states to decide upon it and suspend its operation until the sense
of the states be taken, and if congress, on the application of a state or
states, should refuse to call such conventions, neglect to suspend its op-
eration or not immediately repeal the act on the grounds of its uncon-
stitutionality, it thereupon becomes null and void to all intents and pur-
poses." Niles' Reg., XXXV., p. 306.
2 Ibid, XXXV., p. 206.
3 Ibid, XXXIV., pp. 288, 290.
4 Ibid, XXXV., p. 305.
408
STATE SOVEREIGNTY AND SLAVERY
themselves not to buy from the north and west any goods
which were protected by the tariff from foreign competi-
tion, but instead to use wares of native manufacture. Even
in South Carolina, Georgia and Alabama, the embitterment
against the north produced a momentary possibility of
building up a manufacturing industry of their own.¹ But
it had to be admitted that it would be at least very doubt-
ful whether much could be done by individuals in this way,
and an energetic display of state power was therefore de-
manded. Prohibitory duties were thought of and other
projects were broached, which were also in direct opposi-
tion to the constitutional provisions in art. I., sec. 10, §§
1 and 2. It was therefore only talked of, and this did not
avail to crown the policy of terrorism with any practical
result. The new tariff became a law and the collection of
the duties was nowhere opposed. But the accomplishment
of the fact did not bring back repose to the land. The
outward alarms were weaker for a while, but the agitation
was so much the deeper. It was felt on both sides that the
decision would come with the next war. The protection-
ists soon recognized the fact that Tyler's prophecy was still
always true and South Carolina prepared herself to test the
efficacy of her constitutional means of protection.
¹ Niles' Reg., XXXV., pp. 15, 48, 60, 62, 63, 64, 83.
'Part of the events mentioned above happened after the adoption of
the tariff.
SECRET WORKINGS OF SLAVERY.
409
CHAPTER XI.
THE PANAMA CONGRESS. GEORGIA AND THE FEDERAL
GOVERNMENT.
After the Missouri compromise, the slavery question ap-
parently slept for some years. Its intimate alliance with
the tariff-struggle was only understood by slow degrees,
and other problems, which would have brought forward the
opposing principles and interests involved in it, did not
crop out for the moment. The politicians felt no inclina-
tion to artificially create such problems. There were, in-
deed, Catalines in the south even now, but they were not of
such extraordinary talents that they would have ventured
to play with this fire, when its ravaging strength had just
been so powerfully shown. The justification of the com-
plaints which became so current, later, among all parties and
were already becoming loud here and there, that the apple
of discord had again been thrown among a people longing
for rest by ambitious men, fanatics and demagogues, re-
duces itself, everything considered, to a minimum. The
best proof of this is that slavery, despite the silent agree-
ment of the politicians to try to shun every mention of it,
often suddenly and unexpectedly became the determining
element in questions which in and for themselves stood in
no sort of relation to it.
The most important instance of this sort, which had, in-
deed, no practical results, but sharply sketched the situa-
tion, happened at the beginning of the presidency of the
younger Adams.
As early as 1821 the idea of forming a close connection
between the Spanish colonies in Central and South Amer-
ica, then engaged in revolution, had been suggested by
410
STATE SOVEREIGNTY AND SLAVERY.
3
Colombia.¹ A few months before their independence was
recognized by the United States,2 a treaty was negotiated
between Colombia and Chili (July, 1822) in which a con-
vocation of a congress of the new republics was contem-
plated. "The construction of a continental system for
America," which should "resemble the one already con-
structed in Europe," was the apparent project of these
two powers. The idea ripened very slowly. It was not
until the spring of 1825 that the meeting of the congress
in Panama was so far assured that the ambassadors of
Colombia and Mexico verbally inquired of Clay, who was
then secretary of state of the United States, whether an
invitation to be represented at the congress would be ac-
ceptable to the president. Adams had an answer sent,
worded in his own cautious way, to the effect that he first
wished to be informed concerning the topics agreed upon
for discussion, the nature and form of powers to be given
to the "diplomatic agents," and the "organization and
method of procedure" of the congress. The ambassadors
of the two mentioned states, in their formal letters of in-
vitation, gave very unsatisfactory assurances on these
points.5 Clay referred to this in his answers, but at the
4
¹ Webster, Works, III., p. 195; report of the senate committee on
foreign affairs of Jan. 16, 1826; Niles' Reg., XXX., p. 103. All the
documents referring to the congress of Panama, as far as the United
States are concerned, can be found in the State Papers (Foreign Rela-
tions) and also in Niles' Reg., Vol. XXX. Part of them are printed in
Elliot, American Diplomatic Code, II., p. 648, seq.
2 Monroe recommended the recognition to congress in a special mes-
sage of March 8, 1822, (Elliot, Diplomatic Code, II., pp. 640-642;
compare also Adams's dispatch of May 27, 1823, to Anderson, the am-
bassador of the United States in Colombia) and this was ratified by both
houses by the almost unanimous appropriation of the money needed
for the creation of embassies. (May 4, 1822, Statutes at Large, III., p.
678.)
3
Report of the senate committee, Jan. 16, 1826.
4 Clay's report of March 14, 1826, to the house of representatives.
5 Salazar (the ambassador of Colombia) to Clay, Nov. 2, 1825, and
Obregon (the ambassador of Mexico) to Clay, Nov. 3, 1825.
JOHN QUINCY ADAMS.
411
same time declared that the president had decided to ac-
cept the invitation "at once.”¹
When the question of sending representatives to the
congress came up in the senate, and later in the house, the
Opposition tried to make capital ont of this piece of incon-
sistency. It was too meaningless in itself to deserve any
censure. Its interest was due simply to the fact that it
lifted for a moment the veil of the future.
Adams, both as a statesman and as an individual, re-
sembled his father in many respects. He was of an ear-
nest, deeply moral nature, and knew how to stamp this
character upon his administration in a degree which, com-
pared with all the following presidencies, makes an ex-
tremely favorable impression. Political ambition was one
of his most prominent characteristics; but this did not de-
generate in him, as it did in his father, into morbid vanity.
He did not know what the fear of man meant. In the
struggle for the right of petition, which he afterwards
carried on alone in the house of representatives for a long
while, he found a certain satisfaction in driving to frenzy,
by his biting satire, the representatives of the slaveholding
interest, who then held almost absolute power. But his
scorn for all the arts of demagogues not infrequently
turned into rudeness, and his firmness into obstinacy; and
yet, at the same time, under certain circumstances, he let
himself be influenced too much by others. During his
long diplomatic service he had acquired a habit of prudent
examination, which sometimes led, in the more difficult
questions, to irresolution and vacillation. This is, how-
ever, partly due to the fact that sober, statesmanlike
thought and idealism were not properly fused together in
his nature. The former decidedly outweighed the other;
but yet the latter made itself felt, and not infrequently in
a destructive way.
1 The answers are dated Nov. 30.
412
STATE SOVEREIGNTY AND SLAVERY.
Ingham of Pennsylvania read in the house of represen-
tatives two newspaper articles, which treated the request
for participation in the Panama congress in exactly differ-
ent ways. He stated that it was as good as certain that
the article opposing this had proceeded from or been in-
spired by Adams, and the one in its favor by Clay.¹ He
gave no proof for the assertion. It must therefore remain
a question whether his zeal in opposition did not lead him
to put forward groundless suspicions as facts. But it may
be considered as sufficiently proved that Adams at first
looked on the project much more coolly than he did after-
wards, and that, Clay was not without influence upon this
change of opinion.
Clay had rendered great services to the young republics.
He had been the most determined champion of their affairs
in the United States. He had at first demanded with
my eergy that sympathy for them should not exhaust
itself in worthless words, but take the form of acts. No
defeat frightened him from the field, and it was largely
due to his constant efforts that their independence had
been already recognized by the United States in the spring
of 1822. His speeches on these questions are among
the most brilliant productions of his genius. His most
notable characteristics, as well as his greatest weaknesses,
appeared in them in the clearest light. His enthusiasm
lifted him, with a bold sweep, to a height from which
he looked down with compassionate impatience upon the
petty politicians who, in their routine-wisdom, could not
see the forest because of the trees around them. The
knowledge that America was an integral part of one civi-
lized world dawned in his mind. If his agitation was
based on the sharp emphasis which he laid on the opposing
positions of America and Europe, yet the fact does not con-
tradict this assertion. Exactly because he did not, in his poli-
¹ Debates of Congress, IX., pp. 198–200.
CLAY'S HUMAN-FREEDOM LEAGUE.
413
tical reasoning, lose sight of Europe, he strove for the consoli-
dation of America and insisted upon its peculiar characteris-
tics and its specific interests. The attempt of the Holy Al-
liance to fetter together Europe in behalf of the interests of
absolute monarchy made it seem to him desirable, if not
necessary, to oppose to this "unholy league" a union of the
states founded upon the "American principle" of popu-
lar sovereignty. The authorship of this idea of a solidar-
ity of the interests of all America, resting not only upon
the geographical proximity of states, but mainly, indeed,
upon the identity of their fundamental political principles,
belongs, not exclusively, but yet chiefly, to Clay. Accord-
ing to his plan this solidarity of interests was to assume
concrete form in the Panama congress. It would there be
legally adopted so far as this fundamental political prin-
ciple had obtained practical recognition. From this firm
standpoint he hoped to see the great plan he had announced
as early as 1820 realized-the establishment of a "human-
freedom league in America," in which "all the nations.
from Hudson's Bay to Cape Horn" should be united, but
not simply for the sake of remaining in permanent con-
trast to Europe, tortured by despots. He declared that
through the power of example, through its moral influence,
the American system would ever extend farther and far-
ther, so that a point of union, a haven for freedom and
lovers of freedom, would be formed upon the soil that was
wet with the blood of the revolutionary forefathers.
Friedrich Kapp finds in these ideas the "far-seeing
view of a clever statesman," and apparently makes the
slaveholders alone responsible for the fact "that Clay's
high aims remained only pious wishes." The facts do
not, in my opinion, fully justify this judgment; too much
responsibility is laid upon the slaveholders. Even with-
out their opposition Clay's ideas could not have been
¹ Geschichte der Sklaverei, p. 193.
414
STATE SOVEREIGNTY AND SLAVERY.
realized. Under the actual circumstances the ideas were
too clever, and so not truly statesmanlike. No one will
deny Clay's gifts for statesmanship; but he yielded too
readily and too earnestly to the lead of his vigorous fancy.
He had to thank it for many fruitful thoughts, but it often
prevented his weighing the nature of his plans and the
chance of their realization with the necessary soberness.
The vast extent and the uncivilized condition of the young
west, whose most distinguished representative he was,
mirrored itself strongly in his thoughts. He dazzled his
hearers by the splendor of his projects, won them a hear-
ing by his fiery, alluring eloquence, and helped himself
and his followers over the difficulties in the way by a glit-
tering sketch of the consequences which must result from
the development of the ideas. His fancy's flight was
towards the sun, but it bore him so high that mountains
and valleys began to melt into a plain, and the foot resting
on earth stepped uncertainly and insecurely. Moreover,
his boldness in decision and action, when every-day cir-
cumstances created great and momentous problems that
imperatively demanded a thorough solution, did not cor-
respond with his boldness in planning. At such times he
could not even entertain an energetic wish for a solution,
partly because he did not subject the question of its neces-
sity to proper inquiry, and partly because traditional
dogmas and a lack of moral courage made him start with
the supposition of its impossibility. Bargaining was
then the sum of his wisdom, and his activity degenerated
into obstinacy in chaffering. An idealist who wasted the
best part of his creative power in impracticable projects,
and a politician who was an unsurpassable master of the
art of solving great and unavoidable problems by little
expedients, these are the most notable traits in Clay's
political character. They do not give his picture in full,
but they mark the tendency of his influence upon the fate
HENRY CLAY.
415
of the Union. His other qualities and achievements did
not lift him above the level of ordinary politicians.
1
In his speech of March 24, 1818, "on the emancipation.
of South America," he denied the justice of the assertion
that the South Americans were too ignorant and too super-
stitious "to allow of the existence of a free state." He
questioned the ignorance, but yet denied that ignorance
necessitated incapacity for self-government. That, he de-
clared, was the doctrine of the throne, and conflicted with
the natural order of things. The South Americans, he
said, "adopt our principles, copy our institutions, and in
many cases use both the language of our revolutionary
ordinances and the thoughts therein expressed." These
were facts, indeed, but this blind imitation of the "great
example" surely pointed much more to incapacity than to
capacity for intelligent self-government. If the Holy
Alliance was to be opposed by a league of free states of a
sort that could exist, it was self-evidently a condition prece-
dent that the members of the league should be in harmony
with the suppositions upon which the league was to rest.
It was not enough that they were not ruled by kings; they
must be in truth republicans, that is, must have put the
theory of popular rule into execution in a rational manner.
This was not the case, to a sufficient degree, among the
younger free states. On this account Clay's hopes would
doubtless have remained beautiful illusions, even if the
Opposition had not delayed the decision so long that the
ambassadors of the United States reached Panama too late.
It is another question whether Adams's more modest wishes
might not have been partly fulfilled.
The secretary of state had known how to impart to the
president something of his own enthusiasm, which let him
see in the Panama congress the boundary stone of a "new
¹ Clay, Speeches, I., pp. 89, 90.
416
STATE SOVEREIGNTY AND SLAVERY.
2
epoch of the world's history." Adams's message to the
house of representatives fairly surpassed Clay's effusions
in pompous phrases. He doubted whether such a favora-
ble opportunity for subserving "the benevolent purposes
of divine providence" and dispensing "the promised
blessings of the Redeemer of mankind" would again be
presented to the United States in centuries. With this
tasteless piece of declamation, however, he satisfied his
artificially-kindled enthusiasm. The message now begins
to treat, in a measured, statesmanlike way, of the ques-
tions which the president especially wished to see discussed
by the congress and in regard to which he thought the
attainment of advantageous results not impossible. He
discusses, first and most thoroughly, the conclusion of friend-
ly and commercial treaties, on the basis of complete reci-
procity, on the footing of the most favored nation, “the
abolition of private war upon the ocean," and limitations
of war-usages, in regard to contraband-of-war and blockade,
in such a way as to favor neutral trade. After explaining,
with great minuteness, his position on the Monroe doctrine
and the way in which he wishes to see it brought before
the congress and treated by the latter, he touches upon
¹ Instructions of May 8, 1826 to the ambassadors. Niles' Reg.,
XXXVI., p. 71.
2" But objects of the highest importance, not only to the future wel-
fare of the whole human race, but bearing directly upon the special in-
terests of this Union, will engage the deliberations of the congress of
Panama, whether we are represented there or not. Others, if we are
represented, may be offered by our plenipotentiaries for consideration,
having in view both these great results, our own interests and the im-
provement of the condition of man upon earth. It may be that in the
lapse of many centuries no other opportunity so favorable will be pre-
sented to the government of the United States to subserve the benevolent
purposes of divine providence, to dispense the promised blessings of
the Redeemer of mankind, and to promote the prevalence, in future ages,
of peace on earth and good will to man, as will now be placed in their
power, by participating in the deliberations of this congress." Niles'
Reg., XXX., p. 55.
REASONS OF OPPOSITION.
417
Hayti and Cuba with diplomatic prudence,¹ and finally ex-
presses the opinion that an effort should be made on the
part of the United States to obtain the recognition of "the
just and liberal principles of religious liberty." The mes-
sage ends with a sort of apology for the exaggerated hopes
expressed in its beginning. Adams repeated, indeed, that
the matter was one of "transcendent benefit to the human
race," but yet called the meeting of the congress "in its
nature, a measure speculative and experimental," and de-
clared that it would perhaps be "too sanguine" to expect
the realization of "all or even any" of its grand aims.
3
If Clay reveled in Quixotic allusions and if Adams, too,
had been drawn into his intoxication, the Opposition in
both houses of congress went just as far on the other side.
The zeal shown was, indeed, in great part, a sham. The
Panama mission was not the ground of the opposition, but
merely gave this the opportunity of introducing itself with
effect as an Opposition party. To this was due the bound-
lessness of the attacks by which congressmen made them-
selves still more ridiculous than the secretary of state had
made himself by the boundlessness of his hopes. Adams.
rightly called the idea and the plan "benevolent and hu-
mane." But the Opposition was so crazed in its blind zeal,
that, out of policy, it had not the slightest word of approval
¹ I shall return to these three points.
* Adams had already urged this view, as secretary of state, in his in-
structions to Anderson, May 27, 1823. (Elliot, Dip. Code, II., p. 653.)
It appears, indeed, from the message that he at first thought only of
assuring to citizens of the United States the free exercise of their relig-
ion, which had already been secured to them in the treaties with Co-
lombia and Central America.
³“An opposition is evidently brewing. It will show itself on the Pan-
ama question." Webster to J. Story, Dec. 31, 1825, Webster, Priv.
Corres., I., p. 401. Brent of Louisiana said in the house of representa
tives: “Can an Opposition to the present administration be so preju-
diced as not to see that this measure recommended by the president is
for the protection of our southern interests?" Deb. of Congress, IX.,
p. 105.
27
418
STATE SOVEREIGNTY AND SLAVERY.
for any point whatever of the whole scheme. Every part of
it was raked over the coals and the most innocent portion
was held
up as the source of sure destruction. In the senate,
as well as in the house, a morbid conscientiousness in thẹ
fulfillment of pretended neutral duties was displayed.¹ All
proofs drawn from international law against the alleged
danger were fruitless, since men would not be convinced.
They constantly argued on the supposition that represen-
tation in the congress involved an active participation in all
its debates and decisions. A breach of neutrality might
easily be deduced from this, for Spain still maintained all
her claims to her former colonies, and the latter had placed
upon the programme of the congress different questions
directly relating to the war with the mother country. This
was carrying the dishonesty of the conflict to an extreme.
From the time of the first informal negotiations, it had
been provided for and agreed to by both sides at every op-
portunity, and in the most express words, and it was clearly
understood, that the neutrality of the United States was to
be in no way endangered. Adams pointed this out in his
messages to congress and added, moreover, that the partic-
ipation of the representatives of the United States was
"wished" only in those discussions which did not bear
upon the war of the other powers with Spain.2
All the other points were treated in the same way as
this. Adams brought forward—what, in fact, did not need
to be said at all—that the congress would be a simply "de-
liberative" assembly. But the Opposition demonstrated
3
¹ Deb. of Congress, VIII., pp. 423, 432, 433, 436; IX., p. 168, passim;
Niles' Reg., XXX., p. 103.
2 Salazar, in his letter of Nov. 2, 1825, to Clay, divides the topics of
discussion under the heads (I.) and (II.) into the common concerns of
the war-making powers and the interests common to them and the neu-
tral powers.
³ In Clay's instructions of May 8, 1826, to the ambassadors is this
passage: All notion is rejected of an amphyctionic council, invested
with power finally to decide upon controversies between the American
THE HOLY ALLIANCE.
419
to him that the congress would have the right to make
binding resolves, and stamped it as ignorance and folly to
let the country be bound by Epigoni of unequal birth.
Objections of this sort were brought with especial em-
phasis, and not without a certain justification, against the
suggestion of an universal endorsement of the Monroe doc-
trine, a doctrine that originated in the same circumstances
that gave birth to the Panama congress. In July, 1818,
lord Castlereagh told the American ambassador Rush, in
a conversation at the house of the French ambassador,
that England had been requested by Spain to mediate, with
the co-operation of the Holy Alliance, between her and her
rebellious colonies. Rush answered this revelation with the
declaration that the United States would take part in no
intervention for peace, "if its basis were not the indepen-
dence of the colonies."1 In August, 1823, Rush learned
from Canning that the Holy Alliance was beginning to
seriously think of interfering in colonial affairs in favor of
Spain. England's position on the question had meanwhile
substantially changed. If Castlereagh had been willing in
1818 to make the return of the colonies under Spanish
dominion the basis of the attempt at intervention, Welling-
ton had by this time used very different language at the
congress of Verona, and now Canning declared himself
ready to act in direct opposition to the plans of the Holy
Alliance, provided he were assured of the co-operation of
the United States. Rush at once forwarded these state-
ments of Canning to his government, which received them
states or to regulate in any respect their conduct." But hence Kapp has
not a happily chosen expression when he says (Gesch. der Sklaverei, p.
193) that Clay had in view the creation of "an American amphyctionic
court to counteract the European Holy Alliance." See, however, Deb.
of Congress, VIII., p. 649.
1
¹ Rush, Report of July 31, 1818; Elliot, Dip. Code., II., pp. 639, 640.
Compare Rush, A Residence at the Court of London from 1819 to
1825, II., pp. 30-40. See also Rush's letters to Clay of June 23, 1827,
and February 15, 1842; Clay, Priv. Corresp., pp. 165, 467.
420
STATE SOVEREIGNTY AND SLAVERY.
with "great satisfaction," for, as Calhoun, the then secre-
tary of war, afterwards declared, the power of the Alliance
was so great that the United States themselves had not
felt safe from its intermeddling. Monroe sent the records
concerning the matter to all the members of his cabinet,
and at the same time asked Jefferson for his opinion. The
latter answered that "America, North and South," as a
result of its own peculiar interests, should also have a
peculiar political system, founded on freedom. It should
be a leading principle of the United States "never to suffer
Europe to intermeddle with cis-Atlantic affairs." For the
attainment of these ends the offered help of England should
be accepted, even at the risk of a war.¹ The cabinet, after
long and careful consideration, came to the same opinion.
Almost at the very moment when Spain formally invited
the allied powers to a conference in Paris, the president
announced in his annual message of Dec. 1, 1823, the so-
called Monroe doctrine. Its essence is contained in the
following sentences:
3
"We declare that we should consider any attempt [of
"Our first and fundamental maxim should be, never to entangle our-
selves in the broils of Europe. Our second, never to suffer Europe to
intermeddle with cis-Atlantic affairs. America, North and South, has
certain interests distinct from those of Europe, and peculiarly her own.
She should therefore have a system of her own, separate and apart from
that of Europe. While the last is laboring to become the domicile of
despotism, our endeavors should surely be to make our hemisphere that
of freedom. One nation, most of all, could disturb us in this pursuit.
She now offers to lead, aid, and accompany us in it. By acceding to
her proposition, we detach her from the bands, bring her mighty weight
into the scales of free government, and emancipate a continent at one
stroke, which might otherwise linger along in doubt and difficulty.
But the war in which the present proposition might engage us,
should that be its consequence, is not her war, but ours.
It is
to maintain our principle, not to depart from it.
of Mr. Canning's opinion that it will prevent, instead of provoking,
war." Jeff. Works, VII., pp. 315, 316.
2 Webster, Works, III., p. 202.
3 Foreign State Papers, V., p. 250.
But I am clearly
MONROE DOCTRINE.
421
the allied powers] to extend their system to any portion of
this hemisphere as dangerous to our peace and safety.
With the governments who have declared their independ-
ence and maintained it, and whose independence we have,
on great consideration and on just principles, acknowledged,
we could not view any interposition for the purpose of op-
pressing them or controlling, in any other manner, their
destiny by any European power, in any other light than as
the manifestation of an unfriendly disposition towards the
United States."
This declaration was received by the people with lively
satisfaction. It was largely due to this, that Spain's prayers
for intervention received no attention. But now all
fears that the Holy Alliance would try to put in a word or
two in the affairs of the United States¹ had vanished. And
on this account a very different interpretation was given
to the Monroe doctrine. In the letters of invitation from
Mexico and Colombia, this question occupied a prominent
position. Obregon referred to Monroe's message and said
that the "only means" of preventing or practically oppos-
ing the interference of neutral powers, was "a previous
agreement about the method in which each of the congress-
powers should give its co-operation." Salazar spoke even
of an "eventual alliance," and wished that "the treaty, no
use of which is to be made until the appearance of a casus
foederis, may remain secret." Besides this, both the am-
bassadors declared that the congress would settle how all
possible attempts of European powers to establish colonies.
on American soil were to be met. These were proposals
of a very earnest sort. The Opposition affirmed, unques-
tionably with justice, that their adoption by the United
States would not be a simple re-affirmation of the Monroe
doctrine. The Opposition defended itself from the reproach
that it had become indifferent to the cause of freedom in
¹ Clay's report of March 9, 1826, to the house of representatives.
422
STATE SOVEREIGNTY AND SLAVERY.
the rest of America; it simply wished, it said, to preserve
to the United States the freedom of choice and not to bind
them to draw the sword under all circumstances in behalf
of the other American states, when European powers in-
terfered in their affairs. The weak point in the argument
of the Opposition was again the assumption that the ful-
fillment of the wishes of Colombia and Mexico would
result simply from the representation of the United States
in the congress, without any further action. Even in this
case, there was no lack of apparent justification. Among
the documents which the president sent in to congress there
was a dispatch of Clay to Poinsett, the ambassador of the
United States to Mexico, in which was this passage: "Only
about three months ago, when Mexico thought France was
meditating an invasion of Cuba, the Mexican government
at once demanded through you, from the government of
the United States, the fulfillment of the memorable pledge
given by the president in his message of December, 1823,
to congress." Clay, indeed, explained the opinion here
expressed, in his report of March 29, 1826, to the house of
representatives, by saying that the United States stood
pledged, not to a foreign power, but only to themselves.¹
But the Opposition naturally did not accept this explana-
tion as sufficient. Yet whatever the secretary of state
might think, in any event the view of the president must
rule and the latter had expressed himself so clearly that the
Opposition did not even try to twist his words from their
meaning. As secretary of state, he had had a prominent
part in the announcement of the Monroe doctrine and had
steadily occupied a perfectly consistent position. He would
1 "If, indeed, an attempt by force had been made by allied Europe to
subvert the liberties of the southern nations on this continent and to
erect upon the ruins of their free institutions monarchical systems, the
people of the United States would have stood pledged, in the opinion of
their executive, not to any foreign state, but to themselves and their
posterity, by their dearest interests and their highest duties, to resist to
the utmost such attempt."
CLAIMS OF THE SLAVEHOLDERS.
423
therefore have gladly seen the question brought before the
congress and gave it to be understood that he considered a
general declaration in its favor as not inadvisable. But he
expressly stated that under no circumstances would any
pledges be entered into beyond the reciprocal assurance of
the powers represented that they would execute the princi-
ples laid down in the doctrine, each within its own territory
and with its own resources.¹ So, on this point, too, there
failed to be any sufficient reason for such a violent opposi-
tion.
Yet there was no lack of objections of practical signifi-
cance. In the house of representatives, these were only
lightly touched upon, partly because the northern members
of the Opposition party looked with the greatest displeasure
upon any vigorous urging of them, and especially because
only the question of appropriating money to pay the ex-
penses of the mission, already decided upon in accordance
with the provisions of the constitution and without the co-
operation of the house, came before the latter body. The
Opposition wished to attach conditions to the appropriation
which amounted to instructions given to the president as
well as to the ambassadors, and consequently the debate
went far beyond the proper bounds. But yet it had to be
kept within certain limits, so that the real cause of the
embittered struggle, outside of opposition for the sake of
opposition, can scarcely be discovered in it. But in the
senate it appeared so much the more clearly that the slave-
holding interest was again the cause of strife. There was
no attempt to conceal this. It was proclaimed in a hither-
to unheard-of way. The slaveholders simply stated that
they saw in the congress peril to their "peculiar institu-
tion," and drew from this fact, in the same conclusive
way, the inference that this must be recognized eo ipso
¹ See the message of Dec. 26, 1825, to the senate and the one of March
15, 1826, to the house of representatives. Compare, also, the instructions
to the ambassadors. Niles' Reg., XXXVI., p. 77.
424
STATE SOVEREIGNTY AND SLAVERY
as an absolute veto. The municipal character of slavery
was wholly stripped off, form and substance. It appeared
as an independent power, which only obtained its rights
when it dictated the domestic and foreign policy of the
Union. Clay and Adams had pointed out freedom and
popular sovereignty, in contradistinction to the absolutistic
principles of the Holy Alliance, as the underlying basis
of the political and social life "of America." Now the
south affirmed that in reference to the rest of America, as
well as to Europe, slavery must be and remain the prime
motive of the foreign policy of the United States. Who-
ever cannot yet clearly understand that an "irrepressible
conflict" existed between north and south can learn much
from the rigorous logic with which the southern senators
in this debate put forward slavery as an impassable wall
between the United States and the rest of the world.
In the invitations to the congress Hayti was mentioned,
a name that had an ominous sound in the southern states for
more than thirty years. If they could have blotted one.
page out of the book of history, it can scarcely be doubted
that they would have chosen the one which told the story
of the successful negro revolution in Hayti. It was a cry
of warning, the whole significance of which was recalled
to the conscience of the slaveholder by the slightest cause.
The thing which had been done could not be undone; but
men did what they could,--the independence of Hayti
did not exist for the United States. The commercial
spirit of the people would not suffer the permanent pro-
hibition of the lucrative trade with the island; but no in-
ternational relation existed between the two republics.
1
¹ At the request of Napoleon, expressed in an imperious tone, a law
of Feb. 28, 1806 (Statutes at Large, II., p. 851) had prohibited all com-
merce with the island for a year. The law referred, indeed, only to
places not found in the possession of the French; but the French rule
was actually broken everywhere. The French ambassador had express-
ly based the demand of the emperor on the ground that this matter con
cerned "African slaves," the dregs of humanity.
HAYTI.
425
Salazar touched lightly upon this in his letter of invita-
tion, and let it clearly appear that it was his wish that
Hayti should be recognized as a member, with equal rights,
of the American family of nations. He admitted that
the question "involved grave difficulties," on account of
"the different way in which Africans are looked upon,
and the different rights they enjoy in Hayti, the United
States, and the other American states;" but expressed the
hope that, despite this, an understanding might be arrived
at. He imprudently used in this connection the phrase:
"This question will be determined by the congress.
991
Adams did not mention this point at all in his message
to the senate, and in the one to the house he explained, in
a diplomatically verbose and vague sentence, that the am-
bassadors had been instructed to give reasons for further
delay in the recognition of Hayti and "to refuse consent
to any arrangement whatever upon different principles."
The silence concerning the reasons which had hitherto
hindered the recognition was scarcely less suggestive than
the foaming rage which the passage already quoted from
Salazar's letter called forth in the senate.
The history of the republics gave an example which
was "scarcely less fatal than the independence of Hayti
to the repose" of the south. They had not only copied
from the revolutionary records of the United States the
words "freedom" and "equality" and "universal eman-
cipation," but had actually broken the chains of all slaves.²
1 The word "determine" had been used in the official newspaper of
Colombia. See Debates of Congress, VIII., p. 423.
2 "With nothing connected with slavery can we consent to treat with
other nations, and least of all ought we to touch this question of the
independence of Hayti in conjunction with revolutionary governments,
whose own history affords an example scarcely less fatal to our repose.
Those governments have proclaimed the principles of liberty and equal-
ity, and have marched to victory under the banner of 'universal eman-
cipation.' You find men of color at the head of their armies, in their
legislative halls, and in their executive departments." Hayne, March
14, 1826, Debates of Congress, VIII., p. 427.
426
STATE SOVEREIGNTY AND SLAVERY.
2
A discussion with them, therefore, over any question
whatever in which slavery was in any way whatever in-
volved was less admissable than with any one of the other
powers, for this action-and this alone-had made them
in the eyes of the south "buccaneers, drunken with their
new-born liberty." This, however, was only incidentally
touched upon. The main thing was that slavery should no
more be made, in any way whatever, a subject of negotia-
tion with other powers than the rights of slaveholders
should be subjected to any sort of discussion inside of the
Union. It had already been pointed out as a mistake that
attempts had been made to conclude treaties with England
and Colombia for the suppression of the slave trade.²
"The peace of eleven states in this Union will not permit
the fact to be seen or told that for the murder of
their masters and mistresses they [the slaves of Hayti]
are to find friends among the white people of these United
States." The whole question "is not debatable, neither
at home nor abroad, not even in this chamber." Hayne,
of South Carolina cried: "To call into question our rights.
is grossly to violate them; to attempt to instruct us on
this subject is to insult us; to dare to assail our institu-
tions is wantonly to invade our peace. Let me solemnly
declare, once for all, that the southern states never will
permit, and never can permit, any interference whatever
in their domestic concerns, and that the very day on which
the unhallowed attempt shall be made by the authorities of
the federal government we will consider ourselves as driven
from the Union." But there was no need even of an
unjust interference. "To touch [the question] anywhere
is to violate our most sacred rights, to put in jeopardy
our dearest interests, the peace of our country, the safety
¹ Deb. of Cong., VIII., p. 456; Niles' Reg., XXX., p. 170.
2 Ibid, VIII., p. 426.
a Ibid, VIII., p. 469.
4 Ibid, VIII., p. 426.
HATRED OF HAYTI.
427
of our families, our altars, and our firesides." And even
this does not fully show the terrible nature of the question.
Johnston of Louisiana wished to see the country repre-
sented at the congress, but for precisely the same reasons
which, according to the views of Benton, Hayne, Berrien
and others, forbade any thought of such a thing. He
wished the "South American states" to be informed of
"the unalterable opinion" of the United States that "the
unadvised recognition of that island [Hayti] and the pub-
lic reception of their ministers will nearly sever our dip-
lomatic intercourse, and bring about a separation and
alienation injurious to both." "I deem it," he continued,
"of the highest concern to the political connection of these
countries to remonstrate against a measure so justly offen-
sive to us, and to make that remonstrance effectual."
Hayne, too, had already demanded that "the ambassadors
in South America and Mexico should be instructed to
protest against the independence of Hayti." These were
drastic illustrations of the old assertion that not the blame,
but the compassion, of the world was deserved, because a
hard fate had let the curse brought upon the land by the
avarice of England descend to the innocent children of
the third and fourth generation. Could Clay lay his finger
on a resolution of the Holy Alliance which smacked more
strongly of the mouldy barbarism of by-gone centuries?
If the request for a discussion of the independence of
Hayti, which could exert no sort of influence upon the
United States, except by its moral force, irritated the slave-
holders to such a degree, they were naturally still more
¹ Deb. of Cong., VIII., p. 441.
2 Hamilton of South Carolina declared in the house of representa-
tives: I should avow what I believe to be the sentiments of the south-
ern people on this question; and this is, that Haytian independence is
not to be tolerated in any form.
A people will not stop to
discuss the nice metaphysics of a federative system when havoc and
destruction menace them in their doors.”
428
STATE SOVEREIGNTY AND SLAVERY
moved by the fact that Cuba was threatened, since here
material interests of the greatest significance were actually
concerned. Clay declared that "even Spain has not such
a deep interest in such a multiplicity of forms in the
future fate of Cuba, whatever that fate may be, as the
United States." The increasing weakness of Spain there-
fore gave the administration the liveliest anxiety. Many
a longing look had already been cast by the United States
upon
the rich island which commanded the Gulf of Mexico.
But men did not conceal from themselves the fact that
many weighty reasons spoke against its acquisition and,
moreover, did not look upon the legal question as a matter
of secondary importance. There was a quite unanimous
agreement that, taken all in all, the interests of the United
States--both the general interests and the special ones of
the slaveholder-demanded the maintenance of the status
quo in Cuba. But this seemed seriously threatened on
different sides. England and France were looked upon
with distrust, especially the latter, because she had already
sent a strong squadron into the West India seas without
giving any special reason for doing so. Colombia and
Mexico had been wrapt up for some time in thoughts of
invasion. The safest way to avoid these dangers was evi-
dently to bring to an end the war between Spain and her
former colonies. In the Spring of 1825 the United States.
ambassador at St. Petersburgh was instructed to urge the
emperor to persuade Spain to give up the hopeless
struggle. The gist of the instructions may be condensed
into the four following sentences: the United States wish
no change in the political relations of Cuba; they could
not see with equanimity the island pass into the possession
of any European power whatever; the independence of
2
3
' Instructions of the ambassadors to the Panama eongress
2
Clay's dispatch to Middleton of May 10, 1825.
3 Compare also Clay's dispatch of October 25, 1825, to Brown, United
States ambassador at Paris.
CUBA.
429
Cuba is not desired by them, because this could be main-
tained with difficulty, and because the struggle for it would
probably assume the same terrible character that the revo-
lution in Hayti did; the last-named reasons, which have
an especial weight on account of the existence of slavery
in the United States, apply equally to any possible at-
tempts of acquisition made by Colombia and Mexico.
These four points, with the strongest emphasis laid upon.
the last, were urged in all the other official writings of the
administration on this affair. The reasoning was only
varied to correspond with the change of address, and the
tone grew sharper in proportion as circumstances devel-
oped.
2
After Nesselrode had returned an answer in the name
of the emperor,' which was received at Washington as,
upon the whole, favorable, and after "the freeing of the
islands of Porto Rico and Cuba from the Spanish yoke"
had been openly placed upon the programme of the Pana-
ma congress, Clay sent a new dispatch to Middleton,³
which was intended to urge Russia to immediate action.
It had already been declared that the United States could
not with equanimity see Cuba pass into the hands of a
European power. Now it was directly declared that the
United States would not "allow" and "permit" it. More-
over, the position of the country in regard to Colombia's
and Mexico's plans of acquisition was more sharply de-
fined. It was stated, first, that "the president could see
no just ground for armed intervention" if Spain should
obstinately continue the war, for invasion would then be
only a "legal warlike operation" of the states named.
Yet this declaration was linked with a significant condi-
¹ Nesselrode to Middleton, August 25, 1825.
2 The words quoted are taken from the programme already mentioned,
published in the official newspaper of Colombia. In Salazar's and
Obregon's letters of invitation Cuba is not mentioned.
3 December 26, 1825.
430
STATE SOVEREIGNTY AND SLAVERY.
tion. "If these republics, contrary to all expectation,
should place arms in the hands of one race in order to de-
stroy another; if . they should countenance and en-
courage excesses and actions which, on account of our
proximity, could by infection endanger our repose and
safety; then the government of the United States might
feel obliged to interpose." This same conditional threat,
in vaguer form, had already been directly expressed to
Spain before the transmission of the first dispatch to
Middleton. It had been expressly stated in this that the
United States did not insist upon the stoppage of the war
"for the sake of the new republics." Colombia and
Mexico had also been informed of the wishes of the United
States; but the somewhat bitter mouthful was made more
pleasant to the taste, inasmuch as a certain friendly tone.
could be detected in the diplomatic expressions, chosen
with the greatest prudence. Dec. 20, Clay sent similar
notes to Salazar and Obregon, in which their respective
governments were requested to delay the expedition
against Cuba, which, it was said, was being fitted out in
Carthagena or elsewhere. The main reason for this re-
quest was stated to be that the negotiations undertaken
with Russia for intervention in the interests of peace had
some prospect of success.
But besides this, it was also declared in a very intelligi-
ble way that under certain circumstances the United States
would intervene if their wish were not respected.²
If a reproach could rightly be brought against the ad-
ministration, it was surely not that the Cuban question had
been lightly considered, or even merely that the govern-
1 Clay's dispatch to Everett, April 27, 1825.
2" It would also postpone, if not for ever render unnecessary, all con-
sideration which other powers [i. e. the United States] may, by an irre-
sistible sense of their essential interests, be called upon to entertain of
their duties, in the event of the contemplated invasion of those islands,
and of other contingencies which may accompany or follow it."
THREATS.
431
ment had not sought to defend with circumspection and
energy the especial interests of the slaveholders, which
were involved in this question. Yet the majority of the
representatives of the south were not of this opinion, and
the small minority which stood by the president affirmed,
like the rest, that circumstances now demanded a still more
energetic treatment. On the main question, majority and
minority were united. They disputed only whether repre-
sentation in the congress, or absence from it, would be
more in accordance with their views. The minority
throughout the debate did not fall behind the majority it-
self in the determination with which it demanded the
thwarting of the plans of Colombia and Mexico. If Hayne
made the declaration that the United States would not
"permit" the South American states "to take or to revo-
lutionize" Cuba,¹ and if Berrien wished "by the blessing
of God and the strength of our own arms to enforce the
declaration," Johnston himself considered it as self-evi-
dent that "threats" should be tried, if "advice" and "re-
monstrances" did not avail.³ All the representatives of
the slave states were unanimous in thinking that the want
of a sufficient reason for interference in case of an inva-
sion, to which Adams referred, should not control the
matter. With equal clearness the reasons for this were
summed up in the one phrase: the duty of self-preserva-
¹ Deb. of Cong., VIII., p. 429.
2" If our interest and our safety shall require us to say to these new
republics: 'Cuba and Porto Rico must remain as they are,' we are free
to say it, yes, sir, and by the blessing of God and the strength of our
own arms to enforce the declaration, and let me say, too, gentlemen, these
high considerations do require it. The vital interests of the south de-
mand it and the United States will be recreant from its duty, faithless to
the protection which it owes to the fairest portion of this Union, if it
does not make this declaration and enforce it." Ibid, VIII., p. 456.
"Advise with them-remonstrate-menace them if necessary, against
a step so dangerous to us, and perhaps fatal to them." Ibid, VIII., p.
440.
432
STATE SOVEREIGNTY AND SLAVERY.
tion.¹ Buchanan, always a courtier of the south, translated
this phrase, which on account of its cold prose might have
produced little effect upon many ears, into a striking pic-
ture. Cuba, he maintained, would become a terrible ex-
plosive powder-magazine for the south, because Colombia
and Mexico" always marched under the standard of uni-
versal emancipation" and "always conquered by proclaim-
ing liberty to the slave."" No representative of the north
made any objection to the application of this comparison,
and none could be made. The condition of affairs was
stated in it with absolute clearness, but still no represen-
tative of the north stood up to point out, in just as curt a
phrase, how the south had played fast and loose with its
arguments. Slavery is a domestic affair of the south; to
interfere with it is to dissolve the Union,--this was the first
position of the south. Slavery is like a powder-magazine,
which can be fired as easily from without as from within;
the danger of this occurrence must lead the federal gov-
ernment in the way pointed out to it by the south, which
alone understands the question,-this was its second posi-
tion. The slaveholding interest thus laid claim not only
to be recognized as the sovereign power in the state, but it
put itself above the state.
As the Virginia and Kentucky resolutions, since they
had no immediate practical results, had been passed over
in favor of events of the day, so the Panama congress was
also forgotten and still more quickly. The administration
gained a formal victory in both houses, but practically the
Opposition had reached its end by delaying the decision.
When the ambassadors of the United States arrived in
Panama, the congress had already adjourned and the
1 "It is demanded of this government by every consideration of self-
preservation—the great law of nature and paramount to all other law—
by our interests and by humanity [!] not to suffer the present condition
of Cuba to be altered." Powell of Virginia, Deb. of Cong., IX., p. 96.
2 Ibid, IX., p. 142.
TROUBLE WITH GEORGIA.
433
agreed-upon reunion in Tacubaya did not take place. This
pitiable end of Clay's illusions makes the long and earnest
debates in both honses appear to superficial critics like
nonsense. Their bitter earnestness was recognized only af-
ter long and harsh experience. The American league of
the people which, in opposition to the princes' league of
European despots, was to be a refuge of freedom for the
whole world, had indeed dissolved into mist. Instead of a
formal protest against the machinations of the Holy Alli-
ance and a spirited exhortation to enslaved nations to
maintain unbroken courage in the holy struggle for right
and freedom, the world was comforted with a sweeping, un-
reserved confession of faith of the slavocracy, which made
the slaveholding interest the starting-point, the means and
the goal of the national policy of the only free state, the
voice of which was of weight in this matter. This, also,
had no immediate practical results. But, as in the case of
the state-rights men and the Virginia and Kentucky reso-
lutions, so now the slaveholders had registered their claims.
This gave a permanent meaning to the otherwise absolutely
fruitless and aimless struggle over the Panama mission.
Another question, which also originated at the begin-
ning of Adams's presidency, soon won a much greater
practical significance, although it concerned an affair which
at bottom was only formally a national one. When Georgia,
on April 24, 1802, ceded to the Union her western lands,
she did so on the condition that the United States " as
soon as it can be done in a peaceful way and on reasonable
conditions" should acquire for the state the territories of
the Creeks and Cherokees, which lay within her borders.
The federal government had indeed acquired for Georgia,
on repeated occasions, certain stretches of lands from both
these tribes, but the possibility of persuading them to a
voluntary sale of the whole territory constantly became
smaller, for they had become settled, and the ties of civ-
ilized life bound them every year more firmly to the place.
28
434
STATE SOVEREIGNTY AND SLAVERY.
Georgia therefore became anxious and impatient, for she
failed to feel confident that she, like the free states, would
be able to compel the Indians, by the pressure of a higher
civilization, to break up their settlements and wander
farther into the western wilderness. A memorial of the
legislature in 1819 urged the president to hasten the ful-
fillment of the agreement of 1802. It insisted that the
state had a "right" to the soil, but yet expressly asserted
that this right could be realized only through the federal
government. The administration was entirely willing to
fulfill its pledges, but the more emphatically Georgia in-
sisted upon this, the more firmly the Indians refused to
sell. A counsel of Creek chiefs at Tuckebachee declared, on
May 25, 1824, that the lands still in their possession were
only sufficient for the support of the tribe, and resolved,
appealing to the guaranties given them in all the treaties,
(to) sell one foot" of their land.
This resolution was to hold good for all time and was rec-
ommended to the consideration of the chiefs in a very
emphatic way. "We have guns and ropes; and if any of
our people should break these laws, those guns and ropes
are to be their end." On the 29th of October of the same
year, a counsel of chiefs met again at Polecat Spring,
passed a resolution of the same tenor, and committed it-
confiding in the magnanimous disposition of the citizens
of the United States to render justice" to the Indians-to
a newspaper for publication, "so that it may be known to
the world."2
66
(6
on no account
The negotiations with the commissioners of the United
"The state of Georgia claims a right to the jurisdiction of the terri-
tory within her limits.
She admits, however, that the right is
inchoate, remaining to be perfected by the United States, in the extinc-
tion of the Indian title; the United States pro hac vice as their agents."
Worcester vs. State of Georgia, Peters, Rep., VI., p. 585; Curtis, X.,
p. 264.
2 The resolutions are quoted in full in Niles' Reg., XXVII., pp.
222-224.
TREATY OF INDIAN SPRINGS.
435
States, which took place in December at Broken Arrow,
were therefore also without result. But Georgia was deter-
mined not to allow herself to be kept longer from the rich
territories of the Indians. Her avarice recognized no
Indian rights which were to be respected, and the commis-
sioners allowed themselves to obtain in a treacherous way
what could not be bought by an honorable bargain. A part
of the chiefs were persuaded to sign a treaty of sale at
Indian Springs, which was approved, despite the remon-
strances and protests of the Indian agents, by the senate
and the president (Adams)." The Creeks declared that the
treaty was a shameful betrayal and fulfilled upon the chiefs
M'Intosh, Tustunugge and Hawkins the law of Tucke-
bachee, which imposed the penalty of death upon every
seller of the tribal territory. The grand jury of Milledge-
ville branded the deed as "nefarious murder," although
the Creeks were unquestionably justified in passing and
executing such a law, by their own customs as well as by
their tribal status as recognized by the treaties. This was
also the opinion of the administration, after it had been
shown that M'Intosh and his fellow-culprits had fallen vic-
tims, not to the revenge of individuals, but to a resolution.
of the chiefs. Yet the occurrence caused grave anxiety,
for it showed what opposition the fulfillment of the treaty
would meet. The reckless and arrogant way in which
governor Troup, on his own responsibility, took steps to-
wards the expulsion of the Indians, was not adapted to
lessen this anxiety. According to the representations of
the Indian agents, the summary execution of the chiefs
was due in great part to the land-survey ordered by the
governor. This, however, freed the agents from the accu-
sation of having incited the Indians.
¹ Governor Troup to secretary of war Barbour, June 3, 1825. Niles'
Reg., XXVIII., p. 317.
2 Stat. at L., VII., p. 237.
³ Niles' Reg., XXVIII., p. 196.
436
STATE SOVEREIGNTY AND SLAVERY.
66
Adams viewed the matter very gravely. He commis-
sioned col. Andrews to investigate the complaints against
the Indian agents and gen. Gaines received orders to sup-
press any hostilities on the part of the Indians and to seek
some way in which an understanding could be arrived at
with them. Both Andrews and Gaines adopted a prudent,
conciliatory course of conduct towards the governor, but
they were soon completely at odds with him, since he at-
tacked them in a vulgar way in his official papers, because
they did not unconditionally accept his views of the state
of things, but practically conducted an impartial examin-
ation. He not only considered himself authorized to cen-
sure them, but he defined in the harshest tone of arrogance
the limits of their competence. Every step they took,
according to him, was a usurpation. His proof for this
was a simple "dixi!” which found its justification in the
sovereignty" of the state, the embodiment of which, ac-
cording to him, was the governor. The federal govern-
ment was to him a wholly foreign power, with which he
maintained “diplomatic intercourse." In his letters to
Andrews, Gaines, and even to the secretary of war, he
never speaks of the federal government, but always uses
the expression "your government." He does not conde-
scend to any discussion of the question of his competence,
because he does not even recognize the possibility of any
such question. The sovereign state of Georgia passes
sovereign resolutions and the governor, responsible to her
alone, accomplishes these, despite the protest of all the
powers of the world. State sovereignty had never before
been pleaded in such an unconditional way and with such
insolent boldness. Yet the administration followed Troup's
example in this, that it avoided the usual practice of con-
sidering the matter from a constitutional standpoint. It
went quietly on its way, leaving Troup to show how far he
would venture to make good his pompous words by deeds.
Secretary of war Barbour informed the governor, May 18,
COLLISION OF FEDERAL AND STATE AUTHORITIES. 437
2
1825, in the politest way, that the land-survey ordered by
him could not be permitted. There is not the slightest
doubt that this prohibition was within the power of the
federal government. The execution of a treaty depends,
self-evidently, only upon the parties to the treaty, unless
the contrary is expressly provided in the treaty itself.
Georgia was not a party in this case, and therefore had no
initiative whatever in regard to the treaty. Moreover,
art. 8 of the treaty set forth that the Creeks could delay
their departure until Sept. 1, 1826, and bound the United
States to give them, until then, the fullest protection of all
their rights. Thus even the president had not the right to
authorize the survey, without the consent of the Indians.
But apart from all this, Georgia undeniably had not this
right, for section 5 of the law of March 30, 1802, concern-
ing intercourse with Indians, forbade "any citizen” of the
United States and any "other person" "to survey or at-
tempt to survey" the lands belonging and guarantied to
the Indians, under penalty of a fine of not more than $1,000
and imprisonment of not more than twelve months.³
Troup reasoned otherwise. On the 3rd of June he re-
plied to the secretary of war, "without troubling him
with the argument," but simply "stating the fact" that
"on the instant of the ratification the title and jurisdiction
became absolute in Georgia." He therefore did not doubt
"I am instructed to say to your excellency that the president expects
from what has passed as well as from the now state of feeling among
the Indians, that the project of surveying their territory will be aban-
doned by Georgia, till it can be done consistently with the provisions of
the treaty." Niles' Reg., XXVIII., p. 317.
2 Since the individual states can conclude no treaties, they surely can-
not be parties to a treaty. Constitution, Art. I., Sec. 10, § 1.
* Stat. at L., II., pp. 141, 142.
4 "On the instant of the ratification the title and jurisdiction became
absolute in Georgia, without any manner of exception or qualification
save the single one which, by the eighth article, gives to the United
States the power [!] to protect the Indians in their persons and effects
against assaults upon either by whites or Indians." Niles' Reg,
438
STATE SOVEREIGNTY AND SLAVERY
that Barbour himself would "at once" pronounce it "un-
reasonable" to expect that any attention should be given
to the "most extraordinary request [!]" of the president;
postponing the surveys was not to be thought of.¹
The tone of this letter was very far from being “diplo-
matic." Troup himself confessed that he had used “strong
language," but expressed the hope that Adams would not
on this account suspect him of attaching no importance to
the maintenance of the Union. He recognized this as an
undeniable duty, since other "wise men" were "causing
the Union to tremble upon a bauble," by "indulging
their whims and oddities and phantasies."
2
The last sentence did not refer to the affair then under
discussion, but to the slavery question. Troup dragged
this in only because "slavery was a harp with a thousand
strings, which every demagogue could play." The oppor-
tunity therefor was offered him by a motion of United
States senator King of New York, for devoting the revenue
from the sale of public lands, after the extinction of the
federal debt, to the emancipation of slaves and the colon-
ization of free negroes, and by an opinion of attorney-
general Wirt, in which the latter held as unconstitutional
a South Carolina law that provided for the imprisonment
XXVIII., p. 318. The passage in Art. 8 reads: "The United States
stipulate for their [the Indians'] protection against the encroachments,
hostilities and impositions of the whites and of all others."
"If the president believes that we will postpone the survey of the
country to gratify the agent and the hostile Indians, he deceives him-
self."
2" Even upon the subject of intensest interest to us, upon which the
opinions of the president are known, many allowances are made for the
immeasurable distance which separates us.
The fearful conse
quences constantly in sight keep us in a state of agitation and alarm.
I strive to stave them off; and it is for this that language is employed
sickening to the heart and most offensive to a vast portion of the com-
mon family. Who can help it when they see wise men engaged in a
playfulness and pastime like this, indulging their whims and oddities
and phantasies, and causing this Union to tremble upon a bauble.”
PROPOSED SOUTHERN CONFEDERACY.
439
of all free colored persons working upon a ship, until the
ship left the harbors of that state.¹ Troup had held up
both these facts in his message of May 23, 1825, as "offi-
cious and impertinent intermeddlings with our domestic
concerns," and had then drawn the inference that " very
soon, therefore, the United States government, discarding
the mask, will openly lend itself to a combination of fan-
atics for the destruction of everything valuable in the
southern country." He therefore entreated the legislature
"most earnestly, now that it is not too late, to step forth
and, having exhausted the argument, to stand by [its]
arms.''2
The utter lack of reasonable grounds for any excitement
whatever makes this language seem expressly designed to
introduce into the relations between the general govern-
ment and the states the rowdy rule which had already be-
gun to creep into other politics. Yet it found an echo in
the legislature. The committee to which this part of the
message was referred brought in a report to the (Georgia)
house of representatives, which blew still more loudly in
the trumpet of rebellion. It "proclaimed that the hour
is come, or is rapidly approaching, when the states from
Virginia to Georgia, from Missouri to Louisiana, must
confederate and, as one man, say to the Union: We will no
longer submit our retained rights to the snivelling insinu-
ations of bad men on the floor of congress, our constitu-
tional rights to the dark and strained constructions of de-
signed [designing?] men upon judicial benches." The
legislature should therefore resolve that it approves, with
its whole heart, the exhortation of the governor for the
people of Georgia to stand by their arms, and that its
members should "for the support of this determination
Opinions of the Attorneys-General, I., p. 659.
2 Niles' Reg., XXVIII., p. 240. This message contains the phrase so
often quoted later: "It [slavery] may be our physical weakness—it is
our moral strength."
440
STATE SOVEREIGNTY AND SLAVERY.
mutually pledge to each other [their] lives, [their]
fortunes, and [their] sacred honor." The astonishment
and anger excited in the other states by this uncaused out-
break of madness were so great that the legislature con-
sidered itself warned to let the responsibility remain
wholly on the governor and its own committee. It ad-
journed without coming to any conclusion on the com-
mittee's report. But it did not leave the governor in the
lurch in the struggle itself. Troup urged this on with all
his energy, although he had to abandon the attempt to
foment a causeless quarrel on the slavery question.
He notified Gaines, June 13, that the survey of the
lands would be undertaken, "disregarding any obstacles
which may be opposed from any quarter." Gaines answer-
ed that the Indians had already been informed of the veto
laid by the federal government upon this scheme. This
letter crossed a new one of Troup, in which he informed
Gaines that the laws of Georgia had already been extended
over the Creek territory, and that he, "of course," had to
fulfill them. On the following day he again sent a prolix
note, in which he summed up the legal question in the
well-known sentence of the Kentucky resolutions: "As
there exist two independent parties to the question, each
is permitted to decide for itself." He therefore had “only
to repeat that, cost what it will, the line will be run and
the survey effected." On the same day a letter left the
war department, which notified the governor that the ex-
ecution of his scheme would be on his own responsibility;
the federal government would not answer for the conse-
quences. Troup's answer of June 25 was made up of in-
sults from the first word to the last. He insinuated that
the federal government was inciting the Indians to let the
tomahawk and the scalping-knife do their bloody work;
demanded information of the ultimate designs of the
¹ Niles' Reg., XXVIII., pp. 271, 272.
GEORGIA BIDES HER TIME.
441
government, in order that Georgia might "guard and
fence herself against the perfidy and treachery of false
friends"; and declared that he would remain steadfast in
his resolve, "of which Gen. Gaines has already had suffi-
cient notice." Now, at last, the administration thought
the time had come to use language that could not be mis-
understood. July 21, Troup was informed by the war de-
partment of the "decision" of the president that the
survey would not be "allowed." At the same time Gaines
was instructed to use armed force whenever necessary, and
a copy of these instructions was also sent to Troup. The
latter, who had previously forbidden both Andrews and
Gaines to hold any further intercourse with himself, now
seemed to wish to extend the injunction to the war depart-
ment. August 7, he wrote directly to the president a long
letter, full of plaints and complaints, which was a real mas-
terpiece of arrogance and shamelessness. Adams, he said,
5
2
must admit that he "makes and breaks treaties at pleasure,"
and he finally cited him before the solemn judgment
seat of the "government of Georgia" to render account
for his actions. Troup said nothing in this letter about
considering himself bound by the "decision" of the presi-
dent; but the survey was postponed. Yet he declared in
his message of November 8 to the legislature, that he had
from the first delayed this under protest only because the
¹ This correspondence is given in full in Niles' Reg., XXVIII., pp.
392-398.
2
Ibid, XXVIII., p. 412.
³ Ibid, XXIX., pp. 14--16.
"The general [Gaines] is correct in one of his positions, and being
in the right himself he puts you in the wrong, and so conspicuously
that you stand on the insulated eminence an almost solitary advocate
for making and breaking treaties at pleasure.”
Now, sir, suffer me in conclusion to ask if these things have been
done in virtue of your instructions, expressed or implied, or by author-
ity of any warrant from you whatsoever, and if not so done whether
you will sanction and adopt them as your own, and thus hold yourself
responsible to the government of Georgia.”
442
STATE SOVEREIGNTY AND SLAVERY.
president had expressed the intention of laying the whole
affair before congress. But he remarked, in addition to
this, that he was not willing to recognize by this the
"legality" of the course of action intended by the presi-
dent; he only thought that the "decision" of this ques-
tion belonged less to himself than to the legislature of
Georgia; the latter was "yet free to act upon the subject
as if no measure had been taken by the executive in rela-
tion to that reference."
The matter was thus brought for a time to a stand-still.
The press favorable to the administration praised the firm-
ness of the president, and claimed a complete victory for
him. The European journals, especially the English ones,
which had followed the struggle with lively interest, had
to listen to many a sneering remark about the shortsight-
edness which, springing from their hostility to everything
republican, had already led them to think they saw the
United States bathed in the blood of citizens and the
Union shattered forever.2 The scorn was not undeserved,
for if indeed Virginia and the Carolinas sympathized with
Georgia, yet they had no idea of following her angry gov-
¹ Niles' Reg., XXIX., p. 203.
2 The following noteworthy passage is taken from an article in Bell's
Weekly Messenger, on the quarrel between Georgia and the administra-
tion: "Suppose, therefore, that an American civil war should break
out, what will be its probable issue? The suitable answer to this
question is to be sought in a comparative estimate of the strength
of the northern and southern states, and, very fortunately, the power
of the northern provinces so far exceeds that of their southern
neighbors as not to leave the latter any hope of a long contest. Add to
this an immense advantage in favor of the Union. If the federal gov.
ernment finds itself pressed, it will only have to pass a law declaring
the southern slaves all free, and they will all rise and join them to a
man. The southern states will then have enough to do at home, and
will be compelled to resort to the protection of the united government.
We know not, indeed, but that this may be the secondary instrument
by which providence is about to put an end to the system of slavery
in the new continent, and in this point of view it may eventually lead
to the greatest good."
TROUP RE-ELECTED GOVERNOR.
443
1
ernor as far as it pleased him to go. But, on the other
hand, the pæans of victory of the administration party
were by no means justified. The struggle was unques-
tionably an illustration, not of the strength, but of the
weakness, of the Union. Without expressing an opinion
on the question whether the treaty of Indian Springs had
been obtained by trickery, the senate agreed upon a new
treaty, which was much more favorable to the Creeks.¹
But Troup was in no way molested by congress. The
moral impression made upon the people was therefore by
no means that of a powerful maintenance of the federal
authority in opposition to the state-rights pretensions of
Georgia. It was said, indeed, that no cause had been given
for any action whatever, because hitherto only empty
threats, without any corresponding deeds, had been in-
dulged in, and because the threats had been uttered, not
by the state, but by a number of "individuals." To re-
gard the official acts of a governor simply as those of an
individual, has at least the merit of novelty. Moreover,
it was not true that Troup had begun and carried on the
contest with the administration wholly on his own author-
ity; he could say that he only wished to "execute the
laws of the state of Georgia." The majority of the leg-
islature might not go quite as far as he did, but it follow-
ed so close upon his heels that it made not the slightest
effort to hold him back. And the legislature was the exact
expression of the popular feeling. The gubernatorial
election took place in the autumn. The campaign was an
unusually violent one, and the election was decided by
only a few votes, but these were in favor of Troup. The
majority of the people thus stood behind him, and his
message of November 8 therefore maintained all the claims.
already made.³
I
3
Jan. 24, 1826. Statutes at Large, VII., p. 268.
2
2 He received 20,545 to 19,857 votes. Niles' Reg., XXIX., p. 216.
³ Ibid, XXIX., p. 200, seq.
444
STATE SOVEREIGNTY AND SLAVERY.
3
2
The new treaty with the Creeks was not in the least sat-
isfactory to Georgia. The chiefs who negotiated it at
Washington had at first declared that their powers did not.
permit them to extend the treaty to any territory beyond.
the Chatahoochie. Yet they finally allowed themselves
to be persuaded to agree to a further cession. It was after-
wards affirmed in the senate that they had been authorized
to do this from the start, and had only thrown difficulties.
in the way for the sake of treacherously assuring to them-
selves and their accomplices an undue part of the purchase
money. This circumstance gave rise to violent attacks
upon the treaty and the administration. Still greater dis-
content was excited because the treaty, unlike the one of
Indian Springs, did not stipulate simply for the cession of
the "whole territory lying within the state of Georgia."
The administration had tried to transfer this article, un-
changed, into the new treaty; but the Creeks had obstinate-
ly refused, because the boundary line between Georgia and
Alabama had not yet been drawn, and they therefore would
not have known at all what they had really ceded.* Senator
Berrien of Georgia complained that the state lost a million
acres by the change in the wording of the treaty and ac-
cused the `administration of having made itself the " con-
scious instrument of the fraud" which the chiefs planned
against their own tribesmen.5 Troup declared, curtly and
arrogantly, that he held only to the treaty of Indian
Springs, inasmuch as the rights gained by Georgia through
that could not be taken away again. The surveyors there-
fore received orders to begin work on the territory lying
west of the boundary-lines stipulated for in the treaty at
¹ Debates of Congress, VIII., pp. 583, 587.
6
2 See the exact description of this territory in Art. 2 of the treaty.
3 Debates of Congress, VIII., p. 591, passim.
* Barbour to Troup, Nov. 27, 1826. Niles' Reg., XXXI., p. 282.
5 Deb. of Cong., VIII., pp. 583, 588.
6
Troup to Barbour, Feb. 17, 1827. Niles' Reg., XXXII., p. 16.
66
2
DANGER OF CIVIL WAR.
445
Washington. But the Indians, without inflicting any per-
sonal injury upon them, compelled them to abandon the
work and appealed to the president to protect the rights
guarantied them by treaty. Adams, relying upon the law
of 1802 already mentioned, had instructions issued at once
to the United States attorney and marshal of Georgia to
imprison the persons engaged in land-surveys on the other
side of the boundary last agreed upon and to bring them
before the proper courts. Troup was informed of these
instructions and was also told that federal soldiers would
be sent to the spot, if further interferences with the treaty
made this seem necessary.¹ At the same time Adams by a
special message brought the whole matter formally before
congress. He expressed therein his conviction that an
obligation even higher than that of human authority"
would compel him to forcibly interfere, if matters were
pushed to an extreme, but declared that he would first ex-
haust all other means. The main reason that he had not
hitherto used the army was, he said, that this would have
apparently led to an armed collision with Georgia, "which
would in itself have inflicted a wound upon the Union and
have presented the aspect of one of these confederate states
at war with the rest." Adams was too skillful a statesman
and too well informed in constitutional law to lightly use
any such expression in an official paper on an affair of such
importance. His whole conduct leaves no manner of doubt
that he would have considered it as rebellion, if the federal
troops had been forcibly opposed. If he said that Georgia
would find herself in such a case engaged in a "war" with
the other states, this can be explained only on the supposi-
tion that he shunned using the language of authority. It
would be doing him injustice to suppose that he paid this
reverence to state sovereignty only out of regard to Georgia.
But on this very account it can be so much the better in-
¹ See the documents concerning this. Niles' Reg., XXXI., p. 372
2 Feb. 5, 1827. Statesman's Man., II, p. 642.
446
STATE SOVEREIGNTY AND SLAVERY.
ferred what the relative strength of the national idea and
of the particularistic tendencies was at that time, or at least
how their relative strength was estimated by leading states-
men.
Some weeks after Adams had brought the matter before
congress, Troup's answer to the information that the main-
tenance of the treaty-stipulations would be, if necessary,
enforced, was received. He notified the secretary of war,
with the "defiance which it [the secretary's letter] merits,"
that such an attempt would be resisted to the uttermost.
On the same day, he had the attorney-general and the
solicitors-general of Georgia instructed to use all "neces-
sary and legal [?] measures" to free the surveyors who had
been imprisoned "under the authority of the government
of the United States" and to bring the persons concerned
in their imprisonment to trial. Furthermore, the "major-
generals commanding the sixth and seventh divisions" re-
ceived orders to hold their troops in readiness "to repel
any hostile invasion of the territory of this state." In a
circular dated Feb. 27, he informed the senators and represen.
tatives of Georgia of all these steps, and at the same time
sharply defined his position on the constitutional question
in a few sentences, saying that "rights of sovereignty"
between the states and the United States could not be de-
cided by the United States supreme court, but must be
solved by negotiation until another way of settlement was
provided in the constitution.2
¹ See the documents, Niles' Reg., XXXII., p. 16.
•
•
1
2" I consider all questions of mere sovereignty as matters for negotia-
tion between the states and the United States, until the competent tribu-
nal shall be assigned by the constitution itself for the adjustment of
them.
On an amicable issue made up between the United States
and ourselves, we might have had no difficulty in referring it to them as
judges, protesting at the same time against the jurisdiction, and saving
our rights of sovereignty. . . But according to our limited concep-
tion, the supreme court is not made by the constitution of the United
States the arbiter in controversies involving rights of sovereignty be-
tween the states and the United States." Niles' Reg., XXXII., p. 20.
1
GEORGIA WINS.
447
Adams, in his message, had "submitted it to the wisdom
of congress to determine whether any further act of legis-
lation may be necessary or expedient." Whatever hap-
pened thereafter, the president was no longer alone respon-
sible for it. If congress did nothing, if it did not once
express in plain language its opinion on the whole matter,
this lack of action was of course an answer to the request
of the president and a child could understand it. This
was what congress did.¹ The country received this decis-
ion with apparent indifference. It had scarcely expected
any other, and it brought to pass what was generally de-
sired. A great majority decidedly disliked the conduct of
Georgia and especially of Troup. But people were heart-
ily tired of the affair and rejoiced over the prospect that
the painful strife would finally be brought to an end. The
majority of the states considered it wholly just and proper
for the president to try to protect the rights guarantied to
the Indians by treaty. But to let an armed collision occur
between a "sovereign" state and the federal government
for the sake of these rights, seemed-on whatever side the
guilt lay--as the climax of foolishness and criminality.
The political morals of the United States were far removed
from the point at which legal pledges to Indians were
looked upon in the same light as other legal pledges.
Whether or not this could be excused, in any event the
question, from the standpoint of practical politics, was in
this case only one of secondary importance. The main
point involved was not the rights of the Creeks, but the
corner-stone of the legal foundation of the whole Union. It
is true that there was no danger that this corner-stone
¹ The senate passed a resolution which requested the president to
exert himself in order to extinguish the Indian title. As far as the
house is concerned, I find in the sources of information open to me
mention only of the reference of the matter to a committee. I can not
assert with certainty that a resolution was never passed, but if so, it cer-
tainly had no significance.
448
STATE SOVEREIGNTY AND SLAVERY.
would be broken and shattered on the instant. But the
demand of principiis obsta! was again urged upon the
federal government and in a more pressing way than ever
before. The demand was not fully met and the children
and grandchildren of that generation had to learn by ex-
perience that in politics sins of omission revenge them-
selves as severely as sins of commission. Georgia had still
another thorn in her flesh, which was harder to withdraw.
Since she had now proved how far she could go unpun-
ished, she went on in the work without delay and with
redoubled boldness.
1
2
Besides the Creeks, about ten thousand Cherokees still
lived within the boundaries of Georgia. Their territory
was in every respect richly blessed by nature, and Georgia
therefore had an especial longing for it. But, although
they fell far behind the Creeks in numbers, it was much
more difficult to deprive them of their land, because they
had attained a much higher degree of civilization. They
led a thoroughly orderly life, successfully pursued not only
agriculture but also trade, applied themselves with fortu-
nate results to manufacturing on a small scale, and zeal-
ously devoted themselves to the civilization of their race.³
Of course their civilization was not due to their indepen-
dent efforts, but with the aid of the federal government and
of religious associations they were attaining by degrees the
acquirements of their white neighbors, without merging
their independent tribal existence. The surrender of their
own political and social organization was as unendurable a
1
¹ Clay's speech on "Our treatment of the Cherokees." Speeches,
II., p. 249.
2 See the details in the report of the secretary of war. Exec. Doc. of
1825-26, Doc. 102.
3 Compare with the report of the secretary of war, the remarks of
judge Johnson in the case of Cherokee Nation vs. State of Georgia,
(Peters, Rep., V., p. 21; Curtis, IX., p. 184); Wirt's letter to gov. Gil-
mer, June 4, 1830 (Niles' Reg., XXXIX., pp. 69, 70) and Deb. of Cong.,
X. and XI., passim.
OPPRESSION OF THE CHEROKEES.
449
thought to them as the exchange of their flourishing settle-
ments for the wilderness west of the Mississippi. They
therefore tried by all the means within their power to keep
the Creeks from ceding their lands, for they well knew that
Georgia could far more easily present the same alternative
to them, if she first got rid of the more powerful brother-
tribe. That this was her intention, was openly declared in
the messages of her governors as well as in her legislature,
long before the successful negotiations with the Creeks.
As early as the latter part of 1826, the legislature began
to pass laws intended to pave the way for the accomplish-
ment of this design. Thus, for instance, a law of Dec. 26
deprived all Indians not acquainted with the English lan-
guage of the right to testify before any state court. As
soon as Adams's request to congress to take steps against
the illegal assumptions of Georgia had miscarried so pit-
iably, the policy marked out by this law was systematically
followed up. A law of Dec. 26, 1827, added a part of the
Cherokee territory to the counties of Carroll and Dekalb,
in order to extend the criminal jurisdiction of the state
over it.² The Cherokees sent a delegation to Washington
which presented to the president, through the secretary of
war, Feb. 11, 1829, a written protest against these encroach-
ments upon the rights immemorially enjoyed by them and
solemnly guarantied to them. Adams, however, took no
steps in the matter, because his term of office was to ex-
pire in a few weeks.
With Adams, fortunate Indians lost their last
stand-by. He had not only met the assumptions of Georgia
with promptness and with his whole energy, and had there-
by earned the gratitude of the Indians and the whole
Union, but he had also shown an upright zeal in preventing
the infringement of their guarantied rights. Jackson can-
1 Niles' Reg., XXXV., p. 42.
? Loco citato.
29
450
STATE SOVEREIGNTY AND SLAVERY.
not, indeed, be accused of having consciously wronged
them, but in all questions he considered the right to be
what seemed right to him.
1
April 18, 1829, the decision of the president was an-
nounced to the Cherokees by Eaton, the secretary of war.¹
This began by saying that "there is but a single alterna-
tive, to yield to the operation of those laws which Georgia
claims, and has a right, to extend throughout her own lim-
its, or to remove and by associating with your brothers
beyond the Mississippi to become again united as one
nation." He saw no other way, because the right of the
federal government to "permit to you [the Indians] the
enjoyment of a separate government within the limits of a
state and of denying the exercise of sovereignty to that
state, within her own limits, cannot be admitted."
Georgia had nothing more to fear from the federal execu-
tive, as long as she did not forcibly expel the Cherokees
from their territory, but contented herself with passing laws
which made the condition of the Indians, in the strict sense
of the word, unendurable.
Thus
Jackson's decision caused the council of chiefs to threat-
en to punish every land-sale consummated without the
previous consent of the tribe with death.³ Governor
Carroll of Tennessee, who had been entrusted by the presi-
dent with the negotiations for the acquisition of the terri-
tory, was roundly refused any opportunity for discussing
the question. This decisive stand impelled the legislature
of Georgia to make so much the more quickly the greatest
use of the "sovereign rights" of the state. Gov. Forsyth
had already recommended to the legislature, in his message
4
¹ Niles' Reg., XXXVI., pp. 253, 259. Compare also the report by Wiley
Thompson of his conversation with Jackson. Ibid, XXXVI., p. 231.
Compare with this the view expressed by Jefferson, as secretary of
state, Aug. 10, 1791. Jeff., Works, III., pp. 280–281.
2
3 Niles' Reg., XXXVII., p. 235.
Ibid, XXXVII., p. 94.
1
JACKSON SUPPORTS GEORGIA.
451
of Nov. 4, 1828, not to longer delay "the extension of all
state laws” over the territory of the Cherokees especially,
because the whole tribe, part of which was settled in the
neighboring states, had adopted a constitutional form of
government. The law of Dec. 19, 1829, carried this out,
for it "annulled all laws and ordinances of the Cherokees"
and cut up their territory and attached it to five counties.
of the state. Moreover, the law forbade the emigration of
the Indians and the sale of their lands and provided for
these offenses a penalty of from four to six years' impris-
onment at hard labor.2 Eleven days before, Jackson had
given the whole country to understand, by his annual mes-
sage, that in his opinion Georgia was justified in taking
such measures from every point of view. Some months
afterwards, congress gave an indirect approval of this posi-
tion by voting a large sum of money, which the president
was to use for the "removal" of the Indians.¹
'Niles' Reg., XXXV., p. 222.
2 The whole law, which was one of the most shameful pieces of op-
pression in this long dark chapter of American history, is quoted in
Worcester vs. State of Georgia, (Peters VI., pp. 525-528; Curtis, X., pp.
218–221) and also in Niles' Reg., XXXVIII, p. 54.
3 Statesman's Man., I, pp. 709, 710.
The debates over this bill (Deb. of Congress, X. and XI., passim)
are extremely interesting on account of the preposterously stupid soph-
istry with which the most reckless justification of the right of the
strongest is clothed in the garb of justice and even of humanity. Among
the northern representatives who spoke with the greatest emphasis in
behalf of the rights of the Indians, Frelinghuysen deserves especial
mention. Justice, however, demands the statement that the condition
of things which the Cherokees wished for could not be maintained in
the long run. It seems to me unquestionable that they had the right
on their side when they demanded that they should be permitted to con-
tinue in their independent political existence under the protection and
the sovereignty of the United States. The obligation which the latter
had undertaken, in 1802, in regard to Georgia, could not change this
fact, for the right of the Cherokees was much older. But a political
community in the territory of one or more states of the Union, under
the sovereignty of the Union and yet not constitutionally in the Union,
-this was an anomaly which could not last. The real circumstances
452
STATE SOVEREIGNTY AND SLAVERY.
Under these circumstances the only thing left for the
Cherokees to do was to ask the aid of the United States
supreme court. The ex-attorney-general, Wirt, was will-
ing to plead their cause. His argument against Georgia's
claim to the power of extending her jurisdiction over the
Cherokee territory was unanswerable. It was to be as-
sumed as certain that this would also be the view of the
supreme court, since the latter had given a decision some
years before, from which the unconstitutionality of the
law of Dec. 19, 1829, was an inevitable inference.2 In
consequence, however, of a technical mistake, the real
of the case were stronger than the stipulated right. But a juster and
more humane compromise between the stipulated right and the de-
mands of the facts in the case should have been found, and would have
been, if men had wished to find it.
¹ Niles' Reg., XXXIX., pp. 81--88. It is superfluous to enter more
into detail concerning the proof of this, for one sentence suffices as a
justification of the opinion expressed in the text: "The 11th Article
of the treaty of Holston (compare Statutes at Large, VII., p. 41) con-
tains an express and decisive admission of the principle implied in all
the treaties [between the United States and the Cherokees] throughout
all their provisions, to wit.: that the territory of the Cherokees is not
within the jurisdiction of the states, nor subject to their laws. This
treaty is recognized as in full force by all the subsequent treaties.
Georgia, as one of the United States, is a party to it, and is estopped to
deny what she has thus solemnly admitted.”
2 In Johnson and Graham's Lessee vs. M'Intosh we read: "If an in-
dividual might extinguish the Indian title for his own benefit, or, in
other words, might purchase it, still he could only acquire that title.
Admitting their power to change their laws or usages so far as to allow
an individual to separate a portion of their lands from the common
stock, and hold it in severalty, still it is a part of their territory, and is
held under them by a title dependent on their laws. The grant derives
its efficacy from their will, and if they choose to resume it and make a
different disposition of the land, the courts of the United States can not
interpose for the protection of the title. The person who purchases
lands from the Indians within their territory incorporates himself with
them so far as respects the property purchased; holds their title under
their protection and subject to their laws. If they annul the grant we
know of no tribunal which can revise and set aside the proceeding."
Wheaton, VIII., p. 593; Curtis, V., p. 516.
ACTION OF THE SUPREME COURT.
(6
2
1
453
question was not decided. In the complaint the Cherokees
were described as a foreign state.” The court decided
that this description did not apply to them "in the sense
of the constitution" and that they therefore could not, as
a foreign state, bring a case before the federal courts. But
although their complaint was rejected for want of juris-
diction, chief-justice Marshall, who delivered the decision
of the court, took occasion to say that in the opinion of
the majority of the judges the Cherokees had formed an
independent political community, with the expressly rec-
ognized right of self-government. That the bare dictum
of the judges would have no sort of influence upon Georgia
was plain to see from what had gone before. Wirt had
asked governor Gilmer whether the state would not agree,
as Virginia and Maryland had done under similar circum-
stances, to submit the question, by the free consent of the
parties, to the supreme court of the United States for de-
cision. In response to his letter, composed with studied
courtesy, he received an answer in which Gilmer proved
that Troup himself could find his master in causeless in-
solence and low insults. It seemed as if something worse
yet might be expected from the state judiciary. Judge Clay-
ton had already declared to a grand jury, in a violent po-
litical harangue, that he should pay no attention whatever
¹ Cherokee Nation vs. State of Georgia, Peters, V., p. 20; Curtis, IX.,
p. 183.
2 "So much of the argument as was intended to prove the character
of the Cherokees as a state, as a distinct political society, separated
from others, capable of managing its own affairs and governing itself,
has, in the opinion of the majority of the judges, been completely suc-
cessful. They have been uniformly treated as a state, from the settle-
ment of our country.
The acts of our government plainly recog-
nize the Cherokee nation as a state, and the courts are bound by those
acts." Peters, V., p. 16; Curtis, IX., p. 180.
•
³ See the correspondence in Niles' Reg., XXXIX., pp. 69--71. Gilmer
even gave it to be understood that Wirt, if he entered Georgia, would
be brought to a reckoning for having served as the attorney of the
Cherokees.
454
STATE SOVEREIGNTY AND SLAVERY.
991
to any command or judgment of the United States supreme
court in reference to the Cherokee matter. Facts soon
showed that Clayton had only expressed what had long
since been resolved upon by the governor and the legisla-
ture. A certain George Tassells had committed a mur-
der within the territory of the Cherokees. He was brought
before the superior court of the state on this charge, was
found guilty, and was condemned to death. Before the
execution of the sentence chief-justice Marshall cited the
state by a writ of error, issued in the customary way, "to
show cause, if any there be, why the judgment should not
be corrected.' The governor sent the writ of the chief-
justice to the legislature, with an accompanying letter,
in which he declared that he would not regard commands
of the supreme court which interfered with the constitu-
tional jurisdiction of the state, and would oppose any at-
tempt to execute them with all the means entrusted to
him by the laws of the state. The legislature did not lag
behind the governor. Both houses passed a series of reso-
lutions to the effect that the action of the chief-justice of
the United States was "a flagrant violation of the rights"
of the state; that the governor and the whole body of state
officials were bound to pay no attention to commands
emanating from the United States supreme court, which
were intended to interfere with the execution of the
criminal law of the state; that the governor was bound to
¹ The eleventh amendment to the constitution provides that " any
suit in law or equity" brought by an individual against a state cannot
be heard in the federal courts. But the United States supreme court had
decided, in 1821, in Cohens vs. Virginia, that "the defendant who re-
moves [through a writ of error] a judgment rendered against him by a
state court into this court, for the purpose of re-examining the question
whether that judgment be in violation of the constitution or laws of the
United States, does not commence or prosecute a suit against the state,
whatever may be its opinion where the effect of the writ may be to re-
store the party to the possession of a thing which he demands."
Wheaton, VI., p. 412; Curtis, V., p. 105.
THE SUPREME COURT DEFIED.
455
"resist and repel any and every invasion, from whatever
quarter, upon the administration of the criminal laws" of
the state, with all the "force and means" entrusted to
him by the constitution and laws of the state; that "the
state of Georgia will never so far compromise her sover-
eignty as an independent state, as to become a party to the
case sought to be made before the supreme court of the
United States by the writ in question"; and that the gov-
ernor should acquaint the sheriff of Hall county with
these resolutions as far as was (C necessary to ensure the
full execution of the laws in the case of George Tassels."
In accordance with this notification Tassels was executed
December 28, 1830. This was the end of the matter. It
might then well be asked what the "victory" that Adams
had won over Troup was worth. If the structure of the
Union had a keystone, it was unquestionably the supreme
court of the United States. This had become a stumbling-
stone to the "sovereign" state of Georgia, and she thrust
it aside contemptuously. And there was not the slightest
attempt made to bring her to a reckoning for this.
The further course of the unequal strife between Georgia
and the Cherokees needs not to be followed out in detail
here. The Indians made a passive resistance for several
years with unbroken courage, protesting against every new
exercise of oppressive power, and appealing to their un-
deniable rights in the matter. Georgia took the less
notice of this inasmuch as Jackson allowed even the feder-
al soldiery to be used in carrying out the robber-policy."
¹ Niles' Rcg., XXXIX., p. 358. Compare the report of a committee
of the Pennsylvania house of March 1, 1809 (Niles' Reg., XLIII.,
Suppl., p. 24), and the answer of the legislatures of Georgia and Vir-
ginia to the amendment proposed by Pennsylvania to the constitution.
(Ibid, pp. 83, 84, and XLII., p. 93).
2 The raffle of the Cherokee lands and the prohibition of working
the gold mines contained in them can be described by no other name.
Compare Niles' Reg., XXXVIII., pp. 328, 404, 405; XXXIX., pp. 106,
154, 181, 182, 263, 453; XL., pp. 62, 296, 297.
456
STATE SOVEREIGNTY AND SLAVERY.
<<
1
Magnanimity, long-suffering, and humanity" did not
hinder Georgia from simply driving the poor Indians from
house and home with the sabre. She left the Indian only
so much of his possessions as sufficed to keep him from
dying of hunger. She thrust his own laws aside. She
placed him under her laws, without granting him a single
right. And she harrassed him and trampled upon him.
whenever and however she could. The legal representa-
tives of the "sovereignty" of the state developed a shock-
ing brutality in this course. Patrols marched through the
whole territory, arrested every suspected person, and sent
him in chains fifty or a hundred miles away to "head-
quarters" to often set him free at once with curses and
threats because the "law" did not authorize his imprison-
ment. Especial sufferings were heaped upon the mission-
aries who went in the fulfillment of their duties from one
mission station to another, without having obtained the
permission required by the state law and taken the pre-
scribed oath to support the constitution and laws of
Georgia. It was not enough to fetter their limbs; they
were chained by the neck to the pack wagons of the hunters,
whose barbarity almost surpassed that of the professional
slave-drivers. A Presbyterian missionary named Worces-
ter was made to feel the whole rigor of the law, although
he had the severe sickness of his wife to plead as an ex-
cuse for not having left the territory within the ten days
during which he had been ordered to do so. In accordance
2
"But even to this limited possession [160 acres] the poor Indian
was to have no fee-simple title; he was to hold as a mere occupant at
the will of the state of Georgia for just as long or as short a time as
she might think proper. The laws at the same time gave him no par-
ticular right whatever. He could not become a member of the state
legislature, nor could he hold any office under state authority, nor could
he vote as an elector. He possessed not one single right of a freeman."
Clay, Speeches, II., p. 257.
2 Niles' Reg., XL., pp. 297, 298, 460–462.
THE SUPREME COURT AGAIN DISOBEYED.
2
457
with the provisions of the law of Dec. 22, 1830,¹ he was
condemned to four years imprisonment at hard labor for
this crime. This sentence brought the whole matter again
before the United States supreme court, which now in a
formal decision declared all the claims made by Georgia on
the ground of her "sovereignty” to be unjustified; the law
of Dec. 22, 1830, to be unconstitutional; and the sentence
of Worcester to be null and void.3 Governor Lumpkin had
already acquainted the legislature, before the citation of
the state to appear before the United States supreme
court, with his resolve to present a "determined resistance”
to such a "usurpation." The decision of the court did
not incline him to change his resolve. He continued to
exhort the legislature and the people to stand firm for the
sovereign rights of the state. The state court that gave
the annulled judgment acted in accordance with this posi-
tion. It refused to grant a writ of habeas corpus and took
The law is given in full in Worcester vs. State of Georgia. Peters,
VI., p. 521, seq.; Curtis, X., p. 215, seq.
See the complete details of the sentence in Niles' Reg., XLI., pp.
174-176. It has a quite peculiar flavor on account of the multitude of
Bible texts to which judge Clayton appeals.
•
•
From the commencement of our government, congress has passed
acts to regulate trade and intercourse with the Indians.
All these acts,
and especially that of 1802, which is still in force, manifestly consider
the several Indian nations as distinct political communities, having
territorial boundaries, within which their authority is exclusive, and
having a right to all the lands within those boundaries which is not
only acknowledged, but guarantied, by the United States.
The
Cherokee nation, then, is a distinct community, occupying its own ter-
ritory, with boundaries accurately described, in which the laws of
Georgia can have no force and which the citizens of Georgia have no
right to enter but with the assent of the Cherokees themselves or in con-
formity with treaties and with the acts of congress. The whole inter-
course between the United States and this nation is, by our constitution
and laws, vested in the government of the United States. The act of
the state of Georgia, under which the plaintiff in law was prosecuted,
is consequently void and the judgment a nullity." Peters, VI., pp. 556,
557, 561; Curtis, X., pp. 240, 243, 244.
Niles' Reg., XLI., p. 313.
458
STATE SOVEREIGNTY AND SLAVERY.
1
not the slightest notice of the decision of the supreme
court. Worcester and his companion Butler had still to
spend a year of imprisonment at hard labor, in company
with common criminals. They were finally "pardoned" by
gov. Lumpkin, partly because the outlook for a solution of
the Cherokee question, in a way satisfactory to Georgia,
seemed to render their further imprisonment unnecessary,
and partly because their liberation seemed desirable for
partisan reasons. For the insolent contempt of the au-
thority of the supreme court, no sort of satisfaction was
given, and indeed no sort of satisfaction was demanded.
Jackson regarded this issue of the struggle with indiffer-
ence. Perhaps he even took a quiet, mean joy in it, be-
cause Marshall, as he very well knew, was a determined
opponent of his re-election.3
2
Thus for the first time the doctrines of state rights laid
down in the Kentucky resolutions had been fully carried
out. From the beginning Georgia had chosen as her
standpoint the fundamental principles that the federal
authorities and the states, that is, the state governments,
were "parties" who had no common judge and that there-
fore each party must "decide for itself." And she-at
last indirectly supported by the federal executive—had re-
mained a complete victor.
2
3
Niles' Reg., XLII., p. 78.
Ibid, XLIV., pp. 359, 360.
Depending upon a statement of G. N. Briggs of Massachusetts, who
was at the time a member of congress, Greeley (The American Conflict,
I., p. 106) relates that Jackson said: "John Marshall has made his de-
cision; now let him enforce it!" Senator Miller of South Carolina said,
in 1833, in the debate over the so-called force bill: "No reproof for her
[Georgia's] refractory spirit was heard; on the contrary, a learned review
of the decision came out, attributed to executive countenance and fa-
vor." Niles' Reg., XLIII., Suppl., p. 141.
NULLIFICATION.
459
CHAPTER XII.
THE DOCTRINE OF NULLIFICATION. THE COMPROMISE BE-
TWEEN SOUTH CAROLINA AND THE FEDERAL GOVERN-
MENT.
The pending presidential election had not been without
influence upon the issue of the tariff struggle of 1828,
and the reception of the latter at the south. The majority
of the protectionists was so small that the days of their
power were probably numbered, provided the incoming
administration should support the opposite party with.
energy. And the prospects of Jackson, upon whom the anti-
protectionists thought they could safely count, grew better
every day. Moreover, the extinction of the national debt
was close at hand, and the reasonable arguments, as well
as the declamations, of the south could reckon on much
more willing hearers as soon as the annual financial report
showed a regular surplus. The protective system was thus
deprived of all the props which had hitherto done it thank-
worthy service.
The Democrats won a more brilliant victory than they
themselves had expected. Jackson received one hundred
and eighty-three electoral votes against only eighty-three
for Adams, and Calhoun, the irreconcilable enemy of the
protectionists, was chosen vice-president by one hundred.
and seventy-one electoral votes. It was next to be dis-
covered how far men were justified in seeing in this a
triumph of free trade principles. The inaugural address
¹ Debates of Congress, X., p. 394.
1
2
2" In New York, Pennsylvania, and the west general Jackson has
been supported as the firm friend of the tariff and of internal improve-
460
STATE SOVEREIGNTY AND SLAVERY.
+
1
of the new president touched upon this point in a vague and
extremely cautious way. It spoke, of course, of "revenue
duties," but affirmed that "agriculture, commerce, and
manufactures should be equally favored," and added the
notable observation that "perhaps the only exception to
this rule should consist in the peculiar encouragement of
any products of either of them that may be found essen-
tial to our national independence." This declaration left
both parties unsatisfied. The annual message was awaited
with keen expectation. It undeceived the free traders still
more completely, without giving the protectionists cause
for rejoicing. It expressed an opinion in favor of a "modi-
fication" of the tariff, but wished to see the principle that
American products must be enabled to compete with
foreign adopted as "the general rule to be applied in
graduating the duties." In regard to wares which were of
especial importance in time of war "even a step beyond
this point" ought to be taken.2 It was only safe to infer
from these sayings that Jackson would gladly see a re-
duction of some duties; the decided rejection, on prin-
ciple, of the whole protective system, which the south had
wished and expected, could in no way be inferred from the
general sentences which inclined to every side and said
nothing at all decisive. These passages left it uncertain
whether he had it in view to exercise even a moderate
pressure upon the protectionists. The recommendation
for the division of the expected yearly surplus among the
states, in proportion to the ratio of representation, for the
execution of internal improvements, until a comprehensive
change of the tariff brought about again an equality be-
ments; but in the south he has been as zealously sustained, by those
who deny the right and constitutionality of these things, as being the
friend of 'southern interests,' believed by them to be seriously injured
by the tariff and internal improvement laws." Niles' Reg., XXXV., p.
194.
¹ Statesman's Manual, I., p. 696.
2 Ibid, II., p. 703.
JOHN C. CALHOUN.
461
tween the income and outgo, scarcely pointed to this, es-
specially since he proposed that the federal government
should be given the necessary power, if it did not already
possess it, by an amendment to the constitution.
Calhoun considered this proposal as a direct bid for the
favor of the protectionists, He had not approved of the
extreme language used by the meetings at Colleton, Abbe-
ville and other places after the passage of the tariff of
1828, for he had no hope that this wonld exert a favorable
influence upon the election, on the issue of which he meant
to make his next plan of action depend. Without seeing
in Jackson's election a guaranty for a change of principle
in the politico-industrial policy of the country, he yet
hoped for so much from it that he favored delay.¹ A
memorial, which thoroughly discussed, in a quiet and firm
way, the economic as well as the constitutional side of the
question, seemed to him to best correspond with the de-
mands of the moment.2
Calhoun was a true son of the soil from which he sprang,
and he therefore possessed in a high degree the character-
istic traits of the Protestant population of the north of
Ireland, to which he belonged by descent, that peculiar
primitive energy, in which an enthusiasm more idealistic
than ideal is strangely linked with stubborn consistency.
The blood flowed in his veins not less hotly than in those
of any other Carolinian, but a piercing intelligence and a
soaring ambition held it sharply in check when great ques-
tions were to be weighed and decided. He had not the
breadth of view that characterizes the statesman, but he
had extraordinarily keen vision. From the sole of his
foot to the crown of his head a speculative politician, he
was wholly unaware of the results to which his policy
Calhoun, Works, II., p. 215; VI., p. 56.
2 The draft was adopted, with some alterations, by the legislature and
published. It is known as the "South Carolina exposition." Calhoun,
Works, VI., p. 1, seq.
462
STATE SOVEREIGNTY AND SLAVERY.
would inevitably lead; but the practical instinct of the
American race, and a political activity extending over
many years, enabled him to find ways and means for bring-
ing the burning questions of the day to such a solution
that he constantly brought his doctrines nearer and nearer
to a practical realization. He was not idealist enough to
delude himself with the hope of an immediate accomplish-
ment of his whole programme, and not to reconcile him-
self to the withdrawal of half his stake if it appeared that
he could then win the game, and must otherwise lose it
entirely. But he was enough of a fanatic to allow nothing
to interfere with his will, if the choice between going for-
ward and a partial sacrifice of the principles of his doc-
trines was once set before him. In such cases, he was
capable of making "bend or break" his motto, and this
not merely in moments of the highest excitement. His
attitude remained the same, even when the struggle con-
tinued for years. If he had been a visionary, whose sys-
tem was built up in the air, he could scarcely have done
this; the material interests which formed the broad basis.
of his doctrines gave him the needed strength, yes, made
this course a necessity. The constitution and the history
of its origin gave him only the formal foundation for the
development of the doctrine of state-rights, and its de-
velopment, with him and with the whole people, did not
rest upon a priori reasoning. He was originally by no
means inclined to this opinion. The slavery question drove
him into the path, and with the increasing development of
the slaveholding interest he followed it on to the farthest
consequences. By the light of slavery, and in accordance
with the laws of logic, he worked out the constitutional law
of a democratic federative republic, and the logically correct
result was a systematization of anarchy. He failed to rec-
ognize this fact, because the doctrine was to him a means
to an end, and his whole political reasoning became in course
of time so completely identified with the prosecution of
BREACH BETWEEN JACKSON AND CALHOUN.
463
the one aim that the means became to his mind its own
end. His inborn firmness and the self-reliance that had
been distorted into haughtiness under the influence of
slavery thus became obstinacy. It was not possible for
him to place himself under the orders of a leader, but the
one-sidedness of his political reasoning and striving, and
especially the readiness, almost genius, with which he
mastered in an instant the whole range of questions which
lay within his narrow circle of view, made him unfit to be
the leader of a great party; at the same time his talent and
character marked him out for the head of a faction of ex-
tremists. But a growing ambition kept his eyes fastened
upon the White House, which he could never hope to reach
through a fraction, however devoted to him.¹
It seems not improbable that the hope of attaining this
last goal of his personal wishes so worked upon Calhoun
that he tried, before and immediately after the presidential
election of 1828, to persuade his nearest party-comrades to
greater moderation. But as long as the tariff question was
not brought to a satisfactory issue, this remained the de-
cisive factor of his policy. Jackson's messages could not
content him. As yet, no cause for a breach between the
two had been offered, but he began to look upon the presi-
dent with distrust and resolved to break away from him
rather than consent to retrogression on this question for
reasons of party politics. The pursuit of his personal
wishes did not hinder this resolve, for he was soon con-
¹ Buchanan characterizes Calhoun as follows: "He possessed emi-
nent reasoning powers, but in the opinion of many was deficient in
sound, practical judgment. He was terse and astute in argument; but
his views were not sufficiently broad and expanded to embrace at the
same time all the great interests of the country and to measure them
according to their relative importance. It was his nature to concen-
trate all his powers on a single object, and this, for the time being, al-
most to the exclusion of all others. Although not eloquent in debate,
he was rapid, earnest and persuasive." Buchanan's Administration,
p. 91.
464
STATE SOVEREIGNTY AND SLAVERY.
1
vinced that Jackson would not aid him in their fulfillment.
There had been from the very start a certain coolness in
the personal relations of the two men, because Calhonn
found that in the construction of the cabinet his friends.
had not been considered to the extent he had expected and
claimed, although Branch of North Carolina, the secretary
of the navy, Berrien of Georgia, the attorney-general, and
especially Ingham of Pennsylvania, the secretary of the
treasury, belonged to his supporters. A year later, Jack-
son renounced Calhoun's friendship fully and for ever.
The cause of this was the discovery of the fact that Calhoun,
as Monroe's secretary of war, had expressed the opinion
that the general ought to be brought to a reckoning for
his conduct in the war against the Seminoles. In the
spring of 1831, Jackson deepened and strengthened the
breach begun by purely personal enmity by dissolving his
cabinet and reorganizing it out of the fraction devoted to
Van Buren, Calhoun's old opponent and rival. Calhoun,
was fully aware that a very great majority of the party was
blindly devoted to Jackson in this conflict as well as in all
other matters. Personal embitterment and the knowledge
that he must abandon, for the near future, every thought of
the fulfillment of his hopes for the presidency, put an end
to the last doubts over the position which he now had to
assume. But to ascribe his course thereafter-as Jackson-
Democrats have often done-exclusively or even principal-
ly to this motive, is simply ridiculous. The role which
Calhoun played for more than a generation in the history
of the United States should protect him from being meas-
ured with a rule applicable only to a contemptible and
crazy demagogue. But besides and above this, the history
of the United States is a too significant, serious and in-
structive chapter in the history of the world to be brought
into the domain of trifles by the explanation of its most
¹ Calhoun had not expected to see a larger number of places filled
with his friends, but he had tried to have other persons chosen.
NULLIFICATION RESOLVED UPON.
465
significant phases of development as due to the pettiest and
most groveling impulses of single individuals, permitted
by circumstances to play a part in them.
Calhoun had now given up all hope that the protective
system could be destroyed with Jackson's help in the reg-
ular parliamentary way. He was not contented with an
insignificant reduction of particular duties; he held that
the time had come for a decisive step. His state and him-
self had become so deeply involved that they had to go
forward or backward. If they submitted to the repetition
of the protest so often recorded against the maintenance of
the status quo, they were sure of the disgrace of mockery.
It would have come hard to the unbridled cavalier spirits
of these slave-barons to bear this patiently, even if the ful-
fillment of their word would have been sure and useless
self-sacrifice. But according to their reasoning the pros-
pect for a favorable result from a bold advance was great
enough to justify the venture. The apportionment of
power between north and south became with every year
more unfavorable to the latter. Was it not therefore given
wholly to the north to decide, as long as the question was
left to congress, whether, when and how far the complaints
concerning the unequal pressure of the protective system
should be heeded? Must not the other southern states also
put this question to themselves? And if they did put it,
could they still be willing, after the experience already at-
tained, to wait with "slavish resignation" until the north
came to a better understanding and gave ear to the voice
of justice? They might shrink back from the path which
South Carolina had the courage to tread; but would they
not follow if they saw that she reached the goal?
Calhoun not only knew too well the spirit of the people,
but was himself too deeply impregnated with it, not to
consider the raising the banner of revolution as a dubious
expedient. Since the birth-pangs of the republic were
endured, the Americans, with the exception of single indi-
30
466
STATE SOVEREIGNTY AND SLAVERY.
viduals, have not fallen into the grave error of considering
revolutions as radical means against political evils. Slavish
reverence for the government is foreign to an American;
it is one of the characteristic and not insignificant traits.
of political life in the United States that the disregard of
the dignity of office often violates the most ordinary rules
of courtesy. But this unhealthy expression of the proud
consciousness of belonging to a democratic state is found,
as a rule, side by side with the much more important feel-
ing, springing from the same consciousness, that the laws
are not a hostile force, external to the people, but the ex-
pression of its own binding will. Calhoun and his com-
rades could oppose the government without being obliged
to expect to be personally branded on that account as rebels
and to have the whole nation against them. But they
dared not rest their opposition upon reasons of justice and
expediency. They had to bring forward proof that they
stood upon a positive right. If Calhoun now applied his
whole intellectual strength to the solution of this question,
he resorted to no legerdemain. He was not shallow enough
to think that revolutions could be fought through by a
sophistical whirl of phrases. It is a much-argued question
whether he thought it possible that cannon and the hang-
man could speak the last word in the struggle; but he
surely did not think that he could close the mouth of the
cannon and cheat the gallows of its victim, while he threw
dust in the eyes of the people by using the arts of logic.
Of course he wished to show that South Carolina was just-
ified in refusing allegiance to the federal government, but
he did not wish to prove by newly-discovered subtleties
that forswearing the allegiance that was due—in other
words, a revolution--was no revolution. The wish never
entered his head to put forward something new, for how-
ever unanswerable his conclusions might have been, the
nation would have simply laughed himself and his doc-
trines to political death, if he had pretended to have
66 SOUTH CAROLINA EXPOSITION.”
467
brought to light from hitherto unexplored and unknown
depths the proofs that a state could legally annul the
federal authority. Only because he went on a path long
known and widely trod, could he nourish a hope for success
and trust that, at the worst, hands would not lightly be laid
upon him, however enraged and furious men were over his
assertion that the path did lead to the goal he described.
He simply wished to mark with milestones the whole road
from the starting point to the goal that had not only been
often pointed out, but had also been already reached, by
others, in order that there might be no gap in the path and
that the goal itself might be made the sole theme of future
discussion. He succeeded in this better than his adver-
saries did in proving their assertion that he had sought, for
the gratification of his hate and ambition, to lead the peo-
ple upon a path of error which no one before him had had
the shamelessness and the criminal audacity to tread. The
writings in which he sought the solution of these problems
form the largest part of the long chain of practical com-
mentaries upon the constitution, which began with the
Virginia and Kentucky resolutions and ended with the
four years of civil war. The "South Carolina exposition,"
already mentioned, was the introduction to them. The first
chapter, the "address to the people of South Carolina," is
dated at Fort Hill, July 26.¹
Calhoun begins with a reference to the fact, seldom
rightly estimated, that "the question of the relation which
the states and the general government bear to each other
is not one of recent origin," but that " from the commence-
ment of our system, it has divided public sentiment." He
¹ Jenkins, The Life of J. C. Calhoun, pp. 161-187; first published in
the Pendleton Messenger. Compare Calhoun, Works, VI., pp. 124–144.
2 There are two versions of this important paper. The quotations in
this passage are not made from the "address to the people of South
Carolina," as it appears in Calhoun, Works, VI., pp. 124-144, but from
an "address on the relations of the states and federal government,"
468
STATE SOVEREIGNTY AND SLAVERY.
adopted as the basis of his argument the leading sentence
in the Virginia resolutions, and said: "The right of inter-
position thus solemnly asserted by the state of Virginia,
be it called as it may-state-right, veto, nullification, or by
any other name,-I conceive to be the fundamental prin-
ciple of our system, resting upon facts historically as
certain as our revolution itself and deductions as simple
and as demonstrative as that of any political or moral
truth whatever." From both points of view, he sought,
then, proof for these statements. "The great dissimilarity
and, as I must add, as truth compels me to do, contrariety
of interests in our country
are so great that they
cannot be subjected to the unchecked will of a majority of
the whole without defeating the great end of government
and without which it is a curse,-justice." This is the
real, broad foundation of his doctrine that the Union could
never have been reared upon another legal basis and could
never have an assured foundation upon any other. The
state governments are not, he said, the federal government;
the states are not subject to the Union. Jefferson had al-
ready rightly described them as "co-ordinate departments
of a simple and undivided whole," whose possible disputes
on questions of competence-if an agreement could not be
arrived at--could be settled only by a convention of the
states. Only stupidity, he declared, could raise the cry
that he preached anarchy, for here is a court of last resort
1
(Works, VI., pp. 59-94) which is dated at Fort Hill, July 26, 1831, but
which seems to be a preliminary draft of the real "address." The
author follows Jenkins's Life of Calhoun. Translators' note.
1 “Who, of any party, with the least pretension to candor, can deny
that on all these points (the great questions of trade-of taxation—of
disbursement and appropriation and the nature, character and power of
the general government) so deeply important, no two distinct nations
can be more opposed than this [the plantation states] and the other
sections?" Calhoun, Works, VI., p. 134.
2
Compare a "disquisition on government," Calhoun, Works, I., p
167.
LEGAL THEORY OF NULLIFICATION.
469
for all cases. Until its decision had been given, the states
which find themselves in the minority must evidently be
in condition to protect themselves against usurpations.
The natural legal means is "nullification," that is, the
declaration that the resolves of the majority are null and
void, so far as the states taking this action are affected by
them. Nullification would self-evidently be absolutely
binding upon the federal government, for the doctrine that
it can insist with as much right as the respective states.
upon its interpretation and try to make it good, rests upon
the "erroneous assumption that the general government is
a party to the constitutional compact." It is really only
the "agent," which "the sovereign states" have entrusted
with the execution of certain provisions of the compact
made by them. This must apply to the supreme court of
the United States as well as to the other federal powers,
for opposing principles do not underlie the different parts
of the constitution. Moreover, the supreme court does.
not stand above or outside of the constitution, but is simply
an agent of the sovereign states; in political questions "its
incompetency is not less clear than its want of constitu-
tional authority." After this exposition of his standpoint.
¹ Hayne had said in his debate with Webster (Jan., 1830): "Here, then,
is a case of a compact between sovereigns, and the question arises, what
is the remedy for a clear violation of its express terms by one of the
parties [that is, by one of the states or the federal government] ?” Elliot,
Deb., IV., p. 509. Webster said in reply: "The constitution, it is said,
is a compact between states; the states, then, and the states only, are
parties to the compact. How comes the general government itself a
party? Upon the honorable gentleman's hypothesis, the general gov-
ernment is the result of the compact, the creature of the compact, not
one of the parties to it. Yet the argument, as the gentleman has now
stated it, makes the government itself one of its own creators. It makes
it a party to that compact to which it owes its own existence." Web-
ster, Works, III., p. 343. Calhoun thus wholly agreed with Webster
on this point and he was unquestionably much more just to the state-
rights doctrine than Hayne with his logical opposition.
2
Compare a "disquisition on government." Calhoun, Works, I., pp.
264, 322.
470
STATE SOVEREIGNTY AND SLAVERY.
66
on the legal question, Calhoun thoroughly examined the
actual point then under dispute, and came to the practical
conclusion that the last moment had now come when
through the regular and ordinary process of legislation”
a change of circumstances for the better could be brought
about; if this momentary chance was not improved, then
the suffering section would cease "to look to the general
government for relief."
The address was a blow in the water as far as it was
directed against the protectionist party. A year and a
half before, the question of the relation between the states
and the federal government had been thoroughly argued
in the senate in the debate over the so-called Foot resolu-
tion, which gave no direct cause whatever for such a dis-
cussion. General Hayne of South Carolina maintained
the side of the state-rights men, and Webster took up the
cause of the opposite party. The whole country followed
this parliamentary duel with feverish interest. The north
joyfully proclaimed Webster as the victor, and the tone of
scant assurance with which the south claimed the palm for
its champion showed that it acknowledged to itself the
superiority of Webster in dialectic vigor, in cutting repar-
tee, and in the command of language. Yet not the slight-
est change was made in the matter under consideration.
Talk and negotiation could not obstruct the march of events.
Calhoun, too, naturally did not think of convincing his
adversaries. His arguments were mainly directed to his
own party, with the view of consolidating it and inspiring
it with resolution. The announcement of his resolve to
bring his doctrines to practical accomplishment, unless the
wrongs of the plantation states were forthwith righted, was
of most force with his opponents.
A few weeks afterwards when, in accordance with general
expectation, the tariff question again came before congress,
there were signs of the beginning of a break in the pro-
tectionist ranks. Independently of the political crisis, the
CALHOUN'S LETTER TO HAMILTON.
1
471
approach of which was scarcely credited, the belief in the
Anerican system had been here and there so far shat-
tered that its friends did not promise themselves the best
result from the next congressional election. Even Clay
felt unsafe. He himself brought in resolutions "for the
reduction and removal of certain duties." He met with
violent opposition from part of his own party, but the be-
lief that the safety of the future demanded a lowering
of the tariff conquered. The secretary of the treasury
estimated the probable decrease of the revenue from duties
at five million dollars. The plantation states not only
found the amount too small, but declared that the whole
reduction was a piece of bold and insolent nonsense, since
duties exclusively for revenue had been almost the only
ones reduced; the small decrease in the protective duties.
was more than counterbalanced, they said, by the required
payment in ready money, the shortening of the time of
credit, and the change in the comparative value of the
dollar and the pound sterling. South Carolina received
the tariff as a sure declaration that the protective system
was "the settled policy of the country." Calhoun now
exerted his whole influence to have the die cast without
delay, and with a firm hand.
2
July 14, 1832, the tariff had received the sanction of the
president, and on August 28 Calhoun developed again, and
in a more exhaustive way than hitherto, the whole doctrine
of the state-rights party. The arguments are more sharp-
ly formulated than in the address, the chain of logical de-
velopment is more firmly forged, and the final consequences
are stated with the utmost clearness. He takes as his
starting-point the fact that "so far from the constitution.
being the work of the American people collectively, no
See the tariff, Statutes at Large, IV., p. 583.
2 He chose, this time, the form of a letter to governor Hamilton of
South Carolina. Calhoun, Works, VI., pp. 144–193; Jenkins, Life of
Calhoun, pp. 195–232.
472
STATE SOVEREIGNTY AND SLAVERY.
such political body, either now or ever, did exist.
From the beginning, and in all the changes of political
existence through which we have passed, the people of the
United States have been united as forming political com-
munities, and not as individuals. Even in the first stage
of existence they formed distinct colonies, independent of
each other, and politically united only through the British
crown. In their first imperfect union, for the purpose of
resisting the encroachments of the mother country, they
united as distinct political communities; and, passing from
their colonial condition, in the act announcing their inde-
pendence to the world they declared themselves, by name
and enumeration,' free and independent states. In this
character they formed the old confederation; and when it
was proposed to supersede the articles of confederation by
the present constitution, they met in convention as states,
acted and voted as states; and the constitution, when
formed, was submitted for ratification to the people of the
several states; it was ratified by them as states, each state
for itself; each by its ratification binding its own citizens;
the parts thus separately binding themselves, and not the
whole the parts; to which, if it be added that it is de-
clared in the preamble of the constitution to be ordained
by the people of the United States, and in the article of
ratification, when ratified, it is declared 'to be binding be-
tween the states so ratifying," the conclusion is inevit-
"By name and enumeration." This expression is not in full ac-
cordance with historic facts. The title of the declaration is "A Dec-
laration by the Representatives of the United States in Congress As-
sembled." At the end are the words: "The foregoing declaration was,
by order of congress, engrossed and signed by the following members.”
Then follows the signature of the president, under this the names or
the states, and under each state the names of its representatives.
"This quotation is not correct. Article VII. of the constitution
reads: "The ratification of the convention of nine states shall be suffi-
cient for the establishmeut [not binding] of this constitution, between
the states so ratifying the same.”
STATE-RIGHTS THEORY OF THE CONSTITUTION.
473
able that the constitution is the work of the people of the
states, considered as separate and independent political
communities.
The first and
most impor-
tant result [of these facts] is that there is no direct and
immediate connection between the individual citizens of
a state and the general government. The relation between
them is through the state.
It was only by the
ratification [of the federal constitution] of the state that
its citizens became subject to the control of the general
government.
It belongs to the state as a member
of the Union, in her sovereign capacity in convention, to
determine definitely, as far as her citizens are concerned,
the extent of the obligation which she contracted; and if,
in her opinion, the act exercising the power [in dispute] be
unconstitutional, to declare it null and void, which declara-
tion would be obligatory on her citizens." This right
"flows directly from the relation of the state to the gen-
eral government on the one side, and its citizens on the
other." Its exercise is not the abrogation of an act of the
federal government by the state, but by the constitution;
nullification is "the great conservative principle" of the
Union. "Not a provision can be found in the constitution
authorizing the general government to exercise any con-
trol whatever over a state by force, by veto, by judicial
process, or in any other form, a most important omis-
sion, designed, and not accidental." And the actual state
of the case corresponds with the right, for "it would be
impossible for the general government, within the limits
of the states, to execute, legally, the act nullified,
while on the other hand the state would be able to enforce,
legally and peaceably, its declaration of nullification," since
the citizens of the state "would be found in all the rela-
tions of life, private and political, to respect and obey it;
and, when called upon as jurymen, to render their verdict.
accordingly, or, as judges, to pronounce judgment in con-
formity with it." An appeal to the United States supreme
474
STATE SOVEREIGNTY AND SLAVERY.
•
court would be of no use, for "what would it avail against
the execution of the penal enactments of the state, intend-
ed to enforce the declaration of nullification?
Beaten before the [state] courts, the general government
would be compelled to abandon its unconstitutional pre-
tensions, or resort to force; a resort, the difficulty (I was
about to say the impossibility) of which would very soon
fully manifest itself, should folly or madness ever make
the attempt." Moreover, the calling out of the military
power of the Union would be wholly useless, because no
opponents would be found, for "it would be
a con-
flict of moral, not physical, force." The legal relation be-
tween the nullifying state and the federal government
would be by no means broken up. The decision of one
concrete question between them would simply be delayed
until the sovereign parties to the union compact had de-
liberated over it. If the power of the federal government
in question was confirmed by three-fourths of these parties,
then the suspension of its exercise caused by nullification
had reached its end. Yet it is not to be understood that
the nullifying state would in every case be unconditionally
bound by such a decision. This is, of course, the rule,
and the scope of the rule is so great that a convention or
states may properly be, called, not only a court of last
¹ This gave one-fourth of the states the power to deprive the federal
government of every power entrusted to it, that is, to alter the constitu-
tion at will. But, according to Article V., the constitution can be
amended only by the consent of three-fourths of all the states. More-
over, in the case in point, the " suspension" of the questioned power is
in such flagrant contradiction to another provision of the constitution
that the state-rights party did not try to dispute it, but pushed it aside
by appealing to their general line of argument. Nullification forbade
the collection of all customs, but the constitution (Article I., Sec. 8, §1)
says: "All duties, imposts, and excises shall be uniform throughout the
United States." If the general government was bound to respect nulli-
fication, it was obliged by this passage of the constitution to stop the
collection of all customs in all the other states, until "the sovereign
parties" decided between it and South Carolina.
זי
RIGHT OF SECESSION.
475
resort, but also a court of final decision. But "in the
case stated, should the other members undertake to grant
the power nullified, and should the nature of the power be
such as to defeat the object of the association or union, at
least as far as the member nullifying is concerned, it would
then become an abuse of power on the part of the prin-
cipals, and thus present a case where secession would
apply; but in no other could it be justified, except it be
for a failure of the association or union to effect the object
for which it was created, independent of any abuse of
power." In this case "force might, indeed, be employed,
"2
but it must be a belligerent force, preceded by a
declaration of war, and carried on with all its formalities.'
For the seceded state "would stand to them [the other
states] simply in the relation of a foreign state, divested
of all federal connection, and having none other between
them but those belonging to the laws of nations."
Thus the question of the relation of the states to the
government of the Union, and to the Union itself, re-
ceived its definite answer, on this side, in this theory.
Everything afterwards brought forward by the state-rights
party was only a repetition or a more exact expression of
particular principles. Thirty years later the south carried
out this programme piece by piece, and based its justifica-
tion of its course, point by point, upon this argument.
Calhoun had not claimed the right of nullification for
the state legislatures. The sovereignty of the state was
the one premise upon which he built up, in logical se-
quence, his whole argument; therefore an action of the
state "in its capacity as a sovereign," that is, the decision
of a state convention, was necessary in order to decide, in
a binding way, whether or not the state had trusted the
common agent of the league of states with a certain pow-
er. On this point, the plans of the nullifiers had already
1
1 Yet in the essay of a later date, a “disquisition on government”
(Works, I., p. 241), he says: "Nothing short of a negative, absolute or
476
STATE SOVEREIGNTY AND SLAVERY.
2
once come to grief. A motion to call a convention had
been made in the legislature, but it did not receive the
necessary majority of two-thirds. But the anti-nullifica-
tion party, despite the greatest efforts, was no longer able
to fill a third of the seats in the legislature. Oct. 24, the
senate, by thirty to thirteen votes, and the house, by ninety-
nine to twenty-five, resolved to call a convention on the
19th of November at Columbia. The convention, which
contained members of nearly all the influential families of
the states, chose gov. Hamilton as its chairman. A com-
mittee appointed by him reported, through gen. Hayne, a
nullification-ordinance, which was adopted, Nov. 24, by a
large majority. It declared the tariff of May 19, 1828,
and that of July 14, 1832, null and void; instructed the
legislature to pass the laws and take the other measures
necessary for enforcing the ordinance and preventing the
collection of the duties imposed by the nullified laws; for-
bade an appeal from the state courts to the United States
supreme court in suits in which the authority of the ordi-
nance, the binding power of the laws passed in conse-
quence of it or the validity of the nullified laws came into
question; commanded the state judges to have their judg-
ments executed without regard to any such appeal and
to punish persons who did appeal for contempt of court;
demanded from all the officials of the state, under penalty
of instant dismissal, an oath to recognize and fulfill the
ordinance and all laws passed in consequence of it; pro-
vided that a similar oath should be taken by jurors when
the legality of the ordinance and of these laws came into
in effect, on the part of the government of a state, can possibly protect
it against the encroachments of the united government of the states,
whenever their powers come in conflict."
'Niles' Reg., XLIII.,p. 175.
2 The ordinance is given in full in Deb. of Congress, XII., p. 30;
Niles' Reg., XLIII., p. 219; Benton, Thirty Years' View, I., p. 297; and
in many other places.
ORDINANCE OF NULLIFICATION.
477
question; and announced that every measure of coercion
on the part of the federal government would be regarded.
"as inconsistent with the longer continuance of South
Carolina in the Union; and that the people of this state
will thenceforth hold themselves absolved from all future
obligation to maintain or preserve their political connec-
tion with the people of the other states, and will forthwith
proceed to organize a separate government and do all other
acts and things which sovereign and independent states
may of right do." The convention then adjourned until
March in order to await the decision of congress.
The legislature assembled November 27. The governor
declared, in his message,' that the ordinance of nullification
had become "a part of the fundamental law of South Car-
olina.” The legal question could no longer be mooted;
"it is enough that she [South Carolina] has willed it." It
was now the part of the legislature, he said, to ensure obe-
dience to the ordinance by penal enactments, to define the
crime of high treason against the state, and to provide
everything that would be necessary in case the federal
government should seek to compel obedience to its usur-
patory laws. For the latter purpose, he asked for a
thorough reform of the militia organization and the author-
ization of the enlistment of two thousand volunteers for
the defense of Charleston and of ten thousand more from
the rest of the state.
The legislature came promptly up to all these require-
ments. A law gave the owners of goods attached on ac-
count of the non-payment of duties the right to regain
possession of them by a writ of replevin, that is, author-
ized the use of force, if the goods were not voluntarily
delivered to the sheriff by the custom-house officials.2
¹ Niles' Reg., XLIII., p. 259.
* See Grundy's speech in the senate. Niles' Reg., XLIII., Suppl., p.
215. Compare, too, Webster, Works, III., pp. 491, 492; Kent, Comm.,
III., pp. 624, 625.
178
STATE SOVEREIGNTY AND SLAVERY.
Moreover, the sheriff was empowered, in case of refusal, to
levy on the private property of the custom-house officials
to an amount double that of the goods detained. Whoever
opposed the execution of this law was to be punished by
fine and imprisonment. Similar punishments were threat-
ened against those who lent their aid in any way whatever
to the execution of those judgments of the federal courts
which were based on the supposition of the efficacy of the
nullified laws. Other laws prescribed the oath to support
the ordinance of nullification and gave the governor the
power he asked to put the state in a condition for defense.
and to bring armed force into play if it seemed at any time
necessary. Webster affirmed that the law first mentioned
fell far short of the ordinance. But Grundy summed up a
masterly analysis of it by saying that South Carolina had
thereby "legislated the federal government out of the
state."
The ordinance of nullification put Jackson into a fury
On December 11,2 he issued, as an answer, his famous
"proclamation," in which he tried to refute the nullifica-
tion doctrine and made known his resolve to watch over
the full execution of the law, in accordance with his oath
of office, with all the powers entrusted to him by the con-
stitution. The proclamation united clear and genuine
statesmanlike reasoning with warm and tender pathos. It
made a deep impression at the north. It brought keenly
¹ Webster, Priv. Corres., I., p. 530.
3
2 This date is given in the Statesman's Manual, II., pp. 890–903.
Moreover, in the message of Jan. 16, 1833 (Ibid, II., p. 904), is the ex-
pression, "My proclamation of the eleventh of December last." But
Benton, Thirty Years' View, I., p. 299; Colton, Works of Henry Clay,
II., p. 218; Curtis, Life of Webster, I., pp. 433, 465; Elliot, Deb., IV.,
p. 582; Hunt, Life of Edward Livingston, p. 371, and all the other works
which I can recall to mind (except Parton, Life of Jackson, III., p.
467), give the date of Dec. 10. I know no explanation for this.
3 Neumann, Gesch. der Ver. Staaten, II., p. 499, says: “But all the cred-
it belongs to the president; to him alone belongs all the glory of the in-
JACKSON'S PROCLAMATION.
479
to the consciousness of the south the miserable, mongrel
condition of that section. The south looked unfavorably
upon South Carolina's action, and was well contented that
the reckless, energetic man at the head of the government
promised to lead the Union safely through this crisis. But,
on the other hand, South Carolina had only gone a step
beyond the rest of the south in the development, and es-
pecially in the practical application, of the state-rights
doctrine. The unconditional supremacy claimed by the
proclamation for the laws of the Union and the promise of
their protection by force, if necessary, could therefore
gratify this section but little.¹ South Carolina was not
alone in asking where Jackson's swords and cannon were,
when Georgia publicly and scornfully transgressed the
laws of the Union. Why was that now so great a crime.
disputable contents of the proclamation as well as of its fiery eloquence.
Occasional improvements in the wording may be due to that master of
style, Edward Livingston. There is, however, not the slightest ground
for ascribing the whole proclamation to Livingston, as Hunt has done
in his recent biography, Life of Edward Livingston." That the un-
cultured Jackson was not able to compose this state paper, needs no
proof. That Jackson should not be without credit for it, appears very
plainly from Hunt's story (pp. 371-381). Jackson gave it its character
which is expressed in the words so often quoted: "The Union must and
shall be preserved." The remainder is surely, in the main, Livingston's
work. Neumann's authority is Parton, of whom he himself (II., p.
487) says: “The biographer of Jackson writes a novel, calculated to
produce effect, and calls it history." And Parton's witness is Major
Lewis, a friend and enthusiastic admirer of Jackson, to whom Parton is
indebted for endless masses of presidential "kitchen-gossip." Livings
ton, whose name is even now mentioned with great respect by the great
est European jurists, does not deserve to be put off with the description
a master of style." Compare, moreover, Neumann, II., p. 471.
1
Clay himself wrote, Dec. 12, to Judge Brooks: “As to the procla
mation, although there are good things in it, especially what relates to
the judiciary, there are some entirely too ultra for me, and which I can-
not stomach. A proclamation ought to have been issued weeks ago
but I think it should have been a very different paper from the present,
which I apprehend will irritate, instead of allaying any excited feeling."
Colton, Works of Clay, II., p. 219.
480
STATE SOVEREIGNTY AND SLAVERY.
upon which the president then looked with scarcely con-
cealed satisfaction? Did not his oath of office impose the
same duties upon him then? Was the supremacy of a
tariff-law of a higher sort than that of treaties? Why
must a sovereign state now most obediently entreat the
United States supreme court to inform it of the limits of
its rights, when then a state no more sovereign could an-
grily reject the decision of that court, made in all form, as
a revolting assumption, without receiving even a warning
reproof from president or congress? South Carolina knew
that no answer could be given to all these questions, and
therefore did not fail to put them. But she was too proud
and too prudent to look upon them as the anchor which
held fast her cause. Calhoun's "indubitable historic facts"
and his "simple deductions" from the constitution had to
remain the ground upon which she took her stand, if she
wished not only to escape without punishment, but to reach
her immediate aim and protect herself against all future
contingencies.
Hamilton's term of office had meantime expired, and in
his stead Hayne became governor of South Carolina. The
seat thus left vacant in the United States senate was given
to Calhoun, who had resigned the vice-presidency. In the
presidential election, the state took only a formal part,
since it supported the candidates of neither party.¹ All
this showed that the nullification resolution was not simply
a piece of headstrong nonsense. Jackson's proclamation
did not terrify the state. It only made it the more defiant.
Its reading in the legislature was accompanied by loud
laughter and jesting commentaries.2 Hayne was requested
by a formal resolution of both houses to issue a counter
proclamation. He responded to the request in a way
which satisfied even the most embittered "fire-eaters"
'John Floyd of Virginia and Henry Lee of Massachusetts were the
men of straw who received the electoral votes of South Carolina.
2 Niles' Reg., XLIII., pp. 287, 288.
PREPARATION FOR WAR.
481
among
the nullifiers.1 Jackson's command to the custom-
house officials to continue in the discharge of their duties at
every risk, the mission of general Scott and the appearance
of ships of war before Charleston were answered by redoubled
zeal in the hastening of preparations for war. Meanwhile,
congress had again come together. Calhoun's arrival was
waited for with the greatest suspense. The galleries were
filled to overflowing as he took the oath to the constitution.
The firm repose with which he did so did not fail to make
a deep impression. Only a few denied that he was per-
sonally a man of the strictest morality, and it was there-
fore said that he must be fully convinced of the truth of
his doctrine and would not lightly abandon it. Still less
was it doubted that Jackson would fulfill his word, if South
Carolina made good her own of February 1. The minds.
of men were therefore heavy with care, for nearly all agreed
that bloodshed might draw after it the most incalculable
results. But yet an indefinite faith that the danger would
be averted was discernible through the expression of the
worst fears. Deeply in earnest as both Jackson and South
Carolina were, it was nevertheless to be seen from the first
that they would reciprocally try hard to avoid an armed
collision. This feeling did not easily gain possession of
the energetic soldier who had always looked upon the pres-
idency as the headship of an army. But with all his great
and eventful faults, he possessed the one virtue of a true
patriotism and a warm feeling for the whole people. If
the sword must be drawn, then it would certainly not be
sheathed again--as far as this depended upon him—until
South Carolina's resistance had been wholly broken down,
even if the whole Union had first to be bathed in blood.
But with whatever soldierly joy he had fought against
England and the Indians, he did not wish to draw the
sword against his fellow-citizens, if it could possibly be
¹ Niles' Reg., XLIII., pp. 308–312.
31
482
STATE SOVEREIGNTY AND SLAVERY.
avoided, for he feared that there would perhaps be need of
long and hard work before quiet was again restored. If
congress and South Carolina agreed, on the basis of a
thorough and comprehensive modification of the tariff, up-
on the conditions of a settlement, Jackson certainly would
not refuse his consent. The limits of the indirect partici-
pation in the legislative powers granted to the president
by the constitution could not rightly be so narrowly drawn
by him that he could hold or declare himself unauthorized
to veto a tariff bill because-and simply because— it seemed
to him desirable to subject the doctrine of nullification to
the ordeal by fire. But Jackson could give his sanction.
to a tariff modified in the interests of free trade in and for
itself, without yielding the slightest point, since he had
already recommended, since his entrance into office, a mod-
ification of the existing tariff.
His patriotic care had an influence, too, upon South
Carolina, for it is simply laughable, from party spirit or
for the sake of heightened dramatic effect, to give such a
view of the strife that Calhoun and his comrades seem to
have lost, through ambition, personal hatreds, or fanati-
cism, all national spirit. Any chance might, indeed, have
let the flood of passion break through the dam of national
feeling, if it had not been held back by the strongest dic-
tates of political prudence. The nullifiers evidently con-
sidered it practically almost impossible for the federal
government to try to cut through the knots; but their
judgment remained sober enough to let them see that they
would compel the government to use force if they first re-
sorted to it. They might perhaps have thus hurled the
whole Union into chaotic confusion, but in no event could
they have attained their ends. The moment they removed
the question from the domain of law their cause was hope-
lessly lost. They did not lose sight of this for an instant.
The convention had issued, before its adjournment, an
ADDRESS OF THE NULLIFIERS.
3
2
483
"address to the people of the United States," in which
it expressly declared that, as far as lay within the power
of South Carolina, matters would not come to bloodshed.
It announced, indeed, on this point, that this would be
avoided by the secession of the state. We need not in-
quire here how far this means would have corresponded
with the end proposed. The nullifiers considered it prob-
able, but by no means as indubitable as they pretended,
that such a solution of the struggle could be brought
about without opposition. Then, too, they followed up
this assurance, which was, at best, of only negative value,
with a positive offer. The address explained that South
Carolina made, in this, "a concession," and declared that
she could only content herself with the plan of taxation
she proposed, "provided she is met in due time and in a
becoming spirit by the states interested in the protection
of manufactures." If this way of proposing a compromise
was little adapted to make its adoption possible, the pro-
posed tariff system itself was absolutely unacceptable to
the manufacturing states, and even wholly absurd in and
for itself. Yet too much weight must not be laid upon
¹ Niles' Reg., XLIII., pp. 231–234.
2" In order to obviate the possibility of having the history of this
contest stained by a single drop of fraternal blood, we have solemn-
ly and irrevocably resolved that we will regard such a resort [to mili-
tary or naval force] as a dissolution of the political ties which connect
us with our confederate states; and will forthwith provide for the or-
ganization of a new and separate government."
3
A very considerable part of the state-rights party rejected the right
of nullification, but acknowledged that of secession. In the legislature
of South Carolina, Barnwell Smith commented with especial sharpness
on Jackson's proclamation, as containing "the tyrannical doctrine
that we have not even the right to secede." Niles' Reg., XLIII., p.
288.
"We believe that upon very just and equitable principles of taxa-
tion, the whole list of protected articles should be imported free of all
duty, and that the revenue derived from import duties should be raised
exclusively upon the unprotected articles, or that whenever a duty is im-
484
STATE SOVEREIGNTY AND SLAVERY.
this. The main thing was, that South Carolina had shown
her readiness to agree eventually upon a compromise. If
congress made no offers whatever in answer to this, she
could, with at least a certain appearance of justice, make
it responsible for the consequences.
Jackson and the nullifiers thus not only sought each to
force upon the other the dice-box for the final cast, but
they met each other with a secret wish that it might not
be grasped until congress had been compelled to again take
part in the play. The protectionist majority was thus put
in a dilemma. The extreme fraction, belonging to the
New England states, was not willing to buy peace at all,
and especially not at the cost of the manufacturers. The
majority would gladly have played the part of spectators.¹
But inactivity would have imposed no less responsibility
upon it than a positive decision, and if there was a general
agreement to bring the tariff again under discussion it
was thereby already practically decided that some sort of
compromise offer would be made to South Carolina. Such
a small majority could not preserve an unbroken front in
such a crisis, after it had been already thrown into fear and
trembling before the crisis culminated.
Jackson had stated, in his annual message of Dec. 4,
that the needs of the treasury allowed a further reduction
of the national income, and had recommended the removal
posed upon protected articles imported, an excise duty of the same rate
should be imposed upon all similar articles manufactured in the United
States. . . But we are willing to make a large offering to preserve
the Union; and, with a distinct declaration that it is a concession on
our part, we will consent that the same rate of duty may be imposed upon
the protected articles that shall be imposed upon the unprotected, pro-
vided that no more revenue be raised than is necessary to meet the de-
mands of the government for constitutional purposes, and provided,
also, that a duty substantially uniform be imposed upon all foreign im-
ports."
Clay writes, Dec. 12, 1832: "Congress has not been called upon, and I
sincerely hope it may not be necessary to call upon it, in this unfor-
tunate affair." Private Correspondence of H. Clay, p. 345.
THE VERPLANCK BILL.
2
485
of "those burthens which shall be found to fall unequally
upon any
[of] the great interests of the commu-
nity." This part of the message had been referred to the
committee on ways and means, which reported, Dec. 27,
the so-called Verplanck bill. The bill went back to the
tariff of 1816, and put part of the duties still lower than
that had. Verplanck himself estimated the decrease in
the customs revenue at $13,000,000, compared with the
tariff of 1828, and at $7,000,000 in comparison with that
of 1832. Since this reduction was to take place in the
course of two years, it almost amounted to a complete
abandonment of protection, and a great part of the manu-
facturing establishments would have been hopelessly ruin-
ed. Yet the protectionists feared that the bill would be
passed by the house, and then perhaps also, although not
without a hard struggle, by the senate. A month before.
such a radical change would have been held impossible, and
even now, despite nullification, the adoption of the bill
would not have been feared if it had not been generally
regarded as an "administration bill." Experience had al-
ready repeatedly shown how terrible an influence Jackson
could exercise, and the message had already given it to be
understood, clearly enough, that he was ready to go as far
¹ Statesman's Manual, II., p. 785.
9 Verplanck brought in the report accompanying the bill, Dec. 28.
Debates of Congress, XII., p. 128.
3 Webster wrote, Jan. 3, 1833, to W. Sullivan: "But our more immi-
nent danger, in my opinion, is that, seizing on the occasion, the anti-
tariff party will prostrate the whole tariff system. You will have seen
the bill reported by Mr. Verplanck. Great and extraordinary eforts
are put forth to push that bill rapidly through congress. It is likely
to be finally acted upon, at least in the house of representatives, before
the country can be made to look on it in its true character. On the
other hand, our friends will resist it, of course, and hold on to the last.
If the bill were now in the senate, it would not pass; but how
far individuals may be brought over by party discipline in the drill of
a month, it is impossible to say." Webster, Priv. Corresp., I., pp. 528,
529.
486
STATE SOVEREIGNTY AND SLAVERY.
as this.¹ Webster affirmed that Jackson would have pre-
ferred to coerce the nullifiers without making any conces-
sions to them, and afterwards to modify the tariff, but that
his party pressed him forward, because it feared the effect
of the doctrines developed in the proclamation. But the
friends and admirers of the president declared that he aided
the compromise bill by all the means in his power. But
he did not on this account abandon the position taken in
the proclamation. When he learned how the latter had
been received in South Carolina, he sent to congress a mes-
sage which was couched in a more moderate tone, but
which asked for the grant of extraordinary powers. He
3
¹ His argument, indeed, inclined to both sides, but the summary de-
clared:
"Those who have vested their capital in manufacturing estab-
lishments cannot expect that the people will continue permanently to
pay high taxes for their benefit, when the money is not required for
any legitimate purpose in the administration of the government. Is it
not enough that the high duties have been paid as long as the money
arising from them could be applied to the common benefit in the extin-
guishment of the public debt?" Yet he still held fast to the belief that
an exception should be made in favor of those things which were abso-
lutely necessary for the safety of the land in time of war.
I do not believe the president himself wishes the bill to pass. E
contra, I fancy he would prefer the undivided honor of suppressing nul-
lification now, and to take his own time hereafter to remodel the tariff.
But the party push on, fearing the effect of the doctrines of the procla
mation, and endeavoring to interpose and to save Carolina, not by the
proclamation, but by taking away the ground of complaint." Webster,
Priv. Corres., I., p. 529.
3 Benton writes: "Many thought that he ought to relax in his civil
measures for allaying discontent, while South Carolina held the military
attitude of armed defiance to the United States,-and among them, Mr.
Quincy Adams. But he adhered steadily to his purpose of going on
with what justice required for the relief of the south, and promoted, by
all the means in his power,the success of the bills to reduce the revenue.”
Thirty Years' View, I., p. 308. On Jackson's position on the tariff
question, in the spring of 1832, compare Reminiscences of J. A. Ham-
ilton, p. 243; see also A. H. Stephens, The War between the States, I.,
p. 440.
4 Jan. 16, 1833. Statesman's Man., II., pp. 904–922.
THE FORCE BILL.
487
,1
stated that he had ordered, from motives of "precaution,"
the transfer of the custom-house from Charleston to Castle
Pinckney and now wished to be authorized" to alter and
abolish such of the districts and ports of entry as should
be necessary and to establish the custom-house at some
secure place within some port or harbor of such state."
Only in case this did not prove enough and "in case of an
attempt otherwise to take the property [attached for non-
payment of duties] by a force too great to be overcome by
the officers of the customs," did he ask the right to use the
land and sea forces to execute the law.
2
Calhoun answered the message by introducing a series
of resolutions concerning the powers of the federal gov-
ernment. His whole theory of state rights was therein
compressed into a few sentences, but the offensive word
"nullification" was not used. Yet he went as far on his
side as Jackson had on his. On the main fact he held fast,
unterrified, to his position, but gave it to be understood
that he did not wish to run the risk of the danger of pre-
venting a compromise for the sake of trifles.
The state of affairs was much more rightly described by
this than by the character which the debate soon after-
wards took in the senate. The message of the president
had been referred to the judiciary committee, which brought
in a bill, Jan. 21, intended to ensure, that is, to make pos-
sible, the collection of customs in South Carolina.³ The
whole body of state-rights men denounced it in the most
unmeasured language and soon fastened the irritating name
of "force bill" upon it. Before the debate proper began,
¹ He gave as a reason for this request that the same measures of pre-
caution could not be taken in the harbors of Georgetown and Beaufort
as in Charleston.
2 Jan. 22, 1833. Deb. of Congress, XII., p. 23.
3 The bill was naturally framed in such a way that it applied, in form,
to the whole extent of the Union. It is given, in the shape in which it
was finally adopted, in Stat. at L., IV., p. 632 and also in Niles' Reg.,
XLIII., Suppl., p. 46.
488
STATE SOVEREIGNTY AND SLAVERY.
:
it had already become evident that the bill would by no
means be quickly passed. Mangum of North Carolina
and Bibb of Kentucky moved to postpone the debate.
The latter gave as his reason that this was not the best
time for the discussion of principles of such an exciting
character; "events" might soon happen which would
make the debate less exciting.¹ The senate adopted a com-
promise motion of Clay, in accordance with which the de-
bate began Jan. 28. The senate had thus coincided with
Mangum's remark that congress could not come to a con-
clusion before February 1, the day on which the ordinance
of nullification was to come into force. But not much im-
portance was attached to this circumstance, although it
was to be expected, from the previous talk of both parties,
that the greatest weight would be laid upon it. Bibb was
evidently not alone in expecting the "events" to which he
had referred. And the expectations entertained were not.
disappointed. South Carolina was in no more of a hurry
to let nullification come into force than congress had been
to pass the "force bill." A " suspension" of the ordinance
was voted, in order to wait and see what congress would
do.2 Thus both sides reached an equally broad water-way,
by which the harbor must finally be entered, if neither
party suddenly turned around the rudder. This explains
the significance of the wild war of words which now be-
gan in congress. It was neither a stage-contest for the
amusement of the public nor a womanish wrangle about a
mere matter of dogmatism. It bore from the first instant.
the stamp, not of a struggle which was to culminate straight-
way, but of one which had just happily passed its culmin-
ating point.
Wilkins of Pennsylvania, as chairman of the judiciary
committee, opened the debate. The ground-thought of his
¹ Niles' Reg., XLIII., Suppl., p. 51.
2 Ibid, p. 382.
DEBATES ON THE BILL.
489
speech was that nullification was a practical dissolution of
the Union, for it overthrew the principle of the supremacy
of the law. The passage of the bill was therefore not only
justified, but absolutely necessary, for its provisions went
just far enough to maintain the authority of the Union if
South Carolina tried to execute the nullification laws. For
the rest, the bill was not, as the Opposition had affirmed,
of an extraordinary character. The committee could for-
tify itself with precedents on every point, or at least could
cite cases in proof that its proposals were in the fullest
harmony with previous laws. The only new thing was the
provision which gave the president the right to move cus-
tom houses, and this was simply intended "to avoid, if
possible, all collision.”
Bibb of Kentucky was the first speaker of the Opposi-
tion. He said not a word in defense of nullification, but
he threw himself, with the state-rights shield of noli me
tangere between the nullifiers and the federal authorities;
the bill, he said, "authorizes a declaration of war against
the state of South Carolina, a declaration of war by proc-
lamation of the president and at his discretion, not upon
the basis of facts." But his whole speech was on what
the federal authorities could not do; the positive side of
the question--the way in which they could defend them-
selves and the Union against a nullification of the laws of
the Union-he left untouched. If his whole reasoning
were summed up-something which the orator naturally
failed to do and the practical result asked for, the only
possible answer was that a return, in essentials, to the
standpoint of the articles of confederation was demanded.
¹ Niles' Reg., XLV., p. 60. The two last points were much morestrong-
ly put by Frelinghuysen and Grundy. The latter said: "Is this making
war? So far from it, it is the most pacific course that could be presented;
it is retreating from threatened violence, and this is done upon the recom-
mendation of him who never retreated to secure his own personal safe-
ty." Ibid, pp. 53, 88, 216.
2
² Ibid, p. 65.
490
STATE SOVEREIGNTY AND SLAVERY.
These articles had given congress many rights, but had
withheld from it the power to make good its rights. Ac-
cording to the doctrine of the anti-nullification state-rights
party, the constitution gave the federal government suffi-
cient rights, and gave it means which would have sufficed
for the enforcement of these rights, but it had not given it
the power to use these means, if a state objected to the
exercise of the rights. Nullifying and anti-nullifying
state-rights men came to substantially the same belief be-
cause they started with the same hypothesis. Bibb af
firmed: "Sovereignty rests in the people of each state."
Tyler formulated the creed of the party still more sharply
by saying that he owed obedience to the laws of the Union,
because he owed allegiance to Virginia.²
The other speakers of the Opposition followed without
exception in Bibbs's footsteps. The most interesting thing
in their speeches was the crowd of historic illustrations.
Not many states could boast that they had never done
priest's service at the altar of state sovereignty and had
not praised as the flames of holy sacrifice what they now
denounced as a Moloch's fire.
The debates had already continued fourteen days and,
despite all the eloquence and dialectic sharpness shown by
both parties, the goal was not a single step nearer. Clay
¹ McDuffie said in an after-dinner speech: "I will readily concede
that a state cannot nullify an act of congress by virtue of any power
derived from the constitution. It would be a perfect solecism to sup-
pose any such power was conferred by the constitution. This right
flows from a higher source. All that I claim for the state in this re-
spect necessarily results from the mere fact of sovereignty." Niles'
Reg, XLIII., pp. 41, 42.
"It is because I owe allegiance to the state of Virginia that I
owe obedience to the laws of this government. My state requires of me
to render such obedience. She has entered into a compact which, while
it continues, is binding on all her people. So would it be if she had
formed a treaty with any foreign power. I should be bound to obey
the stipulations of such a treaty because she willed it." Ibid., XLIII.,
Suppl., p. 104.
THE CLAY-CALHOUN COMPROMISE.
491
therefore asked the senate, February 12, to allow him to
bring in a bill to modify the tariff laws. Calhoun spoke
in favor of granting the permission. He could not give
his consent to all the details of the bill, but its "general
principles" and its "object" had his "entire approval."
"A very large capital," he continued, "has been invested in
manufactures, which have been of great service to the coun-
try; and I would never give my vote to suddenly withdraw
all those duties by which that capital is sustained in the
channel into which it has been directed." The settlement
of the minor points of difference would present no diffi-
culty if men met each other "in the spirit of mutual com-
promise
without at all yielding the constitutional
question as to the right of protection."
Now, in fact, nothing remained but to come to an under-
standing on the "minor points of difference." After the
leaders of the protectionists and the leaders of the nulli-
fiers announced that they had agreed with each other on
the main points of the arrangement, the latter was assured
even if a hot battle had to be fought for its sake. Webster
declared that he found principles in the bill, to which, as
far as he could now see, he could never give his approval.
The extreme wing of the protectionists, too, had not pre-
viously been won over to support the compromise,³ and it
was strong enough to make the slightest discord between
the new allies a serious danger. But the whole history of
party up to that time had not seen stranger bedfellows
than Clay and Calhoun were at that instant. They had
begun their political career as brothers in arms, but now
¹ Deb. of Cong., XII., p. 81; Clay, Speeches, II., p. 139, seq.
'Deb. of Congress, XII., pp. 84, 85.
3 Benton relates that Clay had advised Webster of his intentions, but
that the latter had opposed it, saying: "It would be yielding great
principles to faction and that the time had come to test the strength of
the constitution and the government." On this account, he had not
been admitted to the further negotiations. Benton, Thirty Years' View,
I., p. 342.
492
STATE SOVEREIGNTY AND SLAVERY.
they had so thoroughly fallen away from each other that
they did not even speak to one another. Even now, no
change was made in their personal relations. Party spirit
and personal enmity have used this circumstance in order
to stamp Calhoun as a "coward." Benton relates that
Calhoun accepted Clay's conditions after he had been told
by Letcher, a Kentucky representative, that Jackson wished
to hear of no "negotiation," but was resolved to have him
imprisoned and tried for high treason.¹ Clayton, senator
from Delaware, also declares that Calhoun's motive was
fear lest Jackson should let him "hang.
192 In this case,
too, persistent repetition has sufficed to make the assertion
of extreme partisans become in the popular mind an his-
toric fact. It has never once been asked whether it was in
any way possible for Jackson to "hang" the "arch-traitor.”
Jackson was enough of an autocrat not to let Americans,
proud of their freedom, look back with too great satisfac-
tion upon this chapter of their history. They need not at
least boast, upon the most dubious testimony, that he had
not an evil pleasure in acting, as president, with the same
arbitrary brutality that he had shown as a general in
hunting down Indians. Yet the law and Jackson's will
were not always absolutely identical, and however certainly
Calhoun, according to the European ideas of state rights,
may have been guilty of high treason, it would have been
difficult to have convicted him of it, under the provisions
of the constitution.3
¹ Benton, Thirty Years' View, I., p. 343.
2 Ibid, II., p. 113; Colton, Works of Clay, Speeches, II., p. 125.
3 “Treason against the United States shall consist only in levying war
against them or in adhering to their enemies, giving them aid and com-
fort. No person shall be convicted of treason unless on the testimony
of two witnesses to the same overt act or on confession in open court.”
Art. III., Sec. 3, § 1. In the decision of the supreme court in the cases
Ex parte Bollmann and Ex parte Swartwout, it is said: "To constitute
that specific crime,
war must actually be levied against the
United States. However flagitious may be the crime of conspiring to
THE GREAT NULLIFIER.
493
Calhoun was well enough acquainted with the decisions
of the supreme court in the cases of Burr and Bollmann not
to be as much frightened by the first dark threat which
came to him, at third or fourth hand, as, after a truce was
agreed upon, his bitterest opponents affirmed. Only the
partisan and the special pleader can lay weight on bits of
history which have happened in the night and without a
witness. As long as better proofs are not brought forward,
the objective historian must confine himself to Calhoun's
public actions and omissions. There is no justification in
them for the supposition that, on account of anxiety about
his personal safety, he caught quickly at the chance when an
opportunity to capitulate was offered him.
February 15 and 16, Calhoun delivered a speech on the
force bill.¹ It was couched, for the most part, in the meas-
ured, doctrinaire tone of a logical discussion. Yet in parts
it fell into pathos, which was, indeed, not free from decla-
mation and exaggeration, but which certainly did not show
fear. Calhoun did not seek to avoid by humility and flat-
tery the blow which it was alleged that Jackson wished to
subvert by force the government of our country, such conspiracy is not
treason. To conspire to levy war and actually to levy war, are distinct
offences. The first must be brought into open action by the assemblage
of men for a purpose treasonable in itself, or the fact of levying war can-
not have been committed. . . It is not the intention of the court to
say that no individual can be guilty of this crime who has not appeared
in arms against his country. On the contrary, if war be actually levied,
that is, if a body of men be actually assembled for the purpose of effect-
ing by force a treasonable purpose, all those who perform any part,
however minute or however remote from the scene of action, and who
are actually leagued in the general conspiracy, are to be considered as
traitors. But there must be an actual assembling of men for the trea-
sonable purpose to constitute a levying of war.
It is therefore
more safe, as well as more consonant to the principles of our constitution,
that the crime of treason should not be extended by construction to
doubtful cases." Cranch, Rep., IV., pp. 126, 127; Curtis, II., pp. 36, 37.
Compare also Cranch, IV., pp. 468–509.
I Calhoun, Works, II., pp. 197-262; Jenkins, Life of Calhoun, pp.,
251-300.
494
STATE SOVEREIGNTY AND SLAVERY.
strike. He had exasperated him both as president and as
an individual and he well knew the hard feelings and the
wild passionateness of the man, but he had a conciliatory
word neither for the president nor for the individual.
From motives of "decorum," he refrained from answering
the personal attacks of the president, but he accused him
in the sharpest language of breach of faith and of ingrati-
tude towards South Carolina. On the essential question,
he led the fight to the farthest point it had yet reached. As
if with an inner satisfaction, he named everything plainly
by its right name and he sought the strongest words with
which to characterize his opponents and their policy. "You
propose by this bill," he said, "to enforce robbery by mur-
der. Force, indeed, may hold the parts together, but
such union would be the bond between master and slave,
I tell you plainly that the bill, should it pass, can-
not be enforced. It will prove only a blot upon your stat-
ute-book, a reproach to the year and a disgrace to the
American senate. I repeat, it will not be executed; it will
rouse the dormant spirit of the people and open their eyes
to the approach of despotism. The country has sunk into
avarice and political corruption from which nothing can
arouse it but some measure on the part of the government
of folly and madness, such as that now under consideration.
I proclaim it, that, should this bill pass and an
attempt be made to enforce it, it will be resisted at every
hazard-even that of death itself.
There are
thousands of her [South Carolina's] brave sons who, if
need be, are prepared cheerfully to lay down their lives in
defense of the state and the great principles of constitu-
tional liberty for which she is contending. God forbid
that this should become necessary! It never can be, unless
this government is resolved to bring the question to ex-
tremity, when her gallant sons will stand prepared to per-
form the last duty--to die nobly."
Webster answered this speech on the day Calhoun ended
WEBSTER ON NULLIFICATION.
495
it,--Feb. 16.¹ His theme was not the force bill, but the
right of nullification and secession. He paid a full recog-
nition to the dialectic keenness of the Carolinian, but yet
declared that he might be compared to a strong man who
sunk the deeper in a bottomless quagmire, the more tre-
mendous efforts he made to extricate himself. He com-
pared with classic simplicity and clearness, the subtle,
logical deductions from legal abstractions with the demands
of sound common sense. His argument started out with
the idea that the state and government, the state and the
supremacy of law, were conceptions, each of which abso-
lutely involved the other, and that the rejection, on princi-
ple, of the supremacy of the law therefore could not be the
basis of the right of a state. Each state exists, he said, for
the sake of "its peculiar
duties" and its constitu-
tion contains the fundamental rules, in accordance with
which the fulfillment of these duties must be sought, and
can alone be legally sought. A constitution, the first im-
portant sentence of which negatives the idea of the state,
is therefore no constitution; a state with such a constitu-
tion is no state. The right of nullification and the con-
ception of the state absolutely exclude each other. Nulli-
fication and secession "presuppose the breaking up of the
government. . The constitution does not provide for
events which must be preceded by its own destruction.
The constitution of the United States was received
as a whole and for the whole country. If it cannot stand
altogether, it cannot stand in parts; and if the laws cannot
be executed everywhere, they cannot long be executed any-
where." How can law be spoken of when the construc-
tion and interpretation of the law are not one and the same
in all the twenty-four states, but every single one of these
has finally to decide upon its legally binding force? Have
not twenty-three states the same right to a belief that one
Webster, Works, III., pp. 448–505.
496
STATE SOVEREIGNTY AND SLAVERY.
has? And if twenty-three states cherish the conviction.
that they have the right to execute the law in opposition
to one state, is the judgment of the one state alone to be
then decisive? Then the only true law of the land is
anarchy.
Yet Webster did not limit himself to these unanswera-
ble arguments, deduced directly from the idea of the state.
To his and his country's harm, the advocate in him always
spoke loudly in the reasoning of the statesman. This time,
indeed, the exterior arrangement of his argument was so
unfortunate that its opponents could, with a strong seem-
ing of justice, declare that the final basis of his proof was
useless hypercriticism which rested upon claims which
were proved to be historically false and against which his
own earlier speeches could be quoted.' Calhoun was thus
able to do more than confine himself to a precarious defense
in his answering speech of Feb. 26. Yet this speech could
have no influence upon the decision of the questions just
then under discussion, since the senate had already, on
Feb. 18, ordered the force bill to a third reading by thirty-
two to eight votes² and the fate of the tariff bill, too, had
already been practically decided, although this had not
been formally passed. For an instant it, and with it the
prospect for a compromise, was seriously threatened. On
February 21, Clay brought in an amendment, according to
which the duties were to be reckoned, not by the declared
value of the goods at the port of export, but by an ap-
praisement of their value at the port of import. This was
a blow which Clay dealt wholly unexpectedly and, as it
were, from an ambush laid against his new comrades.³
¹ See Webster, Works, III., pp. 453–457, and Calhoun's answer, Works,
II., pp. 262-309. Compare also Wash., Writ., IX., pp. 278, 389, 390;Ann.
of Cong., I., pp. 932–935.
2 Deb. of Congress, XII., p. III. On the final passage, the vote was
thirty-two to one, since all the opponents of the bill, except Tyler, had
withdrawn.
³ Benton, Thirty Years' View, I., p. 322.
CLAY'S TACTICS.
1
497
Calhoun at once declared that there were "insuperable
constitutional objections" to this amendment; he "should
be compelled to vote against the whole bill, should the
amendment be adopted." Clayton replied to this, saying
that the bill with the amendment was the farthest conces-
sion to which he and his friends-"only for the sake of
arriving at a reconciliation"--could agree; if Calhoun was
not willing to accept it in this sense, he (Clayton) would
have to move to lay it on the table. It was very hard for
the proud planter not to stand unconditionally by his word
this time, especially since he had declared the amendment
to be unconstitutional. But the protectionists were re-
solved not to let themselves be bullied any longer, and
what Calhoun would have endangered by his obstinacy was
out of all proportion with what he would sacrifice by yield-
ing. On the next day he voted for the amendment, yet
only "under two conditions,"-that a method of appraise-
ment should be adopted, which would neither interfere
with the equality of all imposts demanded by the consti-
tution nor "make the duties themselves part of the ap-
praised value," so that "the taxes would be taxed." This
was meaningless talk; he sought by some adroit pretences
and some weighty blows dealt in the air to make the dis-
comfiture which he had unexpectedly suffered seem as
small as possible. While he abandoned the field to his
opponents on this one point, he still maintained his posi-
tion on all the others.
2
3
Clay now discharged all the duties of his alliance with
his whole zeal. He defended the bill, January 25, against
Webster and his comrades, ascribing to them the entire
responsibility for the danger to which not only the peace
of the Union but the protective policy was exposed by their
¹ Deb. of Cong., XII., p. 112.
Compare Clayton's speech at Wilmington, June 15, 1844. Colton,
Life and Times of H. Clay, II., p. 258 and before.
3
Clay, Speeches, II., pp. 157-176.
32
498
STATE SOVEREIGNTY AND SLAVERY.
opposition. He pointed out as his main motive the prob-
ability that at the next session of congress the opponents
of protection would have the upper hand, and declared that
an agreement could therefore be arrived at now at a less
cost than then. Yet he did not deny the influence which
the fear of a civil war had exerted upon his conclusions,
and he confessed that he thought war almost unavoidable.
if the next congress did not give the redress solicited.²
As circumstances were now, he said, a man could only
cherish, as a patriot as well as a protectionist, the most
earnest wish to see a decision made by this congress.
If Clay's wish was to be realized, the majority of the
house as well as of the senate must be thoroughly im.
pressed with the conviction that the greatest danger was
delay. The congress had only a few days more of life, and
in the ordinary course of business it would have needed
weeks under the most favorable circumstances before a
"In this body we lose three friends of the protective policy without
being sure of gaining one. Here, judging from present appearances,
we shall at the next session be in the minority. In the house it is noto-
rious that there is a considerable accession to the number of the domi-
mant party [the Democrats]. How, then, I ask, is the system to be sus-
tained against numbers, against the whole weight of the administration,
against the united south, and against the increased impending danger
of civil war?
Two states in New England, which have been in
favor of the systemh, ave recently come out against it. Other states of
the north and east have shown a remarkable indifference to its preser-
vation. If, indeed, they have wished to preserve it, they have neverthe-
less placed the powers of government in hands which ordinary informa-
tion must have assured them were rather a hazardous depository."
•
2 Virginia “has deputed one of her most distinguished citizens [B. W.
Leigh] to request suspension of the measures of resistance. No atten-
tive observer can doubt that the suspension will be made. Well, sir,
suppose it takes place and congress should fail at the next session to
afford the redress which will be solicited, what course would every
principle of honor and every consideration of interests, as she under-
stands them, exact from her? Would she not make common cause with
South Carolina? And if she did, would not the entire south eventually
become parties to the contest ?"
THE NEW TARIFF.
499
tariff bill could be submitted to the president for signa-
ture. The Opposition in the senate held fast to the asser-
tion that this was a bill which, according to art. I., sec. 7,
1 of the constitution, must originate in the house, and
the house was still squandering its time over the Verplanck
bill. It had lost sight of consequences, as soon as the first
excitement was over, for it broke with the protective system
too quickly and too completely. In order to get both diffi-
culties out of the way at once, Letcher moved, February 25,
at the instant when the house was getting ready to adjourn,
to strike out the whole Verplanck bill after the enacting
clause and to put in its stead the bill introduced by Clay
into the senate.' The representatives of the manufactur-
ing states of the north were completely surprised and ex-
cited to the highest degree, inasmuch as the other fractions
of the house had evidently come to a secret agreement be-
forehand and were resolved to allow no debate. Davis of
Massachusetts could only utter a few words of protest.
against such a rough and ready way of law-making, and
then, by one-hundred-and-five to seventy-one votes, the
third reading was ordered before, as Benton says, the din-
ner had become cold, which had been served up just as
Letcher made his motion. The following day the bill was
passed by one-hundred-and-nineteen to eighty-five votes.
The house now took up the force bill. February 8, the
judiciary committee, to which the president's message of
January 16 had been referred, had presented a report
which declared the use of force against South Carolina to
be impolitic from every point of view and unjust. Wheth-
er the federal government had the right to resort to such
means under any circumstances whatever, was left unan-
swered, but it was evident that the committee doubted the
2
2
¹ Deb. of Congress, XII., p. 170.
175.
Benton, Thirty Years' View, I., pp. 310-312; Deb. of Cong., XII., p.
3 Deb. of Congress, XII., p. 181.
3
500
STATE SOVEREIGNTY AND SLAVERY.
existence of the right. It was, in its opinion, the "im-
perative duty" of congress to alter the existing law, for if
a state was determined to oppose the law "at any risk,"
the complaints against it were evidently well grounded.¹
The committee report had expected too much from the
political judgment and from the feelings of nationality and
honor of the majority, when it urged the latter to formally
declare the impotence of the federal government and, so to
speak, to invite the states to make use of this impotence
by subordinating national to particularistic interests. The
majority was not willing to unnecessarily sacrifice the ap-.
pearance at any rate; but more than this it could not save.
House and senate now supplemented each other's actions
in a way of which the Philadelphia convention would
scarcely have dreamed. The senate first did justice in
theory to the supremacy of the law by passing the force
bill. The house bowed before the necessity of harmon-
izing practice with theory, but delayed its recognition of
the latter until the senate adopted the tariff bill already
passed by the house, with which South Carolina was will-
ing to be bought off from opposing the law. M'Duffie
asked in vain what practical aim the force bill had now.²
Foster exhorted the remarkable representative, who con-
sidered any farther resistance by South Carolina possible,
after every senator and every representative of the state
had voted for the tariff, to rise in his seat.3 No one craved
the laughable distinction, but yet the third reading was
ordered by one-hundred-and-twenty-six to thirty-four votes,
•
¹ See the report and the bill brought in by the committee in Niles'
Reg., XLIII., Suppl., pp. 48, 49. Very significant is the committee's
apprehension that "among the unhappy results of the application of
force, there is reason to fear that, from a controversy between the gener
al government and a single state, it would extend to a conflict between
the two great sections of the country and might terminate in the de-
struction of the Union itself."
2 Niles' Reg., XLIII., Suppl., p. 263.
³ Deb. of Congress, XII., p. 190.
+
THE COMPROMISE OF 1833.
501
whereupon the senate passed the tariff bill by twenty-nine
to sixteen votes.¹ Jackson signed both bills on the second
of March.2 March 16, the South Carolina convention re-
pealed the ordinance of nullification.³
4
Thus Clay's second great "compromise," which was
scarcely less portentous to the country than the first, came
into being. South Carolina had not obtained all she at
first demanded, but the Union had lost much and won
nothing. The protective duties were not done away with;
only a gradual reduction had been granted; and no con-
cessions had been made as to the constitutionality of the
protective system. But as far as the deeper meaning of
the contest is concerned, the only point of importance is
that the delay in the decision of the principle involved in
the question had been bought by concessions. It matters
not how great the concessions of the federal government
were.5 The latter had not given up the principle; the force
'Deb. of Cong., XII., pp. 191, 123.
2 Parton (Life of Jackson, III., p. 481) says: "That the president
disapproved this hasty and, as the event proved, unstable compromise, is
well known. The very energy with which col. Benton denounces it
shows how hateful it was to the administration." This passage charac-
terizes Parton's value as an historian. Benton writes: "Gen. Jackson
felt a positive relief in being spared the dire necessity of enforcing the
laws by the sword and by criminal prosecutions." Thirty Years' View,
I., p. 346.
³ Curtis (Life of Webster, I., p. 456) says that the ordinance was never
formally revoked. The fact that the repeal, on the motion of S. D. Mil-
fer, was signed only by the president and secretary of the convention
does not justify this assertion. See the proceedings concerning the re-
peal in Niles' Reg., XLIV., pp. 57, 86–88.
* The duties were to be decreased by 1842 to 20 per cent. ad valorem.
See the law (Statutes at Large, IV., pp. 632--635).
The fear that the constitution would perhaps not stand the last test
was not the only reason that it was not subjected to it. Clay wrote
Brooks, Jan. 17, 1833: As to politics, we have no past, no future. After
forty-four years of existence under the present constitution, what single
principle is fixed? The Bank? No. Internal improvements? No. The
tariff? No. Who is to interpret the constitution? We are as much
afloat at sea as the day when the constitution went into operation. There
502
STATE SOVEREIGNTY AND SLAVERY.
bill was an indirect declaration that it held fast to that. Yet
Calhoun, immediately after the force bill had been passed
by both houses, had solemnly affirmed that he, too, did not
yield the least point of his principles. Clay declared that
the protective system had obtained a new "lease" for nine
is nothing certain but that the will of Andrew Jackson is to govern; and
that will fluctuates with the change of every pen which gives expres-
sion to it." (Clay's Priv. Corres., p. 347.) And on Jan. 23: "It is mor-
tifying-inexpressibly disgusting-to find that considerations affecting
an election, now four years distant, influence the fate of great questions
of immediate interest more than all the reasons and arguments which
intimately appertain to those questions. If, for example, the tariff now
before the house should be lost, its defeat will be owing to two causes,-
1st, the apprehension of Mr. Van Buren's friends that if it passes, Mr.
Calhoun will rise again as the successful vindicator of southern rights;
and, 2d, its passage might prevent the president from exercising certain
vengeful passions which he wishes to gratify in South Carolina. And
if it passes, its passage may be attributed to the desire of those same
friends of Mr. Van Buren to secure southern votes." (Ibid, p. 348). It
was an equally significant fact that Jackson's position on the constitu-
tional question was uncertain and wavering. A part of his supporters
found in the proclamation of December 11 the "consolidation ideas"
of the old Federalists. The Congressional Globe met this reproach with
a long, “authorized" article, in which Jackson let it be stated that he
recognized, not only in the states but in the state governments, the rights
claimed in the Virginia and Kentucky resolutions. The article said:
"Its [the proclamation's] doctrines, if construed in the sense they were
intended, and carried out, inculcate
that in the case of the vio-
lation of the constitution of the United States and the usurpation of
powers not granted by it on the part of the functionaries of the general
government, the state governments have the right to interpose and arrest
the evil, upon the principles which were set forth in the Virginia res-
olutions of 1798 against the alien and sedition laws; and finally, that in
extreme cases of oppression (every mode of constitutional redress hav-
ing been sought in vain) the right resides with the people of the several
states to organize resistance against such oppression, confiding in a good
cause, the favor of heaven and the spirit of freedom, to vindicate the
right." A. H. Stephens (The War Between the States, I., pp. 462–469)
gives the main contents of the article verbatim. Tyler (Memoir of
Roger B. Taney, p. 188) says: "When the instrument [the proclamation
of Dec. 11], as prepared by Mr. Livingston, was presented to gen. Jack-
son, he disapproved of the principles and doctrines contained in it. But
as the conclusion suited him, he determined to issue it at once, without
•
years.
THE ROOT OF ALL EVIL.
503
This was true, even if the conditions of the lease
were much more unfavorable than before. But it might
have been said with the same right that the union-consti-
tutional party had only agreed upon a new lease for an un-
certain time, and indeed with a mental reservation, on the
part of the state-rights men, of the power to terminate the
lease at any instant. It was mere talk when Calhoun
said: "The opposition of the south [to the force bill] will
never cease until the act has been erased from the statute-
book." As the majority had the courage to trumpet abroad
to the world a force-law, when nothing remained to be
forced, so the minority had the courage to declare eternal
war against the law when it had resolved to no longer pro-
voke the application of force. But if the tariff could
scarcely have produced such a crisis a second time, although
the discord had by no means been brought to a definite end
by the compromise, yet the possibility was not in the least
diminished that ere long new and worse crises would have
to be met. The struggle over the tariff was itself in great
part only a manifestation of a deeper discord, and it had
not now been forgotten where the root of the whole matter
lay. If a new crisis was immediately evolved from this
1
waiting to correct the erroneous doctrines contained in it." Tyler has
not a single fact to bring forward as a proof of this, any more than
Neumann has for the opposite assertion already mentioned. Compare
the note sent by Jackson to Livingston in Hunt, Life of Edw. Living-
ston, pp. 371, 372.
1 "The contest will, in fact, be a contest between power and liberty,
and such I consider the present,—a contest in which the weaker section
with its peculiar labor, productions and institutions, has at stake all that
can be dear to freemen." Calhoun, Works, II., p. 261. Moore of Ala-
bama said in the senate: "Disguise this matter as you will, this is the
question. We have long seen the tendency and object of the tariff
policy. We deny your right to protect the free labor of the north at the
expense of the slave labor of the south. . . And it is because I be-
lieve the bill involves this question, and because I know the people of
Alabama have a common interest with the people of South Carolina in
resisting this oppression, that I am opposed to this bill." Niles' Reg.,
504
STATE SOVEREIGNTY AND SLAVERY.
one, the eyes of even the politically blind must open to the
vast scope of the triumph of one state with a population of
581,185-315,401 of them slaves-over the Union with a
total population of 12,866,020.¹ Robbins of Rhode Island
had rightly called the tariff bill, in the senate, a "practical
recognition" of the right of nullification, and John
Quincy Adams had cried out in warning to the house that
the result of paying such a premium for rebellion against
the law must infallibly be the dissolution of the Union."
As facts began to prove the truth of this prophecy, the
most unreserved admirers of Jackson and the most con-
servative Democrats recognized the fact that the Carolinian,
XLIII., Suppl., p. 144. Quincy (Life of J. Q. Adams, p. 199) relates
that Adams said, after a conversation with Oliver Wolcott: "He holds
the South Carolina turbulence too much in contempt. The domineering
spirit naturally springs from the institution of slavery; and when, as in
South Carolina, the slaves are more numerous than their masters, the
domineering spirit is wrought up to its highest pitch of intenseness.
The South Carolinians are attempting to govern the Union as they gov-
ern their slaves, and there are too many indications that, abetted as they
are by all the slave-driving interest of the Union, the free portion will
cower before them and truckle to their insolence. This is my appre-
hension."
¹ The figures are taken from the census of 1830.
2 "That state [South Carolina] hath neither disarmed herself nor re-
nounced this power. Now we offer to her this bill to induce her, not to
renounce this power, but to refrain from its exercise at present. Is not
this a practical recognition of this fatal power? What is to hinder this
state from resuming this attitude hereafter? Who is to hinder any other
from assuming the same attitude, by this power to wrest from the gen-
eral government any one of its powers or, what amounts to the same
thing, prevent its exercise? In that case, by this precedent, we are
either to yield the disputed power or to buy off the Union by a com-
promise." Deb. of Congress, XII., p. 123.
3" One particle of compromise with that usurped power or of con-
cession to its pretensions would be a heavy calamity to the people of the
whole Union
and directly lead to the final and irretrievable
dissolution of the Union." Speech of Feb. 4, 1838. Quincy, Life of J.
Q. Adams, p. 208, seq.
"..
THE SOVEREIGNTY OF LAW.
505
whom they had seen in spirit already hanging on the gal-
lows, had wrung victory from the "iron man."
It was a terrible victory; the vanquished have been ter-
ribly scourged for the defeat suffered through their sin, and
the victors have been shattered to pieces by the results of
the accursed victory. But conquered and conquerors
brought down punishment upon themselves because they
did not understand one thing, or, if they understood it,
would not live up to it: "Sovereignty can only be a unit
and it must remain a unit,-the sovereignty of law."2
¹ Benton, Thirty Years' View, I., p. 585; Buchanan's Administration,
p. 92.
2 Bismarck, May 14, 1872. Held, Die Verfassung des deutschen
Reiches, p. 19.

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