Is DAVIS A TRAITOR;
WAS SECESSION A CONSTITUTIONAL RIGHT
PREVIOUS TO
TlHE WAR OF 1861?
BY
ALBERT TAYLOIt BLEDSOE, A. M, LL. D.,
Late Professor of Miathematics in the UTniversity of V;a.
BALTIMORE:
PRINTED FOP THE AUTHOR, BY INNES & COMPANY,
1S66.
() R 
Entered according to Act of Congress, in the year 1866, by
ALBERT TAYLOR  BLEDSOE, A.M., LL. D.,
In the Clerk's Office of the District Court of the United States
-      for the District of Maryland. 
CONTENTS.
CHAPTER I.
Opinions respecting Secession determined by passion, not by reason............ Page   1
CHAPTER II.
The Issue; or Point in Controversy..................................................... 6(;
-      CHAPTER III.
"The Great Expounder" scouts the idea, that the States "acceded" to the Conlsti   tution.................................................. 11
CHAPTER IV.
The first ResoluLtion passed bythe Conventien of 1l87.................................. S18
CHAPTER V.
The Constitution of 1787 a Compact...................................................... 21
-T      ~     CHAPTER VI.
The Constitution of 1'787 a Compact................................................. 30
CtAPTER VII.
The Constitution of 1'787 a Compact...................................... 39
CHAPTER VIII.
The Constitution of 1787 a compact between the States.-The Facts of the Case...... 47
CHAPTER IX.
The Constitution a Compact between the States.-The Language of the Constitution. 58
CHAPTER X.
The Constitution of 178'. a Compact between the States.-The Language of the Con   stitution.........................................;................ 66
CHAPTER XI.
The Constitution of 1787 a Compact between the States.-The views of Hamilton,
Madison, Morris, and other Fram(es of the Constitution............................ 74 
IV                             CONTENTS.
CHAPTER XII.
The Convention of 1'S8'7 describes the Constitution formed by them as a Compact
between the States........................................................... Page  90
CHAPTER XIII.
Mr. Webster.s. Mr. Webster...........................................................    94
CHAPTER XIV.
The absurdities flowing from the Doctrine that the Constitution is not a Compact
between the States, but was made by the People of America as one Nation........ 104
CHAPTER XV.
The Hypothesis that the people of America form one Nation............................ 107
CHAPTER XVI.
Arguments in favor of the Right of Secession.............................. 
CHAPTER XVII.
Arguments against the Right of Secession.............................................i
CHAPTER XVIII.
Was Secession Treason?.............................................  187
CHAPTER XIX.
The Causes of Secession................................................................ 21'7
CHAPTER XX.
The Legislators of 178'7 as Political Prophets............................................. 258
iv 
PRE F ACE.
IT is not the design of this book to open the subject
of secession. The subjugation of the Southern States, and
{their acceptance of the terms dictated by the North, may,
if the reader please, be considered as having shifted the
Federal Government from the basis of compact to that
of conquest; and thereby extinguished every claim to the
right of secession for the future. Not one word in the fol lowing pages will at least be found to clash with that sup position or opinion. The sole object of this work is to dis cuss the right of secession with reference to the past; in
order to vindicate the character of the South.for loyalty,
and to wipe off the charges of treason and rebellion from
the names and memories of Jefferson Davis, Stonewall
Jackson, Albert Sydney Johnston, Robert E. Lee,tand of
all who have fought or suffered in the great war of coer cion. Admitting, then, that the right of secession no lon ger exists; the present work aims to show, that, however
those illustrious heroes may have been aspersed by the
ignorance, the prejudices, and the passions of the hour,
they were, nevertheless, perfectly loyal to truth, justice,
i 
PREFACE.
and the Constitution of 1787 as it came from the hands
of'the fathers.
The radicals themselves may, if they will only read the
following pages, find sufficient reason to doubt their own
infallibility, and to relent in their bitter persecutions of
the South.
The calm and impartial reader will, it is believed, discover therein the grounds on which the South may be vindicated, and the final verdict of History determined in favor
of a gallant, but down-trodden and oppressed, PEOPLE.
vi
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IS DAVIS A TRAITOR?
CHA,PTER I.
Opinions respecting Secession determined by passion, not by reason.
THIE final judgment of Hiistory in relation to the war of
1861 will, in no small degree, depend on its verdict with
respect to the right of secession. If, when this right was
practically asserted by the South, it had been conceded by
the North, there would not have been even a pretext for
the tremendous conflict which followed. Is it not wonderful, then, that a question of such magnitude and importance should'have been so little considered, or discussed?
Perhaps no other question of political philosophy, or of
international law, pregnant with such unutterable calamities, has ever been so partially and so superficially examined as the right of secession from the Federal Union of
the United States. From first to last, it seems to have
been decided by passion, and not by reason. The voice
of reason, enlightened by the study of the facts of history
and the principles of political philosophy, yet remains to
be heard on the subject of secession.
No one, at present, denies that the States had a right to
secede from the Union formed by the old Articles of Confederation. Indeed, this right was claimed and exercised
by the States, when they withdrew from that Confederation ill order to form " a more perfect Union." Yet, while
that Union was standing and in favor with the people, the
right of secession therefrom was vehemently denied. The
I
I! 
IS DAVIS A TRAITOR?
reason of this is well stated by Mr. Madison in "The Federalist." Having explained and vindicated the right of
the States, or any portion of them, to secede from the
existing Union, he adds:  "The time has been when it was
incumbent on all of us to veil the ideas which this paragraph exhibits. The scene has now changed, and with it
the part which the same motives dictate."* That is to say,
the time has been when it became all Americans, as patriots
and worshippers of the existing Union, to veil the right of
secession; but now is the time to unveil this sacred right,
and let the truth be seen! Accordingly, the Convention
of 1787 unveiled this right, and the States, one after
another, seceded from the Union; though the Articles by
which it was formed expressly declared that it should be
"perpetual," or last forever.
The same thing happened, in a still greater degree,
under the new and "more perfect Union."  This, unlike
the one for which it had been substituted, did not pronounce itself immortal. Still it was deemed incumbent on
all men by Mr. Madison, and especially upon himself, to
veil the right of secession from the new Union; which he,
more than any other man, had labored to establish and
preserve. But having exercised the right of secession from
one compact between the States, how could he veil that
right under another compact between the same parties?
iHaving, for the benefit of his age, revealed the truth, how
could he hope to hide it from all future ages? Hiaving
laid down the right of secession from one Federal Union,
as the great fundamental law to which the new Union
owed its very existence, how could he hope to cover it up
again, and make the new compact forever binding on posterity? There is not, it is believed, in the whole range of
literature, a sophism more ineffably weak and flimsy than
the one employed by Mr. Madison to veil the right of
secession from the new Union.
*Federalist No. xliii.
I
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IS DAVIS A TRAITOR?
The first compact, says he, was made by the Legislatures
of the States, and the second by the people themselves of
the States. Hence, although the States had seceded from
the first compact or Union, he supposed, or hoped, they
would have no right to secede from the second.* The
first compact was, it is true, originally adopted by the
Legislatures of the States; but then it was approved by
the people themselves, who lived under it as the Constitution and government of their choice. Were not the States,
then, just as much bound by this compact, as if it had been
originally made by the people themselves? What would
be thought of an individual, who should approve and adopt
as his own a contract made by his agent, and, hav:n-n
derived all the advantages of it, should seek to repudiate it
on the groundthat it was not originally entered into by
himself? He would be deemed infamous. Yet, precisely
such is the distinction and the logic of Mr. Madison, in his
attempt to justify the act of secession from the first Union,
and to deny the right of secession from the second Union
between the same parties! The two compacts are construed differently; because the one was originally made by
agents and afterwards ratified by the principals, and the
other was originally made by the principals themselves!
Could any sophism be more weak or flimsy? Is it not,
indeed, in the eye of reason, as thin as gossamer, as transparent as the air itself? Hiopeless, indeed, must be the
attempt to find a difference between the two cases, which
shall establish the right of secession in the one and not in
the other; since James Madison himself, with all his unsurpassed powers of logic and acute discrimination, was compelled to rely on so futile a distinction.
But the majority needed no veil, not even one as thin as
that employed by Mr. Madison, to conceal the right of
secession from their eyes. The mists raised by its own
passions were amply sufficient for that purpose. The doc
* The Madison Papers, p. 1184.
3 
IS DAVIS A TRAITOR.?
trine of secession was regarded, by the reigning majority,
as simply equivalent to the destruction of "the best Government the world had ever seen," or was ever likely to
see. Hence, before the dread tribunal of the sovereign
majority, the touch of secession was political death. The
public men of the country, and all aspirants after office,
shrank from it as from plague, pestilence, and famine. As
to whether secession was a Constitutional right or otherwise, the multitude knew nothing, and cared less; but still,
in their passionate zeal, they denounced it as rebellion, treason, and every other crime in the dark catalogue of political offences. Their leaders, having studied the subject as
little as themselves, were no less ignorant respecting the
merits of the question;,- and even more fierce in denouncing
secession as the sum of all villainies, trea ons, and rebellions. Thus, what the logic of Mr. Madison failed to accomplish, was achieved by the rhetoric of angry politicians
and the passions of an infuriated majority; that is, the
right of secession was veiled. The object of this little book
is simply to appeal from the mad forum of passion to the
calm tribunal of reason.
But why, it may be asked, appeal to reason? Has not
the war of secession been waged, and the South subjugated? Can reason, however victorious, bind up the broken
heart, or call the dead to life?  Can reason cause the desolate, dark, waste places of the South to smile again, or
the hearts of her downcast and dejected people to rejoice?
Can reason strike the fetters from the limbs of the downtrodden white population of the South? True, alas! reason can do none of these things; but still she has a high
office and duty to perform. For, however sore her calamities, all is not yet lost to our bleeding and beloved South.
She still retains that which, to every true man, is infinitely
dearer than property or life. She still retains her moral
wealth,-the glory of her Jacksons, her Sidney Johnsons,
her Lees, her Davises, and of all who have nobly died or
4 
IS DAVIS A TRAITOR.?
suffered in her cause. These are her imperishable jewels;
and, since little else is left to her, these shall be cherished
with the greater love, with the more enthusiastic and
undying devotion.
Let no one ask, then, except a dead soul, why argue the
question of secession? For, it is precisely as this question
is decided, that the Jacksons, the Johnsons, the Lees, and
the Davises of the South, will be pronounced rebels and
traitors, or heroes and martyrs; that the South itself will
be disgraced, or honored, in the estimation of mankind.
Hiistory is, at this moment, busy in making up her verdict
on this momentous question; which is to determine so
much that is most dear to every true son of the South.
Shall we, then, remain idle spectators, mere passive lookers-on, while the North is flooding the world with volumes
against the justice of our cause? Shall we stand, like the
dumb brutes around us, having no word to utter in the
greet cause of truth, justice and humanity, which is now
pending at the bar of Hiistory?  Or shall we, on the contrary, contribute our mite toward the just decision of that
glorious cause? The radicals themselves might, perhaps,
derive some little benefit from our humble labors.  For, if
duly weighed and considered by them, these labors might
serve to mitigate their wrath, and turn their thoughts
from schemes of vengeance to the administration of justice, from persecution and ruin to peace and prosperity.
Be this as it may, however, I shall proceed to argue the
right of secession; because this is the great issue on
which the whole Southern people, the dead as well as the
living, is about to be tried in the person of their illustrious
chief, Jefferson Davis.
i
5 
CHAPTER II.
The Issue; or Point in Controversy.
IT is conceded, both by Webster and Story, that if the
Constitution is a compact to which the States are the parties, then the States have a right to secede from the Union
at pleasure. Thus, says Webster, in stating the consequences of Mr. Calhoun's doctrine-l"if a league between
sovereign powers have no limitation as to the time of
duration, and contain nothing making it perpetual, it
subsists only during the good pleasure of the parties,
although no violation be complained of. If, in the opinion of either party, it be violated, sluch party may say he
will no longer fulfil its obligations on his part, but will
consider the whole league or compact at an end, although
it might be one of its stipulations that it should be perpetulal."  In like manner Mr. Justice Story says -  The
obvious deductions which may be, and, indeed, have been,
drawn  from  considering the Constitution  a compact
between States, are that it operates as a mere treaty or
convention between them, and has an obligatory force no
longer than suits its pleasure or its consent continues,"* &c.
Thus the great controversy is narrowed down to the single question-Is the Constitution a compact between the
States? If so, then the right of secession is conceded,
even by its most powerful and determined opponents; by
* "Commentaries on the Constitution," vol. iii, p. 287, first published in 1833. 
IS DAVIS A TRAITOR?
the great jurist, as well as by "the great expounder" of
the North.
The denial that the Constitution was a compact, is presented in every possible form, or variety of expression.
We are told, that it was not made by the States, nor by
the people of the States, but "by the people of the whole
United States in the aggregate."*  The States, we  are
assured, did not accede to the Constitution; it was ordained
by the sovereign people of America as one nation.  Echoing the bold assertion of Webster, Mr, Motley says, that
"The States never acceded to the Constitution, and have
no power to secede from it. It was'ordained and established' over the States by a power superior to the States,
by the people of the whole land in their aggregate capacityt." It was not made by the States, and it was not
ratified by the States.  It was, on the contrary, made
and ordained by the people of America as one nation,
and is, therefore, the constitution of a national government.  Such is the doctrine which, in every mode of
expression, is inculcated by the Storys, the Websters, and
the Motleys of the North.
When we consider, in the simple light of history, the
manner in which the Constitution of the United States
was made, or framed, and afterwards ratified, such assertions seem exceedingly wonderful, not to say inexplicable
on the supposition that their authors were honest men.
But who can measure the mysterious depths of party
spirit, or the force of political passions in a democracy?
I know something of that force; for, during the greater
part of my life, I followed, with implicit confidence, those
blind leaders of the blind, Mr. Justice Story and Daniel
Webster. History will yet open the eyes of the world to
the strange audacity of their assertions.
Ever since the Declaration of Independence, there have
been two great political parties in the United States; the
*Webster.   t Rebellion Record, vol. 1, p. 211.
i
7 
IS DAVIS A TRAITOR?
one, regarding the American people as one nation, has
labored to consolidate the Federal Union, while the other,
attaching itself to the reserved rights of the States, has
zealously resisted this tendency to consolidation in the
central power. Even under the old Articles of Confederation, or before the new Constitution was formed, these
political opinions and parties existed.   For, however
strange it may seem, there were those who, even under
those Articles, considered "the States as Districts of people composing one political society;"* or the "American
people as forming one nation."t  Nay, in the great Convention of 1787, by which the Constitution was formed, it
was boldly asserted by a leading member, "that we never
were independent States, were not such now, and never
could be, even on the principles of the Confederation.
The States, and the advocates of them, were intoxicated
with the idea of their sovereignty." T Now, if any aberration of the mind under the influence of political passions
could seem strange to the student of history, it would be
truly wonderful, that such an assertion. could have been
put forth under the Articles of Confederation which
expressly declared that " each State " of the Union formed
by them "retains its sovereignty, freedom, and independence. "~ The author of that assertion did not interpret,
he flatly contradicted, the fundamental law of the government under which he lived and acted.
The above opinion or view of the old Articles of Confederation passed away with the passions to what it owed
its birth. No one, at the present day, supposes that the
old Articles moulded the States into "one political society," or " nation," leaving them merely "districts of people."  For since those Articles have passed away, and the
struggle for power under them has ceased, all can clearly
* The Madison Papers, p. 987.
t Marshall's Life of Washington, vol. v, chap. 1.
$ The Madison Papers.              ~ Article 2.
8
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IS DAVIS A TRAITOR?
see what they so plainly announced that "each state'" of
the confederation established by them retained'"its sovereignty, freedom, and independence."
But the natures of men were not changed by changing
the,objects to which their political passions might attach
themselves.  Hence the same opposite tendencies arose
under the new " Articles- of Union," as the Constitution of
1787 is habitually called by its authors, and produced the
same conflicting parties. Each party had, of course, its
extreme wing. There were those who, unduly depressing
the States, identified their relations to the central power
with that of so many counties to a state, or of individuals
to an ordinary political community. On the other hand,
there were those who, from an extreme jealousy of the
central authority, resolved the States into their original
independence, or into their condition under the Articles
of Confederation. The watch-word of one party was the
sovereignty of the Federal Union; and the watch-word of
the other, was the sovereignty of the States.
It was in the Senate of the United States, in 1833, that
these two theories of the Constitution stood face to face in
the persons of those two intellectual giants-Webster and
Calhoun-then engaged in the most memorable debate of
the New World. It was then predicted, and events have
since verified the prediction, that the destinies of America
would hinge and turn on the principles of that great
debate. The war of words then waged between the
giants has since become a war of deeds and blood between
the sections which they represented. Now the question
is, on which side was right, truth, justice?
This is precisely the question which, in 1833, the great
combatants submitted to the decision of after ages.  As
he drew toward the close of his speech, Mr. Calhoun
reminded his great antagonist "that the principles he.
might advance would be subjected to the revision of poster ity." "I do not decline its judgment," said Mr. Webster, in
*2
9
11 
IS DAVIS A TRAITOR?
rising to reply, "nor withhold myself from its scrutiny."
Mr.Webster's speech on this occasion is pronounced by his
learned biographer* the greatest intellectual effort of his
life, and is represented as having annihilated every position assumed by Mr. Calhoun. But the combatants did
not submit the controversy to the judgment of Mr. Everett; they submitted it to "the revision of posterity." lHistory is the great tribunal to which they appealed; and history will settle the great issue between them, and between
the two hostile sections of the Union.
It was in 1833, for the first time in the history of the
country, that it was solemnly asserted and argued, that
the Constitution of the United States was not a compact
between the States. This new doctrine was simultaneously put forth, by Mr. Justice Story in his "Commentaries on the Constitution of the United States," and by Mr.
Daniel Webster in "the greatest intellectual effort of his
life,"' that is, in his great speech in the Senate of the 16th
of February, 1833. In order to show that the Constitution is not a compact between the States, the position is
assumed, that it is not a compact at all. If it be a compact, say they, then the States had a right to secede.
But it is not a compact; and hence secession is treason
and rebellion. The great fundamental questions, then, on
which the whole controversy hinges, are, first, Is the
Constitution a compact? and, secondly,  Is it a compact
between the States? These are the questions which shall
and ought to be subjected to "the revision of posterity."
*Edward Everett.
10 
CHAPTER III.
I The great expounder" scouts the idea, that the States " acceded " to the Constitution.
MR. WEBSTER was supposed to have studied the Constitution, and its history, more carefully and more profoundly
than any other man. He habitually spoke, indeed, as if he
had every particle of its meaning, and of its history, at
his finger's end.  Hence he acquired, at least among his
political friends, the lofty title of "The great expounder."
Hiis utterances were listened to as oracles. If, indeed, his
great mind- had been guided by a knowledge of facts, or a
supreme love of truth; the irresistible force of his logic, and
the commanding powers of his eloquence, would have justified those who delighted to call him " the god-like Daniel." But, unfortunately, no part of his god-likeness consisted in a scrupulous regard for truth, or the accuracy of
his assertions. He was, however, so great a master of
words, that he stood in little need of facts, in order to produce a grand impression by the rolling thunders of his eloquence. I only wonder, that he was not also called, "The
thunderer." No one better understood, either in theory
or in practice, the wonderful magic of words than Daniel
Webster.
"Was it Mirabeau," says he, "or some other master of
the human passions, who has told us that words are
things? They are indeed things, and things of mighty
influence, not only in addresses to the passions and highwrought feelings of mankind, but in the discussion of legal
and political questions also; because a just conclusion is 
IS DAVIS A TRAITOR?
often avoided, or a false one reached, by the adroit substitution of one phrase, or one word, for another." Nothing
can be more just than this general reflection; and nothing,
as we shall presently see, can be more unjust than the
application made of it by Mr. Webster.
Hle finds an example of this adroit use of language in the
first resolution of Mr. Calhoun.  "The first resolution,"
says he, "declares that the people of the several States
'acceded' to the Constitution."  As "the natural converse
of accession is secession," so Mr. Webster supposes that Calhoun has adroitly, and "not without a well-considered
purpose," shaped his premises to a foregone conclusion.
"When it is stated," says he, "that the people of the State
acceded to the Union, it may be more plausibly argued that
they may secede from it. If, in adopting the Constitution,
nothing was done but acceding to a compact, nothing would
seem necessary, in order to break it up, but to secede from
the same compact."
But "this term accede," asserts Mr. Webster, "is wholly
out of place...........There is more importance than may,
at first sight, appear in the introduction of this new word
by the honorable mover of the resolutions.".........." The
people of the United States," he continues, "used no such
form of expression in establishing the present Government."..... It is "unconstitutional language."  Such
are a few of the bold, sweeping, and confident assertions of
" the great expounder of the Constitution." But how
stands the fact?  Is this really "a new word;" or is it as
old as the Constitution itself, and rendered almost obsolete
at the North by the progress of new ideas and new forms
of speech?  Was it not, in fact, as familiar to the very
fathers and framers of the Constitution of the United
States as it afterwards become foreign and strange to the
ears of its Northern expounders? This is the question;
and, fortunately, the answer is free from all metaphysical
refinement, from all logical subtlety, from all curious spec
12
i 
IS DAVIS A TRAITOR?
ulation. For there lies the open record, with this very
word accede, and this very application of the word, spread
all over its ample pages in the most abundant profusion.
No mnode of expression is, indeed, more common with the
fathers and the framers of the Constitution, while speaking of the act of its adoption, than this very phrase, " the
accession of the States." No household word ever fell more
frequently or more familiarly from their lips.
Thus in the Convention of 1787, M3r. James Wilson, to
whose great influence the historian of the Constitution
ascribes its adoption by the State of Pennsylvania,* preferred " a partial union" of the States, "with a door open
for the accession of the rest," rather than to see their disposition  "to  confederate  anew  on better principles"
entirely defeated.t   "But will the small States," asks
another member of the same Convention, "in that case,
accede to it " (the Constitution?)  Mr. Gerry, a delegate
from MassaehuLsetts, was opposed to "a partial confederacy, leaving other States to accede or not to accede, as
had been intimated."t  Even Mr. Madison, "the father of
the Constitution," as by way of eminence he has long been
called, used the expression "to accede" in the Convention
of 1787, in order to denote the act of adopting "the new
form of government by the States."~    *
In like manner Governor Randolph, who  was also a
member of the Convention of 1787, and who had julst
reported the form of ratification to be used by the State
of Virginia, said, "That the accession of eight States
reduced our deliberations to the single question of Union
or no Union."  "If it (the Constitutions") says Patrick
Henry, "be  amended, every State will accede  to it."ii
" Does she (Virginia) gain anything from her central position," asks M-r. Grayson, "by acceding to that paper," the
* Mr. Curtis, vol. i., p. 465.  t " The Madison Papers," p. 797.
lIbid, p.1101. ~Ibid, p.1103.  li"Elliot's Debates," vol. iii., p.'652.
13 
IS DAVIS A TRAITOR?
Constitution 7*  "' I came hither," says Mr. Innes, "under
the persuasion that the felicity of our country required
that we should accede to this system," t (the new Constitution.)  "Our new Constitution," says Franklin, who next
to Washington was the most illustrious member of the
Convention of 1787, "is now  established with eleven
States, and the accession of a twelfth is soon expected."I
And, finally, George Washington himself, who, watching
the States as one after another adopted the new Constitution, says:-" If these, with the States eastward and northward of us, should accede to the Federal Government,"
&c.~ Thus, while the transaction was passing before their
eyes the fathers of the Constitution of the United States,
with the great father of his country at their head,
described the act by which the new Union was formed as
"the accession of the States;" using the very expression
which, in the resolution of Mr. Calhoun, is so vehemently
condemned as "unconstitutional language," as "a new
word," invented by the advocates of secession for the vile
purpose of disunion.
To these high authorities, may be added that of Chief
Justice Marshall; who, in his Life of Washington, notes
the fact, that  North Carolina accedes to the Union."ll
This was many months after the new Government had
gone into operation.'3Mr. Justice Story, is, in spite of his
artificial theory of Constitution, a witness to the same fact.
"The Constitution," says he, "has been ratified by all
the States "....... "Rhode Island did not accede to it, until
more than a year after it had been in operation;" just as
if he had completely forgotten his own theory of the Constitution.[
* s The Madison Papers," p. 1099.
t " Elliot's Debates," vol. iii.
+ " Franklin's Works," vol. v.. p. 409.
'I The Writings of Washington," vol. ix., p. 280.
11 Vol. v, chap. iii.
~[ Book iii, chap. xliii.
14 
IS DAVIS A TRAITOR?
If it were necessary, this list of authorities for the use
of the word in question, and for the precise application
made of it by Mr. Calhoun, might be greatly extended.
But surely we have seen enough to show how very illinformed was "the great expounder" with respect to the
language of the fathers. Not only John C. Calhoun, but
Washington, Franklin, Wilson, King, Morris, Randolph,
Madison, and all the celebrated names of the great Convention of 1787, came under the denunciation of this modern " expounder of the Constitution."
There is, as Mr. Webster says, more importance to be
attached to the word in question than may at first sight
appear. For if "the States acceded" to the Constitution,
each acting for itself alone, then was it a voluntary association of States, from which, according to his own admission, any member might secede at pleasure. Accordingly
this position of the great oracle of the North is echoed and
re-echoed by all who, since the war began, have written
against the right of secession. Thus, says one of the most
faithful of these echoes, Mr. Motley —" The States never
acceded to the Constitution, and have no power to secede
from it."  It was "ordained and established" over the
States by a power superior to the States, by the people of
the whole land in their aggregate capacity.* If, with the
fathers of the Constitution, in opposition to its modern
expounder and perverter, he had seen that the new lUnion
was formed by an accession of the States, then he would
have been compelled, on his own principle, to recognise the
right of secession. For he has truly said, what no one
ever denied, that "the same power which established the
Constitution may justly destroy it."t Hence, if the Constitution was established by the accession or consent of the
States, then may the Union be dissolved by a secession of
the States. This conclusion is, as we have seen, expressly
admitted by Mr. Webster and Mr. Justice Story.
* Rebellion Record, vol. 1, p. 211.  t Ibid. p. 214.
15 
IS DAVIS A TRAITOR?
Mr. Webster has well said that a true conclusion may be
avoided, or a false one reached, by the substitution of one
word or one phrase for another. This offence, however, has
been committed, not by Mr. Calhoun, but by "the great
expounder" himself.  The one has not reached a false, but
the other has shunned a true conclusion by "the adroit
use of language." Instead of saying and believing with
the authors of the Constitution, that the new Union war
formed by " an accession of the States," he repudiates both
the language and the idea, preferring the monstrous heresy
that it was ordained and established by " the whole people
of the United States in their aggregate capacity "* or as
one nation-a heresy which may, with the records of the
country, be dashed into ten thousand atomis.
I agree with Mr. Webster, that " words are things, and
things of mighty influence."  It is, no doubt, chiefly owing
to the influence of language, in connection with the passions of men in a numerical majority, that the words and
views of the fathers became so offensive to the Northern
expounders of the Constitution. "Words," says the philosopher of Mlalnesbury, "are the counters of wise men, but
the money of fools." To which I may add, if this last
phrase be true, as most unquestionably it is, then is there
scarcely a man on earth without some touch of folly; for
all are, more or less, under the influence of words. A far
greater than either Mirabeau or Hiobbes has said that we
are often led captive by the influence of words, even when
we think ourselves the most complete masters of them.
MIr. Webster was himself, as we shall frequently have occasion to see, a conspicuous instance and illustration of the
truth of the profound aphorism of Bacon. Of all the dupes
of his own eloquence, of all the spell-bound captives of his
own enchantments, he was himself, perhaps, at times, the
most deluded and the most unsuspecting victim.
When, from his high position in the Senate, Mr. Webster
*Mr. Webster's Speech of 1830.
16
t 
IS DAVIS A TRAITOR?
assured the people of the United States, that it is "unconstitutional language" to say "the States acceded to the
Constitution;" he was no doubt religiously believed by the
great majority of his readers and hearers. Ile was supposed to know all about the subject; and was, therefore,
followed as the great guide of the people. But, as we
have seen, he was profoundly ignorant of the facts of the
case, about which he delivered himself with so much confidence. The "new word," as he called it, was precisely
the word of the fathers of the Constitution. Hience, if this
word lays the foundation of secession, as Mr. Webster
contended it does, that foundation was laid, not by Calhoun, but by the fathers of the Constitution itself, with
"the father of his country" at their head.
So much for the first link in " the great expounder's"
argument against the right of secession. Hiis principles
are right, but his facts are wrong. It is, indeed, his habit
to make his own facts, and leave those of history to take
care of themselves. Hie just puts forth assertions without
knowing, and apparently without caring, whether they
are true or otherwise. We shall frequently have occasion
to notice this utter, this reckless unveracity in "the great
expounder."
17 
CHAPTER IV.
The first Resolution passed by the Convention of 1787.
MR. WEBsTER lays great stress on the fact, that the first
resolution passed by the Convention of 1787 declared, "That
a national government ought to be established, consisting
of a supreme legislative, judiciary, and executive." But
the fact only shows that the Convention, when it first met,
had the desire to establish "a national government," rather
than a federal one. This resolution was passed before the
Convention was fully assembled, and by the vote of only
six-States, a minority of the whole number.  After the
members had arrived, and the Convention was full, the
resolution in question was reconsidered and rescinded.
The Convention, when filled up, changed the name of their
offspring, calling it "the government of the United States."*
A fraction of the Convention named it, as Mr. Webster
says; but the whole Convention refused to baptise it with
that name, and gave it another. Why then resuscitate
that discarded name, and place it before the reader, as Mr.
Webster does, in capital letters?  Is it because " words are
things; and things of mighty influence "? or whly persist, as
2J1r. Webster always does, in calling "the government of the
United States" a national one?  If the Convention  had
called it a national government, this nlamne would have
been so continually rung in our ears that we could neither
have listened to the Constitution itself, or to its history,
whenever these proclaimed its federal character.  Nay,
*The Madison Papers, p. 908.
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IS DAVIS A TRAITOR?
although the Convention positively refused to name it a
national government, on the avowed ground that it did
not express their views, yet has this name been eternally
rung in our ears by the Northern School of politicians,
and declaimers; just as if it had been adopted, instead of
having been repudiated and rejected, as it was, by the
authors of the Coistitution.
In like manner Mr. Justice Story, in his " Commentaries
on the Constitution," builds an argument on the name
given to the new government  "in the first resolution
adopted by the convention," without the slightest allusion
to the fact that this resolution was afterwards reconsidered, and the name changed to that of " the government of
the United States." Is this to reason, or merely to deceive?
Is this to build on facts, or merely on exploded names? Is
this to follow the Convention in its deliberation, or is it to
falsify its decision?
The Convention, by a vote of six States, decided that "a
national government ought to be established." But when
this resolution was reconsidered, Mr. Ellsworth " objected
to the termnational government,"* and it wasrejected.  Th
record says:  "The first resolution'that a national government ought to be established, being taken up."....
"Mr. Ellsworth, seconded by Mr. Gorham, moves to alter
it, so as to run that the government of the United States
ought to consist, &c...  This alteration, he said, would
drop the word national, and retain the proper title "the
United States."t This motion was unanimously adopted
by the Convention.1  That is, they unanimously rejected
"the term national government," and yet both Story and
Webster build an argument on this term just as it had
been retained by them!
The Madison Papers were not published, it is true, when
the first edition of Story's Commentaries made their
* The Madison Papers.    t Ibid, p. 908.
19
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I lbid, p. 909. 
IS DAVIS A TRAITOR?
appearance; but they were published long before subse quent editions of that work. Why, then, was not this gross
error corrected?  Why has it been repeated in every edi tion of the Commentaries in question? Indeed, if Mr.
Justice Story had desired to ascertain the truth in regard
to the first resolution of the Convention, he might very
easily have learned it from "Yates' Minutes," which were
published before the first edition of his Commentaries.
For, in those Minutes, we find the passage: "Ellsworth.
I propose, and therefore move, to expunge the word
"national," in the first resolve, and to place in the room of
it, government of the United States, which was agreed to
nem con."* Yet, directly in the face of this, Mr. Justice
Story builds an argument on the word national used in the
first resolution passed by the Convention! and, in order to
give the greater effect to the same argument, Mr. Webster
prints that rescinded resolution in capital letters!
"The name'United States of America',"  says  the
younger Story, "is 4n unfortunate one, and has, doubtless,
led many minds into error. For it may be said, if the
States do not form a confederacy, why are they called
"United States' "?t This name is, indeed, a most unfortunate one for the purpose of his argument, and for that of
the whole school of politicians to which he belongs. But
then, as we learn from the journal of the convention of
1787, it was deliberately chosen by them as the most suitable name for the work of their own hands; and that too
in preference to the very name which the whole Northern
school clings to with such astonishing pertinacity. From
the same journal, as well as from the other records of the
country, I shall hereafter produce many  other  things
which are equally unfortunate for the grand argument of
the Storys, the Websters, and the Motleys, of the North.
* The Madison Papers, p. 908  t Ibid. p. 909.
The American Question, by William H. Story.
Elliot's Debates. Vol. 1 p., 42fl.
20 
CHAPTER V.
The Constitution of 1787 a Compact.
WAS the constitution a compact? Was it a compact
between the States, or to which the States were the parties? Was it a compact from which any State might
recede at pleasure? These three questions are perfectly
distinct, and all the rules of clear thinking require that
they should be so held in our minds, instead of being
mixed up and confounded in our discussions. Yet Mr.
Justice Story,-in his long chapter on the "Nature of the
Constitution," discusses these questions, not separately
and distinctly, but all in one confused mass, to the no little
perplexity and distraction of his own mind. He carries
them all along together, and in the darkness and confusion
occasioned by this mode of proceeding, he is frequently
enabled to elude the force of his adversaries' logic.
Thus, for instance, he sets out with the flat denial of the
doctrine that the Constitution is a comnpact; and yet, when
the evidences become too strong for resistance, or a cloud
of witnesses rise up to confound him, he turns around,
and instead of fairly admitting that the Constitution is a
compact, asserts that if it is a compact it is not one between
the States. When too hardly pressed on this position,
replies, well, if it is a compact between the States it is
not such a compact that it may be revoked at the pleasure of the parties.  Thus, when he is driven from one
position he falls back upon another, and finally rallies to
a second, a third, and a fourth denial of the main proposi 
IS DAVIS A TRAITOR?
tion that the Constitution is a compact. Now, I intend to
discuss each one of these questions distinctly and by itself;
holding Mr. Justice Story to one and the same precise
point, until it is either made good or else demolished. I
hope, in this way, to dispel the mists and fogs he has
thrown around the subject, and to bring out the truth into
a clear and unmistakable light.
The same confusion of thought, and arising from the
same source, pervades Mr. Webster's celebrated speech of
Feb. 16, 1833; though it must be admitted, not to the same
extent that it prevails in the "Commentaries" of Mr.
Justice Story. Mr. Calhoun very justly complains of this
want of clearness and precision in the positions of his great
antagonist.  "After a careful examination," says he, "of
the notes which I took of what the Senator said, I am
now at a loss to know whether, in the opinion of the Senator, our Constitution is a compact or not, though the
almost entire argument of the Senator was directed to
that point. At one time he would seem to deny directly
and positively that it was a compact, while at another he
would appear, in language not less strong, to admit that it
was."*
Mr. Webster emphatically and repeatedly denies both
that a Constitution is a compact and also that a compact is
a Constitution; or, in other words, he conceives that the
natures of the two things are utterly incompatible with
each other.
Hie is very bold, and asserts that it is new language to
call "the Constitution a compact."
"This is the reason,' says he, "which makes it necessary
to abandon the use of Constitutional language for a new
vocabulary, and to substitute, in place of plain historical
facts, a series of assumptions. This is the reason why it
is necessary, to give new names to things, to speak of the
Constitution, not as a Constitution, but as a compact, and
* Mr. Calhoun's speech, Feb. 26, 1833.
22 
IS DAVIS A TRAITOR?
of the ratifications of the people not as ratifications, but as
acts of accession."* Again, he complains of Mr. Calhoun,
that "he introduces a new word of his own, viz.,' compact,'
as importing the principal idea, and designed to play the
principal part, and degrades Constitution into an insignificant idle epithet attached to compact.  The whole then
stands a Constitutional compact!" Hle is then particularly
severe and eloquent upon the supposed outrage perpetrated on "our American political grammar," in thus degrading " CONSTITUTION" (the capitals are his own) from its
rightful rank "as a noun substantive."  But, after all, the
plain, simple fact is, that this "new word," as Mr. Webster
calls it, was as familiar to the ears of the authors of the
Constitution as any other in the vocabulary of the great
Convention of 1787. The terms Constitution and compact are, indeed, twin words, and convertible in the language of the fathers.
Though "the term Constitutional affixes to the word
compact no definite idea," says Mr. Webster, and in such
connection "is void of all meaning," "yet it is easy, quite
easy, to see why the gentleman uses it in these resolutions."
Now, what is the reason, the deep design, that induces Mr.
Calhoun to use an epithet "so void of all meaning "?  "iHe
cannot open the book;" says Mr. Webster, "and lookl upon
our written frame of government without seeing that it is
called a Constitution.  This may wvell be appalling to him."
We cannot possibly imagine that Mr. Calhoun should, for
one moment, have been disturbed or alarmed by such a
discovery or revelation. It is certain that he nowhere
betrays the least symptom of dismay at "the appalling"
consideration that the Constitution is really a Constitution.  That "noun substantive" seems to have inspired
him with no sort of terror whatever. On the contrary,
it appears to sit as easily on his political faith and to flow
as familiarly from his lips as any other word in the lan  *Speech, Feb. 16, 1838.
23 
IS DAVIS A TRAITOR?
guage. We can imagine, however, why the Northern
States should wish to get rid of both the idea of a compact
and of the word; why the powerful should wish to oblit  erate and erase from the tablets of their memory every
recollection and vestige of the solemn compact or bargain
into whieh they had entered with the weak, but which
they have never observed in good faith.
It is perfectly certain that Mr. Webster's horror of the
term compact, as applied to the Constitution, is of com  paratively recent origin. It was wholly unknown to the
fathers of the Constitution themselves.  Mr. Gouverneur
Morris, it is well known, was one of the most celebrated
advocates for a strong national government in the Con  vention of 1787; and yet, in that assembly, he used the
words-"Hle came here to form a compact for the good of
America. Hle was ready to do so with all the States. iHe
hoped and believed that all would enter into such a com  pact.  If they would not, he would be ready to join with
any States that would.  But as the compact was to be vol  untary, it is in vain for the Eastern States to insist on
what the Southern States will never agree to."* Thus,
this celebrated representative of the State of Pennsylva  nia, and staunch advocate of a strong national government,
did not hesitate to call the Constitution a compact into
which the States were to enter. Indeed, no one, at that
early day, either before the Constitution was adopted or
afterwards, hesitated to call it a compact.
Mr. Gerry, the representative of Massachusetts, says,
"If nine out of thirteen (States) can dissolve the compact,
six out of nine will be just as able to dissolve the new one
hereafter."  Hlere again the new Constitution is called a
*    compact.
"In the case of a union of people under one Constitu  tioni," says Mr. Madison, while contending for the ratifica  tion of the new Constitution by the people, "the nature of
* "Madison Papers," p. 1081-2.
24 
IS DAVIS A TRAITOR?
the pact has always been understood to exclude such an
interpretation."* Thus, in the Convention of 1787, Mr.
Madison called the Constitution a compact; a word which
he continued to apply to it during the whole course of his
life.
In the celebrated resolutions of Virginia, in 1798, M3r.
Madison used these words, "That this assembly doth
explicitly and peremptorily declare, that it views the
powers of the Federal Government as resulting from the
compact, to which the States are parties." Again, in his
almost equally celebrated letter to Mr. Everett, in 1830, he
calls "the Constitution" "a compact among the States in
their highest sovereign capacity." In the same letter Mr.
Madison speaks of the States as "the parties to the Constitutional compact;" using the very expression which is so
offensive to Mr. Webster's new "political grammar."
Nay, it was only three years before, in the great debate
on Foote's resolutions, that Mr. Webster himself had, like
every one else, spoken of the Constitution as a compact, as
a bargain which was obligatory on the parties to it. "It
is the original bargain," says he, in that debate; "the compact-let it stand; let the advantage of it be fully enjoyed.
The Union itself is too full of benefits to be hazarded in
propositions for changing its original basis. I go for the
Constitution as it is, and for the Union as it is." Nor is
this all. He there indignantly repels, both for "himself
and for the North," "accusations which impute to us a
disposition to evade the Constitutional compact." Yet, in
the course of three short years, he discovers that there is
no compact to be evaded and no bargain to be violated!
All such trammels are given to the winds, and Behemoth
is free! How sudden and how wonderful this revolution
in the views and in the vocabulary of the great orator of
New England!t
* Madison Papers, p.1184.
t The great mind of Mr. Webster was in general more like the
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IS DAVIS A TRAITOR?
This language, in which the Constitution is called a compact, is not confined to Morris, and Gerry, and Madison,
and the Websteir of 1830. Mr. Chief Justice Jay, of the
Supreme Court of the Union, in the case of "Chisholm vs.
State of Georgia," expressly declares that "the Constitution of the United States is a compact."t "Our Constitution of the United States," says John Quincy Adams, the
sixth President of the Republic, "and all our State Constitutions, have been voluntary compacts, deriving all their
authority from the free consent of the parties to them."
The Virginia Resolutions of 1798, already referred to as
expressing the opinion of Mr. Madison, assert that "Virginia views the powers of the Federal Government as
resulting from the compact to which the States are parties." Again, in the Virginia Report of 1800, it is said,
"The States being parties to the Constitutional compact,"
&c. Edmund Pendleton, President of the ratifying Convention of Virginia, in 1788, in the course of his argument
in favor of the new Constitution, says, "This is the only
Government founded in real compact."I Judge Tucker,
in his commentaries on Blackstone, repeatedly calls the
Constitution in question "a compact between the States"
of the Union. The third President of the United States,
ocean in repose than in action; and, as is well known, his habitual
indolence often induced him to rely on others for political information. No one who will attentively compare his speech of 1833 with
book III., chap. 3, of Story's " Commentaries on the Constitution,"
can be at any loss to account for the origin of his  "new political
grammar," his "new rules of syntax," and his " new vocabulary.''
If he applies these epithets to the doctrines of Morris. and Gerry,
and Madison, it is because old things have become new with him, and
new things old. The secret of this revolution will be found, as we
shall soon prove, in the work of Mr. Justice Story, which work was
not written in 1830. Indeed it was not published until 1833; but
then the first volume, containing book II[, chap. 3, was prepared, if
not printed, before the speech of Mr. Webster, with whom the author
was on the most intimate terms. It would have been well for the
fame of Webster, in the eye of posterity, if he had more carefully examined such a question for himself.
t 3 Dall. R. p. 419.
Elliot's Debates, vol. iii., p. 57.
I
26 
IS DAVIS A TRAITOR.?
as well as the sixth, Thomas Jefferson as well as John
Quincy Adams, considered the Constitution "a compact."
"The States," says Jefferson, "entered into a compact,
which is called the Constitution of the United States.*
The Convention of Massachusetts, which was called to
ratify the Constitution of the United States, was, if possible, still more emphatic and decided in the expression of
the same opinion. "Having impartially discussed, and
fully considered," say they, "the Constitution of the United
States of America," we acknowledge, "with grateful
hearts, the goodness of the Supreme Ruler of the Universe
in affording the people of the United States an opportunity, deliberately and peaceably, without fraud and surprise, of entering into an explicit and solemn compact with
each other, by assenting to and ratifying a new Constitution," &c. Yet, in the face of all these high authorities,
and of a hundred more that might be easily adduced, running from James Madison in the Convention of 1787 to
Daniel Webster in the great debate of 1830, and embracing
the lights of all sections and of all parties, it is asserted by
this celebrated statesman, though certainly not as a statesman, that the term compact, as applied to the Constitution, is "a new word," is a part and parcel of "the unconstitutional language," of the "new vocabulary," which has
been invented to obscure the fundamental principles of the
Government of the United States, and to justify secession!
Can posterity admire such an exhibition of his powers!
So far, indeed, is this from being a new mode of speech,
that it is one of the most familiar words known to the
fathers of the Constitution itself, or to its more early
expounders.  Even the Federalist, in submitting the Constitution to the people, sets it before them as "the compact."t  "The man," says Mr. Webster, "is almost untrue
to his country who calls the Constitution a compact." It
* Correspondence. Vol. iv., p. 415.
t No. XXXIX.
27 
IS DAVIS A TRAITOR?
were, indeed, much nearer the truth to say that the man
is not only almost but altogether untrue to himself, as well
as to the most solemn records of his country, who can
assert that the term compact, as applied to the Constitution, is "a new word," or the exponent of a new idea.
The arguments of Mr. Webster to prove that the Constitution is not a compact, are, if possible, as unfortunate
as his assertions. If words be not things in reality, as
well as in effect, then it will be found that his arguments
possess an exceedingly small value. There are two words,
in particular, in the use of which he displays far more of
rhetorical legerdemain than of rigid logic. These are the
two words "compact" and "Constitution."
No one pretends, for a moment, that every compact is a
Constitution. There are compacts about soap and candles,
about pepper and calicoes, or some such trifling thing,
which no one would call a Constitution. It is only when
a compact has for its object the institution or organization of a political society, or a civil government, that it is
properly denominated a Constitution. Hence, in the ordinary acceptation of the words, compact falls far below the
high-sounding noun substantive Constitution; a circumstance of which any rhetorician may, if he choose, very
easily avail himself.  Mr. Webster has done so, and that,
too, with no little popular effect.  "We know no more of a
Constitutional compact between sovereign powers," says
he, "than we do of a Constitutional indenture of partnership, a Constitutional deed of conveyance, or a Constitutional bill of exchange. But we know what the Constitution is," &c. Perhaps we do, and perhaps we do not; that
is the very point in dispute. But certain it is, that if we
do know what the Constitution is we need not seek to illustrate its nature or to exhibit its history by any such decep.
tive use of words. Akin to this sort of reasoning, or rhetoric, is all that is said by Mr. Webster and Mr. Justice
Story about lowering the Constitution by considering it as
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a "mere compact," or as "nothing but a compact."  It is,
indeed, something more than a compact, something more
high, and holy, and honorable. Though in its nature it is
a mere compact, yet in its object, which is no less than to
institute or organize a political society, it is the most
solemn and sacred of all earthly transactions. Such compacts should not be despised, nor should they be explained
away, or trampled under foot by the powerful; they involve
the destiny of millions.
29 
CHAPTER VI.
The Cbnstitution of 1787 a Compact.
"A Constitution," says Mr. Webster, "is certainly not a
league, compact, or confederation, but a fundamental law.
.......... Do we need to be informed in this country what a
Constitution is? Is it not an idea perfectly familiar, definite, and well settled?  We  are at no loss to understand
what is meant by the Constitution of one of the States;
and the Constitution of the United States speaks of itself
as being an instrument of the same nature." Now it is a
very remarkable fact that Alexander Hamilton was just as
clearly and decidedly of opinion that the Constitution of a
State is a compact, as Mr. Webster was of the opposite
notion. Thus, says he, in relation to the Constitution of
New  York, "The Constitution  is the compact, made
between the society at large and each individual. The
society, therefore, cannot, without breach of faith and
injustice, refuse to any individual a single advantage which
he derives under the compact, no more than one man can
refuse to perform an agreement with another. If the community have good reason for abrogating the old compact
and establishing a new one it undoubtedly has a right to
do it; but until the compact is dissolved with the same
solemnity and certainty with which it was made, the
society, as well as individuals, are bound by it."* Indeed,
this idea, that the Constitution of an American State is a
compact, made and entered into, was far more familiar to
*Hamilton's Works, vol. ii., p. 322. 
IS DAVIS A TRAITOR?
Alexander Hamilton and to his age-the age of the Constitution itself-than the contrary notion was to Mr. Webster and to his school.
The Constitution of Massachusetts not only calls itself a
compact, but the people therein acknowledge, with grateful hearts, that Providence has afforded them an opportunity of entering into this "original, explicit, and solemn
compact." The same State, as we have seen, in her ordinance of ratification, makes the same acknowledgment of
the goodness of the Supreme Ruler of the Universe for
affording the people of the United States an opportunity
of entering into "an explicit and solemn compact by
assenting to, and ratifying a new Constitution." Now,
both Story and Webster lay great stress on the fact that
the Constitution of the United States does not call itself a
compact. But here they have a Constitution, and it is that
of their own State, which calls itself an explicit and solemn
compact-and how do they receive this language?  There
is not, perhaps in all literature an attempt more awkward,
or a failure more signal, to explain away the clear and
unequivocal language of a written instrument, than is here
exhibited by these two great sophists. It deserves a most
especial notice.
Mr. Justice Story first gets away from the plain language
of the instrument, and then calls around him the darkness
of one of the very darkest metaphysical theories of Europe,
which he introduces to our notice, however, by a very just
remark. "Mr. Justice Blackstone," says he, "has very
justly observed that the theory of an original contract
upon the first formation of society is a visionary notion."
Granted; but what has this to do with the Constitution of
Massachusetts? Every Constitution we admit is not a
compact, any more than every compact is a Constitution.
Most Constitutions have indeed grown, and only a few in
these later ages of the world have been made. It has been
the boast of America, and of Virginia especially, that she
31 
IS DAVIS A TRAITOR?
was the first in the history of mankind to make a complete
Constitution, to reduce it to writing, and, in the name of
the people in Convention assembled, to adopt and sign it
for the government of themselves and their posterity. By
those authors, such as Blackstone, and Paley, and Hume,
who reject the theory of an original contract as "a visionary notion," as having no foundation in history or in fact,
it is not denied, but expressly admitted, that a people
might, if they chose, enter into such a compact. Paley, in
spite of his opposition to the theory of the social compact,
admits that something of the kind has been entered into in
America.  "The present age has," says he, "been witness
to a transaction which bears the nearest resemblance to
this political idea (that of an original compact) of any of
which history has preserved the account or memory. I
refer to the establishment of the United States of North
America. We saw the people assembled to elect deputies
for the avowed purpose of framing the Constitution of a
new empire. We saw this deputation of the people deliberating and resolving upon a form of government, erecting
a permanent legislature, distributing the functions, of sovereignty, establishing and promulgating a code of fundamental ordinances which were to be considered by sueceeding generations, not merely as acts and laws of the
State, but as the very terms and conditions of the Confederation." Indeed, Paley does not doubt that it was a compact; he only seems to question whether it may be called
original, since "much was pre-supposed."  For, "in settling
the Constitution," says he, "many important parts were
presumed to be already settled. The qualifications of the
constituents who were admitted to vote in the election of
members of Congress, as well as the modes of eleeting the
representatives, were taken from the old forms of government." It is true that, in framing the Constitution of the
Federal Union, these things were adopted from the State
Governments; but if this prevented the compact from
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32 
IS DAVIS A TRAITOR?
being original it certainly did not keep it from being a
compact. In fact, these words of Paley refer to the old
Articles of Confederation, and nor to the new Constitution, for they were written and published in 1785*, two
years before the Convention met to frame this new instrument or plan of government. Both Webster and Story,
like all others, admit that the old Articles of Confederation
were "a compact between the States."
The question is, whether the Constitution of Massachusetts is an instrument of the same nature, or, in other
words, whether it is a compact? The more than doubtful
metaphysical theories of Europe have nothing to do with
this question. The darkness of those theories is not permitted either by Webster or Story to obliterate or obscure
the fact that the Articles of Confederation, or the Constitution to which Paley refers, was, compact. Why, then,
is it brought to bear on the Constitution of Massachusetts?
Is the political history of this country, so widely and so
amazingly different from that of all others, to be read
and interpreted in the light, or rather in the darkness,.of
those vague and visionary theories respecting the origin of
the governments of the Old World which have not the least
semblance nor shadow of a foundation in their respective
histories? The Constitution of Great Britain, for example, has grown; the Constitution of Massachusetts was
made. The one is the slow but mighty product of the
labor of ages; the other is the creation of yesterday. The
one is written; the other is traditional. The most important and beneficent elements of the one resulted from the
Norman Conquest, and the gradual rise of the lower orders
in cultivation, in wealth, and in importance. Every provision of the other, without a single exception, was framed
and adopted by the people of Massachusetts in Conven tion assembled. IHence the more than doubtful theories
respecting the origin and the nature of the one have noth  * See Paley's Life, attached to his works, p. 13.
3*
33 
IS DAVIS A TRAITOR?
ing to do with the interpretation of the plain and
unquestionable facts of the other. These facts should
be allowed to speak for themselves, and not to be discredited or obscured by involving them in the fate of
any doubtful or false hypothesis whatever.
Nor is this all. As there is not the slightest foundation
in history for the theory of an original contract in relation to the governments of Europe, so theorists have been
forced to adopt the hypothesis of an "implied compact" as
constituting at once the origin, the basis,.and the binding
authority of civil society. Mr. Justice Story finds this
idea of an "implied" contract, or consent, in Blackstone; *
and he does not hesitate to assert that it is in this sense
that the Constitution of Massachusetts calls itself a com.
pact. According to this hypothesis the consent of every
subject is implied, and this implication is forced upon the
unwilling. It is an implied consent, even in spite of an
actual dissent. Did the people of Massachusetts then
acknowledge, with grateful hearts, that Providence had
afforded them an opportunity of entering into an "implied" compact?  Did they thus pour forth in their Constitution devout thanks for a privilege which they could
not possibly have avoided, and which has been fully
enjoyed by every subject of every despotic government in
the world? Did they thank the Supreme Ruler of the
Universe for an opportunity of entering into a forced
implication, and yet ignorant of their bonds, most foolishly style it an "original, explicit, and solemn compact?"
If we may believe Mr. Justice Story, such was precisely
the absurd and ridiculous farce enacted by the people of
Massachusetts.
Mr. Webster treads in the footsteps of Mr. Justice Story.
"The Convention," says the Massachusetts formula of
ratification, "having impartially examined and fully considered the Constitution of the United States of America,
* "Commentaries," vol. i., book iii., chap. iii., p. 298.
34 
IS DAVIS A TRAITOR?
.... submitted to us...... and acknowledging with grateful
hearts the goodness of the Supreme Ruler of the lUniverse
in affording the people of the United States, in the course
of His providence, an opportunity, deliberately and peaceably, without fraud or surprise, of entering into an explicit
and solemn compact with each other, by assenting to and
ratifying a new Constitution," &e. Now is this the language of an implied or of an explicit and deliberate compact? Yet in the face of this language Mr. Webster
asserts that the Convention of Massachusetts and New
Hampshire merely speak of compact in the sense of "European writers!"  Now, the European writers here referred
to mean either an explicit or an implied consent. But the
idea of an explicit consent or compact is rejected by Mr.
Justice Story and Mr. Webster, as "a visionary notion," as
well as by Blackstone, Hiume, Paley, and a host of others.
Hence Mr. Webster must be understood to refer to those
European writers who maintain the hypothesis of an
implied compact. Hlenee the people of Massachusetts are
represented by him as being exceedingly grateful for the
opportunity of freely and deliberately entering into an
"implied compact," which, however, they blindly call "an
explicit and solemn" one! They are represented as voluntarily entering into an implied compact, a thing which
is never made or entered into at all, but is only an implication or fiction of law, from which there is no escape!
The Constitution, says Mr. Webster, is "certainly not a
compact." Hle lays great stress on the fact that it does
not call-itself a compact. Nor do the old Articles of Confederation call themselves a compact; and yet Mr. Webster admits that they were "a compact between the
States."  They call themselves, it is true, "a league of
fiicndship;" but then a league of friendship is not, ex vi termini, a social compact or a political union.  "We speak of
ordatining Constitutions," says Mr. Webster; "but we do
not speak of ordaining leagues and compacts." True.
35 
IS DAVIS A TRAITOR?
because our language is determined by the ordinary and
more frequent transactions of society. Hence we naturally speak of making or entering into leagues and compacts in conformity with the every-day use of language.
But when compacts relate to the institution of a new government, and when all their terms and articles and stipulations are agreed upon, then we enter into them by
ordaining them as Constitutions. Is not this so?
Every compact is not a Constitution.  But the Articles
of Confederation, which are admitted to be a compact,
were a Constitution. This is clear from Mr. Webster's
own definition. "What is a Constitution?" says he; and
he replies, it is "a fundamental law." Now, most assuredly the articles in question constituted the "fundamental law" of the old Union. They are, as we have already
seen, very properly called by Dr. Paley "a code of fundamental ordinances, which were to be considered by succeeding generations not merely as laws and acts"....... "but
as limitations of power, which were to control and regulate the future legislation." This is, indeed, the definition
of a Constitution; and hence Dr. Paley calls those "terms
and conditions of the Confederation" a "Constitution."
But on this point there is much higher authority than
that of Dr. Paley.  The "Address of the Annapolis Convention," penned, as is well known, by Alexander Hamilton, recommends commissioners to meet at Philadelphia,
"to take into consideration the condition of the United
States, and to devise such further provisions as shall
appear to them necessary to render the Constitution of the
Federal government adequate to the exigencies of the
Union."* Again, he says, in the ratifying convention of
New York, "The Confederation was framed amidst the
agitation and tumult of society. It was composed of
unsound materials put together in haste. Men of intelligence discovered the feebleness of the structure in the
* "Hamilton's Works," vol. ii., p. 389.
36 
IS DAVIS A TRAITOR?
first stages of its existence; but the great body of the
people, too much engrossed with their distresses to contemplate any but the immediate causes of them, were
ignorant of the defects of their constitution."* Mr. Madison also speaks of "the Federal Constitution" under the
old Confederation.t
"The Constitution," says Mr. Webster, "speaks of that
political system which is established as'the government
of the United States.' Is it not doing strange violence to
language to call a league or compact between sovereign
powers a government?" Is it not, I reply, requiring too
much of a compact to be both the Constitution and the
government? No one pretends that either a compact or
the Constitution is the government of the United States.
Mr. Webster himself makes the distinction in the two
next sentences. "The government of a state," says he,
"is that organization in which the political power resides.
It is the political being created by the Constitution or
fundamental law." Thus the government is created by
the Constitution; and if a compact were both Constitution and government, then the creature would be its own
creator. All I contend for is, that in this particular
case the compact is a Constitution, and the Constitution
is a compact. Neither the one nor the other is the gov.
ernment. The Constitution is neither the executive, nor
the legislature, nor the judiciary, nor any other conceivable functionary of the government of which it is the
supreme law.
But the design of Mr. Webster's argument is to prove
that no government was established by the old articles of
Union, or under the compact of the Confederation. In
designating those powers which he deems essential to the
very existence of a government, he specifies those which
* Hamilton's Works, vol. ii., p. 445.
-"Madison Papers."  Index, cxi., "Convention to revise the
Federal Constitution.  587, 617, 619."
37 
IS DAVIS A TRAITOR?
did not belong to the legislature of the Confederacy, or
which he supposes did not belong to it; and then he adds,
"when it ceases to possess this power it is no longer a
government," and consequently it is doing strange violence
to language to call it one.
We have already seen that Alexander Hamilton, in
speaking of the Confederacy, calls it the "Federal government." "We saw the deputation of the people,"' says Dr.
Paley, "deliberating and resolving upon a form of government, erecting a public legislature, distributing the functions of sovereignty, establishing and promulgating a code
of fundamental ordinances." We cannot open "Curtis's
History of the Constitution," and turn to the appropriate
heads, without seeing that he discusses the "Nature of the
government established by the Confederation," * or the
form of the government established by it;" t or without
perceiving that the same thing is habitually and familiarly
called a government. Nor can we look into the commentaries of Mr. Justice Story, and cast our eyes over thee
pages in which he treats of the first Confederation, without discovering that he frequently speaks of the "general
government," I or the " national government " ~ established
by it.  In the very first sentence of "The Federalist," as
well as in various other sentences of the same work, "the
existing Federal government" is spoken of just as if no
one entertained a doubt as to its real nature or its name.
* Vol. i., chap. vi., p. 142.
t Ibid, p. 143.
: Vol. i.. Book II., chap. i., p. 180; Book III., chap. ii., p. 280.
{* Ibid, Book III., chap. ii., p. 260.
I
t
I
38 
CItAPTER VII.
The Constitution of 1787 a Compact.
MR. WEBsTER admits that the Constitution is "founded
on consent or agreement, or on compact;" meaning no more
by that word than "voluntary consent or agreement."
But he denies that it is itself a compact.  "The Constitution is not a contract," says he, "but the result of a contract; meaning no more by contract than assent. Founded
on consent it is a government proper." Now, Mr. Webster himself being the judge, the Constitution is not a government at all; for a government is, says he, "the political
being created by the Constitution or fundamental law."
But "founded on consent," not on implied or necessitated,
but on "voluntary consent," it is a compact proper. Mr.
Webster is compelled to call the Constitution a government, in direct violation of his own definitions and principles, in order to keep from calling it a compact.
In what manner the Constitution'is founded on consent,
on a deliberate and voluntary consent, Mr. Webster has
himself told us, only a few pages in advance of the above
admission. "It is to be remarked," says he, "that the
Constitution began to speak only after its adoption. Until
it was ratified by nine States it was but a proposal, the
mere draft of an instrument. It was like a deed drawn
but not executed." This is most exactly and perfectly
true. The Constitution was a dead letter, a powerless and
inoperative thing, until the ratification or solemn "'voluntary assent" of nine States breathed into it the breath of 
IS DAVIS A TRAITOR?
life. It was from this consent, from this compact of nine
States, that "the Constitution resulted" as a living or
an authoritative document. But when the nine States
assented to that "proposal or mere draft of an instrument," and ratified the same by signing it, then each and
every article therein specified and written became an article of agreement between the parties to it. "It was like
a deed drawn but not executed." But when executed or
ratified it was then like a deed signed by the parties; and
all the written articles thereof became articles of agreement between the parties. Thus the Constitution not
only resulted from the compact of the nine States, but
became itself the compact; or, in other words, the written
expression of the terms, the conditions, and the articles
of the compact. This is what we mean by calling the
Constitution a compact between the States. And is not
this the language of truth?
Now, on what conditions, or in what cases, does such
voluntary consent become a compact proper? Each of
the nine States, as it assented to and ratified the Constitution, agreed to all its terms and articles. It agreed to
forego the exercise of various powers, and to assume various important liabilities, in consideration that eight other
States would do precisely the same thing. And it also
agreed that the powers thus delegated by the nine States,
or conferred on the general government to be erected for
the common good, should be-distributed, exercised, limited, and controlled, according to the terms and articles
of the Constitution. Is not this a compact proper? Have
we not here mutual promises, each State parting with
what it possessed, and, in consideration thereof, seeking
to derive some benefit from the others? If so, then is not
this a compact in the proper sense of the word?
The same idea is perfectly expressed by Mr. Webster,
in the speech before us.  "On entering into the Union,"
says he, "the people of each State gave up a part of their
40 
IS DAVIS A TRAITOR?
own power to rake laws for themselves, in consideration
that, as to common objects, they should have a part in
making laws for other States." Hlere is the voluntary
relinquishment on the one part, and the valuable consideration on the other. Is not this a contract proper? If not,
then have Blackstone, and Kent, and Pothier, and Domat,
and Story written in vain on the nature and law of contracts. If not, then indeed may we despair of ever arriving at the meaning of any one word in any one language
under the sun.
It possesses every conceivable attribute of a valid contract. 1. There were "the parties capable of contracting"-the States. 2. It is admitted to have been "voluntary." 3. There was "the sufficient consideration "-the
powers surrendered, and the liabilities incurred. Thus it
fully answers to every condition laid down by Judge
Story himself,* as the tests or criteria of a contract proper.
It bears no resemblance to,those imaginary transactions
which certain European writers have invented to explain
the origin of their governments, and to give stability to
their political theories by fastening them, as with anchors,
to past ages.  On the contrary, it is historical and real.
The time and the manner, the substance and the form, and
all the stipulations, are written down and known. It was
deliberately and solemnly entered into yesterday; and it
is as deliberately and solemnly denied to-day. Such is the
incurable sophistry of power!
The constitution of England is not a compact. There
is not, in all the history of England, the least intimation
of the people's having assembled, either by themselves or
by their representatives, to establish the institution of
King, or Lords, or Commons.  Yet these three powers
constitute the main features in the government of Great
Britain. Each power holding the balance between the
other two, so as to prevent either from gaining the ascend  * Conflict of Laws, p. 307.
41
I
i
I 
IS DAVIS A TRAITOR?
ancy, is what forms the stable equilibrium of the constitution of England.  But yet certain parts of the British constitution are compacts, and are so called by writers who
reject the theory of a compact as to the whole. According
to De Lolme and other authors, Great Britain owes her
admirable constitution to the Norman conquest rather than
to compact. "It is to the era of the conquest," says he,
"that we are to look for the real foundation of the English
constitution." Yet changes and improvements in that
constitution which, instead of growing, were made by
competent parties, he calls compacts. Thus, says he, in
reference to the accession of William III. to the throne,
"care was taken to repair the breaches which had been
made in the constitution, as well as to prevent new ones,
and advantage was taken of the rare opportunity of entering into an original and express compact between king
and people." *  Then, after having specified some of the
improvements made in the constitution by this compact,
he adds, "Lastly, the keystone was put to the arch by the
final establishment of the liberty of the press. The Revolution of 1689 is, therefore, the third grand era in the history of the constitution of England." Again, he says,
"Without mentioning the compacts which were made with
the first Kings of the Norman line, let us only cast our
eyes on Magna Charta, which is still the foundation of
English liberty, t being the great compact by which the
Kings, the barons, and the people[ entered into certain
mutual stipulations respecting the prerogatives of the
Crown and the rights of the subject."
Thus the English revolution, like our own, was followed
by a compact; and the only difference was that the compact of 1688 was in addition to an old constitution, whereas
the compact of 1788 was a constitution in toto celo.
* De Lolme on the Constitution, p. 48.
t Ibid, p. 287. 
1 I say the people, because those who followed the barons at Runnyrnede demanded and obtained stipulations in favor of the people
es well as in favor of their leaders.
42 
IS DAVIS A TRAITOR?
Locke, the great popular champion of the theory of the
social compact, was then in the ascendant in the United
States, as he was with the Whigs  in England.  That
theory, though exploded now, was then almost universally
received in America.  That is to say, exploded by showing
that there is no historical evidence of any such compact at
the origin of the governments o)f the Old World, and that
the alleged transaction was fictitious.*  But the fiction,
which had been only partially realized at the end of revo lutions, and not at the beginning of societies, became a
fact in the hands of American legislators. In the language
of Governor Morris, they came to the convention of 1787
"to make a compact," and they made one. But this draft
of a compact, we are told, calls itself a constitution, and
not a compact at all. Very well. Suppose it had called
itself a compact, even an "original, explicit, and solemn
compact," would it not have been just as easy for Mr.
Justice Story to affirm that this only meant an "implied
contract," as it was for him to do the same thing in regard
to the Constitution of Massachusetts?  But although the
convention of 1787 did not, on the very face of the Consti tution, call itself a compact, yet in the letter which, by
their "unanimous order," was dispatched with that instru ment to the President of Congress, they use the same lan guage in describing the nature of the transaction, that is
* This is the ground taken, and unanswerably maintained by Hiume,
in his essay on the " Original Contract."  Essays," vol. i., Essay
12. The theory of Rousseau is rejected by M. Comte (" Theorie de
Legislation," liv. i. c. 2) on the same ground.   Sir William Temple
(" Works," vol. ii. pp. 37, 46) had previously rejected the doctrine
of the' Social Contract." Kant, the philosopher of Konigsberg,
treats it as a frivolous and impractical notion. Hleeren (" On Political Theories," p. 239) says that a social contract neither was, nor
could have been, actually concluded. Stahl (" Philosophy of Rights,"
vol. ii., part-i., p. 142) rejects the doctrine as visionary. Godwin,
likewise (" Political Justice," book iii., c. 2 and 8) rejects it.  The
doctrine of the social compact is subjected to an exhaustive. analysis
by Mr. Austin (" Prov. of Jurisprudence," 331-71),and triumph.antly refuted. Jeremy Bentham likewise rejects the same hypothesis
as visionary.
43 
IS DAVIS A TRAITOR?
employed by Sidney, and Locke, and Rousseau to define
"the social contract," as we shall hereafter see.
Although Mr. Justice Story endeavors to bring discredit
on the "explicit and solemn" compacts of the New World,
by identifying them with the vague and visionary theories
of the Old, yet he is perfectly aware of the difference
between the fact in the one case and the hypothesis in the
other, whenever it suits his purpose to use such knowledge. Thus, he says, in relation to his own Pilgrim
Fathers:-" Before their landing they drew up and signed
a voluntary compact of government, forming, if not the
first, at least the best authenticated case of an original
social contract for the establishment of a nation, which is
to be found in the annals of the world. Philosophers and
jurists have perpetually resorted to the theory of such a
compact, by which to measure the rights and duties of
governments and subjects; but for the most part it has
been treated as an effort of imagination, unsustained by
the history or practice of nations, and furnishing little of
solid instruction for the actual concerns of life. It was
little dreamed of, that America should furnish an example
of it in primitive and almost patriarchal simplicity."'*
Thus Massachusetts has taken the lead of all the States in
the world in the making of social compacts and also in
the breaking of them. This last point will, hereafter, be
most fully illustrated and proved.
The original draft of the Constitution of Massachusetts
was drawn up by John Adams, the second President of
the United States, and he certainly entertained no doubt
that he was drawing up an "explicit and solemn compact,"
or reducing the theory of European writers to practice.
"It is," says he, "Locke, Sidney, Rousseau, and DeMably
reduced to practice."t All these celebrated authors on the
"social contract" reduced to practice!  But it is all in
* " Story on the Constitution, Book i., chap. iii., p. 37.
tJohn Adams's Works, Vol. iv., p. 216.
44 
IS DAVIS A TRAITOR?
vain. For if the fiction is reduced to fact it is only that
the fact may be again reduced to fiction.  Massachusetts
keep her bargains! Even her most gifted sons, her Storys
and her Websters, exert all their genius and exhaust the
stores of their erudition to explain away and reduce to a
mere nullity her most solemn social compacts, both State
and Federal! The theory becomes a fact, and this fact
calls itself "'an original, explicit, and solemn compact."
But then, as interest or power dictates, the fact is explained
away, and there ends all the solemn farce.
"Majorities, in a democracy, do not rely on Constitutions, do not care for Constitutions. They rely on numbers and the strong arm." They spurn, with more than
imperial scorn, the limitations and restraints which written Constitutions or judicial decisions would impose on
their sovereign will and pleasure. They respect such
paper checks, such dictates of reason and justice, just about
as much as the raging billows of the ocean respected.the
line which Canute drew upon its shores. In the strong
language of De Tocqueville, nothing can restrain them from
crushing whatever lies in their path. This has been most
emphatically and pre-eminently true of the Northern
majority in every instance in which it has gained the
ascendency in the grand Democratic Republic of the New
World. Cruel as death, and inexorable as the grave, it
has moved right on to its object, regardless of the outcries and "complaints of those whom it crushes upon its
path."* Like every other despotic power, it must, of
course, have its sophists, its sycophants, and flatterers, to
persuade it that it can never violate its compacts, because
it has never made any compact to be violated.
Its character 1is most perfectly described by a great
Northern politician; by one who, indeed, as a distinguishbed
member of the Convention of 1787, helped to frame the
Constitution of the United States. What, then, is it in
*De Tocqueville's' Democracy in America."
45
I 
IS DAVIS A TRAITOR?
his view? Is it the wild beast of Plato? Is it " the armed
rhinoceros or the Hyrcan tiger?" In more respectful language he simply calls it "the legislative lion;" but yet,
seeming to knlow its nature, as Falstaff knew the true
Prince, by instinct he paints it beforehand with the pencil of a master. "But, after all," says he, "what does it
signify that men should have a written Constitution, containing unequivocal provisions and limitations? The legislative lion will not be entangled in the meshes ef a logical net. Legislation will always make the power which it
wishes to exercise, unless it be so arranged as to contain
within itself the ~ufficient check. Attempts to restrain it
from outrage, by other means, will only render it the
more outrageous.   The idea of binding legislators by
oaths is puerile. Having sworn to exercise the powers
granted, according to their true intent and meaning, they
will, when they feel a desire to go further, avoid the
shame, if not the guilt of perjury, by swearing the true
intent and meaning to be, according to their comprehension, that which suits their purpose."* Hiere, in one sentence, we have the whole history of the Northern power
in advance; with all its hypocrisy, violation of oaths, and
sovereign contempt of its most solemn compacts and
engagements. - Is it any wonder, then, that the writer
should have looked forward, with such sad foreboding, "to
the catastrophe of the tragico-comical drama," t in the
earliest stages of which he himnself had acted so conspicuous a part?
* "Life and Writings of Governor Morris," vol. iii., p. 323.
t Ibid., p. 203.
46 
CHAPTER VIII.
The Constitution of 1787 a Compact between the States.- The Facts of the Case.
IN discussing the question of the preceding chapters,
whether the Constitution was a compact, I introduced
much matter which incidentally showed that it was a
compact between the States. In like manner, I shall, in
proving that the States are the parties to the Constitution, produce much additional evidence that it is a compact. In order to show that the States are the parties to
the constitutional compact, let us consider-1. The facts
of the case; 2. The language of the Constitution itself;
and 3. The views of HIamilton, Madison, Morris, and other
framers of the Constitution; and 4. The absurdities flowing from the doctrine that the Constitution is not a compact between the States, but was ordained by the people
of America as one nation.
1. The facts of the case. "It appears to me," says Mr.
Webster, "that the plainest account of the establishment
of this government presents the most just and philosophical view of its foundation." True, very true. There is,
indeed, no proposition in the celebrated speech of Mr.
Webster, nar in any other speech, more true than this;
and besides, it goes directly to the point. For the great
question which Air. Webster has undertaken to discuss
relates not so much to the superstructure of the government as to "its foundation."
This is the question:  Iow was the Constitution made
or ordained, and on what does it rest? Bearing this in 
IS DAVIS A TRAITOR?
mind, let us proceed to consider, first, his plain account ot
the establishment of the government of the United States,
and then the arguments in favor of his position.
First, let us consider, item by item, his plain account.
"The people of the several States," says he, "had their
separate governments, and between the States there also
existed a Confederation."  True.  "With this condition
of things the people were not satisfied, as the Confederation had been found not to fulfil its intended objects. It
was proposed, therefore, to erect a new common government, which should possess certain definite powers, such
as regarded the property of the people of all the States,
and to be formed upon the general model of American
Constitutions." This is not so plain. It seems partly
true and partly false. We are told that the people had
discovered the defects of the Confederation, and were consequently not satisfied with it. Alexander Hamilton, a
contemporary witness, tells a very different story. "Men
of intelligence," says he, "discovered the feebleness of the
structure" of the Confederation; "but the great body of
the people, too much engrossed with their distresses to
contemplate any but the immediate causes of them, were
ignorant of the defects of'their Constitution."* It was
only "when the dangers of the war were removed," and
the "men of intelligence" could be heard, that the people
saw "what they had suffered, and what they had yet to
suffer from a feeble form of government."t
"There was no need of discerning men," as Hamilton
truly said, "to convince the people of their unhappy condition." But they did need to be instructed respecting
the causes of their misery.   So far was the great body of
the people from having discerned for themselves the causes
of their troubles that Mr. Madison ascribes his ability to
make this discovery to his peculiar situation. "Having
* Works, vol. ii., p. 445.
+ Ibid.
48 
IS DAVIS A TRAITOR.?
served as a member of Congress," says he, "through the
period between March, 1780, and the arrival of peace, in
1783, I had become intimately acquainted w th the public
distresses, and the causes of them." Thus enlightened,
and, under the dreadful aspect of affairs, "sympathizing
in the alarm of the friends of free government at the
threatened danger of an abortive result to the great, and
perhaps last, experiment in its favor," Mr. Madison could
not be "insensible to the obligation to aid as far as he
could in averting the calamity."* Hience he acceded to
the desire of his fellow-citizens of the county, and became
a member-of the legislature of Virginia, "hoping," as he
declared, "that he might there best contribute to inculcate the critical posture to which the revolutionary cause
was reduced, and the merit of a leading agency of the
state in bringing about a rescue of the Union, and the
blessings of liberty staked on it, from an impending catastrophe."      -
It thus appears that the first step which, in the end, led
to a change of the Federal Government, was not a popular movement; it did not originate with the people; it
sprang from the brain of James Madison, and manifested
itself in the action of the legislature of Virginia. But
what was this action? Was it to change the form of the
Federal Government? Far from it. The resolution of the
Virginia legislature, drawn up by Mr.: Madison, and introduced by Mr. Tyler, t merely appoints commissioners to
meet such commissioners as may be appointed by the other
States, "to take into consideration the trade of the United
States," and "to consider how far a uniform system in
their commercial regulations may be necessary to their
* Madison Papers, p. 693.
t The resolution was introduced by Mr. Tyler, rather than its
author, because, "having never served in Congress," he "had more
the ear of the house than those whose services there exposed them to
an imputable bias." Madison Papers; p. 696. So great was the
jealousy of the Federal Congress in those days.
4
49 
IS DAVIS A TRAITOR?
common interest and permanent harmony." It suggest
no change whatever in the Federal government, except it
so far as this may be implied in a uniform system of comr
mercial regulations.
This resolution, as every one knows, led to the Annape
lis Convention, which took the next great step towards th
formation of the new Constitution. Nor was this a popu
lar movement. It originated in the brain of Alexande
Hamilton. In the address of that convention, he says
"That the express terms of the power to your  commis
sioners supposing a deputation from all the States, an(
having for its object the trade and commerce of the Unite(
States, your commissioners did not conceive it advisable t(
proceed on the business of their mission under the circum
stances of so partial and defective a representation."  Th
address then proceeds to recommend "a general meetinof the States in a future Convention," with powers extend
in-g to "other objects than those of commerce." "They
are the more naturally led to this conclusion," say th,
Convention, "as in their reflections on the subject they
have been induced to think that the power of regulating
trade is of such comprehensive extent, and will enter s(
far into the grand system of the Federal government, tha'
to give it efficacy, and to obviate questions and doubt
concerning its precise nature and limits, may require -
correspondent adjustment in other parts of the Federa
system."
'That there are important defects in the system of th
Federal Government," continues the address, "is acknow
ledged by the acts of those States which have concurred
in the present meeting. That the defects, upon a close.
examination, may be found greater and more numerous
than even these acts imply, is at least so far probable
from the embarrassment which characterizes the presen
state of our national affairs, foreign and domestic, as may
reasonably be supposed to merit a deliberate and candi,
50 
IS DAVIS A TRAITOR?
-liscussion, in some mode which will unite the sentiments
and counsels of all the States."
In compliance with this recommendation of "a general
neeting of the States in a future convention," twelve
States met at Philadelphia on the 14th of May, 1787, with
instructions to join "in devising and discussing all such
alterations and further provisions as may be necessary to
render the Federal Constitution adequate to the exigencies
of the Union."*  "The recommendation was received by
the legislature of Virginia," says Mr. Madison, "which
happened to be the first that acted on it, and the example
of her compliance was made as conciliatory and impressive
as possible." t Thus it was Alexander Hamilton, as the
master spirit of the Annapolis Convention, who first conceived the idea of a general convention to revise and amend
the Federal Government, and it was James Madison, as
the great ruling genius of the legislature of Virginia, who
gave the first and most powerful impulse to that conception. The great mass of the people had very little to do
with the movement.
"A resort to a general convention," says Mr. Madison,
"to remodel the Confederacy, was not a new idea." I He
then mentions five persons by whom this idea had been
entertained; namely, Pelatiah Webster, Colonel Hamilton,
R. H. Lee, James Madison, and Noah Webster.  None of
these, however, go beyond the idea of Hamilton, "to
strengthen the Federal Constitution;" or of Madison, to
supply its defects.~ But if this had been a popular move
* Madison Papers, p. 706. These are the words of the resolution
of Virginia; the instructions of the other States were equivalent to
these.
t Ibid, p. 703.        $ Madison Papers, 706.
The two Websters, Pelatiah and Noah, do show some originality.
The one, in 1781, seeing that Congress had not sufficient authority
" for the performance of their duties:" (though he does not tell us
what duties they had to perform, except to exercise the authority
entrusted to them,) suggests the plan of a Continental Convention.
for the express purpose, "among other things, of enlarging the
51 
IS DAVIS A TRAITOR?
ment, Mr. Madison could easily have found, during th,
period of three years, more than five candidates for the
once hotly-contested honor of having conceived the first
idea of a Convention to remodel the Confederacy or tt
amend the Federal Constitution.
The plain truth is, that it was Alexander Hamilton, and
not the people who, grappling with the vast and complicated idea of a regular commercial system, saw the changes
which such a system must introduce into the Federal Government. Hence it was Alexander Hamilton, and not the
people, who became dissatisfied with the Confederation as
it was, and sought to have its Constitution remodeled.
"He was the first," as the historian of the Constitution
has truly said, "to perceive and develop the idea of a real
union of the people of the United States." t
It was not proposed then, as Mr. Webster alleges, and
no one ever proposed, to set aside the Confederation in
order to establish a government. The Confederation was
itself a government. This contrast between the Confederation and a government, as things essentially different
in kind, which pervades the whole of Mr. Webster's speech,
and which is even interwoven with his "plain account of
the establishment of the government" of the United States,
is purely a hypothesis of his own. Hamilton and the Convention of Annapolis repeatedly speak, as we have seen,
of "the Federal Constitution" and "the Federal Government."   Madison  and the  legislature of Virginia use
precisely the same language in reference to the same
objects. Even Pelatiah Webster, in this respect, far less
original than his great namesake, speaks of the "Constiduties of their Constitution." The other, in 1784, wished for a Government "which should act, not on States, but directly on individuals. If this idea really originated with Noah Webster, then there
are many who will think that his political pamphlet cancelled the
obligations which his spelling book conferred on the country. Mr.
Webster was also original in his orthography.
t " History of the Constitution of the United States," by Curtis,
vol. i, p. 413.
52 
IS DAVIS A TRAITOR?
ution" of the Federal Government.  The Convention of
87, also call the old Confederation "the Federal Governi-nent." *
But we must proceed to the next item of Mr. Webster's
,lain account.  "This proposal," says he, "was assented
to, and an instrument was presented to the people of the
several States for their consideration. They approved it,
and agreed to adopt it, as a Constitution." True, as far as
it goes. But when M1r. Webster asks, "Is not this the
truth of the whole matter?" we are bound to answer that
this is either not the truth of the whole matter, or it is not
the whole truth of the matter. On the contrary, it omits
precisely those great truths which shed the most light on
the foundation of the government of the United States.
One might well suppose, from the above statement, that
the people of the several States had jointly approved the
Constitution, and jointly ordained it as a Constitution.
But however essential this view may be to the theory of
Mr. Webster-and his theory is as baseless as the fabric of
a vision without it-it has not the shadow of a foundation
in the facts of history.
The plain and unquestionable fact is, that each State
adopted or rejected the Constitution for itself, and for itself
alone. No twelve States could by their united action lay the
bonds of the new Constitution on the thirteenth State. This
was universally conceded. The little State of Rhode Island
stood aloof; and though her conduct was reprobated, no
one denied her right. Neither all the other States combined, nor all the people of America, had the shadow of an
authority to constrain her action, or to control her own
free choice. No power on earth could touch the priceless
pearl of her sovereignty in the affair. No one presumed
to question her right to decide for herself. This right was
then as clear as the sun, and all eyes recognized it. And
this was true, not only in relation to Rhode Island, but
*Madison Papers, pp. 780-35, etc.
53 
IS DAVIS A TRAITOR?
also to each State in the Confederacy. For in the act of
re-union each State was perfectly free and independent,
uncontrolled and uncontrollable by any power upon earth.
But this fact, which is far too recent and too well
authenticated to be denied by any one, goes to the very
foundation of the government of the United States, and
shows that its Constitution rested on a federal, and not on
a national act. It shows that it was a union of States,
effected by the several act of each State, and not the union
of all the individuals in America, acting as one political
community.
All this was known to Mr. Webster.  No man with the
least political information or reading could have remained
ignorant of it. But still he glossed it over, or kept it in
the far distant background, as unsuited to his hypothesis
and to the logic of the Northern power, that the Constitution was ordained by "the people of the United States in
the aggregate," and not by the people of the United States
in the segregate. And yet, after he has given his onesided, superficial, and unfair statement, he calls it "a plain
account," and asks, "Now, sir, is not this the truth of the
whole matter? And is not all that we have heard of a
compact between Sovereign States the mere effect of a
theoretical and artificial mode of reasoning upon the subject?-a mode of reasoning which disregards plain facts
for the sake of hypothesis?" Comment is unnecessary.
Mr. Webster's "plain account" is, in fact, a gross falsification of history. If possible, however, it is surpassed
by Mr. Motley.  This most unscrupulous writer asserts:
"The Constitution was not drawn up by the States, it was
not promulgated in the name of the States, it was not ratified by the States."* Now each and every one of these
assertions is diametrically opposed to the truth. Strike
out the little syllable "not" from every clause of the above
sentence, and it will then express the exact truth. For,
* Rebellion Record, vol. 1, p. 211.
54 
IS DAVIS A TRAITOR?
in the first place, as the record shows, it is a plain and
incontrovertible fact, that the Consttitution was drawn
up or framed by the States.
It was drawn up or framed, as every one knows, by the
Convention of 1787; in which the States, and the States
alone, were represented. Every iota of the Constitution
was decided upon, and found a place in that written instru ment, by a vote of the States; each State having one vote;
the little State of Delaware, for example, having -an equal
vote with New York, Pennsylvania, or Virginia. No fact
should be more perfectly notorious, or well-known, than
this; for it stands out everywhere on the very face of the
proceedings of the Convention, which framed the Constitution. Thus, for example, "On the question for a single
Executive; it was agreed to,-Massachusetts, Connecticut,
Pennsylvania, Virginia, North Carolina, South Carolina,
Georgia, aye-7; New York, Delaware, Maryland, no 3."* In like manner, every other item of the Constitution
was decided upon, and the whole instrument formed, by a
vote of the States; acting as separate, independent, and
equal bodies. How, in the face of such a fact, could Mr.
Motley so boldly assert, that the Constitution was not
drawn up, or framed, by the States? By whom, then,
was it framed? Was it framed by "the people of the
United States in the aggregate;" acting as one nation?
Nothing is farther from the truth. There is not even the
shadow of a foundation for any such assertion or insinua tion. Will it be said, that the Constitution was drawn
up, not by the States, but by those who proposed its vari ous articles? If so, such a subterfuge would be nothing
to the purpose, and very far from deserving a moment's
notice.
The second assertion of Mr. Motley, that the Constitu tion "was not promulgated in the name of the States," is equally unfortunate. For, as every one knows, it was
*The Madison Papars, p. 788.
65 
IS DAVIS A TRAITOR?
promulgated by the Congress of the Confederation in
which the States alone were represented, and in which all
the States were perfectly equal.  The "Articles of Confederation" says:  "In determining questions in the United
States, in Congress assembled, each State shall have one
vote."* It was thus as equals that the States voted in
determining to promulgate the new Constitution; and it
was in consequence of that action of the States, that the
Constitution was promulgated and laid before the people
of the several States for their adoption. Here, again, in
direct opposition to the unblushing assertion of Mir. Motley, the Constitution was promulgated by the States in
Congress assembled. If Mr. Motley had only deigned to
glance at the history of the transaction about which he
speaks so confidently, he could not have failed to perceive,
that the Constitution was first submitted, by the Convention of 1787, "to the United States in Congress assembled;"t and that it was afterwards, in conformity with the
opinion of the Convention, promulgated by the States "in
Congress assembled."  But Mr. Motley's theory of the
Constitution takes leave of history; and has little to do
with facts, except to contradict them.
"The Constitution was not ratified by the States," says
Motley. In the Resolutions just quoted, and which were
unanimously adopted by the Convention of 1787, we find
this clause: "Resolved, That in the opinion of this Convention that as soon as the Convention of nine States
shall have ratified this Constitution, the United States
in Congress assembled should fix a day on which electors should be appointed by the States which shall have
ratified the same," &c.  Not one of the fathers of the Constitution ever imagined that it was not ratified by the
States.  But in this instance, as well as in many others,
*Art. V.
tResolutions which, "by the unanimous order of the Convention"
of 1787, was forwarded with the Constitution to Congress.
56 
IS DAVIS A TRAITOR? 
their most familiar idea is repudiated, and their most
explicit language is contradicted, by Mr. Motley.
In the sentence next to the one above quoted from
Motley, he says:  "The States never acceded to it [the Constitution,] and possess no power to secede from it."* This
peremptory and fiat contradiction of the language of the
fathers of the Constitution deserves no further notice; since
it has already been sufficiently exposed.
* Chapter III.
4*
57 
CHAPTER IX.
The Constitution a Compact between the States- The langvage of the Constit?tion.
2. The Language of the Constitution. "We, the people of
the United States, in order to form a more perfect union,
.......... do ordain and establish this Constitution for the
United States of America." The first clause of this preamble to the Constitution, wholly detached from its history and from every other portion of the same instrument,
as well as from all the contemporary and subsequent
expositions of its authors, is made the very corner-stone
of the Northern theory of the general government of the
United States.  That tremendous theory, or scheme of
power, has been erected on this naked, isolated, and, as we
expect to show, grossly misinterpreted clause.
From the bare words of this clause it is concluded, both
by Story and Webster, that the Constitution was established or ratified, not by a federal but by a national act;
or, in other terms, that it' was not ratified by the States,
but by a power superior to the States, that is, by the sovereign will of "the whole people of the United States in the
aggregate," acting as one nation or political community.
With Puritanical zeal they stick to "the very words of the
Constitution," while the meaning of the words is unheeded
by them, either because it is unknown, or because it does
not suit their purpose. But words are not the money,
they are merely the counters, of wise men. The meaning
of the Constitution is the Constitution.
In arriving at the meaning of these words, of the very 
IS DAVIS A TRAITOR.?
clause in question, I shall not do the least violence to any
law of language, or to any rule of interpretation. I shall,
on the contrary, show that we are not "obliged to depart
from the words of the instrument," * as Mr. Justice Story
alleges, in order to sustain our interpretation of any portion of it. I shall show that the Southern interpretation
of the clause in question is, in reality, the only fair, legitimate and reasonable sense of the preamble itself. Nor
shall I, for this purpose, repeat the arguments which are
usually employed by the friends of the South in this controversy. Those arguments are amply sufficient to refute
the interpretation of Story and Webster. But they are so
well put by others-by John Taylor, of Caroline; by
Judge Upsher, of Virginia; by John C. Calhoun, of South
Carolina; and especially by Mr. Spence, of Liverpool, that
I need not repeat them here. Every one may find access
to them in the admirable work of Mr. Spence.t Itence,
passing by those arguments, I shall, by an appeal to the
records of the Convention of 1787, make my position good,
and annihilate the great corner-stone of the Northern theory of the Constitution of the United States.
"We, the people of the United States." The history
of these words is curious and instructive. Only a portion
of that history has, as yet, been laid before the public of
England or of the United States. In the light of that
history the great corner-stone in question will be found to
crumble into dust anid ashes; and the only wonder will be,
that considerations so clear and so conclusive should have
been so long locked up, as a profound secret, in the records
of the very Convention that formed the Constitution of the
United States.
It is well known that in the original draft of the ConstituLtion, its preamble, instead of saying, "We, the people
* " Commentaries on the Constitution," Book iii., chap. ii.
t We have only said admirable; but, all things considered, Mr.
Spence's work is truly a wonderful production.
59 
IS DAVIS A TRAITOR?
of the United States," specified each State by name, as
the previous Articles of Confederation had done. If it
had remained thus, then the States would have appeared,
on the very face of the preamble itself, as the parties to
the Constitution. But the preamble, as is well known, was
afterwards changed, by omitting to mention the States by
name. There are, however, some most important facts
connected with the change and the origin of the words in
question, which seem to be wholly unknown on both sides
of the Atlantic. They have, certainly, attracted no notice
whatever from any of the writers on the great controversy
between the North and the South.
The first of these facts relates to the person by whom,
and the manner in which, the change in question was
effected; or, the words, "We, the people of the United
States," were substituted for an enumeration of the States
by name. During all the great discussions of the Convention, the preamble to the Constitution retained its original form; nor was there, from the beginning to the end
of their deliberations, a single whisper of dissatisfaction
with it in that form. Every member of the Convention
appeared perfectly satisfied that the States should stand,
on the very front of the Constitution, as the parties to the
compact into which they were about to enter. It was
only after the provisions of the Constitution were agreed
upon, and its language was' referred to "a committee on
style," that the names of the States were silently omitted,
and the clause, "We, the people of the United States,"
substituted in their place.  Now, it will not be denied, that
if this change had not been made by the " committee on
style," then the States would have been the parties to the
ne v Constitution just as they had been to the old Articles
of Confederation. Hence, if the interpretation of Story
and Webster be the true one, then it must be admitted
that the "committee on style," appointed merely to express
the views of the Convention, really transformed the nature
60 
IS DAVIS A TRAITOR?
of the Constitution of the United States!  Then it must
be admitted, that the "committee on style," by a single
turn of its pen, changed the course of history and the
meaning of its facts; causing the supreme power of the
Federal Government to emanate, not from the States, but
from the people of America as one political community!
Did the "committee on style" do all this?  And is it on
legislation like this that a sovereign State is to be deemed
guilty of treason and rebellion against the sublime author ity of the people of America, and visited with the utmost
j vengeance of that malign power? The sublime authority
of the people of America, the one grand nation, erected
and established solely by the pen of the "committee on
style "!
This clause, "We, the people of the United States,"
introduced by the "committee on style," and passed over
in perfect silence by the whole Convention, is the great
stronghold, if it has one, of the Northern theory of the
Constitution. The argument from these words appears in
every speech, book, pamphlet, and discussion by every
advocate of the North. It was wielded by Mr. Webster
in his great debate with Mr. Calhoun, in 1833, and still
more fully in his still more eloquent speech on Foote's
resolutions in 1830.  "The Constitution itself'," says he,
in its very front, declares that it was ordained and estab lished by the people of the United' States in the aggre gate."  The fact is not so.  The Constitution neither
declares that it was established by the people of the Uni ted States in the aggregate, nor by the people of the United
States in the segregate. But if we look into the history of
the transaction, we shall find that it was established by them
in the latter character, and not in the former. We shall
find that each State acted separately, and for itself alone;
and that no one pretended, or imagined, that the whole
aggregate vote of any twelve States could bind the thir teenth State, without its own individual consent and rati
61 
IS DAVIS A TRAITOR?
fication. In order to make out his interpretation, Mr.
Webster interpolates the legislation of the " committee on
style" with words of his own.
The change in the preamble to the Constitution was
effected by the pen of Governor Morris, one of the most
zealous advocates in the Convention of 1787, for a strong
national Government. He certainly wished all power to
emanate from the people of America, and to have them
regarded as one great nation. But did he accomplish his
wish?  In the Convention, says the record, "Governor
Morris moved that the reference of the plan (i.e., of the'
Constitution) be made to one General Convention, chosen
and authorized by the people, to consider, amend, and
establish the same."* This motion, if adopted, would
indeed have caused the Constitution to be ratified by "the
people of the United States in the aggregate," or as one
nation. This would, in fact, have made it a Government
emanating from the people of America in one General
Convention assembled and not from the States. But how
was this motion received by the Convention?  Was it
approved and passed in the affirmative by that body?  It
did not even find a second in the Convention of 1787. So
says the record*, and this is a most significant fact. So
completely was such a mode of ratification deemed out of
the question that it found not the symptom or shadow of
support from the authors of the Constitution of the United
States.
Now was the very object, which Governor Morris so
signally failed to accomplish directly and openly by his
motion, indirectly and covertly effected by his style? And
if so, did he design to effect such a change in the fundamental law of the United States of Amnerica?  It is certain that precisely the same effect is given to his words,
to his style, as would have resulted from the passage of
his motion by the Convention. I)id Governor Morris
* " The Madison Papers," D. 1184.
62 
IS DAVIS A TRAITOR?
then intend that his words should have such force and
effect? In supposing him capable of such a fraud on the
Convention of 1787, I certainly do him no injustice, since
we have his own confession that he actually perpetrated
several such frauds  on that assembly of Constitution   makers.   "That instrument,"  says he in reference  to
the Constitution, "was written by the fingers which
writes this letter. Hiaving rejected redundant terms,
I believed it to be as clear as language would permit;
excepting, nevertheless, a part of what relates to the
A judiciary. On that subject conflicting opinions had been
/ maintained with so much professional astuteness, that it
became necessary to select phrases, which expressing my
own notions would not alarm others, nor shock their self   love; and to the best of my recollection this was the only
part which passed without cavil."* How adroitly, then,
how cunningly, he cheats the Convention into the uncon   scious sanction of his "own  notions"  and this great
legislator of the North, even in the purer days of the
infant republic, was proud of the fraud!
Nor is this the only instance in which, according to his
own confession and boast, Governor Morris tricked the
Convention into the adoption of his own private views.
"I always thought," says he, in another letter, "that
when we should acquire Canada and Louisiana, it would
be proper to govern them as provinces, and allow them no
voice in our councils. In wording the third section of the
fourth article I went as far as circumstances would permit
to establish the exclusion. Candor obliges me to add my
belief that, had it been more pointedly expressed, a strong
opposition would have been made."t Thus, as the penman
of the committee on style, he abused his high position, not
only to mould the judiciary system of the United States to
suit his "own notions," but also to determine the fate of
* " Life and Writings of Governor Morris," vol. iii., p. 323.
t Ibid, vol. iii., p. 193.
63 
IS DAVIS A TRAITOR?
two vast empires! Is not such legislation truly wonderful?  Instead of weighing every word with the utmost
care, and then depositing it in the Constitution as under the
solemn sanction of an oath, the Convention trusts the style
of the instrument to a fine writer, who cunningly gives
expression to his own views in opposition to those of the
assembly! "In a play, or a moral," says Jeremy Bentham, "an improper word is but a word; and the impropriety, whether noted or not, is attended with no consequences.  In a body of laws-especially of laws given as
Constitutional ones-an improper word would be a national
calamity, and civil war may be the consequences of it.
Out of one foolish word may start a thousand daggers."
How true, and how fearfully has this truth been illustrated
by the history of the United States!
But although Governor Morris was capable of such a
fraud on the Convention, we have no good reason to
believe he intended one, by the substitution of the words,
"We, the people of the United States," for the enumeration of all the States by name. He has nowhere confessed
to any such thing; and besides he did not understand his
own words as they are so confidently understood by Story
and Webster. Every rational inquirer after truth should,
it seems to me, be curious to know what sense Governor
Morris attached to the words in question, since it was by
his pen that they were introduced into the preamble of
the Constitution. Nor will such curiosity be diminished,
but rather increased, by the fact that he did, in some
cases, aim to foist his own private views into the Constitution of his country.  How, then, did Governor MVorris
understand the words, "We, the people of the United
States "? I)id he infer from these words that the Constit-ation was not a compact between States, or that it was
established by the people of America, and not by the States?
I answer this question in the words of Governor Morris
himself. "The Constitution," says he, "was a compact,
64 
IS DAVIS A TRAITOR?
not between individuals, but between political societies,
the people, not of America, but of the United States, each
enjoying sovereign power and of course equal rights."*
Language could not possibly be more explicit. Nor could
it be more evident than it is, that Govenor Morris, the
very author of the words in question, entertained precisely the same view of their meaning as that maintained
by AIr. Calhoun and his school.  This point was, indeed,
made far too clear by the proceedings of the Convention
of 1787 for any member of that body to entertain the
shadow  of a doubt in relation to it.  Nor can any one
read these proceedings as they deserve to be read, without
agreeing with Governor Morris, that the authors of the
Constitution designed it to be ratified, as in fact it was, by
"the people of the United States," not as individuals, but
as "political societies, each enjoying sovereign power, and
of course equal rights." Or, in other words, without
seeing that "the Constitution was a compact," not between
individuals, "but between political societies," between
sovereign States. This, in the next chapter, I hope and
expect to make perfectly clear, by bringing to view the
origin of the words "We, the people," and by showing
the sense in which they were universally understood and
used by the members of the Convention of 1787 in the
very act of framing the Constitution of the United States.
* "Life and Writings," vol. iii., p. 193.
65 
CHAPTER X.
The Constitution of 1787 a Compact between the States. The Language of the
Consttution.
THE Convention of 1787 did, as we have seen, refuse to
call the government a national one, and gave it the name
of "the government of the United States." Did they
then make it a national one by enacting that it should be
ordained by "the whole people of the United States in
the aggregate" as one political society? Again, when it
was proposed in the Convention to ordain the Constitution
by "the people of the United States in the aggregate," in one general Convention assembled, the motion
failed, as we have seen, to secure a second. Did Governor Morris, then, the author of that proposal, achieve
by his style what he failed to accomplish by his motion?
If so, what should we think of the incompetency of the
Convention?
Nor was this all.  For Madison introduced a motion
which required "a concurrence of a majority of both the
States and the people"* at large to establish the'Constitution; and this proposition was rejected by the Convention. All these motions, designed to connect the new
government with a national origin, were lost, and the
decree went forth that the Constitution should be established by the accession of nine States, each acting for
itself alone, and to be bound only by its own voluntary
act. XNow, the question is, was all this action of the Convention overruled and defeated by the committee on style,
*' The Madison Papers," p. 1470. 
IS DAVIS A TRAITOR?
or rather by its penman, Gouverneur Morris? If he formed
such design, then it must be admitted that the Northern
theory of the Constitution was conceived in fraud and
brought forth in iniquity; and every honest man at the
North ought to be ashamed both of its origin and its exist  ence. But, as we have already seen, Governor Morris did
not understand his own words, "We, the people," as they
are understood by the more modern expounders of the
Constitution at the North. Hence we have no reason to
believe that he intended, in this case at least, a fraud on
, the design and will of the Convention.
Was the whole thing done then, and the nature of the
Constitution transformed, by a slip of the pen, or by acci  dent? After all their opposition both to the name and to
the thing did the Convention, by sheer oversight, blunder
into the construction of a purely national government, by
permitting it to be established by the people of America
as one grand political community? If Mr. Justice Story's
view of the words, "We, the people of the United States,"
be correct, how did it happen that the opponents of such
a mode of ratification said absolutely nothing? The whole
instrument, as amended by the committee on style, was
read in the hearing of the Convention, beginning with the
preamble, and yet the words, "We, the people of the
United States," now deemed so formidable to the advocates
of State sovereignty, did not raise a single whisper of
opposition. Hlow could this have happened if the words
in question were supposed to mean the people of America,
or the whole people of the United States as one political
society? Were Mason, and Martin, and Paterson, and Ells  worth, all too dull to perceive that meaning, which is so
perfectly obvious to Mr. Justice Story, and which he
imagines that nothing but the most purblind obstinacy can
resist? Were all the friends of the States, as independent
sovereignties, asleep on their posts while Gouverneur Mor  ris thus transformed the nature of the Constitution, with
67 
IS DAVIS A TRAITOR?
out knowing it himself, by causing it to emanate, not from
the States, but from the people of America as one nation?
No.  Not one of these suppositions is the true one.  The
whole mystery is explained in the proceedings of the Convention of 1787, as exhibited in "The Madison Papers;"
an explanation which, however, has hitherto been most
unaccountably overlooked. We may there find the real
meaning of the words in question, and see why they gave
no alarm to the advocates of State sovereignty.
If we cast our eyes all along the subject of "the mode
of ratification," ranging from page 735 to page 1632 of
"The Madison Papers," we shall perceive that the question, whether the Constitution should be ratified by the
people of "the United States in the aggregate," or by the
several States, was not considered by the Convention at
all.  No such question was before the Convention.  It was
neither mooted nor considered by them. The error of
Story and Webster is, that they construe the first clause
of the Constitution as if it referred to one question;
whereas, in fact, it referred to quite another and a far different question-that is, they construed this clause in profound darkness as to the origin of its words, as well as to
their use and application in the Convention of 1787. If
they had understood them as actually and uniformly used
or applied by the framers of the Constitution, then they
could neither have deceived. themselves nor the people of
the North.  If, indeed, they had been members of that
Convention, or had only examined its proceedings, they
would have seen why the staunch advocates of State soveignty raised not even the slightest whisper of opposition
to the words, "We, the people." Or, if Patrick Henry
had been a member of that assembly, then he could not
have exclaimed, as he did, "Why say We, the people, and
not We, the States?"-an exclamation so often quoted by
Story, Webster, and the whole Northern school of politicians as a conclusive authority-for then he would have
68
II 
IS DAVIS A TRAITOR?
seen that "We, the people," in the language of the framers
of the Constitution, meant precisely the same thing as
"We, the States," and neither more nor less.
The question before the Convention was, whether the
Constitution should be ratified by the legislatures or by
the sovereign peoples of the several States. No one
doubted that it was to be ratified by the States. This, as
we shall see, was on all hands regarded as a settled point.
The only question was, whether it should be ratified by
the States, acting through their legislatures, or through
Conventions elected to represent the people for that special purpose. In the discussion of this question, most of
the members insisted that the Constitution should be ratified by the people, by the States in their sovereign capacity, or by their Conventions   These several modes of
expression were, in the vocabulary of the Convention,
used as convertible terms, as perfectly synonymous with
each other.- Hience the phrase, "the people of the United
States," as used and understood by them, meant the people of the several States as contradistinguished from their
legislatures, and not the people of America as contradistinguished from the distinct and separate sovereign peoples of the different States. This application of the words
is the invention of theorists merely. It was unknown to
the Convention of 1787, and has had no existence except
in the imaginations of those by whom their labors have
been systematically misconstrued and perverted from their
original design.
Some few members of the Convention were in favor of
leaving "the States to choose their own mode of ratification;" but the great majority of them insisted that the Constitution should be referred to the States for ratification,
either through their legislatures or through their people
in Conventions assembled. It was in regard to these two
methods that the Convention was divided. All agreed
that it should be done by "the States," and the only ques
69
-f 
IS DAVIS  A  TRAITOR?
tion was as to how "the States" should do it. The idea
that it was designed to be done, or that it was done, by
the people of America as one nation, is the dream of a
later day, and, as we shall see, is nothing but a dream.
Some insisted that it should be ratified by the States in
their corporate capacity-that is, by their legislatures;
and others that it should be ratified by the States in their
sovereign political capacity-that is, by their Conventions
assembled for that express purpose.  Or, in other words,
some contended that it ought to be ratified by their general
agents, the legislatures; and others that it ought to be
ratified by their special agents, the Conventions elected
and assembled to perform that high act of sovereign
power. In both cases, it was to be ratified by the States,
but the opposite parties preferred different modes of ratification by them.
In debating this question, as to the mode of ratification
by the States (the only one before the Convention), some
of the most inflexible advocates of State sovereignty
insisted that it should be ratified by "the people of the
United States." But then they understood this language,
and every member of the Convention understood it to
mean the peoples of the several States, as distinguished
from their legislatures. If, for one moment, they had
imagined that their language could have been construed
to mean a ratification of the Constitution by the collective will of the whole people of America, they would have
shrunk from its use with horror; for they dreaded nothing more than the idea of such an immense consolidated
democracy. On the contrary, they clung to the States,
and to their rights, as the only sheet-anchor of safety
against the overwhelming and all-devouring floods of
such a national union of mere numbers or individuals.
George Mason, no less than Patrick Hienry, would have
exclaimed against the words, "We, the people," if, as a
member of the Convention of 1787, he had not learned
that they only meant "We, the States."
70 
IS DAVIS A TRAITOR?
In discussing the question as to the mode of ratification
by "the States," Air. Mason said "he considered a reference of the plan to the authority of the people as one of
the most important and essential of the resolutions.  The
legislatures have no power to ratify it............. Another
strong reason (said he) was that admitting the legislatures
to have a competent authority it would be wrong to refer
the plan to them, because succeeding legislatures, having
equal authority, could undo the acts of their predecessors."*   This argument was repeatedly urged by other
members; and it was insisted that if the Constitution
should be ratified by the legislatures of the States, instead
of by the people of the States, it would rest upon a weak
and tottering foundation, since the legislatures which had
established might claim the power to repeal.
In like manner Mir. Madison said, "For these reasons, as
well as for others, he thought it indispensable that the
new Constitution should be ratified in the unexceptionable form, and by the supreme authority of the people
themselves"t-that is, as the context shows, by the
supreme authority of the people of the several States in
opposition to their "legislative sanction only."   Not one
word was ever said during the whole of the debate about
referring- the Constitution to the people of the whole
country in the aggregate for ratification. This idea had
not then risen above the horizon of the political world,
though it afterwards became the great political sun of
the Northern section of the Union.
Those who advocated the mode of ratification by the
people, or by the Conventions of the States elected for that
purpose, prevailed over those who urged the ratification
by the legislatures. The majority favored the mode of
ratification by the people or the Conventions. Accord ingly, when the committee of detail reported a draft of
*" Madison Papers," p. 1177.
tIbid, p. 796.
71 
IS DAVIS A TRAITOR?
the Constitution, we find these words-" Article XXI.
The ratifications of the Conventions of        States shall
be sufficient for the organization of this Constitution."*
Thus it came to be perfectly understood that it should be
ratified by the Conventions or the peoples of the several
States, and not by their legislatures.
But here the question arose, if the blank for the number
of States should be filled with "seven," " eight," or "nine."
The Constitution, as it stood, might, in the opinion of Mr.
Madison, be put in force over "the whole body of the people, though less than a majority of them should ratify it.",
But, in the opinion of Mr. Wilson, "As the Constitution
stands, the States only which ratify can be bound." t In
order to remove this difficulty, and settle the question,
Mr. King moved to add, at the end of Article XXI, the
words "between the said States, so as to confine the operation of the government to the States ratifying the same."I
Thus it was Rufus King, at first one of the most strenuous
advocates in the Convention of 1787 for a strong national
government, who introduced the words by which the Constitution was made binding "between the States so ratifying the same." These words proved acceptable to Madison and Wilson, though both were among the most zealous advocates of a strong general government in the Convention of 1787, and they became a part of the new Constitution.   Thus it was universally understood by the
Convention, and so expressed, that the new Constitution
was to be established "by the ratification of the Conventions of      States," and to be binding only "between
the States so ratifying the same."
During all this time the name of each State still retained
its place in the preamble to the Constitution, in which the
committee of detail made no change; and if the party,
with Gerry and Hamilton at their head, who wished to fill
* Madison Papers, p. 1241.  t Ibid, p. -1469.  $ Ibid, p. 1470.
72 
IS DAVIS A TRAITOR?
the blank with the whole thirteen States, had prevailed, we
have no reason to believe that any alteration would in this
respect have been made in the preamble to the Constitution.
But when, after debate, the blank was filled with "nine," it
became impossible to specify the States between whom the
new Constitution might be established or the new government organized. Hence it became proper, if not necessary, to drop the specifiation of the States by name-a
change which, as we have seen, was first introduced by
the committee on style, and read to the Convention without raising the slightest objection or murmur.
We are now prepared to see, as in the clear light of
noon-day, why the words, "We, the people of the United
States," which have since made so much noise in the
political world, did not make ary whatever in the Convention of 1787. Why should George Mason, or any other
adherent of State sovereignty, object to the words introduced by the committee on style?  They merely expressed
the very thing for which he had contended, and which had
been fully expressed in the seventh Article of the new
Constitution.  For when it was determined that the Constitution should be ratified by "the Conventions of the
States," and not by the legislatures, this was exactly
equivalent, in the uniform language of the Convention of
1787, to saying that it shall be ratified by "the people of
the States."  Hence. the most al dent friend of State rights,
or State sovereignty, saw no reason why he should object
to the words,  "We, the people of the United States,"
because he knew they were only intended to express the
mode of ratification by the States for which he had contended-that is, by the States in; their sovereign capacity,
as so many politicdal societies or peoples, as distinguished
from their legislatures.
5
73 
CHIAPTER XLI.
The Cbonstitution of 1787 a Compact between the States. The views of Hamilton,
Madison, aMorris, and other Framers of the Constitution.
THIS subject has already been anticipated, but by no
means exhausted. Considering the unparalleled boldness
of Northern assertion, it is necessary to lay bare a few
more of its hidden mysteries. "'Indeed," says Mr. Webster, "if we look into all contemporary history; to the
numbers of The Federalist; to the debates in the Convention; to the publication of friends and foes, they all agree,
that a change had been made from a confederacy of States
to a different system; they all agree, that the Convention
had formed a Constitution for a national government.
With this result some were satisfied, and some were dissatisfied; but all admitted that the thing had been done. In
none of the various productions and publications, did any
one intimate that the new Constitution was but another
compact between States in their sovereign capacity. I do
not find such an opinion advanced in a single instance."*
Now this is certainly as bold and sweeping an assertion
as could well be made in human language. It is certainly
as full, round, and complete an untruth as was ever
uttered.  It will, upon examination, be found that, to use
the mildest possible terms, it is fitly characterized by the
two words- high-sounding and hollow. It would, perhaps,
be difficult for any man, except Mr. Webster and his successor in the Senate of the United States, to produce a
* Speech in Senate, Feb. 16, 1833. 
IS DAVIS A TRAITOR?
bold and sweeping an assertion, which, like the above, is
at every point diametrically opposed to the truth. I shall
proceed to prove, and to establish beyond the shadow of a
doubt, this heavy accusation against "the great expounder,"
by extracts from the records and publications to which he
so solemnly, and yet so unscrupulously, appeals.
I shall begin with the Convention that formed the Constitution itself. It will not be necessary to reproduce the
language of Gouverneur Morris, one of the most celebrated
men of that Convention, and one of the warmest advocates of a strong national government.  We have already
seen,* that he pronounced the Constitution "a compact
........... between. the United States, each enjoying sovereign power."  Indeed, in the Convention of 1787, he
expressly declared, that the object was to form a "compact with other States;" and he afterwards declared, that
"the thing had been done." Again, James Madison himself,
"'the father of the Constitution," and the most laborious
member of the Convention of 1787, called it, as we have
seen, "a pact" between the States in that Convention;t
and from that day to the end of his life, Mr. Madison continued to pronounce the new Constitution "a compact to
which the States are the parties." In the Virginia ratifying
Convention of 1788, in "the numbers of the Federalist," in
the Virginia Resolutions of'98 and'99, in the Virginia
Report of 1800, in his celebrated letter to Mr. Everett of
1830; in one and all of these well-known public documents, as well as in others from his pen, this illustrious
architect of the Constitution most emphatically pronounced it "a compact to which the States are the par ties."  In the Virginia Resolutions, a political formula
which the American people, of all parties and all sections, had sworn by for more than thirty years, Mr.
Madison wrote for the legislature of his State: " This
Assembly doth explicitly and peremptorily declare, that
* Chapter v.
75 
IS DAVIS A TRAITOR?
it views the powers of the Federal Government, as resulting
from the compact, to which the States are parties." How
completely, then, was the very existence of Mr. Madison, and of all the great transactions in which he had
borne so conspicuous a part, ignored by Mr. Webster in
the bold and astounding assertion, that neither friend nor
foe had ever considered the new Constitution as a "compact
between the States." The venerable old man must, indeed,
have felt, as he read the speech of Mr. Webster, that he
was fast sinking into oblivion, and that all the great transactions of his life were fast being forgotten amid the blaze
of new ideas.
Accordingly, in a letter to Mr. Webster, called forth by
the very speech in question, Mr. Madison once more raised
his voice in favor of the one invariable doctrine of his life.
"It is fortunate," says he, "in the letter referred to, "when
disputed theories can be decided by undisputed facts; and
here the undisputed fact is, "that the Constitution was made
by the people, but as embodied into the several States, "who were
parties to it."  Again, in the same letter, he says:  "The
Constitution of the United States, being established by a
competent authority, by that of the sovereign people of the
several States, who were parties to it." Most fortunate is it,
indeed, when disputed theories may be tested by undisputed facts; but how infinitely unfortunate is it, when
new and disputed theories begin to pass for everything,
and indisputable facts for nothing! Nay, when those who
cling to hitherto undisputed facts are accounted traitors,
and visited with a merciless and a measureless vengeance,
by those who, having nothing better than disputed theories to stand on, are nevertheless backed by the possession
of brute force sufficient to crush their opponents, and
silence the voice of truth!
All agree, says Mr. Webster, "The Federalist," "the
debates in the Conventions," "the publications of friends
and foes "-all agree, " that a change had been made from a
76 
IS DAVIS A TRAITOR?
confederacy of States to a different system." Now, there is
James Wilson, inferior only to Madison and Hamilton in
the influence he exerted in favor of the new Constitution,
who declares, that the only object aimed at by the Con  vention of'87, was to enable the States "to confederate
anew on better principles;"  and if no more could be
effected, he would agree to "a partial union of the States,
with a door left open for the accession of the rest."
Accordingly, it was finally agreed by the Convention, that
nine States might form the new Union, with a door left
j open for the accession of the other four.  In fact, eleven
States confederated on the new principles; and it was more
than a year before the remaining two States acceded to
the compact of the Constitution, and became members of
the Union.
Even Alexander Hlamilton, in that great authority, The
Federalist, to which Mr. Webster so confidently appeals,
is directly and flatly opposed to the bold and unscrupulous
assertion of "the great expounder." If the new Consti  tution should be adopted, says he, the Union would "still
be, in fact and in theory, an association of States, or a
confederacy." * Again, in the eightieth number of the
work, Hamilton calls the new Union "the CONFEDERACY;"
putting the word in capital letters, in order that it may
not be overlooked by the most superficial reader. If neces  sary, it might be showi by various other extracts, that
Alexander Hamilton, while insisting on the adoption of
the new Constitution in The Federalist, speaks of the
new Union as a confederacy of States. Hlow, then, could
Mr. Webster avouch The Federalist to support the asser  tion, that "a change had been made from a confederacy
to a different system"?  Was this in his character of "the
great expounder," or of the great deceiver?
This appeal to the Federalist appears, if possible, still
more wonderful, when viewed in connexion with other
* Federalist, No. ix.
77 
IS DAVIS A TRAITOR?
numbers of the same work. Indeed, it was objected to
the new Constitution by its enemies, that "it would make
a change from a confederacy to a different system;" and
this very objection is met and-repelled in the pages of the
Federalist.  "Will it be said," demands the Federalist,
"that the fundamental principles of the confederation were
not within the purview of the Convention, and ought not
to have been varied? I ask, what are these principles?
Do they require, that in the establishment of the Constitution, the States should be regarded as distinct and independent sovereigns? They are so regarded by the Constitution proposed."* Now hei're the position of Mr. Webster, that the new Union was not a confederacy of States,
that it was not made by the States "as distinct and independent sovereigns," but was ordained by "the people of
the United States in the aggregate" as one nation; is
directly and emphatically negatived by the very authority
to which he appeals in support of his monstrous heresy.
Nor is this all. In the preceding number of the Federalist, it is said, "Each State, in ratifying the Constitution,
is considered as a sovereign body, independent of all
others, and only to be bound by its own voluntary act."
Thus, according to the Federalist, the Constitution was
ratified by "each State, as a sovereign body, independent
of all others." No such thing, says Mr. Webster, it was
not ratified by the States at all, it was ordained by a power
superior to the States, by the sovereign will of the whole
people of the United States; and yet he boldly and
unblushingly appeals to the Federalist in support of his
assertion! Why did he not quote the Federalist? Nay,
why did he not read the Federalist, before he ventured on
such a position?
Mr. Webster has, indeed, quoted one expression from
the.Federalist.  "The fabric of American empire," says
Hamilton, in the twenty-second number of the.Federalist,
*No. XL.
78 
IS DAVIS A TRAITOR?
"ought to rest on the solid basis of THE CONSENT OF THlE
PEOPLE."  After quoting these words, Mr. Webster adds,
with his usual confidence, "Such is the language, sir,
addressed to the people, while they yet had the Constitu tion under consideration.  The powers conferred on the
new government wvere perfectly well understood to be
conferred, not by any State, or the people of any State,
but by the people of the United States."  Now, if Mr.
Webster had only paid more attention to the debates of
the Convention of 1787, he might have escaped this egre gious blunder, this gross perversion of the words of Alex/ ander Hamilton. Nay, if he had only considered the
three sentences which immediately precede the extract
made by him, he would have seen that Hamilton was
speaking to a very different question from that which had
so fully engrossed and occupied his mind. He would have
seen, that the language related, not to She question whether
the Constitution ought to be ratified by the people of the
States, or by the people of America as one nation; but to
the question, whether it ought to be ratified by the Legis latures, or by the people, of the several States. This was
the question of the Convention of'87; and this was the
question to which its ablest member was speaking, when
he said "the fabric of American empire ought to rest on
the solid basis of THE CONSENT OF THIE PEOPLE." Read the
context, and this will be perfectly plain. "It has not a
little contributed," says the context, "to the infirmities of
the existing federal system, that it never had a ratification
of the PEOPLE.  Resting on no better foundation than the
consent of the several Legislatures, it has been exposed to
frequent and intricate questions concerning the validity
of its powers; and has, in some instances, given rise to the
enormous doctrine of legislative repeal." Such is the con  text of AIr. Webster's very partial and one-sided extract.
It shows that Hamilton was arguing the advantage of the
new system over the old, just as it had been argued in the
'79 
IS DAVIS A TRAITOR?
Convention of 1787; because the old confederation rested
on the consent of the Legislatures of the several States,
whereas the new confederacy was to rest on the consent
of the people of the several States. Hence it would be
free from all doubts with respect to the power of "legislative repeal."
Alexander Hamilton certainly knew that the Constitution was merely a proposal, or plan of government, and
would so remain until it should be ratified by "the Conventions of nine States;" and that then it would be binding only "between the States so ratifying the same." For
these are the words of the Constitution itself, as well as
of his own formula of ratification in the Convention of
1787. These nine States or more, thus leagued together
by a solemn compact entered into by the people of the
several States in their highest sovereign capacity, is "the
solid basis" to which he refers; and which, like so many
massive columns, were to bear up "the fabric of American
empire." The consent of the whole people indeed! The
majority of the whole voting population of the United
States; which may be one thing to-day and another tomorrow, and which is bound by nothing but its own sovereign will and pleasure! Surely, nothing could be less
solid or stable, or less fit to support "the fabrio of American empire." Such a system were, indeed, more like Aristophines' City of the Birds;, floating in mid air, and tossed
by the winds, than like the scheme of a rational being for
the government of men. No conception could be more
utterly inconsistent with all the well-known sentiments of
Alexander Hamilton.
But if, instead of perverting the high authority of the
Federalist by wresting one particular passage from its
context, Mr. Webster had only read a little further, he
would have discovered what was then "perfectly well
understood" respecting the nature of the Constitution.
He would have discovered, that it was, according to the
I
80 
IS DAVIS A TRAITOR?
Federalist, established, not by "the people of the United
States in the aggregate," or as one nation, but by each of
the States acting for itself alone.  "The Constitution is to
be founded," says the Federalist,* "on the assent and rati fication of the people of America, given by deputies elec ted for the special purpose." This, too, is the!anguage
"addressed to the people, while they yet had the Consti tution under consideration." Why, then, is not this lan guage seized upon, and held up as proof positive, that the
Constitution rested on the assent, "not of any State, or
i the people of any State," but on that of "the people of
'America"? The reason is plain. Though these words,
taken by themselves, would have answered Mr. Webster's
purpose better than his extract from the Federalist; yet
are they immediately followed, in the same sentence, by
an explanation, which shows their meaning when used in
the Federalist. "The Constitution is to be founded," says
that highest of all authorities "on the assent and ratifica tion of the people of America, given by deputies elected
for the special purpose; but, it is added, "this assent and
ratification is to be given by the people, not as individuals
comprising one entire nation, but as composing the district and
independent States to which they respectively belong.   It is to
be the assent and ratification of the several States, derived from
the supreme authority in each State-the authority of the peo ple themselves. The act, therefore, establishing the Consti tution will not be a national, but a federal act."t Not so,
says Mr. Webster, the Constitution was established not by
,afederal, but by a national act; not by any State, or the
people of any State, but by the whole people of the United
States as one sovereign body; and yet he appeals to the
Federalist in support of his doctrine!
"That it will be a federal, and not a national act," con tinues the Federalist, "as these terms are understood by
objectors, the act of the people, as forming so many inde   * No. XXXIX.tIbd
* No. XXXIX.
5*
81 
IS DAVIS A TRAITOR?
pendent states, not as forming one aggregate nation, is
obvious from this single consideration, that it is to result
neither from the decision of a majority of the people of
the Union, nor from that of a majority of the states. It
must result from the unanimous assent of the several States
that are parties to it, differing no otherwise from their
ordinary assent than in its being expressed, not by the
legislative authority, but by that of the people themselves.
Were the people regarded in this transaction as forming
one nation, the will of the majority of the whole people
of the United States would bind the minority; in the
same manner as the majority in eachl State must bind the
minority; and the will of the majority must be determined
either by a comparison of the individual votes, or by considering the will of the majority of the States, as evidences of the will of a majority of the people of the
United States. Neither of these has been adopted. Each
State, in ratifying the Constitution, is considered as a
sovereign body, independent of all others, and only to be
bound by its own voluntary act." Could language be
more perfectly explicit? Yet, directly in the face of all
this, or else in profound ignorance of all this, Mr. Webster appeals to the authority of the Federalist in favor of
the very position which, as we have seen, it so pointedly
condemns. Nay, in spite of the clear, explicit, and unanswerable words of the Federalist, Mr. Webster appeals to
that work to show, as a fact then "perfectly well understood," that the powers of the new government were to
be conferred, or its Constitution established, not by the
States, nor by the people of the States, considered as sovereign bodies, and each acting for itself, but by the whole
people of the United States as one sovereign body or
nation! To show, in one word, that the Union was
formed, not by an accession of the States, but by the one
people of the United States acting as a unit! "The
great expounder" does not follow, hle flatly contradicts,
82 
IS DAVIS A TRAITOR?
the very work he appeals to as the highest of authorities;
and that, too, in regard to the greatest of all the political
questions that have agitated the people of America!
There were those, it is true, who regarded the new Con  stitution as the fundamental, or organic law, of one great
consolidated government. But these were its enemies.
They represented it as such because they wished it to be
rejected, and because they knew no other objection would
render it so obnoxious to the people of the States.   It is
well known, indeed, that the greatest difficulty in the way
of the new Union was the jealousy of the central power,
which the several States had long entertained.  This jeal  ousy was so great in the States of New York and of Vir  ginia, that when their Conventions met to ratify or to
reject the Constitution, it is well understood, and admit  ted, that they were both opposed to the new grant of
powers. The State-Rights men in both Conventions, who,
at first, were in favor of rejecting the Constitution, were
in a majority, as is well known, and fully conceded.   It
was only by the herculean labors of Alexander Hamilton,
that the Convention of New York were, at least, induced
to ratify it by a majority of three votes. In like man  ner, the labors, the management, and the eloquence of
MJr. Madison, succeeded, finally, after a long and desperate
struggle, in carrying it in the Convention of Virginia by
the small majority of ten votes. The result was long
doubtful in both Conventions.
Patrick Henry, in the ratifying Convention of Virginia,
/ put forth all his powers to cause the new Constitution to
be rejected. His appeals to the jealousy of the States with
respect to the power of the Central Government were tre  mendous. Hle dwelt, particularly, on the words of the
preamble, "We, the people of the United States," to show
that his most fatal objection to the new Constitution was
well founded; and he added, "States are the characteristic
and soul of a confederacy. If the States be not the agents
4*
83 
IS DAVIS A TRAITOR?
of this compact, it must be one great consolidated government of the people of the United States." He insisted
that it would be so. But Patrick Henry, it should be
remembered, was not a member of the Convention of 1787,
and he was an enemy of the new Constitution. His mind
was fertile and overflowing with objections. If he had
known the history of the words, "We, the people of the
United States," as it appears in the debates of the Convention, which had not'then been published, he would
have seen, that "We, the people," really meant "We, the
States; or We, the Convention, acting in the name and
by the authority of the sovereign people of the several
States. * Or, if he had compared the words in question
with the seventh Article of the Constitution, he would
have seen, that the new Constitution was to be established
by the States, and was to be binding only "between the
States so ratifying the same." But as the enemy, and not
the advocate, of the new Constitution, he labored to enforce
his objection to it, rather than to consider and weigh its
words, or explain its real meaning to the Convention.
His objection would, no doubt, have proved fatal to the
new Constitution, but for the presence and the power of
James Madison: who met the great objection of Patrick
Henry, and silenced much of the apprehension which his
eloquence had created. He was known to have been the
most diligent and active member of the Convention that
formed the Constitution; and was supposed, therefore, to
understand its real import better than any man in the
ratifying Convention of Virginia.  His position, and his
means of imformation, certainly gave him a great advantage over his eloquent rival, Patrick Henry. In his reply
to MIr. Henry, he explained the words "We, the people,"
precisely as he had before -explained them in the The Federalist. He said: "The parties to it were the people, but
not the people as composing one great society, but the
*See chap. x.
84" 
IS DAVIS A TRAITOR?
people as composing thirteen sovereignties." Again: "If
it were a consolidated governthent," said he, "the assent of
a majority of the people would be sufficient to establish
it. But it was to be binding on the people of a State only
by their own separate consent." This argument, founded on
a well-known fact, was absolutely unanswerable.
Yet Mr. Justice Story has, two or three times, quoted
the words of Patrick Henry in the Virginia Convention,
as if they were a most valuable authority, without a single
solitary word in relation to the unanswerable reply of Mr.
Madison! On this point he is profoundly silent!  That is
to say, he construes the Constitution, not as it was understood by its framers and its friends, but as it was misrepresented by its enemies, in order to cause its rejection!
Hie holds up the words of the one, as a great authority,
and he does not let the reader of his most learned Commentaries know the language of the other in reply!  Was
that honest?
Nor is this all. Hie construes the preamble to the Constitution, so as to make it eontradict itself. "We, the
people of the United States, in order to form a more perfect Union."  A  Union of what-of individuals, or of
States? Does not every man under the sun know, this
means a Union of States, and not of individuals? Or why
speak of the United States at all? Or why, in the same
preamble, say "this Constitution for the United States of
America?"
I object to the Massachusetts interpretation of the first
clause of the preamble to the Constitution. 1. Because
it falsifies the facts of history respecting the mode of its
ratification, which was by the several States in Convention
assembled, each acting for itself alone, " as a sovereign
body, independent of all others, and to be bound only by
its own voluntary act," and not by the people of America
as one nation. 2. Because it makes these words, " We,
the people," contradict the seventh Article of the Consti
(I
85
I
I 
IS DAVIS A TRAITOR?
tution; an Article which, historically considered, has precisely the same origin and the same sense with those words
themselves. 3. Because it attaches to these words a different sense from that attached to them by the Convention
of 1787, as seen in the debates which gave rise to them.
4. Because it contradicts the sense given to these words by
Gouverneur Morris, by James Madison, and by other framers of the Constitution of the United States.  5. Because,
not satisfied with making this clause contradict everything
else, it makes it contradict itself, or at least the very next
clause in the same sentence with itself.
But there is another thing which Mr. Webster could
not find in "all contemporary history," nor  in  "the
numbers of The Federalist," nor in "the publications of
friends or foes."  In none of these various productions
or publications did any one intimate that the new Constitution was but another compact between the States in their
sovereign capacity. I do not find such an opinion advanced
in a single instance." Hience, after so careful, so conscientious, and so laborious a search, he feels perfectly justified in the assertion, that "the Constitution is not a
compact between sovereign States." This is, indeed, the
very title of his speech in 1833, and the great burden of
all his eloquence.   Yet, with no very great research, I
have found, and exhibited in the preceding pages, a multitude of instances in which "such an opinion is advanced."
Nor was it at all necessary to ransack "all contemporary
history" f~r this purpose.   The Federalist itself, the great
political classic of America, has already furnished several
such instances. It teaches us, as we have seen, that " each
State, in ratifying the Constitution, is considered as a
sovereign body, -independent of all others;* and also that,
in the establishment of the Constitution, the States are
"regarded as distinct and independent sovereigns."t
But this, it may be said, does not use the term compact.
*No. xxxix.    t xl.
86 
IS DAVIS A TRAITOR?
Very well. The same number of The Federalist, which
says that the Constitution was to be established by each
State, as a sovereign body, independent of all others,
calls that Constitution " THE COMPACT." Thus, according
to The Federalist, the Constitution, THE COMPACT, was
established by "distinct and independent sovereigns."
But numbers  XXXIX  and XL were written by Mr.
Madison. Every one knows, that he always regarded the
Constitution as a compact between "distinct and independent sovereigns." That is, every one at all acquainted with
the political history of the United States, except Mr. Justice Story and Mir. Webster during the great struggle of
1833. It must be conceded, then, in spite of the sweeping
assertion of Mr. Webster, that Madison held the Constitution to be "a compact between the States in their sovereign capacity," and that, too, in the pages of the Federalist
as well as elsewhere. A rather conspicuous instance to be
overlooked by one, whose search had been so very careful
and so very conscientious!  Nor does this instance stand
alone. Alexander Hamilton is the great writer of the
Federalist. Out of its existing eighty-five numbers, no
less than fifty proceeded from his pen; five from the pen
of Jay, and thirty from that of Madison; and, in the opinion of the North, the numbers of Ihiamilton surpass those
of Madison far more in quality than in quantity. In the
estimation of the North, indeed, Hamilton is the one sublime architect of the Constitution, to whom it owes "every
element of its durability and beauty." What, then, does
Hamilton say about the nature of the Constitution?  Does
he call it a compact between States, or does he allege that
it was ordained by the people of the United States as one
sovereign nation? I do not wish to shock any one. I
am aware, it will be regarded, by many of the followers
of Story, as akin to sacrilege to charge Alexander Hiamilton with having entertained the treasonable opinion, that
the Constitution was a compact between the States. But
87
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as we have, at the South, no grand manufactory of opinions to supply "all contemporary history," so we must
take the sentiments of Alexander Hamilton just as we
find them, not in the traditions of the North, but in his
own published productions. The simple truth is, then,
that he calls the provisions of the Constitution of 1787,
"The compacts which are to embrace thirteen distinct
States, in a common bond of amity and Union;" and adds,
these compacts must "necessarily be compromises of as
many dissimilar interests and inclinations."* Thus, according to Hamilton, the "thirteen distinct States" made compromises with each other, and adopted them as "the compacts" of the new Union!
Nor is this all. On the following page, he says: "The
moment an alteration is made in the present plan, it
becomes, to the purpose of adoption, a new one, and must
undergo a new decision of each State."t Indeed, even Hamilton, the great consolidationist of his day, never dreamed
of any other mode of adopting the new Constitution, than
by "a decision of each State." Hence he continues, "To
its complete establishment throughout the Union, it will
therefore require the concurrence of thirteen States."
Again, he says, "Every Constitution for the United States
must inevitably consist of a great variety of particulars,
in which thirteen INDEPENDENT STATES are to be accommodated ill their interests or opinions of interest.".......
"Hence the necessity of'moulding and arranging all the
particulars which are to compose the whole, in such a
manner, as to satisfy all the parties to THE COMPACT." That
is, in such a manner as to satisfy the thirteen INDEPENDENT STATES., who are "THE PARTIES TO THE COMPACT."~
Well may the great usurpers of the North exclaim, "Et tu
Brute!
The whole Federalist is in perfect harmony with this
key note of the system it recommended to the people
*Federalist, No. LXXXV.     tIbid.:Ibid.    {Ibid.
88 
IS DAVIS A TRAITOR.?
By Hamilton, the States are called "the M3EMBERs of the
Union;"* the units of which it is composed, and not the
fractions into which it is divided. Again, he speaks of
"the Union, and of its members,"t by which, as appears
from the context, he evidently means the States. In like
manner, Mr. Madison speaks of the new Union as' "Confederated States."I Again, he says, "Instead of reporting a plan requiring the confirmation of all the States, they
reported a plan, which is to be confirmed, and may be
carried into effect, by nine States only."~ Indeed, similar
testimonies to the fact, that the States entered into the
compact of the Constitution, are spread over the pages
of the Federalist, as well as over "all contemporary history."
I might easily produce a hundred other proofs of the same
fact from "the Federalist," from "the publications of friends
and foes," from "the debates of the Convention," without
the aid of "all- contemporary history." But I am sick of
dealing with such unbounded and disgusting license of assertion.
The truth is, that Mr. Webster was a mere theorist, nay,
a mere party sophist. Hie took an oath to support, but
not to study, the Constitution. Hence, instead of a close,
partial, and honest study of the political history of the
country and of the Constitution; he merely looked into
the great original fountains of information to furnish him self out with the weapons and the armor of a party cham pion, or prize fighter. If he ever read any of the docu ments to which he so confidently appeals, he must have
read them with a veil over his eyes; or else, in the heat of
debate, he must have forgotten all his first lessons in the
political history of his country. From his own generation,
he won the proud title of "the great expounder;" yet, after
his appeal to posterity shall have been decided, he will be
pronounced "the great deceiver."
*No. xlii.    tNo. ix.     tNo. xxxvi.     ~No. xl.
89 
CB"APTER  XII.
The Convention of 1787 describes the Contitution formed by them as a compact
between the States.
THE Convention of 1787, in their letter describing the
formation of the new Constitution, use precisely the political formula employed by Sidney, Locke, and other celebrated authors, to define a social compact. Hiobbes was
the first to reduce this theory to a scientific form; and it
is no where more accurately defined than by himself.
"Each citizen," says he, "compacting with his fellow, says
thus: I convey my right on this party, upon condition that
you pass yours to the same; by which means, that right
which every man had before to use his faculties to his
own advantage, is now wholly translated on some certain
man or council for the common benefit." *  Precisely the
same idea is conveyed by the formula of 1787: "individuals entering into society must give up a share of liberty
to preserve the rest; and the great difficulty is, as to
what rights should be delegated to the governing agents
for the common benefit, and what right should be retained
by the individual. This is the social compact as defined
by Hobbes himself; and although it was an imaginary
transaction in regard to the governments of the OldWorld, it became a reality in relation to the solemnly
enacted Constitutions of America.
But, in the letter of the Convention of 1787, it comes
before us ill a new relation.   In Hobbes, "each citizen
* Hobbes' Works, vol. ii., p. 91. 
IS DAVIS A TRAITOR?
compacts with his fellow," as in the formation of our
State Constitutions; whereas, in the letter before us, each
State compacts with her sister States. "It is obviously
impracticable," says the Convention,* "in the Federal
Government of these States to secure all rights of independent sovereignty to each, and yet provide for the
honor and safety of all. Individuals entering into society
must give up a share of liberty to preserve the rest.".....
"It is at all times difficult to draw with precision the line
between those rights which must be surrendered, and
those which may be reserved; and on the present occasion this difficulty was increased by a difference among
the several States [the parties about to enter into a new
Union] as to their situation, extent, habits, and particular
interests."
Yet, in the face of all this, the whole school of MIassachusetts politicians, with Story and Webster at their head,
assert, that the Federal Government is a union, not of States,
but only of individual citizens! Who, before or beside
these gross perverters of the most palpable truth, ever
applied the term  "Union" to a government of individuals? Who ever heard of the Union of Massachusetts, or
of New York, or of Virginia? The truth is, that this
word is only applicable to a confederation of States; and
hence, even Alexander Hiamilton, after he had failed to
establish a consolidated national government, familiarly
called the new Union "a CONFEDERACY."T  It was reserved
for a later day, and for a bolder period in the progress of
triumphant error, to scout this as an unconstitutional idea;
and to declare, by way of proof, that "there is no language
in the Constitution applicable to a confederation of
States." I  Is not the term " Union," applicable to a con federationl of States, or is it only applicable to a social
combination of individuals? Does not the Constitution
*See their Letter.             t Federalist, No. lxxx.
I Webster's works, Vol. iii., page 470.  Great speech of 1833.
91
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IS DAVIS A TRAITOR?
speak of "the United States,"  or the States unitedr
Nay, does it not expressly declare, that it shall be binding
"between the States so ratifying the same?"  Or, if the
Constitution itself has been silent, does not the letter of
1787, which was struck in the same mint with that solemn
compact, declare that each State, on entering into the new
Union, give up a share of its  "rights of independent
sovereignty," in order to secure the rest?
I shall now take leave of the proposition, that the Constitution was a compact between the States of the Union; a
proposition far too plain for argument, if the clearest facts
of history had only been permitted to speak for themselves.  "I remember," says Mr. Webster, "to have heard
Chief Justice Marshall ask counsel, who was insisting
upon the authority of an act of legislation, if he thought
an act of legislation could create or destroy a fact, or change
the truth of history?"  "Would it alter the fact," said he,
"if a legislature should solemnly enact, that Mr. Hiume
never wrote the HIistory of England? "* "A legislature
may alter the law," continues Mr. Webster, "but no
power can reverse a fact."t Hence, if the Convention of
1787 had expressly declared, that the Constitution was
ordained by "the people of the United States in the aggregate," or by the people of America as one nation, this
would not have destroyed the fact, that it was ratified by
each State for itself, and that each State was bound only
by  "its own voluntary act."  If the Convention had
been lost to all decency, it might indeed have stamped
such a falsehood on the face of the Constitution; but this
would not have "changed the truth of history."
Story and Webster lay great stress, as we have seen,t
on the fact, that the first resolution passed by the Convention of'87 declared, that a National Government ought to
be established." But, by a gross suppressio veri, they conceal the fact, that this resolution was afterward taken up,
*Works, Vol. ii, page 334.       tChap. iv.
92 
IS DAVIS A TRAITOR.?
and the term national deliberately dropped by the unanimous decision of the Convention. They also conceal the
fact, that after the Constitution was actually formed, the
Convention called the work of their hands, not "a National
Government," but "THE FEDERAL GOVERNMENT OF THESE
STATES." This name was given, not before, but after, the
Convention was full; not before the first article of the
Constitution was adopted, but after the whole instrument
had been completely finished; and it was given, too, by
"the unanimous order of the Convention."* Yet, in contempt of all this, Story and Webster say, that the Convention made, not a "Federal Government of States," but
"a National Government" for the one people of America,
and they prove this, by the exploded resolution passed by
them! That is, they still insist on the name expressly
rejected by the Convention, as if it had received the sanction of their high authority; and that, too, in direct opposition to the name actually given by them! Could any
style of reasoning, if reasoning it may be called, be more
utterly contemptible?
*See their Letter to Congress.
93
i.
I
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I 
CHAPTER XIII.
Mr. Webster vers8us Mr. Webster.
IN the preceding chapter, Mr. Webster has been con
fronted with reason and authority; showing that "the
greatest intellectual effort of his life" is merely a thins
of words. In this, he shall be confronted with himself
for, in truth, he is at war with himself, as well as with
all the great founders of the Constitution of the United
States. He is, in fact, too much for himself; and thc
great speech which, in 1833, he reared with so much pain.and consummate skill as a rhetorician, he has literally torn
to tatters.
"If the States be parties" [to the Constitution], askr
Mr. Webster, in that speech, with an air of great confi
deuce, "where are their covenants and stipulations.
And where are their rights, covenants, and stipulations
expressed?  The States engage for nothing, they promise
nothing."   On reading'this passage, one is naturally
inclined to ask, did Mr. Webster never hear of "the grand
compromises of the Constitution" about which so much
has been written? But what is a compromise, if it is not
a mutual agreement, founded on the mutual concessions
of the parties to some conflict of opinions or interests?
Does not the very term compromise mean mutual promises
or pledges? Look at the large and small States in the
Convention of 1787. We see, in that memorable struggle for power, the large States insisting on a large or proportionate representation of themselves in both branches 
IS DAVIS A TRAITOR?
of the federal legislature; and we see the small States,
with equal pertinacity, clinging to the idea of an equal
representation in both.   The struggle is fierce and obsti nate. The Convention is on the point of dissolution, and
its hopes are almost extinguished.   But, a compromise is
suggested, considered, argued, and finally adopted; accord ing to which there is to be a proportionate representation
of each State in one branch of the federal legislature, and
an equal representation in the other. These are the terms,
"the covenants," "the stipulations," on which the two
classes of States agree to unite; these are their mutual
promises.
The same thing is true in regard to all the other "grand
compromises of the Constitution." It seems, indeed, that
Mr. Webster could not well speak of these compromises,
without using some such word as terms, or covenants, or
promises, or stipulations. Accordingly, if we turn to the
general index- to his works, in order to see how he would
speak of the compromises of the Constitution; we shall
be led to make a very curious discovery, and one which
is intimately connected with an interesting passage of his
political life. It will conduct us to a scene, in which "the
beautiful vase," then "well known throughout the coun  try as the WEBSTER VASE," was presented to that cele brated statesman. Several thousand persons "had assem bled at the Odeon, in Boston," in order to witness the
presentation of that costly memorial, and to hear the
reply of the great orator. "The vase," we are told "was
/ placed on a pedestal covered with the American flag, and
contained on its side the following inscription:
PRESENTED TO
DANIEL WEBSTER,
The Defender of the Constitution,
BY THE CITIZENS OF BOSTON.
OCTOBER  12, 1835."
lNow  this beautiful vase, so rich in its material and so
jy
95 
IS DAVIS A TRAITOR?
exquisite in its workmanship, was presented to Mr. Webster in honor of his great speech of 1833; in which he
demonstrated to the entire satisfaction of the New England universe, that it is absurd to call the Constitution "a
compact," or to speak of its "stipulations." Now I shall
produce one extract from this speech at the Odeon, not
only on account of the striking contrast it presents to the
doctrine of the speech of 1833, whose glories thousands
were there assembled to celebrate, but also on account of
the simple, solid, and important truth it contains. "The
Constitution," says Mr. Webster, in that speech, "is
founded on compromises, and the most perfect and absolute
good faith, IN REGARD TO EVERY STIPULATION OF THIS
KIND CONTAINED IN IT IS INDISPENSABLE TO ITS PRESERVATION.  Every attempt to accomplish even the best purpose,
every attempt to grasp that which is regarded as an
immediate good, in violation of these STIPULATIONS, IS FULL
OF DANGER TO THE WHOLE CONSTITUTION."* Such glaring
inconsistencies, and there are many of them in the writings of the great orator, will be flaws and cracks in the
vase of his reputation as long as his name is known.
Nor is this the only instance in which Mr. Webster has
spoken of the stipulations of the Constitution. "All the
stipulations," says he, "contained in the Constitution in
favor of the slave States ought to be fulfilled."t Here, then,
are stipulations in favor Qf States, and made by States.
"Slavery," says he, "as it exists in the States, is beyond
the reach of Congress. It is a concern of the States themselves; they have never submitted it to Congress, and Congress
has no rightful power over it."I Nor has the Federal Government the rightful power  over anything in relation to
the States; unless this power was granted by the States,
and so became one of the stipulations in the new "Articles of Union," as the Constitution is called throughout
the debates in the Convention of 1787.~
*Works, vol. 1, p. 331.       tWorks, vol. v. p. 347.:Ibid.
~Madison papers, p p. 732, 734, 761, 861, 1118,1221, 1225.
96 
IS DAVIS A TRAITOR?
The power of the Federal Government over commerce
has been very justly called "the corner stone of the whole
system." The Constitution originated, as we have seen,
in the desire to establish a uniform and permanent system
of commercial regulations, by which the hostile legislation
of Europe might be resisted, and the havoc of the international legislation of the States repaired. Whence did this
great power, or rather this great system of powers, emanate?  "The States," says Mr. Webster, "delagated their
whole authority over imports to the general government."*  In
like manner, every other power of the vast superstructure
reared upon that corner stone, was delegated or conferred
on the Federal Government by the States in the "Articles
of Union."
Mr. Webster and Mr. Justice Story say the Constitution
speaks the language of authority to the States, saying you
shall do this, or you shall not do that, and eschews the
verbal forms of a compact. Very great stress is laid on
this point. The Constitution, say they, is not "a compact
between States," it is "the supreme law," as if the two
things were utterly incompatible. But it is a rather unfortunate circumstance for this argument, that precisely the
same language of authority is used in the old Articles of
Confederation, which is universally admitted to have been
a compact. "No State shall," is the style of the old Articles of Union,"t as well as of the new; in this respect,
they are perfectly parallel.
But here, again, we may appeal from Philip drunk to
Philip sober, from Webster intoxicated with the fumes of
a false theory of power to Webster under the influence of
a simple view of truth. After having read the terms on
which Texas was admitted into the Union, Mr. Webster
asks, "Now what is here stipulated, enacted, secured?" thus
*Works, vol. ii, p. 318. These words are quoted by Mr. Webster,
with his expressed approbation.
t See Articles V. and VI. 
6
97
I 
IS DAVIS A TRAITOR?
admitting that the stipulations were enactments, or that th.
contract was a law. Nor is this all. For, having specifie(
the stipulations in this case, he proceeds to say, " I know n(:
form of legislation which can strengthen this. I know nc
mode of recognition that can add a tittle to the weight of
it. I listened respectfully to the resolutions of my frien(
from Tennessee. Hie proposed to recognize that stipulatior
with Texas. But any additional recognition would weaken
the force of it; because it stands here on the ground of a con
tract, a thing done for a consideration. IT IS A LAW FOUNDED
ON A CONTRACT WITH TEXAS." There is, then, after all, no
incompatibility between a contract and a law! On the
contrary, the very highest form of legislation may be that
of a compact between sovereign States. It was thus, that
Texas came into the Union; and, in consideration of certain things promised to her, agreed to accept the Constitution of the United States as the supreme law of the land.
It was thus also, that the original thirteen States, in view
of certain advantages expected by them, and held out to
them, conferred various powers on the Federal Government to be exercised for the common good. Each State,
as it adopted the Constitution, virtually said to every
other, I will abstain from the exercise of certain powers,
and grant or delegate certain powers, according to all the
stipulations of this instrument, provided you will do the
same thing. I will neither coin money, nor emit bills of
credit, nor enact laws impairing the obligation of contracts,
nor do any other thing, which, in the view of the authors
of the Constitution, has proved so injurious to the best
interests of the country, provided you will abstain from
the exercise of the same powers. And I will, on the other
hand, consent that the General Government may regulate
commerce, levy taxes, borrow money on the common
credit, wage war, conclude peace, and do all acts and things
as stipulated in the new "Articles of Union," provided
you will delegate the same powers. Such was "the con
98
f 
IS DAVIS A TRAITOR?
tract, the thing done for a consideration." The great stipulation of all was, that the Constitution should be the
supreme law of the land; for that became the supreme
law only by the mutual agreement of the States. But
why argue a point so plain? Hiow any man can look the
Constitution in the face, or read its history, and then ask,
where are its stipulations? is more than I can conceive.
It does seem to me, that he might almost as well look into
the broad blaze of noon, and then ask, If the sun really
shines, where are its rays?
But if the Constitution is not a compact for the North,
it is at least held to be binding, as such, on the South.
The free States, said Mr. Webster in 1850, "complain
that, instead of slavery being regarded as an evil, as it
was then, it is now regarded by the South as an institution to be cherished, and preserved, and extended."*
"The North finds itself," he continues, "in regard to
the relative influence of the South and the North, of the
free States and the slave States, where it did not expect
to find itself, when they agreed to the compact of the
Constitution." t  THUS, AFTER ALL, THE STATES AGREED
TO THE COMPACT OF THE CONSTITUTION, MR. WEBSTER HIMSELF BEING THE JUDGE.
Again, in 1851, Mr. Webster says:    When the Constitution was framed, its framers, and the people who adopted it, came to a clear, express, unquestionable stipulation and compact." I In the same speech, he says: "These
States passed acts defeating the law of Congress, as far as
it was in their power to defeat it.  Those of them to
whom I refer, not all, but several, nullified the law of 1793.
They said, in effect,'we will not execute it. No runaway
slave shall be restored.' Thus the law became a dead
letter. But here was the Constitution and compact still
binding; here was the stipulation, as solemn as words
* Works, V1. V. P. 359.   tWebster's Works, Vol. V. p. 369.
Ibid. Vol. II.. 674.
99
k  
IS DAVIS A TRAITOR? -
could form it, and which every member of Congress, every
officer of the general government, every officer of the State
government, from governors down to constables, is sworn
to support." * Thus, in 1850 and 1851, it appears that Mr.
Webster had as completely forgotten "the greatest intellectual effort of his life," as in 1833 he had forgotten all
the great intellectual efforts of Mr. Madison's life. The
truth is, that Mr. Webster had became alarmed at the
condition of the country; because the North, which he
had taught to deny that the Constitution is a compact,
seemed resolved to reduce his theory to practice and give
all its stipulations to the winds, provided they only stood
in the way of their passions.  Many of his former friends
had, indeed, deserted and denounced him, because he
would not go all lengths with them in disregarding the
most solemn compact of the Constitution, which all had
sworn to support. Hence, he wished to retrace his steps;
but he could not lay the mighty spirit of insubordination
and rebellion which he had helped to arouse in the North.
He could only plead, expostulate, and denounce in return.
Accordingly, in the speech just quoted, he says: "It
has been said in the States of New York, Massachusetts,
and Ohio, over and over again, that the law shall not be
executed. That was the language of Conventions in
Worcester, Massachusetts; in Syracuse, New  York; and
elsewhere. And for this they pledged their lives, their
fortunes, and their sacred honors.  Now, gentlemen, these
proceedings, I say it upon my  professional reputation,
are distinctly treasonable. Resolutions passed in Ohio,
certain resolutions in New York, and in Conventions held
in Boston, are distinctly treasonable. And the act of
taking away Shadrick from the public authorities in Boa
ton, and sending him off, was an act of clear treason." t
The spirit of the resolutions which are here so emphat
ically denounced by Mr. Webster, afterward seized whokl
* Webster's Works, vol. ii, p.575. -     Ibid. p. 577.
100
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States, and controlled their legislation.   In fourteen of
the Northern States, indeed, laws were enacted to prevent the execution of the law of Congress. These laws,
as Mr. Webster himself, if living, would have said, were
"distinctly treasonable." They came directly into conflict with the law of Congress, and nullified the compact
of the Constitution relative to fugitive slaves.   What
shall' we say then? Was secession, under such circumstances, treason? Was it rebellion? Mr. Webster has, in
one of his speeches, laid down a principle which never
has been, and never can be, controverted.  He says:   "I
do not hesitate to say and repeat, that if the Northern
States refuse wilfully and deliberately to carry unto effect
that part of the Constitution which respects the restoration of fugitive slaves, the South would be no longer
bound to keep the compact. A bargain broken on one
side is broken on all sides." I have said, that this is a
principle of truth and justice, which never has been, and
never can be denied. It was, indeed, precisely the principle which governed the Convention of 1787 in withdrawing from the first compact between the States. I do
not mean to say, however, that this great principle of
truth and justice may not be practically denied.   In fact,
the Northern power has not only claimed, but exercised,
the right to trample the compact of the Constitution
under foot; and, at the same time, to visit with fire, sword,
desolation, and ruin, those who merely wished to withdraw from the broken thing, and let it alone.
According to the doctrine laid down by Story and Webster, if a compact between States assign no term for its
continuance, then the States have a right to secede from
it at pleasure.* This doctrine is, no doubt, perfectly true.
But precisely such was the compact from which the Southern States wished to withdraw; no period was prescribed
for its continuance. Yet the North, who had trampled it
*See Chapter II.
1(
101 
IS DAVIS A TRAITOR?
under foot, punished the South with the most terrible of
all wars; because she was pleased to regard secession as a
violation of that "most sacred compact."
No man, as we have seen, could well be more inconsistent on any subject, than "the great expounder" was in
relation to the most important of all questions respecting
the Constitution. It was, with him, either a compact
between the States, or not a compact between the States,
according to the exigencies of the occasion. He could be
equally eloquent on both sides of the question. He complained, in 1850, that the South had changed her opinions
on the subject of slavery. Might not the South complain,
that he. had no opinions, or at least no convictions, to
change? The man who really seeks the truth, and, when
found, clings to it as the choicest treasure of his soul, may
well leave his consistency to take care of itself. But the
man who seeks place, or power, or popularity more. than
the truth, should indeed have a good memory. The one
may, and indeed will, sometimes change his opinions, but
then, in the midst of all his changes, he will be ever true,
like the needle, which only turns until it finds the pole.
Whereas the other, in his variations, is like the weathercock, which shifts with the breeze of the passing hour, and
never finds a point of permanent rest. Even the intellect
of a Webster, where the moral man is deficient, can furnish no exemption from this law of retributive justice.
Mr. Webster's real opinion, however, seems to have
been that the Constitution was a compact between the
States. His great speech of 1833 may have convinced
others; it certainly did not convince himself; for during
the remainder of his life, he habitually and constantly
spoke of the Constitution as the compact formed by the
States. Especially after his race was nearly run, and,
instead of the dazzling prize of the Presidency, he saw
before him the darkness of the grave, and the still greater
darkness that threatened his native land with ruin; he
102 
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raised the last solemn utterances of his mighty voice in
behalf of "the compact of the Constitution;" declaring
that as it had been "deliberately entered into by the
States," so the States should religiously observe "all its
stipulations."
103
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i 
CHAPTER XIV.
The absurdities flowing from the Doctrine that the Constitution is not a Compact
be tween the States, but was made by the People of America as one Nration.
WHEN I come to consider "the sovereignty of the people," about which so much has been said, we shall see the
fallacy of the position, which is everywhere assumed by
Mr. Webster and his school, that "the aggregate commu
nity, the collected will of the people, is sovereign."* Wc
shall then see, that this doctrine is utterly without foun
dation in history, and without support from reason.  Or
the contrary, it will then be rendered manifest, that thb
people of America have never existed as one nation
clothed with sovereign authority; an idea which has no founr
dation in fact, and which has grown out of the popular usof language and the passions of politicians. But, at pre
sent, I merely wish to point out a few of the absurditieflowing from this doctrine, that the Constitution wal
ordained by "the aggregate community, the collected wil
of the people" of America, acting as one sovereign politi
cal society. This argument alone, this reductio ad absur
dum, is amply sufficient, unless I am greatly mistaken, te
shatter that already shattered hypothesis.
Mr. Justice Story, quoting the Declaration of Independ
ence, says:   "It is the right of the people,  (plainly
intending the majority of the people,) to alter, or to abolis?
it, and to institute a new government, laying its foundatior
on such principles, and organizing its powers in such forms
*Works, Vol. vi., page 222. 
IS DAVIS A TRAITOR?
as to them shall seem most likely to effect their safety and
happiness."* Now this is what is meant by the sovereignty of the people in America. But will any one contend,
that the people of the United States, that is, a majority of
them, may alter, or amend, the government of the Union?
If they are, indeed, one people in the political sense of the
word, then are they sovereign; and if as such they made the
Constitution of the United States, then, according to all our
American ideas and doctrines, they have the right to alter
or amend that Constitution at their pleasure. Nay, more;
they have the right to pull down the existing government,
and to set up a new one in its place. But who will accept
such a consequence? This right of sovereignty, if it
exist, or if the one people exist to whom it naturally
belongs, it is, according to the universally received doctrine of this continent, inherent and inalienable. No laws
or constitutions can take it away, or abridge and limit its
exercise. Who will say, then, that the people of the United
States, "plainly meaning the majority of them," have
such a right or authority? No one. Plainly and inevitably as this consequence flows from the fundamental position of Story and Webster, that the sovereign people of
America ordained the Constitution, it will be avowed by
no one, who has any reputation to lose, and who has the
least respect for the reputation he possesses. Mr. Lincoln
has avowed this consequence. But in this instance, as in
many others, his logic has taken advantage of his want of
information.
This consequence flows so naturally and so necessarily
from the premises, that Mr. Justice Story has, in one place,
inadvertently drawn it; or rather it has incidentally
drawn itself.  "The people of the United States," says
he, "have a right to abolish, or alter the Constitution
of the United States."t True, if they made it; but they
did not make it, and therefore they have the right neither
*Vol. i., Book iii., chap. iii.   t Vol. i., Book iii.; chap. iii.
6*
105 
IS DAVIS A TRAITOR?
to alter nor to abolish it. The power that made, is the
power to unmake. Air. Justice Story did not mean, that
is, he did not deliberately mean, that the people of the
United States, or the majority of them, could alter or
abolish the Constitution; for he was too well informed to
be capable of such a blunder. But in this instance, as in
many others, his logic, speaking the language of nature
and of truth, got the better of his artificial and false
hypothesis.
If the people of the United States are, in reality, one
sovereign political community, and as such, ordained the
Constitution, then they have the most absolute control
over all the parts; and the States bear the same relation
to this one grand and overshadowing sovereignty, that
counties sustain to a State. They may be divided, or
moulded, or abolished, at the pleasure of the whole people.
But everybody knows better than this.  Mr. Lincoln did,
it is true, endorse this conclusion, in the first speech he
ever made to the American public. When the long silence
was broken, and, as President elect, he addressed his first
word to an anxious country, he likened the relation
between the States and the Union to that of countries to a
State. Until then, there were many intelligent and wellinformed persons, who did not believe, that there was one
individual in the United States capable of taking such a
view of the Constitution, except among political preachers
or parsons. * But however absurd, it is only the necessary
consequence of the premises laid down by Mr. Justice
Story and Mr. Webster.  It will, however, be regarded by
every student of the Constitution in the light of a reductio
ad absurdum, which, instead of establishing the conclusion
to which it leads, only shatters and demolishes the position
from which it flows.
*Indeed, this doctrine, and the very illustration of it, was borrowed by Mr  Lincoln from the celebrated Preacher of Puinceton,
N. J.  Compare Mr. Lincoln's speech  with Dr. Hlodge on " the
State of the Country."
106 
CHAPTER XV.'
The hypothesis that the people of America form one Nation.
WE have seen, in the preceding chapter, some of the
absurdities flowing from the assumption, that the people
of America form one nation, or constitute one political
community.  But as this is the Y~gorop tsv oi, the first and
all-comprehending falsehood, of the Northern theory of
the Constitution, by which its history has been so sadly
blurred, if not obliterated, and by which its most solemn
provisions have been repealed, so we shall go beyond the
foregoing reductio ad absurdum, and show that it has no
foundation whatever in the facts of history. I was about
to say, that it has not the shadow of such a foundation;
but, in reality, it has precisely such a shadow in the vague
popular use of language, to which the passions of interested partisans have given the appearance of substance.
And it is out of this substance, thus created from a shadow,
that have been manufactured those tremendous rights of
national power, by which the clearly-reserved rights of the
States have been crushed, and the most unjust war of the
modern world justified.  I purpose, therefore, to pursue
this i~oov,E-vo, this monstrous abortion of night and
darkness, into the secret recesses of its history, and leave
neither its substance nor its shadow in existence.  Fortunately, in the prosecution of this design, it is only necessary to cross-examine those willing witnesses by whom
this fiction has been created, and compare their testimony
with itself, in order to show that they are utterly unwor 
1IS DAVIS A TRAITOR?
thy of credit as historians of the American Union. I shall
begin with Mr. Justice Story.
The attempt of Mr. Justice Story to show, that the people
of America formed one nation or State.
This celebrated commentator strains all the powers of
language, and avails himself of every possible appearance,
to make  the colonies of America  "one  peeple," even
before they severed their dependence on the British
crown.   Thus, he says:   "The  colonies  were  fellowsubjects, and for many purposes one people. Every colonist had a right to inhabit, if he pleased, in any other
colony; and as a British subject, he was capable of inheriting lands by descent in every other colony. The commercial intercourse of the colonies, too, was regulated by
the laws of the British empire; and could not be restrained,
or obstructed, by colonial legislation.   The remarks of
Mr. Chief Justice Jay on this subject are equally just and
striking:'All the people of this country were then
subjects of the king of Great Britain, and owed allegiance
to him; and all the civil authority then existing, or exercised here, flowed from the head of the British empire.
They were, in a strict sense, fellow-subjects, and in a
variety of respects, one people.' *
Now all this signifies just exactly nothing as to the
purpose which the author has in view. For, no matter in
what respects the colonies were "one people," if they
were not one in the political sense of the words; or if they
had no political power as one people, then the germin of the
national oneness did not exist among them. But this is
conceded by Mir. Justice Story himself.  "The colonies,"
says he, "were independent of each other in respect to
their domestic concerns." t Each was independent of the
legislation of another, and of all the others combined, ii
they had pleased to combine.
* Story on the Constitution, vol. i, page 164..t Ibid.
108 
IS DAVIS A TRAITOR?
In many respects, indeed, the whole human race may be
said to be one. They have a common origin, a common
psychology, a common physiology, and they are all subjects of the same great Ruler of the world. But this
does not make all men "one people" in the political
sense of the words. In like manner, those things which
the colonists had in common, and which are so carefully enumerated by Mr. Justice Story, do not make
them one political community; the only sense in which
their oneness could have any logical connexion with
his design. Nay, so palpably is this the case, that he
fails to make the impression on his own mind, which
he seems so desirous to make on that of his readers;
and the hypothesis that the colonies were "one people,"
is utterly dispelled by his own explicit admission. For, says
he, "Though the colonies had a common origin, and owed
a common allegiance, and the inhabitants of each were
British subjects, they had no direct political connexion with
each other. Each was independent of all the others; each,
in a limited sense, was sovereign within its own territory.
There was neither allegiance nor confederacy between
them. The Assembly of one province could not make
laws for another, nor confer privileges which were to be
enjoyed or exercised in another, farther than they could
be in any independent foreign state. As colonies, they
were also excluded from all connexion with foreign states.
They were known only as dependencies, and they followed
the fate of the parent country, both in peace and war,
without having assigned to them, in the intercourse or
diplomacy of nations, any distinct or independent existence. They did not possess the power of forming any
league or treaty among themselves, which would acquire
an obligatory force, without the assent of the parent State.
And though their mutual wants and necessities often
induced them to associate for common purposes of defence,
these confederacies were of a casual and temporary nature,
109
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and were allowed as an indulgence, rather than as a
right. They made several efforts to procure the est,b
lishment of some general superintending government over
them all: but their own differences of opinion, as well as
the jealousy of. the crown, made these efforts abortive." *
It is impossible for language to be more precise and
explicit. Hence, in whatever other respects the colonies
may have formed "one people," we are here authorized,
by the undisputed and the indisputable facts of history, to
consider them as separate and independent of each other,
in the political sense of the terms. And this is all our
argument needs..
Mr. Justice Story, not satisfied with the oneness of the
people of the colonies before their separation from Great
Britain, which he has been at so much pains to establish,
next endeavor,o show, that they were certainly moulded
into one nation by the Declaration of Independence. If
they were "one people" before, it is difficult to conceive
hotw they were made so by that Declaration. To that act,
says he, " union was as vital, as freedom or independence." t
But what sort of union?   Did the people unite and
become one nation, in the sense that it was a sovereign
political community; so that the whole could make a Constitution and laws for the parts? If not, then the assertion
misses the mark aimed at, and must go for nothing. But
no one pretends, for a single moment, that they became one
people in any such sense of the words.  Mr. Justice Story
himself admits, that such union was temporary, and designed to perish with the common danger which had called it
into existence.  "The union thus formed," says he, "grew
out of the exigencies of the times; and from its nature
and objects might be deemed temporory, extending only
to the maintenance of the common liberties and independence of the States, and to terminate with the return of
*Story on the Constitution, vol. i, page 163-164.
t Vol. i., Book xi., chap. 1, page 200. Note.
110 
IS DAVIS A TRAITOR?
peace with Great Britain, and the accomplishment of the
ends of the revolutionary contest."* Thus it is conceded
that they became "one people," not to ordain a Constitution or to enact laws, but only to resist a common enemy,
and to continue united only during the presence of the
common  danger.  Hience, this union was, according to
Judge Story's own admission, more imperfect and fragile
than that which, from the operation of a similar cause, had
sprung up among the States of Greece, the Swiss Cantons,
the United Netherlands, or the members of the German
Diet. Yet no one has ever considered any one of these
unions as forming one nation, or people, as contradistinguished from a federation of sovereign and independent
States. Such attempts, indeed, to prove that the colonies,
or the States of America were one nation, or political community, are simply desperate. They are scarcely made,
before they are overthrown by the hand that reared them.
But let us admit, for the sake of argument, that the colonies formed one people before their separation from Great
Britain; and that they were again made one people by the
Declaration of Independence. Then no one colony could
lawfully act without the concurrence of the others; as the
parts would not be independent of the whole. Accordingly, Mr. Justice Story declares, that the "the colonies
did not severally act for themselves, and proclaim their
own independence." t But it is well known, that Virginia
did so. " Virginia," says Judge Story, "on the 29th June,
1776, (five days before the Declaration of Independence,)
declared the government of the country as formally exercised under the crown of Great Britain, totally dissolved,
and proceeded to form a new Constitution." I Nay, she
had already formed a new Constitution, in pursuance of
her resolution of the 15th of the preceding month, and she
adopted it on the 29th of June, 1776. Yet Virginia has
* Vol. i., Book ii., chap. ii., page 209.
t Vol. i., Book ii., chap. i., page 197.
ill
[bid.
II
I 
IS DAVIS A TRAITOR?
never been regarded as tainted with treason, or rebellion
against the people of America, because she thus proclaime(
her own separate independence, and established her owi
Constitution. On the contrary, she has ever been honore,
by her sister colonies and States, for this bold and indc
pendent act.
This is not the only insuperable difficulty in the way of
the hypothesis, that the colonies were made one people
by the Declaration of Independence. For, if this hypo
thesis be adopted, we must believe that this one peopli were afterwards broken up into separate and independeni
States by an act of Confederation!   In  the  case of
Gibbons and Ogden, *the Supremr  Court of the United
States, say, (and the words are quoted with approbation
by Mr. Justice Story,) t " As preliminary to the very able
discussion of the Constitution which we have heard from
the bar, and as having some influence on its construction,
reference has been made to the situation of these States,
anterior to its formation. It has been said, that they were
sovereign, were completely independent, and were connected
with each other only by a league. THIS is TRUE." I NOW, if
this be true, as the Supreme Court of the United States
affirm, and as Mr. Justice Story admits, how were this one
people broken up into so many separate, "sovereign," and
"completely independent" States? This must have been
done by the Articles of Confederation; since it is only in
the presence of these Articles, that this fine theory about
the oneness of the American people disappears, and the
States once more shine out as free and independent sovereignties. No other cause can be assigned for the change.
It is perfectly certain, indeed, that if the people of
America were one nation, or political community, prior to
the adoption of those Articles, they then became divided
into separate, distinct, and independent States. For,
* 6.  Wheaton, page 187.           t Vol. i., page 323.
1 Vol. i., Book ii., chap. iii., page 323.
112
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t 
IS DAVIS A TRAITOR?
according to those Articles, "each State retains its sovereignty, freedom, and independence." Each State retains!
This language implies, indeed, that each State was free,
sovereign and independent before those Articles were
adopted. But then this is only one of the difficulties in
the way of the theory of Judge Story.
If they were not free and sovereign States before, if; on
the contrary, they were one people, or nation, or political
community, then it were absurd to speak of their union
as an act of confederation. For it would, indeed, have
been an act of separation, and not of confederation. It
would have been the dividing of one nation into separate
and sovereign States, and not the uniting of such States
into one Confederacy. This is another of the difficulties,
which stand in the way of the theory of Judge Story, and
of the Northern school of politicians.
Again, if one people were thus divided into free, sovereign and independent States, by the Articles of Confederation; then it is very inaccurate in Judge Story, to say, as
he always does, that the States granted the powers by
which the Confederacy was formed. He should, on the
contrary, have spoken only of powers resumed by the
States, or restored to them by the American people.
But we may now take leave of his theory and all its
insuperable difficulties. It is sufficient for my purpose,
that after the Articles of Confederation were agreed upon,
as the supreme law, the States were then free, sovereign
and independent. It is asserted by the Supreme Court of
the United States, as well as by Judge Story himself, that
anterior to the adoption of the Constitution the States
"were sovereign, were completely independent, and were con nected only by a league." It was in this capacity, it was as
free, sovereign and completely'independent States, that
they laid aside the old, and entered into the new, "Arti ctes of Union," as the Constitution is everywhere called
in the proceedings of the Convention of 1787. This is
;w
113
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IS DAVIS A TRAITOR?
conceded. Hence, the situation of the colonies before their
separation from the mother country, or of the States
before the adoption of the Articles of Confederation, has
nothing to do with our present inquiry; which relates to
the character in which the people, or the peoples of
America, ordained the Constitution of the United States.
If any one has a mind to amuse himself by building up or
pulling down speculations or hypothesis on this subject,
he may do so to his heart's content.  It is sufficient for
every practical purpose, that when they came to adopt
the new form of government, each State was a completely
free, sovereign, and independent political community, and
in that capacity acceded to the compact of the Constitution.
The attempt of Mr. Curtis to show that the people of America formed one nation, or political community.
Mr. Curtis, in his extended and elaborate History of the
Constitution of the United States, seems to vie with the
introductory sketch of Judge Story, in the establishment
of the foregone conclusion, that it was created by and
rests on, "the political union of the people of the United
States, as distinguished from the States of which they are
the citizens."* For this purpose, it is necessary to show,
in the first place, that such a political union of the whole
people of the country had an existence. Accordingly, the
facts of history are recast and moulded in order to suit
this hypothesis. If possible, the conflict between fact and
theory is, in his work, even more glaring than it is in that
of Mr. Justice Story.
"The people of the different colonies" were, says he,
"in several important senses, one people."t
This is true. But it is not even pretended, by Mr. Curtis, that this was a political union; he only says, that it
enabled them to effect such a union. He admits, on the
*Vol. i, p. 122.                 t Vol. i, p. 9.
114 
IS DAVIS A TRAITOR?
contrary, in the most explicit terms, "that the colonies
had no direct political connexion with each other before
the Revolution commenced, but that each was a distinct
community, with its own separate political organization,
and without any power of legislation for any but its own
inhabitants; that, as political communities, and upon the
principles of their organizations, they possessed no power
of forming any union among themselves, for any purposes
whatever, without the sanction of the Crown or Parliament of England."*
"It is apparent," says he, "that previously to the Declaration of Independence, the people of the several colonies
had established a national government of a revolutionary
character, which undertook to act, and did act, in the
name and with the general consent of the inhabitants of
the country."t Thus, even previous to the Declaration
of Independence, the people of the colonies formed one
nation, and established "a national government." A
nation, with a national government, and yet dependent
colonies!
"This government," says he, "was establishad by the
Union in one body of delegates representing the people
of each colony." That is, each colony, acknowledged to be
perfectly and wholly independent of every other, sends
delegates to one body; and this body, whose duty it is to
advise and recommend measures to the several colonies, is
"a national government!"  Surely, if such an advisory
council may be called a government at all, it is any thing
rather than national in its character.  It is, in fact, merely
the shadow of a federal government.
Mr. Curtis himself is evidently not satisfied with the
"one nation," in this stage of its development, or purely
verbals existence. Hience, he insists, with Mr. Justice
Story, that the colonies were really made one nation by
the Declaration of Independence.  "The body by which
*Vol. i, p. 9.             t Vol. i, p. 39.
115
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IS DAVIS A TRAITOR?
this step was taken," says he, "constituted the actual government of the nation, at the time;"* that is, while they
were yet dependent colonies! "It severed the political
connexion between the people of this country and the people of England, and at once erected the different colonies
into free and independent States."t Thus, the colonies
formed "one nation" before their separation from Great
Britain, and afterwards became "free and independent
States." Or, in other words, the nation preceded the
States; an opinion for which Mr. Lincoln has been most
nnconscionably laughed at.  This opinion is still more
explicitly advanced by Mr. Curtis, in another portion of
his history.  "The fact," says he, "that these local or
State governments were not formed until a UYnion of the
people of the different colonies for national purposes had
already taken place, and until the national power had
authorized and recommended their establishment, is of
great importance in the Constitutional history of our
country; for it shows that no colony, acting separately
for itself, dissolved its own allegiance to the British crown,
but that this allegiance was dissolved by  the supreme
authority of the people of all the colonies," &c., &c. t
This fact, which is deemed of so much importance in the
constitutional history of this country, happens, as we
have seen, to be a fiction; and a fiction, too, in direct conflict with the well-known fact, that Virginia declared her
own separate independence.
But if, by the Declaration of Independence, the colonies
became "free and independent States," how could that act
have moulded them into one sovereign political community, or nation?  This is one of the mysteries, which I
am glad it is not incumbent on me to solve. Was the
Declaration of Independence itself necessarily, or ex vi
termini, a declaration of independence, and, at the same
time, one of subjection to a higher authority? If we
* Vol. i, p. 51.     t Ibid.         $ Vol. i, pp. 39, 40.
116 
IS DAVIS A TRAITOR?
may adopt Mr. Curtis as a guide, we must answer this
question in the affirmative. For, says he, although the
colonies were thereby "erected into free and independent
States," "the people of the country became henceforth
the rightful sovereign of the country; they became united in a national corporate capacity, as one people; they
could thereafter enter into treaties and contract alliances
with foreign nations, could levy war and conclude peace,
and do all other acts pertaining to the exercise of a national
sovereignty."*  If so, then of course they  could ordain
Constitutions and enact laws; they could set up, or pull
down, or modify the parts, called States, as if they were
counties, or mere districts of people. For such is the
power of one sovereign State, or nation, over its various
members.
But, unfortunately for this bold assertion, Mr. Curtis
himself tells us, on the very next page of his work, that
"on the same day on which the committee for preparing
the Declaration of Independence was appointed, another
committee, consisting of a member from each colony, was
directed to prepare and digest the form of a confederation to
be entered into between these colonies," that is, after they
should become free and independent States.  "This committee, he continues, "reported a draft of Articles of Confederation on the 12th of July, &c." These Articles were
discussed, postponed, resumed, amended, and, finally,
adopted.
Now whence resulted the powers conferred by these
Articles of Confederation? Were they not granted by
the "free and independent States"? Most assuredly they
were; no one has ever had the hardihood to deny so plain
a fact, except by implication. But if all the powers of
the new "national government," as it is called by  Mr.
Curtis, were granted by "free and independent States,"
each acting for itself, as every one acknowledges it to
*Vol. i, p.62.
117 
IS DAVIS A TRAITOR?
have done; then for what conceivable purpose has he con
jured up the phantom of a pre-existing national sover
eignty of the whole people of the country?
It is certain, that this phantom has been completely
laid by Mr. Curtis himself.   The whole elaborate illusion;
which it has cost him so much pains to get up, is thus
dispelled by a plain, simple and unpremeditated state ment of unquestionable facts, by the author himself.
"The parties to this instrument," says he, referring to the
Articles of Confederation, "were free, sovereign and independent political communities,-each possessing within itself
all the powers of legislation and government over its own
citizens, which any political society can possess. But, by
this instrument, these several States became united for cer tain purposes."*  Surely, all this must have been alsent
from the mind of Mr. Curtis, when he spoke of the peo ple of the several States as having been previously
merged into one absolutely sovereign political community.
But it seems to be requiring too much to expect a Massachusetts politician to remember any thing he may have
said on any preceding page of his work.
Nor is this all. For it is also conceded that the States,
which were "free, sovereign and independent political
communities" before they adopted the Articles of Confederation, retained the same prerogatives, or attributes,
after that event.  "The Articles," says he, "declared,-as
would indeed be implied, in such circumstances, without any
express declaration,-that each State retained its sovereignty, freedom, and independence."t It was, then, in this
condition of "free, sovereign, and independent political
communities," that the States passed from the old to the
new Articles of union, or severally agreed to the compact
of the Constitution. Why, then, conjure up shadows and
phantoms of a national unity only to dispel them? The
cause of secession only demands the fact, that the States,
* Vol. i, p.143.            -   #Ibid.
118
* Vi 1. i, P. 143.
t Ibid. 
IS DAVIS A TRAITOR?
as "free, sovereign, and independent political commnunities," formed and entered into the new  "Articles of
Union;" and this fact is conceded both by Story and
Curtis.
The use of the term people.
Much of the inconsistency and contradiction in the
views above examined, is due to the ambiguities of the
word people, and the utter confusion of its loose, floating
significations, with its technical or scientific sense. We
sometimes pronounce a people one, because they have a
common origin, or a common language, or a common
religion, or even because they inhabit the same portion
of the globe. Thus, we speak of "the people of Europe,"
or "the people of America," without intending to convey
the idea that they are a people in the political sense of the
term.  When we say, however, that "the people are sovereign," we use the word in a more restricted sense. We
then speak of the.people in the political or technical
sense Of the term.
This includes only the qualified voters of the community, or those by whom Constitutions may be ordained,
and re-modelled.  For no other persons participate in the
exercise of the sovereign power. Women and minors are
excluded, as well as some other classes, even in our American States. It is in this limited sense of the word, that
the people are said to make compacts, or Constitutionis and
laws, either by themselves or by their agents.
If Mr. Justice Story had borne this in mind, he might
have saved himself from all his criticisms on the doctrine
of a social contract based on the ground that "infants,
minors, married women, persons insane, and many others,"*
take no part in the formation of civil societies, or in the
creation  of constitutions  and  governments.   No  one
includes such persons in the idea of a people, when these
*Vol. i., Book iii., chap. iii., page 29(6.
119
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are said to be sovereign. Hence, his "limitations and
qualifications" of the doctrine in question, have exclusively
arisen from his own misapprehension. Something more
than a mere natural person is necessary to constitute one
of "the people," one of the multitudinous sovereignty of
an American State.  "The idea of a people," says Burke,
evidently using the term in its restricted or political sense,
"is the idea of a corporation; it is wholly artificial, and
made, like all other legal fictions, by common agreement."*
That is, says he, "in a rude state of nature, there is no
such thing as one people. A number of men, in themselves,
can have no collective capacity." Or, in other words, something more than a number of men is necessary to make a
people, or State. It must be agreed and settled, as to
who shall take part in the exercise of political power, ere
constitutions and laws may be ordained or remodelled by
them.
But in vain did Burke, and Hobbes, and other writers
on the philosophy of politics, endeavor to "fix, with some
degree of distinctness, an idea of what we mean when we
say, the PEOPLE." t Their labors' seem to have been lost
upon the politicians of the Massachusetts school; and, in
some instances, at least, they appear to have only cast
their pearls before swine. For one of the great lights of
that school kindles into a blaze of fiery indignation against
Mir. Burke, for simply advancing the incontestable truth,
that what we call a PEOPLE is, in the political sense of the
word, the result of an agreement or mutual understanding
of a community of persons.  "0, that mine enemy had
said it!" the admirers of Mr. Burke may well exclaim,"
cries this great light of MIassachusetts.  "0, that some
scoffing Voltaire, some impious Rousseau had uttered it!
Had uttered it? Rousseau did utter the same thing, &c." I
This is true. For widely as Edmund Burke and Rousseau
* Appeal from the New to the Old Whigs.           t Ibid.
X Everett's Orations and Speeches, vol. i.fpage 122.
120 
IS DAVIS A TRAITOR?
differed on most points, they agreed in this, that it is not
nature, but art, which determines the question, as to who
shall participate in the exercise of political power, or constitute a PEOPLE, in the political sense of the word. Even
"the impious Rousseau " is sometimes right, and nearly, if
not quite, always so when he agrees with Edmund Burke.
In his attempt to show that the Constitution was
adopted by the people, and not by the States, Mr. Justice
Story deceives himself by means of the ambiguities of the
term people, and repeatedly contradicts his own positions.
"The States never, in fact," says he, "did, in their political capacity, as contradistinguished from the people
thereof, ratify the Constitution."* This is very true, if
by States in their political capacity, he means, as he seems
to do, the State governments. But this is not to the purpose. Every one admits, that the Constitution was ratified,
not by the Governments, but by the people of the States.
Nor does any one deny, that the term State is sometimes
used to signify the government of a State.   Thus, we
often say, that the State does so and so, when the thing is
done by its Government. But the question is, may we not
say, that the Constitution was ratified by the States, as
well as by the people of the States?  Or, in other words,
are not the terms State and People properly used as equivalent expressions? These words were, as we have already
most abundantly seen, habitually used as convertible terms
by the Convention of 1787.
We may truly say, indeed, with Judge Story, that the
Constitution was not ratified by the States, as contradistinguished from the people; because it is not very easy to
distinguish a thing from itself. In assuming this position,
Mr. Justice Story forgets what he had said in the preceding Book of his Commentaries, namely, "the State and
the people of the State, are equivalent expressions."t
"Nay, the State," he again says, "by which we mean the
* Vol i., page 330.       t Vol. i, Book ii, p. 198.
7
121 
IS DAVIS A TRAITOR?
people composing the State, may divide its so)vereign
powers among various functionaries, &c."* Here the term
people is clearly used to include only the qualified voters,
or those who share the sovereign power; and, in this
sense, they are called "the State."  It is precisely in this
sense, that the Constitution was ratified by the peoples,
or the States. We may, and indeed should, distinguish
between the meanings of the term State, when it is figuratively used to signify the government of a State, andc
when it is used to signify the State itself. But we shall
never distinguish the people of a State from the State
itself, until we can find a State which is not composed of
people.
But the attempt is made to show, that, in adopting the
Constitution, the States acted as mere districts of people,
and not in their sovereign political capacity.t But if this
were so, then the different districts would have been considered together in making up the final result, and the
majority of the one grand, national whole wouId have
ordained the Constitution. The fact, however, the undenied and the undeniable fact, is quite otherwise. Each
State, with all its own laws, and institutions and government, either went in, or remained out, at its own sovereign
will and pleasure. In the words of the Federalist, it was
"only to be bound by its own voluntary act."  No other
State, nor all other States combined, nor the whole people
of America, had the least authority to control its decisionThis was an absolutely free, sovereign and independent
act of each State. It may be doubted, indeed, if there was
ever a more superficiaI gloss, or a more pitiful subterfuge,
than the assertion of Judge Story, that the States adopted
the Constitution, Dot as States, but only "as districts of
people" composing one great State or nation. It is at
war with facts; it is at war with his own repeated admissions; and it is at war with the plainest dictates of truth,
*Ibid. p. 194. t Story's Corn. on the Constitution, vol. 1, p. 33880
I22 
IS DAVIS A TRAITOR?
as well as with the unanswerable arguments of the Federalist. Sad, indeed, must have been the condition to
which the great sophist was reduced, when he could stoop
to so palpable a gloss on one of-the plainest facts in the
history of the Constitution!
CONCLUSION.
Mr. Justice Story has, I am aware, as well as Mr. Webster, laid great stress on the fact, that the Constitution
addresses the language of authority to the States. " The
language of a compact is," says he, "I will, or will not do
this; that of a law is, thou shalt, or shalt not do it."*
This is what the act of entering into a compact signifies,
but it is not usually the language of the instrument itself.
On the contrary, the Articles of Confederation, which are
universally admitted to form a compact, use precisely the
same style as the Constitution. Both say what shall, and
what shall not, be done by the States. Precisely the same
style is also employed in the formation of compacts or
treaties between wholly separate and independent powers.
Nay, in the most ordinary articles of co-partnership, it is
usual to say, in the same manner, what shall, and what
shall not, be done by the parties thereto. Yet all such
instruments rest upon the agreement of the parties, and
derive their binding force from their voluntary act.
There is a very simple law of language, which seems to
have escaped the attention of these great expounders of
the Constitution. The language of written contracts usually speaks of the parties in the third person, and not for
them in the first person. Hence, they necessarily assume
the imperative style; laying down what shall, and not saying what will, be done by them. It would have been
ridiculous, indeed, if the Constitution had said, No State
will emit bills of credit, or coin money, and so forth, instead
of saying, as it does, that no State shall do such acts.
123
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Like other written contracts, it says shall, of course, because it speaks of the parties in the third person, and
lays down the obligations imposed upon them by their
own consent. This is a very simple law of language.
But that is no reason why it should be overlooked by the
great lights of jurisprudence.
"In compacts," says Judge Story, "we ourselves detertermine and promise, what shall be done, before we are
obliged to do it." No words could more admirably suit
our purpose, or the facts of the case. For each State
agreed to the compact of the Constitution, which prescribes "what shall be done," before it was bound by it.
That "no State shall emit bills of credit," and so forth, is
precisely the style which, according to Judge Story himself, as well as according to all usage, would be employed
in articles of agreement between the States; and hence, to
argue for the use of shall, instead of will, that the Constitution addresses the language of authority from the people
of America to the States, is simply ridiculous.  "In compacts;" says Story, "we ourselves determine and promise
what shall be done, before we are obliged to do it."  And
yet, in the face of this obvious facts he argues from the use
of shall in the Constitution, that it is not what the State
"determined and promised," but what they were cominanded to do! that it is not, and cannot be a compact
between the States at all! 
A and B enter into articles of agreement. These articles, according to good usage, say what A shall do,
and what B shall do. What shall we say, then, of these
articles? Shall we say, that they do not form an agreement, or contract at all? Shall we say, that A commands
B, or "addresses to him the language of authority," as a
law-giver speaks to a subject? If so, then B also commands A, and each is evidently the master of the other!
Precisely such is the profound logic of Mr. Justice Story!
124 
CHAPTER XVI.
Arguments in favor of the Right of Secession.
IN the preceding chapters, it has, I think, been clearly
demonstrated, that the Constitution of the United States
was a compact to which the several States were the parties. This, as we have seen, was most explicitly the doctrine maintained by the fathers of the Constitution, and
was unequivocally set forth by the Federalist in submitting that instrument to the people, and that it is confirmed
by all the historical records of the country. If any proposition, indeed, respecting the Constitution can be considered as unanswerably established, it is the doctrine of the
Federalist, that the act by which it was ordained was " not
a national, but a federal act;" having been ratified "by
the people of America, not as individuals composing one
nation, but as composing the distinct and independent States
to which they belong;"* that the Constitution, "the compact," was established by "the States regarded as distinct
and independent sovereigns."t It is, then, on this clear,
broad, immutable foundation, that the argument in favor
of secession rests.
Argument in favor of Secession from the doctrine of reserved rights.
It is frequently asked, by the opponents of secession,
where is the right of a State to withdraw from the Union
set forth or contained in the Constitution? But this
* Federalist, No. XXXIX.
t lbid, No. XL.
ol 
IS DAVIS A TRAITOR?
question betrays a gross ignorance with respect to the
origin of State rights. These rights are not derived from
the Constitution at all; on the contrary, all the rights,
powers, or authorities of the Constitution are derived
from the States. And all the rights not delegated to the
Federal Government by the States, are reserved to the
States themselves,-the original fountains of all the powers of "the Constitution of the United States." This is
the doctrine set forth by the "Federalist" in submitting
that instrument or Constitution to the people.
"The principles established in a former paper," says the
Federalist, "teach us, that the States will retain all preexisting authorities which may not be exclusively delegated to the federal head."* In the former paper here
referred to, it is said: "All authorities, of which the
States are not explicitly divested in favor of the Union,
remain with them in full vigor." t In the ratifying Convention' of Virginia, the same doctrine is set forth as well
known to every one at that day, by John Marshall, who
was afterward the illustrious Chief Justice of the Supreme
Court of the United States. "The state governments,"
says he, "did not derive their powers from the general
governme       Blut each government derived its powers
from the p  ple, and each was to act according to the
powers given it. Would any gentleman deny this? lHe
demanded if powers not given, were retained by implication? Could any man say, no? Could any man say, that
this power was not retained by the States, since it was
not given away? For, says he, does not a power remain
till it is given away?" t
Neither Marshall nor Hlamilton, the author of the numbers of the Federalist just quoted, was ever suspected of a
desire to lessen the authority of the Federal Union, or to
magnify that of the States. Yet, as we have seen, both
* Federalist No. LXXXII.             t Federalist No. XXXII.
: Elliot's Debates, Vol. 8. p. 889.
126 
IS DAVIS A TRAITOR?
of them assume as an undeniable principle, that every
power which is not delegated by the States to the Federal
Union, is retained by them in full vigor. This principle
results, indeed, from the fact that all the powers of the
Federal Government emanate from the peoples of the several States.  The question of Marshall "does not a power
remain till it was given away?" admits of but one answer.
For if a principal delegates power to an agent of any
kind, or for any purpose; the agent only possesses the
delegated powers, and all others remain with the principal. Thus, according to the very nature of things, as
well as according to the high authority of Hamilton and
Marshall; the States retained all the powers which they
had not delegated to the Federal Union.
But however plain this principle, or however fully admitted by the advocates of federal authority; the States
still insisted that it should be expressly incorporated in
the written language of the Constitution.   Hence Massachusetts, having ratified the Constitution, used the following language: "As it is the opinion of this Convention,
that certain amendments and alterations in said Constitution would remove the fears and quiet the apprehensions
of many of the good people of the commonwealth, and
more effectually guard against an undue administration
of the Federal Government, the Convention do therefore
recommend that the following alterations and provisions
be introduced into said Constitution:
"First, That it be explicitly declared that all powers
not expressly delegated by the aforesaid Constitution, are
reserved to the several States, to be by them exercised." *
In like manner, and for a like reason, Virginia recommended the following "Amendment to the Constitution.
1st. That each State in the Union shall respectively
retain every power, jurisdiction, and right, which is not
by this Constitution delegated to the Congress of the
* Elliot's Debates, Vol. 11. p. 180.
127
i
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IS DAVIS A TRAITOR?
United States, or to the departments of the Federal Gov ernment."* North Carolina urged the same amendment
to the Constitution, and in precisely the same words as
those employed by Virginia.t In the first amendment
proposed by Pennsylvania, we find the following words:
"All the rights of sovereignty, which are not by the said
Constitution expressly and plainly vested in the Congress,
shall be deemed to remain with, and shall be exercised by the
several States in the Union."i
These recommendations, and others to the same effect,
secured the tenth amendment to the Constitution of the
United States; which is in these words: "The powers
not delegated to the United States by the Coustitution,
nor prohibited by it to the States, are reserved to the States,
or to thepeople." If reason, if authority, if history, if the
words of the Constitution itself, can establish any thing;
then may we regard it as definitively and forever settled,
that every power, right, or authority which is not delegated to the Federal Union, is reserved to the States, or to
the people of the States.
I ask, then, where is this great, inherent right of a
State to resume the powers it has delegated, surrendered
to the Federal Union? Where has this peerless right of
sovereignty been ceded, surrendered, or given away?
The people may rage, and the politicians imagine a vain
thing; but I appeal to the great charter of American
rights and liberties. Where, then, in the Constitution of
the United States, is the sacred and inviolable right of a
sovereign State to resume the powers it has delegated to
its agents, given away or surrendered? When the States
entered into "the compact of the Constitution," they did
so, as it is conceded both by Story and Curtis, at the
moment they were "free, sovereign, and independent
States."  Where, then, in that compact, did they delegate,
surrender, or give away, the sacred right to resume the
* Ibid.Vol. iii, p. 594. t lbid,Vol. iv, p. 240. $ lbid,Vol. ii, p. 503.
128 
IS DAVIS A TRAITOR?
powers which they delegated to their agent, the Federal
Government; or, in other words, the right to secede from
the Union? Let the place in which this right, this greatest of all the rights of sovereignty, has been given away
to the Federal Union, be pointed out in the Constitution;
or it must be conceded, that it remained with the States.
Let it be shown, where "the States are explicitly divested" of this right "in favor of the Union;" or it must be
admitted, that it "remained with them in full vigor."*
Ignorance, or passion, or patriotism may "veil this right;"
but, nevertheless, the question is, where is this right given
away in the compact of the Constitution? If it be not
given away there; it still exists with the States in all the
plenitude of its power. The stars do not cease to shine,
or to exist, because they are concealed frem view by
exhalations from the earth, or by the blaze of noon.
Argument from the Sovereignty of the States.
Perhaps no subject has ever been considered with less
steadiness of mind, or clearness of analysis, than "the
sovereignty of the States." except "the sovereignty of
the United States." The powers of the Federal Govern ment are enumerated by one party, in order to show that
it is sovereign or supreme; while the opposite party at tempts to prove the sovereignty of the States, by dwell ing on the powers which belong to their governments.
But all this is nothing whatever to the purpose. It
merely deals with the branches, not with the rbots, of the
great subject under discussion; and how long soever these
branches may be beaten, it will only make confusion the
worse confounded. In the contest about the significance
of the particular powers of the Federal and of the State
Governments, the real principle on which the whole con. troversy hinges is overlooked, and the subject in dispute
* Federalist, No. xxxii.
7*
129
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IS DAVIS A TRAITOR?
is darkened by words without knowledge, and buried far
under floods of logomacy.
Mr. Webster, for example, thus demolishes the doctrine
of State sovereignty:  "However men  may think this
ought to be, the fact is, that the people of the United
States have chosen to impose control on State sovereignties. There are those, doubtless, who wish they had been
left without restraint; but the Constitution has ordered
the matter differently. To make war, for instance, is an
exercise of sovereignty, but the Constitution declares that
no State shall declare war. To coin money is another act
of sovereign power; but no State is at liberty to coin
money. Again, the Constitution says that no sovereign
State shall be so sovereign as to make a treaty. These
prohibitions, it must be confessed, are a control on the
State sovereignty of South Carolina, as well as of the
other States, which does not arise "from her feelings of
honorable justice." The opinion referred to, therefore, is
in defiance of the plainest provisions of the Constitution.*" -Why, then, did he not wind up his unanswerable
logic with a quod erat demonstrandum?
The truth is, that the whole thing, from beginning to
end, is a miserable sophism. His premises are false, and
his conclusion, therefore, falls to the ground. The fact
is, that the people of the United States imposed no control whatever on the States, and had no power to do so.
On the contrary, each State, for the sake of union, agreed
that it would abstain from the exercise of the right to
wage war, to coin meney, and to make treaties. She delegated these high powers to the government of the Federal Union. She entered into the compact of the Constitution, as we have seen, in her character of "a distinct
and independent sovereign," and was, therefore, "bound
only by her own voluntary act."t All the powers of the
Constitution were delegated, and all its obligations assu  Webster's Works, vol. iii, p. 322.    t Federalist.
130 
IS DAVIS A TRAITOR?
med, by the free act of each sovereign State. All the control to which she was liable in the Union was self-imposed;
and not one particle of it was laid upon her by  any authority but her own.  The act, indeed, by which she entered into the compact of the Constitution, was an exercise, not an abridgement, of her sovereign power. If
she could not enter into such a compact, she would be
less than sovereign.
It is supposed by some, certainly by none who have
reflected on the subject, that if a State delegates a portion
of her powers, or agrees to abstain from the exercise of
them; her sovereignty is thereby limited, or abridged.
To all such I would commend the words of Vattel: "Several sovereign and independent States," says he, "may
unite themselves together by a perpetual confederacy,
without ceasing to be, each individually, a perfect State.
They will together constitute a federal republic: their
joint deliberations will not impair the sovereignty of each
member, though they may, in certain respects, put some restraint
on the exercise of it, in virtue of voluntary engagements."*
Every one should be perfectly familiar with this principle
of law. It has been clearly recognized and embodied in
the legislation of this country. In the thirteenth Article of the old Confederation, for example, it is expressly declared that "the Union  shall be perpetual;" and
yet, in the second Article, it is'said that "each State
retains its sovereignty, freedom, aVd independence." Thus
although the States, in and by those Articles, delegated
many sovereign powers to the Federal Government; this,
in conformity with the principle laid down by Vattel, did
"not impair the sovereignty of each member." But since
the new Constitution, or Articles of Union, contained no
clause declaring it perpetual, or assigning any period for
its duration; how much more clearly did each State-in the
"more perfect Union" retain its sovereignty unimpaired!
*Vattel's Law of Nations, p. 3.
(
131 
IS DAYIS A TRAITOR?
For, in such case, it is conceded, as we have repeatedly
seen, by the great lights of American jurisprudence, that
a State may secede at pleasure, or resume the powers she
may have delegated to the Federal Government.
Indeed, if a State could not thus delegate her sovereign
powers, she would cease to be sovereign. She would
resemble a minor, who is incapable of entering into contracts.  The State, or the people themselves, cannot exercise sovereign powers in person; and hence, if she could
not delegate them to her agents, representatives, substitutes, or servants; her sovereignty would be a useless
burden to her. Thus, the very circumstance which is
supposed, by superficial thinkers, to limit and control the
sovereignty of a State, is indispensably necessary to the
perfection of that  sovereignty.   The  people  are not
the less sovereign, because they institute governments,
and appoint them as agents to transact their business;
although they necessarily delegate a portion of their sovereign powers to these agents, or governments. On the
contrary, this is the very highest exercise of sovereignty,
and implies the right to alter, amend, or remodel their
governments. Nay, it implies the right of a people to set
their government entirely aside, and to substitute another
in its room.
What, then, has all this talk about the powers delegated to the State Governments, or to the Federal Government, to do with the great question of sovereignty?
Those governments are not sovereign. They are subordinate to the-will of the people, by whom they were created;
and a subordinate sovereignty is a contradiction in terms.
The only real sovereignty is that which makes, and
unmakes, Constitutions and Governments. Or, if any one
is pleased to call any Government whether State or Federal, sovereign; he should not forget that it is merely a
delegated sovereignty. It is not original; it is derived. It
is pot inherent; it comes from without; and, instead of
132 
IS DAVIS A TRAITOR?
being supreme, it depends on a power greater than itself.
It is divisible, and may be divided among different governments, or agents of the supreme power. On the contrary,
the sovereign power of a State, or, in other words, the
power of the people of a State, is inherent, original, supreme, indivisible, and inalienable. This, at least, is the
American doctrine; and it is to be deeply lamented that
Americans should, in the ardor and struggle of debate, so
frequently forget, or overlook, the very first lessons they
have ever learned, and which they certainly do not mean
to repudiate or discard.
I have nothing to say, then, about the delegated powers
of this or that government. They have nothing to do
with the question. Others may wrangle about those
powers, if they please, and beat their brains over them;
all I want to know is, where resides the one power from
which all such delegated powers proceed. The difference
between this.one power and the powers of the government
it creates, is the difference between the sun and its rays,
or the creator and its manifold creations. Where, then,
does this one sovereign power reside? It resides, as we
have seen, in each State, and not in the people of the
United States. The people of the United States, indeed,
were not one people, or nation, in the political sense of the
word, and were never clothed with any sovereign power
whatever. The late war was, it is true, carried on "to
preserve the life of the nation." But there was no such
nation. Its substance was a sham, and its life was a lie.*
As the one sovereign power, which makes, and therefore
unmakes, Constitutions and Governments, resides in each
State; so each State had the right to secede from the Federal Government. As each State, however, only made or
adopted that Government for itself; so she could unmake it as to herself only. That is, she had no power to
destroy the Federal Union, but only to withdraw from it,
* See chap. xv.
133
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and let it move on in its own sphere. In the exercise of
her original, inherent, indivisible, and inalienable sovereignty, she merely seceded from the Union to which he
had acceded, and asked to be let alone. But she could not
escape the despotic, all-devouring LIE, by which her sovereignty had been denied, and her rights denounced as "a
pestilential heresy." Nay, by which she had been stripped
of her character as a State, and degraded to the rank of a
county. Was that the purpose for which, as a sovereign
State, she entered into "the more perfect Union?"
"No man," says Mr. Webster, "makes a question that
the people are the source of all political power...........
There is no other doctrine of government here."* This
is conceded. The people make, and the people unmake,
Constitutions. This is the universally received doctrine
in America. It is asserted by Calhoun as strenuously as
by Webster.
But the Constitution was made by the people of the
several States, each acting for itself, and bound by no
action but its own.  Hence. as each State acceded to the
compact of the Constitution, so each State may, if it
choose, secede from that compact.  If the premise is true,
the conclusion is conceded; and the premise has been demonstrated. In acceding to the compact of the Constitution,
each State made the Union as to itself; and, in seceding
therefrom, it unmakes the. Union only as to itself. And
it does so by virtue of its own inherent, and inalienable
sovereignty.
If it should be said, that the people of the several States
made, but cannot unmake, the compact of the Constitution
as to themselves; it would follow that the people of 1788
alone were sovereign. But the people of this generation
are sovereign as well as the people of that generation. The
attribute of sovereignty is, according to the American doctrine, inherent and inalienable. The people of Virginia,
* Webster's Works, vol. vi. p. 221.
134 
IS DAVIS A TRAITOR?
then, in the year 1788, did not, and could not, absorb and
monopolize the sovereignty of all subsequent generations,
so as to deprive them of its exercise. If this could be so,
then the sovereign people of one age, or generation, might
deprive the sovereign people of all ages and generations
of their power and freedom. But this cannot be. The
living, as well as the dead, are sovereign. As the people
of Virginia in 1788 acceded to the Union, because they
believed it would be for their good; so the people of Virginia in 1861 had a right to secede from the Union, because
they believed it had been made to work their insufferable
harm. Deny this, and you assert the sovereignty of the
people of Virginia of 1788, at the expense of the sovereignty of the people of Virginia for all future ages. Or, in
other words, you take all power, and sovereignty, and
freedom from all other ages and generations, in order to
concentrate and bury them with a past, departed, inexperienced, and perhaps fatally deluded generation.  The
whole American doctrine of the sovereignty of the people
is false, or else it must be asserted for the living as well as
for the dead; and even if it is false, it is nevertheless the
doctrine by which the right of secession should be tried.
At the time the Constitution was adopted, or "the more
perfect Union" formed; the people of New England took
the lead of all others in their devotion to State-sovereignty
and State-rights. Thus, in her Constitution of 1780, Massachusetts declared: "The people of this commonwealth
have the sole and exclusive right of governing themselves,
as a free, sovereign, and independent State; and do, and
forever hereafter shall, exercise and enjoy every power,
jurisdiction, and right, which is not, or may not hereafter,
be by them expressly delegated to the United States of
America, in Congress assembled."  Precisely the same
language, word for word, is contained in the Constitution
of New Hampshire; which was made twelve years after
that of Massachusetts.  Thus, after the new Union was
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formed, New Hampshire, in the words of Massachusetts,
declared herself a "free, sovereign, and independent
State." "Paris," it has been said, "is France." It is more
certain that "Massachusetts is New England."
How did it happen, then, that Massachusetts in 1780,
and consequently New England, took the lead of all
the members of the Union in her devotion to the doctrine
of State-sovereignty; and yet, in 1861, more fiercely
denounced that very doctrine as "a pestilential heresy"
than any other State in existence? The answer is plain.
The mystery is easily solved. Or rather, it is no mystery
at all to any one acquainted with the character, or the
history, -of Massachusetts. Never has she been in the
ascendency, as in 1861, or with the majority working the
Union for her benefit, that it did not appear to her eyes,
like the full moon, a great world of light full of inexpressi ble beneficence and beautv. Nor has she ever been in
the-minority, feeling the pressure of the Union, or its
demands upon her purse, that it did not rapidly wane, and
appear to her emptied of all its glory. Hence, in 1861, so
great was the glory of the Union to her enravished eyes,
that it -blotted out the States; just as the meridian sun
blots out the stars.  She forgets her primitive creed; or,
if she remembers it at all, it is only to denounce it as the
creed of "rebels and traitors." On the other hand, when,
in 1815, Massachusetts felt'the Union in her pockets; all
its glory vanished, and the Rights of the States, and the
Sovereignty of the States, came out to her  keen vision
like stars after the setting of the sun. This has been the
great misfortune of the South, that the world did not turn
around quite as fast at her end of the Union as it did in
New England; and that it did not turn exactly in the
same direction. The creed of the fathers, the creed of all
sections in 1787, the creed of all the States for more than
thirty years after the formation of the "more perfect
Union;" was substantially the creed of the South in 1861.
136 
IS DAVIS A TRAITOR?
There she stood. But, in the mean time, Massachusetts,
and consequently all New England, having made one entire
revolution, denounced her primitive creed,-still the creed
of the South,-that the States are "free, sovereign, and
independent," as the invention of rebels and traitors,
designing to put the glorious Union out of joint. True,
the South did dislocate the Union, and breed fiery discord;
but then, this was simply by standing still, and refusing to
follow the rapid revolution of New England.
Argument from the silence of the Constitution.
It is a remarkable fact, that, in the Constitution of the
United States, there is not a word relating to the perpetuity or continuance of the Government established by it.
This momentous question is passed over in profound
silence. Nor was this omission an act of forgetfulness.
It was, on the contrary, the result of deliberate design.
The existing Articles of Confederation expressly provided
that the government established by them should be "perpetual," and should never be changed without the unanimous consent of all the States of the Union. This provision was deliberately struck out, or not permitted to
appear in the new Constitution.   In the act of receding
from the compact of the Union, which had expressly pronounced itself "perpetual," the fathers had not the face
to declare that the new compact should last forever.
Time had demonstrated the futility of such a provision.
The Convention of 1787 had been most sadly hampered
by it in their design to erect a new form of government,
as appears from the Madison Papers, and other accounts
of its proceedings. - Hence they wisely determined to
leave no such obstacle in the way of the free action of
future generations, in case they should wish to new-model
their government. It is certain that no such obstacle is
found in the Constitution framed by them.
Now what is the inference from this fact, from this
137
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omission? If the framers of the Constitution designed tc
make it perpetually binding, why did they not say so? Nay
why did they depart from the plan before them, and
refuse to say so?  Only one answer can be given to thil
question. They did not intend to repeat the folly of seek
ing to render perpetual, by mere dint of words, those
Articles of Union between Sovereign States, whose bind
ing force and perpetuity must necessarily depend on the
justice with which they should be observed by the parties tc
them, or on their adaptation to the great ends for which
they were enacted. The perpetuity, or continuance, of
the new Union was frequently alluded to and considered
in the Convention of 1787; and yet there is not one sylla
ble on the subject in the Constitution made by them.
This speaks volumes.
It is argued, in the Federalist,* that as the old Articles
of Confederation had utterly failed in consequence of
defects which no one had foreseen; so the real objections
to the new Constitution, whatever they might be, would
in all probability remain to be disclosed by time and experience. Reasoning from the past, it was concluded,
that no one could foresee'what its real defects were, or how
great they might prove in practice. Would it not, then,
have been infinitely absurd to pronounce it perpetual, or
seek to stamp it with the attribute of immortality?
The truth is, that the new Constitution was designed by
its authors to last just as long as it should be faithfully
observedby the parties to it, or as it should answer the
great ends of its creation, and no longer. On the failure
of either of these conditions, then, in their view, the power by which it was ordained possessed the inherent and
indefeasible right to withdraw from it. Otherwise there
would be no remedy, not even in the sovereign power
itself, for the greatest of all political evils or abuses.  Otherwise we should have to repudiate and reject the great
* No. XXXVIII.
138 
IS DAVIS A TRAITOR? 
principle of American freedom, which has never been
called in question by any statesman of the New World,
or over which the least cloud of suspicion has ever been
cast by any American citizen.
What, then, is the position assumed by those who deny
the right of secession? In asserting that a State has no
right to withdraw from the Union, they declare that the
Constitution, or Articles of Union, is perpetually binding.
That is to say, by a forced construction, they introduce
into the Constitution, the very provision which its framers
most deliberately refused to insert therein! They refused
to say, that the new compact should be perpetual; and
yet these interpreters declare, that they designed to make
it perpetual!
Both Story and Webster admit, as we have repeatedly
seen, that if sovereign States enter into a compact or Confederation, without expressly prescribing any period for
the continuance of the Union; then any State has the
right to secede at pleasure. This is the true inference to
be drawn from the silence of the Constitution as to the
continuance of the Union; an inference too clear and unquestionable to be denied by either a Story or a Webster.
If they have sought to evade its force, or obscure the
right of secession; this is by assuming the ground, so
fully exploded in the preceding pages, that the Constitution was not a compact between the States of the Union.
"It is sometimes asked," says Mr. Motley, "why  the
Constitution did not make a special provision against the
right of secession. How could it do so?" * Why, simply,
by transferring the words of the old Constitution to the
new, and saying "the union shall be perpetual." There is
no impossibility in the case. The thing had been done
once, and it might easily have been done again, if the framers of the Constitution had desired to do it. Many
words, phrases, and provisions of the old Constitution
* Rebellion Record, Vol. I. p. 214.
- 139 
IS DAVIS A TRAITOR?
were transferred by them to the new; and if they ha
wished to do so, they might just as easily have transfer
red those words, "the union shall be perpetual," or las
till all the parties consent to a separation. "How coul(
they do so?" asks Mr.fotley; and I reply, how could h
ask so silly a question?
"It would have been puerile," says he, "for the Consti
tution to say formally to each State, thou shalt not secede.'
There was no necessity, perhaps, that the Conventioi
should have been very formal in the language it addresse(
to the States. But would it have been puerile, or ridicu
lous, if the Convention had said, "the Union shall be per
petual." Who can doubt that if these words had bee inserted in the new Constitution, that Mr. Motley woul(
have wielded them as an unanswerable argument agains
the right of secession? Indeed, these words answer thapurpose so well, that Dr. Hodge borrows them from the
old Articles of Confederation, and passes them off as "the
very words" of the Constitution,.in order to demonstrate
the palpable absurdity of secession; in order to show
that secession is in direct and open defiance of "the avowed design of the compact" of 1787. These words were,
indeed, the very ones he needed to demolish the right of
secession; and his need was so great, that he came at
them in no very legitimate way. Could any thing be
more feeble, or puerile,  than Mr. Motley's attempt to
account for the silence of the Convention on the momentous subject of secession? or more clearly illustrate the
difficulty of getting rid of the argument from that silence
in favor of secession? The truth is, that the Convention,
in its desire to secede from the old compact, was so greatly embarrassed by the clause declaring that "the Union
shall be perpetual," that it deliberately removed that
obstacle from the path of future legislation: and, whether
it was intended by the Convention or not, the legal effect
of this was to establish the right of secession under the
new compact between the same parties.
140 
IS DAVIS A TRAITOR?
Argument from the Fundamental Principle of the Union.
"To render a Federation desirable," says  Mr.  John
Stuart Mill, "several conditions are necessary.   The first
of these is, that there should be a sufficient amount of mutual sympathy among the populations."* This sentiment
recommends itself to the good sense of every man in the
world; nay, to every manwho is not insane from the influence of passion. Even Mr. Greely, before he war, could
say,-" We hope never to live in a Republic, whereof one
section is pinned to another by bayonets."  Such is indeed the desire of every good man, nay, of every rational
being; for, as Mr. Mill says, no union of States is desirable,
unless it be held together by the cement of good feeling,
5s well as of interest.
In like manner, John Quincy Adams says: "The indissoluble link of union between the people of the several
States of this confederated nation is, after all, not in the
right, but in the heart. If the day should ever come, (may
Hleaven avert it) when the affections of the people of these
States shall be alienated from each other; when the fraternal spirit shall give way to cold indifference, or collision
of interest shall fester into hatred, the bands of political
associations will not long hold together parties no longer
attracted by the magnetism of conciliated interests and
kindly sympathies; AND FAR BETTER WILL IT BE FOR THE
PEOPLE OF THE DISUNITED STATES TO PART IN FRIENDSHIP
FROM EACH OTHER, THAN TO BE HELD TOGETHER BY CONSTRAINT.  Then will be the time for reverting to the
precedents which occurred at the formation and adoption
of the Constitution, to form again a more perfect union,
by dissolving that which could no longer bind, and to leave
the separated parts to be re-united by the law of political gravitation to the centre."
"Better," says Mr. Adams, "to part in friendship, than
* Representative Government., chap. xvii.
141 
IS DAVIS A TRAITOR?
to be held together by restraint." History, it is said
repeats itself. Some of the Greek States, wishing to pairin peace from their confederates, were held together
by force of arms.  This, says Freeman, in his learned wor1on Federal Government, ultimately proved injurious' t
those who drew the sword of coercion.
Argument from the Right of Self-Government.
The thirteen Colonies, in the Declaration of Independ
ence, justified their separation on the distinct ground, thai
all "governments" derive "their just powers from the con -
sent of the governed."  It was in obedience to this great
principle, that the American Union became a free and voluntary association of States. This, by its very nature, excludes the idea of coercion. For, if States are compelled to
remain in theUnion against their will, this is subjugation,
and not a copartnership in honor, interest, freedom, and glory. It destroys the autonomy, annihilates the freedom, and
extinguishes the glory of the subjugated States. The system is transformed. It is no longer a sisterhood of free
States,Ebut the vassalage of some, and the dominion of others.
This is so obvious, that it was declared at first, even by the
most zealous advocates of President Lincoln, that one no
intended to coerce a State.  What then?  Did they mean
to let it go in peace?  No, they neither intended to coerce
a seceding State, nor let it depart!  But how was such a
thing possible? Why, these admirable casuists, by a most
refined and subtle distinction, determined that they would
not coerce a State, but only the people of whom it is composed! The State secedes. The citizens acknowledge
their allegiance to the State, and determine to obey the
ordinance of secession. And thereupon the Federal Government resolves to wage war, not upon the State itself,
but only upon the people of the State l Happy State 
Miserable people  The one may depart; but the other
must come back!  But if the  Federal Government had
142 
IS DAVIS A TRAITOR?
only waged war upon the State, hay would it have proceeded otherwise than it did?
The authors of this very nice distinction, were evidently
driven to assume such a position, by the horror which
Madison, Ellsworth, Mason, Hamilton, and other fathers
of the Constitution, were known to have expressed at
the idea of the coercion of a State. No! they would not
coerce a State; they would not be guilty of the horrid
thing so eloquently denounced by the fathers; they would
only wage war on the men, women, and children of whom
the State is composed! How admirable the acutenessl
How wonderful the logic.
In 1848, Mr. Lincoln had not forgotten his very first,
and nearly his very last, lesson in the science of government. He had read it in the Declaration of Independence; he had heard it recited in school; he had heard it
most eloquently spouted every fourth of July. How,
then, could he forget it, without some very powerful motive? No humble rail-splitter, no honest citizen, could
forget such a lesson.  It requires a great politician, or a
President, to forget, despise, and trample such things under foot. Hence, in 1848, the humble citizen, Abraham
Lincoln, like every other American citizen, publicly declared, that "any people whatever have the right to abolish the existing government, and form a new one that
suits them better. This is a most valuable, a most sacred
right."  Yes, any people whatever;  the thirteen British
Colonies;  the Greeks;  the States of South America;
Poland; Hungary; any and every people under the wide
expanse of heaven; except the people of the South. But
why except the South?  The reason is plain.  It was, in deed, most perfectly and fully explained by Mr. Lincoln
himself. When asked, as President of the United States,
"why not let the South go?" his simple, direct, and honest
answer revealed one secret of the wise policy of the
Washington Cabinet.   "Let the South go!"  said he.
143 
IS DAVIS A TRAITOR?
"where, then, shall we get our revenue?" There lies the se cret.   The Declaration of Independence is great; the
voice of all the fathers is mighty; but then they yield us
no revenue. The right of self-government is "a most
valuable, a most sacred right;"  but in this particular
case, it gives us no revenue. Hence, this "most valuable,
this most sacred right," may and should shine upon every
other land under heaven; but here it must "pale its ineffectual fires," and sink into utter insignificance and contempt in the august presence of the "ALMIGHTY DOLLAR."
As the object of the Black Republican leaders, in wishing to retain the South, was not to lose revenue; so now
that they have the South, the only use they have for her
is to lay taxes and other burdens of government upon her.
In open and shameless violation of the great principle of
'76, the South is united to the North by the tie of "taxation without representation."  Is this "the sacred right"
of self-government?  The Union waged a seven years war
to establish that right, and a four years war to demolish it.
Every American citizen has taken in the idea of selfgovernment with his mother's milk; has heard it from all
his most venerated guides, teachers, and oracles; has proclaimed it himself, perhaps, all his life as "a most valuable,
and a most sacred r ght." Hence, he should not be
required, all on a sudden, to proclaim the diametrically
opposite doctrine. He should be allowed some little time,
at least, to clear his throat for the opposite utterance.  Is
it not quite natural, then, that his early and life-long prejudice in favor of the right of self-government, should have
clung to the Editor of the Tribune, the great organ of the
Republican party, even while that party was preparing
the way for its subversion?  True, it was but an organ; yet
had it so long, and so earnestly, proclaimed the great right
of self-government, that some little time, at least, should
have been allowed for it to come right around to the diametrically opposite position.   Accordingly, on the 9th
144 
IS DAVIS A TRAITOR?
of November, three days after M1r. Lincoln's election, that
organ uttered the sentiments: "If the cotton States
shall become satisfied that they can do better out of the
Union than in it, we insist on letting them go in peace.
*      *               *    *         *       *.
We  must ever resist the right of any State to remain
in the Union and nullify or defy the laws thereof. - To
WITHDRAW FROM THE UNION IS QUITE ANOTHER MATTER;
and whenever any considerable section of our Union shall
deliberately resolve to go out, WE SHALL RESIST ALL COERCIVE MEASURES DESIGNED TO KEEP IT IN.  We hope never
to live in a Republic whereof one section is pinned to
another by bayonets."
Again, on the 17th December, just before the secession
of South Carolina, the same organ said:  "If it [the Declaration of Independence] justifies the secession from the
British Empire of three millions of colonists in 1776, WE
DO NOT SEE WHY IT WOULD NOT JUSTIFY THE SECESSION OF
FIVE MILLIONS OF SOUTHERNERS FROM THE FEDERAL UNION
IN 1861.  If we are mistaken on this point, why does not
some one show us wherein and why?  For our own part,
while we deny the right of slaveholders to hold slaves against
the will of the latter; we cannot see how twenty millions of
people can hold ten, or even five, in a detested Union with them
by military force.*  *  *  *  *  *  If seven or eight contiguous States should present themselves authoritatively
at Washington, saying,'We hate the Federal Union; we
have withdrawn from it; we give you the choice between
acquiescing in our secession and arranging amicably all
incidental questions on the one hand and attempting to
subdue us on the other, WE COULD NOT STAND UP FOR COERCION, FOR SUBJUGATION, FOR WE DO NOT THINK IT WOULD
BE JUST. WE HOLD THE RIGHT OF SELF-GOVERNMENT EVEN
WHEN INVOKED IN BEHALF OP THOSE WHO DENY IT TO
OTHERS.  So MUCH FOR THE QUESTION OF PRINCIPLE.'.
*   *   *              ~~*      *       *       *
*
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"Any attempt to compel them by force to remain would
be contrary to the principles enunciated in the ifmmortal
Declaration of Independence, contrary to the fundamental
ideas on which human liberty is based."
On the 23d February, 1861, after the cotton States had
formed their confederacy, the Tribune used this language:
"We have repeatedly said, and we once more insist, that the
great principle embodied by Jefferson in the Declaration
of American Independence, that Governments derive their
just powers from the consent of the governed, is sound
and just; and that if the slave States, the cotton States, or the
gulf States only, choose to form an independent nation, THIEY
HAVE A CLEAR MORAL RIGHT TO DO SO. Whenever it shall
be clear that the great body of Southern people have become
conclusively alienated from the Union, and anxious to escape
from it, WE WILL DO OUR BEST TO FORWARD THEIR VIEWS."
President Buchanan, from whose interesting book the
above extracts have been taken, adds:  "In a similar spirit,
leading Republicans everywhere scornfully exclaimed,
'Let them go;''We can do better without them;''Let the
Union slide,' and other language of'the same import."
Before the war, it was indignantly denied, that the
abolitionists constituted more than a small minority of
the Republicans.  Hlow is it since the war?  Does not
almost every man of them now claim that he has always
been an abolitionist, and, as such, come in for his share
of glory in the forced emancipation of the slaves? It is
certain, that of all the men in the Union, the abolitionists
of the Republican party were the most active asserters,
and the most powerful promoters, of secession and disunion.  They everywhere proclaimed, not only the right,
but the sacred duty of secession. William Lloyd Garrison
led the way.'"In the expressive and pertinent language
of Scripture," said he, the Constitution'was a covenant'
with death, and an agreement with hell,' null and void
before God, from the first moment of its inception-the
146 
IS DAVIS A TRAITOR?
framers of which were recreant to duty, and the supporters
of which are equally guilty."* Yet, how strange! the
men of this school enlisted in the ranks, and fought under
the banner of 3Mr. Lincoln; who was bound by his.oath to
support that "covenant with death and agreement with
hell!" Did they fight for the Constitution? Did they
heartily join in the cry for the Union?
Again, he said, "the motto inscribed on the banner of
Freedom is, no Union with slave-holders"t * * * *
"Our motto is, no Union with slave-holders, either religious or political."I [I am holier than thou!] "In withdrawing from the American Union, we have the God of justice with us."~ Did this man, then, or his followers,
fight for the Union? "Circulate," he cried, "a declaration of DISUNION FROM SLAVE-HOLDERS THROUGHOUT THE
COUNTRY.  Hold mass meetings-assemble in Conventions
-nail your banners to the mast." II Did these men, then,
take down their banners, trample its motto in the dust,
and join the loud war-cry for the Union of the fathers?
If so, then it was not because they hated that Union the
less, but because they hated Southerners the more.
Now this man William Lloyd Garrison was an honest
fanatic. Hie just came right down with a direct sledgehammer force on all slave-holders, and on all the poor,
pitiful, pulling hypocrites, who pretended to desire to preserve the Constitution and the Union;  and who, to that
end, labored to explain away the provisions of that "sacred
compact," as they delighted to call the Constitution.
' Those provisions," said they, " were meant to cover slavery," yet "as they may be fairly interpreted to mean
something exactly the reverse, it is allowable to give
them such an interpretation, especially as the cause of Freedom will be thereby promoted." ~ In thus stating this hypocritical position, Mr. Garrison must have had Mr. Sumner in
* Anti-Slavery Examiner, Vol. xi, p. 101.   -   t Ibid, p.101.
Ibid, p. 118.  { Ibid, p. 119.  {l-Ibid, p. 119.   ~ Ibid, p. 104.
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his mind's eye. But with honest scorn and contempt he
tears the mean fabric to tatters, and scatters it to the
winds! "This," says he, "is to advocate fraud and violence to one of the contracting parties, whose co-operation
was secured only by an express agreement and undertaking
between them both, in regard to the clauses alluded to; and
that such a construction, if enforced by laws and penalties,
would unquestionably lead to civil war, and the aggrieved
party would justly claim to have been betrayed, and robbed of
their Constitutional rights."*
"No honest use can be made of it," says he, "in opposition to the plain intention of its framers, except to declare
the contract at an end, and to refuse to serve under it."]'
It is of no use to lie, said he, the Constitution is "a contract" between the States; an "express agreement and
undertaking" between the North and the South.  Hie
will not have this "express agreement" explained away.
"It is objected," says he, "that slaves are held as property, and therefore, as the clauses refers to persons, it cannot mean slaves. Slaves are recognized not merely as
property, but also as persons,-as having a mixed character-as combining the human with the brute.  This is
paradoxical, we admit; but slavery is a paradox- the
American Constitution is a paradox-the American Union
is a paradox-the American Government is a paradoxand if any one of these is to be repudiated on that ground,
they all are. That it is the duty of the friends Of freedom to deny the binding authority of them all, and to
secede from all, we distinctly affirm." I
Such were the sentiments of Mr. Lloyd Garrison, in
1844, delivered in their annual address to the Anti-Slavery
society of America, as its president.   Precisely the same
sentiments were entertained by the two learned secretaries
of that society, namely, Wendell Phillips and Mfaria Weston
*Anti-Slavery Examiner, Vol. xi, p. 1 04.
t Ibid.:Ibid. p. 114.
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IS DAVIS A TRAITOR?
Chapman, as well as by all its leading members. They
proclaimed the duty of secession from the Constitution,
from the Union, and from the Government of America.
They wished to have nothing to do with slave-holders.
In the mild and conciliatory language of their president,
they longed to get away and to live apart from those
"incorrigible men-stealers, merciless tyrants, and blood-thirsty
assassins." *
Such was the gentle and persuasive language, and such
were the loyal sentiments, of the abolitionists from 1844
to 1861. The following resolutions were passed at a meeting of the American Anti-Slavery Society:
Rlesolved,'That secession from the United States Government is
the duty of every Abolitionist, since no one can take office or deposit
'his vote under the Constitution without violating his anti-slavery
principles, and rendering himself an abettor to the slave-holder in
' his sill.'
Resolved,' Th-at years of warfare against the slave power has con' vinced us that every act done in support of the American Union
'rivets the chain of the slave-that the only exodus of the slave to
' freedom, unless it be one of blood, must be over the remains of the
'present American Church and the grave of the present Union.'
Resolved,'That the Abolitionists of this country should make it
'one of the primary objects of this agitation to dissolve the American Union.'
Yet  of all the war-spirits in  the country, these very
men were the loudest and fiercest in their cries for a war
of coercion to put down secession, as rebellion and treason. In its burning hate of the Union, the Tribune had
become poetical, and addressed TIHE AMERIcAN FLAG as
follows:
Tear down that flaunting lie!
Half-mast the starry flag!
Insult no sunny sky
With hate's polluted rag I
But, all on a sudden, that "polluted rag" became the most
* Anti-Slavery Examiner, Vol. xi, pp. 111-12.
149
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IS DAVIS A TRAITOR?
sacred ensign of freedom that ever floated between heaven and earth!  The cry has gone forth: "This Union is a
lie! The American Union is an imposition. * * * I
am for its overthrow. * * * Up with the flag of disunion, that we may have a glorious Republic of our own."
But anon and from the same person, the opposite cry is
heard: "Down with the flag of disunion, and up with the
flag of the Union, that we may'preserve the life of the nation,' the glorious Republic of the fathers."' Even the despised Constitution, "the antiquated parchment" of HIenry
Ward Beecher, becomes all at once young, and fresh, and
beautiful again; and that Reverend gentleman stands before the world at Exeter Hall as the grand representative
of the "constitutional union" party of this country.
Is there, in the history of the world, another instance
of a change so sudden, so complete, and so wonderful in
the avowed sentiments of any great body of men, as that
which took place among the abolitionists of this country
in 1861? Now whence all this intense love of the Union,
where recently there had been such deadly hate? Whence
this new-born desire to be forever associated with "the
merciless tyrants, the blood-thirsty assassins" of the South?
The truth is, they did not lovc the Union then, and they
do not want the Union now. They raised the cry of
"the Union;" because, as one of their leaders said, they
believed they could "win on the Union." And having
ridden into power on "the Union," and consolidated their
power in the name of "the Union;" they now resist the
persistent efforts of President Johnson to restore the
Union.
But Mlr. Greely has, in his "American Conflict," made a
most awkward and unsatisfactory attempt to explain the
course of the Union-hating and the Union-loving Tribune.
It was, perhaps, a little difficult for him to speak out all
that was in him on this delicate subject. The truth seems
to be, 1. That the word which went forth from President
150 
IS DAVIS A TRAITO R?
Lincoln, "If we let the South go, where shall we get our
revenue?" is one of the causes of the great change in
question. Several books had, in 1860, been published to
illustrate the subject of "Southern Wealth and Northern
Profits," and, upon reflection, the North concluded that,
after all, she had some use for the South. She was naturally indignant at the thought of losing the bird, which
had so long laid for her the golden egg. 2. Secession
offered a splendid opportunity, or occasion, on which to
wreak a little wrath on the slave-holders of the South, on
those "incorrigible men-stealers, merciless tyrants, and
bloodthirsty assassins," who so richly deserved to die.
But it would, of course, be much more respectable to kill
them as "rebels and traitors," than merely as slave-holders. iHence, the very men who had been foremost and
fiercest in preaching the duty of secession and disunion,
became, all on a sudden, the most clamorous for the blood
of secessionists as traitors to "the glorious Union." As
the cynic, Diogenes, trampled on the robe of Plato's
pride with a still greater pride; so the abolitionists panted
for the blood of "blood-thirsty assassins" with a still
greater thirst. EHence, more than any other class of men,
they insisted that Mr. Lincoln, however reluctant, should
"cry havoc, and let slip the dogs of war.1' 3. Secession
furnished a fine pretext, a glorious occasion, for the forced
emancipation of the slaves at the South. Hence, just before 3Mr. Lincoln publicly declared that he had neither the
wish, nor the power, to interfere with slavery in the
States, the word privately went forth from a member of
his Cabinet, that secession should be punished with the
emancipation of the blacks; and with the utter devastation of the South. by fire and sword.* This word was,
of course, intended for "the  faithful."   For if, at that
*Perhaps that member of his Cabinet knew the design of Mr.
Lincoln's administration better than it was then known to Mr. Lin.
coin himself.
151 
IS DAVIS A TRAITOR?
early day, such a design had been publicly avowed, it
would have filled the North with  amazement, horror,
and disgust.  But has it not been accomplished to the
very letter?
Such were the causes, especially the last two, by which,
it seems to me, so wonderful a revolution was produced in
the political views and aspirations of the Northern abolitionists. The change appeared like magic. "The antiquated parchment" was renovated; the "polluted rag"
was purified; and the Union became, not only habitable,
but the only fit habitation for free men. But, then, the
Union was not to be "the more perfect Union" of the
fathers; the Constitution was not to be the compact of
1787; and "hate's polluted rag" was to be consecrated
and glorified by hate. On the contrary, the Union was
to be cast into the furnace of war, seven times heated,
and to come forth free from the sin of slavery, and
cemented, not by "the mutual sympathy of its populations," but by their blood.  It was to be a new Union; a
bright and beautiful emanation, not from the consent of
the governed, but from the sovereign, the supreme, the
sublime will of the Northern abolitionists. How lustily
soever they joined in the war-cry for the Union, this was in
order that they might the more effectually overthrow it, and
ordain one of their own in' its place. Is not this the true
secret of their new-born love for "the glorious Union?"
Previous to the war, it was frequently alleged, that the
abolitionists constituted only a small minority in the Republican party. It is certain, that they controlled the
policy of Mr. Lincoln's administration.  "The higher
law," "the law written on the hearts and consciences of
freemen," was the rule of their conduct. For the Constitution, for the compact of 1787, for that "covenant with
death and agreement with hell," they cared less than
nothing; except when it agreed with their own will, or
could be made a pretext for their dark designs. The fact,
152 
IS DAVIS A TRAITOR?
that there was not the shadow of an authority for coercion
in the Constitution, had not the least weight with them.
Nay, if the power to coerce had been expressly denied to the
Federal Government in the Constitution; this provision
would have been easily explained away, or overruled by "the
law written on the hearts and consciences of freemen." It
would have been but a "straw to the fire i' the blood."
President Buchanan could not find the power to coerce
a State in the Constitution he had sworn to support. In
like manner, Professor Bernard, of Oxford, England, finding no authority for the coercion of a State in the Constitution of 1787, pronounces it wrong. The same ground
is taken by M3r. Freeman, of the same University, in
his learned work on Federal Government. But if coercion is a wrong under the Constitution; then, surely,
secession is a Constitutional right. Every man has the
legal right to do any thing, which is not forbidden by the
law of the land. Hie may not have the moral, but he has
the legal, right to do it. A miserly act, for example, especially in a rich man, is morally and socially wrong.  But
if there is no law against it, then, however rich the man
may be, he has the legal right to do it. We may despise
the act; we may abhor it; and we may denounce it as
bitterly as any one ever denounced secession. But still,
in the case supposed, the act is done in the exercise of
a legal right; which every one is bound to recognize and
respect. This ambiguity in the term right has, indeed,
been the source of no little darkness and confusion in the
discussion of moral and political questions. M31r. Buchanan
seems to have been confused by this ambiguity, when he
denied both the right of coercion and the right of secession. Surely, both positions cannot be true, in the legal
sense of the term right.  For, if we say, that coercion is
a constitutional wrong, or usurpation, is not this saying that
the Constitution permits secession, or, in other words, that
it is a Constitutional right?
8*
153 
IS DAVIS A TRAITOR?
This appears so clear to my mind, that when Mr.
Buchanan denied the right of secession, I suppose he
merely intended to condemn secession as a moral or social
wrong.  This is the way in which he must be understood,
if we would not make him contradict himself. He may
have dreaded, he may have abhorred, the act of secession;
and he may, therefore, have pronounced it wrong in the
forum of conscience. But if the Constitution does not
authorize coercion, then it permits secession; or, in other
words, secession is a Constitutional right, which every
power on earth is bound to respect as existing under the
supreme law of the land; a Constitutional right, which the
Federal Government could deny only by an act of usurpation.
Coercion is unconstitutional. Coercion is wrong. Coercion strikes down and demolishes the great fundamental
principle of the Declaration of Independence,-the sacred
right of self-government itself.  Coercion wages war on
the autonomy of free States. Secession, on the other
hand, asserts the right of self-government for every free,
sovereign, and independent State in existence.
Virginia did not favor secession.  But when the hour
of trial came, she stood in the imminent, deadly breach
between the secession of South Carolina and the coercion
of Massachusetts; receiving into her own broad bosom the
fatal shafts of war, till she fell crushed, bleeding and exhausted to the earth. I appeal to the universe, then, if
her course was not noble, heroic, sublime.
Massachusetts has, on the contrary, favored both secession and coercion by terms.  The pilgrim fathers of Massachusetts delighted in two things; first, in the freedom
from persecution  for themselves; and, secondly, in the
sweet privilege and power to persecute others. In like
manner, their sons have rejoiced in two things; first, in
the right of self-government for themselves; and: secondly,
in the.denial of that right to others
154 
IS DAVIS A TRAITOR?
Argument from the opinion of well-informed and intelligent
foreigners.
The position that secession is a Constitutional right,
flowing from the idea that the Constitution is a compact
between sovereign States, is adopted by many impartial
foreigners, who have been at the pains to examine our
institutions for themselves. Thus, says M. De Tocqueville,
in his celebrated work on' Democracy in America:"
"The Union was formed by the voluntary agreement of the
States; and in uniting together they have not forfeited
their nationality, nor have they been reduced to the condition
of one and the same people.  If one of the States choose to
withdraw from the compact, it would be difficult to disprove
its right of doing so, and the Federal Government would have
no means of maintaining its claims directly either by force or
right."* In like manner, Dr. Mackay says: "The Federal
Government exists on sufferance only. Any State may,
at any time, Constitutionally withdraw from the Union, and
thus virtually dissolve it. It was not certainly created
with the idea that the States, or several of them, would
desire a separation; but whenever they choose to do it, they
have no obstacle in the Constitution." Mr. Spence also, to
whom we owe this extract from Dr. Mackay, comes to the
conclusion, in his able work on "The American Union,"
that secession is a Constitutional right. Nay, he unanswerably establishes this conclusion, by facts which lie on
the very surface of American history, and which, however
they may be concealed or obscured by the influence of
party passions at home, cannot escape the scrutiny of
impartial foreigners, who may simply desire to ascertain
the truth in regard to such questions. After referring to
the opinions of M. De Tocqueville and Dr. Mackay, Mr.
Spence very justly remarks: "Here, secession is plainly
declared a Constitutional right, not by excited Southerners, but by impartial men of unquestionable ability."'t
* Vol. i, Chap. xviii. p. 413.    t The American Union, p. 2011
'-'.:'':
155 
IS DARIS A  TRtAITOR?
An intelligent foreigner, as De Solme, in his admirable
treatise on the Constitution of England, observes, pos sesses some very decided advantages in the study of the
fundamental institutions of a country. This is specially
true in regard to all questions, which have been drawn
into the vortex of party politics, and mixed up with the
struggle for power and the emoluments of office. Never
has its justness been more forcibly illustrated, than in
regard to the conflicting theories of the Constitution of
the United States.  Though Lord  Brougham,  to select
only one example, most profoundly sympathized with the
abolitionists of the North; yet, in spite of all his natural
affinities, the simple facts of history constrained him to
adopt the Southern view of the Constitution.  Hence, in
his work on Political Philosophy, he says: "It is plainly
impossible to consider the Constitution which professes to
govern this whole Union, this Federacy of States, AS ANY
THING OTHER THAN A TREATY."* Accordingly, he speaks
of the American Union of States, as "the Great League."
It required no great research, or profound logic, to reach
this conclusion.  On the contrary, it requires, as we have
seen, the utmost effort to keep facts in the back-ground,
and all the resources of the most perverse ingenuity, to
come to any other conclusion. It is, indeed, only necessary to know a few facts, with which every student of our
history is perfectly familiar, and which are well-stated by
Lord Brougham, in order to recognise the fundamental
principle of the "Great League."  "The affairs of the colonies," says he, "having during tire revolutionary war
been conducted by a Congress of delegates for each, on
the restoration of peace, and the final establishment of
their independence, they formedthis Federal Constitution,
which was only gradually adopted by the different members of
the Great League. Nine States having ratified it, the new
form of government went into operation on the 4th of
* Vol. iii. chap. xxx. p. 336.
:156
:-.1            -     n 
IS DAVIS A TRAITOR?
March, 1789. Before the end of 1790 it had received the
assent of the remaining States."  These facts alone, it is
believed, are absolutely decisive in favor of the position,
that the American Union was a voluntary association of
States, or a compact to which the States were the parties.
Hence it is that foreigners, whether impartial or prejudiced against the South, adopt the Southern view of
the Constitution, when they examine the subject with the
least care.
It is natural, indeed, that foreigners, before they examine the subject, should look upon the American people as
one consolidated nation; for that is the external appearance which they present to those who view the affairs
of this continent from a distance. But like a multiple
star, which in the distance seems to be a single luminary to the naked eye, the American Union is no sooner
approached, or more closely examined, than it is resolved
into a constellation of sister States. Nothing but party
passion, it is believed, can resist so plain a conclusion;
just as the clearest revelations of the telescope were vehemently denied by many of the most learned cotemporaries
of Gallileo. Hence it is that De Tocqueville, and Mackay,
and Spence, and Brougham, and Cantu,* and Iteeren,t as
well as other philosophers, jurists and historians among
the most enlightened portions of Europe, so readily adopt
the Southern view of the Constitution, and pronounce the
American Union a confederation of States.
Argument from the Virginia Ordinance of Ratification.
A great many unfounded objections were urged against
the Constitution by its enemies.  Mr. Madison has, in the
thirty-eighth number of the Federalist, drawn a powerful
picture of "the incoherence of the objections to the plan
proposed;" that is, to the Constitution of'87. Now this
* Historie Universelle, originally written in Italiad, vol. 17, p. 371.
t "European States and Colonies," p. 350-351.
157
:'. I..::...I
0 
IS DAVIS A TRAITOR?
chaos of conflicting objections, which were raised by the
enemies of the Constitution in order to defeat its adoption,
could not truly reflect the nature and design of that plan
for the government of the Union. Yet, however strange
it may seem, Mr. Justice Story and Mr. Webster have,
as we have seen,* selected one of these objections to show
what the Constitution is; though this very objection had
been most triumphantly refuted by Mr. Madison, both in
the Federalist and in the ratifying Convention of Virginia.
By the same sort of logic if logic it may be called, they
might have fastened almost any other absurd interpretation on the Constitution, as well as the construction that
it was ordained by the people of America as one nation,
and not by the several States. By appealing to the objections of Patrick Henry alone, as an authority, they might
have proved that there was "not one federal feature" in
the Constitution of'87, as well as a dozen other glaring
absurdities; and that the fathers of the Constitution did
not know what they were'about when they called the
work of their own hands, "The Federal Government of
these States."
In the ratifying Convention of Virginia, Patrick Henry
frequently' dwelt, with great earnestness, on the danger of
entering into a new and untried Union, from which there
might be no escape. Virginia is now free, said he, and the
mistress of her own destiny. But once in the new Union,
the power of the General Government may be wielded for
her injury and oppression. This result was, in fact, eloquently predicted by Patrick Henry, George Mason, Wil.
liam Grayson, and other members of the same Convention.
This argument proceeded on the supposition, either that
Virginia would not have the right to secede from the
Union, or else that this right would be denied by her oppressors.  The debates in the Virginia Convention of-1788
are, indeed, replete with passages of burning eloquence,
* Chap. xi, pp. 84-5.
158
0 
IS DAVIS A TRAITOR?
which predict the calamities that would fall on that noble
State, as well as on other Southern States, from the oppressions of "the Northern majority."  Hence, the people
of Virginia, in their ordinance of ratification, took the precaution to guard against this danger, by expressly reserving the right to resume the powers delegated to the Federal
Government "whensoever the same shall be perverted to
their injury or oppression."
The view which Virginia has taken of her own ordinance is disputed. The words of this ordinance are as
follows: "We, the delegates of the people of Virginia,
duly elected, &c          Do in the name, and in behalf
of the people of Virginia, declare and make known, that
the powers granted under the Constitution, being derived from
the people of the United States, be resumed by them whensoever
the same shall be perverted to their injury or oppression."
Mr. Webster understood these words, "the people of
the United States," precisely as he understood them in the
preamble to the Constitution. Hlence, he quotes the Virginia ordinance of ratification, in order to show that the
Constitution was established, not by the States, nor by
the people of the States, but by "the people of the United
States in the aggregate," or as one nation. But, as we
have repeatedly seen, this is a false view of the words in
question. They were not so understood by the Virginia
Convention of 1788. In that Convention, Mr. Madison
most clearly and fully explained these words, precisely as
he had previously done in The Federalist. The powers of
the new government are derived, said he, from the people of
the United States, "but not the people as composing one
great society, but the people as composing thirteen sovereignties." Such was the meaning of the words in question,
as explained by James Madison, to whom the Convention
looked for information on the subject, and by whom they
were led to adopt and ratify the Constitution.  Yet these
words are quoted by Webster, Everett, and other politi
0
159
d 
IS DAVIS A TRAITOR?
cians of Massachusetts, in order to show that, in the opinion
of the Virginia Convention of 1788, the Constitution of the
United States was ordained by the people of America as one
nation; and that the people of America as one nation may,
therefore, resume the delegated powers "whensoever they
shall be perverted to their injury or oppression." To
this interpretation and inference, there are several insuperable objections.
In the first place, the Constitution was not to be established by the people of America as one nation, or by' the
people of the United States as one great society;" and
this fact was perfectly well known to the Virginia Convention of 1788. It has already been sufficiently demonstrated, that the Constitution was ordained, not by the
people of America as one great society, but by each People acting for itself alone, and to be bound exclusively by
its own voluntary act. It would be a gross solicism in
language, as well as in logic, to say that the people of the
United States as one great society, might resume powers
which were not delegated by them. The sovereignty which
delegates, is the sovereignty which resumes; and Et is
absurd to speak of a resumption of powers by any other
authority, whether real or imaginary.
In the second place, the evil intended to be remedied
shows the true meaning of the words in question.  The
Virginia people did not fear, that the people of the United States might pervert the powers of the Federal Government for their own oppression. Their fears were for the
weak, not for the strong; not for the people of the United
States in the aggregate, but for the Southern States in
the minority; and especially for the State of Virginia.
They feared, as the burning eloquence of Henry, and
M.ason, and Monroe, and Grayson evinced, that the new
Government would "operate as a faction of seven States
to oppress six;" that the Northern majority would, sooner
or later, trample on the Southern minority. They feared,
160 
IS DAVIS A TRAITOR?
in the language of Grayson, that the new Union would
be made "to exchange the poverty of the North for the
riches of the South." In the words of Henry, "This
Government subjects every thing to the Northern majority. Is there not, then, a settled purpose to check the
Southern interest? We thus put unbounded power over
our property in hands not having a common interest with
us. How can the Southern members prevent the adoption
of the most oppressive mode of taxation in the Southern
States, as there is a majority in favor of the Northern
States? Sir, this is a picture so horrid, so wretched, so
dreadful, that I need no longer dwell upon it."*  Did the
Convention of Virginia, then, seek to quiet these dreadful
apprehensions, by declaring, that the people of the United States "as one great society," might resume the powers of the Federal G6vernment whensoever they should
be perverted to their oppression? By declaring, that this
one great society, or rather the majority of this society,
might resume the powers of the Federal Government
whensoever they should be pleased to use them for the
oppression of the minority? Could any possible interpretation render any legislation more absolutely ridiculous?
It puts the remedy in the hands of those from whom the evil
is expected to proceed! It gives the shield of defence to the
very power which holds the terrible sword of destruction!
The Convention of Virginia spoke "in behalf of the
people of V irginia;" and not in behalf of the overbearing
majority, by whom it was feared these people might be
crushed. They sought to protect, not the people of America, who needed no protection, but the people of Virginia.,
Hence, as the people of Virginia had delegated powers to
the Federal Government, they reserved "in behalf of the
people of Virginia," the right to resume those powers
whensoever they should be perverted to their injury or
oppression.
: Elliot's Debates, Vol. iii, p. 312.
161 
IS DAVIS A TRAITOR?
Now this reservation enures to the benefit of all the
parties to the Constitutional compact; for as all such compacts are mutual, so no one party can be under any
greater obligation than another. Hence, a condition in
favor of one is a condition in favor of all. This wellknown principle was asserted by Mr. Calhoun in the great
debate of 1833, with the remark that he presumed it
would not be denied by Mr. Webster; and it was not denied by him. Hence any State, as well as Virginia, had
the express right to resume the powers delegated by her
to the Federal Government, in case they should be perverted to her injury or oppression.
But, it may be asked, were the powers of the Federal
Government perverted to the injury or oppression of any
Southern State? It might be easily shown, that they
were indeed perverted to the injury and oppression of
more States than one; but this is unnecessary, since the
parties-to the compact, the sovereign States by whom it
was ratified, are the judges of this question.*
*See Virginia Resolutions of'98; Kentucky Resolutions of'98
and'99; the Virginia Report of 1800, &c., &e.
162 
CHAPTER XVII.
Arguments against the Right of Secession.
HAVING considered the arguments in favor of the right
of secession, it is, in the next place, proper to analyze and
discuss those which have been most confidently urged
against that right.  Among these, none have been relied
on with greater confidence, than those which are supposed
to flow from the express language of the Constitution.
This class of arguments shall, therefore, occupy the first
place in the following examination and discussion.
Argument from "the very words" of the Constitution.
Now this argument comes directly to the point.  Let us
see, then, these "very words and avowed design of the
compact"* of 1787, by which the right of secession is
repudiated and rejected. "The contracting parties," we
are told, stipulate that "the Union shall be perpetual."t
Again, the same writer says, "these States are pledged to
a perpetual Union;" quoting, as he supposes, the very
words of tl.e Constitution. But, unfortunately for his
confident argument, these words are not to be found in
the Constitution at all.  They are evidently taken from
the old Articles of Confederation! Would it not be well,
if learned doctors of divinity would only condescend to
read the Constitution, before they undertake to interpretate it for the benefit of their confiding flocks? Especially,
* The Rev. Dr. Hiodge on the State of the Country, p. 24.
t Ibid. p. 25. 
IS DAVIS A TRAITOR?
should they not take some little pains to ascertain "the
very words of the compact" of 1787, before they erect on
its very words the grave charge of treason against their
"Southern brethren?"
The Constitution, says an English writer, does "expressly prohibit the States from entering into any treaty, alliance, or confederation, such as the so-called Southern
Confederacy."* This argument is relied on with great
confidence. It may be found in all the books, pamphlets,
and publications, with which the opponents of secession
have flooded the English public on the "American Question." Yet, as it appears to me, it clearly admits of two
perfectly satisfactory replies.
In the first place, the Constitution, or the new "Articles of Union," is obligatory only upon the members of the
Union. No one supposes that the States could, while
remaining in the Union, form any other "treaty, alliance,
or confederation." But their duty while in the Union is
one thing, and their right to withdraw from the Union is
quite another. In the articles of any partnership, whether
great or small, a clause may be inserted forbidding the
parties to enter into any other partnership of the same
kind, or for the same purpose. Indeed this is often done.
But who, for a moment, ever imagined that such a clause
would render the partnership perpetual, or forever prevent any of its members from withdrawing from the firm?
In the second place, the words in question were transferred from the old to the new "Articles of Union." Thus,
say the old Articles, "No two or more States shall enter
into any treaty, confederation, or alliance whatever
between them."t  Now this clause was binding as long as
the Confederation continued. But did it prohibit "any
two or more States" from withdrawing from the Union,
in order to establish "a more  perfect" one?  By  no
means.  It is, on the contrary, perfectly notorious, that
* Ludlow's History of the United States.   t Art. VI.
0
164 
IS DAVIS A TRAITOR?
some of the States did withdraw from that Union in order
to form the Union of 1787. Hence, nothing but the blind
force of passion can render this clause more obligatory in
the new "Articles of Union," or in the Constitution, than
it was in the old one.
iNay, if words could have made any union of States perpetual, the old Articles of Confederation would still form
the supreme law of the American Union.  For the thirteenth Article expressly declares, that "the articles of this
confederation shall be observed by every State, and the
Union shall be perpetual; nor shall any alteration at any
time hereafter be made in any of them, unless such alterations be agreed to by a Congress of the United States, and
be afterward confirmed by the Legislatures of every State."
Yet, in spite of these words, some of the States did withdraw from that "perpetual union," and formed a new one.
The people of 1787 refused to be bound by the people of
1778. They deemed themselves no less sovereign than
their predecessors.  Hence, in the words of the English
writer above-quoted, "the plan of course failed, like all
similar attempts to fetter future legislation."*
No words, and no principle of law or justice, could render
such Articles of Union forever binding on free, sovereign,
and independent States. Nothing but passion, or brute
force, could have compelled the millions of 1865 to bend
their necks to the legislation of 1787 against their will.
The Union of'87 owed its existence to secession from a
voluntary association of States; and, being itself a voluntary association of States, it could not escape from the
law of its creation. The right of secession was, indeed,
the law both of its origin and its existence.
The English writer, who argues so confidently against
the right of secession from the words of the Constitution,
does not seem to have been at all aware that those words
were borrowed from the old Articles of Confederation,
* Ludlow's History of the United States, pp. 143-4.
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IS DAVIS A TRAITOR?
or that the Convention of 1787 had understood them very
differently from himself. The people of this country were
bound by the legislation of 1787, not by Mr. Ludlow's
mistakes and blunders respecting that legislation.
The right of coercion is sometimes deduced from that
clause of the Constitution, which contains the President's
oath of office, and which requires him to "preserve, protect, and defend the Constitution of the United States."
This is, indeed, the great argument against secession from
the words of the Constitution. But it is a gross solicism;
a petitio principii as plain as possible. For, if by and
under the Constitution, a State has a right to secede from
the Union; then the President is sworn to preserve, not
to destroy, this Constitutional right.  lHence, when it is
argued that the President is bound to coerce in order to
preserve, protect,, and defend the Constitution; it is
assumed that, in the view of the Constitution, secession is
wrong and coercion is right; which is very clearly to beg
the question. It takes the very point in dispute for'
granted. Such an argument, such a fallacy, may liave
satisfied those who were passionately bent on coercion;
but, in the eye of reason, it is wholly destitute of force.
If a State had the Constitutional right to secede, and did
secede, then she was out of the Union; and the President
had no more power to execute the laws of the United
States within her limits, than he had to enforce them in
the dominions of Great Britain, or France, or Russia. The
President's oath of office requires him, not to usurp any
power, but only to exercise those which are conferred on
him by the Constitution.
Argument from the Wisdom of the Fathers.
An argument against the right of secession is deduced
from the wisdom of the framers of the Constitution. It
is supposed, that men who were so remarkable for their
sagacity and wisdom, would not have undertaken to erect
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a grand Confederacy of States, and yet have been so
absurd as to allow a State to secede from it. It is argued,
that they could not have intended to astonish the world
with the "extraordinary spectacle of a nation existing
only at the will of each of its constituent parts."*
This argument, which is urged by Judge Story,  and
others, amounts simply to this, that the fathers of the
Constitution could not have been such fools as to make  a
compact between the States. For it is conceded, that this
extraordinary spectacle, this wonderful exhibition of
weakness, results from the doctrine that the Constitution
is a compact between the States. The conclusions, says
Mr. Justice Story, "which naturally flow from the doctrine that the Constitution is a compact between the
States," "go to the extent of reducing the government to
a mere confederacy during pleasure; and of thus presenting the extraordinary spectacle of a nation existing only
at the will of each of its constituent parts." Hence, in
the opinion of Judge Story, all that is wonderful in this
spectacle resolves itself into the most unaccountable fact,
that the fathers should have framed "a compact between
the States"!  A thing which has been frequently done in
the history of the world, and which, as we have seen, was
actually done by the Convention of 1787. It is impossible,
exclaims Judge Story; we simply reply, it is a fact. A
learned doctor, in one of Moliere's plays, argues that, after
taking his remedy, it was impossible that his patient
should have died. But the poor servant, who was not
blessed with half the doctor's learning or ingenuity, was
weak enough to believe that the fact of his death was
some little evidence of its possibility.  The question is,
not what the fathers in the opinion of one of the sons,
ought to have done, but what they have actually done.
The son in question, for example, is shocked and astonished at the "extraordinary spectacle of a nation existing
* Story's Commentary on the Constitution. Book iii. ch. iii.
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IS DAVIS A TRAITOR?
at the will of its constituent parts." If this very learned
son had only possessed a little more wisdom, he would
never have discovered, perhaps, this wonderful spectacle
of "a nation," with "its constitutent parts," or subordinate fractions. B.e would, on the contrary, have seen that
the sovereign States which he calls "the  constituent
parts," or the fractions, of his imaginary nation, are really
the units of a confederation. I am rather inclined to
doubt, therefore, whether such a son is the fittest of all
possible tribunals before which to try the wisdom of the
fathers.
After all, perhaps, it was no want of wisdom in the
fathers, but only the conceit of wisdom in ourselves, which
causes their work to present so "extraordinary a spectacle." Indeed, if we infer the nature of their work, not
from an examination of what they have actually done, but
from their wisdom, do we not reason from our own notions
of wisdom? And are we not in danger of interpolating
their conceptions with our own devices? The better
method is to listen to the great teacher, Time, which estimates their wisdom from the nature of their work, and
not the nature of their work from their wisdom.
The question is, not what the fathers, as reasonable
men, ought to have done; but what they have actually
done. Perhaps their wisdom, even if perfect in itself, was
sometimes held in abeyance by the prejudices, the passions, and the interests by which it was surrounded. But,
for the sake of argument, let us suppose that the new
Constitution was made perpetually binding on the States,
that the right of secession was excluded; and then ask
ourselves, what sort of spectacle would such a work present to the minds of reasonable men? Would it not appear
far more extraordinary, than if the right of secession had
been recognized? Let us examine and see.
The scheme of a perpetual Union, excluding the right
of secession, proceeded on the supposition, that a perpet
0
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ual peace, good faith and good will, would subsist among
the States. This was the idea of Madison. The predictions of George Mason and others, in which they foretold
the wrongs and aggressions of the Northern States, if
armed with the formidable powers of the new government,* Mr. Madison just set aside as unfounded and uncharitable suspicions.t Now, in regard to this point, we
need not ask who was the wiser of the two, George Mason
or James Madison, nor need we try the question by any
imperfect notions of our own. For Time has pronounced
its irreversible verdict in favor of the wisdom of George
Mason.
Again, as each State bound its citizens to render allegiance to the Federal Government by its own voluntary act,
namely, the act of accession to the Constitution; so, if by
her own sovereign will in the same way expressed, she
may absolve them from that allegiance; we can well understand the reasonableness of the arrangement. But if she
may not secede, or withdraw the allegiance of her citizens
from the Federal Government; then it would be impossible for them to escape the crime of treason. For, although
the State should be driven by oppression to withdraw
from the Union, her citizens would, according to such a
scheme, be indissolubly bound by a double allegiance.
Hence, if they should follow or obey their own State, they
might be pursued and hunted down as traitors to the Federal Government.  Or, if forsaking the State to which
their allegiance was originally and exclusively due, they
should adhere to the Federal Government, they would be
traitors to their own State, and so regarded. There
would be no possible escape for them. Now, were such a
scheme wise, or reasonable, or just? Would it not, on the
contrary, present a monstrous spectacle of cruelty and
* Elliott's Debates, vol. 3, pp. 30-164-149-156-161-164-173-174590.
t Ibid. 530-562.
9
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oppression?  Can we believe that the fathers, in order to
secure the liberty of their descendants, erected such an
engineof tyranny?  Can we believe that they intended,
in any event, to crush and grind their posterity thus
between the upper and the nether millstones of the two
governments?   But whatever they may have intended, or
designed, such is the horrible character of the two governments in one, as explained by the very learned son in
question. If his explanation be true, then it must be
admitted, that the fathers, with all their wisdom, first
constructed one of the most horrible engines of oppression
the world has ever seen, and then pronounced it a scheme
to "secure the blessings of liberty to themselves and their
posterity."  But I have too much respect for the wisdom of
the fathers to construe their work into any such tremendous and terrific engine of oppression. On the contrary, I
believe that as the allegiance of the citizen was originally
and exclusively due to his State, and was extended to the
Federal Constitution only by a sovereign act of his State;
so, by a like sovereign act, the State may reclaim  his
supreme allegiance. Otherwise, the machine invented by
the Convention of 1787, would divide the citizen from
himself; putting the noblest and warmest affections of his
heart on the one side, and his highest allegiance on the
other; so that, in case of a conflict between his State and
the Federal Union, he must be inevitably lacerated and torn
by the frightful collision. The fathers always admitted,
that the noblest and warmest affections of the citizen
would cluster around and cling to the State in which he
was born, and to which his allegiance was, at first, exclusively due.* Did they mean, then, that in case of a conflict between a State and the Union, and the secession of
the former, the strongest affections of the citizen should
be with-the one, and his supreme allegiance with the
other. I have too much respect for the wisdom and the
* See The Federalist, Non. xvii, xviii, xix, &c., &c.
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goodness of the fathers, to impute so horrible an intention
to them; or that they designed, in any event, to set the
citizen against himself, and rend him asunder by such a
conflict between the elements of his nature. I believe, on
the contrary, that it is the intention of the fundamental law
instituted by them, that the allegiance of the citizen
should go with his affections; and cling to the sovereign
will of the State in which he lives, whether that leads
him into or out of the Union.
"It is not easy,'; said one of the most sagacious of the
fathers, "to be wise for the present; much less for the
future." How true! and especially with reference to the
institution of a new government! Perhaps, if the fathers
had only had a little more of this wisdom for the future,
they would have more profoundly considered the great
question of secession, and settled it beyond the possibility
of dispute in the Constitution framed by them. If, for
instance, in the solemn compact between the States, they
had expressly declared that any one of the sovereign parties
to it might secede at pleasure; this would, it is believed,
have produced the most happy result. The known and
established fact, that the Union depended on the will
of its members, would certainly tend to beget that mutual
forbearance, moderation, good-will, and sympathy, without which no federation of States is desirable. The wisdom of the fathers might, in such case, have appeared far
less conspicuous to some of the sons; and yet it might
have saved the sons from the terrible war of words, and
deeds, and blood, by which the civilization of the 19th
century has been so horribly disgraced. It might have
appeared a most "extraordinary spectacle" in theory; and
yet, in practice, it might have spared the world the infinitely more extraordinary spectacle of the war of 1861.
I shall conclude my reflections on this argument, with
the following judicious observations of Mr. Spence:  "It
would appear," says he, "the true policy of such a ooned
171 
IS DAVIS A TRAITOR?
eration to remove all doubt, and carry out clearly the
principles of its origin, by openly declaring the right of
secession. Had this been done from the first, there would
probably have been no secession this day. The surest
way to end the desire for any object, is to give unlimited
command of it. Secession has mainly occurred because it
was denied. How beneficial the consequence, had it been
an admitted right for the last forty years! In place of
the despotic use of political power, in contempt of the
feelings or interests of other portions of the country,
whether of the slave-owners or monopolists-there would
have been all along a tempering, moderating influence.
Abolitionism, in all its extremes of virulence, has been
permitted by the North because the South was considered
to be fast.  It might writhe under it, but it must abide.
But for this unfortunate belief, the intelligence of the
North would have said,'If to gratify your passionate
opinions, you indulge in such language as this, addressed
to your fellow-citizens, they will separate from us; we will
not have the Union destroyed, at your bidding and pleasure.' In like manner, when the manufacturers desired to
increase protection to outrageous monopoly, that intelligence of the North would have said to them,'Our sister
States shall not be driven from the Union in order to
increase your profits.' The same rule will apply to external affairs. Texas would'not have been annexed and beslaved, no  Mexican  spoliations-no  war  of 1813-no
Ostend manifestoes need have defaced the history of the
country. Throughout the range of political affairs there
would have been present that influence so constantly
absent-consideration for others. The sovereignty of the
people is a despotism untempered by division or check.
The denial of secession has invited it to act despotically
to do simply as it listed, regardless of those supposed to
have no escape from endurance. The more the subject is
examined, the more plainly it will appear that under an
172 
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admitted right of secession, there would never have grown
up to dangerous magnitude those causes which now produce,-and that in so terrible a form-the disruption of
the Union.  Without those causes, had the feelings and
interests of others been fairly and temperately considered,
the Union might have existed as firmly thifday as at any
former period of its history."*
Argument from the opinion of _Mr. MIadison.
In the Biographical Memoir of Daniel Webster, prefixed
to his works, Mr. Everett says:  "The opinion entertained
of this speech, (the speech of 1833), by the individual
who, of all the people in America, was the best qualified
to estimate its value, may be seen from the following letter of Mr. Madison, which has never before been published.
" MONTPELIER, March 15th, 1833.
My Dear Sir:-I return my thanks for the copy of your late very
powerful speech in the Senate of the United States. It crushes nullification, and must hasten an abandonment of secession.
Now on what ground Mr. Madison could have based
this opionion, at least in so far as it relates to secession, it
is difficult to conceive. The fundamental premise of Mr.
Webster, that "the Constitution is not a compact between
sovereign States," and which is adopted as the title of his
speech, was certainly not approved by Mr. M]adison; for
this premise, beside being in direct opposition to the doctrine of his whole life, is denied again in the very letter
in which the above compliment is found. Mr. Webster
has, indeed, very little to say against secession.  His argument is almost exclusively directed against "nullification,"
the point then in debate between himself and Mr. Calhoun.  But the little he has to say against secession, is
based on the idea that the Constitution is not a compact
between sovereign States. Every argument, and every
* American Union, p. 245-6.
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assertion, levelled by him against secession (and they are
but few in number), have noother than this false foundation.  Hence, Mr. Madison could not have approved or
applauded the argument of Mr. Webster against secession,
because he regarded his premise as sound; for he was most
profoundly convinced that it was false. On what ground,
then, could Mr. Madison have admired this argument?
If the Constitution is a compact between sovereign
States, as Mr. Madison always contended it was, then Mr.
Webster admits, as we have seen, that the right of secession follows.  Thus, this right is conceded by Mr. Webster to flow from the premise which Mr. Madison always
regarded as perfectly and unquestionably true.   How, in
the face of such a concession, Mr. Madison could have
pronounced the opinion, that Mr. Webster's argument
"must hasten the abandonment of secession," it is exceedingly difficult to conceive. The acknowledgment that
the.right of secession flows from a position too plain to
be denied, would tend, as one would suppose, to hasten its
adoption, rather than its abandonment. How then could
Mr. Madison have said otherwise?
The truth seems to be, that Mr. Madison was more
solicitous to preserve the integrity of the Union, than the
coherency of his own thoughts. He commends Lycurgus for having sacrificed his life to secure the perpetuity
of the institutions he had taken so much pains to establish.*  For the same purpose, Mr. Madison sacrificed, not
his life, but his logic.
Is it not truly wonderful, that Mr. Madison who, on
most subjects, sees so clearly and reasons so well, should
fall into such inanities about secession?  From his conduct, as well as from his confession in The Federalist, t it
is evident, that he considered it a duty to veil the idea of
this right, unless a proper occasion should arise for its
assertion.  But how imperfectly his arguments and opin * Fderalist, No. xzxviii.      t No. xliii.
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ions perform this high office of concealment! He would,
no doubt, have done better, if better arguments against
the right of secession could have been found or invented.
As it is, the ineffable weakness of his views in opposition
to the right of secession, shows how high and impregnable is the position which that right occupies.
Mr. Madison greatly feared that Virginia and New York
would, in their ordinances of ratification, expressly reserve
the right to secede from the Union. This apprehension
is most vividly set forth in his correspondence with Mr.
Hamilton, in regard to the proposed conditional ratification of New York; from which it has been most donfidently inferred, that neither Virginia nor New York did reserve
such right.  But what Mr. Madison desired, and what
those States did, are two very distinct things. If we
really wish to know what those States did, we should,>
it seems to me, look at their recorded acts, rather than at
what Mr. Madison desired them to do.  The conditional
ratification of Virginia was in direct opposition to the
wishes of Mr. Madison.  His wish, then, however great
his influence, could not always control the action of his
own State, much less that of New York.
Hamilton and Madison both desired a strong "national
government." It was owing to their influence, that the
first resolution of the Convention of'87 in favor of such a
government, was passed. But, as we have'seen;* although
that resolution was afterward set aside by the Convention,
Mr. Webster and Judge Story argue from its momentary
existence, that the Convention of'87 actually established
"a national government."  In like manner, it is most
confidently inferred from the wish of Mr. Madison, expressed in his private correspondence, that neither Virginia nor New York expressly reserved the right of
secession in its ordinance of ratification! Was Mr. Madison's wish the law of Virginia and of New York? And if
*Chap. iv.
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we want to know what those States actually did, must
Mr. Madison's wish pass for everything, and their solemnly
recorded acts for nothing?
Mr. Madison, as his correspondence shows, was extremely anxious to prevent a conditional ratification of the Constitution in New York, as well as in Virginia.  He even
went so far as to advance the extraordinary proposition,
that a conditional ratification would be "no ratification at
all," and would "not make New York a member of the
new Uniion."  But after Virginia had ratified the Constitution on the express condition, that its powers should
not be perverted to her injury or oppression, and had
reserved the right to resume the delegated powers in case
that condition should be violated; Mr. Madison retraced
his steps, and freely admitted that Virginia was really in
the Union! He writes to Hamilton at once, and to Washington, in order to do away with the impression, that a conditional ratification is "no ratification at all," and would
not make any State a "member of the new Union."  In
regard to the conditional ratification of Virginia, he says:
it contains "some plain and yeneral truths, that do not impair
the validity of the act."
Now from these words of Mr. Madison, it has been
strenuously argued, that Virginia did not reserve the right
to resume the powers she had delegated to the Federal
Government! It is true, as Mr. Madison said, that the
plain truths referred to, did not impair the validity of the
Virginia act of ratification. No one has ever doubted the
validity of that act; or that it made Virginia a member of
the new Union.  Nor could any one ever dream of doubting such a - thing; unless he had previously embraced Mr.
Madison's most extraordinary proposition, that a conditional ratification is no ratification at all. But, while there
is no question whatever as to the validity of the act, it is denied, that it was unconditionally and eternally binding on
the State of Virginia, or that it could never be repealed by
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the sovereign power by which it was enacted. Is it not
wonderful, then, that Mr. Madison's words merely asserting
the validity of the act in question, which no one has ever
denied, should be so confidently quoted to prove, that the
act must, in any event, stand forever, unrepealed and
unrepealable, by the power by which it was ordained?
Now what is "the plain and general truth" to which
Mr. Madison refers as contained in the Virginia ordinance
of ratification? It is the truth, that the powers delegated
to the Federal Government may be resumed in case of
their perversion; and that they may be resumed by the
authority which delegated them. This was a plain truth
then, and this is a plain truth now. It is indeed universally
conceded. Neither Story, nor Webster, nor Everett, nor
Motley, has one syllable to say against this plain and
incontestable truth. Hence, if Virginia delegated powers
to the Federal Government; then Virginia, and Virginia
alone, had the right to resume those powers. This would
have been the case, even if no express reservation of that
right had been contained in her ordinance of ratification.
But did Mr. Madison deny, that the powers in question
were delegated by the State of Virginia?  If so, then he
denied a plain fact; and a fact, too, which he invariably
and earnestly proclaimed from the beginning to the end
of his career. Even if he denied that fact by implication,
this would have proved only his inconsistency, and furnished another instance of the blinding influence of his
extreme desire to veil the right of secession.
Argument from the opinion of Hamilton.
"However gross a heresy," says Hamilton, "it may be
to maintains that a party to a compact has a right to revoke
that compact, the doctrine itself has had respectable advocates." * This, it should be observed, is said in relation to
the old Articles of Confederation, which are universally
* Federalist, No. xxii.
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admitted to have formed a compact between sovereign
States. It was, then, the opinion of Hamilton, that a
State had no right to secede from a confederacy of States,
or from the compact by which they are united.  If he
means to assert, that it has no natural or moral right to
secede at pleasure from a compact, I have at present no
controversy with him.  But if he means that it has no
legal, or constitutional right to do so, then his own opinion is "a gross heresy," which has but few respectable
advocates at the present day.
For, as we have already seen, both Story and Webster
concede, that the constitutional right of secession belongs
to States, which are united by a compact. Now, after
such a concession, is it not too late to quote the opinion of
Hamilton to prove, that the very inference conceded is "a
.gross heresy"?  Yet-this is done by Mr. Justice Story.
In one paragraph, he admits that if the Constitution is a
compact between the States. then each State may secede
from that compact at pleasure; and yet, in the very next
paragraph, he proves out of the Federalist, that* "even
under the confederation," which is admitted to have been
founded on a compact between the States, t "it was
deemed a gross heresy to maintain, that a party to a compact has a right to revoke that compact;" t or to set it aside
at pleasure. Thus the very inference which he admits
in one breath, he pronounces a gross heresy in the next,
and proves it to be such by the authority of Hamilton!
The doctrine which both Story and Webster have been
constrained to admit, is no doubt entitled to more consideration than the naked and unsupported opinion of Hamilton. This opinion seems, indeed, to have grown out of
his deep and intense desire to consolidate the Union, rather than form his legal studies and knowledge. He was
only thirty years of age when the Federalist was written;
and his life, with the exception of four years, had been
VoI. i, p. 288.  t No, xxii.     $ Vol. i, p. 290.
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passed in the active duties of the camp, or in his college
studies. Hence, however great his powers, his knowledge
of jurisprudence, and of the opinions of the learned, must
have been exceedingly limited, when compared with those
who have devoted their lives to this study. If, then,
Story and Webster are constrained to admit the right of
a State to secede from a confederacy bound by a mutual
compact; this may surely be taken as an indication of
the real teachings of the law on the point in question, and
regarded as a higher authority, than the bare opinion of
Hamilton. This would be so, even if no progress had
been made in the science of international law since the
time of Hamilton; but, in fact, there has been great progress in this science during the present century; especially in regard to the doctrine of compacts between States.
Enlightened by the principles of that doctrine, Mr. Justice Story could not deny the right of one of the parties
to secede from such "a compact."  Hence, he attempted
the more than herculean labor of recasting the whole
political history of his country, and moulding it into conformity with his wonderful hypothesis, that the Constitution of the United States is not a compact between States
at all. He first asserts truly, that a State may secede
from such a compact, and then proves out of Hamilton
that his own assertion is " a gross heresy"!  "That gross
heresy," says Hamilton, "has had respectable advocates."
Mir. Justice Story himself is one of those advocates. Nor
is this all. The Convention of 1787 advocated the same
heresy; and, moreover, embodied it in their legislation.
Hamilton insisted in that Convention, that the States had
nonright to revoke the existing compact between them,
or to secede from it in order to form another, without
the consent of each and every State in the Union.  But
his opinion was overruled by the Convention; and the
States did, in pursuance of the decision of the Convention,
withdraw from the existing compact to form a new one.
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Mr. Hiamilton may have been right, and the States may
have been wrong; but, however this may be, their decision established the supreme law of the land. The advocates of the right of some of the parties to a compact
between States to revoke that compact, or to withdraw
from it, may not have been as respectable as the opponents
of this doctrine; it is certain that they prevailed in the
Convention of 1787, and embodied their own views in the
legislation of the United States. That legislation should
be our guide, not the defeated opinion of Mr. Hamilton.
Or, at least if we happen to believe that legislation to
have been right, and if in conformity with the opinion of
Mr. Justice Story, we happen also to believe that a State
may secede from a compact between States; may we
not humbly hppe, that this will not be deemed so "gross a
heresy" as to be treated as treason and rebellion?
Argument from the very Idea of a Nation.
T-he "very idea of a nation," it is said, is utterly inconsistent with the right of secession. But what is a nation?
"It is a body politic," we are told, "independent of all
others, and indissolubly one.  That is, indissoluble at the
mere option of its constituent pars."* Thus, the whole
question is begged, and the whole controversy completely
settled, by the definition of' the very idea of a nation."
ilow great the triumphs of such logic, and how wonderful the displays of such genius! Setting out from "the
very idea of a nation" in the abstract, and, absolutely
unembarrassed by any other idea or knowledge in the wide
world, this argument just reaches, at one simple bound,
the conclusion, that "as  the Abberville district cannot
secede from South Carolina; so South Carolina cannot
secede from the United States;" a profound view and
striking illustration which the President from Illinois borrowed from the Preacher of Princeton.t
* Rev. Dr. Hodge on the State of the Country, p. 24.
t Enlightened by the profound view of his reverend guide, Mr.
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Argument from the purchase of Louisiana, Florida, &c.
It is, we are told, absurd to suppose that the people
would have expended so much money for the purchase of
Louisiana, Texas, and Florida, if those States could secede
from the Union.t It is not at all probable, that those
territories were purchased under the belief that they
would desire to secede, whether they possessed the right
to do so or not. And besides, it might be easily shown,
that long being before those States did secede, the government of the United States had realized far more from them
than she gave for them; which was only a few millions of
dollars. Hence, even on the theory and the practice of
secession, the purchase was far from being absurd. On
the contrary, it was a highly profitable bargain; and in
order to justify it, or to show that it was reasonable, it is
not at all necessary to suppose that the sovereign peoples
Lincoln, with a naive originality all his own, might well have asked,
what is-the difference between a county and a State? Is not a county a little State, and a State a big county? One striking difference
must have occurred to him in the course of his reading; the difference, namely, that a State is spelt with a large S, and a county with
a small c. He must ale have observed that a State is sometimes
called "Sovereign."   But whether it is called Sovereign because it
is spelt with a large S, or spelt with a large S because it is- called
sovereign, is one of the nice questions in the science of government,
which he does not seem to have very fully considered, or positively
decided. He had evidently discovered, for he tells as so himself,
that a State is usually larger than a county in the extent of its territory; a discovery which, perhaps, led to the profound and original
reflection, that the United States have been, and must continue to be,
one State or Nation, because their territory is one. It is to be hoped,
indeed, that these sovereign States or counties, as the case may be,
shall continue to be united, and that order, tranquility, and happiness
shall once more bless their Union. But if so, must not something
beside the one territory help to produce the happy result?   Have
not simple confederations existed on the same territories?  Nay,
have not some twenty distinct nationalities long existed on the territory of Europe? We may, then, hardly trust the reflection, however
profound, that one territory is in itself a sufficiently active and powerful cause to produce one very big State, or county, covering a
whole continent.
t Hodge on the State of the Country. p. 28.
181 
IS DAVIS A TRAITOR?
of those States, with their Constitutional rights and privileges, were also purchased with the pitiful sum paid for
their annexation to the United States.  They were admitted as sovereign States, with all the rights of the original
parties to the compact; and as such were entitled to the
full benefit of all its provisions.
Indeed, this ad captandum argument appears exceedingly weak, if not absolutely ridiculous. Can any purchases
made by any parties to a compact, alter the terms of that
compact, or make it more binding that it was before? If a
State retained its sovereignty in the Union, and, consequently, had a right to resume the powers which it had
delegated to the Federal Government; this right was not
affected by the purchase of Louisiana, or Florida. To purchase those Territories is one thing, and to sell the sovereignty of each and every State in the original Union is quite
another. If any State should withdraw from the original
compact, and thereby dissolve the Union as to itself; then
the purchase of such Territories should be considered in
the final settlement between the parties. But to argue,
that they were indissolubly and eternally bound together
because they made such purchases, seems, to say the least,
a little ridiculous.
Argument from Analogy.
How wonderful soever it may seem, Mr. Justice Story
argues from analogy as follows:  As an individual has no
right to secede from a State government; so a State has no
right to secede from the government of the Union. Now
this argument proceeds on the supposition, that a sovereign State bears the same relation to the Federal Government, which it concurred with other States in creating,
that a county, nay, that an individual, bears to a State.
Mr. Justice Story was far too learned to endorse so monstrous a heresy explicitly; but it is, nevertheless, tacitly
assumed as the basis of his argument from analogy against
182 
IS DAVIS A TRAITOR?
the right of secession.  His whole theory of the Costitu tion points, it is true, to the conclusion so openly avowed
by the Rev. Dr. Hodge and Mr. Lincoln, which views a
State as merely a county of one great consolidated nation;
but he never reached this conclnsion himself, except sur reptitiously, as in the above argument from analogy.
But even admitting this false conclusion as a postulate,
the argument of Judge Story is by no means as conclusive
as it appears to his own mind. For the right of an indi vidual to secede from a State government, is daily exer cised by some one or other in every part of the world.
An individual cannot, it is true, remain under the govern ment of a State, continuing to enjoy its protection, and, at
the same time, refuse to obey its mandates. But this were
nullification, not secession. The only way in which an indi vidual can secede from a State, is to withdraw from the
limits of its dominion; and this right is daily exercised in
every part of the civilized world, without being called in
question by any one. The Puritans themselves, by whom
Massachusetts was originally settled, withdrew from the
government of Great Britain; and quietly marched off,
undisturbed by his Majesty, first into Holland, and then
into the New World.  Now suppose this right had been
denied to them? Suppose fire and sword had been used to
compel the Pilgrim Fathers, those meek and holy apostles
of freedom, to remain under the government they detested;
would they not have made the world ring with their out cries at the perpetration of such injustice and tyranny?
But they were allowed to withdraw to the New World;
and there set up the government of their choice. The
colony of Massachusetts Bay, then, owed its existence to
the acknowledged right of individuals to secede from the
government of a State, and enjoy one whose "powers are
derived from the consent of the governed."
But a State, united ill a confederacy with other States,
can secede from the government of the union, without the
183
4 
IS DAVIS A TRAITOR?
necessity of changing its location. This makes a differ ence in the exercise of the right, though not in the right
itself. It is indeed quite impossible for a whole State, or
people, to change its location, or abandon their homes.
If the Southern States could have done so, the exodus
would, no doubt, have been most gratifying to some of the
descendants of the Pilgrim Fathers of New England.
This is evident from the eloquent address of Mr. Henry
Ward Beecher to the excited thousands of Exeter Hall in
1863. In reply to the question, "Why not let the South
go?" he exclaimed, "0 that the South would go! but then
they must leave us their lands." If they had only left their
lands and homes, and plunged into the gulf of Mexico;
this great enemy of secession would have hailed the event
as one most auspicious for the spread, the aggrandizement,
and the glory of the race to which he belongs. It would
have appeared to him, no doubt, like the herd of swine
which, being possessed of devils, madly rushed into the
sea, and disappeared from the world. But when they
seceded, without proposing to leave their lands behind;
this made all the difference imaginable; being an outrageous violation of one of the great fundamental articles of
the Puritan creed, which, in early times, was expressly
set forth by the Colony of Connecticut in solemn conclave
assembled. It was then and there decided, that "the
earth is the inheritance of.the saints of the Lord;" the
saints having, in their declaration, as is believed, an eye
to the beautiful locations and lands of the Indians. It is
certain, if we may judge from the speech of Mr. Beecher
in Exeter Hall, that some of the most influential of the
saints had a longing and passionate eye for the'beautiful
lands of the sunny South.
The truth is, that every constitutional compact, whether
between the people of a single State, or between sovereign
States themselves, forms a voluntary association; the one
between individuals, and the other between sovereign
184 
IS DAVIS A TRAITOR?
States. Hience, if the right of secession be denied in
either case, and the denial enforced by the sword of coercion; the nature of the polity is changed, and freedom is at
an end. It is no longer a government by consent, but a government of force. Conquest is substituted for compact, and the
dream of liberty is over.
No man has contributed more to this dire result, than
Mr. Justice Story, who not only exhausted all the stores
of his own erudition, and exerted all the powers of his own
mind, to prove that the Constitution was not a compact
between the States, but also enlisted the great powers
and eloquence of Mr. Webster in the advocacy of the
same monstrous heresy. This concealed the great fundamental principle of the Constitution, and kept out of view
the all-important truth laid down by Mr. Mill, that the
very first condition necessary to a desirable federation of
States, "is a sufficient amount of sympathy among its
populations."  Nor is this all. Hiis theory of the Constitution fell in with the corrupt and the corrupting tendency
of the age; the tendency, namely, to deny the sacred.obligation of "THIE COMPACT OF THE CONSTITUTION."  For how
can any compact be held sacred, which is held not to be a
compact at all, but only the emanation, or creature, of the
sovereign will by which its restraints are abhorred? May
not the creator do what he pleases with its own? May
not the one great nation, the one sovereign people of
America, take some little liberties with the work of its
hands, instead of being scrupulously bound by it as a compact between the States? Nay, may it not take some
little liberties with the rights of #he States themselves;
since the States,' as well as the Constitution, were created
by its own sovereign will and pleasure? May it not, in
short, treat the States as counties?
It is possible, indeed, that no learning, or logic, or eloquence could have resisted this terrible tendency, or stemmed the mighty torrent of corruption it continually fed
185 
IS DAVIS A TRAITOR?
and augmented. But this is no reason why learning, and
logic, and eloquence should have favored its progress.
That progress was slow, but sure.  All power slowly gravitated toward the federal centre, and was there consolidated by false theories of the Constitution. In the towering audacity of that central power, assuming to itself all
the glories of the one grand nation, it was gradually forgotten that honor, and justice in the observance of the
original compact, (no longer regarded as a compact,) and
mutual sympathy among the peoples, it was intended to
unite, are the indispensable conditions of a free and happy Federation of States; and for these sacred ties of "the
glorious UInion," were substituted the sacrilegious bonds
of fraud, force, and ferocity. It is no wonder, then, that
secession should, in the end, have been regarded as the
greatest of all crimes; since the Union was then held
together, not by the mutual sympathy or the conciliated
interests of its peoples, but by "the cohesive power of
public plunder." Mr. Justice Story, be it said to his eternal shame, took the lead in constructing the theory of that
tremendous scheme of despotic power, and the politicians
of Massachusetts in reducing it to practice. John C. Calhoun, on the contrary, lived and died in opposing all the
powers of his gigantic intellect to its overwhelming torrents, both in theory and in practice.
e
186 
CHAPTER XVIII.
Was Sece8sion Treason?
THE doctrine of secession consists of two propositions:
the first asserts that the Constitution was a compact
between the States; and the second that a State, or one
of the parties, had a right to secede from such a compact.
The second proposition is simply an inference from the
first. Now, if secession is at all tainted with treason, the
crime must lurk in the one or the other of these propositions.
Is it treasonable, then, to assert that the Constitution
was a compact between the States, or the members of the
Union?  No one, it is presumed, will venture on so bold
an assertion; for, as we have seen, this was the doctrine
of the fathers of the Constitution themselves. It has been
shown, by an articulate reference to their writings, that it
was clearly and unequivocally the doctrine of Madison,
and Morris, and Hamilton, as well as of other celebrated
architects of the Constitution. Who, then, will pronounce
it treason, or treasonable?  The Federalist, in submitting
the Constitution to the people and in pleading the cause
of its adoption, did not hesitate to say, as a fact then perfectly well and universally known, that the Constitution
was "the compact"* to which "the Statesias distinct and
independent sovereigns "t were the parties.  Did The Federalist espouse treasonable sentiments? Both Hiamilton
and Madison, the two great architects of the Constitution,
* No. xxix. t No. xl and No. lxxxv. 
IS DAVIS A TRAITOR?
most earnestly and eloquently recommended it to the people in The Federalist and elsewhere as THE COMPACT
BETWEEN THIRTEEN SOVEREIGN AND INDEPENDENT STATES.
Is that doctrine treason, then? Is there the least sign, or
symptom, or shadow of treason connected with that sentiment of the fathers? Are those "untrue to their country," who say, with all the most illustrious fathers of the
Union, that the Constitution was a compact between
the States? On the contrary, are not those untrue to
themselves, to their country, and to their God, who, in the
midst of so many unquestionably proofs on all sides around
them, can assert that the Constitution is net a compact?
Is it "the dialect of treason" to say that "the States
acceded to the Constitution?" In other words, is the
language of Wilson, and Morris, and Randolph, and Franklin, and Jefferson, and Washington, to be denounced as
"the dialect of treason?" Is it treason to understand the
Constitution as it was understood by the great patriots
and statesmen from whose wisdom it proceeded? Is it
treason to adhere to their views, sentiments, and language? Or is it loyalty to depart from their views, sentiments, and language; denouncing them as the inventions
of modern rebels, and blood-thirsty traitors? No one can,
or will, venture to answer this question in the affirmative.
Ignorance and passion may have done so in times past.
But who can read the history of his country, who can
beheld the great fact, that THE CONSTITUTION IS A COMPACT
BETWEEN THE STATES BLAZING ALL OVER ITS AMPLE PAGES;
nay, written there by the fathers of the Republic themselves; and then deliberately pronounce it a treasonable
sentiment?  Can any man do so?'las any man sufficient
strength of continence for such an achievement? If so,
then indeed must his front of brass, and his heart of iron,
forever remain an incomprehensible mystery to all reasonable men. Nay, if any party or majority, aided by
the united strength of all their countenances, should pro
188 
IS DAVIS A TRAITOR?
nonnee such a fact treasonable; this would only prove that
they must have been ignorant of the history of their country. But, whether from ignorance, or from malice, or
from both, shall it ever be the lot of American citizens to
live in a land in which truth shall be treason, and history
rebellion? Shall it ever come to this —O ye blessed spirits
of departed heroes and patriots!-shall it ever come to
this, that a dungeon and a halter awaits the man who may
have the most devoutly cherished thy sentiments, and
the most implicitly trod in thy footsteps?
No! it will be admitted, that the doctrine of the fathers
is not treason. Whether that doctrine be true or false, it
will be admitted, that it is entitled to the respect of all
who respect the founders of the Republic. Even if the
fathers did not understand their own work,-a thought
which is itself almost akin to treason -it is certainly not
an unpardonable heresy to agree with them, or to adopt
their view of the Constitution of the United States.
Will it be said, then, that it is treasonable to assert, that
a State may secede from a compact between States? If
so, then Story and Webster were both traitors; for, as we
have over and over again seen, these most admired
expounders of the Constitution expressly concede, that a
State may secede at pleasure from such a compact.  But,
here again, even if Story and Webster were mistaken in
this principle of law; it is surely absurd to denounce such
an error as treason or rebellion.
Nor is this all. Precisely the same inference is drawn
by another great expounder of the Constitution, namely,
by William Rawle, of Philadelphia. The legal opinion of
Mr. Rawle is entitled to great respect.  Mr. Buchanan, late
President of the United States, speaks of him as follows:
"The right of secession found advocates afterwards in
men of distinguished abilities and unquestioned patriotism.
In 1825 it was maintained by Mr. William Rawle, of Philadelphia, an eminent and universally respected lawyer, in
189 
IS DAYIS A TRAITOR?
the 23d [32d] chapter of his'View of the Constitution of
the United States.'  In speaking of him his biographer
says that'in 1791 he was appointed District Attorney of
the United States;' and'the situation of Attorney General
was more than once tendered to him by Washington, but
as often declined,' for domestic reasons."*  Now Mr. Rawle
wrote his " View," not as a partizan, but simply as a jurist
in the calm and impartial investigation of truth; having
no conceivable motive to reject the plain teachings of history and law. Indeed, as we have seen, he agreed with
Story and Webster in regard to the principle of law, and
differed from them only in regard to facts.  Hence, if the
had not denied that the Constitution was made by th;
States, they would have been compelled, like Mr. Rawle,
to admit the right of secession.
"The Union is an association of republics," says Mr.
Rawle...... Again, "we have associated as republics.......
But the mere compact, without the means to enforce it,
would be of little value." t Having annonneed the truth,
that the Constitution is a compact between republics, he
drew the inference from this which is admitted to follow
by Story and Webster. That is, he inferred the right of
secession; just as if there could be no question on so plain a
point of law. "It depends on the State itself," said he,
"to retain or abolish the principle of representation, BECAUSE IT DEPENDS ON THE STATE ITSELF WHETHER IT CONTINUES A MEMBER OF THE UNION." Again, he says, "THE
STATES MAY WITHDRAW FROM THE UNION, but while they
continue, they must retain the character of republics," as
well as comply with every stipulation of the constitutional compact...... "The secession of a State from the Union,"
he continues, "depends on the will of the people.  The
Constitution of the United States is to a certain extent,
incorporated with the Constitutions of the several States
*Buchanan's Administrntion, p. 88.
t Rawle on the Constitution, Chap. xxxii.
190 
IS DAVtS A TRAITOR?
by the act of the people."...... "Nothing is more certain
than that the act [secession] should be deliberate, clear, and
unequivocal. The perspicuity and solemnity of the original obligation require correspondent qualities in its dissolution."
Now this is the language of a man, of an eminent
jurist, who was the contemporary and friend of Washington. He lived before the rise of those new ideas, and
dazzling images of power, which afterward obscured
"the perspicuity and solemnity" of the act by which each
State had acceded to the compact of the Constitution.
Was not this man of "distinguished abilities and unquestioned patriotism," then, right both in regard to his premise
and to his conclusion? He took, as we have seen, precisely the same view of the Constitution as that taken by
all his great contemporaries, the fathers of the Constitution th'emselves; and he only inferred from this view the
right of secession, which, according to Story and Webster, is a legitimate inference? But even if he was not
right, if Rawle, and Story, and Webster were all in error
as to the justness of this inference; still were it not the
very height of absurdity, the very climax of intolerance,
the very quintessence of malice and persecuting bigotry
to pronounce such an opinion treason?
If, then, any poor benighted son of the South was
really guilty of treason on account of secession; this
must have been either becau'se he understood the Constitution no better than those who made it, or because he
knew the law of compacts no better than the most celebrated jurists of America? On which horn of this dilemma shall he be hanged? Shall he be tried and found
guilty of treason, for not understanding the Constitution
better than Morris, and Madison, and  Hamilton, and
Washington; or for not knowing the law of compacts
better than Rawle, and Story, and Webster? If found
guilty on either ground, it is to be hoped that his counsel
191
Am 
IS DAVIS A TRAITOR?
will move an arrest of judgment, that such distressing
ignorance was his misfortune, not his fault.
Massachusetts and the Hartford Convention.
The facts, proofs, and authorities going to establish the
right of secession are, indeed, so redundant, so overflowing, nay, so absolutely overwhelming, that many of them
have been necessarily omitted in the foregoing argument.
One of them is, however, quite too important and striking
to be entirely neglected.  Hence it shall be introduced in
the present place.
The Virginia Resolutions of'98 were submitted, as the
reader is doubtless aware, to the Legislatures of every
State in the Union. These Resolutions contained, as we
have repeatedly seen, the very doctrine so eloquently
denounced by Mr. Webster in 1833; the doctrine, namely,
that the Constitution is a compact between the States of
the Union. This doctrine was, in fact, made the groundwork of that celebrated manifesto. Now it is a remarkable fact, that not one of the Legislatures, who replied to
the Resolutions of'98 called this great fundamental position
in question. No one at that early day, so near the origin of the Constitution, seems to have dreamed that such
a doctrine was tainted with heresy, much less with treason. Not a single Legislature seems to have imagined,
for one moment, that the United States, or the States
United, did not form a Confederacy, or that its Constitution
was not a compact. In the answer of the Legislature of
Massachusetts. Mr. Story's and Mr. Webster's own State,
by far the most able and elaborate of all the replies to the
Resolutions in question, there is not one syllable or sign
of opposition to the doctrine, that the States formed a
Confederacy, or that their Constitution was a compact
between them. On the contrary, Massachusetts, then and
there, in her great manifesto in opposition to that of Virginia, expressly recognized the truth of that doctrine.
192 
IS DAVIS A TRAITOR?
That is, in conformity with the uniform and universal
usage of the day, she spoke of the desire of Massachusetts to "CO-OPERATE WITH ITS CONFEDERATE STATES;"* and
also of "THAT SOLEMN COMPACT, WHICH IS DECLARED TO BE
THE SUPREME LAW OF THE LAND." t Massachusetts was
not, then, one of that mighty cloud of witnesses, composed alike of "friends and foes," which Mr. Webster, with
his great dark eye "in a fine frenzy rolling," fancied that
he saw in the air, all uniting in the solemn declaration, as
with the voice of doom, that COMPACT is no more, that
CONFEDERACY has fallen, and that thenceforth THE SOVEREIGN WILL OF THE ONE GRAND NATION, THE PEOPLE OF
AMERICA, SHALL REIGN FOREVER AND EVER! On the contrary, poor simple-hearted Massachusetts of 1799 imagined, that a compact, that even a "solemn compact," not
only might be, but actually was, "the supreme law of the
land," and that it was under or by virtue of that solemn
compact that-she had, only eleven years before, "confederated "- with her sister States!
Nor is this all. Massachusetts continued, for some
years longer, true to the first great article in the creed of
the fathers. Indeed circumstances greatly favored her
fidelity, and deepened the fervor of her faith. The acquisition of Louisiana, which added a vast empire to the
Southern end of the Union, produced a profound dissatisfaction throughout Massachusetts and the other New
England States; causing "the glorious Union" to wane,
and the sovereignty of the States to wax, mightily in
their eyes. "At an early period after the formation of
the Constitution," as Mr. Buchanan truly says, "many
influential individuals of New England became dissatisfied
,with the union between the Northern  and  Southern
States, and wished to dissolve it."  "This design," according
to Mr. John Quincy Adams, "had been formed in the winter of 1803-4, immediately after and in consequence of
* Elliot's Debates, Vol. 4. p.663.  t Ibid, p.560.
10
193
N 
IS DAVIS A TRAITOR?
the acquisition of Louisiana."* The embargo and nonintercourse laws, which were designed to bring England
to terms without the dire necessity of war, augmented the
already great dissatisfaction of New England; because
they affected her commercial interests, and thereby
touched her in by the most sensitive portion of her
frame. She cried aloud for war! She cried, down with
all your embargo and non-intercourse laws, and up with
the flag of armed resistance!  Impatient at the slow
movements of the South, she taunted her with cowardice,
and courteously as well as elegantly declared, that the
South could not be "kicked into a war with England."
But she was mistaken; she did not fully comprehend
the South; the South is, perhaps,  too easily "kicked
into a war." It is certain, that the South in the persons
of her two young, ardent, enthusiastic, and chivalrous representatives, Henry Clay, of Kentucky, and John C. Calhoun, of South Carolina, responded to the loud, vehement
war-cry of New England. Their eloquence shook the
nation. The spirit of armed resistance was roused; and
the war with Great Britain proclaimed. But, alas! this
did not help the commerce of New England. The remedy
proved worse than the evil. Her ravenous pockets, instead of being filled with gold and satisfied, became still
more and more alive to the dreadful state of things, and,
thereupon, she endeavored to "kick the South" out of the
war with Great Britain. In this, the dark hour of her
agony and distress, she suddenly discovered that war is,
at best, a most unholy and unchristian thing; not to be
entered on lightly, or without counting the cost. She also
discovered, that, after all, the number of her seaman, impressed by the tyranny of Great Britain, had been greatly
exaggerated (by whom?); and that consequently the
cause of quarrel was far too small to justify so unholy and
so unchristian, that is to say, so unprofitable a war.
*Buchanan's Administration, p. 86.
194 
I5 DAVIS A TRAITOR?
In the dark hour of her distress, the glorious rights of
the States came out, and showered down their radiance on
all New England, like the stars at night. The sovereignty
of her own beloved Massachusetts, indeed, then totally
eclipsed the full moon of the once "glorious Union;" just
as completely as if Massachusetts had been "the whole
earth." I speak from the record; from that secret, silent
record of the Hartford Convention, in which all the profound dissatisfaction of New England with the Union culminated; and into which her sons, in spite of all their
prying curiosity, have no desire whatever to look. Mr.
Webster, for example, in his great debate with Mr. Hiayne,
of South Carolina, in 1830, solemnly declared that he had
never read the proceedings of that famous Convention.
No wonder!
" Where ignorance is bliss,'tis folly to be wise."
"Events may prove," says the Journal of the HIartford
Convention, January 4th, 1815, "that the causes of our
calamities are deep and permanent. They may be found
to proceed, not merely from blindness of prejudice, pride
of opinion, violence of party spirit, or the confusion of the
times; but they may be traced to implacable combinations of
individuals, OR OF STATES, to monopolize power and office, and
to trample without remorse upon the rights and interests of the
commercial sections of tg Union."* Now, if we only substitute the term agricultural for commercial in the above
passage; how admirably will it express the complaint of
the South, which, for long years of endurance, was treated
with such imperial scorn and implacable contempt by the
States of New England!
"Whenever it shall appear," continues the Journal,
"that these causes are radical and permanent, a separation
by equitable arrangement, will be preferable to AN ALLIANCE BY
CONSTRAINT, AMONG NOMINAL FRIENDS, BUT REAL ENEMIES,
*Page 5.
195 
IS DAVIS A TRAITOR?
INFLAMED BY MUTUAL HATRED AND JEALOUSIES, AND INVITING, BY INTESTINE DIVISIONS, CONTEMPT AND AGGRESSIONS
FROM ABROAD."* Precisely thus, and not otherwise, rqasoned the South in 1861; and asked for "a separation by
equitable arrangement," instead of "an alliance by contrast" with "nominal friends, but real enemies, inflamed
by mutual hatred and jealousies." But the great boon
was contemptuously refused; because the sentiments of
New England had undergone a radical and total revolution. The reason is, that those were the sentiments of
New England in the minority, and these.the sentiments
of New England in the majority Holy indeed was her
horror of "an alliance by constraint," when she was the
party in danger of.being constrained; but no sooner had
she acquired the power to constrain, than such an alliance
appeared altogether pure and just in her unselfish eyes!
The Journal of this Convention has much to say about
"the constitutional compact;" and hence, if it had only
been read by Mr. Webster, he must have been familiar
with this mode of expression, which so seriously offended
him in the resolutions of Mr. Calhoun in 1833, and called
forth his fine burst of eloquence in defence of the rights of
that "noun substantive," the CONSTITUTION. He must have
discovered also, that in the opinion of Massachusetts in
1815, the rights of sovereign States are at least as important
as those of any noun substantive iothe language.  For, in
the words of that Convention, the power of conscription is
"not delegated to Congress by the Constitution, and the
exercise of it would not be less dangerous to their liberties, THAN
HOSTILE TO THE SOVEREIGNTY OF THE STATES." t............
"It must be the duty of the State to watch over the rights
reserved, as of the United States to exercise the powers
which were delegated.1
The HIartford Convention, towering in the strength of
its State rights sentiments, continues thus: "That acts
* Page 5.              t Page 8.              $ Page 7.
196 
IS DAVIS A TRAITOR?
of Congress in violation of the Constitution are absolute ly void, is an undeniable position. It does not, however,
consist with the respect 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 the authors,
the extent of the evil inflicted, the determination mani fested to persist in it, and the danger of delay. But in
cases of deliberate, dangerous, and palpable infractions
of the Constitution, AFFECTING THE SOVEREIGNTY OF THE
STATE, and liberties of the people; it is not only the right,
but the duty, of such 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 judicial tribunals, or too pressing to admit of
delay incident to their forms, STATES, WHICH HAVE NO
COMMON UMPIRE, MUST BE THEIR OWN JUDGES, AND EXE CUTE THEIR OWN DECISIONS."* Now, if possible, this
comes more directly and plainly to the point, than the
Resolutions of'98. It not only sets forth the great doc trine, it sometimes employs the very language of those
Resolutions.
Having finished its work, and appointed commissioners
to lay the complaints of ZNew England before the Government of the United States, the Convention resolved, that
"if these should fail," it would be the duty of the New
England States to hold another Convention at Boston, on
the 3d Thursday of June, with such powers and instructions as so momentous a crisis may require.t No such
Convention ever assembled at Boston, or elsewhere; for,
'in the meantime, the great trouble had come to an end.
I ow, or by what means?  Mr. Webster, though he confesses ignorance as to the proceedings of the Hartford
Convention, is nevertheless perfectly ready with an an  *Pp.10-11.              t P.21.
197 
IS DAVIS A TRAITOR?
swer to this question. In his senatorial debate with Mr.
Hayne, in 1830, he tells the world, that Massachusetts
gave up all opposition as soon as the Supreme Court of the
United States decided the laws of which she complained
to be constitutional; thus showing her loyalty under the
most severe and trying circumstances! This was, perhaps,
a thrust at South Carolina; who, as Mr. Webster supposed, stoodffar apart from Massachusetts in the heresy,
that, in great and trying emergencies, "the States, who
have no common umpire, are to be their own judges, and
to execute their own decisions." How little he knew the
history of his own State!  Hence, he could fondly imagine,
that Massachusetts had always been willing and ready to
bow to the Supreme Court as the common umpire between
the States, and proudly pointed to her conduct in 1815,
bending and groaning under the burden of the laws, and
yet loyally submitting to the high tribunal by whom it was
fastened upon her shoulders! The truth is, as we have
just seen, that Massachusetts had resolved to take that
very emergency into her own hands; to be her own judge,
and to execute her own decision. She cared indeed as little
for the Supreme Court, in such an emergency, as she did
for the other Courts of the Union; whose decisions had
been repeatedly treated with contempt, and resisted with
impunity, by her very loyal citizens during the great
trouble of the war.
Why, then, did Massachusetts submit at last? Why
did so great a change come over the spirit of her dream?
The answer is a very simple one. It is told in the printed
proceedings of the Hartford Convention.'The story is
certainly not so well adapted to the purposes of poetry, or
of oratory, as the fine fiction invented by Mr. Webster;'
but it has, at least, the homely merit of truth. Harrison Gray Otis, T. HI. Perkins, and W. Sullivan, the
commissioners appointed by the Convention to lay the
grievances of New England before the Government of the
198 
IS DAVIS A TRAITOR?
United States, reported that they had declined to do so,
"because they found, on their arrival at Washington, thatrpeace
had been concluded." * That was the secret of the submission of Massachusetts. The war with Great Britain was
at an end; the embargo and non intercourse would, of
course, no longer vex her righteous soul; shel could unfurl
the wings of her commerce to every breeze, and bring in
harvests of gold from every quarter of the globe. That
was the secret of her great-hearted loyalty and submission.
She no longer had any thing to submit to!
Sidney Smith complains of "exegesis," that it spoils so
many fine sermons; not allowing the preacher to ramble
in his rhetoric, or to flourish at random, without regard
to the real sense of his text. The same complaint may be
urged against the simple truth of history. How many
splendid orations, and grand soaring flights of rhetoric,
will it not spoil for the people of New England!  How
many self-flattering andglorious illusions will it not dispel!
"That their object was," said Mr. John Quincy Adams,
"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
assuredly resorted to, as it would be indispensably necessary to their design." t
This design, says Mr. Adams, he had communicated to
Mr. Jefferson, in 1809.  Again, while President of the
United States, Mr. Adams said:  "That project, I repeat,
had gone to the length of fixing upon a military leader
for its execution; and although the circumstances of the
times never admitted of its execution, nor even of its full
development, I had no doubt in 1808 and 1809, and have
* Proceedings of Hartford Convention, p. 33.
t Letter of Dec. 30, 1828, in reply to Harrison Gray Otis and
others.
199
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no doubt at this time, that it is the key of all the great
movements of the Federal Party in New England, [and
that party was then in the ascendency in New England,]
from that time forward till its final catastrophe in the
Hartford Convention."*
"It is but fair to observe," says Mr. Buchanan, "that
these statements were denied by the parties implicated,
but were still adhered to and again reaffirmed by Mr.
Adams."t True, it is but fair that their denial should be
known, and estimated at its true value. But who could
expect any men to acknowledge their complicity in such
a design? If, in the dark hour of their country's trial,
engaged in a war with the greatest nation upon earth,
they could conceive the idea of deserting her standard, and
even of invoking the aid and the arms of her powerful
enemy to make their desertion good, is it to be supposed
that, after the scheme had failed or blown over, they
would have pleaded guilty to such a design? Nor is this
all. What did they mean by appointing another Convention to be held at Boston?  Did they mean nothing?  Or
if they had any honorable design,-any design which need
not shrink from the light of day,-why has it never been
avowed by them?  The truth is, if any one shall carefully
examine the proceedings of the Hartford Convention, and
the previous history of New England which culminated in
that Convention, he cai hardly fail to perceive, that the
positive testimony of John Quincy Adams, is most powerfully corroborated by circumstances. The conclusion of
Mr. Buchanan appears perfectly true; "that this body
[the Hartford Convention] manifested their purpose to
dissolve the Union, should Congress refuse to redress the
grievances of which they complained."
Four years before the date of the Hartford Convention,
Mr. Josiah Quincy, an influential member of Congress
t Letter of Dec. 30, 1828. in reply to H. Gray Otis and other.
* Buchanan's Administration, p. 87.
200 
IS DAVIS A TRAITOR?
from Massachusetts, publicly declared the right of seces sion. The extract from his speech on the 14th January,
1811, is hackneyed; but it is, nevertheless, significant of
what was then passing in the mind of Massachusetts. It
is also exceedingly significant; because it was uttered inl
opposition to the admission of Louisiana into the Union
as a State.  "If this bill passes," said he, "it is my delib erate opinion that it is virtually a dissolution of the Union;
that it will free the States from their moral obligation
and, as it will be the right of all, so it will le the duty of
some, definitely to prepare for separation, amicably if they
can, violently if they must." Nay, upon the purchase of
Louisiana in 1803, the Legislature of Massachusetts passed
the following resolution: "-Resolved, That the annexation
of Louisiana to the Union, transcends the Constitutional
power of the Government of the United States. It formed
a new Confederacy to which the States united by theformer
compact, are not bound to adhere." Thus, as we have seen,
Massachusetts from the foundation of the Federal Govern ment down to 1815, held the Constitution to be a compact
between the States, and the Union to be a Confederacy.
In her ordinance of ratification in 1788; in her reply to the
Resolutions of'98; in her own resolution of 18034; she
most distinctly announced this doctrine. Hence, it seems
impossible to doubt the statement of John Quincy Adams,*
that the Hartford Convention deduced the right of seces sion from the fict, that the Constitution was a compact
between the States of the Confederacy. This was a clearly
legal inference. Rawle, Story, and Webster all admit it
to be such'. Thus the fathers, one and all, laid down the
'great premise or postulate of the doctrine of secession at
the very foundation of the Union; and the New England
States, in 1815, deliberately drew the inference, and
asserted the right of secession.  Yet these States, in 1861,
took the lead of all others in the fierceness and the bitter   * Letter of Dec. 30, 1828, to H. Gray Otis, &c.
10*
201
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ness of their denunciation of secession as treason and
rebellion!  The first to assert for themselves, and yet the
first to persecute in others, this great right!
It is thus that Josiah Quincy, the Webster of 1815, as serted the fundamental principle or postulate of secession:
"Touching the general nature of that instrument called
the Constitution of the United States, there is no obscurity; it has no fabled descent, like the palladium of ancient
Troy, from the heavens. Its origin is not confused by
the mists of time, or hidden by the darkness of past, unexplained ages; it is the fabric of our day. Some now living had a share in its construction; all of us stood by, and
saw the rising edifice. There can be no doubt about its nature. It is a political compact." Is this the same Josiah
Quincy, or was it his son, who, in 1861, made himself so
conspicuous by denouncing secession as treason? It is
certainly the same Josiah Quincy, who, in 1811, was
called to order in Congress for asserting the right of secession, and voted to be in order. How rapidly the New
England world turns upon its political axis!  In 1815, as
secession was the right of all, so it was the duty of some,
of the States; and, in 1861, it was treason and rebellion!
Did the South condemn Secession in 1815?
The South, it has been repeatedly asserted, condemned
the secession of 1815 as treason, and is, therefore, estopped
from complaining of the same sentiment in 1861.  "This,"
it is urged, "may be said to be res adjudicata. All parties
are committed against the right of secession."
Now, even if the facts were as alleged, still this would
be a one-sided logic. For if the South, in 1815, con-'i
demned secession, it was the secession which New  England had approved; and if the North, in 1861, denounced
secession, it was precisely the right which the South had
asserted. Hence, it is just as true, that all parties were
committed for, as that all parties were committed against,
the right of secession.
202 
IS DAVIS A TRAITOR?
If, as is supposed, the minority was, in both instances,
in favor of the right of secession, and the majority opposed to it; this would have been nothing very strange or
wonderful. It would only have illustrated the saying of
Aristotle, which all history confirms, that "'the weak
always desire what is equal and just; but the powerful
pay no regard to it."
But the facts have not been accurately stated. It is
true, that the South, as well as other portions of the
Union, vehemently condemned the Hartford Convention.
No Convention, or assembly, was ever more odious to the
great body of the people of the United States. But its
proceedings were secret; and, till the appearance of M3r.
Adams' letter of Dec. 30th, 1828, its precise object or design was not generally known. It may be doubted, indeed,
if it was ever condemned by any portion of the South, on
the simple ground, that it claimed for the New England
States merely the right to secede from the Union, and to
be let alone. It was, however, known to the South, that
the New England States had insisted on a war with Great
Britain in order to defend and secure the rights of their
seamen. It was also known, that while the South was
engaged in this war, the New England States not only
failed to do their duty, but denounced the war they had
instigated, and the government by which it was carried
on. It is true that, by these proceedings, the wrath of
the South was awakened, and that she denounced them
as treason; because they gave "aid and comfort" to the
enemy. From all that had preceded, how could the South
know, indeed, but that the Hartford Convention had
formed the dark design of appealing to arms against the
Government of the United States, and of joining Great
Britain in the war against the people of this country?
Even if the South had known, that New England merely designed, in 1815, to secede from the Union; still her
indignation would not have been without just cause. For,
203 
IS DAVIS A TRAITOR?
having got the South into a war with Great Britain, was
that the time for her to desert the standard of her country, and leave the other States exposed to the full brunt
of its fury? The clearest right may, indeed, be exercised
in such a manner, and under such circumstances, as to
render it odious.  The right of secession has, no doubt,
been made to appear treasonable, by its association with
the Hartford Convention of 1815.
Far otherwise was the conduct of the South. She held
no secret Conventions. All her proceedings were as open
as the day. The United States were at peace with all the
world. It was under these circumstances, that the States
of the South, each in its own Convention assembled, withdrew from the Union, and asked to be let alone. But the
South was not permitted to enjoy the government of her
choice. On the contrary, she was subjugated, impoverished, and ruined, with the avowed design to bring her
back into the Union; and now that she is knocking at the
door of the Union, she is not allowed to enter. What,
then, is left to her sons and daughters but to weep over
the inconsistency and wickedness of mankind; and, if possible, to pray for their enemies?
Thomas Jefferson on the Right of Secession.
Though MVr. Jefferson was not one of the architects of
the Constitution; yet has more stress been laid on his
supposed opposition to the right of secession, than upon
that of any other statesman of America; especially by
foreign writers. We are gravely told, with the usual
information of such writers, that "Mr. Jefferson was, in
after life, the foremost champion of State's rights." * We
are also informed, that "he would certainly have turned
away with abhorrence from the consequences to which
these [rights] have since been driven." t This last sentiment is, perhaps, conformed to the general opinion at the
North on the same subject. But is it true?
*History of United States, by J. M. Ludlow.  t Ibid.
204 
IS DAVIS A TRAITOR?
It is certain, in the first place, that Mr. Jefferson himself deduced the right of nullification from the doctrine of
State-rights; not "in after life," but in 1799, before he was
President of the United States. Mr. Everett, I am aware,
insinuates that Mr. Jefferson never favored the doctrine
of nullification. "Such, in brief," says he, "was the main
purport of the Virginia and Kentucky resolutions." The
sort of interposition indeed was left in studied obscurity.
Not a word was dropped of secession from the Union.
Mr. Nicholas' resolution in 1799 hinted at "nullification"
as the appropriate remedy for an unconstitutional law,
but what was meant by the ill-sounding word was not
explained." * Now this statement is of a piece with the
main substance of that grand swelling oration of the great
Massaehusetts declaimer. It is utterly devoid of truth.
In the first place, Mr. Jefferson himself in his correspondence, replied to the enquiryof the son of Mr. Nicholas,
that his father was not the author of the resolutions in
question. Mr. Jefferson says: "I drew and delivered
them to him."t
Nor is this all. "Two copies of these resolutions," says
the editor of Mr. Jefferson's works, "are preserved among
the manuscripts of the author, both in his own hand.
writing. One is a rough draft, and the other very neatly
and carefully prepared. The probability is, that they are
the original of the "Kentucky Resolutions on the same
subject." IJ Let us see, then, the very language of these
Resolutions, and the manner in which they "hinted at nullification."
The first resolution is in these words:  "Resolved, That
the several States composing the United States of America, are not united on the principle of unlimited submission  of their general government;  but that,  by  a
compact under the style and title of the Constitution
* Rebellion Record, Vol. 1, p. 20.
* Jefferson's Works, Vol. vii. p. 229.  $ Ibid Vol. ix, p. 464.
205
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of the United States, and of amendments thereto, they
constitute a general government for special purposes;
and that whensoever 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, its co-States forming, as to itself, the
other party; that the 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, not
the Constitution, the measure of its powers; BUT THAT, AS IN
ALL CASES OF COMPACT AMONG POWERS HAVING NO COMMON
JUDGE, EACH PARTY HAS AN EQUAL RIGHT TO JUDGE FOR
ITSELF, AS WELL OF INFRACTIONS AS OF THE MODE AND MEASURE OF REDRESS."* SO much for the postulate.
The conclusion is in these words: Resolved, That........
where powers are assumed which have not been delegated,
a nullification of the act is the rightful remedy; that
every State has a natural right in cases not within the
compact, [casus non fosderis,] to nullify of' their own
authority all assumptions of power by others within their
limits; that without this right, they would be under the
dominion, absolute and unlimited; of whosoever might
exercise this right of judgment for them; that nevertheless, this commonwealth, from motives of regard and
respect for its co-States, has wished to communicate with
them on the subject; that with them alone it is proper to
communicate, they alone being the parties to judge in the
last resort of the powers exercised under it, CONGRESS BEING
NOT A PARTY, BUT MERELY THE CREATURE OF THE COMPACT,
AND SUBJECT AS TO ITS ASSUMPTIONS OF POWER TO THE FINAL
JUDGMENT OF THOSE BY WHOM, AND FOR WHOSE USE ITSELF
AND ITS POWERS WERE ALL CREATED AND MODIFIED," &C.
Such is the language of Thomas Jefferson! Is it merely a
modest "hint at nullification? "
Some alterations were made in the resolutions, as penned
*Jefferson's Works, Vol. ix. p. 464-5.
206 
IS DAVIS A TRAITOR?
by Mr. Jefferson, before they were passed by the Legislature of Kentucky. But the first resolution above given
was not altered at all; it was passed precisely as it came
from the pen of Mr. Jefferson, with only one dissentient vote!
In the resolutions as passed by the State of Kentucky, we
find these words: "That the principle and construction
contended for by sundry of the State Legislatures, that the
General Government is the exclusive judge of the extent
of the powers delegated to it, stop nothing short of despotism-since the discretion of those who administer the gov ernment, and not the Constitution, would be the measure
of their powers: That the several States who formed that
instrument being sovereign and independent, have the unques tionable right to judge of the infraction; and, THAT A NULLI FICATION BY THOSE SOVEREIGNTIES, OF ALL UNAUTHORIZED
ACTS DONE UNDER COLOR OF THAT INSTRUMENT IS THE RIGHT FUL REMEDY." *
Such is the language, which Mr. Everett so very modestly
calls a "hint at nullification"!
He must be a dull logician, indeed, or a partial one, who
does not see, that both nullification and secession flow
from the great fundamental doctrine of the Virginia and
the Kentucky Resolutions. If, according to that doc trine, stated in the very words of Massachusetts, "the
States, who have no common umpire, are to be their own
judges, and to execute their own decisions;" then most
assuredly they may pronounce in favor of either nullifica tion or secession. Any State may, it is true, bring re proach on this right of sovereignty, by the manner in
which it is exercised. I have, indeed, always doubted
whether nullification was a wise, or judicious, exercise of
the right of State sovereignty.  It is certain, that Mr.
Webster, as well as many others, has pointed out so many
inconveniences, not to say absurdities, connected with the
act of nullification; that the right has usually been rejec   * Elliot's Debates, Vol. iv., p. 571.
207 
IS DAVIS A TRAITOR?
ted with contempt. But the exercise of a right is one
thing; and the existence of that right is another. A man
may, in his own affairs, judge unwisely; but does that
prove that he had no right to judge for himself? In like
manner, it does not follow, that a sovereign State has no
right to be her own judge; because she may judge un wisely.   It is, then, false reasoning to conclude that a
State has no right to nullify, because the act of nullifica tion is full of inconveniences, or even absurdities. Yet
this kind of sophistry is precisely the amount of all the
logic, which has been urged against nullification. If a
man, who has the right to judge for himself in his own
business, makes an unwise decision; shall the right, there fore, be taken from him, and given to another? Shall his
decision be declared null and void; and the decision of
some other person substituted in its place? Nothing could
be more unjust and despotic. Nor will any sovereign State
submit to be treated in a similar manner by any unauthorized power on earth. The act of nullification has, no
doubt, brought reproach on the doctrine of State-rights,
and especially on the right of secession; but then this has
been just because men have failed to think accurately and
profoundly on the subject. They have confounded the
propriety, or judiciousness of an act, with the right of
the party to do the act, than which a worse solicism could
hardly be perpetrated.
Nullification is, however, but indirectly connected with
secession. This right flows, as we have seen, directly
from the doctrine of Mr. Jefferson, "that as in all other
cases of compact, among parties having no common judge, 
each party has an equal right to judge for itself, as well 
of infractions as of the mode and measure of redress."
To say that a State has the right to judge of infractions
of the compact of the Constitution by the Federal Government, and also of the mode and measure of redress;
and, at the same time, that it has no right to decide upon
208 
secession as the proper remedy; is, it seems to me, simply
a contradiction in terms. Now the question is, was Mr.
Jefferson guilty of this act of glaring inconsistency, or
self-contradiction?
Hie "would have turned away with abhorrence," it is
said, "from the consequences" which have been deduced
from the doctrine of State rights. In this bold assertion,
the writer had special reference to the right of secession;
which his history of the United States, as it is called, was
written to demolish. Hundreds have, indeed, attempted
to throw the great weight of Mr. Jefferson's authority in
the scale against the right of secession, by means of the
following extract from his works: "If to rid ourselves of
the present rule of Massachusetts and Connecticut, we
break the Union, will the evil stop there? Suppose the
New England States alone cut off, will our nature be
changed? Are we not men still to the South of that, and
with all the passions of men! Immediately, we shall see
a Pennsylvania and a Virginia party arise in the residuary
confederacy.  What a game too will the one party have
in their hands, by eternally threatening the other that
unless they do so and so, they will join their Northern
neighbors.  If we reduce our Union to Virginia and North
Carolina, immediately the conflict will be established between the representatives of these two States, and they
will end by breaking into their separate units."
Now this partial extract, which has gone the rounds of
the civilized world, gives an utterly false view of Mr. Jefferson's opinion.   The context to the above passage,
which is sometimes permitted to accompany it, shows
that Mr. Jefferson really believed in the right of secession,
and only argued against the intemperate and too hasty
exercise of that right. "If," says he, in the sentence immediately preceding the above extract, "on the temporary superiority of one party, the other is to resort to a
scission of the Union, no federal government can exist."
~ IS DAVIS A TRAITOR?
209 
IS DAVIS A TRAITOR?
How perfectly true! If, for so trifling a cause, any
union of States should be dissolved, it would soon be resolved into its original units. The union would not long
exist, and it would not deserve to exist, if its members
were such fools as to resort to the right of secession "on
the temporary success" of every party therein. But to
argue, as Mr. Jefferson does, against the too hasty and
intemperate exercise of the right, is to acknowledge the
existence of the right itself.
In the Declaration of Independence, Mr. Jefferson said,
"that long established governments should not be changed
for light and transient causes." Nor, however clear the
constitutional right, would he have dissolved the Union
for such causes. But does he say, that he would not advocate a scission of the Union for any cause whatever?
That in no event whatever, he would resort to the right
of secession? There is no such doctrine in his writings;
no such glaring self-contradiction in any portion of his
works.
On the contrary, in consultation as to what the Kentucky Resolutions of'98 and'99 should contain, he wished
the following sentiments to be incorporated therein: "Expressing in affectionate and conciliatory language our warm
attachment to the Union with our sister States, and to
the instrument and principles by which we are united;
THAT WE ARE WILLING TO SACRIFICE TO THIS EVERY THING
BUT THE RIGHTS OF SELF-GOVERNMENT IN THOSE IMPORTANT
POINTS WHIcH WE HAVE NEVER YIELDED, AND IN WHICH
ALONE WE SEE LIBERTY, SAFETY AND HAPPINESS."* IS it
not perfectly obvious, from  this passage, that  Mr.
Jefferson had not been so dazzled by the glories of the
new Union, as to forget the immortal principles of the
Declaration of Independence?
Devoted to the Union, but still adhering to the great
principles of 1776, he immediately adds, that we are "not
*Jefferson's Works, Vol. iv, p. 305-6.
210
0 
IS DAVIS A TRAITOR? 
at all disposed to make every measure of error or of
wrong, a cause of scission."  Could language more clearly, or more necessarily imply, that there are measures of
error, or of wrong, which he would make a ground of
scission, or secession from the Union? Or could any
doctrine be more clearly asserted, than is the opinion of
Mr. Jefferson, that the States, and the States alone, are to
be the judges whether the measure of error, or of wrong,
which justifies her secession, has been filled or otherwise?
The Political Creed of the State-Rights Party.
The Virginia Resolutions of'98 and the Kentucky Res olutions of'98 and'99, the former from the pen of "the
father of the Constitution," and the latter from the pen
of the author of the Declaration of Independence; consti tuted, for at least forty years, the political creed of the
great State-Rights party.   They were, as every one
knows, the manifestoes on which Thomas Jefferson went
before the people, in 1800, as candidate for the Presidency
of the United States? They were also inscribed-on the
.banners of the party by which Madison, and Monroe, and
Jackson, and other candidates, were supported for the
same high office. Were they, then, at that -time, deemed
treasonable by the people, or by their leaders? Let us
glance at the record and see.
In 1800, Mr. Jefferson beat his opponent, John Adams,
then President of the United States, by a majority of
eight votes in the electoral college, or by a vote of 73 to 65.
In 1804, Mr. Jefferson, the champion of State-Rights,
beat his opponent by the overwhelming majority of 162
votes to 14.  In the Northern States alone, Mr. Jefferson
received 85 votes, and his opponent only 9.
In 1808, Mr. Madison beat his opponent by a vote of
122 to 47; and, in spite of the dissatisfaction of the New
England States, he received from the whole North a ma  jority of 50 to 39 votes.
I
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In 1812, he defeated DeWitt Clinton, a distinguished
citizen, and formerly Governor of New York, by a major ity of 128 to 89; receiving in the Northern States only
40 votes to his rival's 80.
In 1816, James Monroe of Virginia, receiv'ed 183 votes,
and his opponent only 34; and more than one-half of
these 183 votes were given by Northern States.
In 1820, Mr. Monroe was elected over John Quincy
Adams, of Massachusetts, by the majority of 231 votes to
13. Two other candidates were in the field at the same
time, Crawford and Jackson; both of whom together
received only 11 votes.
This vote, however, can hardly be regarded as a test of
the popularity of the doctrine of State-Rights; since this
was, in 1820, professed by all the candidates for the Presi dency.  Yet this fact shows, that the opposite party had
been so often and so completely defeated, that it refused
to nominate a candidate.  But James Monroe, the succes sor of Jefferson and Madison, and well known as an ar dent advocate of the doctrine of State sovereignty, swept
the whole country, and carried every thing before him
like a tornado. Henceforth all aspirants for the Presidency bowed down to that great symbol of political truth
and power, the Virginia Resolutions of'98. Even Mr.
Webster approached them with evident signs of awe, and
never ventured to speak of them otherwise than in terms
of marked respect, if not of veneration. No living soul
dared to breath the suspicion that any one of their doctrines was treasonable.
fHow, then, did it happen, that those doctrines were
afterward arraigned by Story and Webster as at war with
the Constitution of the United States? How did it happen, that, without the most distant allusion to the Virginia Resolutions, under which so many battles had been
fought and so many victories won, the great orator of
New England had the audacity to declare, that all the
212 
IS DAVIS A TRAITOR?
fathers of the Constitution, that all the publications of
friends and foes, denied the Constitution to be a compact
between sovereign States? The foregoing brief sketch
of the progress of opinion in regard to the nature of the
Constitution would be incomplete without an answer to
this question; without some notice of the causes by which
so marvellous a revolution was produced.
The Decline of the Doctrine of the Sovereignty of the States,
and its Causes.  Mr. Dane says: "That for forty years one great party
has received the Constitution, as a federative compact
among the States, and the other party, not as such a compact, but in the main national and popular."* Now, as
we have seen in this chapter, the above statement is not
true. The federal party itself, with Hamilton at its head,
admitted the Constitution to be a compact between the
States. The State of Massachusetts, the great leading
State of that party, always held the Constitution to be
such a compact previous to the year 1830. She held this
doctrine, as we just seen, in 1788, in 1799, in 1803; and
she. continued to hold it until, in 1815, it culminated in the
avowed right of secession. There is, then, no truth in the
statement, that for forty years one great party denied the
Constitution to be a federative compact among the States.
One great party, it is true, showed a strong disposition to
deny the sovereignty of the States in the Union, and to
assert the sovereignty of the Federal Government. But
the doctrine imputed to it was not one of its heresies.
i Neither Mr. Dane, nor Judge Story who quotes his
words, is pleased to inform the reader that "the great
party," which is asserted to have sanctioned their own
heresy,. was swept from existence by the other great
party. It sank so low, in fact, after the war of 1812, and
became so odious, that none was so humble as to do it
reverence.
*Quoted in Story's Corn. vol. 1, p.  8, note.
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Nor do they inform the reader, that the great leaders
of this very party in New England, became in 1815, when
in distress, the warmest of all existing advocates for the
rights and the sovereignty of individual States. They do
not even drop a hint, that those leaders, those staunch
advocates of the sovereignty of the Federal Government,
were the first to insist on the right of secession; a fact
which would have detracted very much from the weight
of their authority against the doctrine of "a federative
compact among States," even if they had ever rejected
that doctrine.
History acquits the old federal party of the monstrous
heresy imputed to it. Having been chief agents themselves in framing "the federative compact" for the States;
and having anxiously watched the States as, ones after
another, each acceded to that compact; such a heresy, such
a perversion of the facts falling under their own observation, would have been utterly beyond their power.  How,
then, and why, did the heresy in question raise its head in
the Northern States?
This question is easily answered.
1. The doctrine of a compact is attended with one
great inconvenience; the inconvenience, namely, that if it
be violated by one of the parties, the other parties are
absolved from its obligations. This great inconvenience is
set forth by Dr. Paley; to whose chapter on the subject, in
his Political Philosophy, Mr. Justice Story refers. Now
this doctrine makes the stability of the Federal Compact
depend on the good faith of all the parties; which seemed,
quite too frail a foundation for the Union. - Hence, the i
doctrine of a federative compact, which, for forty years v
had been held by both the great parties of the United
States, was explained away, and the will of the strongest
substituted in its place. According to his theory, then, the
Union rested, not on the justice of the parties, but on the
despotic power of the dominant faction. He thus placed
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the Union, by his construction, on what he conceived to
be a more solid foundation "than a federative compact
between the States." But this, as we have seen, was to
subvert the foundation laid by the fathers of the Union;
and, in order to make good his theory, he had to falsify
the whole political history of the United States during the
first forty years of the existence of the new Union; espe  cially the views and the authority of its founders.
2. The right of secession had never been seriously con sidered by any party, so long as the Union was prosperous
and happy. But, during the period from 1803 to 1815, the
great leaders of New England, regarding their section as
grievously oppressed in the Union, revolved the great
theme in mind, and, for the first time in the history of
parties, deliberately asserted the right of secession. In
view of this alarming event, it became still more impor  tant, in the opinion of Mr. Justice Story and other con  structionists, be deny the doctrine of a federative compact,
from which, as he saw and admitted, so frightful a conse  quence necessarily resulted.
3. This denial became the more indispensable, in Judge
Story's opinion; because Mr. William Rawle had, in 1825,
asserted the right of secession in his work in the Consti  tution. Mr. Justice Story alludes to the opinion of Mr.
Rawle, and, deploring it, he bent all his energies and eru -' dition to demolish the doctrine of a federative compact,
, from which that right necessarily results.  Thus, accord  ing to his theory, the Union was to be hooped with bands
'of iron, and not trusted to the mutual sympathy and good  faith of its members.
4. But, however great and commanding the influence
of Sto-y's opinion, or view of the Constitution, it would
have been comparatively feeble; if it had not been aided
by public events. South Carolina, feeling herself and some
of her sister States grievously oppressed in the Union, by
the tariffs of 1824 and 1828; planted herself on the great
215 
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platform of State-Rights, and nullified the act of Congress.
The indignation of the North was aroused.  Nullification,
it was said, led directly to secession, or a dissolution of the
Union. The New England States, which had only fifteen
years before advocated the right of secession, now led the
fierce crusade against its advocates. John C. Calhoun,
the great nullifier, was the mark of their fury. It was in
this contest, as every one knows, that the great orator of
New England, Mr. Webster, put forth "'the greatest intellectual effort of his life," if not of the. human mind. The
whole North was electrified by his eloquence; and became
intoxicated with his fictions.
Much has been said about the Northern and the Southern theories of the Constitution.  The true word is, however, the theories of the majority and of the minority.
For the Southern theory, as it is called, originated in New
England; and, passing from minority to minority, found a
permanent resting place in the South. Yet it may, with
truth, be called the Southern theory; since the South has
always been in the minority in the new Union.
Mr. Webster. lived to pronounce a splendid eulogy on
the virtues, the patriotism, and the genius of John C. Calhoun; with whom he had so long served in the Senate of
the United States. But the successors of Mr. Webster
have, for more than eighteen long months, held the bosom
friend and the peer of John C. Calhoun in prison at Fortress Monroe, as if he were already a convicted felon and
traitor.  Yet is it, as we have seen, his only crime, that he 
sat at the feet of Thomas Jefferson, "the immortal authors
of the Declaration of Independence;" and there learned(
the right of secession.  Shall the people, then, who sang
loud hozannas to the great master, follow the equally
great disciple with the cry of crucify him, crucify him?  Or
shall it be said, that they voted the Presidency for the
one, and a prison for the other?
216 
CHAPTER XIX.
The Causes of Secession.
I
i
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From the foundation of the American Union to the present day, the provision of its Constitution for the frac-,
tional representation of slaves, has been more talked about,
and less understood, than any other clause of that "sacred
instrument."  One would suppose, that if any one really
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desired to ascertain the reason or design of this "singular
provision," as it is called, he would look into the debates
of the Convention by which it was inserted in the Constitution. In these debates, as reported in "The Madison
Papers," the reason or design of the fathers in the enactment of that clause is as clear as the noonday sun. Yet,
in all that has been written by the North on the subject,
there is not even a glimmering of light as to that reason
or design. - en make books, says old Burton, as apothecaries make medicines, by pouring them out of one bottle
into another. This has most emphatically been the way
in which men have made books on "the American Question;" and, in the case before us, the bottles were originally
filled, not at the pure fountains of historic truth, but from
the turbid streams of ignorance, falsehood, and misrepresentation. Yet, for three quarters of a century, has all
this vile stuff been continually poured out of one book into
another. Accordingly, we find it in a hundred books on
both sides of the Atlantic; uttered with just as much confidence as if the authors had some knowledge on the subject.
Thus are we gravely told, and with great confidence,
that "the weakest point in the Constitution lies elsewhere.
It lies in that truckling to the slave-power which is obvious in it.... It lies especially in that singular provision for
what is termed'black' or' slave' representation, where
by alone, amongst all species of property, that in human
flesh is made a source of political power." * Now, if any
thing in history is certain, it is that, after a protracted
debate, tlie Convention of 1787 agreed that population,
and population alone, should constitute the basis of representation. The slaves were not represented at all as property. This is evident, not only from the debates of the
Con-ention of 1787, but from the very face of the Constitution itself. "Representatives," says that document,
* Hiistory, by T. M. Ludlow, pp. 44-5.
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"shall be apportioned among the several States which
may be included within this Union, according to their
respective numbers, (not one word is said about property),
which shall be determined by adding to the whole number of free persons, including those bound to service for a
term of years, and excluding Indians not taxed, threefifths of all other persons." Thus, in this very clause, the
slaves are called "persons," and are to be represented as
such, not as property. Hence, when Mr. Greely, in his
"American Conflict," wishes to prove that the Constitution
regards slaves as "persons," he quotes the clause in question. Nay, Mr. Ludlow himself, when it suits his purpose,
can recognize the truth, that the Constitution "never
speaks of the slave as a property, but as a person."* If,
indeed, slaves had not been regarded as persons, they
would not have been admitted into the basis of representation at all.
Now, did the North truckle to the South, in conceding
that slaves are "persons?" Mr. Paterson, of New Jersey,
and some other Northern members, endeavored to exclude slaves from the basis of representation on the ground
that they were "property;" but Mr. Butler and Mr. C. C.
Pinckney, both of South Carolina, insisted that they were
"persons," that they were a portion of the laboring and
productive "population" of the South; and as such, should
be included in the basis of representation on a footing of
equality with other "inhabitants."  The Convention decided that they were "persons."  Was this decision correct? Or was it, on the contrary, a mean "truckling to
the slave power?"
In the declamations on this subject, it is usually taken
for granted by Northern writers, as well as by Mr. Ludlow, that free citizens or voters alone are included in the
basis of representation for the North, while three-fifths
of the slaves are embraced in it for the Southl Hence,
*Page 51.
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this is vehemently denounced as a "singular provision,"
as a "strange anomaly," as a most undue advantage to
the South. But the fact is not so. The assumption is
utterly false. By the decision of the Convention, and by
the very terms of the Constitution, "the whole number of
free persons," whether men, women, children, or paupers,
are included in the basis of representation. All "persons," of every age, color, and sex, are included in that
basis.  Hience, Mr. Ludlow is mistaken in calling the
clause in question, "the provision" for "black" representation? The blacks, as such, were included in the general
provision, and ranked as equal to the whites. In like
manner, Professor Cairnes errs in saying the clause under
consideration "is known as the three-fifths vote."* i No such
thing as a "three-fifths vote" is known to the Constitution of the United States; and the name is the coinage of
ignorance. The three-fifths clause has nothing to do with
votes or voting.  No slave could cast the three-fifths, or
any fraction, of a vote. The free blacks were, in most
cases, denied the exercise of the elective franchise. It
was in counting the number, not of those who should vote,
but only of those-who should make up the basis of representation that five slaves were to be reckoned equal to
three white persons, or to three free negroes.
Now, why was this,?  Had the Convention any rule of
vulgar fractions, by which -a slave was shown to be only
the three-fifths of a person? And if they had, did not the
clause in question result from a mathematical calculation, 
rather than from a "truckling to the slave power?" or,(
if that was treated as a question of vulgar fractions, why
did the Convention stop there? Why not raise other
questions of the same kind? Why not consider the problem, if a full-grown slave is only the three-fifths of a person, what fraction of a person is the infant of a day old,
before the power of thought, or of local motion, has even
* The Slave Power, chap. vi.
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begun to infold itself in him or her? The truth is, that
the Convention of 1787 indulged in no such contemptible
trifling with the great practical questions demanding a
solution.
The States were exceedingly jealous of "the sovereignty, freedom, and independence," which they had expressly retained under the Articles of Confederation. The
Federal Government claimed, on the other hand, an augmentation of its powers; a claim eloquently urged by the
tongues and pens of many of the ablest men in America.
Hence arose the great conflict between the States and the
central Power; which, from that day to this, has agitated
the minds of the Anglo-Americans. In approaching this
conflict, the Convention first determined, in outline, the
form of the General Government. It was readily agreed,
that it should be a Rebublic, with a Legislature consisting
of two branches, a Senate and House of Representatives,
a J-adiciary, -and an Executive. The next question was,
what powers shall the States delegate to this General
Government, this grand Republic? After debating this
question for some time, the Convention discovered that it
had begun at the wrong end.  None of the parties were
wil]ing to say with what powers the new Government
should be invested, until it was ascertained what share
they were to have in the exercise of those powers.
Hence the Convention found it necessary to retrace its
steps, and begin with the question of the distribution of
power among the various members of the UJnion. In
this contest for power, each and every party, of course,
claimed "the lion's share."  But each and every party
could not have "the lion's share."  Hence the two memorable quarrels or controversies of the Convention of
1787; the one between "the large and the small States,"
and the other between "the North and the South."
Much is known about the first of these quarrels; but the
history of the last yet remains to be written. Its very
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first chapter is still enveloped in the most profound obscurity. I speak advisedly, and with the proofs on all
sides around me, when I say that the Americans themselves have not studied this first chapter in the history of
the great quarrel between "the North and the South."
Let us look into it, then, and see what it teaches.
In order to adjust and settle the two quarrels above
mentioned, Mr. Madison laid down the general principle,
that "wherever there is danger of attack, there should be
a constitutional power of defence."  lo principle could
have been more reasonable or just; since the object of all
government is to protect the weak, or those most exposed
to danger, against the aggressions of the powerful. The
Convention, without difficulty, agreed to the above principle, when only stated in general terms; but, as usual in
such cases, a great difference of opinion arose in regard to
the application of the principle.
The small States, for example, fearing lest the large
States should "annex" them, or swallow them up in some
other way, refused to increase their power in the Union.
They insisted, that each State, whether small or great,
should have precisely the same power in both branches of
Congress. This would have placed all the powers of the
Federal Legislature in the hands of the small States.
They were willing, nay, they were eager to possess them
all; just as if they had not the least fear that they could
ever be tempted to do the least injury to the large States.
But the large States, not having this perfect confidence in
the justice of their little neighbors, refused to entrust them
with the supreme control and destiny of the Union.
Hence they refused "the lion's share" to the small States.
They contended, however, for this share for themselves.
They contended that each State should, in each branch of
the Federal Legislature, have a power exactly proportioned to its size or population; an arrangement which
would have given the absolute control of the whole gov
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oremnment of the thirteen States to three States alone. Yet
those three States,-(Massachusetts, Pennsylvania, and
Virginia,-) with a perfect unanimity and a burning zeal,
contended for this supreme dominion in the new Union.
The small States, till then equal in constitutional power
with the large ones, resented this as a design to degrade
and enslave them. This contest was the most obstinate
and violent one of the Convention of 1787. "The truth
is," said Alexander Hamilton, in regard to this very quarrel, "it is a contest for power, not for liberty." Each
party, in its eagerness to grasp the supreme power,
neglected the rights and interests of the other.
This violent contest, which threatened to break up the
Convention and blast all hope of a "more perfect Union,"
was finally settled by one of "the compromises of the Constitution." It was agreed, that the States should retain
their equality in the Senate, each having two representatives in that body; and that they should be represented in
the other branch of Congress in proportion to their populations. Thus the small States controlled the Senate; and
the large ones, the House of Representatives. Hence
neither party could oppress the other. As no law could
be passed without the concurrence of both Houses of Congress; so it must obtain the consent of the small States in
the one, and of the large States in the other. Each class
of States held a check upon the power of the other. Thus,
where "there was a danger of attack," there was, on both
sides, given "a constitutional power of defence."  This
was, in deed as well as in word, to "establish and ordain
liberty." Hence the most violent contest, of the Convention of 1787 ceased to agitate the bosom of the new Union.
This admirable arrangement was proposed by Oliver Ellsworth, of Connecticut, and recommended on the ground
that, in a Republic, it is always necessary to protect the
minority against the tyranny of the majority.
The same principles and policy governed the Conven
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IS DAVIS A TRAITORt?
tion in its attempt to adjust and settle the great antagonism between the North and the South. -r. Madison was
so deeply impressed with the importance of arming each
of these sections with a defensive power against the other,
that he proposed "the numbers of free white inhabitants"
as the basis of representation in one House of Congress,
and the whole population, including blacks as well as
whites, as the basis of representation in the other.
This distribution of power would have given the North a
majority in one branch of the Legislature, and the South
a majority in the other. But the proposition failed. Mr.
Madison did not urge it, indeed, because, as he said, it presented a cause of quarrel which was but too apt to arise of
itself.
After the States were made equal in the Senate, each
having two representatives in that body, the North had
the entire control of it. As there were eight Northern
States, (Delaware was then considered a Northern State),
and only five Southern States; so the North had a majority in the Senate of 16 to 10. Hence, if the South was to
have any defensive power at all, it should have had a majority of representatives in the other branch of Congress.
Accordingly, Southern members insisted on the full representation of the whole population of the South, as well as
of the North, in order that their section might have a
majority in one branch of the common Legislature. The
North, on the contrary, insisted that the slaves should be
entirely excluded from the basis of representation; which
would have given that section a decided majority in both
branches of Congress. Thus, while the South contended
for a power of self-defence or protection; the North
aimed at no less than absolute control and dominion.
The South would not submit. The North and the South
were then, as they afterward appeared to De Tocqueville,
"more like hostile nations, than rival parties, under one
government."   The fierce contest for power  between
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them resulted in the compromise of the three-fifths clause
of the Constitution. In proposing this clause, Mr. Wilson,
of Pennsylvania, said it could not be justified on principle,
whether property or population were regarded as the
basis of representation, but that it was deemed "necessary as a compromise" between the North and the South.
As such it was seconded by Mr. C. C. Pinckney, of South
Carolina, and as such it was adopted by the Convention.
This clause was, then, a compromise, not between abstract
metaphysical principles of government, but between the
opposite and conflicting claims of the two rival sections.
Did the North, then, "truckle to the slave power"? It is
certain, that she grasped at and gained a majority in both
branches of the common Legislature.  For, in spite of
the clause in question, the North had a majority of 36 to
29 in the House of Representatives, as well as of 16 to 10
in the Senate; a share which certainly ought to have satisfied any ordinary lion.
But it is the fate of a democracy to be governed more by
words than by ideas, more by "telling cries" than by
truth. The cry has always been that the slaves, who had
no wills of their own, were represented in Congress; and
that this "singular provision," this "strange anomaly,"
had resulted from a base "truckling to the slave power."
But for this provision, says  Professor Cairnes,* there
seemed to be nothing in the Constitution, "which was
not calculated to give to numbers, wealth, and intelligence, their due share in the government of the country."
Did the general clause, then, which places idiots, paupers,
free negroes, and infants of all ages, in the basis of representation, provide for nothing but a representation of
"the intelligence and wealth of the country?"   The
truth is, that none of these clauses were represented in
Congress; they were merely considered in the difficult
question of the distribution of power among the States
*The Slave Power, p. 164.
11*      --
225
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and the Sections. The only persons really represented
were the voters, who had the legal right to choose their
own representatives.' It was in this way, and in this way
alone, that the Convention sought to secure a representation of the "wealth and intelligence" of the country.
But who cared for the truth? The telling cry, that
slaves were represented in Congress, inflamed the passions of the North, and served the purpose of demagogues
infinitely better than a thousand truths.   Hence  the
world has been filled with clamors about "the slave
representation of the South." The deceivers are, however, careful to conceal the fact, that all classes of "persons,"
except the slaves, are reckoned at their full value in constituting the basis of representation. The women and
children of the North alone, many of whom were born in
foreign countries and had never been naturalized in
America, have been the source of far greater political
power, than that which has resulted from the whole population of the South. Is it not much nearer to the truth,
then. to say that the South has been governed by the
women and children of the North, than that "the North
has been governed by the slaves of the South"?
Immense, indeed, has been the advantage of the clause
in question to the South! Only let Mr. Ludlow, or one
of his school, estimate this advantage, and it is sufficient
to astonish the world!  It gives to "every poor white"
at the South, "however ignorant and miserable," "ten
times the political power of the Northerner, be he never so
steady, never so wealthy, never so able."*  How wonderful the disparity! And, considering that "all men are
created equal," how infinitely more wonderful, that the
wealthy and the able Northerner should have so long and
so patiently submitted to such an amazing inequality! 
What! The rich Northerner, the merchant prince, or the
great lord of the loom, only the one-tenth part of the
*History, p. 49.
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political power of the "poor white" at the South! Is it
possible?  Mr. Ludlow proves the whole thing by figures;
and "figures," it is said, "cannot lie." Let us see, then,
this wonderful proof of the wonderful fact.  "Suppose,"
says Mr. Ludlow, "300,000 be the figures of population
required to return a representative, then, whilst 300,000
freemen of the North are required for the purpose, 30,000
Southerners, owning collectively 450,000 slaves, or 15 on
an average (many plantations employing hundreds) are
their equals politically, and every  poor white," however
ignorant and miserable, has his vanity gratified by standing at the ballot-box the equal of his richest slave-holding
neighbor, whilst each of them is equally invested with
ten times the political power of the Northerner, be he
never so steady, never so wealthy, and never so able."
But he must, indeed, have been a most "ignorant and
miserable" white, if he could have had his vanity grati fied, or his-judgment swayed, by any such logical pro cess or conclusion.  This specimen of logic, or rather of
legerdemain, only assumes that none but "the 30,(00
Southerners," with their "450,000 slaves, or fifteen on an
average," are included in the basis of representation.
But since, in fact, all persons are included in that basis, Mr.
Ludlow should have taken some little pains to explain to
his poor ignorant readers how it is possible for eight mil lions of whites to own only four millions of blacks; and
yet for each white to own, "on an average," as many as
"fifteen slaves." It would seem, without much calcula tion, that, in such a case, there could be only one slave to
every two whites.  If so, then if the slaves had been
regarded as whole "persons;" the Southerner would have
had only one and a half times the power of the North erner. But as, in fact, the slave was counted as little
more than the half of a person; so the Southerner pos sessed only a little more than one and a quarter times as
much political power as his Northern neighbor. There
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was, then, no reason why the vanity of the poor, ignor ant white of the South should have been so highly grati fied, nor why the pride of the rich nabob of the North
should have been so deeply wounded.
But this whole way of viewing the subject is, in reality,
perfectly puerile. What has the political power of the indi vidual to do with such a question? There is the broad
fact, acknowledged by all parties and all sections, that, at
the time the Constitution was formed, the South was superior to the North both in wealth and population. Hience,
if either wealth or population had been made the basis of
representation, and fairly carried out in practice, the
South would have had the majority in one branch of Congress. As it was, however, the North resolutely fought
for and secured the majority in both branches thereof.
Was not this, then, sufficient to gratify the pride of the
North, as well to humble that of the South. Suppose that
in a society of ten millions of people, eight millions are
united by one interest, and the remaining two millions by
another interest. Suppose, again, that in order to get the
two millions to enter into such a society, each individual
of them had been allowed two votes, or twice as much
power as an individual of the eight millions.  Would this
render the two millions secure? Would this give the
minority a "defensive  power" against  the majority?
"Ignorant and miserable," inideed, must be the individual
in such a minority, if his vanity could be gratified by the
possession of twice as much power as an individual of the
majority, while that majority had the power to rob him
of both his purse and his good name.
The only strange thing in the transaction is, why the
South should have consented to enter into so unequal a
union with the North. Why she should have entrusted her
rights, her interests, her honor, her glory, and her whole
destiny, to the care and keeping of a foreign and hostile
majority. This seems the more wonderful; because, at
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that time, every statesman in America regarded nothing
as more certain than the tyranny of the majority. "Complaints are everywhere heard," said fr. lladison, in The
Federalist, "from our most considerate and virtuous citizens........ that measures are too often decided, not according to the rules of justice, and the rights of the minor party, but by the superior force of an interested and overbearing majority." *
It was the grand object of the ConveAion of 1787 to
correct this tendency, this radical vice, if tot this incurable evil, of all democratic republics. The evils under which
the country labors, it was said in that Convention, are, on
all hands, "'traced to the turbulance and violence of democracy," to the injustice and tyranny of the majority. "To
secure the public good, and private rights," said The Federalist, "against the danger of such a faction, (i. e. of such
"an interested and overbearing majority,") and at the
same time to preserve the spirit and the form of a popular
government, is then the great object to which our inquiries
are directed. Let me add, that it is the great desideratum, by which alone this form of government can be rescued from the opprobrium under which it has so long
labored, and be recommended to the esteem and adoption
of mankind." t Did the South, then, with her eyes open,
willingly put her neck in the yoke of such a majority=? If,
as every Southern statesman knew perfectly well,'iit is
of great importance in a republic to guard one part of
society against the injustice of another part;"  did the
South really fail to demand such a safeguard?  Did she
place herself under the rule of the North, without taking
any security for her protection, without claiming any
"constitutional power~f defence?" Nothing was further
from her thoughts. If she had been seduced into the
Union by the idea, by the immense advantage, that each
of her citizens would have a little more power in one
* No. x.         tFederalist No. x.   I        Ibid.
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branch of Congress than those of the North; she would
have been the weakest and most contemptible of creatures.
The citizen of a small State, such as Delaware or Rhode
Island, might have had ten, or twenty, or thirty times
the power..in the other Houe of Congress, which a citizen of Pennsylvania or Virginia possessed; and yet this
would not have satisfied him unless the small States
could have controlled that branch of the ILegislature.
This control ofthe Senate was demanded for the small
States, as one of the indispensable conditions of Union, and
this demand was conceded to them; in order that the
minority might, in this instance, enjoy that freedom,
and independence, which it had resolutely refused to hold
at the mercy of the majority.
By all the principles, then, of the Convention of 1787,
by the great object for which that Convention assembled,
by the very nature and design of all constitutional republics; they were bound to protect the minority against the
majority.   They were, especially, bound to protect the
South against the North; the weaker and the richer sections against the stronger and the more rapacious. Accordingly, this was the grand object of the Convention.
The design was good; but the execution was bad. The
South insisted on the three-fifths clause, and some Northern members resisted its enactment; because it was believeoon both sides, that this would ultimately give the
South a majority in the House of Representatives. It
would, as every one knew, give the North the majority
at the outset; but population was, before the adoption of
the new Union, so much more rapidly increasing at the
South than at the North, that the Convention believed
that the South would soon gain *he ascendency in the
lower House of Congress. The debates of the Convention bear ample and overwhelming testimony to the prevalence of this belief.  The speeches of M31adison, Mason,
Pinckney, Butler, and others from the South, as well as
230 
IS DAVIS A TRAITOR?
of Morris, King, Wilson, and others from the North, conclusively show that the Convention intended to allow the
South the prospect of a majority in one branch of Congress. Such was the object and design of the three-fifths
clause. Such was the reason of the Convention for admitting a fraction of the slave population into the basis
of representation. From this point of view, that provision appears as reasonable and just to every thinking man,
as from any other it seems strange, singular, anomolous. It was, as Rufus King, of Massachusetts, declared
in the Convention, due to the South, as a constitutional
power of defence, or protection, in the new Union.
This " singular provision," then, about which so much has
been said and so little known, did, according to the design
of its authors, lie at the very foundation of the Constitution of the United States. Neither the large States nor
the small States, neither the North nor the South, would
agree to enlarge the powers of the common government,
until they could first see how those powers were to be distributed among themselves as the principal parties to "the
compact of the Constitution." Neither the North nor the
South would, for one moment, have dreamed of entering
into the new Union, if it had believed that the other
would continue to have a majority in both branches of the
Federal Legislature. Neither would have consented thus
to hold its rights and interests at the mercy of the other.
Each was, as the debates show, perfectly willing to hold
the reins of empire and dominion over the other. But
while each was thus perfectly willing to rule, it had some
little objection against being ruled. It could easily trust
itself, but not its rival, with the control of the supreme
power, and it was, no doubt, amply prepared to bear with
becoming fortitude any hardship or danger, which might
result to its ally from such an arrangement in its own
favor. Hience the absolute necessity of the compromise in
question. On no other terms, oriconditious, could the new
231 
IS DAVIS A TRAITOR?
Union, with its vastly augmented powers, have arisen
between the two great sections, which were so violently
agitated and repelled by similar electricities. That " compromise," then, that "singular provision," that partial
admission of slaves into the basis of representation, was
introduced and enacted to adjust the balance of power
between the North and the South. It was one of the fundamental principles of the Constitution, without which
"the more perfect Union" could not have been formed
between the sections.
The three-fifths clause or compromise, then, intended to
give the one section, as well as the other, a defensive power in the new Union, was absolutely indispensable to the
formation of that Union. Such a defensive power was,
indeed, deemed by a majority of the fathers of the Constitution, absolutely indispensable to the safety, freedom,
and independence of each of the sections in the Union.
Yet,- however strange it may seem, no public man in
America has, from that day to this, taken the pains to
make himself acquainted with the reason and design of
that fundamental provision of the Constitution of the
United States!
The author of the "American Conflict" regards slaves
as "human beings"; and quotes the clause in question,
"three-fifths of all other persons" to prove that the Constitution regards them in the same light. Why, then, says
he, were they not represented "like other human beings,
like women and children, and other persons, ignorant,
humble, and powerless, like themselves?"  The answer is
very easy. Although the Convention did, as their proceedings show, adopt population on the basis of representation; yet was the majority more bent on the possession
of power, than on the preservation of their logical consistency. If. instead of compromising the difficulty, the
South had persisted in pushing the principle adopted by
the Convention to its logical conclusion; then would the
232 
IS DAVIS A TRAITOR?
great design of that body of legislators have been spoiled,
and all prospects of the "more perfect Union" blown
into thin air. So much for one horn of his formidable
dilemma. "If, on the other hand," says he, "you consider them property-mere chattels personal, why should
they be represented any more than ships, or houses, or
cattle? Here is a nabob, who values his favorite highbred horse at five thousand dollars, and five of his able
bodied negroes at the same amount. Why should his
five negroes count as three men in apportioning the representatives in Congress among the several States, while
the blooded horse counts for just nothing at all?" Here,
again, the answer is perfectly easy. The slaves were
not counted as property at all; and, consequently, there
was no inconsistency in excluding horses, or other quadrupeds, from the basis of representation. Thus, neither the
horn of the dilemma is quite as unanswerable as the author imagines it to be, and utterly fails to show the absurdity of the clause in question as one of the "unsightly
and anomolous" excrescences of the slave power.
In reply to the two questions of his own dilemma
the author says: "We can only answer that Slavery and
Reason travel different roads, and that he strives in vain
who labors to make these roads even seem parallel." Such
is his profound commentary on one of the most important
clauses, one of the most indispensable provisions, of the
Constitution of his country.  He is, in the same spirit,
pleased to speak of this provision of the Constitution, as
if it had been hastily adopted by the Convention, " without much debate or demur;"* and that, too, just after he
had quoted the undeniable words of one of the most celebrated members of the Convention, which show that it
had "been settled" only "after much difficulty and deliberation." t Roger Sherman was right; and Horace Greely
was wrong. The Convention had something more to do
*The American Conflict, p. 46.      t Ibid p. 43.
233 
IS DAVIS A TRAITOR?
than merely to "split the difference" between two hairs,
or abstractions; they had to adjust the balance of power
between the two great rival sections of the United States;
a problem which lay at the very foundation of the new
Union, and upon the satisfactory solution of which the
whole superstructure was destined to depend. It is
absurd, as well as untrue, to say that such a question was
settled without much difficulty. It exercised, to the
utmost, all the sagacity and wisdom of the Convention of
1787. That wisdom is, no doubt, utter foolishness to the
rabid rage of radical reformers; whicli never fails to condemn constitutions and laws without even knowing, or
caring to know, the reasons on which they are founded.
"Slavery and Reason" have, it is true, often travelled
"different roads."  But, in the case before us, the South
would have been glad to travel the same road with Reason,
and follow the principle of the Convention to its logical
conclusion. But the sturdy North would not listen to
that conclusion. Hence, if the South departed from the
road of Reason at all, it was in order to meet the hard
demands of the North, and join in the Union, which has
proved her ruin.
It proved her ruin; just because the balance of power,
which the fathers intended to establish between the two
sections, was overthrown and destroyed. That equilibrium, or balance of power, was, in the opinion of the
fathers, indispensable to the safety, freedom, and independence of each section in the Union; and its destruction has illustrated and confirmed the wisdom of their
decision.
On this subject, a distinguished Northern writer, in
1860, used the following language:
"At the time of the adoption of the federal Constitution
the condition of slaves was very different at the South
from what it has since become. At that timne there was,
as we have shown in a previous chapter, no large branch
234 
IS DAVIS A TRAITOR?
of industry to engage the blacks, and their future fate
was matter of anxiety. The progress of the cotton culture has changed that, and the interests of millions of
whites now depend upon the blacks. The opinions of
statesmen of that day were formed upon existing facts;
could they have seen fifty years into the future their
views upon black employment would have undergone an
entire change. The blacks were then prospectively a burden; they are now an absolute necessity. They then
threatened American civilization; they are now its support. With multiplying numbers they have added to the
national wealth. They have become the instruments of
political agitation, while they have conferred wealth upon
the masses.
From the moment of the formation of the Federal
Union there commenced a struggle for political rower
which has not ceased to be directed against the Slave
States. The-instrument of union, while it provided for
the extinction of the slave-trade, which then formed so
large a portion of Northern traffic, contained also a provion for black representation in the Southern States, stipulating that that representation should not be changed
until 1808, and thereafter only by a vote of three-fourths
of all the States. That provision has been the ground-work
of that constant Northern aggression upon Southern interests
which has so successfully gained on the federal power until
now it imagines the desired three-fourths is within its reach,
when the South, with its intercsts, will be at the feet of the
abolitionists. The South has stood steadily on its defence,
but while the circle has narrowed in upon it, the North
has not ceased to clamor against Southern aggression!
Like Jemmy Twitcher, in the farce, who, having robbed a
passenger, loses the plunder, and exclaims, "there must
be some dishonest person in the neighborhood!"  * *  *
The original 13 States that adopted this Constitution
were all Slave States with the exception of Massachusetts,
235 
IS DAVIS A TRAITOR?
which, although it then held no slaves had an interest in
continuing the slave trade, in opposition to the wishes of
the Slave States. The struggle in the Convention in re lation to the discontinuance of the slavc-trade, was be tween the New England States, that desired the traffic,
and Virginia and Delaware that wished no more slaves,
while those Southern States that had but a few blacks de sired to import them without tax. On the vote New
Hampshire and Massachusetts voted to continue the
trade until 1808, and Virginia and Delaware voted "nay,"
or for its immediate discontinuance. No sooner had the
Constitution been adopted, however, than the annexation
of Louisiana became a necessity, in order to give an outlet to the sea for the produce of the West, but, notwithstanding the great advantage which the annexation was
to confer upon Massachusetts, she oppoeed it to the point
of threatening to dissolve the Union if it was carried
out, That, after the great rebellion of Shay within her
borders, was the first disunion threat, and the motive was
fear of the political increase of Southern strength. Those
fears were like all party pretences, short-sighted, since
that territory has given more Free than Slaves States to
the Union. This threat of disunion was made while yet
Massachusetts was engaged in the slave-trade, that the
State had voted to prolong to 1808. The same cry was
renewed in respect of Florida, and again, with greater
violence, in the case of Missouri; to be again revived in
respect of Texas; and once more, with circumstances of
greater atrocity in the case of Kansas.   It is remarkable
that while Free States come in without any great struggle on the part of the South, the safety of which is
threatened by each such accession, the admission of Slave
States is the signal of so much strife, and this resistance
to a manifest right of the South is denounced as "Southern aggression.)
The gradual abolition of slavery in the old Northern
236 
IS DAVIS A TRAITOR?
States, and the rapidity with which Eastern capital, following migration, has settled the Western States, has
given a large preponderance to the free interest in the
national councils. Of the 26 senators that sat in the first
Congress, all represented a slave interest, more or less;
with the States and territories now knocking for admission, there are 72 senators, of whom  32 only represent
the slave interest.  That interest, from being "a unit" in
the Senate, has sunk to a minority of four, and yet the
majority do not cease to complain of Southern "aggres sion." With this rapid decline in the Southern vote in
the great "conservative body" of the Senate, the repre sentationr in the lower House has fallen to one-third. How
long will it be before the desired three-fourths vote, for
which a large party pant, will have been obtained, and,
when obtained, what will have become of those Southern
rights which are even now denied by party leaders to be
any rights at all. In the last 30 years 11 Free States
have been prepared for the Union; a similar progress in
the next 30 years and the South will have fallen into that
constitutional minority which may deprive it of all re served rights. This circle is closing rapidly in upon it,
amid a continually rising cry of abolition, pointed by
bloody inroads of armed men. This is called Southern
"aggression." *
The balance of power was overthrown.  The South
lost, more and more, her original equality in the Union;
and the just design of the fathers was despised and
trampled under foot by the Northern Demos.  Every cen sus showed, that her power had diminished, as her dangers
had increased; and she no longer found herself in the ori ginal Union of equal sections. On the contrary, she found
herself in a minority, which the Southern men of 1787
would have shunned as the plague; and threatened by a vast
majority as cruel as death, and as inexorable as the grave.
Southern Wealth and Northern Profits, p. 13940.
237 
IS DAVIS A TRAITOR?
This was not the Union of the fathers; but the warped,
and perverted Union of unjust rule and domination. The
States of New England, never failed to threaten a dissolution of the Union, whenever, in their jealous imaginations,
there seemed even a prospect that the balance of power
might turn in favor of the South in only one branch of
Congress. Yet the more this balance was actually turned
in their own favor, and the South, contrary to the design
of the fathers, reduced to a hopeless minority, the more
imperiously they demanded her implicit submission to
Northern rule, and the more fiercely was denounced her
every struggle to maintain her original equality and independence as "Southern aggression."
From a table in the work above quoted, it appears that,
at each succeeding census, the relative increase of the two
sections in the House of Representatives was as follows:
Before Census.
North,   35
South,   30
Majority,  5
Thus, in one branch of the Legislature, the Northern
majority, counting Delaware as a Southern State, had
increased from a majority of five to a majority of fifty-four
representatives. The South, as every reader of American
history must know, never would have entered into so unequal a Union with the North; and the North would not
have continued in the Union, if she had not always\
retained the balance of power in her own hands, and in
both branches of Congress.
As the North had so great a majority in the House, it
was the more important that the South should, at least,
retain her original share of power in the Senate. But
even this, she was not allowed to do. In order to gain
the complete and uncontrolled ascendency in the Senate,
as she had done in the House, the North began to' exclude
238
1790.
57
53
4
1800.
77
65
12
1810.
104
79
25
1820.
133
90
43
1830.
141
100
41
1840.
135
88
47
18M.
144
90
64 
IS DAVIS A TRAITOR?
all slave-holding States from the Union. This she at tempted in regard to Missouri, and persisted in her uncon stitutional attitude, until she was defeated by the votes
of a few Northern democrats, who sacrificed themselves to
save the Union and their own party. After the restora tion of the democratic party, and during its reign, the
rights of the States were so clearly vindicated, and so
firmly established, that few ventured to claim for Congress
the power to exclude a State from the Union, because she
held slaves. iHence the Republican party changed its
tactics; and endeavored to effect the same unconstitutional
design in another way. Not daring to say, as their pre decessor had done, that Congress could exclude a slave holding State from the Union, they determined that no
more such States should be formed. For this purpose,
they resolved to exclude the South from all the territories
of the Union; so that no addition should ever be made to
her power, while that of the North was allowed to increase
with still greater rapidity. The North resolved, in fact,
that every new State formed, and admitted into the
Union, should be an accession to her own overgrown
power. The South might object and complain; but what
could she do?  Was she not already in a helpless minority?
If we count Delaware as a Southern State, then the
North, instead of a majority one State in the Senate, had a
majority of three States, or of six votes, before the first
Southern State seceded from the Union. There were eigh teen Northern, and only fifteen Southern States, represented
in that branch of Congress; which was designed to act
as a check on the majority in the iHouse of Representa tives.  Nor was this all.  For there were, at that time,
nearly ready to come into the Union-Kansas, Minnesota,
Oregon, Washington, Nebraska, Utah, and New Mexico,
which would have made the Northern majority as over  whelming in that body, as it was in the other branch of
the Federal Legislature. If the tables had been turned,
239 
IS DAVIS A TRAITOR.?
if the picture had been reversed, the Xorth would have
laughed such a Union to scorn. She could not even tolerate, indeed, the bare thought, or imagination, that the
South might gain the ascendency'in the Senate, in only
one branch of the Federal Legislature.
Thus, while the greedy North continued to grow in
power, and in a determination to crush the South beneath
her feet, she filled the earth with her clamors about "the
aggressions of the slave power;" appealing to the prejudices and passions of mankind in her unholy crusade
against an un. known and despised people. The South
simply stood on the defensive. The one struggled for
empire, for dominion; the other for independence, for
existence. The one struggled to preserve her original
equality in the Union; the other to destroy that equality.
The one directed all its efforts to uphold the balance of
power, established by the authors of the Constitution,
and deemed by them the only safeguard of freedom in
the Union; the other bent all its energies to break that
balance, and grind its fragments to powder.
Hence the South became extremely sensible of the dangers of her position in the Union. All hope of a "constitutional power of defence" therein, had been wrested
from her grasp. That safeguard of her freedom and independence, which the founders of the Republic deemed so
essential to both ends of the Union, no longer existed for
the South; and she held her rights and interests at the
mercy of the North, as it was never intended she should
hold them. She could see, therefore, as clearly as Professor Cairnes, that the extinction of her freedom and independence was, sooner or later, her inevitable destiny in the
Union. That dark destiny, however, she beheld with far
other eyes than those with which it was contemplated by
the Professor of Jurisprudence. Beholding, with fanatical
delight, the ultimate ruin of the South in the Union, he
denounced secession as treason and rebellion; but it is to
240 
IS DAVIS A TRAITOR? 
be hoped that, in the estimation of mankind, it will not be
deemed an unpardonable offence, if she was not entirely
devoid of the natural instinct of self-preservation.
Jefferson Davis, in the name of the South, gave utterance to this natural instinct in the Senate of the United
States in 1850. "The danger," said he, "is one of our own
times, and it is that sectional division of the people which
has created the necessity of looking to the question of the
balance of power, and which carries with it, when disturbed, the danger of disunion.' Such was the treason of
Jefferson Davis in 1850! But far bolder language had been
used by Northern Statesmen, and by Northern Legislatures, in behalf of the North; not because the North was
in a present or real, but only because she was in a future
and purely imaginary, minority.  The treason of the weak
is the patriotism of the strong.
The Relative Decline of the South inl the new Union.
It is a remarkable fact, that frc,m the first settlement of
the country, the South continued to increase in population
and wealth more rapidly than the North, till the new
Union was established. In the Convention of 1787, it was,
on all sides, conceded that the South surpassed the North
both in population and in wealth. But from that event,
from the inauguration of the "more perfect Union," her
relative decline began. This fact has always been ascribed,
by the enemies of the South, to the malign influence of the
institution of slavery. But slavery existed before the-new
Union without producing any such effect. Hence, however great the evil inafluence of slavery may have been, it
was not sufficient to counteract the great natural advantages of the South, until the new Union came to its aid.
The action of the Federal Government was, in the opinion
of many impartial judges, the great cause of this relative
decline of the South, in spite of the resources which nature,
12
241 
IS DAVIS A TRAITOR?
with a large and liberal hand, had lavished on her teeming
soil and beneficent climate.
The influence of this cause is well explained by a devoted
friend to the Union.  Rice and indigo were, says he, the
great staples which, under the protection of the British
Crown, had been the sources of the superior wealth of the
South before the Revolution.  But under the protection,
or rather under the contemptuous neglect, of the Federal
Government, these great interests languished, and these
great staples were finally crushed out of the markets of
the world by the hostile legislation of foreign powers.
The decline of the South would have been as hopeless as
it was rapid, if the cultivation of cotton, in consequence
of several well known improvements and inventions, had
not become sufficiently remunerative to stand alone without the aid Or support of the Federal Government.  This
great staple and source of wealth caused the South to
revive.  It not only arrested the sort of "galloping consumption" under which she was fast sinking into comparative insignificance, but it also restored her to something
of the fulness and the glow of her former prosperity.  But
the North fixed her eagle eye on the rising prosperity of
the South, and soon planted the talons of her tariffs deep
in its very vitals.
"The tariff question," says Mr. Ludlow, "may be easily
disposed of." * He certainly disposes of it with very great
ease.  A few prudently selected, and carefully trimmed,
extracts fromn Mr. Benton, are among the facile means he
employs for the purpose.  Let us, then, hear Mr. Benton
himself, not in garbled extracts merely, but in the full
round utterance of great historic truths.  Mr. B. was no
friend to the institution of slavery, or to its extension. In
regard to this last most exciting question, he was decidedly
with the North.  But yet, unlike Mr. L. and his school,
Mr. Benton could both see and feel that something else
* Hiatory, p. 305.
242 
8IS DAVIS A TRAITOR?
beside slavery exerted an evil influence in the United
States of America.  Accordingly, in 1828, he uttered the
following words-in:the Senate:  "I feel forthe sad changes
which have taken place in the South during the last fifty
years. Before the Revolution, it was the seat of wealth
as well as of hospitality.  Money and all it-commanded
abounded there.  But how  now?  all this is reversed.
Wealth has fled from the South-and settled in the regions
North of the Potomac; and this in the face of the fact that
the South in four staples alone has exported produce since
the Revolution, to the value of eight hundred millions of
dollars; and the North has exported comparatively noth   ing.  Such an export would indicate unparalleled wealth,
but what is the fact? In the place of wealth a universal
pressure for money  was felt not enough for current
expenses  the price of all property down-the -country
drooping and languishing-towns and cities decaying   and the frugal habits of the people pusfed to the verge of
universal self-denial for the preservation of their family
estates. Such a result is a strange and -wonderful phe   nomenon. It calls upon statesmen to enquire into the
cause." How did slaverylproduce this wonderful transform   ation?  Hlow did slavery work all this ruin?  Slavery, it
is well known, existed before the Revolution as well as
afterward; and accompanied the South in the palmiest
days of her prosperity, as well as in the darkest and most
dismal hour of her adversity.  Hence Iit was  not, and
i could not have been, the one cause of so great and so sud   den a change.  And besides, instead -of having ceased to
produce, the fair  and fruitful South continued to pour
forth, in greater abundance than ever, the broad streams
of national prosperity and wealth.  Hence she was im   poverished,'not because the fountains of her former supply
had been dried'up, or.even diminished in volume, but
because the great streams flowing from them. did not
return into her own bosom.  Into what region:of  the
earth, then, did these streams empty themselves?
243 
IS DAVIS A TRAITOR?
Mr. Benton answers this question; and though his answer is diametrically opposed to the views of the Bright
and Cobden school, he is the great authority whom Mr.
Ludlow himself has brought upon the stand. Under
"Federal legislation," says Mr. Benton, "the exports of
the South have been the basis of the Federal revenue.....
Virginia, the two Carolinas, and Georgia, may be said to defray three-fourths of the annual expense of supporting the
Federal Government; and of this great sum annually furnished by them, nothing or next to nothing is returned to
them in the shape of Government expenditures. That
expenditure flows in an opposite direction-it flows northwardly  in one uniform, uninterrupted, and  perennial
stream. This is the reason why wealth disappears from the
South and rises up in the North.  Federal legislation does all
this. It does it by the simple process of eternally taking
from the South and returning nothing to it. If it returned to the South the whole or even a good part of what it
exacted, the four States south of the Potomac might stand
the action of the system, but the South must be exhausted of its money and property by a course of legislation
which is forever taking away and never returning anything. Every new tariff increases the force of this action.
No tariff has ever yet included Virginia, the two Carolinas,
and Georgia, except to increase the burdens imposed upon
them."
Nor was M1r. Benton alone in this opinion.  The political economists of the North, such as Carey, Elliot, Ket- t
tell, and others, who had studied the sources of national
wealth in America, gave precisely the same explanation
of the sudden and wonderful disappearance of wealth from
the South. The North might easily satisfy its own conscience, by making slavery the scape-goat for its sins; but
thinking men, even at the North, were not so readily
deceived.  Hence, in an able work entitled "Southern
Wealth and Northern Profits," the author does not hesi
244
I 
IS': DAVIS A TRAITOR?
tate to tell the people of his own section, that it was gross
injustice, if not hypocrisy, to be always growing rich on
the profits of slave-labor; and, at the same time, to be
eternally taunting and insulting the South on account of
slavery.  Though it was bitterly denounced as "the sum of
all villainies;" it was, nevertheless, the principal factor in
Northern wealth.
In like manner, Professor Elliot, though  a Northern
man, and an enemy to slavery; yet, as a political econo. mist, and teacher of the science in a Northern college, he
denied that it had impoverished the South. On the contrary, he has, in a work styled "Cotton is King," shown
that slave-labor has been one of the great sources of
Northern wealth. Is it any wonder, then, that the thinking men of the South should have entertained the same
opinion? Is it any wonder, that they should have agreed
with Benton, and Kettell, and Elliot, and other Northern
writers, that it was legislation, and not slavery, which had
impoverished the South? It is certain, that such was the
conclusion of the thinking men of the South, in view of
her sad and frightfully altered condition.
"Such a result," says Mr. Benton, "is a strange and
wonderful phenomenon. It calls upon statesmen to enquire
into the cause; and if they enquire upon the theatre of this
strange metamorphosis they will receive one universal
answer from all ranks and ages, that it is-Federal legislation
which has worked this ruin." If, under such circumstances
or belief, the South had been satisfied with the action of
the Federal Government, her people must have been the
greatest of all simpletons, or the most patient of all saints.
They were neither; they were merely human beings, who
had some little regard for their own interests, as well as
for those of their neighbors. ience, the tariffs of the
United States, by which one portion of the people was
impoverished for the benefit of another portion of the peo ple, left in the minds of the most influential men of the
245 
IS DAV.IS A TRAITOR!?
South a deep and abiding sense of the injustice of Northern legislation.
What less could have been anticipated?  All majorities
are, in fact, unjust, despotic and oppressive.  Hence, in
the opinion of the Convention: of 1787, if either section
should have the majority in both branches of Congress, it
would oppress the other. As this opinion was founded on
the experience of the past, so it was afterward confirmed
by the: history of the future.  Indeed, if the North, with
a majority in both branches of Congress, had not oppressed the South, it would have been unlike every other
unchecked power in the history of the world.
There have been, no doubt, lets, hindrances, and pauses
in this onward march of the triumphant power of the
North. But it has always had its eye fixed on one object
of supreme  desire, namely, on absolute dominion and
control. It had already become. absolutely overwhelming
in one branch of Congress, with the certainty of soon becoming equally overwhelming in the other. There was
not a member of the Convention of 1787, who, if his own
section had been in the minority, would not have shrunk
from such a Union with horror.  He must indeed have
been profoundly ignorant of the sentiments of the fathers,
as well as of the character of all interested majorities, who
could have supposed, for a moment, that the South might
have been free, or safe, or happy in such a Union.  What!
is that freedom which is held at the mercy of another?
Is that safety which depends on the will of an interested majority?
What was to have been expected from such a majority,
is well described in the speeches of John C. Calhoun; in the
"Essay on Liberty" by John Stuart Mill; and in the celebrated work of De Tocqueville on "Democracy in America." Both De Tocqueville and Mill are advocates of democracy; and yet, if possible, they draw more frightful pictures of the tyranny of an unchecked majority, than has
24t 
IS D.AVIS A TRAITOR?
John C. Calhoun himself. "The majority in that country,"
[the United States,] says M. De Tocqueville, "exercise a
prodigious actual authority, and a moral influence which
is scarcely less preponderant; no obstacles exist which can
impede, or so much. as retard its progress, or which can
induce it to heed the complaints of those whom it crushes
upon its path." * Hiow cold, then, and heartless, such a
majority! Cruel as death, and inexorable as the grave, it
turns a deaf ear to the outcries of those whom it crushes
upon its path!
But if such was the unprejudiced conclusion of a great
philosphic observer in 1833, what was to have been expected from a sectional majority, growing continually in
greatness, in power, and in hatred of the sectional minority? HIad the South no reason for her fears? If not, then
De Tocqueville, and Mill, and Calhoun, were the veriest
simpletons that ever lived. If not, then the founders of
the Republic had all read the history of their own times
wrong, and wrote libels on the character of unshackled
majorities?
M. De Tocqueville has told the exact truth.  "This
state of things," said he, in 1833, "is fatal in itself, and
dangerous for the future.............If the free institutions
of America are ever destroyed, that event may be attributed to the unlimited authority of the majority...........
Anarchy will then be the result, but it will have been
brought about by despotism."t
The Formation of a Faction.
There is a vast difference between a political party and
a faction. The one is legitimate, healthful, and conservative; the other is the fatal disease of which nearly all
republics have perished. The one is united by principles,
or designs, which persons in any part of the Republic may
freely adopt and cherish; the other is animated  by a
*Democracy in America, Vol. i, p. 801.    tIbid, p. 817.
247 
IS DAVIS A TRAITOR?
"common interest, or passion," which is hostile to other
interests of the same community.  Now, the great object
of the legislation of 1787, was to provide a remedy for the
fatal effects of faction.
"Among the numerous advantages," says The Federalist, "promised by a well constructed union, none deserves
to be more accurately developed than its tendency to
break and control the violence of faction. The friend of
popular governments, never finds himself so much alarmed
for their character and fate, as when he contemplates
their propensity to this dangerous vice. Hle will not fail,
therefore, to set a' due value on any plan which, without
violating the principles to which he is attached, provides
a proper cure for it." *  Mr. Madison, the author of the
above words, used still more impressive language on the
same subject, in the Virginia Convention of 1788.. "On a
candid examination of history," he there said, "we shall
find that turbulence, violence, and abuse of power, by the
majority trampling on the rights of the minority, have produced
factions and commotions, which, in republics, have more frequently than any other cause, produced despotism. If we go
over the whole history of ancient and modern republics, we shall
find their destruction to have generally resulted from those
causes.  IF WE CONSIDER THE PECULIAR SITUATION OF THE
UNITED STATES, AND WHAT ARE THE SOURCES OF THAT
DIVERSITY OF SENTIMENT WHICH PERVADES ITS INHABITANTS, WE SHALL FIND GREATER DANGER TO FEAR, THAT'THE
SAME CAUSES MAY TERMINATE HERE, IN TIlE SAME FATAL
EFFECTS, WHICH THEY PRODUCED IN THOSE REPUBLICS."t
Hlere, thein, was the rock on which the new Republic
was in the greatest danger of being dashed to pieces.
Hlence, Mr Madison well adds: "This danger ought to
be wisely guarded against."  Otherwise, the great Republic must inevitably split on the rock of faction, and go to
the bottom, with the republics of the past.
*No. x.            t Elliot's Debates, vol. iii, p. 109.
248 
IS DAVIS A TRAITOR?
It was, therefore, the great object of the legislation of
1787, to guard the new Republic against the rise, or formation, of a faction. This, as we have already seen, is well
stated in The Federalist, as follows: "When a majority is
included in a faction, the form of popular government, enables it to sacrifice to its ruling passion, or interest, both the
public good and the rights of other citizens.  To secure the
public good, and private rights, against the'danger of such a
faction, and at the same time to preserve the spirit and the
form of a popular government, is the great object to which our
inquiries are directed. Let me add, that it is the great desideratum, by which alone this form of government can be rescued
from the opprobrium under which it has so long labored, and be
recommended to the esteem and adoption of mankind." *
By what means, then, did the legislators of 1787, hope
to remedy the evils of faction; to subdue, if not to eradicate, that fatal disease of republics? Mr. Madison replies:
",Perhaps, in the progress of this discussion, it will appear
that the only possible remedy for those evils and means of
protecting the principles of Republicanism, will be found
in that very system which is now exclaimed against as the
parent of despotism."t That is, in the new Union of 1787.
Now where, and how, did the new Union provide "the
only possible remedy" against the evils of faction?  According to the view of Mr. Madison, and of the majority
of the Convention of'87, neither the North nor the South
would be able to form itself into a dangerous faction;
because, as they said, each section will have a majority in
one branch of Congress; and thereby hold a constitutional
check on the power of the other. But this remedy, as
every one knows, proved a total failure.
The other great remedy against the evils of faction,
which, as the legislators of 1787 supposed, existed in the
new system; would be found in the great extent of the
Union, in the great number and diversity of its interests,
*No. x.  tElliot's Debates, Vol. iii, p. 109.
12*
24:9 
IS DAVIS A TRAITOR?
which would prevent "any one party being able to outnumber and oppress the rest." * This remedy against faction is repeatedly urged by Mr. Madison.  Thus, he speaks
of the new Union "'as the proper antidote for the diseases
of faction, which have proved fatal to other popular governments, and of which alarming symptoms have been
betrayed by our own;"t because "the influence of factious leaders," who "may kindle a flame within their particular States,".... "will be unable to spread a great conflagration through the other States." ~ Now this great
remedy also proved a failure. Factious leaders did kindle
a conflagration through all the Northern States; and the
great North, animated by one "passion, or interest," did
form itself into the most terrible faction the world has
ever seen, and point all the lightnings of its wrath at the
devoted South.
The fact is not denied'by many of the great champions
of the Northern power. On the contrary, it was made a
ground of exultation and boasting, by some of her most
eloquent orators. Thus, it was said "no man has a right
to be surprised at this state of things.  It is just what we
have attempted to bring about. It is the first sectional
party ever organized in this country. It does not know its own
face, and calls itself national; but it is not national-it is sectional.  THE REPUBLICAN PARTY IS A PARTY OF TIlE NORTH
PLEDGED AGAINST THE SOUTH."~ Nothing could have been
more true. Thus, under and in spite of the Constitution designed for the protection of all sections and of all interests
alike, the North did form itself into a faction, and seize-all
the powers of the Federal Government. This may have
been rare sport to the leaders of the faction; it was the
death-knell of the Republic. It was,-the founders of
the Union themselves being the judges,-the fall of the
Republic, and the rise of a despotism.
* The Federalist, No. xiv.   t Ibid.    I Ibid, No. x.
{Wendell Phillips.
250 
IS DAVIS A TRAITOR?
This faction, it is said, did "not know its own face."
Perhaps it was a little ashamed of its own face. It is certain, that it was very loud in its professions that all its
designs were national and constitutional; even while it
avowed the purpose to "use all constitutional means to
put an end to the institution of slavery." But no such
means were known to the Constitution; which, as the
leaders of that faction perfectly well knew, was established and ordained to protect all the institutions of the
South, as well as of the North. Use all constitutional
means indeed! Why, the very existence of such a faction,
was an outrageous violation of the whole spirit and design
of the Constitution of 1787.  It was, in one word, the last
throe of the mighty Republic, as it succumbed to the fatal
disease of which so many republics had previously perished. Conceived in profound contempt of the wisdom of
Washington, who, in his Farewell Address, had so solemnly warned his countrymen against the dangers of a
sectional party, or faction; it just marched right onward
in the light of its own eyes over broken constitutions, and
laws, and oaths; trampling on all alike with imperial
scorn and proud disdain.
The South was advised to "wait for some overt act."
But if one finds himself in company with a strong man
armed, who is both able and willing to crush him, is it
wise to "wait for the overt act," or to withdraw from his
society as soon as possible? If the strong man armed
should' make his withdrawal the occasion of his ruin;
that would only prove, that the companionship was neither safe, nor desirable.
The South, it is true, did not better her condition by
her withdrawal from the North. But is not all history
replete with similar instances of failure in the grand
struggle for freedom, safety, and independence? In the
golden words of The Federalist: "Justice is the end of
government. It is the end of civil society. It ever has
251. 
IS- DAVIS A TRAITOR?
been, and it ever will be pursued, until it be obtained, or
until liberty be lost in the pursuit."* It was thus, in
the pursuit of justice, that the South lost her liberty. If
she had not engaged in the pursuit, she would have deserved to lose her liberty.
The South, it was said, had nearly always been in the
possession of the Government; and it was right, therefore, that the North should take possession of it in her
turn. But this is one of the lying fictions of the North.
The South never had possession of the Government at
all. All the great powers of the Government are, for the
most part, lodged in the Congress of the United States, in
neither branch of which did the South ever have a majority. She was, indeed, when she entered into the new
Union, promised a majority in one branch of Congress;
but that promise, like an apple of Sodom, soon turned to
dust and ashes in her hands.
Nor had the South as such ever had a President of the
United States. The great democratic party generally
selected its Presidents from the South. But this did not
make them sectional Presidents. Neither Washington,
nor Jefferson, nor Madison, nor Monroe, nor Jackson, nor
Polk, was a sectional President. On the contrary, so little was there of a sectional nature in their characters, or
designs, that each and every one of them was elected to
the Presidency of the United States, by a large majority
of the Northern votes. Mr. Lincoln, on the other hand,
who was a sectional candidate, and put forth on purely
sectional grounds, did not receive a single Southern vote.
I-e was, then, the candidate not of a legitimate party, but
of the great unconstitutional and anti-republican faction
of 1861; that is, the candidate of "the party of the North
pledged against the South."
The North, with a majority in both houses of Congress,
was perfectly protected against every possible danger of
*No. li.
252 
IS DAVIS A TRAITORP 
oppression. If, then, a statesman from the South had always filled the office of President; still her situation
would have been far more precarious and unprotected
than that of the North. The President could introduce
no bill into Congress; he could only veto those which he
might deem unjust and oppressive.  Surely, a most feeble
and uncertain protection to the South; since no man
stood the least chance for the Presidency, who  was not
known to favor the wishes and the interests of the
mighty North.  The North, then, in possession of both
branches of Congress, and the dazzling prize of the Presidency to influence the leading politicians of the South,
was sufficiently secure in the Union; even if all the Presidents had come from the South. But all this did not satisfy the North. On the false plea, that the South had
nearly always been in possession of the Government; she
determined to take possession of all its departments, the
supreme Executive, as well as both branches of the Federal Legislature. Nor is this all. She determined to take
and to keep possession of them all in the name of the
North, alleging that the South had enjoyed them all long
enough; and to wield them all by the terrible faction of
"the North pledged against the South." Nor was this all.
The great leader, or the great tool, of this faction, declared that he was not bound by the decisions of the Supreme
Court of the United States; that he would enforce the
Constitution as he understood it, and not as it was under stood by that high judicial tribunal.  Indeed, this mighty
faction was got up and organized in direct opposition to, and
in open contempt of the decisions of the Supreme Court
of the United States; both in the Dred Scott case, and in
the case of Prigg vs. the Commonwealth of Pennsylvania.
Its own will was its only law.
It arose, like some monstrous abortion of night and
darkness, from the bottomless depths of a factious con tempt for all law and all authority.  Thi decision of the
253 
IS DAVIS A TRAITOR?
Supreme Court in the case of Prigg, which authorizes
the master to seize his fugitive slave without process in any
State of the Union; was the first object of attack by the
great leaders of this faction. The Court was denounced
as having been corrupted by pro-slavery sentiments;
though this very opinion was delivered by a Northern
abolitionist; by Mr. Justice Story himself. Or. Justice
Story could; as we have seen, go great lengths in his advocacy of the Northern cause: but yet, as a Judge of the
Supreme Court of the United States, he could not decide
in direct and open violation of his oath of office. This
instance of his integrity, in which other Northern Judges
concurred, brought down the indignation and contempt
of the great leaders of the Republican party upon the
Court, whose opinion he had delivered.  It was then
threatened by those factious leaders, that the Supreme
Court of the United States should be reorganized, and
made to conform to the wishes and sentiments of the
North; a purpose which was sure of its fulfilment after
the election of Air. Lincoln, and which would have capped
the climax of the lawless designs of the Northern faction
"pledged against the South."
Mr. Madison, "the father of the Constitution," believed
that such a faction would never arise in the new Union.
But he never doubted, for a moment, that if it should arise
therein, this would prove that the Federal Government
had failed to answer the great end of his creation.  For,
as we have seen, it was, in his own words, the great object
of that Government, "to secure the public good, and private rights, against the danger of such a faction;" by providing against the possibility of its appearance in the
bosom of the Republic. This is the great desideratum,
which, according to the legislators of 1787, is necessary
to remove "the opprobrium under which that form of Government has so long labored," and "to recommend it to
the esteem and adoption of mankind;" and which they
254
i 
IS DAVIS A TRAITOR?
supposed had been supplied by their legislation. But
their remedies were too weak. Their practice was not sufficiently heroic. Hence the fatal disease of republics, the
rise of faction, was not only engendered, but developed
into a degree of frightful malignity, which is without a
parallel in the history of the world. The design was good;
but the execution defective. The fathers, in one word,
did not begin to foresee the weakness, the folly, the madness, and the wickedness of their descendants.   Hence,
their sublime attempt to "establish justice, ensure domestic tranquility, promote the general welfare, and secure
the blessings of liberty to their posterity;" proved an
awful failure. Indeed, if they could only have witnessed
the gigantic and terrific faction of 1861, they would have
pronounced their own "grand experiment" a disastrous
failure. It was so regarded by the South; and, for that
reason, the South wished to make an experiment for herself.
But, unfortunately, she was already in the horrible clutches
of a relentless and a remorseless faction.
Factions have no heart, no conscience, no reason, no
consistency, no shame. Would you reason with such a
remorseless monster?  You might just as well read the riot
act to a thunder storm. Would you appease its wrath?
Would you soothe its rampant and raging ferocity?
Would you appeal to all the tender mercies of our holy
religion? You might just as well sing a lullaby to the
everlasting roarings of the Pit. The South did not enter
into the "new Union" to be governed by any such faction. She entered into the new Union, on the contrary, in
order to secure her freedom, her independence, her happipiness, her glory; and she lost them all-except her glory.
Even Mr. Madison, with all his devotion to the great
work of his own hands, never became so blind an idolater
as to resemble that epitome of meanness and climax of
servility, -"an unconditional Union-man." On the cointrary, still breathing the spirit of a freemen, he said: "Were
255 
IS DAVIS A TRAITOR?
the plan of the Convention adverse to the public happiness, my voice would be, Reject the plan. Were the
Union itself inconsistent with the public happiness, it
would be, ABOLISH THE UNION."*  Even as late as 1830,
he declared, that "it still remains to be seen whether the
Union will answer the ends of its existence or otherwise."
If he had lived till 1861, he would have seen that the
Union, having failed to prevent the rise and reign of fa(ction, had not answered "the great object" of its creation;
and, consequently, no longer deserved to exist. Hience,
in 1861, he would either have unveiled the right of secession, or else he would have belied all the great principles,
and sentiments, and designs of his life.
Other Causes of Secession.
The foregoing grounds or causes of secession are, it
seems to me, amply sufficient to justify the South in the
exercise of a constitutional right; for which she was
amenable to no tribunal on earth, except to the moral sen.timents of mankind. But there are still other and powerful causes of secession; which it is unnecessary to discuss
in the present work. All the grounds of secession, including those above considered, may be stated as follows:
First, the destruction of the balance of power, which
was originally established between the North and the
South; and which was deemed by the authors of the Constitution to be essential to the freedom, safety, and happiness of those sections of the Union.
Secondly, the sectional legislation, by which the original
poverty of the North was exchanged for the wealth of the
South; contrary to the great design of the Constitution,
which was to establish the welfare of all sections alike,
and not the welfare of one section at the expense of
another.
Thirdly, the formation of a faction, or "the party of the
* The Federalist, No. xlv.
256 
IS DAVIS A TRAITOR?
North pledged against the South;" in direct and open violation of the whole spirit and design of the new Union;
involving a failure of the great ends for which the Republie was ordained.
Fourthly, the utter subversion and contemptuous disregard of all the checks of the Constitution, instituted and
designed by its authors for the protection of the minority
against the majority; and the lawless reign of the Northern Demos.
Fifthly, the unjust treatment of the slavery question,
by which the compacts of the Constitution.made bythe
North in favor of the South, were grossly violated by her;
while, at the same time, she insisted on the observance of
all the compacts made by the South in her own favor.
Sixthly, the sophistry and hypocricy of the North, by
which she attempted to justify her injustice and oppression
of the South.
Seventhly, the horrible abuse and slander, heaped on
the South, by the writers of the North; in consequence of
which she became the most despised people on the face of
the globe; whose presence her proud ally felt to be a contamination and a disgrace.
Eighthly, the contemptuous denial of the right of secession; the false statements, and the false logic by which
that right was concealed from the people of the North;
and the threats of extermination in. case the South should
dare to exercise that right.
These, it is believed, are the principal causes by which
the last hope of freedom for the South in the Union was
extinguished; and, consequently, she determined to withdraw from the Union. Bravely and boldly did she strike
for Liberty; and, if she fell, it was because, as the London
Times said, "she had to fight the world."
257 
CIIAPTEB XX.
The Legislators of 1787 as Political Prophetr.
"EVERY particular interest," said Mr. Madison, in the
Convention of 1787, "whether.in any class of citizens, or
any description of States, ought to be secured as far as
possible.  Wherever there is danger of attack, there ought
to be given a constitutional power of defence.  But he
contended that the States were divided into different
interests, not by their difference of size, but from other circumstances; the most material of which resulted partly
from climate, but principally from the effects of their having or not having slaves.  These two causes concurred in
forming the great division of interests in the United
States. It did not lie between the large and small States.
It lay between the Northern and Southern; AND IF ANY
DEFENSIVE POWER WERE NECESSARY, IT OUGHT TO BE MUTUALLY GIVEN TO THESE TWO INTERESTS."*  In this opinion
of the leading member from Virginia, the leading member
from Massachusetts fully concurred.  For Mr. King "was
fully convinced that the question concerning a difference
of interest did not lie where it had been hitherto discussed,
between the great and the small States, but between the
Southern and the Eastern.  For this reason he had been
willing to yield something, in the proportion of representation, for the security of the Southern."t  That is, for
the protection of the Southern interest, he had, as we have
seen, been willing to vote for the fractional representation
*The Madison Papers, p. 1006.         t Ibid, p. 1057.
'k, 
IS: DAVIS A TRAITOR?
of slaves. Such was, indeed, the opinion of the Convention.
But while the legislators of 1787 agreed in this opinion,
they looked into the future with very different eyes.
Considered as political prophets, they may, in fact, be
divided into three classes.
At the head of the first class, there stands James Madison, "the father of the Constitution." Seeing, as he did,
that the great difficulty before the Convention was to adjust the antagonism between the North and the South,
he must have known that the perpetuity of the new Union
would depend on the mannier in which this difficulty
should be settled by their labors.  Just before the meeting
of the Convention, indeed, this great antagonism had
given birth to a tremendous confict between the North
and South, by which the Union was shaken to its foundations.  Hence, Mr. Madison had good reason to fear the
violence of this antagonism for the future; and he did fear
it. For he tells us, that there ought to be given a constitutional power of defence to each of these sections;
so that neither could take advantage of the other.
He hoped, he fancied, he predicted that this had been
done. The South, he said, will soon have a majority in
the House of Representatives, in consequence of the rapid
increase of her population; by which she will hold a check
on the power of the North. But this adjustment of the
great difficulty in question rested on the unstable and
fluctuating basis of population. It soon proved to be a
foundation of sand. The hope and the prediction of Mr.
Madison soon appeared to have been a delusion and a
dream. He staked the freedom, the safety, and the happiness of the South, on the happening of a future event,
which never came to pass.
Indeed, he did not urge his plan for the adjustment of
the formidable antagonism in question; because, as he
said, it suggested a difficulty which was too apt to arise
of itself. It was, therefore, never adjusted at all, on any
259 
IS DAVIS A TRAITOR?
solid foundation, or secure principle; and, consequently, i
did continue to arise of itself, and disturb the new Uniot
with convulsions, from the beginning of its career to th.
grand explosion of 1861.
Mr. Madison always feared the effects of this great an(
imperfectly adjusted antagonism between the North an(
the South. It seems, indeed, as if he wished to hide it fron
his own eyes, as well as from those of the people.  It is
very remarkable fact, that although in the secret Conven
tion of 1787, he pronounced the antagonism between th:Northern and the Southern States the greatest of all the
difficulties they had to deal with; yet when, in The Fed
eralist, he enumerated the difficulties the Convention hacto encounter, no allusion whatever is made to this stupen
dous one. Hie seems to have imagined, that since it is sc
apt to arise of itself, the less that is said about it the bet
ter. This would, no doubt, have been very wise and
prudent, if a great danger might be remedied by simply
closing one's eyes upon its existence.
Nothing more easily disturbed his patience, than any
allusion to the great danger created by the fearful antagonism in question.  In The Federalist,-how unlike his
usual style!-he pours forth the following strain of lachrymose philanthropy or patriotism: "Hearken not to the
unnatural voice, which tells you that the people of America, knit together as they. are by so many chords of affection, can no longer live together as members of the same
family; can no longer continue mutual guardians of their
mutual happiness...... No, my countrymen, shut your
ears against this unhallowed language. Shut your hearts
against the poison which it conveys. The kindred blood
which flows in the veins of American citizens, the mingled
blood which they have shed in the defence of their sacred
rights, consecrate their union, and excite horror at the
idea of their becoming aliens, rivals, enemies."*
*No. xiv.
260 
IS DAVIS A TRAITOR?
Yet, in spite of all this, Mr. Madison himself must have
had serious misgivings with respect to his beautiful dream
of a perpetual peace. For he knew, as we have seen, that
there was danger of a collision between the North and
the South.  It is certain, that the voice which he pronounced unnatural, was the voice of truth.  For American citizens did become aliens. rivals, enemies; and mingled their blood far more freely and fearfully than they
ever had done in the defence of their common rights. But
Mr. Madison knew, that in order to secure the adoption
of the new Union, it would be necessary to persuade the
people, that the very first condition of such a Union would
always obtain; namely, " a sufficient amount of sympathy
among its populations." Hence, perhaps, his dream of
peace was not all a dream, but partly rhetoric.
The second class of prophets seems to have been without a head. Indeed it may, perhaps, be doubted, whether
they spoke as-prophets, or as diplomatists. It is certain,
that they encouraged the notion of Mr. Madison and other
Southern legislators, that the South would certainly have
a majority in the House of Representatives. Several of
the most influential of the Northern legislators seemed
quite qonfident that such would be the good fortune of the
South; and none more so than'Mr. Gouverneur Morris.
But were they always sincere in that belief? Or did they
sometimes flatter the false hopes of the South, in order to
be able to drive a better bargain with her? No finite
mind can, perhaps, answer these questions; or tell whether
the legislators in question always spoke as prophets, or
sometimes as diplomatists. It is certain, that the expectation held out to the South, that she would be able to
control one branch of Congress, was the promise, the
prospect, the bait, by which she was entrapped into the
new Union; into that tremendous dead-fall, by which, in
1861, she was crushed to the earth. Patrick Henry stood
at the head of the third and last class-of prophets.
261 
IS DAYIS A TRAITOR?
No man ever more clearly foresaw, or more confidently
predicted, the future, than did Patrick Henry the calami
which have fallen on his beloved Virginia. With some of
the passages from this class of prophets, I shall conclude
this little book.
General Pinckney of South Carolina, declared, that "ii
they [the Southern States,] are to form so considerable a
minority, and the regulation of trade is to be given to the
General Government, they will be nothing more than overseers for the Northern States."
In like manner, Mr. Williamson, of North Carolina,
said: "The Southern interest must be extremely endangered by the present arrangement. The Northern States
are to have a majority in the first instance, with the means of
perpetuating it." t
George Mason said:  " He went on a principle often advanced, and in which he concurred, that a majority, when
interested, would oppress the minority. This maxim;"
[than which none is more just,] "had been verified in the
Legislature of Virginia. If we compare the States in this
point of view, the eight Northern States have an interest
different from the five Southern States; and have, in one
branch of the Legislature, thirty-six votes against 29, and
in the other in the proportion of eight to three.  The
Southern States had therefore grounds for their suspicions." ~
Mr. Henry said: "But I'-am sure, that the dangers of
this system are real, when those who have no similar interests with the people of this country, [i.e. Virginia and the
South,] are to legislate for us-when our dearest interests
are to be left in the hands of those whose advantage it
will be to infringe them." ~
In the same Convention, 3Ir. Grayson, after declaring
that it was a struggle between the North and the South
*Madison Papers, p.'1058.   t bid, p. 1058.        Ibid, p. 1387.
i Elliot's Debates, vol. iii, p. 289.
262 
IS DAVIS A TRAITOR?
for empire, proceeded to say, "Are not all defects and
corruptions founded on an inequality of lepresentation and
want of responsibility? My greatest objection is, that it
will, in its operation, be found unequal, grievous and oppressive. If it have any efficacy at all, it must be by a
faction of one part of the Union against another. If it be
called into action by a faction of seven States, it will be
terrible indeed. We must be at no loss how this combination will be formed. There is a great difference of circumstances between the States. The interests of the
carrying States are strikingly different from those of the
productive States. I mean not to give offence to any part
of America, but mankind are governed by interest. The
carrying States will assuredly unite and our situation will
then be wretched indeed. We ought to be wise enough
to guard against the abuse of such a government. Republics, in fact, oppress more than monarchies."
"The voice of tradition," said Henry, "I trust will inform
posterity of our struggles for freedom. If our descendants be worthy of the name of Americans, they will preserve and hand down to the latest posterity, the transactions of the present times, and though I confess my explanations are not worth the hearing, they will see'I
have done my utmost to preserve their liberty."' Tyler
responded, "I also wish to hand down to posterity my opposition to that system. British tyranny would have
been more tolerable."
THE END.
263 
ERRATA.
Page 8, line 28, for "what" read which.
20,"  34, omit second reference, "t Ibid, p. 109."
20,"  35, for  read t.
25, "  18, for "Foote's" read Foot's. Also on page 61.
42, "  33, for "celo" read ecelo.
43, "  12, "Governor" read Gouverneur; and in other places where
the name of Gouverneur Moris is incorrectly printed.
"  59, "  14, for "Upsher" read Upshur.
73,"   8, for "specifiation" read specification.
"  81, "  22, for "district" read distinct.
"  83, "   21, for "least" read last.
89, "  24, for "partial" readpatient.
97, "   9, for "delagated" read delegated.
"106, "  22, for "countries" read counties.
108, "   7, for "peeple" read people.
110, "  32, for "temporory" read temporary.
"119,  "   5, for "people" read People.
"193, "   11, for "thencefore" read henceforth.