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The Kentucky and Virginia Resolutions of Thomas Jefferson and James Madison: Senator Thomas H. Benton [Mo.] and Professor Alexander Johnston on Their "Theory of Compact" as Opposed to the Calhoun Theory of Nullification-The Hartford Convention: Its Report-Senator Robert Y. Hayne [S. C.] on the "Treason of New England" as Expressed in the Convention-The Tariff of 1828-Threats of Secession by South Carolina and Georgia-President John Quincy Adams's "Appeal to the South"-Senator William Smith [S. C.] and Senator Hayne on the Protests of South Carolina and Georgia.
HE repeal of the Missouri Compromise and the Dred Scott decision marked the high tide of victory for the South in the controversy upon slavery. It was soon seen, however, indeed it had been foreseen before their accomplishment, that the triumph would prove a merely formal one, empty of all practical benefit. Accordingly, from this time onward, Southern statesmen began seriously to contemplate that measure to which they had so often threatened in moments of passion to resort-secession.
It is therefore in place here to revert to the question of State versus National rights, as enunciated by such Southern statesmen as Thomas Jefferson and James Madison in the early history of the republic, and to the threats of separation from the Union made in the Hartford convention and in the nullification proceedings of South Carolina and Georgia against the tariff acts of 1828 and 1832.
THE KENTUCKY AND VIRGINIA RESOLUTIONS
The views of Jefferson and Madison were formally presented in the Kentucky and Virginia resolutions. Rising out of the Alien and Sedition laws these will be
discussed, in origin and results, in the volume on Civic Rights [see Vol. VII, chapter iv]. Only that portion of them which applies directly to the right of secession will be taken up in the present connection.
The first of the resolutions presented by the Kentucky legislature (inspired if not by Jefferson by his political theory) was as follows:
1. The Union of the States is a compact, by which each State delegates to the Federal Government definite powers, reserving to itself the residuary mass of right to its own selfgovernment. When, therefore, the Federal Government assumes undelegated powers, its acts are void. The Federal Government was not constituted by the compact a final judge of the extent of its delegated powers, since this would have made its discretion and not the Constitution the measure of its powers. The Constitution established no common judge between the Federal Government and the State governments, and, according to the practice in all compacts of this kind, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.
The Kentucky resolutions were, as described in the chapter upon them, sent to the legislatures of the various States. All but Virginia replying in opposition to them, the Kentucky legislature added a supplementary resolution which contained the assertion that:
The several States which formed the Constitution, being sovereign and independent, have the unquestionable right to judge of its infraction; and a nullification by these sovereignties of all unauthorized acts done under color of that instrument is the rightful remedy.
The Virginia resolutions, drafted by James Madison, after asserting the doctrine of a strict construction of the Constitution, left it entirely to inference that if the Federal Government passed acts which, according to this Constitution, were unconstitutional the States concerned would have a right to resort to nullification. Thomas H. Benton, indeed, in his "Thirty Years' View" denied that the Virginia resolutions warrant this infer
ence and, on the contrary, maintained that Madison's doctrine was directly opposed to nullification as upheld by Calhoun. He said:
The right and duty of "the States" to interpose certainly does not mean the right of "a State" to nullify and set at nought. The States-less than the whole number-have a right to interpose, secured, as already shown, in the Constitution; and this, not only persuasively, but peremptorily; to compel the action they may desire; and it is demonstrable that it was this constitutional provision that the Virginia legislature had in mind, as a last resort. The resolutions do not speak anywhere of the right of a State, but use the plural number, States. Virginia exercises the right that pertains to a State-all the right that, in the premises, she pretends to-in passing the resolutions, declaring her views, and inviting the like action of her co-States. Instead, therefore, of the resolutions being identical with nullification (according to Calhoun), the two doctrines are not merely hostile, but exactly opposites; the sum of the Virginia doctrine being that it belongs to a State to take, as Virginia does in this instance, the initiative in impeaching any objectionable action of the Federal Government, and to ask her co-States to coöperate in procuring the repeal of a law, a change of policy, or an amendment of the Constitutionaccording as one or the other, or all, may be required to remedy. the evil complained of; whereas nullification claims that a single State may, of its own motion, nullify any act of the Federal Government it objects to, and stay its operation, until threefourths of all the States come to the aid of the national authority and reënact the nullified measure. One submits to the law till a majority repeal it, or a convention provides a constitutional remedy for it; the other undertakes to annul the law, and suspend its operation, so long as three-fourths of the States are not brought into active coöperation to declare it valid. The resolutions maintain the Government in all functions, only seeking to call into use the particular function of repeal or amendment; nullification would stop the functions of Government and arrest laws indefinitely; and is incapable of being brought to actual experiment, in a single instance, without a subversion of authority, or civil war. To this essential, radical, antagonistic degree do the Virginia resolutions and the doctrine of nullification differ, one from the other; and thus unjustly are the Virginia Republicans of 1798 accused of planting the seeds of dissolution-a "deadly poison," as Mr. Madison himself em
phatically calls the doctrine of nullification-in the institutions they had so labored to construct.
The theory of a "compact" between the States and the Federal Government, as expressed by Jefferson and Madison in the resolutions, was made a basis of the claim of the "Secessionists" of a later period, although they found more logical grounds in the theory of Calhoun that the "compact" was between the States themselves, and that the Federal Government was the result of the compact and not a party to it.
"Daniel Webster," says Prof. Alexander Johnston in his "American Political History," "ridiculed unsparingly the idea that the States could form a compact with another party which was only created by the compact and non-existent before it."
"Jefferson and his school would have looked upon forcible resistance by a single State to an oppressive Federal law as. . . revolutionary . . It was so stated in 1829-30 by Edward Livingston, the devoted adherent of Jefferson in 1798.
"In a constitutional point of view, this fundamental difference between the right of 'the States' in natural convention, and of a single State, proprio vigore,' to 'nullify' acts of Congress, and to interpret the Constitution, above and beyond the Federal judiciary, is the essential difference between the 'nullification' of Jefferson and that of Calhoun. The strongest evidence to the contrary is a sentence in Jefferson's original draft of the Kentucky resolutions. It is as follows: 'that every State has a natural right, in cases not within the compact, to nullify of their own authority all assumptions of power by others within their limits.' This was struck out in the final copy of the resolutions, but by whom is not known. Various explanations of this sentence have been offered, the most plausible being that the inexcusable sentence was due only to heat of composition, and was struck out by Jefferson on his realizing the full force of what he had written. On the one hand, this sentence has arrayed against it a great mass of contemporary testimony; on the other, if it is to stand as Jefferson's perfected theory, every atom of Calhoun's perfected theory finds in it a perfect antetype.
"It is also fair and proper, in this connection, to call the reader's special attention to a letter of December 24, 1825, 1"'Of its own force."
from Jefferson to Madison, which has never hitherto received the prominence which it deserves. It is on the subject of internal improvements. He regards opposition to the new system as 'desperate,' but proposes a new series of resolutions, to be passed by the Virginia legislature, as a protest against it. They are much like the Resolutions of 1798, but conclude by demanding an amendment to the Constitution to grant the doubtful power, and by promising for the State and imposing upon the citizens of the State an acquiescence in the acts 'which we have declared to be a usurpation' 'until the legislature shall otherwise and ultimately decide.""
A letter of Jefferson to Justice William Johnston, on June 12, 1823, gives in a nutshell the opinion of the author of the Kentucky resolutions upon the same point:
"The ultimate arbiter is the people of the Union, assembled by their deputies in convention, at the call of Congress, or of two-thirds of the States. Let them decide to which they mean to give an authority claimed by two of their organs [i. e., the Federal Government, or the States]."
THE HARTFORD CONVENTION
The Hartford convention has already been referred to [in Vol. II, page 217] in connection with the Second War with Great Britain. It played, however, a far greater part in our civil and domestic politics than in our military and foreign concerns, dealing as it did with the questions of State and civic rights.
The Administration of James Madison, indeed, believing that the purpose of the convention of representatives from New England legislatures and conventions was nothing less than the dissolution of the Union, sent an army officer to Hartford to oversee its deliberations, and Congress (strongly Republican) requested the President to appoint a day for national fasting and prayer.
The convention deliberated in secret for three weeks, until January 5, 1815, when it adopted a report to the legislature and counties represented.