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CHAPTER VI.

THE THEORY AND PRACTICE OF SECESSION.

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MR. CALHOUN'S EXPOSITION OF THE DOCTRINE – HE FAVORED NULLIFICATION BUT NOT SECESSION - JEFFERSON'S VIEWS -THE KENTUCKY AND VIRGINIA RESOLUTIONS — ALIEN AND SEDITION ACTS — MR. MADISON'S INTERPRETATION MASSACHUSETTS SHOULDER TO SHOULDER WITH SOUTH CAROLINA ON STATE RESISTANCE - THE PERSONAL LIBERTY BILLS OF THE NORTH SOUTH CAROLINA LEADING SECESSION MOVEMENTS ALEXANDER H. STEPHENS' GREAT SPEECH FOR THE UNION-JEFFERSON DAVIS' PROPOSITION- · ACTION OF TEXAS-THE SOUTHERN CONFEDERACY IN MONTGOMERY -FEDERAL AND CONFEDERATE CONSTITUTIONS-PROTESTS AGAINST SECESSION- DE FACTO IF NOT DE JURE GOVERNMENTS IN THE SOUTH - A LINE OF HOSTILITY BETWEEN TWO GREAT COMMUNITIES-THE CRITTENDEN RESO. LUTIONS-SECESSION AND SLAVERY SUBORDINATE TO THE LINCOLN POLICY FOR THE UNION-THE ANOMALOUS SECESSION OF WEST VIRGINIA FROM OLD VIRGINIA-VARIOUS THEORIES AS TO THE INSURGENCY —ALL MERGED IN LINCOLN'S POLICY -THE FINALE OF SLAVERY AND OF ITS INCIDENT,

SECESSION.

M

R. CALHOUN is regarded as the expounder, if not the author, of the theory that the several states have the sovereign right to withdraw from the Union whenever a majority of their people decide that their liberties have been invaded, or are unsafe within its control. This opinion, however, has no foundation in his speeches and writings on the principles and powers of the Constitution. He expressly disclaimed the theory. In a letter from the late Reverdy Johnson to Edward Everett, no doubt is left in regard to Mr. Calhoun's views on secession. The letter bears date June 24, 1861. Mr. Johnson states in it that it was his good fortune to be a member of the United States Senate for four years, from 1845, with Mr. Calhoun; that during two sessions they resided in the same house; and he thus sets forth Mr. Calhoun's doctrine :

"He did me the honor to give me much of his confidence, and frequently his nullification doctrine was the subject of conversation. Time and time

again have I heard him, and with ever-increased surprise at his wonderful acuteness, defend it on constitutional grounds, and distinguish it, in that respect, from the doctrine of secession. This last he never, with me, placed on any other ground than that of revolution. This, he said, was to destroy the government; and no constitution, the work of sane men, ever provided for its own destruction. The other was to preserve it,- was, practically, but to amend it, and in a constitutional mode. As you know, and he was ever told, I never took that view. I could see no more constitutional warrant for this than for the other, which, I repeat, he ever in all our interviews repudiated, as wholly indefensible as a constitutional remedy."

The doctrine of secession is sometimes traced to the Kentucky Resolutions of 1798. The original draft of these resolutions was written by Mr. Jefferson. But a careful analysis of this manifesto shows, that while it seems to give countenance to the idea that a state may declare an act of Congress null and void, it cannot be cited as authority for the more radical measure of a dissolution of the Union. At least, it was not so understood at the time of its appearance.

The first resolution denies that the states are united on the principle of unlimited submission to the general government. It declares that by compact they constituted a general government for special purposes, with delegated powers, while reserving, each state to itself, the residuary mass of right to its own self-government. It adds, "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; that this government, created by this compact, was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that as in all other cases of compact among parties having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress."

By "each party," Mr. Jefferson refers to the states on the one hand, and the general government on the other; and his meaning, therefore, would be that the states as one party and not a single state, have an equal right with the general government, to judge of infractions. It is true that this was not a strictly accurate way of speaking, since the Constitution and Federal Government, which were created by the states and people, cannot be regarded as a party to the compact. They are the creatures of the compact. But the context shows that Mr. Jefferson used the term, parties, in this sense; and hence, he could not mean that a single state could decide finally upon the constitutionality of the laws of Congress.

The remaining resolutions show that the Alien and Sedition acts of Congress were unconstitutional usurpations, unjust and oppressive. The last of the series appeals to the co-states to unite with Kentucky "in requesting

KENTUCKY AND VIRGINIA RESOLUTIONS.

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their repeal at the next session of Congress." Such was "the mode and measure of redress" proposed by Kentucky.

The House of Representatives of the State of Kentucky, in November, 1799, resumed the consideration of the subject. Mr. Desha was in the chair. After some time spent therein, the Speaker resumed the chair, and Mr. Desha reported that the committee had taken under consideration sundry resolutions passed by several state legislatures, on the subject of the Alien and Sedition laws, and had come to a resolution thereupon. The preamble to this report says:

"To again enter the field of argument, and attempt more fully or forcibly to expose the unconstitutionality of those obnoxious laws, would, it is apprehended, be as unnecessary as unavailing. We cannot, however, but lament, that in the discussion of those interesting subjects by sundry of the legislatures of our sister states, unfounded suggestions and uncandid insinuations, derogatory to the true character and principles of this commonwealth, have been substituted in place of fair reasoning and sound argument.

Faithful to the true principles of the Federal Union, unconscious of any designs to disturb the harmony of that Union, and anxious only to escape the fangs of despotism, the good people of this commonwealth are regardless of censure or calumniation.”

The resolution was adopted. It declares, "unequivocally," the attachment of Kentucky to the Union: "She adheres to that compact, agreeably to its obvious and real intention, and will be among the last to seek its dissolution." She asserts "that a nullification by those sovereignties of all unauthorized acts done under color of that instrument is the rightful remedy."

The Kentucky Resolutions, therefore, claimed the right of the states — not of one state-to nullify unconstitutional laws; and they expressly repelled the charge that their import and purpose was to destroy the Union.

The Virginia Resolutions, prepared by Mr. Madison, and adopted Dec. 24, 1798, are still further removed in language and spirit, from the doctrine. of secession.

They declare that the General Assembly will maintain and defend the Constitution of the United States. They profess a warm attachment to the Union, "to maintain which it pledges its powers." The third resolution embodies the theory of the Constitution which gives character to the document. It is as follows:

"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, as limited by the plain sense and intention of the instrument constituting that compact, as no further valid than they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by

the said compact, the states, who are parties thereto, have the right, and are in duty bound, to interpose, for arresting the progress of the evil, and for maintaining within their respective limits the authorities, rights, and liberties appertaining to them."

This resolution contains the peculiar doctrine, or theory of constitutional construction, which the legislature meant to declare. Others follow in which the particular grievances complained of-the Alien and Sedition actsare set forth. The series concludes with protesting the truest anxiety of the people of the Commonwealth for "establishing and perpetuating the Union." "The General Assembly appeal to the like disposition in the other states, in confidence that they will concur with their commonwealth in declaring that the acts aforesaid are unconstitutional; and, that the necessary and proper measures will be taken by each for co-operating with this state, in maintaining unimpaired the authorities, rights, and liberties reserved to the states, respectively, or to the people."

In an elaborate paper, prepared by Mr. Madison many years after the events to which these resolutions relate, he defends them with great force of logic. He repels the inferences that have been drawn from them, that they give sanction to either nullification or secession. He calls attention to the fact that the resolutions claim for the "states," meaning all the states,— the authority to interpose for arresting the evil, and for protecting their reserved rights. He rejects the idea that one state may do this; but that the states, in council or convention, which framed the compact, or have become parties to it, may do so. It follows, of course, that Congress would promptly repeal an obnoxious act which had been declared null and void by a majority of the states, and the remedy proposed would be at once effectual and peaceful. This masterly paper, with other selections from the writings of Mr. Madison, was published in 1853, "exclusively for private distribution," and has therefore been seen and read by few.

In another able paper Mr. Madison combats the secession theory that sovereignty is indivisible. He points to its inconsistency with the fact that the Constitution confers sovereign and exclusive powers upon the general government, accompanied by the means of enforcing them, while other sovereign powers are reserved to the states.

Mr. Madison incidentally refers to the Kentucky Resolutions of Mr. Jefferson. He denies that they give countenance to the theory of secession and nullification by a single state. It is curious to note, in this connection, that while the responses from the states under the control of the Federal party concur in condemning the Virginia Resolutions, none of them make the charge of a deliberate purpose to break up the Union. They deny the right of the states to pronounce an act of Congress unconstitutional, null, and void, and declare that the tendency of such proceedings is to produce anarchy or revolution; but the purpose of revolution is not charged.

DEFEAT OF THE FEDERALISTS.

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The first section of the Sedition Act passed July 14, 1798, provided: "That if any persons shall unlawfully combine or conspire together, with intent to oppose any measure or measures of the Government of the United States, which are or shall be directed by proper authority, or to impede the operation of law of the United States, or to intimidate or prevent any person any holding a place or office in or under the Government of the United States, from undertaking, performing or executing his trust or duty; and if any person or persons, with intent as aforesaid, shall counsel, advise or attempt to procure any insurrection, riot, unlawful assembly, or combination, whether such conspiracy, threatening, counsel, advice, or attempt shall have the proposed effect or not, he or they shall be deemed guilty of a high misdemeanor." The penalty was a fine not exceeding five thousand dollars, and imprisonment for not less than six months nor exceeding five years,— and, at the discretion of the court, sureties for good behavior might be required.

The second section provided: "That if any person shall write, print, utter or publish, or shall cause or procure to be written, printed, uttered or published, or shall knowingly and willingly assist or aid in writing, printing, uttering or publishing, any false, scandalous, and malicious writings against the Government of the United States, or either House of the Congress of the United States, or the President of the United States, with intent to defame the said Government, or to excite against them the hatred of the people, or to stir up sedition," he was to be punished, on conviction, by fine not exceeding two thousand dollars, and by imprisonment not exceeding two years. The act was to terminate on March 3, 1801.

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These unpopular measures of the Federal party, together with the Alien act, passed on June 25, 1798, contributed more, perhaps, to the overthrow of that party than all other causes combined. Opposition to these illiberal laws became the shibboleth and the platform of the Republican (or Democratic) party of that day. Under that sign it conquered in the election of Thomas Jefferson over John Adams, the leader of the Federalists.

The Alien act gave the President authority to order all such aliens as he might judge dangerous to the peace and safety of the United States, or might have reasonable grounds to suspect of treasonable practices, to depart out of the territory of the United States within the time expressed in his order. The marshal was directed to serve the order, or leave a copy at the usual place of abode of the alien. Three years' imprisonment and permanent exclusion from the country was the penalty for failure to depart within the time specified. Licenses to remain might be granted to such aliens as could show that no harm would result to the country from their presence. Masters of vessels were required to report to the collector of the customs, the names, ages and places of nativity, the occupations, and places of embarkation of all aliens brought into the country. The operation of this act was limited to two years from the date of its passage.

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