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Page 47
Madison held a modification of the State sovereignty theory, which has
counted among its adherents the mass of the ability and influence
of American authorities on constitutional law. Holding that the
Constitution was a compact, and that the States were the parties to it,
he held that one of the conditions of the compact was the abandonment
of State sovereignty; that the States were sovereign until 1787-8, but
thereafter only members of a political state, the United States. This
seems to have been the ground taken by Webster, in his debates with
Hayne and Calhoun. It was supported by the instances in which the
appearance of a sovereignty in each State was yielded in the fourteen
years before 1787; but, unfortunately for the theory, Calhoun was able
to produce instances exactly parallel after 1787. If the fact that each
State predicated its own sovereignty as an essential part of the steps
preliminary to the convention of 1787 be a sound argument for State
sovereignty before 1787, the fact that each State predicated its
sovereignty as an essential part of the ratification of the Constitution
must be taken as an equally sound argument for State sovereignty under
the Constitution; and it seems difficult, on the Madison theory, to
resist Calhoun's triumphant conclusion that, if the States went into the
convention as sovereign States, they came out of it as sovereign States,
with, of course, the right of secession. Calhoun himself had a sincere
desire to avoid the exercise of the right of secession, and it was as a
substitute for it that he evolved his doctrine of nullification,
which has been placed in the first volume. When it failed in 1833, the
exercise of the right of secession was the only remaining remedy for an
asserted breach of State sovereignty.
The events which led up to the success of the Republican party in
electing Mr. Lincoln to the Presidency in 1860 are so intimately
connected with the anti-slavery struggle that they have been placed in
the preceding volume. They culminated in the first organized attempt to
put the right of secession to a practical test. The election of
Lincoln, the success of a "sectional party," and the evasion of the
fugitive-slave law through the passage of "personal-liberty laws" by
many of the Northern States, are the leading reasons assigned by South
Carolina for her secession in 1860. These were intelligible reasons, and
were the ones most commonly used to influence the popular vote. But all
the evidence goes to show that the leaders of secession were not so
weak in judgment as to run the hazards of war by reason of "injuries"
so minute as these. Their apprehensions were far broader, if less
calculated to influence a popular vote. In 1789 the proportions of
population and wealth in the two sections were very nearly equal. The
slave system of labor had hung as a clog upon the progress of the South,
preventing the natural development of manufactures and commerce, and
shutting out immigration. As the numerical disproportion between the two
sections increased, Southern leaders ceased to attempt to control the
House of Representatives, contenting themselves with balancing new
Northern with new Southern States, so as to keep an equal vote in the
Senate. Since 1845 this resource had failed. Five free States, Iowa,
Wisconsin, California, Minnesota, and Oregon, had been admitted, with no
new slave States; Kansas was calling almost imperatively for admission;
and there was no hope of another slave State in future. When the
election of 1860 demonstrated that the progress of the antislavery
struggle had united all the free States, it was evident that it was but
a question of time when the Republican party would control both
branches of Congress and the Presidency, and have the power to make laws
according to its own interpretation of the constitutional powers of the
Federal Government.
The peril to slavery was not only the probable prohibition of the
inter-State slave-trade, though this itself would have been an event
which negro slavery in the South could hardly have long survived. The
more pressing danger lay in the results of such general Republican
success on the Supreme Court. The decision of that Court in the Dred
Scott case had fully sustained every point of the extreme Southern
claims as to the status of slavery in the Territories; it had held that
slaves were property in the view of the Constitution; that Congress
was bound to protect slave-holders in this property right in the
Territories, and, still more, bound not to prohibit slavery or allow a
Territorial Legislature to prohibit slavery in the Territories, and
that the Missouri compromise of 1820 was unconstitutional and void.
The Southern Democrats entered the election of 1860 with this distinct
decision of the highest judicial body of the country to back them. The
Republican party had refused to admit that the decision of the Dred
Scott case was law or binding. Given a Republican majority in both
Houses and a Republican President, there was nothing to hinder the
passage of a law increasing the number of Supreme Court justices to any
desired extent, and the new appointments would certainly be of such
a nature as to make the reversal of the Dred Scott decision an easy
matter. The election of 1860 had brought only a Republican President;
the majority in both Houses was to be against him until 1863 at least.
But the drift in the North and West was too plain to be mistaken, and it
was felt that 1860--would be the last opportunity for the Gulf States
to secede with dignity and with the prestige of the Supreme Court's
support.
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