The lost principle; or, The sectional equilibrium : how it was created--how destroyed--how it may be restored

Front matter

Class Book-

THE ol rJHiNUirLJL,

SECTIONAL EQUILIBRIUM:

Dedication

I wish to dedicate this little volume to the memory of the Hon. John Macpherson Berrien, late Senator in Congress from the State of Georgia ; not for his eminent abilities, his private Avorth, nor yet for his great public character, but as an humble tribute of gratitude for an important service which he rendered to me.

It chanced some years ago that I was introduced to that distinguished statesman at one of the public tables in Washington city. The conversation turned on the question of slavery, then vexing Congress, and in terms stronger than good manners would warrant, I expressed my aversion to that form of labor. The sentiment which I uttered elicited no response, and the conversation glided on to other topics. When I was about to depart. Judge Berrien, in the most polite and obliging manner, invited me to remain and take wine with him, an invitation which I gladly accepted, for already I felt strongly attracted to him.

With some abruptness, he turned to me and expressed his surprise that I, a young man from Virginia, should entertain sentiments of so remarkable a character about slavery. I attempted to defend them, and he listened to me with respectful attention. In the ablest manner, the Senator then explained the whole subject to me, in its social, political and economical connexions, and after illustrating its conservative and ameliorating influences on the Federal Government, de-

Preface

Soon after its establishment, by Mr. Pryor, in Richmond city, I communicated to The South newspaper the theory of an equilibrium in the Federal Constitution, -which is the principal subject of this volume. As far as I am informed, the intention on the part of its framers to introduce that principle, had not been suggested by any one since the government went into operation. Subsequent examination confirmed me in the belief of the sectional nature of the compact, and the intention of the Federal Convention to balance power between the North and the South. The means by which that end was to be achieved, together with the means adopted by Congress to prevent it, I thought worthy of a more extended investigation, and therefore have written this book. In the chapter which relates to the ratification of the Constitution by Virginia, several threads of history have been woven in, together with an enquiry into the cause of the decline of that Commonwealth ; and in this connection I beg leave to acknowledge the advantage that I have derived from consulting the pages of Mr. Grigsby — I mean with reference to the source from which the bulk of the population of Virginia was derived.

The different parts have been written at different times, as inclination might prompt or business allow, and are now hastily thrown together because of a supposed application of this subject to the present state of public afikirs.

Till PREFACE.

I •will not apologize for my subject, as though by any comparison it were unimportant ; but I will confess a diffidence of the value added by my own handling. In the remarks on our own history, the order of time is neither strictly observed, nor greatly neglected.

" Yet it is designed, slight and imperfect as it is, for the service of Truth, by one who would be glad to attend and grace he?' triumphs ; as her soldier, if he has had the honor to serve successfully under her banner; or as a captive tied to her chariot wheels, if he has, though undesignedly, committed any oifence against her."

February 25, 1860.

THE SECTIONAL EQUILIBRIUM.

Chapter I

"When a broad table is to be made and the edges of the planks do not fit, the artist takes a little from both and makes a good joint. In like manner, here, both sides must part with some of their demands. — Dr. Franklin.

In the Constitutional Convention of 1829, "Watkins Leigh said : " The Federal Convention of 1787 had, for the first time, to arrange a representation of the people in Congress. What was the origin of the Federal number I do not certainly know. I have had recourse, in vain, to every source of information accessible to ascertain how that precise proportion of slaves — three-fifths — caine to be adopted, ivhat mode or principle of estimate led to it. Some reason there must have been.''

It is my purpose, in the following pages, to solve this question of constitutional history — to ascertain the reason that operated on the Convention which constructed the government under which we live, to adopt in the popular basis the fractional representation which was awarded to the servile population of the South. The Report of " The Debates of the Convention of 1787," by Mr. Madison, enables me to do this. It is the only source from which that information can be derived, for the fragment of those proceedings preserved by Judge Yates, aflfords no clue whatever to the solution of this interesting problem. "The Debates," in 1829, were not published, but slept in manuscript, at Montpelier, until the death of Mr. Madison broke the seal.

This' part of the organic law has excited but little curiosity, and yet it is the ground-work of the political edifice, with reference to which every other part was made. A just understanding of this part of the Constitution will furnish, if I mistake not, an explanation of many of those questions that have convulsed the North and South, and will supply us with the means of ascertaining how far we have departed from the true meaning of that instrument — how far the ship of State has drifted from the intended course.

Mr. Madison was himself a member of the Convention of 1829, and heard the enquiry of Mr. Leigh, but said nothing. Why he stood mute on that occasion, when a true account of the fractional basis would have added strength to the side which he himself advocated, I know not. Let those who reverence the character and eulogize the memory of Madison divine his motives. His explanation of that fundamental part of the federal charter, might not have accorded well with his declared opinions in federal politics, and it is possible that he shrunk from the keen and searching analysis of the powerful minds that illustrated that assemblage.

The Constitution of the United States is generally understood to be a compact to which the several States are parties; and hence, that all the rights which it provides are State rights, and the remedies for the violation of those rights. State remedies. In consequence of this view of the Constitution, State secession and State interposition have been suggested as the modes of redress in the several cases to which they apply. But I shall attempt to prove, by authentic evidence, that this is not true in the exclusive sense in which it has been stated.

The Constitution is, indeed, a compact between States, but it is also a compact between the slaveholding and non-slaveholding sections ; and those sections are susceptible of obligations and injuries. This is not the least interesting light in which the Constitution presents itself, and thus viewed is a Great Treaty between two nations of opposite civilizations, and, in many respects, opposite interests, making the federal system even more complex than it has been generally supposed to be.

The true character of the Constitution, and the government "which has grown out of it, is illustrated by the political parties which have arisen under it. At first, a consolidating tendency threatened to absorb the States. This produced the State Rights party — a school founded by Jefferson and Madison, and afterwards sustained by a succession of great men, of whom Calhoun was the most illustrious. Calhoun devoted the energies of his wonderful intellect to developing this theory of the Constitution. Perceivino- that the congressional or departmental checks were of a subordinate character, and did not operate to restrain the ruling power of the Constitution, he attempted to eliminate from the government a veto power in the hands of the States, which he denominated an Equilibrium, but so denominated for no better reason, as I conceive, than that its originator would have employed it as an imperfect substitute for that wise and healing principle.

An Equilibrium, properly so called, enters into the government and is its living principle. It is ever present ; it assists in the deliberations of the Legislature and partakes of the enactment of laws ; it moderates the Judicial power, and in the execution of the laws tempers the Executive. But the States, acting as Tribunes, as they have been called from their fancied resemblance to that Roman ofiScei', are not present in the legislative chambers to arrest the passage of bills, but are to be invoked to unravel that which has been woven, to repeal that which has been enacted, to undo that which has been done, and that only within the narrow limits of a State jurisdiction, and in ease of a deliberate, palpable and dangerous exercise of poioers, not granted by the Constitution. But the Equilibrium is confined by no bounds to its discretion, nor even to cases where the Constitution is supposed to be infracted, but decides upon the equity and policy as -well as the constitutionality of political action, and is omnipotent to repress corruptions and prevent extravagant expenditures of public money-

But, since the death of Mr. Calhoun, and even a little before, parties have undergone a remarkable change. They are now drawn up on the sectional line. They are no longer characterized by old names. Those distinctions have been blotted out, and parties now are purely geographical. So true is it that every government, in its development, will proclaim the principles upon Avhich it is founded ! A war of sections has begun, because the constitutional rights of the Southern section have been invaded. The natural expansion of the South has been limited by Federal law, and it is in vain that we have recourse to State Rights' principles for the means of redress ; that school of politics having been formed exclusively with reference to the Constitution regarded as a compact between States. The third of the Virginia Resolutions declares : " In case of a deliberate, dangerous, and palpable exercise of other powers not granted by the said compact, the States, ivho are the parties thereto, have the right, and are in duty bound, to interfere for arresting the progress of the evil, and for maintaining,' ivithin their respective limits, the authorities, rights and liberties appertaining to them." This is nullification. It is the exercise of State sovereignty within State jurisdiction, but it cannot move an inch beyond those consecrated limits. State secession is evidently derived from the same source, and is circumscribed by the same bounds. If the government attempts to collect protective duties in the port of Charleston, South Carolina has an unquestionable right to annul the law in virtue of which those duties are collected. If South Carolina should deem that Congress had committed a dangerous inroad on the Constitution, for which secession would furnish the only adequate redress, she would have, in virtue of her State sovereignty, the unquestionable right to withdraw from the political association. But if the Federal Goverment ,atnO"\V IT WAS CREATED. 13

tempts to expunge slavery from tlie District of Columbia, or to exclude it from Kansas, would that be an invasion of the sovereignty of South Carolina ? Her State remedies would not be co-extensive with the right. The rule of the common law, which ascertains the existence of a right by the existence of an appropriate remedy for its violation, would apply to cases like this. The common law has been called the perfection of reason, and in nothing does it appear more than in this. Any blow dealt at slavery by the central government, outside of that State, is certainly a wrong done to South Carolina, but to South Carolina considered as a portion of the slave section. The remedy, in such a case, if redress could not be obtained by constitutional methods, would be by the overthrow of the Government, the aggressive power. By the destruction of the ■wrong-doer the prevention of all future wrong would be accomplished.

This doctrine is not only true, but wholesome. It tends to obliterate, wherever their common civilization is threatened, State lines, and to resolve the Southern States into one community. In case of a dissolution of the Union, they would be held together by a common bond, and would be led to frame^ under better auspices, a common government.

Mr. Calhoun discovered, before the close of his life, which ■was snuffed out before the great drama had fully opened, that he should have to take broader ground and invoke other agencies than those which he had hitherto used in his contests with Congress. He did not resort then to the nullifying powers of a State, but he called upon the South to defend herself from^ the systematic aggressions of the North, acting through the government at Washington. But his constitutional creed underwent no corresponding change.

The nature of the Constitution is imprinted on its foce, and; bears unmistakable traces of its two-fold origin. The States^ in their sovereign capacity, are represented in the Senate; for, wherever sovereignty exists, equality necessarily prevails. Bui

14 THE SECTIONAL EQUILIBRIUxM.

the sections are represented, and their existence acknowledged in the Electoral College, and in the constitution of the first branch of Congress. It will be seen, hereafter, that the Senate was constituted on its present basis by a conflict between the great and small States, and that the basis upon which the other branch of Congress was founded was the result of a collision between the North and South, and that the differences, in both cases, were adjusted upon the principle of equality.

The difference between a simple compact among the States, and one to which sections and States are equally parties, in respect to the range of powers with which it was thought expedient to invest government, is illustrated by the Articles of Confederation and that Constitution under which we live.

In remarking upon that part of the Constitution which contains the provision for a slave representation, a recent intelligent writer says : " This was the first step, and the next was the formation of the present Constitution, when a contest arose as to the ratio of representation. Should the South have as many representatives, in proportion to her population, as the North ? It was just and right that she should. The Federal Government had no concern with the relations between blacks and whites, the different classes of her population. It had not the right to inquire whether the negro was a slave or free. The slaves were a better population thamthe free negroes, and if the latter were to be counted at their full number in the apportionment of representation, so omght the former. The right could not be refused, because the -slaves were naturally or leo^ally unequal to the whites; for so are the free negroes. It could not be refused, because they have no political rights ; for neither have the free negroes, paupers, women and children. They are an essential part of the population ; if absent, their places must be filled by other laborers, and if they are property as well as population, it is an additional reason for giving their owners the security of full representation for vthem. But the South, as usual, yielded to Northern exorbitance, and agreed that five slaves should count only as three free negroes. Therefore, instead of 105 representatives in Congress, we have only 91." *

If, indeed, the Constitution is to be regarded in the light of a compact between two nations, it is impossible to say that it was just and right that the South should have a full representation of her slaves, without first ascertaining what effect that would have upon the distribution of the powers of government between the parties. If the effect of a full representation of slaves would place the government under the dominion of the South, the slave power, who can say that there is any principle of natural justice that would have required the North to agree to any such stipulation ? If their total or partial exclusion would have produced the contrary effect, and placed the South under the control of the free-soil power, as little could be said in defence of such an arrangement. Each party was entitled to a safe representation in the government, which could result alone from introducing the principle of equality in the division of power ; for in nature, as it is in the court of chancery, equality is equity. The idea that the partial exclusion of slaves from the representative basis was due to their moral and legal inferiority is wholly unfounded, as will hereafter be proved, although that doctrine is inculcated by the respectable authority of the Federalist. The Southern delegates in the Federal Convention will likewise, in the progress of this narrative, be vindicated from the insinuated charge of having submitted to Northern exorbitance; but the integrity of their motives will be vindicated at the expense of their political sagacity.

The sectional line between the North and South was almost as deeply drawn in 1787, as it is at the present time. This will be clearly exhibited by an inspection of that part of the debates of the Convention now about to pass under review. It contradicts the notion entertained by some, that this sectional

* The Union, Past and Future, p. 1,2.

antagonism is of recent growth and consequently that the Constitution of the United States was not made with reference to it. The States to the northward of Virginia and Maryland were either already free States or were preparing to become so, and it was apparent to every one that they would soon consummate their intention. The Northern delegates in the Convention of 1787, all acted in the free-soil interest, and the delegates from the South w'ere unanimous in the defence of the interests of slavery. To reconcile that diflference constituted the chief labor of the Convention. The year following, in the South Carolina Convention of ratification, Gen. Pinckney said :

" But striking as this difference is, it is not to be compared to the the difference that there is between the inhabitants of the Northern and Southern States ; when I say Southern, I mean Maryland, and the States southward of her. There Ave may truly observe that nature has drawn as strong marks of distinction in the habits and manners of the people, as she has in her climates and productions. The Southern citizen beholds with a kind of surprise the simple manners of the East, and is too often induced to entertain undeserved opinions of the purity of the Quaker, while they, in their turn, seem concerned at what they term the extravagance and dissipation of their Southern friends, and reprobate, as an unpardonable moral and political evil, the dominion they hold over a part of the human race^ Elliot's Debates, vol. iv, p. 310.

Tliis feeling, which existed to so great a degree among the people in the two sections, was ever showing itself in Congress whenever the interests or power of either was involved. The / Northern members objected to the admission of Kentucky into the Union, the Southern States objected to the admission of Vermont. That fraternal love which many have supposed to have existed at that period betAveen the North and South, is purely imaginary ; instead, a strong and deep-rooted antagonism characterized them both. Already had any affiliation between a Northern member of Congress and the Southern members been put under the ban of the North. General Sullivan thus writes to Washington : "The choice of minister of war was postponed to the first of October. This was a manoeuvre of Samuel Adams and others from the North, fearing that, as I was in nomination, the choice ivoiild fall on me, who having ajyostatized from the true New England faith, hy sometimes voting with the Southern States, am not eligible.''

Chapter II. Federal Convention

Man, as the minister and interpreter of Nature, does and understands as much as his observations on the order of nature, either with regard to things or the mind, permit liim and neither knows nor is capable of more.

The subtlety of nature is far beyond that of sense or of the understanding: so that the specious meditations, speculations and theories of manlvind, are but a kind of insanity, only there is no one to stand by and observe it. — Novum Organon.

The wit and mind of man, if it work upon matter, which is the contemplation of the creatures of God, worketh according to the stuff, and is limited thereby; but if it work upon itself, as the spider worketli his web, then it is endless and brings forfh indeed cobwebs of learning, admiralile for the fineness of thread and work, but of no substance or profit. — Advancement of Learning.

When you assemble a number of men to have the advantage of their joint wisdom, you invariably assemble with those men all their prejudices, their passions, their errors of opinion, their local interests and thefr selfish views. — Dr. Franklin.

On Friday, the 25th May, 1787, the Convention, professedly to reform, but as it proved to reconstruct, the Constitution, began its sessions at Philadelphia, and adjourned to the 17th September following, having been engaged in their arduous task something over three months. It was composed, for the most part, of the men under whose courageous counsels the country had passed through the travail of the Revolution ; they had all taken part in public affairs, either on the theatre of State or Federal politics, and had brought with them much 2 of that knowledge wliich is acquired only in the school of experience.

The question of Representation chiefly engaged the attention, excited the animosities, and consumed the time of that great synod. Other parts of the Constitution -were more readily agreed upon. Nor is this surprising; for the experience of the country had been instructive. It had satisfied every mind that the government of the confederacy was in some particulars defective ; and had indicated those in which it needed reform. The consultation in consequence began with a number of conclusions which needed not the aid of argument. Had the Convention confined itself to reforms of this nature, the work would have been rapidly dispatched ; but they undertook to re-cast the Constitution and to alter its frame, and this attempt produced new questions of the first moment to the country, and violent agitations which threatened on more than one occasion to dissolve the body.*

So soon as it was determined by the Convention to create a government of great powers, it is not wonderful that the adjustment of the question of representation should have been found to be attended with such difiiculty and delay. Upon it depended the question of empire — what should be the relation which the two great sections, the North and South, were to occupy to the central power.

There are those who look back upon the Convention with a romantic eye, and regard the able men of whom it was composed as beings of a superior order, devising, under the enlightened influence of reason and justice, political institutions for themselves and their posterity. But this is only the idolatry of admiration. If we draw near, and through the medium by

* Luther Martin, in his address to the Maryland Legislature, says, with respect to the animosities engendered by the slavery discussion in the Convention: "I believe near a fortnight, perhaps more, was spent in the discussion of this business, during which we were on the verge of dissolution ^ scarce held together by a hair, though the public papers were announcing our extreme unanimity."

HOW IT AYAS CREATED. 19'

■whicli it has reached us, attend to the grave debate, it will be discovered that thej vrere men struggling, sometimes fiercely and sometimes unfairly, for particular objects and particular opinions which they wished the government to subserve and embody. The marvel is, not that jealousies and irritations should have arisen, but that they could have been composed. The business of the Convention was opened by Edmund Randolph, one of the delegates from Virginia, "a child of the Revolution," as on a subsequent occasion he styled himself. After giving an outline of the system which he wished to be adopted, he submitted a plan of government, which was taken as a basis on which to begin work. Mr. Charles Pinckney, a delegate from South Carolina, also submitted a plan of government, which is remarkable for the near resemblance which it bears to the Constitution, not only in phraseology, but in substance. These plans no otherwise concern us here except on account of the different bases of representation which they contained. That of Mr. Randolph provided : " That the right of suffrage in the National Legislature ought to be proportioned to the quotas of contribution, or the number of free inhabitants, as the one or the other rule may seem best in different cases." But Mr. Pinckney proposed to proportion representation in Congress according to the number of inhabitants taken in the gross. These two propositions respectively contain the extreme pretensions of the two sections. It will be discovered, in the course of this narration, what alterations each was in the end subjected to, and what expedient was resorted to, to bring these rival and jealous parties together. Of the first proposition it may be remarked, that it was at best but an ill-digested and double-headed project, and contained conclusive proof that its projector had not very maturely, certainly not very profoundly, considered the weighty question. It rested on alternatives which were based on opposite principles. If the first were adopted, and wealth or contribution made the measure of power, the government, in all its departraents, would pass under the dominion of the South ; but if the other, the North would have the preponderance. But the crude suggestion so far abandoned just principles as to leave it to Congress to decide between the two — thus throwing upon Congress the responsible duty of the Convention, and conferring upon it, in that particular, an almost unlimited range of power. Alexander Hamilton, a deputy from New York, proposed to simplify Mr. Randolph's proposition, and proportion representatives to the number of free inhabitants alone ; but sectional opposition being about to burst forth, the subject was laid over, it being evident that the most delicate and irritable part of the Constitution had been rudely touched.

It is naturally a subject of surprise, that the darling project of the North should have originated with a gentleman representing the largest and most influential member of the Southern community. It was calculated to excite surprise and spread consternation in the ranks of his friends. So important a defection, in the outset, was fraught with ill-omen to the success of the Convention; it can only be explained in the way above indicated, and that the distinguished gentleman was one of that small band who had been entangled in the mazes of the anti-slavery philosophy, then first lifting up its head. But at a later stage in the business, after the question had been discussed in its political applications, and had come to be viewed solely as a question of sectional power, Mr. Randolph promptly abandoned his own offspring, and assumed his proper place in the Southern ranks. That sudden revulsion in the position of a leading character upon a subject of such engrossing importance, is extremely significant, and affords conclusive evidence of the attitude and complexion of parties. Such was the importance attached to negro slavery, as a political element, and so strong the bias of parties in respect to it, that Southern men, who were most averse from it, buried their prejudices, and rallied to its support. This prompt and thorough recantation places Mr. Randolph in the most favorable liglit. Notwithstanding that he had all the severity of character which belonged to a leader in those bustling times, yet he was not of that bigoted and inflexible turn which would induce him to cling to a dangerous error, after that error had been exposed. Indeed, he appears to have been of a more flexible temper ; — and when the alarm of sections was rung, he retraced his steps, and with Madison, Pinckney, and the clear-headed and ever-faithful George Mason, was among the most unflinching advocates of the South, and inflexible opponents of Northern ambition.

But the truce was of short duration. The business was at a stand. No progress could be made until a distribution of power had first been eff'ected. Neither the South nor the North, neither the large States nor the small States, could say with what authorities they were willing to entrust the government, until it was first determined what measure of influence each was to wield. This, of itself, shows the supreme importance attached to that question. But the time had not been thrown away. In private an adjustment had been agreed upon. This is evident from the direction from which the adjustment came. On the 11th of June, when the Constitution of the first branch of the Legislature was again taken up, Mr. Wilson, from Pennsylvania, a leader of great talents, seconded by Mr. Chas. Pinckney, from South Carolina, justly entitled from his abilities and activity to be esteemed a leader from the South, submitted a proposition that slaves should be admitted into the representative basis in the proportion of five slaves to three freemen. From this, it is clear that a compromise had been effected, and that each party had receded from its extreme pretensions. The vote on that compromise reveals most strikingly the healing influences that had been at work. The States of New Jersey and Delaware alone voted against it. Their motive evidently was to keep the whole question open, so as to prevent any combination being made between the large States and the slave States ; a combination which was, nevertheless, afterwards effected, and to defeat which, in part, the small States were finally compelled to assume the most decided attitude. From this single instance, it may be collected how great a part of the business was really transacted in private, no memorandum of which has been preserved. It will explain, too, how it happened that many questions of the deepest import were settled by the Convention with but little debate, and in some instances, without debate at all.