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out slavery, and the permanent continuance of slavery in the Union
were irreconcilable" (p. 237). He is also forced to admit that as
the Constitution was originally framed and then stood, " slavery was
an acknowledged and protected institution." That once admitted,
"the sacred obligation imposed by the Constitutional compact for
mutual defence and protection," is unquestionable, except on Dr. von
Hoist's idea that this obligation was nullified by "the determining
principle" of the Constitution and subordinate to the "convictions"
of the Union haters. On this idea it might be admissible for Dr. von
Hoist to contend that his view of the obligations of the Constitutional
compact was correct and Calhoun's wrong. But to answer Calhoun's
argument, thirty years after his death, by calling him a liar — will that
meet the approval of cultured New England ?

The very passage, selected for quotation by Dr. von Hoist, proves
that Calhoun rested his defence of the annexation of Texas — not on
the avowals of Lord Aberdeen's dispatch, but on " the state of
things," one important element of which, though previously made
known by the remarks of Lords Brougham and Aberdeen in the
House of Lords in August, 1843 (two months before Upshur's
"formal proposition of annexation"), was for the first time avowed
in an official dispatch to this Government by Lord Aberdeen six
months later. Dr. von Hoist's disingenuous effort to make it appear
that Calhoun rested his defence on the avowals of Lord Aberdeen,
and not on the state of things, and that Calhoun, therefore, "lied,"
because the facts were known before the avowals were made, is a
malus-puer-\\\\.y which, if admissible in the heat and passion of an
active canvass against a live candidate for office, would even then ad-
mit of but one defence, "that want of decency is want of sense."

Speaking of the Tariff controversy of 1 828-' 32, Dr. von Hoist
says (page 98) :

" South Carolina received the new tariff as a declaration that the
protective system was 'the settled policy of the country,' and on
August 28, 1832, Calhoun issued his third manifest (his letter to



234 Southern Historical Society Papers.

Governor Hamilton), determined to have the die cast without delay.
* * Thirty years later, the programme laid down in it was car-
ried out, piece by piece, and the justification of the Southern course
was based, point by point, upon this argument."

Now let us see if all of the last sentence, and so much of the first,
as imputes to Calhoun a "determination to have the die cast with-
out delay," are not misrepresentations, which leave Dr. von Hoist's
celebrated compatriot, the Baron von Munchausen, far in the rear
as a writer of fiction.

In that letter to Governor Hamilton, Calhoun summed up his
programme in the following remarkable words :

" If the views presented be correct, it follows that, on the inter-
position of a State in favor of the reserved rights, it would be the
duty of the general Government to abandon the contested power,
or to apply to the States themselves, the source of all political au-
thority, for the power in one of the two modes prescribed by the
Constitution. If the case be a simple one, embracing a single
power, and that in its nature easily adjusted, the more ready and
appropriate mode would be an amendment in the ordinary form,
upon the proposition of two-thirds of both Houses of Congress, to
be ratified by three-fourths of the States ; but, on the contrary,
should the derangement of the system be great, embracing many
points difficult to adjust, the States ought to be convened in a
General Convention, the most august of all assemblies, representing
the united sovereignty of the Confederate States, and having power
and authority to correct every error, and to repair every dilapida-
tion or injury, whether caused by time or accident, or the conflicting
movements of the bodies, which compose the system. With insti-
tutions every way so fortunate, possessed of means so well calcu-
lated to prevent disorders, and so admirable to correct them, when
they cannot be prevented, he who would prescribe for our political
disease — disunion on the one side, or coercion of a State in the as-
sertion of its rights on the other — would deserve, a7id will receive,
the execrations of this and all future p^enerationsr

The italics are Calhoun's. Now what pieces, or piece, of this
programme was carried out by the South in 1861 ? On what points,
or point, of this argument was the justification of secession based
in 1861 ? Calhoun said of secession, that he who would propose it
"would deserve, and will receive, the execrations of this and all
future generations." Could language be clearer, or condemnation
of the programme of 1861 more emphatic? Is it not time for the



Calhoun — Nullification Explained. ' 235

"blind admirers" of the late Baron von Munchausen, "if there still
be any left," to look to his laurels."

So far from having been written with a " determination to have
the die cast without delay," it seems to us, from our side of the
shield, that no candid, fair-minded man, of ordinary intelligence,
and acquainted with the history of those times, can read the letter
to General Hamilton without recognizing and admitting that next
after combatting the secession programme, its chief object was de-
lay — " to allow time for further consideration and reflection." On
page 82, von Hoist himself seems to have been aware of this, for
he there quotes these very words of Calhoun. The truth is, that
Calhoun was fighting the secession programme in the only way in
which it could then be fought successfully.

Two years before, 13th April, 1830, Jackson had given his cele-
brated volunteer toast at the celebration of Jefferson's birthday :
"Our Federal Union; it must be preserved." But it was well
understood then that this was aimed at nullification, not at seces-
sion. If Jackson ever denied the right of secession, his denunciation
fell far short of the more emphatic language of Calhoun. In his
celebrated proclamation against the South Carolina Nullification
Ordinance, he admitted that the right of "resisting unconstitutional
acts" was an "infeasible right," but denied that a State could, con-
sistently with the Constitution, "^ retain Us place in the Union' ^ and
yet nullify its laws ; that is to say, prohibit their execution within its
limits, pending the reference to. and decision by, the States in Con-
vention of the question of their constitutionality.

Hon. Alexander H. Stephens, in his history of the United States,
page 347, quotes this passage from the Proclamation, and says:

" By many who did not approve of the course of South Carolina,
the Proclamation, taken as a whole, was looked upon as amounting
in substance to a denial of the right of secession on the part of any
State for any cause whatever. This was the view taken generally by
the old Federalists and the extreme advocates of State Rights, but
the President afterwards maintained that an erroneous construction
had been put upon those parts of the proclamation referred to, and
in a full explanation he declared his adherence to the principles of
Mr. Jefferson as set forth in the Kentucky and Virginia resolutions
of 1798 and 1799."

The practical question then was and may hereafter again be, how
and by what methods should this " indefeasible " right of" resistance "
be exercised ? Shall it be bv armed force within the Union ? which



236 Southern Historical Society Papers.

would be civil war ; or should it be by withdrawing from the Union?
The position taken in the Proclamation, that a "resisting" State
could not " retain its place in the Union," would seem to indicate
very clearly that General Jackson regarded secession as the only
proper remedy. Later experience has shown that secession is but
the precursor of war. In the broad glare of that experience, who
will now deny that nuUification, that is to say, the right of a State to
say. Veto — I forbid— and to require the general government to refer
the question to a Convention of all the States, is not the best and
wisest, the most statesmanlike and patriotic method of exercising the
" indefeasible right of resistance to unconstitutional acts."

But in 1832 the right of secession was almost as universally ad-
mitted as that "the constitution recognized slavery as a fact which
the States exclusively had the right to deal with." Men near to
General Jackson and recognized as his mouth-pieces, asserted the
right of secession, but denied the right of nullification, because, they
argued, a State could not be m and out of the Union at the same
time.

To these Calhoun replied, in that same letter to Hamilton, as fol-
lows :

" There are many who acknowledge the right of a State to secede,
but deny its right to nullify. * * The difficulty, it seems, is that
a State cannot be i7i and oul of the Union at the same time. This
is, indeed, true, if applied to secession, the throwing off of the a2i-
thoriiy of the Union its-elf. To nullify the Constitution, if I may be
pardoned a solecism, would, indeed, be tantamount to disunion, and,
as applied to such an act, it would be true that a State could not be
in and out of the Union at the same time, but the act would be seces-
sion. But to apply it to nullification, properly understood, the
object of which, instead of resisting or diminishing the powers of the
Union, is to preserve them as they are, neither increased nor dimin
ished, and thereby the Union itself, (for the Union may be as effec-
tually destroyed by increasing as by diminishing its powers, by
consolidation as by disunion itself), would be, I would say, had I not
great respect for many who do thus apply it, egregious trifling with
a grave and deeply important constitutional subject."

In i83i-'2 the protective system had been pushed to such extremes
as to produce an almost universal sentiment in the staple or slave-
holding states, that the Union, established for the general welfare,
had become a curse to them. That sentiment had reached a point
where, the right of secession being thus generally admitted, even



Calhoun — Nullification Explained. 237

Calhoun could not hope to control it, except upon the middle ground
of nullification — the ground of the Virginia and Kentucky resolu-
tions-^of Jefferson and Madison.

Urging the people of South Carolina to stand on this middle
ground, rather than rush upon the extreme of secession, he said : " I
see in the Union, as ordained by the Constitution, the means, if
wisely used, not only of reconciling all diversities, but also the
means, and the only effectual one, of securing to us justice, peace, and
security, at home and abroad, and with them that national power
and renown, the love of which Providence has implanted, for wise
purposes, so deeply in the human heart, in all of which great objects
every part of our country, widely extended and ' diversified as it is,
has a common and identical interest.'

Is not this single sentence, taken from Calhoun's address to the
people of South Carolina, July 26th, 1831, a complete refutation of
all that Dr. von Hoist has scattered through his book about Calhoun's
sectionalism.

Of the fifty millions now living in the United States few know what
was meant by nullification, or have any idea of it, except as derived
from the misrepresentations of such writers as von Hoist. Calhoun,
though not its originator, was its ablest exponent. Explaining it, he
said :

"So far from extreme danger, I hold that there never was a free
State in which this great conservative principle, indispensable to all,
was ever so safely lodged. In others, when the co- estates, repre-
senting the dissimilar and conflicting interests of the community,
came into contact, the only alternative was compromise, submission,
or force. Not so in ours. Should the general Government and a
State come into conflict, we have a higher remedy. The power which
called the general Government into existence, which gave it all its
authority, and can enlarge, contract, or abolish its powers at its
pleasure, can be invoked. The States themselves can be appealed
to, three-fourths of which, in fact, form a power, whose decrees are
the Constitution itself, and whose voice can silence all discontent.
The titmost extent, then, of the power is that a State, acting in its
sovereign capacity, as one of the parties to the constitutional com-
pact, may compel the government created by that compact, to sub-
mit a question touching its infraction to the parties who created it."

Speaking of how and when a State should exercise this high power,
he said :

" But the spirit of forbearance, as well as the nature of the right



238 Southern Historical Society Papers.

itself, forbids a recourse to it, except in cases of dangerous infractions
of the Constitution, and then only in the last resort, when all reason-
able hope of relief from the ordinary action of the Government has
failed ; when, if the right to interpose did not exist, the alternative
would be submission and oppression on one side, or resistance by
force on the other. That our system should afford, in such extreme
cases, an intermediate point between these dire alternatives, by which
the Government may be brought to a pause, and thereby an interval
obtained to compromise differences, or, if impracticable, be compelled
to submit the question to a constitutional adjustment, through an ap-
peal to the States themselves, is an evidence of its high wisdom ; an
element not, as is supposed by some, of weakness, but of strength ;
not of anarchy or revolution, but of peace and safety. Its general
recognition would, of itself, in a great measure, supersede the
necessity for its exercise by impressing on the movements of the
Government that moderation and justice, so essential to harmony
and peace in a country of such vast extent and diversity of interests
as ours, and would, if controversy should come, turn the resentment
of the aggrieved from the system to those who had abused its
powers — a point all important — and cause them to seek redress, not
in revolution or overthrow, but in reformation It is in fact, properly
understood, a substitute where the alternative would be force, tending
to prevent or, if that fails, to correct peaceably the aberrations to
which all systems are liable, and which, if permitted to accumulate
without correction, must finally end in a general catastrophe."

Such was nullification as advocated by Calhoun ; this its " utmost
extent" ; no more. Such were the arguments by which he sought
to dissuade the staple States from secession in 1831-32. His "im-
pure idol " was the Union, as ordained by the Constitution; his "un-
holy cause" the preservation of that Union as our fathers framed it.

The distinctive features of his nullification and of the nullification
of those whom Dr. von Hoist represents and seeks to defend by mis-
representing him, are :

1. His nullification was a temporary measure, analogous to the
Presidential veto, to " allow time for further consideration and reflec-
tion," and for a constitutional decision of the question by the States
in convention. Their's was final and conclusive.

2. His nullification was applicable only to acts of the law-making
power — their' s to the Constitution itself

3. His nullification was to be exerf^ised only in "cases of danger-
ous infractions of the Constitution, and then only in the last resort,



Calhoun — Nullification Explained. 239

when all reasonable hope of relief by the ordinary action of the Gov-
ernment had failed — their's whenever the Constitution stands in the
way of their "wills" or "convictions."

4. His nullification sought to preserve the Union as ordainpd by
the Constitution, with powers neither increased nor diminished, unless
done in the way prescribed by the Constitution — their's seeks to
make the Constitution " nothing but a dead piece of parchment, not
even able to resist the attacks of moths and mice, with no magical
force in it," etc. (See p 295.)

This last idea of Dr. von Hoist naturally springs from this other
idea of his, that it was not intended that the Union should remain as
ordained by the Constitution, because " where there is life there is
development" (see p. 79), or, in other words, that the Constitution
is subordinate, not only to individual "wills" and "convictions,"
but also to individual notions of " development."

We of the South have inherited from our Revolutionary sires the
" conviction " that constitutional government is preferable to despotic
sway, and that the very object of a Constitution is to prevent govern-
ment being "developed" into despotism. It has become second
nature with us to revere the Constitution as the most precious legacy
left us by those sires. Hence the difficulty of our comprehending
how Dr. von Hoist's ideas of " development " can find acceptance in
New England.

To the doctrine that a State may compel the general Government
to submit a question of its powers to all the States in convention, Dr.
von Hoist makes this objection : that " thereby one fourth of the
States would get the power to change the Constitution." How?
Why ? Because, forsooth, it requires three-fourths to make amend-
ments !

To us of the South, accustomed to treat constitutional questions
with becoming seriousness, this looks like something more and worse
than " egregious trifling." If it were true that, in the case supposed,
one-fourth of the States would get the power to change the Consti-
tution at will, then all that Dr. von Hoist so flippantly says about
" the Federal legislation being turned into a balky machine more
fatal to healthy political life than Juggernaut's car to the fanatical
worshippers," might apply to the Constitution itself and its framers,
but not to those who accept it as it was framed.

But let Dr. von Hoist .=peak for himself. He says :

" Suppose — and the case might easily happen^that the Federal
Government exercises a power which has been actually granted to it



240 Southern Historical Society Papers.

by the Constitution, and that a State sees fit to veto the law; that the
question, as must be the case, is submitted to all the States, and the
objecting State is supported by one-fourth of the whole number. Is
any dialectician sharp enough to disprove the fact that in such case
the Constitution, though not a single letter is either added or erased,
has been actually changed by one-fourth of the States, though that
instrument expressly requires the consent of at least three-fourths to
effect the slightest change? Working in defense of the peculiar in-
terests of the slaveholders with the lever of State sovereignty, Cal-
houn thus begins to subvert the foundation of the whole fabric of the
Constitution."

The case here supposed is not a supposable case. First. Because
it could rarely, if ever, happen. Secondly. Because the hypothesis
dishonors one-fourth of the States. But if such a case could happen,
it would not "change the Constitution " one iota, and the assertion
that it "would be actually changed," is simply untrue and absurd.
If one fourth of the States should refuse to abide by the decision of
three fourths, that would not "change the Constitution." Their ac-
tion would be an infraction of the Constitution, and the case would
be one of revolution or overthrow, not a "change " of the Constitu-
tion.

Replying to the more sensible objection that " a power of so high
a nature might be abused by a State," Calhoun said:

" I do not deny (that) ; but when I reflect that the States unani-
mously called the general Government into existence with all its
powers, which they freely delegated on their part, under the convic-
tion that their common peace, safety and prosperity required it,
that they are bound together by a common origin and the recollec-
tion of common suffering and common triumph in the great and
splendid achievement of their independence, and that the strongest
feelings of our nature, and among them the love of national power
and distinction, are on the side of the Union, it does seem to me
that the fear which would strip the States of their sovereignty, and
degrade them to mere dependent corporations, lest they should
abuse a right indispensable to the peaceable protection of their in-
terests, which they reserved under their own peculiar guardianshi
when they created the general Government, is unnatural and un-
reasonable. If those who voluntarily created the system cannot be
trusted to preserve it, who can ? "

.Speaking of the South Carolina Exposition, Dr. von Hoist says :
" Whether such a veto is to be an injunction against the execution



An Independent Scout. 241

of the law throughout the Union, or only in the individual State,
* * * we do not learn from the Exposition." (See page 80.)

Now, the very essence of the doctrine of State sovereignty con-
fines the jurisdiction of each State to its own territorial limits. It is
therefore impossible that Dr. von Hoist could be ignorant that this
last statement is untrue. How any man could dare write and pub-
lish such a von Munchausenism in what he claims to be "serious
history," we of the South find it difficult to comprehend. But it is
perhaps not surprising that one who could do so would see no of-
fence, but rather a compliment, in calling a great statesman, thirty
years after his death "a liar." — Ben. E. Green.



An Independent Scout.

BY ROBERT W. NORTH, CO. B, I2TH VIRGINIA CAVALRY.

What I am going to relate happened nearly twenty years ago, and
as none of the participants, as far as I know, kept any diary or even
a memorandum, it is probable that memory may be at fault, and that
some things are omitted and others are stated not exactly as they
occurred.

In the summer of 1863, Jones's brigade, formerly Ashby's, with
others of Steuart's command, was guarding the left flank of Lee's
army, being stationed in front of Culpeper Courthouse doing picket
duty on the plains around Brandy Station. The young men of Com-
pany B, Twelfth Virginia, mostly from Jefferson county, were very
anxious to see their relatives and friends, and despairing of getting
a furlough, determined on " taking a flank"; in other words, resolved
that they would go home, and after having a good time for a few
days, return to their duty and their command. After many plans
were discussed, it was at last decided to combine business with pleas-
ure, to canvass the three Jefferson companies of the regiment, and
see how many men could be induced to go on a raid in the lower
part of the Valley. I was not present at their first meetings, but in
a few days they had about thirty men enrolled, of whom more than
twenty belonged to Company B. They even persuaded a lieutenant
to go with them, a man of undoubted courage, of good practical
common sense, and fitted in every way, except in education and re-
finement, to be the leader of such an expedition. As he differed



242 Southern Historical Society Papers.

from me in this great respect, that he never returned to his duty, his
name will not be mentioned ; for all the privates, with the exception
of one, that fell under the influence of this lieutenant, returned to
their command. This lieutenant and his friend subsequently went
inside the enemy's lines and took the oath.

One evening about sundown, when the regiment returned from
grazing their horses, the men that were going, instead of unsaddling
and preparing for the night as the others, quietly mounted their
horses, fell in outside of the camp, and marched off in the night.
We reached the pickets on the extreme left of the army about mid-
night, and upon being stopped, the officer commanding stated that
we were on a special scout, and the statement being satisfactory, we
went on our way rejoicing. So well had the affair been managed,
that neither regimental nor company officers knew of our absence till
morning roll-call. We passed through Rappahannock, Warren and
Clarke counties and camped near the Charlestown and Berryville
turnpike. At that time Charlestown was held by some infantry and
Captain Somers's company of cavalry, and it was our purpose to cap-
ture some of his command. The very first day fortune seemed to
favor us, for six cavalrymen came out of Charlestown, and after pro-
ceeding three miles, turned in to Mrs. Fromer's on the Berryville
turnpike. They had been watched, and at the overseer's house were
attacked, and without any casualties on either side were secured.
There was some firing, and while the Yankees were trying to escape I



Online LibrarySouthern Historical Society. cnSouthern Historical Society papers (Volume 14) → online text (page 25 of 61)