Circa1865

When Thomas Jefferson wrote the following the right of kings to rule the world was regarded by nearly the entire human race as a divine right from the Creator of the universe. His populist views were looked upon in Europe with much dread and hostility, though it became clear to Jefferson in later life that political factions and the democratic urge would upend his experiment in government.

The Fate of Hereditary Monarchs

“While I was in Europe, I often amused myself with contemplating the character of the then-reigning sovereigns of Europe. Louis XVI was a fool of my own knowledge, and despite of the answers made for him at his trial. The king of Spain was also a fool, as was the king of Naples. They passed their lives in hunting and dispatched two couriers a week some one thousand miles to inform one another what game they killed in the preceding days. All were Bourbons.

The queen of Portugal, a Braganza, was an idiot by nature, and so was the king of Denmark. I hear their sons, as regents, really exercised the powers of government. The king of Prussia, successor to Frederick the Great, was a mere hog in body as well as in mind. Gustavus of Sweden and Joseph of Austria were really crazy, and George of England, as you know, was in a straight waistcoat. There remained, then, none but old Catherine of Russia, who we have learned of late to have lost her common sense.

In this state Bonaparte found Europe, and it was in this state its rulers lost all with barely a struggle. These rulers had become without minds and therefore powerless, and so will every hereditary monarch be after a few generations.”

(Forty Years of Oratory, Daniel W. Voorhees Lectures, Addresses and Speeches. Vol. 1. Harriet C. Voorhees. Bowen-Merrill Company, 1898, pg. 70)

Greatly concerned in the mid-1700s over their growing African populations, both Virginia and North Carolina petitioned the British Crown to end its slave trade. This was denied while New England’s transatlantic slave trade continued.

Southern Aristocracy?

“That subordination of the black race which was called slavery gave rise to a certain development of society, not at all English, however, bore some features of an aristocracy. But this was by no means so general as might be inferred from much seen lately in print about the subject of the “slave oligarchy” of the South. It was by no means the controlling force. In South Carolina alone, by her peculiar Constitution, could it be correctly said that the slaveholders as a class held the political power.

The anti-slave element was always strong in Virginia; but for external agitation, I have no doubt slavery would have been abolished there long ago, or have been greatly modified. The same is true of North Carolina.

Throughout the South no feeling was more general, none stronger with the voting majority, than a deep-seated detestation of the very name “Aristocracy.” I do not think there was a county in Georgia where a man could have been elected to the State Legislature, or to any other office, upon the principles of an aristocracy, or if he were ever known to favor such a doctrine.

Eight-tenths of the people of Georgia, I believe, were thorough Jeffersonian Republicans and would have been as thorough abolitionists as Jefferson if they could have seen what better they could do with the colored people than they were doing.

They had a hard problem to solve, and the external agitation kept down internal inquiry and discussion as to whether there was any proper and safe solution [to the slaves among them].”

(Recollections of Alexander H. Stephens: His Diary While Imprisoned. Myra Lockett Avary, ed., LSU Press, 1998 (original 1910), pg. 422)

Both Thomas Jefferson and John Madison feared the Adam’s administration’s “Alien and Sedition Acts” and agreed that these should be attacked on the grounds of their unconstitutionality. A stern response should emanate from State legislatures, and those opposing the “Acts” had to do so anonymously to avoid arrest. To Jefferson especially, it was federal power that represented a clear and present danger as would be the case some 63 years later.

States Above Federal Authority  

“John Breckinridge, who would later become Thomas Jefferson’s Attorney General, authored resolutions in 1798 which opened with ‘the American States were not united on the principle of unlimited submission to their government.’ And there was nothing startling about at that time in his reference to the Constitution as a compact between States, for this view of it was widely held.

Jefferson, remaining in the background, did not say, as Calhoun did later, that sovereignty was indivisible and remained with the States. The abstract question of sovereignty probably did not greatly interest him. He took the position which Madison well-described a few months later: “The authority of constitutions over governments, and of the sovereignty of the people over constitutions, are truths which are at all times necessary to be kept in mind, and at no time, perhaps, more necessary than the present.” At this moment Jefferson would not have used the word “perhaps” . . . with him the essential truth was the sovereignty of the people, and the reality as he saw it was that the people lived in the several States and could express themselves more readily through State action.

Regarding constitutions as shields against arbitrary power, he was disposed to interpret all of them strictly. In construing the federal constitution strictly, however, he was pursuing no solitary course: he was quite in line with the Republican spokesmen in Congress.”

(Jefferson and the Ordeal of Liberty; Volume III. Dumas Malone. Little, Brown and Company, 1962, pp. 402-403)

Established in mid-March 1802 during Thomas Jefferson’s presidency, West Point graduation became necessary for an officer commission through 1835, though a rising “Jacksonian Democracy” created a strong desire to end an academy which bred an aristocratic tradition. After Texas statehood, Sam Houston believed a regiment of Texas Rangers better to protect the frontier than US regular troops and officers who he saw as “unaccustomed to frontier life and therefore utterly incompetent” as an Indian fighting command. The Rangers “were men who could ride as well as the Comanches and Kiowas and who understood their dispositions, inclinations – as well as their points of foray and attack.”

In early August 1858, Houston made his harshest Senate speech against the professional military establishment. He attacked West Point as aristocratic and undermining the liberties of American citizens. And it was the untutored frontier military leader Ben McCulloch who peacefully settled the Mormon standoff in Utah circa 1857-58.

West Point’s Aristocratic Traditions

“Early in the nineteenth century, the image of the citizen soldier was strengthened by the hostility that flared against the institution that seemed to embody all the negative elements of a professional military force: the United States Military Academy at West Point. In an era of mass democracy and egalitarian aspirations, West Point became a symbol of aristocratic privilege. It was regarded as a potential threat to popular rule . . . [and] Jacksonian Democrats believed, the caste system created by the professional officer corps would inevitably degrade the enlisted men.

Critic David Crockett spoke for the majority on the frontier when he declared that “this academy did not suit the people of our country, and they were against it.” The officers it trained and commissioned, he maintained, “are too nice to work; they are first educated there for nothing, and they must have salaries to support them after they leave there – this does not suit the notions of the working people, of men who had to get their bread by labor.”

Sam Houston, addressing the United States Senate in 1858, declared that “a political influence” was “growing upon the country in connection with the army,” and “its inception is at the Military Academy.” Its “inmates,” he charged, were “the bantlings of the public” and were nursed, fostered and cherished by the government.” Upon their graduation, the army must be annually enlarged as places must be found for the newly commissioned officers. “The danger,” Houston warned, “is that as they multiply and increase, such will be the political influence disseminated through society that it will become a general infection, ruinous to the liberties of the country.”

As Crockett’s and Houston’s outspoken opposition would suggest, nowhere was the military academy more reviled than on the western Tennessee frontier where the area was yet raw and largely unsettled, and already producing a remarkable number of solider-statesmen whose names would dominate American political and military history until the Civil War. Foremost among them was Andrew Jackson, whose fame and untutored military genius and popularizer of a frontier brand of democracy propelled him into the White House in 1829. Second to Jackson was his political protégé Sam Houston, another product of the frontier as well as an untutored but highly successful military leader. Other Tennesseans of the Jacksonian mold were San Jacinto veteran and Southern cavalry general Tom Green, Texas Ranger John Coffee Hays, and two extraordinary brothers – Ben and Henry McCulloch.”

(Ben McCulloch and the Frontier Military Tradition. Thomas W. Cutrer. UNC Press, 1991, pp. 4-5; 147-149)

Author Roger Lowenstein writes that on Christmas Eve, 1825, “Thomas Jefferson let out an anguished cry. The government of the country he had helped to found, half a century earlier, was causing him great distress. It was assuming vast powers, specifically the right to construct canals and roads, and to effect other improvements. Jefferson thought of the federal government in the most restrictive terms: as a “compact” or a “confederated fabric” – that is, a loose affiliation of practically sovereign States.”

Thomas Jefferson’s “Rupture”

“He was roused at the age of eighty-two to issue a “Solemn Declaration and Protest” against what he termed the “usurpation” of power by the federal branch. Jefferson was so agitated that he declared that the “rupture” of the United States would be, although a calamity, not the greatest calamity. Even worse, reckoned the sage of Monticello, would be “submission to a government of unlimited powers.”

Though Federalists led by Alexander Hamilton had sought to establish a strong central government, Jeffersonians adamantly objected. No fewer than six of President Jefferson’s successors vetoed or thwarted federal legislation to build roads and canals, improve harbors and riverways, maintain a national bank, [and] fund education . . .”

Had Jefferson survived until 1860, the federal government of that day would not have displeased him. Its main vocation was operating the postal service and collecting customs duties at ports, [and] its army consisted of merely sixteen thousand troops scattered mostly among a series of isolated forts west of the Mississippi. The federal payroll was modest . . . the civilian bureaucracy in Washington consisted of a mere two thousand employees.

The modest federal purse was supported by tariff duties and a smattering of land sales. Federal taxes (an unpleasant reminder of the English Parliament) were reflexively scorned. Then came the “rupture.”

The Republicans – [Lincoln elected in November 1860] – vastly enlarged the federal government . . . [and] accomplished a revolution that has been largely overlooked.”

(Ways and Means: Lincoln and His Cabinet and the Financing of the Civil War. Roger Lowenstein, Penguin Books, 2022. pp. 1-2)

Secession or a War of Rebellion?

The Possibility Foreseen by the Continental Congress. W.A. Lederer of Philadelphia.

“The voluntary withdrawal of a State, or group of States, from a Union, or any other political body is generally known as secession, notwithstanding the reasons and procedures leading up to this decision. In 1905, Norway seceded from the Scandinavian Union of some ninety years standing, which act was considered a peaceful separation from Sweden.

In 1776, the thirteen colonies separated from the motherland, which act, being settled with arms, but successfully, is known as the Revolution of ’76, or the first War of Independence. The year 1861 witnessed the outbreak of the second War of Independence, as we may justly name it, which received the offensive name given by the victor, the War of the Rebellion. (Commonly spoken, a revolution is a successful rebellion and thus had the thirteen colonies been unsuccessful, that war would have been known as the War of Rebellion, notwithstanding the causes).

To the truthful and sincere historian, the War of 1861-1865 is known as the War Between the States, its purpose being the prevention of the peaceful separation and secession of the Southern States from the 1789 Union. To the informed and educated American, therefore, secession means the justified act of a peaceful separation of economically two different sections of the Union.”

Mr. Lederer continued his review of the newly independent States and the issue of slavery and the North’s important role in perpetuating the institution. He wrote:

“Thomas Jefferson’s original draft of the Declaration of Independence was “considerate and courteous, yet Voltaire-like as he caustically refers to the slave trade of the pious Yankee, and rather than cause a disruption of the drive for independence, he omitted this” from his final draft. In explaining this omission regarding African slavery: “It was struck out in compliance with South Carolina and Georgia, who had never attempted to restrain slave importation . . . Our Northern brethren also, felt a little tender toward those censures; for tho’ their people have very few slaves themselves, yet they have been pretty considerable carriers of them to others.”

(W.A. Lederer, Confederate Veteran, September, 1930, pp. 337-338)

Nathaniel Macon, Model Conservative

From the Congressional Globe, February 14, 1826:

“The government which John Quincy Adams found when he moved into the White House in 1825 was a much bigger government than his father had left; and Nathaniel Macon, who had represented North Carolina in Congress since 1791, was far from happy with it.

He regretted that everything had grown, just like the number of doorkeepers of the houses of Congress. “Formerly two men were sufficient for doorkeeper, etc., for the two houses,” Macon complained, “but now there is a regiment.”

As he recalled at the time, during the presidency of John Adams, when the Kentucky and Virginia Resolutions had been passed, he asked: “If there was reason to be alarmed at the growing power of the General Government [then], how much more has taken place since? Congress now stopped almost at nothing, which it deemed expedient to be done, and the Constitution was construed to give power for any grand scheme.”

To Macon, it was a dangerous development. “Do a little now, and a little then, and by and by, they would render this government as powerful and unlimited as the British Government was,” Macon told his colleagues in the Senate in 1825.

At the next session, Macon declared that “he did not like to go on in this way – the Government constantly gaining power by little bits. A wagon road was made under treaty with an Indian tribe some twenty years ago – and now it has become a great national object to be kept up by large appropriations. We thus go on by degrees, step by step, until we get almost unlimited government power.”

(Nathaniel Macon and the Southern Protest Against National Consolidation. Noble E. Cunningham, Jr.  North Carolina Historical Review, Volume XXXI, No. 3, July 1955, pg. 376)

In his foreword to “Chaining Down Leviathan” by Marco Bassani, Dr. Donald Livingston writes of America’s new central government differing from the European model by having no plenary power. He adds that “It had only a few well-defined powers delegated to it by a compact between sovereign States,” which all held the right to check unauthorized acts of central power – and even withdraw if they chose to do so. As to new States being created in the future, Thomas Jefferson believed that States “would negotiate secessions and form new Unions of States”. He imagined perhaps three new countries united by trade and defense treaties: a federation along the Atlantic coast, one along the Atlantic coast, the Mississippi, and the Pacific. The States themselves held supreme political authority; the government at Washington was merely the agent created by the States.

Source of Political Power Flows from States

“The linchpin of John C. Calhoun’s analysis of the United States Constitution was the power of the individual State as a contracting party to, and the real dominus of, the federal pact.

It must be noted that the word “State” is all over the Constitution (it appears 103 times), while the term “nation” does not appear at all. Federal political representation, and not just that of the Senate, is centered on the States; the members of the House of Representatives are elected “by the People of the several States.”

Regarding eligibility for election, the State-centered character of representation is even more marked: for the House the candidate must be an inhabitant of the State “in which” he or she will be chosen; for the Senate the candidate must be an inhabitant of the State for which he or she will be chosen. In sum, for the House a person is chosen as a representative of a State; he or she is never imagined as a delegate of a part of the American people (which simply does not exist from a constitutional point of view), while the senator is in Washington on behalf of their State.

The source of political power flows from the States to the federal government, and never vice-versa. The Constitution authorizes and prohibits certain actions by the federal government, but to the States nothing is ever permitted, only prohibited. This means that while State political authorities must check only if a constitutional prohibition exists, in the absence of which they can act freely.

A general political capacity is recognized only for the States. The Tenth Amendment (“the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”) is the architrave of American polity. It sums up the entire system of permissions and prohibitions in the sense delineated by Calhoun.”

(Chaining Down Leviathan: The American Dream of Self Government 1776-1865. Luigi Marco Bassani, Abbeville Institute Press, 2021, pp. 195-196)

What follows is an abridgment of an article written by a descendant of Chief Justice Taney to clarify the legal question presented and facts considered. Taney was 12 years old when Washington died and lived long enough to see the Constitution overthrown by military force. It is said that his arrest was ordered for defying Lincoln’s suspension of habeas corpus.

Chief Justice Taney and Dred Scott

Chief Justice Roger B. Taney (pronounced “tawney”), 1777-1864, is mostly known for his decision in the Dred Scott v. Sanford case in 1857. Largely forgotten is his 30 years on the bench of the Supreme Court, and his steadfast understanding that the Constitution is a compact among sovereign States. In his view, most matters of importance were the domain of States, not the federal government, and the Court was to interpret the Constitution according to the original constitutional meaning when it was first adopted.

The primary question the Court was to decide in the Dred Scott case was whether black people in the United States were “citizens” of the United States. It must be recalled that in the antebellum United States people were first citizens of the individual States, and by virtue of that, the United States.

Taney’s Court was to determine whether people of African descent were actual members of the American political community under the original intent and meaning of the Constitution. His study and understanding reflected that the United States in 1789 were primarily white, Anglo-Saxon people and black people were not part of what was an original political creation of Europeans. The racial viewpoint of the latter toward African people was primary in his consideration.

He and his Court saw that in all States, North and South, laws restricted relations between the white and black races because it was widely believed that “a perpetual and impassable barrier was intended to be erected between the white and black race.” Clearly, this is in general an accurate assessment of 17^th and 18^th century colonial law.

The Court also explored whether the Declaration of Independence proposition that “all men are created equal” altered the legal and social status of black people in America. Taney argued that if understood in its proper historical context where blacks and whites occupied different legal and social spheres, “it is too clear that black people were not intended to be included and formed no part of the people who framed and adopted this Declaration” in 1789.

It was clear then as it is now, that the Declaration of Independence stood only for the proposition that the American colonists, as Englishmen, had the same rights to self-determination and self-government as their British kinsmen. The Founders of course provided for future amendments to their work, but Taney and his Court were considering this legal question in 1857.

Taney’s Court also investigated whether the Constitution itself had changed the status of black people so as to make them part of the American political and legal community. Taney noted that as the Preamble declared that the United States was formed “by the people” – which was those who were members of the different political communities in the several States forming the United States. Taney concluded that as most States, North and South, had long distinguished between blacks and whites in terms of social and legal rights, and the Constitution itself implicitly distinguishing between the races in its Migration and Importation clause (permitting the abolition of the slave trade after 1808) and the Fugitive Slaves clause, black people were simply not intended as part of “the people” described in the Constitution.

As Taney reviewed federal statutes to further divine the Founders’ minds in 1789 and what they considered “the people of the United States,” he found two federal laws passed within a few years of ratification. One was the first naturalization law of 1790, which provided that only “free, white persons” could become citizens and therefore this was the political community. The other was the first militia law of 1792, which required the enrollment of every “free, able-bodied white male citizen.”

Though one could contest Chief Justice Taney’s interpretations at that time, eminent historian Carl Brent Swisher wrote in his well-respected biography of Taney that his decision was based upon an “accurate portrayal of relations between the two races in communities where both lived in considerable numbers” at the time it was written.

Thus, investigating this important question in 1857, Chief Justice Taney concluded that people of African descent were not citizens of the United States, and therefore the Dred Scott case did not fall under federal jurisdiction. To rule otherwise, Taney warned, “would require that the Court give to the words of the Constitution more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted.”

Such a “liberal construction” would exceed the Supreme Court’s authority.

When the Articles of Confederation were put to the States for ratification in November, 1776, the preparatory debates revealed very strong warnings of sectionalism. These clear and distinct divisions eventually produced threats of New England secession in 1814, economic fissures by the 1820s, talk of Southern secession by 1850, and eventually an all-out shooting-war in 1861 which ended the experiment in free government.

The South Delivered Up to the Care of the North

“The Congress debated the Articles throughout the summer of 1776. There were three main arguments. One was on whether each colony should have a single vote, and issue of large versus small States. The second was States’ rights, whether the confederation had authority to limit territorial expansion of individual States. Third was the method of apportioning taxation. The North wanted to tax according to total population. The South was opposed to taxing slaves.

The latter issue began one of the enduring sectional debates of the first American century. Were slaves part of the general population? Or were they property? The South held for property and Rutledge of South Carolina said that if ownership of slaves was to be taxed, then so should the ownership of the Northern ships that carried the slaves.

There were several strictly sectional votes on the subject with the bloc of seven Northern States lined up against the six-State Southern bloc. It was finally compromised that taxes would be apportioned according to the private ownership of land and the improvements thereon.

In November 1776 the Articles were sent to the States for ratification. The hottest opposition came from the Southern States (with the exception of Virginia) . . . The reaction of William Henry Drayton, chief justice of South Carolina, was typical of the eighteenth-century South. Drayton felt the Articles gave too much power to the central government and States’ rights would be run over roughshod. He observed that there was a natural North-South division among the States, arising “from the nature of the climate, soil and produce.”

He felt the South’s opportunities for growth would be crippled by the Articles because “the honor, interest and sovereignty of the South, are in effect delivered up to the care of the North.”

(The Natural Superiority of Southern Politicians, David Leon Chandler, Doubleday and Company, 1977, pg. 74)