The New England Secession Tradition: Part II

By Donald Livingston

This quarter, we present the second installment of Professor Livingston's three-part series discussing the roots of a tradition strongly present in New England from the outset – the drive for independence and, if it came to it, secession. Readers can find Part I in the Spring 2007 issue of Vermont Commons, or on the web.

From the ratification of the Constitution in 1789 up to 1860, secession was openly considered throughout the Union as an option available to an American state. The first section to mount a serious secession movement was New England, from 1804 to1814. The public knows little about this movement, and the few historians who have written about it have viewed it with some embarrassment as an unpatriotic act.

The reason, of course, is that post-Lincolnian historiography views the Union as “indivisible.” Once a state enters the Union, there is no exit. But leaving aside whether this is true today, it most certainly was not the pre-Lincolnian conception of the Union. The New England secession movement, involving as it did distinguished leaders of the Federalist Party as well as Founding Fathers, is strong evidence that the Union was not thought of as indivisible.

The first work on the Constitution was St. George Tucker's Blackstone's Commentaries, With Notes of Reference to the Constitution and Laws of the Federal Government of the United States, published in 1803, only four years after the Constitution was ratified. It makes clear that since the states were sovereign prior to forming the Union, and freely entered it, they may, if they chose, freely leave it. The next work on the Constitution was A View of the Constitution (1825) by William Rawle, a friend of George Washington and head of the Pennsylvania bar. Rawle was a Federalist, the same party that presided over the New England secession movement 10 years before its publication. In it, Rawle says: AThe secession of a state from the Union depends on the will of the people of such state,” and he lays out the legal steps a state must satisfy to secede. Rawle's book was enthusiastically reviewed by Boston's prestigious North American Review and declared a “safe guide” to the Constitution. It was used as a text on the Constitution at West Point from 1825 to 1840.

Jeffersonian principles

The theory of the Constitution that legitimates secession was first articulated by Thomas Jefferson in the Kentucky Resolutions (1798, 1799), and by James Madison in the Virginia Resolutions (1798) and the Virginia Report (1799). These came to be known as “the principles of ‘98.”

The Constitution, Jefferson argued, is a compact between sovereign states to create a central government endowed with only enumerated powers (mainly defense, regulation of commerce, and foreign treaties). To delegate power is not to renounce sovereignty. Consequently a state, being sovereign, can interpose its authority to protect its citizens from an unconstitutional act of the central government by nullifying it. Jefferson, in the 1799 Kentucky Resolutions, was the first to introduce state nullification into Constitutional discourse. Should a state nullify a federal law as unconstitutional, the central government could respond by repealing the legislation. If it did not, and if three fourths of the other states concurred with the objecting state, the Constitution would be amended and the legislation would, by the highest authority, be deemed unconstitutional. If the other states did not concur, three possibilities would remain: (1) the objecting state could defer to her sister states and repeal the nullification; (2) the other states could decide to tolerate the nullification in that state (the “notwithstanding” clause of the Canadian Constitution allows any Province to nullify federal laws in that Province in the area of civil rights); and (3) if neither of those alternatives was acceptable to the objecting state, it must leave the Union. A state can legitimately leave the Union because it freely entered it as a pre-existing sovereign state. This was understood at the time of ratification, and New York, Rhode Island, and Virginia wrote in their ordinances of ratification the right to withdraw the powers they had delegated to the central government and withdraw from the Union.

The compact theory proved ubiquitous and did not receive a serious challenge until the 1830s with Joseph Story's Commentaries on the Constitution of the United States (1833). Even so, it remained the dominant view up to 1860. The central idea behind the theory was that the people of the several states, as corporate entities, had original rights (including sovereignty) that could be enforced by state nullification, and if need be, by secession. Jefferson and Madison both invoked the compact theory to nullify the Alien and Sedition Acts of the Adams administration. And it is a great irony that New Englanders would use the Jeffersonian “principles of 98" in the first, most sustained, and thoughtful implementation of those principles against what were perceived to be the tyrannical policies of the Jefferson and Madison administrations.

New England Takes Exception

This New England use of the compact theory began when Jefferson pushed through the 1803 Louisiana Purchase treaty, which more than doubled the size of the Union. New Englanders were a commercial people whose destiny was tied to the sea. They favored patronage from the central government to regulate and subsidize the commerce of a thickly populated and prosperous urban eastern seaboard. The South, however, was agricultural and favored expansion westward. The Massachusetts Legislature declared: “If the President and the Senate may purchase land, and Congress may plant States in Louisiana, they may with equal right establish them on the North West Coast, or in South-America. It may be questioned hereafter, whether after this formation of new States, the adherence of the old ones which dissented from the measure, is the result of obligation or expediency.”

The vast Louisiana Purchase would depopulate New England; new states would be introduced that would strengthen the Southern agrarian interest; and New England would lose its rightful place in the Union. Nor did this have to happen, since many held, quite plausibly, that the Louisiana Purchase was unconstitutional. The Constitution makes no provision for acquiring new territory (other than the entrance of Canada). New territory could be justly acquired only through a constitutional amendment. Failure to meet this constitutional requirement was grounds for secession.

To the charge that these demands exhibited an unpatriotic and a selfish sectional attitude on the part of New Englanders, three things need to be said:

(1) There was no “nation-state” about which one could be unpatriotic. The nation-state first appeared with the French Revolution. America at this time was an inchoate federation of states, each of which had its own “nationality.” Tocqueville could write in the 1830s that in forming a Union, the states “have not forfeited their nationality, nor have they been reduced to the condition of one and the same people. If one of the states chooses to withdraw from the compact, it would be difficult to disprove its right of doing so” (my italics).
(2) New England, at this time, was nearly two centuries old, and had developed a strong national identity, as a contemporary Fisher Ames wrote: “Of all colonies that ever were founded, the largest, the most assimilated, and to use the modern jargon, nationalized is New England.” (My italics.) New England formed a federation as early as 1643, and coined its own money. A contemporary poem well expresses the nationalist sentiment: “Amy Kittredge is my name/ Salem is my dwelling place/ New England is my nashun [sic]/ And Christ is my salvation.”
(3) New Englanders were not so much interested in dissolving the Union over the Louisiana Purchase as they were in opposing the Union's expansion. Governor Strong of Massachusetts in 1813 gave a speech to the Legislature against expansion. And Harrison Otis, chair of the House committee responding on its behalf, agreed with the governor, insisting that “the extension of territorial limits was never contemplated by the framers of the Constitution.”

The acquisition of the vast Louisiana Territory, without allowing the people of the several states to vote on a constitutional amendment, endangered the decentralist republican experiment of the Revolution, and opened the path to a consolidated empire. The only check to this imperial ambition seemed to be secession. As Timothy Pickering put it in 1810: “I cannot think . . . that a separation at this time would be an evil; on the contrary, I believe an immediate separation would be a real blessing to the ‘good old thirteen states,' as John Randolph once called them.”

Republicanism required a smaller scale and cultural homogeneity. As James Lowell Jr. explained it, republican self government requires that “the people should be less extended, and more enlightened, and that there should be a similarity in their manners, habits, and pursuits.” In this vision, the continent would be divided into a number of federations, each with its own distinct way of life, roughly in the way that South America would develop.

Instead, America became the consolidated empire Lowell and other New Englanders warned against. A centralized empire stretching to the Pacific was by no means inevitable, and many at the time did not think it was desirable.
It is often said against secession that it is disruptive because it suddenly creates new majorities and new minorities. But exactly the same is true of expansion. The addition of Louisiana and Florida threatened powerful and legitimate interests, and upset the balance of power in the Senate. Moreover, like the Louisiana Purchase, these new states were brought in by a mere majority vote in Congress, without a constitutional amendment, provoking the bitter denunciation of Josiah Quincy of Massachusetts in a speech to the House of Representatives in 1811. The creation of the State of Louisiana without a constitutional amendment, he said, “is virtually a dissolution of this Union; that it will free the States from their moral obligation; and, as it will be the right of all, so it will be the duty of some, definitely to prepare for a separation: amicably if they can, violently if they must.”

‘The Yoke of Bonaparte'

Talk of secession over the Louisiana Purchase and what it intimated was largely the province of political elites, and did not generate a mass movement. However, the Embargo Act of 1808 and the War of 1812 did spark a mass movement for state nullification and secession.

The Embargo forbade foreign trade and allowed seizure of goods on mere suspicion if intended for export, and authorized use of army and naval power to enforce it. Massachusetts owned more than a third of U.S. tonnage, and controlled most shipbuilding and cod fishing. Its highly profitable carrying trade was devastated, and the farmers in the western part of New England sat on a glut of produce that could not be shipped out. Workers and sailors were unemployed. Invoking the Jeffersonian and Madisonian “principles of ‘98,” the Massachusetts Legislature flatly nullified the Embargo, declaring it “unjust, oppressive, and unconstitutional, and not legally binding on the citizens of this state,” and it enjoined other states to support “such amendments to the Constitution of the United States, as shall be judged necessary . . . to give the commercial states their fair and just consideration in the government of the union.”

Encouraged by the government, the people openly flouted the Embargo. John Quincy Adams reported more than 40 cases in which juries would not convict. The New England towns sent remonstrances to Congress and, receiving no reply, openly called for secession. They used the same language Jefferson and Madison had employed in formulating the compact theory of the Constitution. Newburyport, Massachusetts, may be taken as an instance. The Constitution, the town said, is a compact between the states: “Whenever its provisions are violated, or its original principles departed from by a majority of the states or of their people, it is no longer an effective instrument, but that any state is at liberty by the spirit of the contract to withdraw from the union.”
Napoleon sold the Louisiana Territory to the Americans because he needed money and wished to check British expansion. The administrations of Jefferson and Madison were sympathetic to the French. New Englanders were sympathetic to the British. Upon reading Madison's war speech, Governor Caleb Strong of Massachusetts called a fast to protest a war Aagainst the nation from which we are descended, and which for many generations has been the bulwark of the religion we profess.”

Many of the clergy called for nullifying the war. Elijah Parish of Newburyport urged New England states to “proclaim an honourable neutrality; let the southern Heroes fight their own battles… Break those chains, under which you have sullenly murmured . . . and once more breathe that free, commercial air of New England which your fathers always enjoyed… Protest? Did I say, protest? Forbid this war to proceed in New-England.” John Sylvester Gardiner, a major Boston Episcopal cleric, declared: either “cut the connexion” with the South or amend the Constitution; “This portion of the disunited states should take care of itself… The time has come when common prudence is pusillanimity, and moderation has ceased to be a virtue.”

Thomas Dawes wrote to Noah Webster praying that God would “save us from the yoke of Bonaparte and Virginia.” A letter published in a number of newspapers acknowledged “Athat a separation has been suggested in the northern states is too true. The northern and eastern states must have the privilege of navigation, OR PERISH… The New England people . . . wish for peace, and court it . . . but when they are once roused, they are irresistible . . . and if they once declare themselves a separate nation, the union will be broken never to be repaired.” President Timothy Dwight of Yale College preached on the text: “Come out therefore from among them and be ye separate.” The Boston Gazette declared: “It is better to suffer the AMPUTATION of a Limb, than to lose the WHOLE BODY. We must prepare for the operation.”

“I would not be deluded by a word,” said Timothy Pickering, “To my ears there is no magic in the sound of Union.”

A Region Estranged

The war and the Draconian Embargo Act of 1813, which prevented the coasting trade (and made smuggling more difficult) was the last straw. The Middlesex County Federalist declared: “Instead of wishing to withdraw from the Union, we fear that the Government has withdrawn from us.” And the Essex County Federalists thought their people “more injured, oppressed and endangered by the doings of our own National Government, than they were when in 1775 we took arms to protect and defend ourselves against the measures of the government of Great Britain.” Senator Blake of Worcester gave a speech praising Great Britain in its struggle with Revolutionary France, and said that if the U.S. Constitution permitted embargoes, he preferred the British Constitution “monarchy and all.” New Englanders refused to send troops to support the war with Britain and demanded that a portion of the revenue sent to Washington be remitted to provide for their own defense.

State nullification and secession had been the talk of elites in 1804, but from 1808 to 1814 it had become the subject of New England Town meetings. This popular movement forced the Federalist leaders to call for a Convention of New England states to meet at Hartford, Connecticut, on the model of the Philadelphia Convention, namely to reconsider the relation of the states to the Union.

It should be remembered that the Philadelphia Convention proposed a dissolution of the Union, writing in Article VII of the proposed Constitution that only nine states were necessary to form a new Union of states. Should only nine ratify, the other four would be free to continue under the Articles of Confederation or to form whatever association they saw fit.

President Thomas Jefferson would later acknowledge, “and with some respect and admiration” point out, that this Constitutional crisis was brought on by the people themselves, and not by their political elites: “I felt the foundation of the government shaken under my feet by the New England townships.”

What course would this new Constitutional Convention at Hartford take? And what is its legacy and salience for us today?

(To be continued in the third and final part in the Fall 2007 issue.)