Sultans of the Legislature

We don’t have great legislators anymore. The era of great men in our national legislature is gone, never to be revived and almost barely remembered. John C. Calhoun, Daniel Webster and Henry Clay are three of the most important legislators our nation has ever had, or will ever have again. While their ambition led them to strive for the President’s office, none achieved this end. Instead, they each spent their careers in the Senate working to improve upon what the Founders had given them. A connection to the Founding generation, many Americans looked to these men for guidance; and their leadership in the Senate has been matched by no one. While they all had monumental foibles (Calhoun was a secessionist, and Clay was a slave holder to be specific) they all contributed greatly to the course of the 19th century. And while ultimately their actions indirectly lead to our Civil War, they also helped preserve the union throughout the course of their lives.

While we have had men and women in the Legislature, none can match the fame and notoriety Calhoun, Clay and Webster achieved in the middle of the 19th century. And in particular, none of this Nation’s previous great Legislators remained in the the Legislature. Madison eventually succeeded Jefferson in the Presidency, and he is the only other great legislator worth mentioning in the 19th century. In the 20th century we had LBJ and Gerald Ford, both of whom eventually went on to serve lack luster terms as President of the United States. If nothing else, the three Sultans of the Senate were saved from a the failures suffered by Madison, Johnson and Ford in the oval office. While both Clay and Calhoun found themselves in the Vice Presidency and in other various cabinet positions, neither had a realistic chance of winning the Presidency. Clay was the great compromiser, and for good or ill he helped save the Union from a civil war on numerous occasions ending with the Compromise of 1850. Webster, known as “Godlike Dan” eventually became known as “Black Dan” when he saw the prudence in supporting Clay’s Compromise of 1850. And while Calhoun helped advance the policy of secession in the South, he was a pivotal player in the United States Senate.

A close study of the period in American History from 1820-1856 cannot be fully understood without examining the lives and careers of John C. Calhoun, Henry Clay and Daniel Webster. It is undoubted in an age dominated by the Presidency that we will ever again see legislators that can match the legacy these three men left behind.

The Nature of Government and of the United States as Affecting the Right to Secession

The question of Secession was raised immediately after the first Southern states began to leave the Union. President Abraham Lincoln ordered Federal troops to invade the South in hopes of unifying the nation. Following the war, Orestes Brownson wrote on the issue of whether or not Secession was in fact legal or constitutional. Secession is not constitutional, as Orestes Brownson argues in the American Republic, on the grounds that government itself is indissoluble.

Orestes Brownson divides his argument against Secession into four major themes: the origins of government, the constitution of government, the United States, and the United States Constitution. These four main arguments supply the basis upon which Brownson argues that secession is unconstitutional. In order to understand why secession is unconstitutional, it is necessary to examine Brownson’s four main arguments first.

The circumstances surrounding the secession of the southern states in 1860 stem from a long argument concerning which was superior, the state or federal government. The necessity of government and man’s place in society is self evident according to Brownson who argues, “Hence as man is nowhere found out of society, so nowhere is society found without government.”[1] As such, the question over whether or not man belongs in society and whether or not society requires government is put to rest by Brownson. From the ancient Greek philosophers Plato, Xenophon and Aristotle to the Enlightenment philosophers Thomas Hobbes, John Locke and Jean-Jacque Rousseau the question of the origins of society and government have been argued.

Yet these philosophers do agree on at least a handful of axioms of government and man’s loyalty to government. Brownson sums up the responsibilities of government by stating:

“[Government] defines and protects the right of property, creates and maintains a medium in which religion can exert her supernatural energy, promotes learning, fosters science and art, advances civilization, and contributes as a powerful means to the fulfillment by man of the Divine purpose in his existence.”[2]

These axioms are agreed upon by most political philosophers throughout time, although the specific aim of government may be different. But as long as these are maintained and protected, the individual person in society is obligated to remain loyal to the society and government. As Thomas Hobbes might agree, a duly instituted regime has the authority to do as it pleases. However, if it fails to protect the people it is no longer legitimate. Tyranny is never legitimate. We are required to remain loyal as long as our liberty is secure.[3]

Yet, while the majority of political philosophy agrees that there are certain responsibilities of both society and the citizen, the origins of government differs drastically from one philosopher to the next. The six origins of government according to Brownson include:

Government originates in the right of the father to govern his child.

It originates in convention, and is a social compact.

It originates in the people, who, collectively taken, are sovereign.

Government springs from the spontaneous development of nature.

It derives its right from the immediate and express appointment of God.

From God through the Pope, or visible head of the spiritual society

From God through the people

From God through the natural law[4]

The first of these origins is taken directly from two sources, the first is Aristotle and the second is Sir Robert Filmer. Aristotle’s argument, stemming from book one of the Politics, demonstrates that the origins of society and government come from the family. Aristotle argues that because people wish to mimic the gods, they favor monarchy as their choice of government with the family ruled by the father, the village ruled by the eldest male, and the city ruled by the king. While Aristotle admits that other forms of government do exist, and may in fact be more desirable than monarchy, people will still naturally yearn for monarchy. This argument is also connected to Divine Right of Kings set forth most completely by Sir Robert Filmer.  Sir Robert Filmer, in his Patriarcha, makes an argument in favor of Divine Right monarchy stemming first from Adam’s sovereignty over his children. Brownson, however, disagrees both with Aristotle and Filmer by rejecting monarchy in favor for republican government. . “The distinctive mark of republicanism is the substitution of the state for the personal chief, and public authority for personal or private right.”[5] Governments based on the principle of fatherhood are despotic. Republicanism is the true government because the rulers rule for and on behalf of the state. Rulers who are proprietors of the land are not rulers. Aristotle is most famous for putting forth the argument that government stems from the family, is critiqued with the moderns who reject paternal rule. One must rule for the sake of the commonwealth.

Following the classical understanding, Brownson critiques the modern understanding of government as being a social compact. “The state, as defined by the elder Adams, is held to be a voluntary association of individuals. Individuals create civil society, and may uncreate it whenever they judge it advisable.” Brownson rejects the concept that society can be established and abolished at will and calls America out, “Prior to the Southern Rebellion, nearly every American asserted with Lafayette, ‘the sacred right of insurrection’ or revolution…”[6] However, sovereignty cannot be relinquished, neither by a state/nation nor by a person. The Enlightenment holds that people are sovereign in a state of nature and that they give up part of that sovereignty when they enter society. “But individuals cannot give up what they have not, and no individual has in himself the right to govern another.” Modern political philosophers suppose a state of nature, which supposes a social contract. Brownson rejects the social contract because man cannot willingly forfeit his rights and because man is bound into society. Furthermore, men in nature fail to be able to acquire the knowledge necessary to create a civil society.

While there are still four other origins of government according to political philosophy, the first two are the most important for the United States. The United States was born out of the modern understanding of government, the only enlightened government. The United States, as a result, was an independent nation and a republic before it declared independence from England. Brownson’s arguments against the ancient and modern assertion of the origins of government indicate that the United States as a society had to exist prior to the revolution. However, the question is not whether there is a United States but whether it formed as a collection of sovereign, independent nations or whether it formed as a single whole. The same principle applies to the society as it does to the individual: a sovereign society cannot give up its sovereignty. If this is the case, then the several states never gave up their sovereignty and the United States as a single entity never existed. Brownson argues against the individual sovereignty of the states by stating, “The colonies were all erected and endowed with their rights and powers by one and the same national authority, and the colonist were subjects of one and the same national sovereign.”[7]However, if the United States exists as a single entity it would be impossible for the states to be independently sovereign.[8] Thus, if the United States is a society, then the states would be inferior to the federal government. In this instance, the states would not be capable of secession from the Union because they are not sovereign nations in themselves.

The American Constitution, therefore, is the only element left in determining whether or not the southern states had a right to secession in 1861.   As discussed in his chapter on the origins of constitutions, a constitution is not something created, as man is a creature not a creator. Under the auspices of this same argument, the U.S. Constitution is understood by Brownson as, “Two-fold, written and unwritten, the constitution of the people and the constitution of the government.”[9] This unwritten constitution is what Brownson refers to as the Providential constitution. To Brownson, this Providential constitution is not something created but rather comes into existence along side the nation.[10] The American Providential constitution is unique to the United States and never seen elsewhere in the world. Our Constitution is made up of both sovereign and dependent states, and is neither a confederacy nor centralized state.[11] We are still yet one people divided into states but still united. “The Union and the States were born together, are inseparable in their constitution…”[12] The United States Constitution declares the American people as, “We the people of the United States…” And as such, the American people are united together rather than a loose confederacy of sovereign nations with mutual interests.[13]

The origins of the American system and the nature of the American Constitution are seen most clearly through Brownson’s understanding of territorial democracy. The thirteen original colonies that formed together as the United States of America did not exist under their own authority. They were created by the authority of the King of England and joined together as United Colonies under the authority of the Continental Congress. The various states that have come into the Union since the creation of the United States Constitution can only do so under the authority of the United States Congress.[14] The individuals living within a given territory are granted democracy within their given territory, but that territory does not have sovereign authority. Rather, it is subject totally to the United States Congress. The people living in the territory, “are subjects of the United States, without any political rights whatever, and, though a part of the population, are no part of the sovereign people of the United States.”[15] Or more simply put, are not citizens. The people of the territory are given the authority by the United States to, “meet in convention, draw up and adopt a constitution declaring or assuming them to be a State, elect State officers, senators, and representatives in the State legislature, and representatives and senators in Congress, but they are not yet a state.”[16]

Thus, when a territory becomes a State and the people of that territory go from being subjects to citizens of the United States that State only exists by the will and authority of the United States Congress. None of the States exist by themselves with sovereign authority. Brownson demonstrates this time and again as showing that society and government are not created and that the United States is the sovereign and not the individual states. As a result, Secession of the various states in 1861 could not be legally permitted as they had no authority independent of the United States to secede from the Union. From the time the first colonies were settled to when the territories became states, the individual states depended upon an outside authority for their creation. As such, outside the Union they are not states.

[1] Brownson, Orestes. The American Republic. ( Delaware: Intercollegiate Studies Institute, 2003) pg. 12

[2] Ibid. 13

[3] “But it is never lawful to resist the rightful sovereign, for it can never be right to resist right, and the rightful sovereign is the constitutional exercise of his power can never be said to abuse it.” Ibid. 17

[4] Ibid 19-20

[5] Ibid. 23

[6] Ibid. 34

[7] Ibid. 136

[8] “If the several States of the Union were severally sovereign states when they met in the convention…” Ibid. 127

[9] Ibid. 141

[10] Ibid. 141, “It is Providential, not made by the nation, but born with it.”

[11] Ibid 141, “The unwritten or Providential constitution of the United States is peculiar…”

[12] Ibid 144

[13] Ibid. 145 “united, not confederate States.”

[14] Ibid. 145 “Even then it was felt that the organization and constitution of a State in the Union could be regularly effected only by the permission of the Congress; and no Territory can, it is well know, regularly organize itself as a State…”

[15] Ibid. 146

[16] Ibid. 146

A look at Book I of John Locke’s First Treatise of Government

Quotes taken from Two Treatises of Government edited by Peter Laslett published by the Cambridge Texts in History and Political Thought.

I would like to think Ashok for reading through the First Treatise with me.

John Locke begins the first chapter, “Slavery is so vile and miserable an Estate of Man, and so directly opposite to the generous Temper and Courage of our Nation; that tis hardly to be conceived, that an Englishman, much less a Gentleman, should plead for’t.” Locke starts his treatise with the theme of slavery, which according to him goes against the “temper and courage” of England. He claims astonishment that an English Lord (Englishman…much less a Gentleman) would write such a work. This individual that Locke is arguing against is Sir Robert Filmer, the writer of the work Patriarcha or The Natural Power of Kings. Locke uses Filmer’s work to refute the belief in Divine Right Monarchy. He calls Filmer’s work a “Rope of Sand” and a “Chain for all Mankind” whose business it is to “raise a Dust” that would “blind the People” but cannot bind those “who have their eyes open.” This is a very interesting argument against the work, Locke has set out on the stance that Divine Right Monarchy really means slavery and that Filmer’s treatise is only meant to blind the people into bondage.

Locke makes reference that Filmer’s work was long before his own First Treatise, and the editor notes that the Patriarcha was written in 1637-8 but not published until 1680. Filmer is called the “Champion of absolute Power” and anyone who reads his treatise cannot but think himself no longer a freeman. When published, Locke argues that Filmer’s treatise removed all liberty from the world. Furthermore, it intended to make itself the model of all politics for the future. However, Locke argues that the treatise by Filmer can be summed in two lines:

1. That all Government is absolute Monarchy

2. That no Man is born Free

These are two very dangerous beliefs for Locke, the champion of consent of the governed.

Authors of the generation in which Locke is writing, and the previous generations are said by him to have “flatter[ed] princes with an Opinion” this opinion being that despite the laws which constituted their authority, and are to govern under, they have absolute power under the title of Divine Right. They are not restrained by “Oaths and Promises” because their authority does not come from those, whom they govern, or from the laws but rather from God Himself. By making such an argument, these authors have stripped man of his natural rights and freedoms and made them subject to tyranny and oppression. Even more, Locke argues that they have “unsettled the Titles and shaken the Thrones of Princes.” Why is this? Because if there is such a thing as Divine Right monarchy, than all except them monarch are slaves to the monarch. Further, as Locke will argue, if Adam was made the first monarch then only one Prince in the world living has claim to that title passed down from Adam. All persons with the exception of that single heir have been made slaves and all government has been destroyed because of these Divine Right authors. If all are slaves then there cannot be politics and if there cannot be politics there cannot be government.

Yet, Locke argues that if we have to accept this argument, that we are all born Slaves, then it does not end. “Life and Thraldom” continue together until the former ends and we are released from the latter. But this notion of Divine Right monarchy, Locke claims, is a new idea. “Scripture or Reason I am sure doe not any where say so notwithstanding the noise of divine right, as if Divine Authority hath subjected us to the unlimited Will of another.” The notion that we are all slaves to a single human, a fallible person, is not present in our own human reason or in the Divine Scripture, where one would expect to find Divine Right authority promulgated first. Natural freedom and equality are the older opinions of mankind, not absolute Authority of a single man. Locke even argues that Filmer assents to this belief, that his opinion is the junior.

At this Locke leaves the argument of the age of this argument for historians to debate, but wishes to argue the point against Filmer who he believes was allowed to carry the opinion the furthest.


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