(For forty years from the ratification of the Constitution...)
For forty years from the ratification of the Constitution, it was well understood that the American States were united in a political compact in which certain of their powers had been entrusted to a common agent, while their essential sovereignty and its attendant rights were reserved to themselves. One of these rights was that of secession. It was not until 1830 that the theory of a permanently consolidated nation from which withdrawal was unlawful first made an appearance in Joseph Story's Commentaries on the Constitution. Daniel Webster would rely heavily on Story's work in his debates in Congress with South Carolina Senators Robert Hayne and John C. Calhoun. Story and Webster denied that the Constitution was either "a compact between State governments" or that it had been "established by the people of the several States," asserting that it had instead been established by "the people of the United States in the aggregate." As such, the States were creatures of the Union rather than vice versa, rendering secession not only impossible, but treasonous. This book, written in 1840 by a Virginia lawyer who served as Secretary of the Navy in the Tyler Administration, and later re-issued in Philadelphia in 1863 and again in New York in 1868, is a brilliant response to the Story/Webster theory and also serves as a challenge to the modern Leviathan State which is modern America.
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Abel Parker Upshur was one of twelve children of Littleton Upshur and Ann (Parker) Upshur, and a descendant of Arthur Upshur who settled on the Eastern Shore of Virginia in the seventeenth century. He was born in Northampton County, Virginia. His father, a Federalist member of the Virginia legislature of 1809, voted against the resolutions thanking Jefferson for his services to the country and later served as a captain in the War of 1812.
Abel Upshur studied at the College of New Jersey (Princeton) until his expulsion as a participant in a student rebellion in 1807 and then continued his studies at Yale, but did not graduate.
After reading law in the office of William Wirt of Richmond, Upshur began practice in that city. In 1812-13 he was a member of the House of Delegates from his native county, and served again in that capacity, 1825-27. He was also a member of the Virginia constitutional convention of 1829-30, in which he was an opponent of the proposed democratic changes in the constitution. He denied the existence of any original principles of government, insisting instead that the interests and necessities of the people determined the principles of government (Proceedings and Debates, post, p. 69). He rejected the theory of "natural law, " maintaining that the only natural law was "the law of force the only rule of right" (Ibid. , p. 67).
From 1826 to 1841, he was a member of the supreme court of Virginia, and in politics he was associated with the extreme state-rights, proslavery group. In September 1841, Upshur was appointed secretary of the navy by President Tyler, and in 1843 he succeeded Webster as secretary of state. An ardent advocate of the annexation of Texas as vital to the security of the South, he reopened negotiations with that republic, but they were interrupted by his death in the explosion of a gun on board the battleship Princeton, and were completed by his successor, Calhoun.
A particularistic jurist and planter-philosopher of Tidewater Virginia, Upshur often expressed his views upon slavery, government, and banks. The South constituted, in his opinion, the only bulwark of conservatism in America against the rising tide of agrarianism, leveling democracy, and all the isms of the free North. Law, and not the principle of numerical majority, he held to be the basis of liberty--a juridical conception.
His pamphlet, A Brief Enquiry into the True Nature and Character of our Federal Government (1840), a review of Story's Commentaries, was regarded by his friends as a complete refutation of the nationalistic theory of the Constitution. It was reprinted in 1863 by Northern Democrats as a means of setting forth the political philosophy of the Confederacy (Adams, post, p. 77). In an address (1841) before the literary societies of the College of William and Mary upon "The True Theory of Government, " Upshur rejected almost in toto the natural rights philosophy, characterizing it as one that "overlooks all social obligations, denies the inheritable quality of property, unfrocks the priest, and laughs at the marriage tie" (Southern Literary Messenger, June 1856, p. 410).
Upshur was instrumental in negotiating the secret treaty that led to the 1845 annexation of Texas to the United States and played a key role in ensuring that Texas was admitted to the United States as a slave state. A supporter of banks, he opposed the requirement of specie as the basis of credit and also opposed laws which declared banks insolvent when unable to redeem their notes in specie. He furthermore urged the minimum regulation of banks, believing that the "general law of the land, the common law affords ample means of keeping them within proper limits" (Ibid. , p. 20).
(For forty years from the ratification of the Constitution...)
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Quotations:
"It is clear, " he wrote pessimistically, "that in this country Liberty is destined to perish a suicide. . And perish when she may, I am much deceived if her last entrenchment, her latest abiding place, will not be found in the slave holding states" ("Domestic Slavery, " Southern Literary Messenger, October 1839).
In a letter to his intimate friend, Judge Beverley Tucker, commenting upon Dorr's Rebellion, Upshur wrote: "This is the very madness of democracy, and a fine illustration of the workings of the majority principle" (Tyler, post, II, 198).
"A bank, " he wrote, "without a single dollar in specie, yet having good notes of others, equal to its own notes outstanding, and its other indebtedness, is perfectly solvent, and entitled to credit" (A Brief Enquiry into the True Basis of the Credit System, 1840, p. 11).
Upshur was married twice: first, to Elizabeth Dennis, and second, in 1826, to his cousin, Elizabeth Upshur. They had one daughter.
