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You may copy it, give it away or -re-use it under the terms of the Project Gutenberg License included -with this eBook or online at www.gutenberg.org/license - - -Title: Nullification, Secession Webster's Argument and the Kentucky and Virginia Resolutions - Considered in Reference to the Constitution and Historically - -Author: Caleb William Loring - -Release Date: December 20, 2012 [EBook #41673] - -Language: English - -Character set encoding: ISO-8859-1 - -*** START OF THIS PROJECT GUTENBERG EBOOK NULLIFICATION, SECESSION *** - - - - -Produced by David Edwards, Rosanna Murphy and the Online -Distributed Proofreading Team at http://www.pgdp.net (This -file was produced from images generously made available -by The Internet Archive) - - - - - - - - - - NULLIFICATION, SECESSION - WEBSTER'S ARGUMENT - - AND - - THE KENTUCKY AND VIRGINIA RESOLUTIONS - - CONSIDERED IN REFERENCE TO THE - CONSTITUTION AND HISTORICALLY - - - BY - - CALEB WILLIAM LORING - - - - - G. P. PUTNAM'S SONS - - NEW YORK - 27 WEST TWENTY-THIRD STREET - - LONDON - 24 BEDFORD STREET, STRAND - - The Knickerbocker Press - 1893 - - - - - COPYRIGHT, 1893 - BY - CALEB WILLIAM LORING - - - Electrotyped, Printed, and Bound by - The Knickerbocker Press, New York - G. P. PUTNAM'S SONS - - - - -PREFACE. - - -I was much shocked a few years ago, in reading a Life of Webster, by the -statement of its able and distinguished author that really Hayne had the -right of the argument in the renowned debate on nullification. In reply -I prepared a statement of Webster's argument. Besides what Webster had -so ably said, I found in the Constitution itself other proofs of the -nationality of our government, of the intent of those who made it to -establish a nation, of their full belief that they had done so, and -that, historically, there was no contention as to this. - -The vital question is whether a national union was established by the -States, or a confederacy of independent nations formed with the right of -each to decide upon the validity of the acts of the General Government -and leave it at its pleasure. - -The superiority in men and wealth that gave the North the victory did -not decide the right or wrong of secession: it may have shown its -impracticability; but if the right ever existed it remains to-day. - -There are many authors who have at great length discussed this matter on -the side of the South, but the case of the North, it seems to me, has -not been fully set forth. The idea appears to be creeping into history, -a recent fad of some Northern writers and commentators, that the -nationality of our government was a question from its inception, and -that the United States Judiciary and Congress by assumptions have -largely extended its powers. - -The nation, as Pallas Athene full grown and armed from the brain of -Zeus, sprang to life from the Constitution with the sovereign authority -necessary for its existence and the power to enforce its rule. In the -beginning there was no debate, no question of its nationality. The early -commentators on the Constitution (and Story wrote three volumes upon -that matter) did not even mention that there was a doubt of it. - -To those who so often quote the Kentucky resolutions, it will perhaps be -a matter of surprise to learn that their purport and existence were -forgotten from the time they were promulgated until South Carolina's -threat in 1830 of nullification. - -That Virginian of Virginians, Patrick Henry, who so strenuously opposed -his State's adoption of the Constitution, struck the keynote, when he -objected that it was "We, the people," and not "We, the States," that -made the government. Later, when convinced of the wisdom of the -adoption, and Virginia had shown by its resolutions its objections to -the Alien and Sedition laws, and discontent at the rule of John Adams -and the Federalists, he no less forcibly declared that Virginia _owed_ -an obedience to the laws of the United States. - -It will be new to many that the Virginia resolutions do not in the least -countenance the doctrine of secession and nullification: that the -resolutions and explanations of them by the Virginia Legislature testify -to an attachment and love of the Union, and a professed intent to -strengthen and perpetuate it, and are, as they declare, only a protest -against the assumption by the government of undelegated power. - -In the belief that the right and might both prevailed in our civil war, -and in full trust in that faith, these remarks are submitted to the -people of our whole country. - - CALEB WILLIAM LORING. - - - - -CONTENTS - - - CHAPTER I. - PAGE - WEBSTER AND HAYNE 1 - - Insistance of the South on the right of secession--Belief in this - of English and of some Northern writers--The doctrine of - Webster's speech on nullification approved throughout the country - except in South Carolina--Hayne's doctrine and speech--Webster's - reply to Hayne's attack on the Eastern States--Statement of - Webster's argument in reply to Hayne and Calhoun--Jackson's - vigorous opposition to nullification, and his proclamation. - - - CHAPTER II. - - THE NATIONALITY OF THE CONSTITUTION 24 - - The question is whether a national government or a confederacy of - nations was made by the adoption of the Constitution--The - doctrine of nullification and secession considered--The State - governments and the National government have limited powers--The - foundation of our government was necessarily a compact--The - compact was for a national government--The failure of the - government of the Confederacy of the revolution--The Constitution - had the sanction of the Confederacy, of the State government and - of the people--Preamble of Constitution declares its - perpetuity--Supremacy of the Constitution over State judiciaries - and laws--All really sovereign powers given to United - States--Restriction of State powers--Powers of States only - local--People of States or parts of States making war against the - United States guilty of treason--Originally States, like - counties, were suable by the Constitution--By amendments to the - Constitution the United States can assume any power over the - States--Other provisions giving the general government great - power over States--Restriction of States to prevent their making - resistance--Constitution established a government over - individuals not States--Authority of the judiciary. - - - CHAPTER III. - - THE CONSTITUTIONAL CONVENTION INTENDED NATIONALITY 51 - - Convention called to amend the articles of Confederacy--First - resolution passed: the government should be supreme and - national--The national plan offered by the Virginia delegation - preferred and considered--The New Jersey plan of a confederacy of - the States with coercive power to compel obedience--Hamilton's - plan--The Virginia plan again adopted. The United States adopted - as the title--Resolutions passed that there should be two - branches of the legislature, the first to be chosen by the - people--Long controversy as to representation in Senate, settled - by an equal representation of the States, the vote to be per - capita--This compromise of representation in Senate does not - affect the supremacy of the granted powers--Resolution of - Elbridge Gerry referring the plan of a _national_ government to - the committee of detail unanimously passed--Government called - national in many of the referred votes--Committee of detail - report votes passed; the preamble declaring the government to be - for posterity--Article against treason again debated and passed - unanimously--Constitution committed to committee of style and - arrangement--New draft considered at length, adopted, and signed - by delegates--Diversity of opinion as to durability, no - suggestion that a State had a right to leave the Union--Yates and - Lansing left convention because the Constitution made a national - government--Satisfaction with it of Southern States--Washington's - service--Franklin's happy speech at close--George Mason did not - sign, though efficient in making it--Constitution submitted by - State legislatures in each State to a convention of the - people--Its acceptance considered in long sessions of the - conventions held in the several States--Everywhere announced as a - national government--Ratified as national in Massachusetts and - Virginia--Unanimous opinion of convention of New York of its - perpetuity--Amendments of Constitution, passed to quiet - apprehension as to its excessive powers--Early laws show a - liberal construction of the powers of the government--The right - of individuals to sue States taken away, but jurisdiction over - States and disputes between States retained--Insurrection in - Pennsylvania against excise law suppressed--Opinion of Washington - as to power of government--Alien and sedition laws passed. - - - CHAPTER IV. - - KENTUCKY AND VIRGINIA RESOLUTIONS 88 - - Jefferson reputed author of Kentucky resolutions--Slight notice - taken of Kentucky resolutions--Resolutions are merely the opinion - of the legislature passing them--Kentucky resolutions declare the - States being united by compact, each has a right to pass on the - validity of the laws and doings of government made by the - compact--The compact of the Constitution is to leave to the - United States judiciary the determination of the validity of all - laws and cases. Right of contracting powers to compel - performance by a party refusing to keep its contract--Further - absurdity of Kentucky resolutions in denying the validity of all - punitive laws passed by Congress except for offences mentioned in - the Constitution--Virginia's resolutions fundamentally - different--Madison never sanctioned nullification--Resolutions of - Virginia--They are: in case of usurpation it is the duty of the - States, not a State, to interpose to redress the evil--This not - an assertion that States could refuse obedience to the - laws--Opposing declarations of other States--Kentucky replied to - the resolutions of other States by protest, not by - nullification--Virginia's explanation to counter-resolutions of - the other States drawn by Madison--The reply conciliatory--It - affirms the Constitution is the compact to which the States are a - party--It defines States as meaning people of the States--The - right to resist in the last resort is a claim of right of - revolution--The right to interpose exists only in usurpation of - powers and for the sole purpose of arresting the - usurpation--Admitted the judiciary is to decide on all questions - submitted to it--The assumption of undelegated powers stated to - be dangerous to liberty--Alien and sedition laws declared to be - unconstitutional--These resolutions are merely opinions--No - objection to sending them to other States--May possibly influence - opinion even of the judiciary--The request of Virginia to other - States to join her in constitutional ways to maintain their - rights not objectionable--Resolutions asserted to be strongest - proof of the attachment of Virginia to the Constitution and - Union--The resolutions, perhaps partisan, but do not assert the - doctrine of nullification--Resolutions before the explanation - alarmed Washington and Henry who vigorously attacked - them--Henry's declaration that Virginia owed the same obedience - to United States as one of her counties did to her. - - - CHAPTER V. - - SUPREMACY OF CONSTITUTION MAINTAINED 116 - - Doctrines of Jefferson's inaugural--Serious conflict in the - Gideon Olmstead case--Jefferson signed an act authorizing the use - of the army and navy against a State--The United States - jurisdiction enforced against Pennsylvania--Unanimous objection - of legislature of Virginia to taking from the Supreme Court its - exclusive jurisdiction in cases where States were - concerned--Purchase of Louisiana by Jefferson--Josiah Quincy's - speech a threat of rebellion, not a claim of right of - secession--Sayings and acts of Jefferson opposed to nullification - and secession--Jefferson's direction that the _Federalist_ should - be the permanent text-book of the University of Virginia--The - submission of New England to the embargo--The Hartford convention - passed no resolves asserting State rights; it proposed amendments - to the Constitution--Supremacy of the government always - maintained. - - - CHAPTER VI. - - CALHOUN, JACKSON, AND NATIONAL GOVERNMENT 134 - - Calhoun in the beginning a leader and advocate of national views - in the House of Representatives--Sectional division of States on - the question of slavery--Missouri compromise--Calhoun's change of - opinion--The nullification of South Carolina--Calhoun's - "inexorable logic" considered--The doctrine of nullification not - asserted from time of the Kentucky resolves until revived by - South Carolina--Jackson's proclamation--His firmness--His - experience in political matters as lawyer, legislator, and - judge--Congress passed a force bill to collect duties--Act - reducing duties also passed--Strong resolutions of legislatures - of the Southern States against nullification--Supremacy of the - government maintained by judges appointed by all the political - parties in every case and over all the States--Judgments of State - courts constantly reversed until the time of the civil war--It is - Congress, not the court, that makes the laws--Judge - Story--History after the threatened nullification of South - Carolina--Legislation and decision of Supreme Court extending - slavery--The South's preparation for disruption of the - Union--Virginia opposed the government without passing an - ordinance of secession--Military academies of Southern - States--The government stronger than Hamilton thought--The - exceeding excellence of the Constitution--New vigor of South - Carolina as a free State. - - - - -NULLIFICATION, SECESSION, WEBSTER. - - - - -CHAPTER I. - -WEBSTER AND HAYNE. - - -In the renewed friendly relations at the dinner-table and in the -lecture-room, the North of late has had the pleasure of listening to the -speeches and discourses of Southern orators, soldiers, and politicians, -who, while asserting their loyalty to the Union, claim that that Union -was a compact between independent sovereign States, from which each of -these independent sovereign States had an undoubted right to secede; our -Southern brethren, beaten in the trial of arms, persistently insist that -they fought for the right. - -Besides Jefferson Davis' _History of the Confederacy_, as bitter to some -of its generals as to the North, the Vice-President of that government, -of high repute for ability and reasoning powers, Alexander H. Stephens, -published two ponderous volumes to prove not only that the South could -secede, but that it was obligatory, if it wished to retain its equality -and freedom, alleging as the principal reason the wrongful infringement -of the right of the South to take its "peculiar property," slaves, into -all the territories of the Union, the common property of all the States. -Recently was published Semmes' _Career of the Sumter and Alabama_, -abusive of the Yankee and of Northern friends like Buchanan, insisting -on the justice and necessity of secession, and asserting the tyranny and -mean oppression of the North. We have had also a republication of -Governor Tazewell's _Review of President Jackson's Proclamation against -Nullification_; and generally the dedication of statues and decorating -of the graves of the soldiers of the Confederacy have been taken as -occasions to show the justice of the lost cause. - -It is to be hoped that few agree with General Early's declamation at -Winchester as to those of the South who changed their opinion as to -secession: "The Confederate who has deserted since the war is infinitely -worse than the one who deserted during the war." - -The same opinion as to the right of secession has been very generally -held by British politicians; and that opinion to a great extent -prevailed, and to-day prevails, in the English army and navy. Mr. John -Morley, in his life of Burke, in reference to Burke's speeches -denouncing the conduct of Great Britain towards us as colonies, says -that "the current of opinion was then precisely similar in England in -the struggle to which the United States owed its existence, as in the -great civil war between the Northern and Southern States of the American -Union"; "people in England convinced themselves, some after careful -examination, others on hearsay, that the South had a right to secede." - -Lord Coleridge, who served as one of the British commissioners in the -Geneva arbitration, in an address recently delivered at Exeter on Sir -Stafford Northcote, says: - - "I have myself seen that most distinguished man, Charles - Francis Adams, subjected in society to treatment which, if he - had resented it, might have seriously imperilled the relations - of the two countries.... But in this critical state of things, - in and out of Parliament, Mr. Disraeli and Sir Stafford - Northcote on one side, and the Duke of Argyll and Sir George - Cornewall Lewis on the other, mainly contributed to keep this - country neutral, and to save us from the serious mistake of - taking part with the South." - -Even Mr. Bryce, a most learned author, whose opinion in this matter has -great weight, intimates that the seceding States legally may have been -right.[1] - - [1] Bryce's _American Commonwealth_, vol. i., pages 409 and _seq._ Yet - Mr. Bryce's whole work is in accordance with the theory he asserts at - the beginning of chapter iv., vol. i., page 29: "The acceptance of the - Constitution of 1789 made the American people a nation. It turned what - had been a league of States into a Federal State by giving it a - National Government with a direct authority over all citizens." - -Lord Wolseley, in his article in _Macmillan's Magazine_ on the life of -Lee, extolling him as the greatest general of his age and the most -perfect man,[2] informs us that each State possessed the right both -historically and legally under the Constitution to leave the Union at -its will. Apparently he did not know that January 23, 1861, Lee wrote to -his son: "Secession is nothing but revolution." "It" (the Constitution) -"is intended for perpetual union, so expressed in the preamble, and for -the establishment of a government not a compact, and which can only be -dissolved by revolution or the assent of all the people in convention -assembled. It is idle to talk of secession."[2] - - [2] General Long's _Memoirs of Lee_, page 88. - -Possibly in time the North may be of the same opinion as to Lee's -transcendent ability as a general. No one doubts now his great soldierly -attainments and the worth of his private character, but for the sake of -the existence of our nation, may it never believe he fought for the -right. - -Very generally and very fortunately for the country our Southern -fellow-citizens, except their historians, some of their politicians, and -a few whom they call unreconstructed rebels, concede that the right of -secession has been put to the arbitrament of war and decided against the -South forever. Now they tell us that none are more loyal and will march -more willingly under the Stars and Stripes than those who fought so -bravely to the bitter end under the flag of the Confederacy. Even -Jefferson Davis, in the conclusion of his history, concedes that the -result of the war has shown that secession is impracticable. It is -difficult, however, to understand how might has made right, and the -conquest of the richer and more populous North over the weaker South has -settled forever the right or wrong of the matter. The North does not -believe in the sneering maxim of Frederick the Great, that the Almighty -is on the side of the heavier battalions. - -Nor need we go to the South or to our English military critics for this -opinion as to the Northern right. In a recent short life of Webster -written for the American Statesmen series, a distinguished Republican -politician and historian, Henry Cabot Lodge, in criticising the greatest -speech of our greatest orator, Webster's in reply to Hayne, on South -Carolina's nullification doctrines, makes these astounding statements: - - "That it was probably necessary, at all events Mr. Webster felt - it to be so, to argue that the Constitution at the outset was - not a compact between States, but a national instrument.... - When the Constitution was adopted, it is safe to say that there - was not a man in the country, from Washington and Hamilton on - the one side, to George Clinton and George Mason on the other, - who regarded the new system as anything but an experiment - entered upon by the States, and from which each and every State - had the right peaceably to withdraw, a right which was very - likely to be exercised." - -This is a declaration of the right of secession at the inception of our -government and that every one held that belief. If this be correct, with -such a right the Union was no enduring tie, but was a mere rope of sand. - -He adds that the weak places in Webster's armor were historical in -nature. In support of this opinion, he instances the Virginia and -Kentucky resolves in 1799, and the Hartford convention of 1814; a few -disloyal, some might say treasonable, acts and declarations; and then -tells us a confederacy had grown into a nation, and that Mr. Webster set -forth the national conception of the Union; and the principles, which he -made clear and definite, went on broadening and deepening and carried -the North through the civil war and preserved the national life. A -singular result from a speech, if it were so fundamentally and -historically wrong. - -If Mr. Lodge, and those who agree with him, and there are some at the -North who do, be right, and Hayne got the better of Webster in that -celebrated contest, the nullification doctrines and acts of South -Carolina were constitutionally sound and legal; and if South Carolina -were right in her nullification, the secession of the South, thirty -years afterwards, was also right. - -We do not concede that nullification and secession have been barred -because the course of events has been such that independent sovereign -States have grown into a nation; nor do we admit that the Union and its -indissolubility depend only on the result of an appeal to arms. We claim -with Webster that nullification and secession were entirely indefensible -constitutionally, and also in the light of history at the time of the -foundation of our Constitution, and ever since. - -There can be no doubt of the effect of Webster's speeches at the time of -their delivery; they aroused the national pride of the people, and the -whole country, except portions of the South, responded. - -It was in this nullification controversy that Webster won the title of -the Great Expounder of the Constitution; he was then at his prime, -physically and mentally. Always carefully dressed, when he made his -speeches, in the blue coat with brass buttons, buff waistcoat, and white -cravat of the Whigs of Fox's time; his large frame, his massive head -with dark, straight hair, and deep set and, in debate, luminous black -eyes; his superb swarthy complexion brightened with brilliant color that -is even in women so handsome; his grand and rich voice; his emphatic -delivery;--all served to make him the most impressive of orators. - -It was often said by his contemporaries at the bar that unless Webster -wholly believed in the justice of the cause he was maintaining he could -not argue well. He was not like some of the greatest advocates, whose -ability and ingenuity are only fully brought forth when they have to -contend with the difficulties of a weak and almost desperate case. - -Hayne, his antagonist, was an able, eloquent, and accomplished orator. -His speech did not create that enthusiasm at the South that Webster's -did at the North; but his own State pertinaciously adhered to its -doctrine of nullification and saw no defeat to its champion. - -There were no less than three speeches of Hayne's--one of them, the -second, running through two days--and the same number of replies by -Webster. The debate took place in the Senate in January, 1830; it arose -on an amended resolution originally offered by Mr. Foote as to the -expediency of limiting or hastening the sales of the public lands. South -Carolina was then threatening to declare the existing tariff null and -void, and to pass laws preventing the United States from collecting -duties in its ports. Hayne urged that the government should dispose of -the public lands and after paying the national debt with the proceeds -should get rid of the remainder, so that there should not be a shilling -of permanent revenue; he looked with alarm on the consolidation of the -government. To get the support of the West against the East, he accused -the East of a narrow policy towards the West as to the public lands and -the tariff, "the accursed tariff," as he termed it, which kept -multitudes of laborers in the East to the detriment of the West. In his -second speech, Hayne not only attacked the East and its policy as to the -public lands and support of the tariff, but went further and "carried -the war into Africa," as he styled it, reading speeches, pamphlets, and -sermons, showing, as he claimed, the disloyalty of New England in the -war of 1812. - -He maintained that the United States had exceeded the powers granted to -it by the Constitution in making the existing tariff, which protected -the manufacturing industry of the East, only a section of the country, -and compelled the non-manufacturing States to pay tribute to it; that -the United States government was a compact between independent sovereign -States; that each of the States, being an independent sovereign, had a -right in its own sovereign capacity to decide whether laws made by the -United States exceeded the powers given it by the Constitution, and if a -State held a law made by the United States was not authorized by the -Constitution, it could treat it as null and void; that the existing -tariff was a clear and palpable violation of the Constitution, and that -South Carolina could and would pass laws forbidding and preventing the -collection in its territory of the duties levied under it. - -Before taking up Webster's constitutional argument, we will give a brief -account of his answer to the attack made on himself and the East. - -Webster, in his great speech, the second in reply to Hayne, alluding to -Hayne's allegation that he, Webster, had slept upon his first speech, -said, "he must have slept upon it, or not slept at all": and he assured -him that he did sleep on it and slept soundly. - -One of the most stinging and dramatic events that ever occurred in the -Senate-chamber, as a distinguished Senator from Maine has told the -writer, was the manner in which Webster turned upon his opponents the -taunt of Hayne, that the ghost of the murdered coalition, like Banquo's, -would not down at their bidding, and had brought up him and his friends -to defend themselves. Webster replied that it was not the friends but -the enemies of the murdered Banquo, at whose bidding the spirit would -not down. The ghost of Banquo, like that of Hamlet, was an honest ghost; -then turning on and pointing to Calhoun, who, as Vice-President in -Jackson's first administration, was presiding over the Senate, and whose -reputed ambition to succeed as President had signally failed, he asked: - - "Those who murdered Banquo, what did they win by it? - Substantial good? Permanent power? Or disappointment rather, - and sore mortification;--dust and ashes--the common fate of - vaulting ambition overleaping itself?... Did they not soon find - that for another they had 'filed their mind,' that their - ambition had put - - "'A barren sceptre in their gripe, - Thence to be wrenched by an unlineal hand-- - No son of theirs succeeding.'" - -Calhoun showed his emotion and moved in his chair. In a speech made -three years afterwards, when a Senator, he denied that he had aspired -after the presidency. - -Webster defended at great length, and successfully, the policy of the -East as to the public lands, internal improvements, and the tariff. He -showed that Calhoun himself was originally in favor of internal -improvements, and that he voted for tariffs; that in 1816 a protective -tariff (denounced as such) was supported by South Carolina votes and was -opposed by Massachusetts; that under the tariffs of 1816, 1824, 1828, -which were protective tariffs and had become the policy of the country, -Massachusetts became interested in manufacturing; so he, Mr. Webster, in -1828 supported a protective tariff, though in 1816 and 1824 he had -opposed it. - -As to Hayne's "carrying the war into the enemy's country by attacking -Massachusetts," Webster asks: "Has he disproved a fact, refuted a -proposition, weakened an argument, maintained by me?" And "what sort of -a war has he made of it? Why, sir, he has stretched a drag net over the -whole surface of perished pamphlets, indiscreet sermons, frothy -paragraphs, and fuming popular addresses; over whatever the pulpit in -its moments of alarm, the press in its heats, and parties in their -extravagance, have severally thrown off in times of general excitement -and violence." - -Webster, declining to separate these accusations and answer them, asks: -"But what had this to do with the controversy on hand; why should New -England be abused for holding opinions as dangerous to the Union as -those which he now holds? Why does he find no fault with those opinions -recently promulgated in South Carolina?" - -Then Webster, noticing Hayne's eulogium of South Carolina, instead of -attacking her, puts himself on the higher plane of a common national -pride and patriotism. - - "I shall not acknowledge that the honorable member goes before - me in regard for whatever of distinguished talent or - distinguished character South Carolina has produced. I claim - part of the honor, I partake in the pride of her great names. I - claim them for countrymen one and all. The Laurenses, the - Rutledges, the Pinckneys, the Sumters, the Marions,--Americans - all, whose fame is no more to be hemmed in by State lines, than - their talents and patriotism were capable of being - circumscribed within the same narrow limits. Him whose honored - name the gentleman himself bears, does he esteem me less - capable of gratitude for his patriotism, or sympathy for his - sufferings, than if his eyes had first opened on the light of - Massachusetts, instead of South Carolina?" - -Then Webster refers to the great harmony of principle and feeling -formerly existing between the two States. "Shoulder to shoulder they -went through the revolution, hand in hand they stood round the -administration of Washington and felt his own great arm lean on them for -support." - -It was one of those great efforts delivered on the spur of the moment, -which, though not written out, had been thought and studied beforehand. -The bitter invective, the grand patriotic words for our National Union, -which make the heart beat and quicken the blood, came from the genius of -the orator. Dr. Francis Lieber, a most competent judge, wrote: "To test -Webster's oratory, which has been very attractive to me, I read a -portion of my favorite speeches of Demosthenes and then read, always -aloud, parts of Webster's; then returned to the Athenian, and Webster -stood the test."[3] The question of the supremacy of the government of -the Union over that of the States was familiar to Webster; he had taken -part in the argument of the cases before the Supreme Court involving -that issue, and well knew the decisions of Marshall, its great chief. -There is no such thing "as extemporaneous acquisition," as Webster -himself said of his speech. Its views and arguments have been adopted by -our jurists, and by Bancroft, Hildreth, Fiske, and all of our old -Northern historians. Webster was probably a more diligent student than -Mr. Lodge gives him credit for; his habit being to rise in the early -morn and work then. The writer of this has heard him say that he had -read through all the volumes of _Hansard's Parliamentary Debates_. - - [3] Lodge's _Webster_, p. 187. - -In giving Webster's argument on the question of nullification, we will -use his speech in reply to Hayne, and his subsequent speech in answer to -Calhoun, delivered three years later, in 1833. - -He showed, as we shall see, that by adopting the Constitution a national -government was formed, with legislative authority to make laws that -should be supreme within the powers granted in the Constitution, with an -Executive to carry out those laws, and a supreme Judicial Department -that should decide all questions arising under those laws, and whether -they were within the granted powers, whose decision no State could -question. - -After disposing of the personal attack on himself and that against the -East, Webster took up that against the Union; he went back to its -formation, treating it historically. Under the confederacy made between -the States the whole power of the government was in the Continental -Congress. Though it could make war and peace, it could raise troops -and obtain its revenues only through the action of the several States; -it could not even regulate commerce and had no coercive power over the -States; its executive powers were exercised by committees and officers -appointed by the Congress. This Continental Congress carried the -country safely through the revolution; but during the few years -afterwards,--without the rights and powers essential to an effective -government, without a Judiciary and a responsible Executive, the -States quarrelling amongst themselves and struggling with internal -troubles--its authority became so weakened that it inspired respect -neither at home nor abroad[4]; and the people of all the States, finding -the necessity of a stronger government, the separate States entered into -a convention to form one. - - [4] Chief-Justice Marshall, in his opinion in the case of Cohens _vs._ - Virginia, says that its requisitions were habitually disregarded by - the States. Mr. John Fiske, in his admirable work, called _The - Critical Period of American History_, fully shows the inefficiency and - inadequacy of the government of the Confederacy. - -The first resolution of this convention was, that the government of the -United States ought to consist of a _Supreme Legislature, Judiciary, and -Executive_; this showed the power that it intended to give the -government. - -The declaration in the preamble of the Constitution they formed, set -forth: "We, the PEOPLE of the United States, in order to form a more -perfect Union," etc., "do _ordain and establish_ this Constitution for -the United States of America."[5] It was not that the States or the -people of the separate States made the Constitution, but it was the -people of the whole United States, and the acceptance of this -Constitution was submitted to conventions of each State, chosen by the -people, and not to the State governments and legislatures. - - [5] See Webster's speech in answer to Calhoun, Webster's _Speeches_, - vol. ii., page 180. Ed. of 1850. - -It was from Webster's declaration, "It is the people's Constitution, the -people's government; made for the people; made by the people and -answerable to the people," that Lincoln took the closing words of his -short immortal Gettysburg address, and applied them to the national -soldiers who had there died for the Union: "That this nation, under God, -shall have a new birth of freedom, and that government of the people, by -the people, for the people, shall not perish from the earth." - -Webster referred to contemporary history, to the writings of the -_Federalist_, to the debates in the conventions, to the publications of -friends and foes, as all agreeing in the statement that a change had -been made from a confederacy of States to a different system, to a -national government. The writers of the _Federalist_ say: - - "However gross a heresy it may be to maintain, that a party to - a compact has a right to revoke the compact, the doctrine - itself has had respectable advocates. The possibility of a - question of this nature proves the necessity of laying the - foundations of our national government deeper than in the mere - sanction of delegated authority. The fabric of American empire - ought to rest on the solid basis _of the consent of the - people_." - -And amongst all the ratifications by the States, there is not one which -speaks of the Constitution as a compact between States. "They say they -ordain and establish it; we do not speak of ordaining leagues and -compacts." He argued that the Constitution that was formed was not a -league, confederacy, or compact between States, but a _government -proper_, creating direct relations between itself and individuals of the -States. It punished all crimes committed against the United States. It -had power to tax individuals, in any mode and to any extent, and it -possessed the power of demanding from individuals military service. "It -does not call itself a compact; it uses the word compact but once and -that is when it declares that the States shall enter into no compact. It -does not call itself a league or a confederacy but it declares itself a -constitution." "A constitution is the fundamental regulation which -determines the manner in which the public authority is to be -executed,"[6] "the very being of the political society." It says, this -Constitution shall be the law of the land, anything in any State -constitution to the contrary notwithstanding; "and it speaks of itself, -too, in plain contradistinction from a confederation; for it says that -all debts contracted and all engagements entered into by the United -States shall be as valid under this Constitution as under the -confederation; it does not say as valid under this compact, or this -league, or this confederation." - - [6] Webster's definition of constitution apparently is not a full one. - A constitution is the fundamental statement of the powers granted to - the government established by it; and it may, as Webster says, also - contain the regulation under which its authority is to be executed. - -"Again the Constitution speaks of that political system which is -established as the _Government of the United States_. Is it not doing -strange violence to language to call a league or compact between -sovereign powers a _government_?" - -The United States Government thus originated from the people, as did the -State governments. It is created for one purpose, the State governments -for another; it has its own powers, they have theirs. There is no more -authority with them to arrest the operation of a law of Congress, than -with Congress to arrest the operation of their laws. - -It was an Union among the States that should last for all time. It -contains provisions for its amendment, none for its abandonment at any -time. It declares that new States may come into it, but it does not -declare that old States may go out. - -The Government was brought into existence for the very purpose of -imposing certain salutary restraints on the State governments: it gave -the United States _sovereign powers_ over the States; it could make war, -it could coin money, it could make treaties; it prohibited a State from -making war, coining money, or making treaties; it gave the United States -the exclusive power to make citizens. The people erected this -Government; they gave it a Constitution, and in that Constitution they -enumerated the powers they bestowed; they made it a limited Government; -they defined its authority. They did not leave it to the States to carry -out the legal action--the application of law to individuals--as the -Confederacy did. In the Constitution itself it declared the -_Constitution and the laws of the United States, made in pursuance -thereof, shall be the supreme law of the land, anything in the -constitution or laws of any State to the contrary notwithstanding_. No -State law is to be valid which comes in conflict. - -Having enumerated the specified powers of the Government, it gives to -Congress as a distinct and substantive clause, the power to make all -laws which shall be necessary and proper for carrying into execution the -foregoing powers and all other powers vested by this Constitution in the -Government of the United States or in any department or office thereof. - -Who is to decide when a controversy arises between the laws of a State -and the United States? The claim of South Carolina is that instead -of one tribunal we are to have four and twenty, as many tribunals -as States; that each State is at liberty to decide as to the -constitutionality of an act for itself and none bound to respect the -decision of others. - - "But in regard to this question the Constitution is still more - express and emphatic. It declares that the judicial power of - the United States shall extend to all _cases_ in law or equity - arising under the Constitution, laws of the United States, and - treaties; that there shall be one Supreme Court, and that this - Supreme Court shall have appellate jurisdiction of all these - cases, subject to such exceptions as Congress may make." - - "No language could provide with more effect and precision than - is here done, for subjecting constitutional questions to the - ultimate decision of the Supreme Court." "And after the - Constitution was formed and while the whole country was - engaged in discussing its merits, one of its most - distinguished advocates, Madison, told the people 'it was true - that in controversies relating to the boundary between the two - jurisdictions, the tribunal which is ultimately to decide is - to be established under the General Government.' Mr. Martin - who had been a member of the convention, asserted the same - thing to the Legislature of Maryland and urged it as a reason - for rejecting the Constitution.[7] Mr. Pinckney, himself also - a leading member of the convention, declared it to the people - of South Carolina; everywhere it was admitted by friends and - foes that this power was given to the United States Judiciary - in the Constitution." - - [7] As the whole question of nullification depends upon whether a - State is bound by a decision of the United States Court we give Mr. - Martin's succinct and comprehensive statement of the power that the - third article of the Constitution conferred on the United States. - "Whether, therefore, any laws or _regulations_ of the Congress, any - acts of _its President or other officers_, are contrary to, or not - warranted by the Constitution, rests only with the judges, who are - appointed by Congress, to determine; by whose determination every - State must _be bound_." Luther Martin's letter, Elliot's _Debates_ - (second ed.), 1863, vol. i., p. 380. - -We must bear in mind that this discussion was on the power of South -Carolina while remaining in the Union to declare the laws of the United -States null and void, and her own laws preventing their execution valid. -A singular claim that a State could enjoy the benefits of the Union and -at the same time disobey its laws; this is nullification which Mr. -Webster had to combat. His argument, however, applies equally strongly -to the claim of the right of secession. Indeed he says in his speech in -reply to Calhoun: - - "Therefore, since any State before she can prove her right to - dissolve the Union, must show her authority to undo what has - been done, no State is at liberty to _secede_ on the ground - that the other States have done nothing but _accede_. She must - show that she has a right to _reverse_ what has been - _ordained_, to _unsettle_ and _overthrow_ what has been - _established_, to _reject_ what the people have _adopted_, and - to _break up_ what they have _ratified_, because these are the - terms which express the transactions which have actually taken - place. In other words, she must show her right to make a - revolution." - -Between Webster's debate with Hayne, and that with Calhoun three years -afterwards, South Carolina had called a convention of its people and -passed resolutions declaring the United States tariff laws null and -void, and made laws of her own, forbidding and preventing the collection -of duties in the State, with threats of secession if an attempt to -collect them were made. Measures had also been taken to make a forcible -resistance--munitions of war collected and the militia organized and -drilled. Fortunately for the country at that crisis Andrew Jackson, the -President, was a Southerner and owner of many slaves and true to the -Union. He was a man of indomitable will, believed in implicitly and -trusted and enthusiastically followed by the great mass of the people. -Any policy of his commanded success. He did not hesitate as to his -course, he at once issued a proclamation, and sent a message to -Congress asking for powers to enforce the tariff laws of the United -States and if necessary to remove the custom-houses to safe places. In -his proclamation he declared that the Constitution of the United States -forms a government, not a league; that it is a government that acts on -the people individually and not on the States, and whether it be formed -by compact between the States or in any other manner its character is -the same. "The States retained all the power of the government," he -said, "they did not grant: but each State, having expressly parted with -so many powers as to constitute, jointly with the other States, a single -nation, cannot from that period possess any right to secede, because -such secession does not break a league, but destroys the unity of a -nation." As a South Carolinian--Jackson supposed he was born in South -Carolina, though his biographer, Parton, says it was in North Carolina, -near the line--he earnestly pleaded with his fellow-citizens not to -resist the laws of the United States.[8] He had previously at a dinner -in celebration of Jefferson's birthday, when nullification sentiments -had been advanced, given as his toast: "Our Federal Union: it must be -preserved." - - [8] Jackson's proclamation, Elliot's _Debates_, 582. Elliot's - _Debates_ were published by authority of Congress, Calhoun highly - praising them. See his letter in the beginning of vol. i. - -It was generally said and believed that Jackson had threatened to hang -Calhoun as high as Haman if the law was resisted. This from Jackson was -no idle threat. There had been no other President of such inflexible -will. No other general ever assumed the authority he did in the Indian -wars and in that of 1812. He had fought those campaigns and gained the -battle of New Orleans, suffering at times agony from old wounds received -in a street brawl, that would have disabled any ordinary commander. -Thrice when in command he had exercised the power of punishing -capitally; he had hanged Arbuthnot and Ambrister; again, he had a -militiaman shot; and at the close of the war had permitted the execution -of six Tennesseeans, though they pleaded in defence, and probably -believed, that their time of enlistment had ended. The threat of -hanging, however, did not daunt Calhoun, who declared boldly, perhaps -pathetically, that Carolina alone would resist, even to death itself. - -Mr. Clay, as on other occasions where a great crisis had arisen, -effected a compromise. A force bill to collect duties, which South -Carolina strenuously opposed, was enacted by large majorities in the -Senate and House of Representatives; and a bill was afterwards passed -gradually reducing the import duties then levied, which Calhoun and -South Carolina assented to. - - - - -CHAPTER II. - -THE NATIONALITY OF THE CONSTITUTION. - - -The claim of South Carolina, at the time of her threatened nullification -and secession, and of the South at the period of our civil war, is, that -the Constitution which the States adopted formed them into a confederacy -and not a nation. It is admitted, and is not denied, that if the -government established was national there can be no valid claim of a -component part to treat its laws as of no validity, a nullity, or to -dissolve it at its will. - -Indeed, Calhoun, the great expounder of the nullification and secession -doctrine, considered this to be a vital matter, and always insisted that -the United States was not a nation. He complained that the reporters -made him say, - - "this Nation instead of this Union." "I never use the word - nation in speaking of the United States: I always use the word - union or confederacy. We are not a nation, but a union, a - confederacy of equal and sovereign States. England is a nation, - Austria is a nation, Russia is a nation, but the United States - are not a nation."[9] - - [9] _Great Senators_, by Oliver Dyer, p. 153. - -The South during the civil war claimed that the States made the -government of the United States, and that the States were and remained -independent sovereign nations. And each State being an independent -sovereign nation, had the right to decide whether the power it had given -to the United States Government was properly exercised by its -Legislature or its officers, and to declare and treat as a nullity and -as void any law passed, any act done in excess of that authority, and to -withdraw from the Confederacy--that is, to secede, at its will. - -It will at once be seen, as the time during which the Union is to endure -is not limited in the Constitution, that, if this right of secession -exists, a State could leave the day after it adopted the Constitution. -The Union is either perpetual or dissoluble at pleasure. In the -secession ordinances passed by the Southern States at the commencement -of the civil war the ground was taken that the States of their sovereign -right and will resumed their place as independent nations. That is, the -duration of the Union was from the very beginning at the caprice of each -and every State. No less, if the doctrine of nullification be correct, -that each State can declare and treat as null and void the acts of the -United States it deems beyond the powers it has granted, it can nullify -and make void the laws of the United States, all the acts of its -officers, all the judiciary proceedings at its caprice. - -Nor is it extravagant to say caprice. South Carolina's nullification and -secession acts and resolves in 1832 were on the ground of the -unconstitutionality of a protective tariff. There had been a great -number of protective tariffs enacted before, which South Carolina had -favored by her votes, and the second law of the United States, enacted -at the commencement of the government, at the first session of the first -Congress, was for the protection and encouragement of manufactures. Its -preamble is: "Whereas, it is necessary for the support of government, -for the discharge of the debts of the United States, and the -encouragement and protection of manufactures, that duties be laid on -goods, wares, and merchandise imported." Madison,[10] who was the leader -of the House of Representatives in this first Congress, wrote that no -one questioned the right of making protective duties. Billions of -dollars have been levied by the collection of protective duties from the -beginning of the government to the present day. No litigant paying -duties even as excessive as those on pearl buttons and tin plates, nor -lawyer, a class not diffident in advancing untenable claims, has been -found, as far as we know, to question before the Supreme Court the -legality of these duties, because they were protective or paid this -slight reverence to a doctrine in support of which South Carolina -threatened war and secession. - - [10] See 4 Elliot's _Debates_, pp. 345 and 349, showing at the - inception and in the early period of our government protective duties - were apparently universally approved by Congress and the Presidents. - -It seems only necessary to state the viciousness of this doctrine of -nullification and secession, that every State could practically put its -veto on every law and act of the General Government it questioned, and -dissolve it at its pleasure, to prove that no such impracticable -government was established. Certainly, reasoning _a priori_, this -doctrine has no standing. - -Our General Government differs from that of Great Britain and nearly all -other governments in that it is created by a written Constitution, and -its authority is limited by that Constitution. The power of Parliament -is imperial; there is no limit to it; it does what it deems best. There -apparently is an almost insurmountable difficulty in the writers of -other countries, only knowing unlimited, imperial supreme governments, -to comprehend that a government of limited powers can be supreme in the -powers granted to it. Knowing that the powers of our General Government -are limited, they are apt to draw the conclusion that the fundamental -unlimited power must be in the subordinate component parts, the States. - -Our States, as well as the General Government, have limited powers -granted by written constitutions. The State governments are not only -limited in their powers, but the people, who established them in their -constitutions, have invariably recognized the supreme power of the -General Government; in none of them have they undertaken to confer on -the State Legislatures or government powers in conflict with the -sovereign national powers of the General Government. The powers given to -the State governments are subordinate and local. All the constitutions, -State and General, have had the sanction and an adoption by the people. - -The argument of Hayne, Calhoun, and his followers, and of all Southern -writers--that the United States Constitution is a compact or agreement -amongst the several States as independent sovereign nations, and that in -every compact between nations, a contracting power, where there is a -disagreement, as there is no superior authority over them, has the right -to maintain the correctness of its construction--ignores the case where -the compact may be one for the making of the several contracting powers -one nation. - -Compact means an agreement, nothing more or less, whether applied to -states or individuals. It cannot be denied that independent sovereign -nations can _by compact or agreement_ make themselves into a perpetual, -indissoluble nation. The voluntary combination of independent sovereign -powers, or nations, or states into one national union _must be by -compact_. - -The question therefore resolves itself into this, What was the agreement -or compact made between the people of the States? Was it for a nation -with supreme powers over the subdivisions of States in its territory and -all living therein, as far as power was given to it, and for -perpetuity, or was it for a confederacy or league for certain purposes, -limited by the right of each of the parties to it, to judge whether the -government exceeded its authority, and at its pleasure to dissolve it? - -In other words, the fundamental question is, Was an indissoluble -national power made or a confederacy or league declared by the adopting -of the Constitution? - -Webster perhaps unfortunately used the word compact in his argument when -he said the Constitution was not a compact, meaning it was not a mere -agreement amongst the States, a league, or confederacy, but that it was -the fundamental declaration of a nation. - -Madison agreed with Webster as to secession and nullification and the -powers of the General Government, and of its judiciary to define and -pass on them, but he held "that the government with its powers was -established by a compact which each of the States had entered into, the -authority for it being derived from the same source as that of the State -governments--the people."[11] Webster himself, in his speech in answer -to Calhoun, recognizes that compact may mean an agreement for a nation. -Speaking of the Constitution, he says: "Founded in or on the consent of -the people, it may be said to rest on compact or consent, but it is -itself not the compact, but the result."[12] It is necessary to -constantly bear in mind that the word compact, used in reference to the -Constitution, is consistent with its nationality. - - [11] See also, to same effect, _North American Review_, Oct., 1830, p. - 537. Madison's letter to Edward Everett. - - [12] Webster's _Speeches_, vol. ii., ed. 1850, p. 177. - -The prominent writers who maintain the right of nullification and -secession, Calhoun, Davis, Stephens, and Bledsoe in his work, _Is Davis -a Traitor?_ all assert to an excessive length that any person or any -State that uses the word compact in reference to the Constitution admits -their theory of government, which is, that the Union between the States -was a mere dissoluble agreement, in which the States retained their -sovereignty and right of judgment over the acts done by the United -States. They mention the State of Massachusetts, Washington's, -Madison's, and even Webster's subsequent use of that word as evidence of -their assent to this doctrine. The fault in their reasoning is what -logicians call the undistributed middle; they assume that the persons or -States using the word compact are speaking of the sort of compact they -maintain the Union to be--a league or mere dissoluble agreement, when in -fact they may be, and are, speaking of another sort of compact, a -compact for a national government. - -We propose to show that by the adoption of the Constitution the people -of the States formed themselves into a nation. - -First: The Constitution declares its perpetuity, and the powers given by -it to the government established are those of an indissoluble nation -with supreme authority over every one, not of a confederacy of nations. - -Second: The members of the convention that made the Constitution -intended to make a national government; and that they considered that -they had done so is conclusively shown by the contemporary reports of -their debates and proceedings. The members of the conventions of the -people of the several States that adopted the Constitution without -exception also considered and spoke of the government as national. - -Third: That the government exercised its supreme national power -repeatedly and uniformly over the States and over all the citizens of -every State, from the time of its inception to the civil war. -Historically we were a nation. - -Fourth: That the general belief that the Virginia resolutions questioned -this supremacy and nationality is wholly unfounded. - -There is no question of the universal opinion after the termination of -the war of the Revolution that the provisions under which the States -were associated, made on the 15th of November, 1777, had failed -essentially in giving to the Confederate Congress government the -necessary powers to carry it on.[13] The Confederacy was made by -delegates from the Legislatures of the State governments of the -different States; the powers of the Confederacy were given to a Congress -which consisted of one body or House, and in that Congress each State -had one vote, that of Delaware, with a diminutive territory and about -one sixteenth of the population, equalling that of Virginia. The -Constitution which contains and defines the powers given to the United -States Government was made by delegates appointed by the different State -Legislatures of the Confederacy, all being represented except Rhode -Island. Its members were the most prominent and distinguished men of the -country. After the most careful, thorough, and patient examination and -discussion, extending through four months, they formed the instrument -giving the powers of the new government. They sent it to the existing -Congress of the Confederacy, with the request that it might be submitted -to a convention of delegates chosen in each State by the people thereof, -under the recommendation of its Legislature, for their consideration and -assent if approved of. - - [13] The condition of affairs then is well stated in Fiske's _Critical - Period of American History_. - -The Continental Congress unanimously forwarded the proposed Constitution -to the Legislatures of the several States, who each submitted it to a -convention of the people called for the purpose of deciding whether they -would adopt it. - -By necessity the submission was to the people of the States separately. -The acceptation or rejection rested on them, the people; they -appointing delegates to carefully consider the matter and to decide for -them. Thus the adoption of the Constitution was not only sanctioned by -the Congress of the Confederacy, by the separate State governments, but -finally by the people themselves of every State acting by virtue of -their fundamental, sovereign power, they appointing the delegates who -met in convention, and who in each State decided for the people, whether -they would or would not enter into this new form of government. A -sanction more binding on every one could not have been made. - -Mr. Webster's argument that our government is that of a nation and not a -confederacy, was in a great measure founded on the Constitution itself. -There are other declarations and powers in the Constitution, besides -those he so forcibly presented, which should not be overlooked. The -Constitution is a very brief, and, as time has shown, a very perfect -instrument. It gives to a general government it establishes, all the -powers necessary for the existence and maintenance of a nation. - -Its first declaration is, _We, the People_ of the United States, do -ordain and establish this Constitution. This is in emphatic contrast to -the preamble and articles of the Confederacy. The preamble of the -Confederacy is, Articles of confederation and perpetual union between -the "States of New Hampshire, Massachusetts Bay," etc. Article I. is, -"The style of this Confederacy shall be 'The United States of America.'" -Article III., "The said States hereby severally enter into a firm -league of friendship with each other for their common defence, the -security of their liberties, and their mutual and general welfare." - -Not only did the people actually make this great charter, in which they -gave to the government they established over them the powers it has, but -they declared in the very beginning that it was "we, the people," and -not their State governments, that made it, and they also declared its -perpetuity. It is "We, the People of the United States, in order to form -a more perfect union, establish justice, insure domestic tranquillity, -provide for the common defence, promote the general welfare, and to -secure the blessings of liberty to ourselves and _our posterity_, do -ordain and establish this Constitution for the United States of -America." Here is the express declaration that it is for perpetuity, not -for the people making it, but for those succeeding them, for their -posterity, for all time. - -When, after the civil war, the question of the legality of secession -came before the Supreme Court of the United States, in the case of the -State of Texas against White,[14] Chief-Justice Chase, apparently -overlooking this explicit statement, in delivering the opinion of the -court, said: "That by the articles of the Confederacy, the union of the -States was solemnly declared to be perpetual, and when these articles -were found to be inadequate to the exigency of the country, the -Constitution was ordained to form a more perfect union," and asks, "what -can be more indissoluble if a perpetual union made more perfect is not?" - - [14] 7 Wallace _Reports_, p. 700. - -Neither the Chief Justice nor those distinguished jurists, Justice -Swayne[15] and Justice Bradley,[16] controverted the right of secession -when the case came before them, in the manner that Chief-Justice -Marshall treated constitutional questions. They, however, declared in -the most emphatic terms that there could be no secession, that the Union -was an indissoluble one of indestructible States by the very provisions -of the Constitution itself. - - [15] In case of White _vs._ Hart, 13 Wallace, 646. - - [16] Keith _vs._ Clark, 97 _United States Reports_, 476. - -If we examine the provisions of the Constitution, we find in the first -clause is declared the perpetuity of the Union; in the last clause, -excepting that setting forth it shall be established on the ratification -by nine States, is stated in language that cannot be mistaken, its -supremacy over States and State constitutions. - -It is by its very terms, we, the people, do ordain and establish this -Constitution, that is the great charter giving powers to our new -government, and it is, therefore, we, the people of every State, who -declare that this Constitution, this government, and the laws and -treaties made under it "shall be the supreme law of the land and the -judges in every State shall be bound thereby, anything in the -constitution or laws of any State to the contrary notwithstanding." -There is no qualification that if we do not deem them legal we can treat -them as null and void. - -In order to secure and maintain that supremacy the people who made it -require that the United States Senators and Representatives, "and -_members of the several State Legislatures_, and all executive and -judicial officers, both of the United States _and of the several -States_, shall be bound by oath or affirmation to support this -Constitution"; stamping, as on its coins, its authority over States and -every State officer. - -Now when the people of each and every State did "ordain and establish" a -new form of government which was to be supreme over the constitution, -that is the government of their particular State, and imposed upon every -legislative, executive, and judicial officer of their own State an oath -to support that government, where is the right of a State to question? -Over what is the United States supreme if not over States? Why should an -oath have been required to support that supremacy over State governments -unless to make that supremacy certain, and resistance to or question of -it criminal? - -Those who made and established the government knew of the oath that is -required by State governments of their officers to support their -constitutions, and they would not have required this additional oath if -the two oaths could have conflicted, or if there could have been any -doubt that the obligations required by a State government were to be -subordinated to the supreme powers and laws of the general government. - -Then to prevent the government from being encroached upon by the States -the judicial power was given to the United States over all cases arising -under this Constitution, the laws of the United States, its treaties, -and cases affecting ambassadors, etc. So, as Webster declared, no State -law or judicial decision of a State could interfere. By this clause the -United States courts had the right, which they have uniformly and very -often exercised, from the beginning of our government until this day, of -taking from the jurisdiction of the State courts all and every case in -which the construction of a United States law came in question or where -the legality of the act of any United States official was concerned. - -We have seen that the supremacy of the United States over all States and -State laws and the right to maintain that supremacy through its own -courts and by its own officers was fully established by the -Constitution. If we examine further the powers granted to the general -government by this Constitution, we find all that can be called -sovereign: those of intercourse with foreign nations, of war and peace, -of raising and keeping an army and navy, of the currency, of commerce -external and internal, of establishing post-offices and post-roads, and -fixing the standard of weights and measures, the exclusive right of -making citizens by naturalization, the regulating and command of the -militia when in its service, and issuing of copyrights and patents, the -making of all laws necessary and proper for carrying into execution the -granted powers and all other powers vested by the Constitution in the -government of the United States or in any department or office thereof, -with prohibitions to the States from entering into any treaty, alliance, -or confederation with another State or foreign power, making agreements -or _compacts_ with other States, keeping an army or war vessels in the -time of peace, or making laws impairing the obligation of a contract, -and _ex post facto_ law, coining money, emitting bills of credit--that -is making a paper currency (the issuing of paper had been carried to an -excess by the States and the Continental Congress during the -Revolution), and laying imposts or duties on imports or exports.[17] -There is no sovereignty remaining to a State that has granted all these -powers to the government over it, and is so restricted in its acts, and -cannot even make an agreement or a compact with a sister State. Indeed, -Calhoun, in his argument, seemed hard pushed to specify any sovereign -powers left to the States, when he mentioned that the States had the -power to appoint the officers of the militia and that Pennsylvania had -undertaken to punish treason. - - [17] See Constitution of United States, Article I., Sections 8, 9, and - 10, for statement of granted powers and restrictions on States. - -Though the United States alone have those supreme powers, which by -political writers are generally called sovereign, the word sovereign has -been also used by American writers and politicians in reference to the -powers of a State. The people of every State have supreme powers over -their own local affairs, their own territory and citizens where the -power has not been given to the United States; they can enact laws -making the penalty of stealing a pocket-handkerchief or smoking on the -street punishable with death and carry them into effect. If they were, -however, to make such laws to take effect for past acts, the United -States would interfere, because no State can make an _ex post facto_ -law. So, in our separate States, a town or a county can run a road -through anybody's land and the State cannot interfere; because the -people of the State have given that authority to the town or county. A -Board of Health in many States can stop one's factory, destroy his -business, or close his house, by reason of its being deleterious to the -general health, and there is no appeal. In these matters the town or -county or Board of Health have supreme powers in their jurisdiction; -but however supreme or however arbitrary they may be in their -jurisdiction, they cannot extend them beyond--these supreme local powers -are not sovereign powers. - -It is a large, local, internal government that each State has over its -territory, and the property and the acts of its citizens in that -territory. The General Government in our extensive domain, having in -addition to the powers it now has those of the States, would from the -overwhelming mass of its duties be a failure. - -Indeed, we find that from necessity Great Britain is on the path of -giving to her three kingdoms greater powers of local government. If one -examines the bill for home rule for Ireland, proposed in 1886 by the -Gladstone administration, he will find that the powers it proposed to -give to Ireland are far beyond those our separate States have. Ireland, -besides the right of taxing, was empowered to levy duties of customs and -excise--that is, the right of protecting her own manufactures to the -injury of England's. Ireland was to pay over specified contributions to -the British Government, some millions of pounds annually, for her -proportion of the interest on the national debt, and of the cost of the -support of the army and navy, and other expenses. If there were a -failure in these contributions the General Government would have been -obliged to use coercion--a civil war--a policy considered fatally -objectionable in the convention that made our Constitution. Ireland -also was to lose her representation in the Imperial Parliament. - -As far as secession is concerned, the most important provision in the -Constitution is Section 3, of Article III., concerning treason. There is -no such thing as treason except where allegiance is due. The citizen of -an independent sovereign State owes his allegiance to it, and not to a -confederacy or a league the State has joined. There can be no treason -except against a government proper. The establishing by the Constitution -of the punishment of treason, implies the nationality of the Union, and -that every inhabitant of its domain is a citizen. In the articles of the -old Confederacy there was no punishment of treason; on the contrary, -each State agreed in those articles to deliver up to its sister States -any one that it might claim had committed treason. - -The first part of the two clauses of Section 3 are "Treason against the -United States shall consist only in levying war against them, or in -adhering to their enemies, giving them aid and comfort," and "The -Congress shall have the power to declare the punishment of treason." - -The peculiarity of the introduction of this first clause is to be -noticed: it is taken for granted that there is treason against the -United States, and that it is expedient to limit it. The founders of our -new government did not intend to have rash speech, or plots, or mere -resistance to its authority punishable as the high crime of treason. -They knew from the experience of their mother country the danger to -personal liberty from constructive treason; so they limited the power to -punish that offence, and gave it only in case of levying of war, or -aiding and adhering to enemies. - -It has been claimed by many writers North as well as South, that -admitting secession to be illegal, the United States had no authority to -use force against a seceding State. At the foundation of all government -must be the right to maintain itself, and by force when necessary. There -is no need of the declaration of this right. The establishment of a -government implies the power to compel the obedience of its subjects. - -This power in the government to punish as treason the levying of war -against it applies directly and expressly to a State, or a combination -of States, or a part of a State levying war. A foreign state, an enemy -levying war, cannot commit treason. Its subjects owe no allegiance. Nor -does a riot or a mob levy war. This making the levying of war treason -was intended for powers within the National Government, like States and -combination of States and parts of States. It was against some power -that should have the organization and ability to levy or wage war; and -the word levying is far reaching and extends beyond mere fighting. It -could not have been intended for anything else than coercing such -powers. - -That this law was understood to reach a citizen of a State resisting the -authority of the United States is clearly shown by the letter of Luther -Martin, a distinguished jurist, and also the Attorney-General of -Maryland, and afterwards a leader of the bar in the United States -Courts, and who as a lawyer was accustomed to consider the meaning of -instruments like the Constitution. In this letter to the Legislature of -Maryland objecting to the ratification of the Constitution, he declares -that this clause was kept for the purpose of coercing a State. He wrote: -"The time may come when it shall be the duty of a State in order to -preserve itself from the oppression of the General Government to have -recourse to the sword; in which case, the proposed form of government -declares, that the State, and every one of its citizens who acts under -its authority, are guilty of a direct act of treason," and a citizen is -thus put in the dilemma of being exposed to punishment, either by the -State or the United States, however he may act. To prevent this, he -writes, he offered an amendment that acts done under the authority of -one or more States should not be deemed treason or punished as such; but -this provision was not adopted.[18] - - [18] Martin's Letter, Elliot's _Debates_, vol. I., pp. 382, 383. - -The interference of the United States with a State is expressly directed -by another clause in the Constitution, that by which the United States -is obliged to protect a State against domestic violence and guarantees -to put down any government if it be not republican. There is no limit to -this guaranty and it is no matter if the unrepublican government be -established by a majority or unanimity of votes. - -A sovereign government seldom, if ever, allows itself to be sued, and -never gives the decision of a suit against itself or between itself and -other governments to _another jurisdiction_. That is a direct surrender -of sovereignty. The Constitution as originally adopted, gave to the -United States judicial power in controversies to which the United States -shall be a party, in controversies between two or more States, between a -State and citizens of another State and between a State and foreign -states, citizens, or subjects. The jurisdiction in suits by individuals -against a State was afterwards taken away by the passage of an amendment -to the Constitution, leaving however jurisdiction in controversies to -which the United States shall be a party and between two or more States -and a foreign State. The fact, however, remains, that the Constitution -as formed and as adopted by the original States, (all that can claim to -have been sovereign), did give jurisdiction to the United States over -all claims, even those of individuals out of the State against the -State, as if the State had no more political importance than a county or -a town. - -A yet more important clause in the Constitution shows conclusively the -supremacy and national character of the government; namely that giving -it the power of changing and extending its authority to whatever extent -it chooses by amendments, provided they are accepted by the Legislatures -of three quarters of the States. By amendments made in this manner the -United States can take whatever authority it pleases from the States. It -can give its government a veto over the laws of the separate States, -appoint the executive officers of a State--powers proposed in the -convention that made the Constitution. The only limit in the -Constitution to the extension of the government's power by amendments is -that no State without its consent could be deprived of its equal -suffrage in the Senate, and the importation of slaves until 1808 should -not be prohibited. Under this provision the General Government, with the -concurrence of three fourths of the Legislatures of the States, has an -authority that no State government has. None of the State constitutions -grant its Legislature the right to extend its powers over counties, -cities, and towns; it must go to the people for that. - -How can it be said that sovereignty remains in a State, when it gives to -its associates the right to make all its laws if only three quarters of -them so elect? The granting by a community of power to a government over -it to control it, as it pleases, takes away the very foundation of -sovereign right; and objection was made to this clause for this very -reason. In the convention Elbridge Gerry, a prominent delegate from -Massachusetts, afterwards Governor of that State and Vice-President of -the United States, objected because the Constitution is paramount to the -State constitutions, and that two thirds of the States may introduce -innovations that would subvert the State constitution altogether.[19] It -is by the power given in this clause, that after the war of secession -slavery was abolished through the acceptance by the States of amendments -to that effect. The proclamation of Lincoln abolishing slavery in the -States in insurrection on January 1, 1863, did not give liberty to the -slaves in Delaware, Maryland, Missouri and Kentucky, and parts of other -States, that were not in rebellion. Many, perhaps all, of these States -abolished slavery before the amendments were passed. - - [19] 5 Elliot, p. 530. The clause was altered so that the ratification - of three fourths of the Legislatures of the States was required, - though two thirds of the States can call a new convention, and two - thirds of Congress propose amendments to the Constitution. - -The only authority given by the Constitution to States is this power of -amending it by the concurrence of State Legislatures in propositions -made by the Congress of the United States or the Legislatures of three -fourths of the States, and also the right of equal representation in the -Senate, and that in the election of President the vote is by electors -appointed in such manner as the State Legislature may direct. - -The provision forbidding a State from emitting bills of credit, passing -any bill of attainder, _ex post facto_ law, or law impairing the -obligation of contracts, are a restriction that sovereign nations would -never have submitted to. - -When a foreigner becomes a citizen, he abjures his allegiance to -his native country, and the oath he takes is before a United States -officer to the United States, not to the State in which he is -naturalized. Finally, by the Constitution the President is made the -commander-in-chief of the army and navy of the United States, and of the -militia of the several States. While an oath or affirmation is required -of every Senator or Representative, of every executive and judicial -officer of the United States and of every State, to support the -Constitution, the President alone--the one having the supreme military -power over all forces on land or sea--must swear or affirm that he will -faithfully execute the office, and "to the best of my ability, preserve, -protect, and defend the Constitution of the United States"; not to keep -from encroachment upon the rights of the States, but to preserve, -protect, and defend the Constitution. Can it be said that it is not to -be preserved over its citizens and States that are in arms to subvert or -resist its laws and supremacy? - -Jefferson, in the time of the Confederacy, when the States were -neglecting to pay the requisitions made of them, recommended that the -Continental Congress should show its teeth and send a frigate into the -ports of a delinquent State; but the new Constitution intended to draw -the teeth of the States by prohibiting them from keeping troops or ships -of war; and it reserved to the national government the right "to raise -and support armies"; "to provide and maintain a navy"; and gave it the -power of "calling forth the militia to execute the laws of the Union, -suppress insurrection, and repel invasion." Thus the Constitution added -to the supremacy of the new government the power to enforce it, and took -from the States the power, as far as it could consistently with freedom, -of resistance. - -The government of the Confederacy depended upon the several State -governments, their soldiers, and their contributions; it had no direct -control over the people; from the failure of the State government to -make the required contributions and enforce its decrees it was fast -falling into total inefficacy. We have shown that the new government, -established by the people of each State over themselves and the people -of the other States, had by its Constitution all the powers necessary -for a national government, and State governments were prohibited from -the exercise of conflicting powers; that waging war against that -government was treason, thus affirming that they, the people of each -State who established it, owed allegiance and were subjects of the -government; they, the people, also declared in the Constitution, that -the judiciary of their general government should have authority over -every case and question arising under its laws and acts; further, they -gave that judiciary and the government the power to enforce their laws -and the authority over every individual in its domain; and finally they -expressly declared the supremacy of the government and its laws over all -State laws and State constitutions. - -The departments of the government established by the Constitution are -three in number: the Legislative (Congress), to make the laws and to -pass the acts for the carrying it on; the Executive (the President and -the officers under him), to administer it, to carry into effect its laws -and acts, and represent it in its dealings with other countries; and -thirdly the Judiciary, to decide upon all controversies arising under -the laws and acts of the government. - -A department, however, in some instances has an authority in the others; -the President, the chief executive officer, has the right of veto, and -his principal appointments, especially those of the judiciary and -foreign ministers, are subject to the approval of the Senate. - -The power of the United States Judiciary Department to pass upon the -constitutionality or validity of laws made by the Legislature, is one -unknown to the unlimited imperial power of the Parliament of Great -Britain, and has been a source of perplexity to the writers and -legislators of that country, and of question recently in the House of -Commons. The question cannot arise and never comes before the judiciary -of that government, whether a law is within the parliamentary power. -With us, however, the question often arises, and the judiciary decides -whenever question is made as to whether a law is within the powers -granted by the Constitution. In all our States the State judiciary has -the same power to decide on the constitutionality of the laws and acts -of the State government. - -This system of giving the judiciary the right to define the extent of -the powers of the government has with us met with almost universal -approval. - - - - -CHAPTER III. - -THE CONSTITUTIONAL CONVENTION INTENDED NATIONALITY. - - -Let us now retrace our steps and see what took place in the convention -that made the Constitution, and what those that made it intended. -Fortunately we have the journals of the convention that framed the -Constitution; the minutes, until he left, of Mr. Yates, a delegate from -the State of New York; and Madison's full and careful report of all the -proceedings, debates, and votes. From these sources we shall see that -the makers intended, and that they considered they had made, a -perpetual, consolidated, National Government. - -The convention was called to amend the articles of the confederacy, and -to it were sent most of the distinguished men of the country. The State -of Virginia took an early and important part in the formation of the new -government. Before the meeting of the convention, Madison wrote to -Edmund Randolph, one of the delegates, that it would be well for him to -prepare some propositions from Virginia, he in his letter suggesting -what they should be. Immediately after the organization of the -convention after the choice of Washington as the presiding officer and -the establishing of standing rules, Randolph introduced a series of -resolutions, which had been considered by his colleagues and were known -in the convention as those of Virginia. They were in substance, that the -articles of confederation should be corrected and enlarged; that the -rights of suffrage in the national Legislature ought to be proportioned -to the quotas of contribution, or to the number of free inhabitants; -that the Legislature should consist of two branches, the first branch to -be elected by the people of every State; that the Legislature should -have supreme rights with coercive power against any member failing to -perform its duty, and that there should be a national Executive and -Judiciary. - -These resolutions were referred to the next meeting. At that meeting -Randolph, at the suggestion of Gouverneur Morris, who said that his -subsequent resolutions did not agree with the first, moved that this -first resolution, which was that the articles of confederation should be -corrected and enlarged, should be postponed, which was unanimously -agreed to. Randolph then proposed three other resolutions, the first two -that a union merely federal and treaties between the States as -sovereigns would be insufficient. The convention, after debate and other -propositions, considering the first two resolutions unnecessary, passed -the third, which was: "That a National Government ought to be -established consisting of a supreme legislative, executive, and -judiciary." All the States present voted ay, Connecticut only no, New -York divided--Hamilton ay, Yates no.[20] Yates in his minutes says -Randolph in first proposing his resolutions, "candidly confessed they -were not intended for a federal government; and that he meant a strong -consolidated union." Mr. Morris on the 30th observed that Randolph's -preamble as to amending the articles of the confederacy was unnecessary, -as the subsequent resolutions would not agree with it.[21] - - [20] 5 Elliot, 132-34. - - [21] 1 Elliot, 391 and 392. Yates' minutes. - -The votes in the convention were as in the confederacy, each State had -one and voted as a whole. If the delegation of a State was equally -divided, its vote was lost. - -By the 13th of June the Virginia resolutions had been considered and -passed with changes and amendments,[22] the first resolution as changed, -being that a national government ought to be established; the plan as to -representation (Resolves 7 and 8), being that the representation in the -two branches of the Legislature should be in accordance with the free -population and three fifths of all other persons (slaves), and excepting -Indians. - - [22] 5 Elliot, 189-90 states the resolutions. - -Further action on this report was deferred to June 14th at the request -of Mr. Patterson, who then offered a plan called that of New Jersey, -formed by the deputations of Connecticut, New York, New Jersey, and -Delaware, preserving the articles of the confederation, one Legislature, -the equal vote of each State, but revising, correcting, and enlarging -the conferred powers so as to render them "adequate to the exigencies of -government and the preservation of the Union." In the resolutions the -Executive, if any State or any body of men in the State should oppose -the execution of the acts or treaties of the government, was to call -forth the power of the States to enforce and compel an obedience.[23] -The ratification was to be by the Legislatures of the States; that of -the Virginia plan was to be by the people. The objection that the -delegates to the convention were exceeding their authority, which was -only to amend the articles of the confederation, was again brought up; -the discussion whether the government should be national or a -confederacy was again renewed. It was pointed out as a fatal objection -by Madison, Hamilton (who then spoke for the first time), and others, -that under a confederacy the coercing of a State to pay its quota or -compelling it to obey would in fact be a civil war, where the militia of -other States would have to march against the delinquent power. Hamilton -said he neither liked the Virginia nor the New Jersey plan; he praised -the constitutional monarchy of Great Britain as the most perfect -government. He was particularly opposed to Patterson's plan, "being -fully convinced that no amendment of the confederation leaving the -States in possession of their sovereignty could possibly answer the -purpose."[24] He stated the plan he should prefer: a general government, -with an executive and a senate for life or good behavior, the general -government to have the appointment of the governors of each State, who -should have a veto over the State laws.[25] He wished the States -abolished as States, but admitted the necessity of their having -subordinate jurisdiction.[26] He was aware that others did not approve -of his plan, nor would they, he thought, of that of Virginia, but they -might finally come to it. He thought universal suffrage a bad principle -of government. He apparently did not know how strongly the democratic -feeling existed amongst the people of this country; nor perhaps -appreciate the strength of a government that has at its back the will -and brute power of the majority of fighting men, as shown in our civil -war. He made that unfortunate speech, afterwards used against him, that -the people were getting tired of an excess of _democracy_, "and what is -even the Virginia plan _but pork still, with a little change of the -sauce_."[27] - - [23] 5 Elliot, 192, sixth resolve. - - [24] 5 Elliot, 199. - - [25] See his plan, 5 Elliot, 205. - - [26] 5 Elliot, 212. - - [27] Elliot, 423; also 5 Elliot, p. 206 note. - -As no one seconded Hamilton's plan and he did not urge it, the question -before the convention was between Mr. Patterson's plan enlarging the -power of the confederacy or the national one of Virginia. The former, -after much debate, was laid aside, only New York and New Jersey voting -no. The Virginia resolutions were taken up again by a vote of seven -States ay, to three nay, Maryland divided, which was a vote, so Madison -says, that they "should be adhered to as preferable to those of Mr. -Patterson."[28] - - [28] 5 Elliot, 212. - -That the word national was dropped from the resolutions of Virginia has -been dwelt upon by Southern writers, and by Calhoun at length in his -speech of 1833, as a proof that the national idea was abandoned. No such -conclusion can be drawn from the way in which it was done. On June 20th, -the day after the Virginia resolutions were again taken up and adopted, -the first resolution being before the House, Mr. Ellsworth moved it -should read: "That the government of the United States ought to consist -of a supreme legislative, executive, and judiciary." This alteration, he -said would drop the word national and retain the proper title, "The -United States." Mr. Randolph said he did not object, and it was -unanimously acquiesced in. - -The second resolution, that the Legislature should consist of two -branches, was taken up. Mr. Lansing moved instead, that "legislation be -vested in the United States in Congress," and again urged a confederacy. -On this George Mason,[29] to whom Mr. Lodge refers, said he did not -expect this point to be re-agitated, and compared a national government -to a confederate one. He spoke, "with horror," of the necessity that the -latter would have of collecting its taxes by compulsion over States, of -marching the militia of one State against another to enforce taxes; -_rebellion_ was the only case where military force should be exerted -against citizens. In the early days of the convention he had urged that -the new government should be one over individuals not States. He would -not, however, abolish the State governments or render them absolutely -insignificant. This second resolution was carried seven States to three, -Maryland divided.[30] - - [29] 5 Elliot, 216, 217. - - [30] 5 Elliot, 223. - -The next resolution, that the first branch of the Legislature should be -elected by the people, was supported by Mason, and Wilson said he -considered it the corner-stone of the fabric; only New Jersey voted -against it, Maryland divided. - -On the resolution of how the second branch of the Legislature should be -elected--by the State Legislature or the people,--Virginia voted that it -should be by the people.[31] - - [31] 5 Elliot, 240 and note. - -That the representation in the first branch should be in proportion to -the people was established. Then June 29th began the great controversy -in the convention of how the representation should be in the second -branch, whether in proportion to population or by State. - -When this discussion took place, the three great States were Virginia, -Massachusetts, and Pennsylvania. Virginia then comprised the territory -which is now West Virginia and Kentucky, and, including her slaves, had -the largest population. Massachusetts, instead of being insignificant in -territory, had the large area of Maine, which was made into a separate -State in 1820. Massachusetts had the largest white population and had -furnished more soldiers than any other State in the Revolution; and it -was probably for this reason that Madison alluded to it as the most -powerful State. New York had then about the same population that -Connecticut and Maryland had, and from apparent want of foresight as to -its future great and immediate increase in population and power took a -prominent part with the smaller States that wished representation should -be by an equal vote in both branches of the new Legislature. The -representatives of Connecticut, Sherman and Ellsworth, were also -strenuously in favor of equality of States. Ellsworth, in reply to -Madison's attack on Connecticut for refusing compliance to federal -requisitions, excused his State by reason of her distress and -impoverishment by her exertions during the revolutionary war, and -asserted that the muster rolls will show she had more troops in the -field in the revolutionary war than even Virginia, and he appealed to -the presiding officer, Washington, as to the truth of his statement.[32] -Georgia, then estimated to be the smallest in population, trusting to -the future settlement of its claimed large territory extending from the -sea-coast to the Mississippi, usually voted with the larger States.[33] -Mr. Bedford, of Delaware, asserted that South Carolina, puffed up with -the possession of her wealth and negroes, and North Carolina were both -united with the great States, and for the smaller States threatened, -"sooner than be ruined, there are _foreign powers_ who will take us by -the hand."[34] For this he was very justly rebuked by Rufus King, of -Massachusetts. It was hard for the smaller States having an equal vote -in the Confederacy to change it for one proportioned to inhabitants. It -was estimated that Delaware would have but one representative in each -branch to Virginia's sixteen. The argument of the smaller States was -that Virginia, Massachusetts, and Pennsylvania would combine to crush -the other States. Madison replied that their interests were so different -there was no fear of this. Massachusetts' product was fish; -Pennsylvania's, flour; Virginia's, tobacco. He predicted that the -struggle, when it came, would be between the Southern States with their -interests as exporters and the Northern commercial States. The opinion -was pretty generally entertained that any division that might arise -would be between North and South. - - [32] 1 Elliot, 469. - - [33] See estimates, Note 160, 5 Elliot, 598. - - [34] 1 Elliot, 472. - -The dispute between the greater and smaller States was finally settled -by the provision that all money bills should originate in the first -branch of the Legislature, that direct taxation should be in proportion -to representation in that branch, and that there should be an equal -representation in the upper House, the vote however being _per capita_ -and not by States. The final vote on this settlement was almost -unanimous, only one State, Maryland, in the negative.[35] - - [35] 5 Elliot, 357. - -It has been argued by Davis, Stephens, and others, that this equal -representation of the States in the Senate was an establishment of a -confederacy, and it has been a stumbling-block in the way of many -constitutional commentators who have considered it a _compromise_ -between a national and a confederate government. It is a _compromise of -the right of representation_ in one branch only of the legislative -department of the government; but it is _no compromise_ in the _powers -granted_. The powers granted to the government are of supremacy, -legislative, executive, and judicial, over State and State constitutions -and State judiciaries. If there had been rotten boroughs established by -the Constitution like those then in Great Britain, if Delaware and Rhode -Island had been given double the representation that Virginia had, or if -every slave of the South had counted for two white men in the free -States, the granted powers of the government would have been none the -less supreme and national, as the Constitution itself declares, and as -they in reality are. Scotland is not a sovereign nation because her -peers elect twelve of their number to the House of Lords of the -government of Great Britain. Oxford and Cambridge Colleges are not -sovereign powers because they choose representatives to the House of -Commons. Charles Pinckney of South Carolina with reason said: "Give New -Jersey an equal vote and she will dismiss her scruples and concur in the -national system." - -The other resolutions of Virginia, except those relating to an -executive, had been acted upon, when Elbridge Gerry of Massachusetts -moved, that "the proceedings of the convention for the establishing of a -_national government_" "be referred to a committee to prepare and report -a Constitution"; a committee of five was agreed upon, no one -objecting,[36] no one denying that the government was a national one. -From the 23d to the 26th of July the plan of the Executive was -considered and settled, and was unanimously referred to the Committee of -Detail, that of five already appointed to prepare and report the -Constitution. The convention adjourned until August 6th, to give the -necessary time to their committee. The resolves then passed are stated -in Elliot's _Debates_.[37] - - [36] 5 Elliot, 357. - - [37] 5 Elliot, 374-6. - -The first was, that the government of the United States ought to consist -of a supreme legislative, judiciary, and executive. The second, third, -fourth, and fifth were the resolves as to the two branches of the -Legislature. The sixth was: "Resolved, that the national Legislature -ought to possess the legislative rights vested in Congress by the -Confederation; and moreover to legislate in all cases for the general -interests of the Union," etc., etc. - -In the 12th, 13th, 14th, 15th, 16th, 20th, and 23d--the last, the -executive, the legislative, the judiciary, and the government were -termed national. These are the resolutions passed by the convention, all -declaring the government and every branch of it was national. This was -the plan agreed on; no changes were made except of detail and for -euphony, and some modifications. - -On August 6th the Committee of Detail reported the Constitution; a -printed copy was furnished to each member.[38] The preamble was, "We, -the people of the States of New Hampshire, Massachusetts," then follow -the names of all the other States, "do ordain, declare, and establish -the following Constitution for the government of ourselves and our -posterity." - - [38] Copy of Constitution as reported, 5 Elliot, 376-81. - -"Article I. The style of the government shall be the United States of -America." - -"Article II. The government shall consist of supreme legislative, -executive, and judicial powers." - -By Article X. the executive was vested in a president, to hold his -office for seven years, but not re-eligible, whose title was to be "His -Excellency." - -It will be noticed that the preamble had the declaration of perpetuity, -that we, the people, made it for "our posterity." - -The Constitution was then taken up by its separate articles, and they -were minutely and thoroughly discussed and somewhat altered. Each was -again passed, taking all the time from the 7th of August until September -12th. - -The definition of treason was considered at great length, and in the -debate it was shown that States might punish for acts against their -authority under the name of treason or under other names. Madison -thought the definition too narrow; Mason was in favor of extending the -definition and adopting the statute of Edward III.[39] The record of the -convention shows this article punishing treason was unanimously agreed -to, notwithstanding the objection Luther Martin said he made.[40] - - [39] 5 Elliot, 447. - - [40] 5 Elliot, 451. Article VII., Sec. 2, was then agreed to - _nem-con_. - -The supremacy of the Constitution and the laws of the United States over -the States and all citizens and State judiciary was passed, no one -opposing, August 23d.[41] - - [41] 5 Elliot, 467. - -The provisions relating to the office of President and his powers and -duties were much discussed and changed, and the title of "His -Excellency" dropped. - -The amended draft of the Constitution was submitted to a Committee of -Style and Arrangement, of which Gouverneur Morris was chairman, and they -changed the preamble to, "We, the people of the United States," from -that of "We, the people of New Hampshire," etc.; they inserted the -words, "in order to form a more perfect union, establish justice, insure -domestic tranquillity, provide for the common defence, promote the -general welfare, and secure the blessings of liberty," retaining that it -was to ourselves and our posterity, that we do ordain and establish this -Constitution of the United States of America. It has been argued and -strenuously claimed that this change to "We, the people of the United -States," was one made for euphony at the end of the session of the -convention, and has no force as a declaration that it was made by the -people. But it will be seen it took the place of one as explicit, one -declaring it was by the people of every State and for themselves and -posterity. It was necessary to drop the name of each State, as the -Constitution was to be obligatory only on the people of those States -adopting it. This change was not objected to by any one. The convention -considered this final draft from the 12th to the 17th of September, and -made some changes, when it was signed by all the delegates present -except four. - -The members of the convention evidently had studied for the occasion and -were learned in the history of leagues and governments; they referred to -Montesquieu, to Holland, Swiss Cantons, United Netherlands, Poland, -Amphictyonic Conference, Archæan and Lycian Leagues, the Germanic body, -and to Germany, from which the general principles of government came. - -There was a diversity of opinion in the convention about the durability -of the Union. Its rapid increase in population, its future greatness in -territory (for the members believed in the acquisition of the -Mississippi to its mouth), were foreseen and spoken of by many. - -Some there were who thought, with the extreme difficulty of -communication and intercourse, not knowing how steam navigation and the -railroad would almost annihilate distance, that it would be impossible -to keep such an immense territory and people together. Others -congratulated themselves as the founders of a great empire. Sherman of -Connecticut, on the question of limiting the number of new States to be -admitted, from the fear of their controlling the old thirteen, replied: -"We are providing for our posterity, our children and grandchildren, who -are as likely to be citizens of new Western States as of the old -States."[42] No one suggested any dissolution by claim of right of -secession. - - [42] 5 Elliot, 310. - -When the supremacy and nationality of the intended government were -settled, Yates and Lansing (who with Hamilton formed the delegation from -New York) on July 3d left the convention, and in their letter to -Governor Clinton,[43] stated that they did so because they were chosen -to revise the Articles of the Confederation and that the principles of -the Constitution sanctioned by the convention met with their "decided -and unreserved dissent," as would any system "which had in object the -consolidation of the United States into one government"; and that "a -persuasion that their further attendance would be fruitless and -unavailing rendered them less solicitous to return." - - [43] 1 Elliot, 480. - -We find after equal representation in the Senate had been granted to the -smaller States, that their delegates took a prominent part in enlarging -and strengthening the powers of the General Government. - -Luther Martin, who throughout the session of the convention had been -the most able and persistent opponent to a national government, -expressed his dissatisfaction at the close and was one of the four who -refused to sign. The three Southern States, North and South Carolina and -Georgia, as was stated in the convention, had exalted opinions of their -future population, and had been often on the side of the larger States. -They had obtained their wishes--representation for their slaves, the -right to import them until 1808,[44] the prohibition of export duties on -their rice, indigo, and tobacco, yielding only the taxation of imports. - - [44] Virginia opposed the importation of slaves. Mason particularly - condemned it. 5 Elliot, 458. - -General Charles Cotesworth Pinckney of South Carolina, towards the close -of the convention, expressed the satisfaction of the South at the -liberal conduct shown to them, and that it was for the interest of the -weak Southern States to be united with the strong Eastern States, that -the government should have the power of making commercial regulations, -and that though he had had his prejudices against the Eastern States, -"he had found them as liberal and candid as any men whatever."[45] - - [45] 5 Elliot, 489. - -Washington, the presiding officer, who had been advised by his best -friends not to accept the nomination as a member of the convention, and -who from a sense of duty assented to act, spoke but seldom. - -At the close of the proceedings he urged an amendment that removed the -objections of some members, which was agreed to unanimously. - -Next to Washington, Franklin was perhaps the most prominent person in -the country. His motions and suggestions did not generally meet with the -approval of the convention, excepting perhaps in reference to the -equality of representation in the Senate, where the committee appointed -under his resolutions brought in a plan for a settlement. His witty -remark, when the last members were signing, has taken its place in -history. Looking towards the President's chair, at the back of which a -rising or setting sun had been painted, he observed to those around him -that painters had found it difficult to distinguish a rising from a -setting sun, that during the session, between his hopes and fears as to -the issue, he would look at the sun behind the President and could not -tell whether it was rising or setting, but now he knew that it was a -rising one. Hamilton did not conceal his dislike to the plan adopted, -but promised his ardent support. His strenuous labors to that end in the -New York convention against the most persistent and determined -opposition were finally crowned with success. Gerry of Massachusetts -refused to sign; Gorham and Rufus King--who with Gerry had taken active -parts in the discussion,--together with their colleague, Caleb Strong, -signed. Madison and Blair alone signed for Virginia. Mason, though he -had said he would bury his bones in the city rather than the convention -should dissolve without doing anything,[46] and had been from the -beginning in favor of a national government, declined to sign what he -had been so instrumental in making; because he thought the great power -given to the Senate of trying impeachment, of making treaties, of -appointing ambassadors, judicial and other officers, would make an -aristocracy of its members. He and Randolph, the one who brought the -plan forward, thought the Constitution agreed on needed amendment and -wished another convention. One cannot help thinking their decision might -have been different, if Virginia had been allowed her proposed -representation in the Senate in proportion to population. - - [46] 5 Elliot, 278. - -We have already stated that the Constitution was sent to the Congress of -the Confederacy and by them submitted to the State Legislatures, who all -sanctioned it so far as to submit it to conventions chosen by the -people. In each and every State the coming into the new government was -ultimately decided by the people, and not by the State government. - -In many of the States the adoption of the Constitution was -pertinaciously and vehemently opposed on the ground of the great and -excessive powers given to the new government, that might be destructive -of the liberty of the people. The appointment of officers, and the power -of the President with his command of an army and navy in peace as well -as in war, the legislative rights of Congress with an unlimited right of -taxation, were so great that eminent and prominent men expressed their -belief that the government would end in a despotism. - -In Pennsylvania, Wilson at great length explained the new form of -government, stating "that by adopting this system we become a nation; at -present we are not one."[47] His labors in the State and the general -conventions have been fully recognized by recent writers. - - [47] 2 Elliot, 526. - -It was only after a long and heated discussion in the large convention -of the then important State of Massachusetts, where were present, John -Hancock, Fisher Ames, Rufus King, and Sam Adams, who reluctantly yielded -consent, that the Constitution was adopted, the majority in favor being -small. - -In Virginia, which was the tenth State to come into the Union, Patrick -Henry, who had declined the appointment to the general convention, -objected because the Constitution said "We, the people," instead of "We, -the States"; and "if the States be not the agents of this compact, it -must be one great consolidated national government of the people of all -the States."[48] "It had an awful squinting towards monarchy." "The -federal convention ought to have amended the old system." George Mason -objected because the Constitution had no bill of rights and would end in -a monarchy or corrupt oppressive aristocracy, and the confederation be -converted to one grand consolidated government.[49] The acceptance was -ably argued and urged by Madison and others and Edmund Randolph, who had -refused to sign, but had since come to the conclusion that the only -chance of escape from the discredited, crumbling Confederacy was in -adopting the new Constitution. He said in the beginning of the debate, -"I shall endeavor to make the committee sensible of the necessity of -establishing a _national government_. In the course of my argument I -shall show the inefficacy of the confederation."[50] - - [48] 3 Elliot, 22. - - [49] See Mason's objections, 1 Elliot, 494, also _Debates_. - - [50] 3 Elliot, 64. - -The acceptance of New York, her territory dividing the Central and -Southern States from the Eastern, was considered all important. Her -ratification of the Constitution came late. She was the eleventh State, -and neglected to vote for President at Washington's first election. - -John Jay, the Minister for Foreign Affairs of the Congress of the United -States, in an address to the people, plainly told them the new -government was national. He said: "Friends and Fellow-Citizens--The -convention concurred in opinion with the people, that a national -government, competent to every national object, was indispensably -necessary."[51] - - [51] 1 Elliot, 496. - -Hamilton, Jay, Chancellor and other Livingstons, Melanchthon Smith, and -a number of leading citizens were members of the convention. Yates and -Lansing, who were members of the general convention that made the -Constitution, and Governor George Clinton strenuously and persistently -opposed the ratification, alleging as the reason the danger from the -great powers given to the General Government subverting those of the -State. - -This New York convention for a long time was opposed to the -ratification. Hamilton, who was exceedingly zealous for it, wrote almost -in despair to Madison, asking if a State could adopt the Constitution -conditionally and afterwards withdraw from the Union if its proposed -amendments were not adopted. Madison replied, that "a conditional -ratification did not make a State a member of the Union. The -Constitution requires an adoption _in toto_ and _forever_. It has been -so adopted by the other States. An adoption for a limited time would be -as defective as of some articles only." Hamilton did not question the -correctness of this opinion; but New York was brought finally to giving -her consent. Mr. Lansing's two motions (which show that he thought the -Union perpetual) of a conditional ratification with a bill of rights, -and of a reservation of a right to withdraw from the Union after a -certain number of years unless the amendments proposed should previously -be submitted to a general convention, were negatived;[52] a similar -conditional acceptance had been proposed in the Virginia convention and -abandoned. - - [52] 2 Elliot, 412. The acceptance was passed in full confidence that - the bill of rights proposed by New York would be passed. - -The proceedings in most of the conventions called by the several States -are reported in Elliot's _Debates_. In none of them was the theory -advanced or suggested that a State had the power to secede from the -government or decide as an independent sovereignty on the validity of -the acts or laws of the new government. If the power to nullify was then -supposed to exist, if the right of a State to leave at its will was -thought of, why was it not then urged that nullification and secession -were easy remedies if the Union should be or become oppressive? No one -imagined that there was any such power remaining in the States. No one -answered to the alleged fear of oppression and tyranny that the State -could nullify or secede. Neither friend nor foe, as Webster said, -claimed either. - -On all occasions, in all the speeches, it was assumed as granted, that -the consolidation of the States, as it was termed, was national and -perpetual. Even in South Carolina the proceedings are conclusive on -this point. The Constitution first came before the legislature on the -question of submitting it to the people of the State. Charles Pinckney, -who had also been a very prominent member of the general convention that -made the Constitution, said: "He repeated that the necessity of having a -government which should at once operate upon the people, and not upon -the States, was conceived to be indispensable by every delegation -present."[53] - - [53] 4 Elliot, 256. - -The question whether the States ever had individual sovereignty arose in -the convention chosen for deciding on the ratification of the -Constitution, and General Charles C. Pinckney[54] insisted that our -independence came from the Declaration of Independence made by the -Congress of the Confederacy, wherein in the name of the good people of -these colonies we were declared free and independent States. The -separate independence and individual sovereignty of the several States -was never thought of, not even mentioned by name in any part of it. The -same objection in South Carolina as in other States to the Constitution -as destructive of liberty was made. James Lincoln, a delegate from -Ninety-six, said: "From a democratic you are rushing into an -aristocratic government. Liberty! what is liberty? The power of -governing yourselves. If you adopt this Constitution have you this -power? No; you give it into the hands of a set of men who live one -thousand miles distant from you."[55] - - [54] 4 Elliot, 301. - - [55] 4 Elliot, 313. The objections to the Constitution came very -generally from the interior western parts of the State. They were so in -Massachusetts, Virginia, and New York. - -The words of ratification of the States are also conclusive on these -points. We will take the three important States whose acceptance was for -a long time doubtful. Massachusetts in her pious and reverential -ratification used the word compact, which numerous Southern writers, -Davis, Stephens, and others, bring up as proof that Massachusetts -considered the Constitution a mere confederacy and not a government. - -To refute this it is but necessary to give the very words used: - - "The Convention, acknowledging with grateful hearts the - goodness of the Supreme Ruler of the Universe in affording the - people of the United States, in the course of his providence, - an opportunity deliberately and peaceably without fraud or - surprise of entering into an explicit and solemn compact with - each other, by assenting to and ratifying a new constitution in - order to form a more perfect union, ... do, in the name and - behalf of the people of the Commonwealth of Massachusetts, - assent to and ratify the said Constitution for the United - States of America." - -It is _the people of the United States_, not the States, nor the people -of the State of Massachusetts, that enter into this explicit and solemn -compact with each other for a more perfect union. As we have said -before, a compact may be for a national government or for a confederacy. -If the convention understood that it was States making a confederacy, -they would have said the people of the State, and not the people of the -United States. - -We come next to Virginia's acceptance of the Constitution, which, to -Calhoun's peculiar mind, was "a conditional one." "A condition made in -the interest of all the States, and of which any State could avail." - -The acceptance was made "_in behalf of the people of Virginia_"; the -condition was, "that the powers granted under the Constitution being -derived from _the people of the United States_ may be resumed _by them_, -whensoever the same shall be perverted to their injury or oppression," -and that "among other essential rights the liberty of conscience and of -the press cannot be cancelled, abridged, restrained, or modified by any -authority of the United States." - -It cannot be disputed that the convention, by this acceptance, -understood and declared that there was thence but one nation; they -accept the government in behalf of the people of Virginia; they -acknowledge that the powers are derived from "the people of the United -States"; and add, if the government be perverted to the injury and -oppression of the _people_ of the _United States, they, the people of -the United States_, may resume the granted powers, not the people of -Virginia or the State of Virginia. If the convention understood that -they were making a _compact between States_ that were to retain -sovereignty, or the right to withdraw, it certainly would have said: if -the United States Government be perverted to the injury of the States, -then the State or sovereign State of Virginia or the people of the State -could resume the powers granted by her. - -Clinton is one of the four persons whom Mr. Lodge cites as of the -opinion that the Union was a dissoluble, precarious, and temporary -affair. The letter of Madison to Hamilton--we have before mentioned--in -relation to the perpetuity of the Union and that there could be no -conditional acceptance, is well known to constitutional writers and -historians, and regarded as of the highest authority; but the more -emphatic and decisive declaration of the convention of New York, in its -circular-letter to the governors of the different States, signed by -Clinton, its President, and _ordered unanimously_, seems to have escaped -all notice. In that letter he and they state to the governor of each -State the ratification of the Constitution by New York and her -recommendation of certain amendments. He and they add, none of these -amendments originated in local views. - - "Our attachment to our sister States, and the confidence we - repose in them, cannot be more forcibly demonstrated than by - acceding to a government which many of us think very imperfect, - and devolving the power of determining whether that government - shall be rendered _perpetual in its present form_ or altered - agreeably to our wishes and a minority of the States with whom - we unite."[56] - - [56] Circular-letter from the convention of New York to the governors - of the several States of the Union. Elliot's _Debates_, vol. ii., - pages 413, 414. - -Can anything be more explicit that every one, everywhere, at that time -understood the Union was perpetual, than this unanimous address of the -convention of New York saying so to all the other States, and the -submissive request that they would amend the Constitution in accordance -with their wishes? - -The conventions of Massachusetts, Virginia, and New York passed -resolutions recommending what they considered important necessary -amendments to the Constitution. These resolutions and the -recommendations of other States were considered in the first Congress, -and ten articles, commonly called the Bill of Rights, were passed, and -duly ratified by the legislatures of the States. These articles are -safeguards against the feared tyrannical grants that had been given, and -are all restrictive of the powers of the United States over its -citizens, not of its powers over States. They are: that the people -should have the right of petition; and "a well regulated militia being -necessary to the security of a free State, the right of the people to -keep and bear arms shall not be infringed." This shows how deep and -serious the States believed the danger to be from the great powers of -the General Government with a standing army and navy. - -Other amendments were, that no law should be passed abridging the -freedom of speech or of the press, or of trial by jury in suits at -common law where the amount involved exceeds twenty dollars; that there -should be no established religion, and matters of that kind. None of -these ten amendments give any powers to State governments. The final -clause reserves all the powers not granted, "to the _States_ -respectively, or to the _people_," not to the States and their people, -or the people of the respective States; but to the people, putting the -people as a whole. - -Great stress has been laid by Calhoun and his followers on this clause, -as giving power to the States. As the United States Government's -sovereignty is undoubtedly limited to the express grants of the -Constitution, the powers not granted are in the States or people. There -was no need of any reservation, except to allay the fears of those who -erroneously believed that the Constitution gave unlimited power to the -Union. - -We have seen that in the discussions in the constitutional conventions -it was denied that any separate State ever had or exercised sovereign -powers. Judge Story, whose authority is as great as that of any legal -writer, in his commentaries on the Constitution maintains this doctrine. -Many of our earlier historians concur in this. - -It is urged that originally we were one people of different colonies, -subjects of the British Kingdom; our independence of that kingdom and -existence as a power came from the declaration of the Congress of our -combined government, in which we are called one people. No State ever -acted separately in any sovereign capacity; we carried on the war, made -peace, and treated with foreign countries as one nation. Even territory -had been ceded to the Confederacy by the several States; and it was the -Confederacy that passed the ordinance of 1787 abolishing slavery in the -Northwest. The States had declared this Confederacy indissoluble. -Webster, as we have seen, did not found his argument on the ground that -the States never had sovereignty; he impliedly admitted the claimed -independence, or sovereignty of the States, before the forming of the -Union; it is safer to make this concession as Webster did. Each State -had its choice to join the Union or to remain apart and become an -independent sovereign power. - -Our first chief-justice, John Jay, a most eminent jurist, a member of -the New York convention, and one of the writers of the _Federalist_, in -his decision in the case of Chisholm against the State of Georgia, where -Georgia denied that a State could be sued, very clearly states how our -government was formed and where the sovereignty is. He said: All the -people of our country were subjects, every acre of land was held by -grants from the Crown of Great Britain; the sovereignty passed from the -Crown to the people, and a confederation of States was established as -the basis of a general government. Then the people of the country made -a new government saying, "We, the people of the United States, do ordain -and establish this Constitution." Every State constitution is a compact -between the citizens to govern themselves in a certain manner, and the -Constitution of the United States is likewise a compact made by the -people of the United States to govern themselves as to general objects -in a certain manner.[57] - - [57] See 2 Dallas _Reports_, p. 471, for opinion in full. - -It has often been asserted and apparently is generally believed, that in -the lapse of time the limited authority of the United States has been -gradually extended, national powers assumed, and the whole fabric of -government changed. An examination, however, of the laws passed by the -earliest Legislatures shows a very liberal construction of the granted -powers. Madison was a leader in the first Congress, he was through life -a strict constructionist of the extent of the powers given by the -Constitution. He informs us that no one doubted in that Congress that -the United States had the power of levying duties for protection.[58] -The want of such power was the very ground on which South Carolina -passed the nullification acts of 1832. The preamble of the law of the -first Congress, stating that the duties laid were for the encouragement -and protection of manufactures, we have already cited. The same act -made a discrimination in favor of imports of teas from China and India -direct in ships belonging to citizens of the United States, allowed a -drawback on dried and pickled fish and salted provisions in lieu of a -drawback on the salt used in them. In the third session of that first -Congress, an excise tax was laid on distilled spirits, and the Bank of -the United States was incorporated--because of its utility to the -government in the collection and transmitting of its revenue. Carriages -were taxed in 1794. To the charter of the bank and the carriage-tax -Madison and others objected as not within the granted powers. Also in -1794 sales of wines and liquors by retail and sales by auction were -taxed. And Madison himself introduced a bill to make a post-road through -the whole length of the States from Maine to Georgia. - - [58] Madison's letter to Jos. C. Cabell: Consideration No. 8. - 4 Elliot, 602. - -The suit before referred to against the State of Georgia,[59] under the -clause giving the United States Courts jurisdiction between a State and -citizens of another State, is another piece of contemporary history and -the strongest possible proof what was the understanding of that day. -Georgia was sued by a citizen of South Carolina in a simple action of -assumpsit, the legal term for a suit in which one would recover for the -cost of a pair of shoes or a day's wages. Georgia refused to defend the -claim on the ground that she was a sovereign State. - - [59] 2 Dallas _Reports_, 419. - -The case came before the full bench of the Supreme Court, and was argued -for the plaintiff by Edmund Randolph, then Attorney-General, the -prominent member of the general convention and that of Virginia, who -stated his opinion strongly against this claim of Georgia. The decision -was against Georgia; Blair and Wilson, who were members of the -convention that made the Constitution, the Chief-Justice Jay, and -Cushing giving fully reasoned opinions. Iredell, a member of the North -Carolina Convention, gave a dissenting opinion; it was not because he -held that Georgia was a sovereign State as generally stated. He said as -to sovereignty: "The United States are sovereign as to all the powers of -government actually surrendered; each State in the Union is sovereign as -to all the powers reserved." This same doctrine, as to the sovereignty -of a State in unsurrendered powers, was held by Marshall.[60] - - [60] Providence Bank _vs._ Billings, 4 Peters, 514. - -The reason of Iredell's dissent was that before the adoption of the -Constitution a State could not be sued; that no suit now could be -brought against a State, because Congress had not made a law providing -for it. Further, he intimated it was not intended by the Constitution to -give the right of a compulsory suit against a State. As to the -sovereignty of the United States in the powers conferred to it, the -court was unanimous. - -In the same suit, Jay and Cushing maintained that the United States -cannot be sued, a dictum since followed, though the Constitution gives -jurisdiction to the courts where the United States are a party. - -At this time all the States were greatly indebted and many suits were -instituted against them, the United States Courts maintaining their -jurisdiction over the States. The alarm was general, and to quiet the -apprehension that was so extensively entertained, an amendment, taking -from the United States judicial power in suits against a State, was -adopted in Congress and afterwards ratified by the State Legislatures in -1798. That its motive was not to maintain the sovereignty of a State -from the degradation supposed to attend a compulsory appearance before -the tribunal of the nation may be inferred from the terms of the -amendment. It left jurisdiction to the United States of controversies to -which the United States shall be a party, of controversies between two -or more States, between citizens of different States, between citizens -of the same State claiming under grants of different States.[61] - - [61] Chief-Justice Marshall's remarks in Cohens _vs._ Virginia, 6 - Wallace, 264. - -Early in our history, in the second administration of Washington, a -formidable, armed, organized resistance was made to the enforcement of -the excise laws of the General Government in the western portion of -Pennsylvania, which extended into a part of Virginia. It was computed -that there were sixteen thousand men capable of bearing arms in the -district in insurrection. Washington called out the militia of several -of the States and, as Commander-in-chief, suppressed the revolt. The -march of the troops was fatiguing and long, late in the fall, in rain -and storms, which caused much suffering and, in the end, a good many -deaths. The insurrection was crushed by the power of the General -Government with promptness and vigor, much to the satisfaction of -Washington and Hamilton then Secretary of the Treasury; it strengthened -the government and the administration. Of the prisoners tried before the -United States Court at Philadelphia two were found guilty of treason, -who from some palliating circumstances were ultimately pardoned by the -President.[62] - - [62] Hildreth's _History_, vol. iv., p. 515. - -We have seen what were the opinions of the nature of the new government -held by Hamilton, Mason, and Clinton, three of the persons Mr. Lodge -named. There can be no doubt what Washington's was. No one knew better -than Washington, what a miserable condition the States, then petty in -population and poor in resources, would be without a strong, -indissoluble Union. Only one of the States, Virginia, had over half a -million of inhabitants, nearly half slaves; two had about sixty -thousand. - -Washington, long before, on the disbanding of the army in 1783, wrote -to the governors of the States that, according to the policy the States -should adopt, depended whether the revolution was a blessing; and he put -"first" among the essential requisites "an indissoluble union of the -States under one federal head."[63] In his address as president of the -convention submitting the Constitution to the Congress of the States, he -said: "In all our deliberations on this subject we kept steadily in our -view that which appeared to us the greatest interest of every true -American, _the consolidation of the Union_, in which is involved our -prosperity, felicity, safety, perhaps our _national_ existence." In his -farewell address, as President, to the people of the United States, in -no less emphatic terms, he declared the importance and the success of -the Union. He said: "The _unity of Government_, which constitutes _you -one people_, is also now dear to you; it is justly so, for it is a main -pillar in the edifice of your real independence--the support of your -tranquillity at home, your peace abroad; of your safety; of your -prosperity; of that very liberty which you so highly prize."[64] - - [63] Eliot's _Manual of United States History_, 266. - - [64] Sparks' _Washington_, vol. xii., p. 214. - -We have before stated, that at the institution of our government there -was a great fear on the part of a portion of the people of its -consolidation and the extension of its granted powers over those -reserved to the States and people. It was not however until the -administration of John Adams, about ten years after the government had -gone into operation, that the power of a State to pass judgment on the -validity of the acts of the United States was suggested. Those who had -elected Adams as President called themselves Federalists, and, as is -natural in those controlling the government, were in favor of a liberal -construction of its powers. The name federal, taking its Latin -derivation, refers to a bond uniting states; that bond may be, however, -that of a confederacy or of a nation. Perhaps it was a misnomer for the -party in favor of a broad national construction of the Constitution. The -name has come into use, however, as descriptive of our government; it is -very generally called the Federal Government. The proposed uniting of -states, like the British colonies in the Pacific, is spoken of as -federal. Indeed there is no substantial objection to terming any sort of -government made by a constitution or agreement federal. - -The party, at that time of our history, in opposition to the Federal, -and who were in favor of a strict construction of the Constitution, -called themselves by the national name of Republicans. When, however, -they came into power under Jefferson, they were no longer strict -constructionists. - - - - -CHAPTER IV. - -KENTUCKY AND VIRGINIA RESOLUTIONS. - - -During Adams' administration peace had been endangered by the endeavor -of foreigners to embroil the country in the war then raging in Europe. -In 1798 the Alien Laws giving the power to the President to expel -foreigners, and the Sedition Law punishing seditious acts and libellers -of the government, were passed. The constitutionality of these laws may -be fairly questioned. - -Jefferson, the leader of the party in opposition to those in power, was -not a member of the convention that formed the Constitution, he was at -that time serving the country in Europe. He was exceedingly disturbed by -the Alien and Sedition Laws, and has generally been held as the -instigator and author of the Kentucky resolutions condemning them, and -asserting the right of nullification, passed by its Legislature in -November, 1798.[65] The Virginia Assembly soon afterwards, late in -December of that year, passed the famous resolutions so much relied upon -by those claiming the right of nullification and secession. Jefferson -did not find the Legislature of Virginia as compliant as that of -Kentucky; and the resolves passed by Virginia differ fundamentally from -those of Kentucky. - - [65] Two drafts of the resolutions in his handwriting were found - amongst his papers and are published in his writings. - -At the time they were passed little notice was taken of the Kentucky -resolves, owing undoubtedly to the small importance of the declarations -of the Legislature of a State just admitted to the Union with but few -inhabitants. Besides, Kentucky had no claim to original sovereignty. She -owed her existence, the right of government over her territory, and of -expressing her opinions, to the privilege the General Government had -given her to become a State. How with any decency could such a State -claim to be a sovereign, to pass judgment on the legality of the laws of -the United States from whom came her very being? - -Then, after all, resolutions are not laws, and these resolutions of -Kentucky (and the same remark applies to the resolutions of all other -States passing judgment on the laws of the United States declaring them -null and void) are merely the opinion of that particular Legislature -that passed them, a sort of harmless suggestion of superior wisdom. -There is no provision in any of our State constitutions authorizing the -Legislature to give such opinions and the next Legislature may pass -others directly contradictory. They are only entitled to respect as -_opinions_, as would be the opinion of any town meeting or synod of -clergymen or assemblage of citizens. - -The Kentucky resolutions declare, and it was the first time any such -declaration was made, the same doctrine that Calhoun and Hayne -subsequently maintained; that the several States are united by compact, -under the style and title of a constitution, in a general government for -special purposes, and when the General Government assumes undelegated -powers its acts are void and of no force. - -Then comes the doctrine, that this government created by this compact is -not the exclusive or final judge of the extent of the powers delegated -to it, "but that, as in all other cases of compact among parties having -no common judge, each party has an equal right to judge for itself, as -well of infractions as of the mode and measure of redress." - -Let us examine this reasoning of the Kentucky resolutions. It is that -the States are united in a general government by a compact, called a -constitution, for special purposes, and when the government assumes -undelegated powers its acts are null and void. There is no objection to -calling the Constitution a compact for special purposes only, and -declaring that the government under it has no right to assume not -granted or undelegated powers, and that any such assumption is void and -of no force. - -The only objection to this first clause is the ambiguity in the -declaration that _the several States_ are united by compact. The -Constitution may be called a compact; but it cannot be denied that it -was between the people of the different States. It was not a treaty or -agreement made by the State Legislatures or State governments. - -In the second clause comes the objectionable clause, that the government -created is not the exclusive or final judge of the extent of the powers -delegated to it. - -We have already set forth that in this Constitution, or compact, which -is declared, by those who made it, supreme over all constitutions and -laws of every State, that all cases arising under the Constitution or -laws of the United States shall be tried by its judiciary.[66] Here is a -compact by the people of the several States, that when any questions or -cases arise the United States Judiciary shall have jurisdiction and -decide upon them. The parties to this compact have thus expressly made -that judiciary the final judge of the validity of the laws, and -therefore necessarily of the extent of power delegated to the -government. It cannot be denied that even independent sovereign nations -can establish a tribunal over themselves by arbitration or compact that -shall be conclusive. How then can the supremacy of the judiciary of the -United States be questioned by a State, whose people have deliberately -declared the United States Judiciary supreme over the State -constitution and laws, and that it has supreme judicial authority over -all cases arising under its Constitution and laws. - - [66] Article III., Sec. 1, of the Constitution. - -We must bear in mind that our Constitution and Government would have -been an absurdity and a failure, if every State, as an independent -authority, could question the validity of a United States law or the act -of any of its legal or administrative officers; four and forty different -State judiciaries to decide on what law was valid in each independent -sovereign State or Nation. As Webster and Chief-Justice Marshall said, -and Calhoun admitted, on every constitutional question this theory of -nullification gave as many vetoes as there are States. - -Admitting, however, for the argument, that the States are independent -sovereign nations, this nullification doctrine of the Kentucky -resolutions is very faulty. It asserts the right of those who deny the -binding obligation of the compact, to break it; it entirely ignores the -right of the other parties, even when of the majority, who hold to a -different construction, to enforce their view. In all compacts or -agreements between nations there is the right of the independent -sovereign nations, and emphatically when of the majority, to make -another independent nation perform the compact it has made. The majority -is not obliged to yield to the minority. The _ultima ratio_, the final -reasoning of nations is war, and the majority certainly have that -right. - -Jefferson himself asserted this right of a confederacy to coerce a -State, a party to an agreement, when he wrote to Cartwright that the -Confederate Congress should send a frigate and compel a State to pay its -quota. Washington was of the same opinion, when, in reference to New -Jersey's refusal to pay her contribution, he wrote, "that counties in -Virginia and Massachusetts might oppose themselves to the laws of the -State in which they are, as an individual State can oppose itself to the -Federal Government."[67] - - [67] Washington's letter to Dr. Wm. Gordon. Bancroft's _History of the - Constitution_, vol. i., p. 320, Appendix. - - See also in Jefferson's _Works_, letter to Madison, April 16, 1781, - approving of coercion by a party to a compact. - -The absurdity of the Kentucky resolutions[68] does not end with the -nullification theory. One would imagine the dispute would have been, who -did not write them, not who did. By the Constitution certain powers are -given to Congress, and the authority "to make all laws which shall be -necessary and proper for carrying into execution the foregoing powers." -The power to punish three offences only is mentioned, but that Congress -had the power to enact all laws necessary to enforce and maintain its -authority is expressly given, and never had been questioned before these -resolutions. - - [68] Kentucky resolutions, 4 Elliot, 540. - -The authority of Congress is often illustrated by referring to the power -given "to establish post-offices and post-roads." Under this brief -grant, Congress has passed laws punishing the robbing and obstructing -the mail, and breaking open letters, and has assumed the right of taking -of lands, and building post-offices, and doing everything requisite for -protecting, transmitting, and distributing mail matter. Congress has -also passed laws punishing the bribing of judges and of obstructing or -in any way interfering with judicial processes. In fact, it is difficult -to see how the government could go on without these powers to enforce -and maintain its authority. But this Kentucky Legislature resolved that -Congress had only the power to punish treason, counterfeiting the -securities and coin of the United States, and piracies and felonies -committed on the high seas, and offences against the laws of nations; -because the power to punish these three crimes was alone enumerated in -the Constitution. And it expressly enumerated two acts, one the Sedition -Law, and the other an act to punish forging or uttering counterfeit -bills of the Bank of the United States, "and all other their acts -('Congress') which assume to create, define, or punish crimes other than -those enumerated in the Constitution, are altogether void and of no -force"; that the States only had this power each in its own territory. - -The resolutions also arraigned the government for the sedition and other -acts punishing crimes, saying "that the General Government may place -any act they think proper on the list of crimes and punish it -themselves." It declared "that these and successive acts of the same -character may tend to drive these States into revolution and blood." It -will be noticed that the resolutions make no claim of a right of -secession. The use of the words revolution and blood implied that -resistance to the laws would be war. - -The resolutions also arraigned the government for the Alien Law, calling -it a tyranny, and asking the States to concur with them in considering -that the acts of the General Government were so unconstitutional that -they amount to an undisguised declaration "that the compact is not meant -to be the measure of the powers of the General Government, but that it -will proceed in the exercise over these States of all powers -whatsoever"; and they ask the States that they will concur in declaring -these laws void and of no force, and in requesting their repeal. The -resolutions did not call upon the people or State of Kentucky to treat -these denounced laws as null and void, but asked the other States to -join them in getting Congress to repeal them. - -For some reasons wholly incomprehensible, these nullifying resolutions -of Kentucky and those of Virginia have been seized upon and referred to -by late writers in the mistaken belief that they were the same, and are -alike declaratory of the right of a State, as an independent sovereign -power, to treat as null and void any United States law it deems to be -so, and with apparently the belief that they were concurred in to a -great extent at the time of their adoption.[69] - - [69] See vol. i., Bryce's _American Commonwealth_, p. 328. - -No one has suffered more than Madison from this error,--Madison, justly -called the father of the Constitution, who, when its adoption seemed to -depend upon the acquiescence of New York, and that State hesitated about -joining the Union and proposed to make a conditional acceptance, firmly -declared an acceptance was absolute and perpetual, who in No. 39 of the -_Federalist_, the work written for the purpose of setting forth the plan -of the new government, was no less explicit on the question of -nullification, and said: "It is true that in controversies relating to -the boundary between the two jurisdictions, the tribunal which is -ultimately to decide is to be established under the general -government.... Some such tribunal is clearly essential to prevent an -appeal to the sword and a dissolution of the compact, ... and it could -be safely established under the first alone,"--the General Government. -And who later in 1833 wrote to Webster in reference to his speech in -answer to Calhoun: "It crushed nullification, and must hasten an -abandonment of secession."[70] His biographers speak of his double -dealing in this matter, and even Mr. Hare, in his valuable commentaries -on the Constitution, passes the same judgment on his conduct.[71] - - [70] Bledsoe, _Is Jefferson Davis a Traitor_, p. 173. - - [71] There are several works on the Constitution by Story, Bancroft, - G. T. Curtis, and others, but none of them that we have seen, except - the recent work of Professor Hare, that ably treats the matter, has - taken up the question of nullification and secession. Apparently the - authors did not think such a claim could be made. Some editions - recently published have notes on this matter. - -But, besides Madison, the fair fame of the State of Virginia, to whom, -for its being, the nation owes the greatest debt of gratitude, should -not be tarnished by the taint of having so soon declared that the laws -of the United States and the acts of its officers could be held and -treated as null and void by every State that questioned their validity. -From Virginia came Washington, the great general under whose command we -became a nation, the presiding officer over the convention that made the -Constitution, and who as our first President inaugurated and put -successfully into operation the national government, assuming no -unauthorized powers. To Virginia also is due the plan of the new -government proposed in the convention by Randolph, and ably shaped and -developed by Madison and Mason. Nor can we overlook the great -Chief-Justice, Marshall, who for so many years and from its early -existence defined the powers granted to the government, and maintained -them with fairness and without encroachment on those of the States. - -In these famed resolutions the Virginia State Assembly, professing a -determination to maintain and defend the Constitution of the United -States and of the State, and a warm attachment to the Union, declared -that the powers of the Federal Government were limited by the plain -sense and intention of the instrument constituting the compact the -States are parties to, and that in a case of a deliberate, palpable, and -dangerous exercise by the Federal Government of other powers not granted -by the instrument of the compact between the States, it is the right and -duty of the States, the parties thereto, to interpose and arrest the -evil and maintain their rights. It asserted, with deep regret, that the -Federal Government had enlarged its powers by forced constructions of -the constitutional charter which defines them, and that there were -indications of a design to consolidate the States into one sovereignty -and to transform the government into an absolute or at best a mixed -monarchy; that particularly the Alien and Sedition Acts exceeded the -powers delegated by the Constitution, and were subversive of the general -principles of a free government, and were expressly and positively -forbidden by the Constitution; that the good people of this -commonwealth, with the truest anxiety for establishing and perpetuating -the Union, and with the most scrupulous fidelity to the Constitution, -appeal to the other States to concur in declaring the acts aforesaid -unconstitutional, and in taking the necessary and proper measures, in -co-operation with Virginia to maintain the rights reserved to the States -or people.[72] - - [72] Virginia's resolutions and explanations, 4 Elliot, 528, 529, 546 - to 580. - -It is to be borne in mind that the declaration of Virginia is, "that in -a case of a deliberate, palpable, and dangerous exercise by the Federal -Government of other powers not granted"--(that is, in the case of -usurpations), it is the duty of the States, not the duty of a State, to -interpose and arrest the evil and maintain their rights. Certainly in -such cases some power should interpose, and if States can legally under -the Constitution interpose to remedy such an evil, there can be no -objection to such interposition. Indeed a usurpation of powers might be -so plain and serious as to justify rebellion. - -There is apparently a belief amongst some writers since Von Holst -published his, so-called, _Constitutional History of the United States_, -that Virginia laid down the doctrine, that "States can interpose." As if -it had been declared there was a right of States to interpose their -authority and prevent the United States from enforcing its laws. It is -in case of _usurpations only_ Virginia claims that it is a duty and -right _to interpose to redress this evil_. There is no statement how -States should interpose; no suggestion that the method should be other -than in the way the Constitution sanctions. - -It is very much to be regretted that Mr. Henry Adams, in his very able -and interesting history of the United States, should have added his -great authority to this construction of the resolves. He says the -Republican and the Federalist parties "were divided by a bottomless gulf -in their theories of constitutional powers." "The Union was a question -of expediency, not of obligation: this was the conviction of the true -Virginian school and of Jefferson's opponents as well as of his -supporters, of Patrick Henry as well as of John Taylor of Carolina and -of John Randolph of Roanoke"; and "The essence of Virginian -republicanism lay in a single maxim--the Government shall not be the -final judge of its own powers." - -The resolutions of Virginia were understood by the other States as a -denunciation of the laws of Congress, not as an assertion of a right of -a State to interpose in their execution. Of the sixteen States, -ten--Hildreth informs us, a fact that seems to be now overlooked, -Maryland, Delaware, Pennsylvania, New Jersey, New York, Connecticut, -Rhode Island, Massachusetts, New Hampshire, and Vermont--answered and -condemned them.[73] The resolutions of seven of these ten are in -Elliot's _Debates_.[74] None of the other States supported them; indeed, -from Jefferson's and Madison's correspondence, they were afraid North -Carolina would also oppose them. The purport of the opposing -resolutions is well stated in the report of a Committee of the -Legislature of New York made in February, 1833, in the following words: - - "These resolutions were met by several of the State - Legislatures to whom they had been communicated by counter - resolutions protesting against them with much warmth, chiefly - on the ground that the act of a State Legislature declaring a - law of the United States unconstitutional was in itself an - unconstitutional assumption of authority, and an unreasonable - interference with the exclusive jurisdiction of the Supreme - Court of the United States; accompanied in some instances, with - severe denunciation against their disorganizing tendency." - - [73] Hildreth's _History of U. S._, vol. v., p. 296. - - [74] 4 Elliot, pp. 532-9. - -Some of the States argued the question of the constitutionality and -expediency of the Alien and Sedition Laws, and one State approved of the -able advocacy and demonstration of their validity and expediency by the -minority of the General Assembly of Virginia. - -Of the States, whose resolutions are in Elliot's _Debates_, two only, -New York and New Hampshire, mention the name of Kentucky. Apparently the -extreme viciousness of her doctrine escaped notice. In fact the -nullification doctrine, the right of each State to resist the execution -of United States laws, though asserted at the time by Kentucky, was -unnoticed or forgotten until brought to life again by South Carolina -thirty years afterwards. The right of secession was not suggested in the -resolutions of either Virginia or Kentucky. - -Nor did it appear that any one of the Senators or the Representatives of -Kentucky ventured to lay before their respective Congressional Houses -the nullifying resolutions of that State, notwithstanding the injunction -contained in them to that effect.[75] - - [75] Hildreth's _History_, vol. v., 296. - -Kentucky's Legislature answered the resolutions of the other States -regretting the unfounded and uncandid suggestions in them derogatory to -her, and then declared an attachment to the Union. The Legislature none -the less resolved, that the several States that formed the Constitution -were sovereign and independent, having the unquestionable right to judge -of infractions, and that in such a case nullification was the rightful -remedy. The ending is not however that they nullify, but "this -Commonwealth does now enter against them" (the Alien and Sedition Laws) -"its solemn PROTEST."[76] The protest in capital letters: and that is -all the State did. - - [76] 4 Elliot, 545. - -We come again to the Virginia resolutions. When that State, in answer to -her resolutions, received the indignant remonstrances of her sister -States, she felt obliged to defend her position. That defence was made -at great length in her General Assembly held the next year, 1799, by -Madison, the author of the resolutions and the chairman of the committee -to whom the communications of the other States had been referred. The -report which was adopted by the assembly, coming from Madison, the -principal constructor of the Constitution, should give no countenance to -nullification and secession. Upon examination it will be found that -there is none. - -It begins with the very conciliatory and dignified statement that, -though there might be painful remarks on the spirit and manner of the -proceedings of the States who disapprove of the resolutions of Virginia, -it is more consistent with the dignity and duty of the General Assembly -to hasten an oblivion of every circumstance diminishing the mutual -respect, confidence, and affection of the members of the Union. - -The explanatory report takes up, first, the resolution to maintain and -defend the Constitution of the United States and the warm attachment of -Virginia to the Union, and justly says no one can object to this. - -The report next notices the assertion that the powers of the Federal -Government, as resulting from the compact to which the States are -parties, are limited by the plain sense and intention of the instrument -constituting that compact. This is merely, the powers of the United -States come from and are limited by the Constitution. - -The report goes on and says the compact is the Constitution, to which -the States are parties. Then is defined what is meant by States. States -sometimes mean territories occupied by the political societies within -them, sometimes those societies organized into governments, and, "lastly -it means the people composing those political societies in their -highest sovereign capacity." It says all will concur in the -last-mentioned, "because in that sense the Constitution was submitted to -the States, in that sense the States ratified it," and in that sense -they are parties to the compact from which the powers of the Federal -Government result. Now, not forgetting it is the States, the people, -that are parties, is not this a declaration, an explicit one, that the -people of the several States made the Constitution, and not one -independent sovereign State with other independent sovereign States? - -Then the report further says that the Constitution was formed by the -sanction of the States, given by each in its sovereign capacity. Taking -the definition of States as before given, this is merely an assertion -that in each State the people, who have the sovereign capacity, -sanctioned it. After this comes the rather obscure, and possibly -objectionable, doctrine. "The States," meaning the people, "then, being -the parties to the constitutional compact, and in their sovereign -capacity, it follows of necessity that there can be no tribunal above -their authority to decide, in the last resort, whether the contract made -by them be violated, and consequently that as the parties to it they -must themselves decide in the last resort." - -It is to be noticed that the resolution carefully limits the decision of -the people or States to "in the last resort." It does not define when -the last resort occurs. But the resolution (what the report is -commenting on) is, "that in case of a deliberate, palpable, and -dangerous exercise of other powers not granted by the said -compact"--that is, in cases of deliberate, palpable, and dangerous -usurpation--there is a right of the parties to the compact or government -to decide, to act, to resist that usurpation. This is a declaration of -the right of revolution; it is an assertion of that right in the last -resort,--when argument and reasoning fail; a right that Webster -admitted; the right that we the colonies claimed against Great Britain; -the right of resistance against deliberate, palpable, dangerous -usurpations of power; otherwise there is no redress for tyranny. No one -denies this right. If unsuccessful, it is rebellion, and punished as -such. So carefully, however, did Virginia assert this right that the -explanatory report itself calls attention to "guard against -misconstruction." The interposition is not only to be in cases of -deliberate, dangerous, and palpable breaches of the Constitution, but -"to be _solely_ that of arresting the progress of the evil of -_usurpation_." The resolutions do not even claim that in case of -usurpation _the binding compact of the government is broken up_, but -that the parties to it, which it has stated to be the people, should -solely interfere to arrest the evil. The report proceeds with the -statement that if there could be no interposition from _usurped_ powers -there is a subversion of rights recognized under State constitutions, -and a denial of the fundamental principle upon which our independence -was declared. - -The report admits as true, "that the judicial department is in all -questions submitted to it by the forms of the Constitution to decide in -the last resort." We have only to turn to the Constitution to see how -extensive is this submission. It is in all cases arising under the -Constitution and the laws made under it, in all cases in which States -are parties, in all cases where treaties or the United States are -concerned that it has this supreme power of judgment. This is precisely -the contrary doctrine to that of nullification. - -The explanation further proceeds that it is in the last resort, "in -relation to the authorities of the other departments of the government, -and not in relation to the rights of the parties to the constitutional -compact, from which the judicial as well as the other departments, hold -their delegated trusts. On any other hypothesis, the delegation of -judicial power would annul the authority delegating it; and the -concurrence of this department with the others in usurped powers, might -subvert forever, and beyond the possible reach of any rightful remedy, -the very Constitution which all were instituted to preserve." Perhaps it -may not be amiss to notice that all judicial power is over the rights of -the parties delegating it, the parties to the compact establishing the -government. The delegation is not confined to power over the authorities -of the other departments of the government, and the delegation of -judicial power does annul the authority delegating it as far as the -power delegated extends. It does not delegate usurpation of powers, nor -does it prevent revolution against usurped powers. This is what the -explanation means. But why the exception as to the other departments of -government? Usurpation by the judiciary over the other departments is -contrary to the conferred powers, and thereby affects the rights of the -parties to the compact. It is beyond what they delegate. Such usurpation -could very properly be resolved against: even more, resisted "in the -last resort." - -Then comes the assertion: "The authority of constitutions over -governments and of the sovereignty of the people over constitutions are -truths which are at all times to be kept in mind, and at no time -perhaps, more necessary than at present." - -As people make constitutions for the sole purpose of conferring powers -to governments over themselves which are to be superior and to compel -obedience, and punish those refusing it; and as the people always have -the power to make new constitutions or to amend them under the -regulations they have established; the suggestion of superiority seems a -glittering generality, at that time rather out of place. - -The explanation then defends the assertion in the resolutions, that -these assumptions of powers, extending the sovereignty of the United -States, supersede the sovereignty of the States in the cases reserved to -them, and that its result "would be to transform the republican system -of the United States into a monarchy." This fear that the government -would by assuming undelegated powers end in a monarchy was the objection -to the Constitution made in the convention that formed it, and in the -conventions of the people of the different States when they adopted it. -And in the Virginia resolutions it is said to be "the general sentiment -of America." It is further argued this great assumption of increased -prerogative and patronage of the President might enable him to secure -his re-election and regulate the succession and establish it as -hereditary. This fear of that day to us seems absurd; but in the days of -George the Third, and not so many years from the Stuarts, it had a more -plausible foundation. - -The explanation further says, and it is in fact an admission of its -truth, "that it has been stated that it belongs to the judiciary of the -United States and not to the State Legislatures to declare the meaning -of the Federal Constitution." "But a declaration that proceedings of the -Federal Government are not warranted by the Constitution is a novelty -neither among the citizens nor among the Legislatures of the States." - -The report then takes up and undertakes to defend the resolve, that the -government has manifested a spirit to enlarge its granted powers by a -forced construction of the Constitution. It instances especially the -Alien and Sedition Laws, and declares the Alien Law to be -unconstitutional, because it gave the President legislative and judicial -powers in addition to those of the Executive. The Act, it says, enabled -him to send out of the country, in times of peace, aliens, citizens of a -friendly nation whom he should judge dangerous to the public safety or -suspect of treacherous or secret machinations against the government, -giving him thus legislative power, making his will the law. He also is -the judiciary; without the oath or affirmation of an accuser, his -suspicion the only evidence to convict; his order the only judgment to -be executed. And this order may be so made as to deprive the victim of -the privilege of the _habeas corpus_. - -The Sedition act was also claimed to be beyond the power of Congress for -many reasons, and emphatically because it punished by fine and -imprisonment false, scandalous, and malicious writings against the -government; thus abridging the liberty of the press, the provision in -the amendments of the constitution for which Virginia had been so -strenuous. - -In conclusion and in relation to these resolves the report says, nor can -declarations either denying or affirming the constitutionality of -measures of the government be deemed, in any point of view as assumption -of the office of the judge. They "are _expressions of opinion -unaccompanied with any other effect_ than that they may produce an -opinion by exciting reflection." They "may lead to a change in the -legislative expressions of the general will--possibly to a change in the -opinion of the judiciary."[77] - - [77] 4 Elliot, 578. - -"And there can be no impropriety in communicating such a declaration to -other States," "and inviting their concurrence in a like declaration." -Then it speaks of the legitimate rights of States to originate -amendments to the Constitution; that it was not improper or -objectionable in Virginia to ask the States to take "the _necessary and -proper measures_" to maintain the rights reserved to the States or -people; and that if the other States had concurred, "it can be scarcely -doubted these simple measures would have been as sufficient as they are -unexceptionable." This is a statement that the resolutions were a mere -matter of opinion and that the laws complained of were unconstitutional, -and if the other States had been of the same opinion, the States might -have constitutionally remedied the evil. - -Again is a repetition of the warm affection of the people of the State -to the Union, and the explanation calls to remembrance the part the -State had borne in the establishment of the "National Constitution," and -subsequently of maintaining its authority without a single exception of -internal resistance or commotion, and a declaration that the people of -Virginia must be above the necessity of opposing any other shield to -attacks on their national patriotism, "that the resolutions themselves -are the strongest evidence of attachment both to the Constitution and -the Union." "And as the result of the whole," they adhere to their -resolutions and "renew their protest against Alien and Sedition acts as -palpable and alarming infractions of the Constitution." Madison in a -letter to Edward Everett informs us the words, "not law but utterly -null, void, and of no force or effect," which followed the word -"unconstitutional" in the resolutions as to the Alien and Sedition laws, -were struck out by consent, and also that, "the tenor of the debate -discloses no reference whatever to a constitutional right in an -individual State to arrest by force the operation of a law of the United -States."[78] - - [78] Madison's letter to Everett, before referred to. Oct. No. _N. - Amer. Review_, 1830. - -These resolutions and the explanation--Virginians always put them -together--were nominally the political creed of the republican party -that so long ruled the United States. They were a denunciation--perhaps -a partisan one--of alleged unconstitutional laws made by the federal -party in the administrations of Washington and Adams, and expressed a -belief, which few to-day will say was warranted, that there was a -design in them to transform the government into an absolute or at best a -mixed monarchy. - -The methods to arrest the evils of these alleged unconstitutional -assumptions of undelegated powers were stated to be authorized by the -Constitution itself. And by the concurrence with Virginia of the other -States to whom the resolutions were submitted, they, the States, might -remedy the alleged evils by their representatives in Congress or by the -choice of Senators of different opinions; there were to be, the Virginia -explanation said, no less than two Congresses before the laws expired by -their limitation; or if necessary, the explanation further said, the -States by a convention could alter the Constitution. - -The resolutions are those of strict constructionists of the powers -granted by the Constitution; they in no way assert the nullification -doctrines of Kentucky, which some thirty years afterwards were revived -and developed to their logical result of secession by Calhoun and South -Carolina. - -The prosecutions under the Sedition law, the arresting and carrying -through the country and the fining and imprisoning as criminals, for the -expression of opinions, of men whom the Republicans held as eminent and -respectable, such as Thomas Cooper, Jefferson's dear friend, had very -great influence in the defeat of the federal party under the elder Adams -and of the triumph of Jefferson and the Republicans. - -The resolutions of Virginia alarmed Washington as exhibiting a -discontent with the Union. He wrote to Patrick Henry, one of the -Virginians Henry Adams names, to induce him to interpose his great -influence in the matter.[79] Henry, whose impassioned eloquence had done -so much to bring Virginia into the war of the revolution, who ably and -persistently opposed in the Virginia convention the acceptance of the -Constitution from fear that the great powers given to the United States -would be fatal to liberty, had become one of its strongest supporters. -He shared Washington's anxiety. Though he had often been Governor of the -State, and had declined offers of the most important national offices -under Washington, he offered himself as a candidate for election to the -House of Burgesses, to do what he could to put an end to this discontent -and what he considered the rash measures of the State. In his speech -before his constituents, he declared that Virginia had quitted the -sphere in which she had been placed by the Constitution in daring to -pronounce upon the validity of federal laws, and asked, "whether the -county of Charlotte would have any authority to dispute an obedience to -the laws of Virginia, and he pronounced Virginia to be to the Union -what the county of Charlotte was to her."[80] Nor did he believe that -resistance would be peaceful; for he warned the people that the -opposition of Virginia to the acts of the General Government must beget -their enforcement, and that war would ensue with Washington and a -veteran army as opponents. It was the period of our hostility with -France, and Washington had been made commander-in-chief. Henry was -chosen to the House of Burgesses by a large majority, but died before -the session began in which Virginia's conciliatory explanation of her -resolves and her loyalty and attachment to the Union and the supremacy -of those laws in all delegated powers was made. - - [79] Washington's letter to Henry, Sparks' _Washington_, vol. xi., p. - 387. The letter also contains his opinion of those in opposition to - the government. - - [80] Wirt's _Life of Patrick Henry_, pp. 393, 394. Moses Coit Tyler's - _Life of Patrick Henry_, p. 373. - -The other two distinguished Virginians whom Mr. Adams mentions, are John -Taylor of Caroline and John Randolph of Roanoke. Taylor, a great friend -of Jefferson's, in 1823 published a book called _New Views of the -Constitution of the United States_. Of so little importance, so little -known, were the Kentucky resolutions then that he does not cite them, as -far as we can find from our examination, which we do not claim to be -thorough. In the preface he speaks of his "survey as not devoid of -novelty." He controverts at great length the opinions of Hamilton and -Madison, as given in the _Federalist_ and a pamphlet published in South -Carolina with similar views, called _National and State Rights -Considered by One of the People_. His views of the Constitution are, as -he says, new. He advances the doctrine that in a conflict between the -laws and measures of the State and General Government neither shall -prevail, but substantially the State should, unless three fourths of the -States by an amendment of the Constitution should decide otherwise. - -John Randolph of Roanoke was notorious for his eccentricities and -vagaries, his attacks on all parties and all policies; if he had any -opinion it was probably, as he said, that the Virginia resolutions and -their explanations were "his political Bible." What the resolutions and -explanations are we have endeavored to set forth. - - - - -CHAPTER V. - -SUPREMACY OF CONSTITUTION MAINTAINED. - - -In less than the brief space of two and a half years after the Kentucky -resolutions were passed Jefferson became President. If he believed in -those resolutions he should at once have made a general jail delivery. -All those in prison under United States laws for counterfeiting or -forging United States bank bills, robbing or embezzling from the mail, -violating the custom-house laws, interfering with the judicial -proceedings of the government, or committing any crime, except the few -mentioned in the Constitution, should have been set free (for the -Kentucky resolutions expressly denounced all the United States laws -punishing those crimes "as altogether void and of no force"). Jefferson -contented himself with pardoning those imprisoned under the Sedition -laws. - -In his inaugural address to Congress, at the very beginning of his -administration, Jefferson announced principles totally and fundamentally -opposed to the Kentucky resolutions. He pleaded for unity, and denied -that every difference of opinion was a difference of principle. "We are -all Republicans; we are all Federalists."[81] He declared "the -preservation of the general government, in its whole constitutional -vigor, as the sheet-anchor of our peace at home and safety abroad." He -also said "absolute acquiescence in the decisions of the majority, the -vital principle of republics from which there is no appeal but to force, -the vital principle and immediate parent of despotism."[82] Can anything -be more directly opposed to the Kentucky resolutions, that give to every -State a veto of every United States law or act that it deems -unconstitutional, than these declarations of the preservation of the -government in all its constitutional vigor and of _absolute acquiescence -in the will of the majority_? Have they not been, ever since that -inauguration day, the cardinal principles of Jeffersonian democracy? -Perhaps it is strange that Jefferson, coming from Virginia, did not make -the exception of the resolutions of the Legislature of that State, that -in case of plain palpable usurpation of powers the people of the States -could interpose to redress the evil by constitutional methods. Absolute -acquiescence in every decision of the majority abrogates even the right -of rebellion against oppressive usurpations that Webster announced. It -is but reasonable to suppose that Jefferson would have made this -exception of Webster's and the reasonable affirmations of the Virginia -resolutions, if he had been obliged to notice them. No possible -argument, however, can reconcile these inaugural principles with the -Kentucky resolutions. Is it possible that the great leader of the -Republican party could have announced such doctrines if the Republican -party of Virginia, of which he was the chief, held precisely the -contrary, as Mr. Adams informs us? - - [81] H. Adams, vol. i., p. 200. - - [82] H. Adams, vol. i., p. 203. - -Jefferson's policy during the eight years of his administration was -emphatically national, and not that of a favorer of State rights nor -even of a strict construction of the powers delegated to the General -Government. In March, 1806, he signed an act laying out and making a -road from Cumberland, on the Potomac, in Maryland, to Ohio. Again he -approved a bill for this purpose in 1810, though from his writings it is -apparent he doubted their constitutionality. Madison, Monroe, and -Jackson afterwards vetoed bills passed by Congresses of their political -faith in favor of this or other roads, because, as they declared, they -were beyond the powers granted by the Constitution. - -During Jefferson's administration a serious controversy between the -United States and the great State of Pennsylvania as to the national -powers of the government came to a crisis. During the revolutionary war -the sloop _Active_, bound for New York with a cargo of supplies for the -British, was taken from her master by Gideon Olmstead of Connecticut -and three men, who had been impressed by the English and put on the -vessel to assist in her navigation. An armed brig of Pennsylvania took -the _Active_ from Olmstead and his associates and brought her into the -port of Philadelphia. The State Admiralty Court of Pennsylvania tried -the case by a jury according to the State laws, awarding to Olmstead and -his companions only one quarter of the prize money, and distributing the -remainder to the State, and those interested in the brig taking the -_Active_ and a companion vessel. An appeal was made by Olmstead from the -State court to the Continental Congress as the power that had control of -the maritime affairs of the revolting colonies. Congress very properly -insisted on its jurisdiction over such cases. The Admiralty Court of -Pennsylvania, disregarding this right, ordered the sloop and cargo to be -sold, and distributed the proceeds; the Continental Congress, not having -the power to enforce its rights, let the matter pass. Some years -afterwards, when our new government had gone into effect, Olmstead filed -his libel before the United States District Court of Pennsylvania and -obtained a decision in his favor reversing the decree of the -Pennsylvania court. Judge Peters, of the United States District Court, -hesitated to enforce this decree against Pennsylvania, wishing to obtain -the sanction of the Supreme Court of the United States. A mandamus was -issued by the Supreme Court directing its district court to enforce its -decree, Chief-Justice Marshall saying that if a State could annul the -judgment of a United States Court the Constitution itself became a -solemn mockery. "The State of Pennsylvania can possess no constitutional -power to resist the legal process which may be directed in this case." - -The State of Pennsylvania did resist and did pass laws and make military -preparations to enforce them. Here was a clear case of conflict between -a State and the United States as to the powers the State had given, and -where, according to the Kentucky resolutions, and according to -Jefferson, if he were the author, the State, as a party to the compact -of government, there being no umpire, could lawfully resist and insist -on the construction it gave to the case. While this conflict was -pending, the Republican party, which was predominant in the United -States Congress, both House and Senate, in order to enforce the -authority of the United States and the decision of its Court, passed an -act authorizing the President, in cases of insurrection or obstruction -to the law, to employ such part of the land and naval force of the -United States as shall be judged necessary. Jefferson signed this act in -1807, thus sanctioning the compelling of the obedience of a State to the -General Government. - -It is to be observed that this took place in a case where the dispute -was as to the jurisdiction of the United States in a case between a -State court and the authority of the old Confederate Government. The -party of which Jefferson was the chief could have refused to enforce the -decision of the Supreme Court on what seems a plausible ground, that the -Constitution gave no power to the United States over the disputes -between the old Confederacy and the States; but neither Congress, nor -Jefferson by a veto, did this. They enforced the nationality of the -Confederacy and of the United States Government as its successor. - -The carrying out of the decree of the United States Court was resisted -by the Pennsylvania State militia under General Bright, who had been -called out by the Governor under the sanction of the Legislature; the -United States marshal summoned a posse of two thousand men, and war was -imminent. Madison had now become President, and the Governor appealed to -him to discriminate between a factious opposition to the laws of the -United States and resistance to a decree founded on a usurpation of -power; but Madison replied that he was specially enjoined by statute to -enforce the decrees of the Supreme Court. The State yielded, and also -paid the money necessary to carry out the decree of the United States -Court. General Bright and his men were brought to trial for forcibly -obstructing the United States process, and were convicted and sentenced -to fine and imprisonment. Madison pardoned those convicted, and -remitted the fines on the ground that they had acted under a mistaken -sense of duty.[83] - - [83] A full account of this case, though well known and reported, is - not to be found in the histories. The case was referred to as the - Gideon Olmstead case in the debates in Congress at the time of South - Carolina's threatened nullification in 1833. The account of the trial - of General Bright is taken from Carson's _History of the Supreme Court - of the United States_, p. 213 and _seq._ - -Nor is this all of this matter. Pennsylvania, though finally yielding an -obedience to the United States, felt aggrieved, and suggested an -amendment to the Constitution, that questions arising between States and -the federal judiciary should be submitted to an impartial tribunal, and -sent the proposed amendment to Virginia. - -The Legislature of Virginia appointed a committee to consider this -proposed amendment, part of whose report was, "that a tribunal is -already provided by the Constitution of the United States, to wit, the -Supreme Court, more eminently qualified, from their habits and duties, -from the mode of their selection, and from their tenure of office, to -decide the disputes aforesaid in an enlightened and impartial manner -than any other tribunal that could be created." The resolutions -disapproving the proposed amendment were passed _unanimously_, both in -the House of Delegates and Senate.[84] Thus in January, 1810, only ten -years after her own resolutions and explanations, Virginia, instead of -giving countenance to the nullification doctrine of Kentucky, and -replying to Pennsylvania that, as a State, a party making the compact, -you have a right to judge whether the United States exceeds its -authority, declared that a fit tribunal for the trial of questions -between the States and the United States existed in the Supreme Court of -the United States, and that a better one could not be created. This -should be conclusive that Virginia republicanism in no way countenanced -nullification. - - [84] Webster's _Speeches_, 8th ed., 1850, vol. i., pp. 427, 428. See - part of report and resolutions of Virginia in Mr. Pinckney's argument - in Cohens _vs._ Virginia, 6 Wheaton, Rep., 264. - -Immediately after the commencement of his administration, Jefferson, and -Madison, the Secretary of State, entered into negotiations with France -for the acquisition of the province of Louisiana and the immense -territory belonging to it. The purchase was completed early in 1803, and -by it and for all time the power of the old States in the Union was -diminished. Even a liberal constructionist might have hesitated as to -its constitutionality. Jefferson himself had his doubts. Neither he, -however, nor any of his party took any measures to have an amendment of -the Constitution to sanction it. It was indeed a measure of vital -necessity, and acquiesced in by the people of all the States as such. - -In the national convention Gouverneur Morris said that the fisheries and -the Mississippi were the two great objects of the Union.[85] -Negotiations with Spain with reference to the navigation of the -Mississippi were constantly before the Congress of the Confederacy in -1787, this river being the only outlet for the products of Kentucky, -Tennessee, and of parts of Western Virginia and Pennsylvania, as well as -of the great then unsettled country beyond. There was a fear that the -inhabitants of this western territory might ally themselves with Great -Britain, because of her power to compel Spain to grant the right of way -to the sea; for it was recognized that the inhabitants of that country -would and must be a part of the power that held the mouth of the great -river. More than this, the Constitution itself provides for the -admission of new States, and the annexation of Canada had been -contemplated in the articles of the Confederacy. - - [85] 5 Elliot, 526. - -Josiah Quincy's speech, in 1811, when the admission of Louisiana as a -State came up, is often quoted by Southern writers as justifying -secession. He said: "If this bill passes, it is my deliberate opinion -that it 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." - -This declaration does not contain any claimed right of a State as a -party to a compact to judge whether it has been broken, or of a -sovereign State to secede. It is an assertion that the government or -nation was so changed by the annexation of Louisiana as a State, from -territory formerly no part of the Union, that the other States had a -right to break it up. This opinion was not concurred in by the Governor -or Legislature or State of Massachusetts, which assented to the -admission of Louisiana.[86] Quincy's declaration contains no assertion -of the sovereignty of a State, or right to secede at will. It admits -that separation, unless assented to, must be by force. - - [86] H. Adams' _History_, vol. v., p. 326. - -It is impossible to reconcile the doctrine of the Kentucky resolutions -with those of Jefferson in his inaugural and with his whole policy -during his term as President. They are fundamentally different. It must -be remembered that his authorship of the Kentucky resolutions was not -then known. - -There are many followers and admirers of Jefferson who maintain that he -did not take the same view of the Kentucky resolves as the nullifiers of -South Carolina. Robert J. Walker, the distinguished financier and -Secretary of the Treasury in Polk's time, in an article on nullification -and secession, in the February number of the _Continental Monthly_, -published at Philadelphia in 1863, gives what he alleges are Jefferson's -views, and says that they were opposed to nullification and secession. -Indeed, the Kentucky resolves do not claim the right of secession; they -do not follow out their premises to its logical conclusion. They do not -declare or recommend that the State should treat the Alien and Sedition -laws as null and void, though in their reply to the other States they -say a nullification is "the rightful remedy." They carefully let it be -known they only protest. That Jefferson did not carry this theory of the -Kentucky resolutions to the right of secession, is perhaps shown by his -correspondence when the acceptance of the Constitution was pending in -Virginia. Even at the time of the Kentucky resolutions he speaks of the -"scission" of the States, and about 1820, during the period of the -Missouri dispute, he again alludes to the "scission," if it should come, -as geographical. He would hardly have used this word, implying a cutting -or tearing asunder, if he had believed in a right of secession. - -Jefferson had not the cool, dispassionate judgment of Washington. He was -a violent partisan. He believed the federalists were striving for a -monarchy; he spoke of the great Chief-Justice Marshall, when he -disagreed with a decision made by him, as a sly old fox. Both Jefferson -and Madison were displeased with the rulings of Marshall on the trial -of Burr for treason. The reason of their displeasure was the strict -construction the Chief Justice gave to the law punishing that offence, -not the too liberal wielding of the judicial powers. The enactment of -the Alien and Sedition laws and their enforcement were to Jefferson -outrageous violations of liberty, and of the very amendments to the -Constitution for which Virginia and Massachusetts and New York had been -so persistent. He believed that the federal party was determined to -keep possession of the government by crushing out the freedom of the -press and the people. To oppose this, to prevent what he thought was a -tyrannical abuse of authority with the intent of perpetuating itself, -he was willing to put to question the fundamental authority of the -government to pull down the whole structure. He found that his own -State, Virginia, did not acquiesce in the doctrines of Kentucky. By a -letter of his of the date of November 17, 1798, it appears he sent a -draft of the Kentucky resolutions to Madison, saying that we should -distinctly affirm all these important principles, not however stating -that he was the author. When he came into power, if he thought of the -matter at all, he must have seen that the practice of nullification -would be the end of all United States government. What these resolutions -actually were had apparently not been understood by the other States. -Madison, his Secretary of State, who always maintained the supremacy of -the General Government, was his dear friend and undoubtedly then, as in -after years, his adviser. Nor was his change of principles, if there -were any change, more strange than his change of dress. Mr. Adams tells -us he began his administration by receiving the gorgeously dressed -foreign ministers in his threadbare coat, old much soiled corduroy small -clothes, faded by many washings, and slippers without heels; for these -clothes he afterwards substituted a dress of black, clean linen, and -powdered hair. Is it Carlyle that says that clothes and principles are -the same--that they make the man? - -That Jefferson ever afterwards believed in the nationality of the Union, -is shown by his administration and correspondence, and made evident by -his acts in the crowning work of his life, the establishing of the -University of Virginia. That he was the founder, he directed should be -inscribed on the monument over his grave. In Charlottesville, where the -mountains of the Blue Ridge come down to the plains that stretch many -miles to the sea, was Monticello, Jefferson's charming home, the seat -of his unbounded hospitality, and close to that of Madison. Near by -amongst the rolling hills, most picturesquely placed by the direction -of Jefferson, are the pleasing colonnaded buildings of the University, -planned by his own hand. It is the University's boast, but questioned by -Harvard College, that Jefferson introduced there the system of elective -studies, that is now spreading so widely. There were but four things -that Jefferson declared should be obligatory to the University: one was -the study of the _Federalist_,--the work of Hamilton, Madison, and Jay, -expounding the national doctrines of the founders of the Republic, with -no countenance of those of the Kentucky resolutions. To-day Jefferson's -directions are observed, and the _Federalist_ remains the text-book.[87] - - [87] See No. LXXX. of the _Federalist_ for Hamilton's clear and able - statement of the powers of the judicial department. He says it is a - political axiom, that the judicial power of a government should be - co-extensive with its legislative, and that the government should and - did have the power over States and their judiciary in all cases - arising under the Constitution and United States laws. - -No President until Lincoln, save perhaps Madison in his first -administration, had so troublesome a time as Jefferson in his second -term of office. The rights of the United States, a small, weak power, -were not only disregarded by England and France in their deadly -struggle, but decrees were issued confiscating property and vessels -engaged in what by the laws of nations is now universally held to be a -lawful trade. Great Britain impressed sailors from American vessels, and -one of her men-of-war arrogantly fought and captured a smaller United -States frigate, killing and wounding many of her crew, and taking from -the disabled ship her claimed subjects. - -Jefferson's great panacea to cure these evils and to bring England -and France to respect and grant our rights was the forcing of -non-intercourse on the high seas between the United States and all -foreign countries--an embargo on all shipping. By virtue of the power -in the Constitution to regulate commerce, Jefferson and his party -destroyed it. The vessels were left rotting at the wharves, and -ship-building and the many industries depending upon it and the sale of -the products of the country abroad were stopped. The New England States -suffered particularly by this arbitrary decree; they had an extensive -and flourishing neutral commerce; their merchants had amassed great -wealth. They, as Mr. Webster said, brought the matter to trial before -the United States Court; the case was decided against them, and they -submitted. No Northern State passed any resolutions affirming the -doctrine of its sovereignty and its right to judge of what seemed to -many "a deliberate, palpable, and dangerous exercise of powers not -granted" by the Constitution. Instead of asserting sovereignty to judge, -the Massachusetts Legislature passed in 1809 a resolve proposing an -amendment of the Constitution prohibiting the laying of an embargo -beyond a limited period. The measure failed because of not obtaining the -consent of the other States. - -It is always to be carefully borne in mind that the declarations of -Quincy, Pickering, and Griswold, brought forward by Southern writers, -favoring or threatening a separation, were never made on the ground of -the sovereignty of a State and its right to secede. The doctrine of -those who held the most extreme opinions was that the policy and acts of -the general government were so tyrannical and oppressive that the -eastern commercial States were justified in rebellion and in separating -themselves from the more southern States, where the political party was -dominant, that had most grievously oppressed and impoverished them and -annihilated their commerce in a futile attempt to injure Great Britain. -This was not a claim of right to leave the Union and dissolve it at -pleasure. Indeed, when the leaders went too far in their discontent, the -people of the Eastern States would sometimes elect governors and -representatives of the Republican party. The spirit of loyalty to the -Union and the love of a common country would always spring up and assert -itself when it came to the question of disunion and treason. - -Towards the close of the war of 1812 there was great discontent at the -failure of the government to repel the English forces from Maine, then a -portion of Massachusetts. Troops raised in that State were sent to the -defence of our more western Canadian boundary. Beyond the discontent, -there was some disloyalty. At this time the Hartford convention was -called by Massachusetts. That convention did not even pass resolutions -of hostility to the Union. The convention was called to devise means of -security and defence "not repugnant to their obligations as members of -the Union," and, according to Mr. Lodge, Josiah Quincy was not made a -delegate by reason of his extreme views.[88] The convention neither -asserted nor suggested nullification or secession, but _proposed -amendments to the Constitution_. Its recommendations were of no -particular importance.[89] The only persons who were affected by its -doings were the members, who ever afterwards suffered politically from a -taint of disloyalty. Peace soon came and terminated the oppressive -grievances and removed the discontent. - - [88] Lodge's _Life of George Cabot_, p. 518. - - [89] _History of Hartford Convention_, by Theo. Dwight. - -Not only as stated in the beginning of this article is the Hartford -convention with the Kentucky and Virginia resolutions brought forward by -Mr. Lodge in proof of the weakness of the Union, but Southern orators -and writers delight in referring to that convention in justification of -nullification and secession. We have the journal of the proceedings, of -the motions made and votes passed. Is it not the strongest proof -possible of the universal belief in the nationality of our government -that nobody, in that body of malcontents, suggested that any right -existed to refuse an obedience to the laws and policy of the -administration they deemed so oppressive? - -After the purchase of Louisiana came that of Florida, also enlarging the -territory of the Union and curtailing the relative power in it of each -of the old States. The charter of a second United States Bank was -granted by the party that in the first Congress had opposed it and -claimed to be strict constructionists of the Constitution. Madison -justified his assent on the ground of the general approval and the -opinion of the Supreme Court establishing its constitutionality.[90] -Historically there is no attempt to maintain, no assertion of, the -doctrine of the Kentucky resolutions from the time they were passed -until the debate in the Congress of 1830. The only trace of them is in -the resolutions frequently passed by the Legislatures of States, which -are mere opinions beyond their legislative powers, that certain laws of -the government were unconstitutional and therefore null and void. If -unconstitutional, they were and are null and void, but no State ever -treated them as null and void. The United States Government, by its -judiciary, however, took cognizance of all State laws in conflict with -its laws and authority, and maintained uniformly its national supremacy. - - [90] Madison's letter, 4 Elliot's _Debates_, 615. - - - - -CHAPTER VI. - -CALHOUN, JACKSON, AND NATIONAL GOVERNMENT. - - -In 1811, John C. Calhoun of South Carolina, a young man not of the age -of thirty years, took his seat as a member of the national House of -Representatives, and at once became a leader in public affairs. He was -one of the Committee on Foreign Relations. On the 12th of December he -said what was the road the nation should tread "to make it great and to -produce in this country not the form but the real spirit of union."[91] -In March, 1815, he voted for a high tariff and said: "He believed the -policy of the country required protection to our manufacturing -establishments."[92] He also reported the bill to incorporate a United -States Bank, and supported it in a speech on its constitutionality.[93] -Webster, on the contrary, opposed the tariff bills, not however on the -ground of their unconstitutionality. In December, 1816, Calhoun moved -"that a committee be appointed to inquire into the expediency of setting -apart a permanent fund for internal improvement"; on December 23d, he -reported a bill setting aside the bonus paid by the United States Bank, -$1,500,000 and future dividends from bank stock, "as a fund for -constructing roads and canals."[94] In his speech supporting it he said: -"that the extent of our republic exposes us to the greatest of all -calamities, next to the loss of liberty, and even to that in its -consequences, _disunion_." "Probably not more than twenty-five or thirty -members, in the total number of one hundred and seventy, regarded the -constitutional difficulty as fatal to the bill."[95] Madison, however, -consistent and persistent in his strict construction of the -Constitution, vetoed it. - - [91] H. Adams, vol. vi., p. 143. - - [92] H. Adams, vol. ix., p. 115. _Annals of Congress_, 1815-1816, p. - 1272. - - [93] H. Adams, vol. ix., p. 116. - - [94] H. Adams, vol. ix., p. 148. - - [95] See H. Adams, vol. ix., pp. 149 to 153, for debate and Calhoun's - views. - -In 1819 and 1820 came the admission of Missouri and the struggle over -the extension or restriction of slavery. The Southern statesmen feared -that the South was losing its relative importance in the Union. Even -those of Virginia, who had formerly been opposed to slavery, now took -the opposite view, and the Legislature of that State passed resolutions -for the admission of Missouri with slavery. The increase in the -production of cotton had made the raising of slaves profitable. The -controversy was settled by the bill called the Missouri Compromise, -admitting Missouri with slavery, and excluding slavery from all the -rest of the country west of that State and north of 36° 30', the -southern boundary of Missouri. This was the first important controversy -dividing the States geographically. It was the division that Mason, -Madison, and others foresaw in the convention that made the -Constitution; not a combination of the great States against the small, -but geographical, between the South and the North, the planting and -commercial States, and, underlying this and more potent, the institution -of slavery repugnant to the North and existing only in the South. - -It was this difference of interest between the two sections that brought -Calhoun to a change of opinion on the great industrial, commercial, and -moral questions that had arisen. His convictions followed what he wished -to believe: not an unusual temperament. From a protectionist he became -the zealous advocate of extreme free trade, from a nationalist to the -belief that the Union was nothing but a league any State could break at -its will, from holding slavery to be a moral evil to the support of it -as a divine institution. In 1837, after the nullification controversy, -when he introduced resolutions in the Senate as to slavery, he said: - - "This question has produced one happy effect, at least it has - compelled us of the South to look into the nature and character - of this great institution (slavery), and to correct many false - impressions that even we had entertained in relation to it. - Many in the South once believed that it was a moral and - political evil. That folly and delusion are gone. We see it now - in its true light, and regard it as the most safe and stable - basis for free institutions in the world. It is impossible with - us that the conflict take place between labor and capital." - -He went so far as to say a mysterious Providence had brought together -two races from different portions of the globe and placed them together -in equal numbers in the southern portion of the Union. To which Clay -forcibly replied, "to call a generation of slave-hunting pirates (who -brought the negroes to this country) a mysterious Providence, was an -insult to the Supreme Being."[96] - - [96] Oliver Dyer's _Great Senators_, pp. 183, 184. - -Calhoun and many of the leaders and politicians of the cotton-raising -States saw that they were losing their relative importance in population -and wealth; they believed that, with free trade bringing to them -everything they consumed at a lower price, their products and profits -would be increased. South Carolina with Calhoun as the master spirit was -the leader in this matter; the existing protective tariff bearing hardly -on the plantation States was in their opinion the great hindrance to -their prosperity. It was not difficult for them to come to the -conclusion it was a tyrannical and palpable violation of the -Constitution. Seeing that they could not bring the majority in Congress -to their belief, the South Carolinian politicians revived and developed -the doctrine of the Kentucky resolutions of the sovereignty of each -State, and of its right as a sovereign to judge of the constitutionality -of an act of the United States. A convention of the people of the State -was called, and under the claimed right of sovereignty the convention, -on the 24th of November, 1832, passed an ordinance in which it was -declared the tariff laws of the United States were null and void, and -that no duties imposed by the United States should be collected after -the first of February, A. D. 1833. The convention further declared that -they would resist any acts of the United States to collect its duties or -to coerce the State into paying them, and that such acts of the United -States would absolve the people of the State from any political -connection with the people of the other States, and that the State would -organize as a sovereign independent government. - -Thus South Carolina, more than forty years after the adoption of the -Constitution, was the first State that assumed to act as a distinct -sovereign power. To such a degree did the confidence of the State in its -own prowess and a spirit of rash defiance of the United States exist, -that upon Governor Haynes' return to Charleston from the State Capital, -the horses were taken from his carriage and the citizens dragged him in -triumph through the streets. - -Few leaders have had more warm admirers than Calhoun. Oliver Dyer in his -_Great Senators_, tells us he was tall and gaunt, his complexion dark -and Indian-like. Eyes large, black, piercing, scintillant; his iron-gray -hair hung down in thick masses. He was remarkable for the exceeding -courtesy of his demeanor and for the sweetness and bell-like resonance -of his voice. His private life, what could not be said of most of his -contemporaries, was unimpeachable. - -His followers are fond of praising his "inexorable logic." They probably -called it so because he did not hesitate to carry out his reasoning to -the extremest extravagance of conclusions. In his speech in 1833, in -reply to Webster, he admitted that this sovereignty of each State, there -being four and twenty of them, did give each State a separate right to -judge of a law of Congress, "four and twenty vetoes." He instanced with -approval the government of Rome, where the plebeians and patricians -could check and overrule each other through the tribunes and the Senate. -He knew "nowhere, no case in history where the power of arresting of -government was too strong, except in Poland, where every freeman -possessed a veto." But even there he speaks of it with favor, as the -source of "the highest and most lofty attachment to liberty." He -overlooked that Rome's plebeian veto produced a Sulla and a Cæsar and -ended in an absolute despotism over an abject people, and that the -government of Poland, unstable as water, vanished from the face of the -earth. He spoke of this country as sunken into avarice, intrigue, and -electioneering, from which only an opposition like Carolina's could -arouse it. Afterwards, in 1850, he said: "What was once a constitutional -federal republic is now converted, in reality, into one as absolute as -that of the autocrat of Russia, and as despotic in its tendency as any -absolute government that ever existed." And yet many people of the South -believed or brought themselves to believe this, and most of their -writers now arguing for State sovereignty profess the same opinion. - -Following up Calhoun's "inexorable logic," that each State has a right -to pass its judgment on any act and law made by the United States, and -to decide whether it is invalid and null, if it be of opinion that it -exceeds the delegated authority, every citizen of South Carolina or of -any other State has a right to judge whether any law of that State be -invalid or null, as exceeding its delegated authority. For the State of -South Carolina under its Constitution, like the United States under its -Constitution, has only a limited delegated authority, and the -sovereignty, according to all the political writers, remains in its -people or voting citizens. Why cannot a voting citizen, or one of the -people of the State, maintain that, possessing the sovereign right of -all power, and being one of the parties who made the compact of the -State constitution, he can judge as to whether he has delegated the -power to make a certain law; and if he thinks he has not, why cannot he -defy the court and the State that undertakes to execute it? This would -at once put the State in the happy condition of Poland, and almost allow -the freedom claimed by a Chicago anarchist. The answer is evident, the -citizens owe an obedience to the laws that they establish over -themselves. They have, for the benefit of all, given to the judiciary -the right to judge of the extent of the delegated power. That the -doctrine of State sovereignty was unknown at the time South Carolina -promulgated it, is proved by Jackson's proclamation. In it he speaks of -the hardness and inequality of the excise law in Pennsylvania, the -embargo and non-intercourse law in the Eastern States, the carriage tax -in Virginia. All these laws and the war of 1812 in the commercial States -were, he says, deemed unconstitutional, but yet they were submitted to, -and this remedy of nullification and secession was not suggested. "The -discovery of this important feature in our Constitution was reserved to -the present day. To the statesmen of South Carolina belongs the -invention."[97] Indeed it was a question in South Carolina itself who -first discovered this doctrine of nullification. Dr. Thomas Cooper, -Jefferson's old friend, was agreed upon as the author of its revival, -and was toasted as the father of nullification at Columbia, the capital -of South Carolina, at a Fourth of July dinner[98] in 1833. If the -Kentucky resolutions and the doctrine of nullification had not been -dead, and buried in oblivion, it is impossible that Chief-Justice -Marshall should have announced in the case of McCulloch against the -State of Maryland that there was a universal assent to the proposition -that the government of the Union, though limited in its powers, was -supreme in its sphere; that General Jackson, in a proclamation to the -whole country, could have declared its discovery was made by the -statesmen of South Carolina of that day; and that the nullifiers of -South Carolina should have toasted Cooper as its author. - - [97] 4 Elliot, 584. - - [98] Niles' _Register_, p. 335, July 20, 1833. Cooper was President of - the University of South Carolina. The University of Virginia would not - have him as professor on account of his Unitarian belief, though - Jefferson wished it. Is it possible that he was the original author of - the Kentucky Resolutions, and furnished them to Jefferson? Jefferson's - correspondence, as far as we have examined, shows no belief in that - doctrine. - -We have found nowhere any claim of a right of secession, not even the -use of the word, until the threat of South Carolina's nullification. Any -separation before was considered as a disruption of the Union. Jefferson -spoke of it as scission. While some hold that Jackson "with his iron -heel crushed out secession," numerous attempts have been made, even -recently, to prove that Jackson was not opposed to nullification, that -in reality the proclamation was not his but was Edward Livingston's. -Parton, Jefferson's biographer, tells us, when a pamphlet containing -the proceedings of South Carolina reached Jackson, he went to his office -and began to dash off page after page of the proclamation. To this was -added many more of notes and memoranda which he had been accumulating. -The papers were given to Mr. Livingston to draw up in proper form. In -three or four days Livingston gave to Jackson a draft of the -proclamation for examination. Jackson said that Livingston had not -correctly understood his notes and suggested alterations, and had them -made.[99] - - [99] Parton's _Life of Jackson_, vol. iii., p. 466. - -The proclamation, whoever wrote it, is a clear, strong statement of the -nature of our Union and its nationality; an abler production than Edward -Livingston's speech, when as Senator he spoke on this matter in 1830. If -Jackson did not write a line of it he was not totally wanting in -knowledge and comprehension, and must have understood the most important -question that had arisen in his administration or in any administration -since the inception of the government. - -Jackson, as well as Calhoun, was of the Protestant Scotch-Irish race, -that famous strain of blood that settled around Belfast and has made its -mark in this country. Those who knew him well said that he had the -craftiness of his canny Scotch ancestors, which he often concealed under -apparently unpremeditated and ungovernable bursts of temper. No one -before who had been a duellist and had killed his opponent, and had -been a participator in street brawls and encounters, had become -President. He was a warm friend and a bitter enemy, and against Calhoun -he had a lasting grievance. His declaration, "I take the -responsibility," was characteristic of the man and admired by his -adherents. No one of a will so indomitable ever came to the presidency. -A mere boy of fourteen he fought in the revolutionary war. He studied -law in North Carolina and at the age of twenty-two years he commenced -his professional life in Tennessee, and acquired at once a large -practice throughout the State, that brought him into public notice. He -was the district attorney of the territory, and a member of the -convention that made the constitution of that State, and as its first -representative in Congress opposed Washington's administration, and was -one of the twelve members who would not join in the vote of thanks to -him when he retired from the presidency. He was elected Senator in 1797 -and opposed the administration of John Adams, but soon resigned the -senatorship and became a judge of the Supreme Court of Tennessee and -held that office for six years. He was of the party of strict -constructionists. As President he vetoed bills for the aid of the -Maysville and Lexington Road, a re-charter of the Second Bank of the -United States, and several bills for internal improvements for harbors -and rivers. - -However much Livingston may have improved the style of the proclamation, -or contributed to its argument, there can be no doubt that the reasoning -and principles were Jackson's. The public seems to have forgotten that -he was a lawyer of large experience in his younger days, and an active -politician all his lifetime. The proclamation was on a subject of which -he had full knowledge and had formed decided opinions. When he came to a -conclusion he cared not what any other man thought. - -It has been a disputed matter whether the General Government actually -prevailed in its controversy with South Carolina. Though the State -prepared munitions of war, increased its militia, passed laws to punish -persons executing those of the United States, and declared its secession -from the Union if the United States laws were attempted to be enforced, -neither the State nor its citizens did actually commit any overt act of -resistance. They claimed, however, that Clay's compromise bill, -gradually reducing duties, which became law March 2d, was a surrender to -them. - -On the other hand it is asserted that the bill was not at all what South -Carolina had demanded. It is undisputed that the United States -Government passed a force bill based on the ground that it could compel -the exercise of its authority over the citizens of a State disputing it, -and that no resistance was made to the collection of the import duties -after February 1st, when the State declared its ordinance should be -enforced, the reduction of the tariff being subsequently passed.[100] - - [100] Alex. Johnston, in Winsor's _History of America_, vol. vii., p. - 286, says that Jackson collected the duties at Charleston by naval and - military force, and that the day before February 1st a meeting of - "leading nullifiers" agreed to avoid all collision with the Federal - Government. - -It was in South Carolina alone that the right of nullification was -sanctioned by a majority of its citizens. There were in the debates in -Congress on that matter members from other States who maintained that -doctrine, but Southern writers have apparently purposely omitted, and -Von Holst, Greeley, and Benton, historians of that time, have overlooked -the resolutions of the other Southern States condemning the doctrines of -South Carolina, which are the more significant as those States agreed -with her in opposing and denouncing the tariff. - -Virginia's position, though less decided than that of the other States, -did not please Calhoun; in reply to her Senator, Mr. Rives, who had -opposed the South Carolinian doctrine, he spoke of her as "a once" -patriotic State. Virginia's resolutions were, that the doctrines of -State sovereignty and State rights as set forth in her resolutions of -1798, and sustained by the report thereon of 1799, were a true -interpretation of the Constitution, but she did not consider them as -sanctioning the proceedings of South Carolina in her said ordinances, -nor as countenancing all the principles assumed by the President in his -proclamation. Virginia sent Mr. Leigh as a commissioner to South -Carolina, but without result. - -Mississippi, Jefferson Davis' State, declared "that, in the language of -the father of his country, we will indignantly frown upon the first -dawning of every attempt to alienate any portion of our country from the -rest, or to enfeeble the ties which link together its various parts." -Nullification was condemned in the strongest terms, and it was declared -they would support the President in maintaining the Union. - -In the next year, Robert J. Walker canvassed the State for a seat in the -Senate with Poindexter, his opponent; the issue was a question of -nullification, and Walker, after a contest of three years, prevailed and -became Senator at the election, January 8, 1836. General Jackson wrote a -letter in his favor.[101] - - [101] Article by R. J. Walker on "Nullification and Secession," - February, 1863, p. 179, _Continental Monthly Magazine_. - -Alabama declared nullification "is unsound in theory and dangerous in -practice"; North Carolina, that it "is revolutionary in its character, -and subversive of the Constitution, and leads to disunion"; Georgia, -"that we abhor the doctrine of nullification as neither a peaceful nor a -constitutional remedy," and further declare, while they deplore the rash -and revolutionary measures of South Carolina, they warn their citizens -against adopting her mischievous policy.[102] - - [102] State papers on nullification, collected and published in 1834 - by order of the General Court of Massachusetts. The volume contains - the remonstrances of many State Legislatures besides those quoted. It - has also the ordinance of the South Carolina convention at the - adjournment, held March 19, 1833, in which the convention declared the - State's nullification of the force bill of Congress of March 2d then - enforced: this declaration was mere _brutum fulmen_. - -These were the opinions of the Southern States in 1833. So that at that -time, as a matter of history, South Carolina alone claimed the right of -nullification and secession. - -We have before said it has been customary for the Legislatures of States -to pass resolutions declaring acts and laws of the United States--that -they are opposed to--unconstitutional, and therefore null and void; but -that these State resolutions do not make them so; that they are merely -the opinions of the Legislatures that pass them; that the decision, -whether laws of the United States or acts of its government are null and -void, rests solely with the judiciary of the United States. - -On examination we find, from the inception of Washington's -administration until the inauguration of Lincoln, that, without -exception, the authority and supremacy of the laws and government of the -United States have been maintained and enforced by its courts over every -State, and every State government and judiciary, and every individual -therein:--Over Pennsylvania, as we have before set forth in the Gideon -Olmstead case, when the representatives of the State officer who had -disbursed prize money under the decision of the State Court were -compelled to repay it to the United States.[103] Over Kentucky itself, -in 1812, when the court maintained that a Kentucky State court had no -jurisdiction to enjoin a judgment of a court of the United States.[104] -Over Kentucky and Virginia, in a serious controversy about the validity -of the grants of those States.[105] Over Maryland, when the State -undertook to tax the branch of the United States Bank established in her -territory, on the ground that no State could tax the instrument employed -by the government in the exercise of its powers.[106] In this case -Chief-Justice Marshall declared: "If any one proposition would command -the universal assent of mankind, we might expect it to be this, that the -government of the Union, though limited in its powers, is supreme within -its sphere." Even further, the United States Court interfered and took -from the State court of Virginia jurisdiction of the prosecution by that -great State of _one of its own citizens_ for illegally selling tickets -in a lottery, because the lottery had been authorized in the District of -Columbia and brought in question the validity of a United States -law.[107] Over Massachusetts, in declaring the embargo legal. Over New -York, when it declared illegal the State's grants to Fulton, the -inventor of the steamboat, of the exclusive right of navigation of the -Hudson. Over Ohio, when the State insisted on taxing the branch of the -Bank of the United States, the court issuing its mandamus and compelling -the State's Treasurer to obey its decree.[108] Over South Carolina, in -1829, not long before her threatened nullification, when the court -annulled the taxation by the city of Charleston of the bonds of the -United States, because it was an interference with the power of the -General Government to borrow money.[109] The disputes of States about -their boundaries often came before the Supreme Court and were settled, -the States appearing as parties. Indeed, such interference and control -were so frequent and so implicitly submitted to that Chief-Justice -Marshall said: "Though it had been the unpleasant duty of the United -States courts to reverse the judgments of many State courts in cases in -which the strongest State feelings were engaged, the State judges have -yielded without hesitation to their authority, while perhaps -disapproving the judgment of reversal."[110] - - [103] United States _vs._ Peters, 5 Cranch, 115. - - [104] McKim _vs._ Voorhies, 7 Cranch, 279. - - [105] Green _vs._ Biddle, 8 Wheaton, 1. - - [106] McCulloch _vs._ Maryland, 4 Wheaton, 316. - - [107] Cohens _vs._ Virginia, 6 Wheaton, 264. - - [108] Bank of U. S. _vs._ Osborn, 9 Wheaton, 738. - - [109] Weston _vs._ Charleston, 2 Peters, 449. - - [110] Cohens _vs._ Virginia. - -These decisions of the United States Supreme Court were made by judges -appointed by all the political parties that had been in power, by those -in favor of a strict as well as a liberal construction of the -Constitution. Taney, a very eminent jurist, and his associates, judges -appointed by the political party predominant in the States that -attempted to disrupt the Union, held that the Constitution and the laws -of the government were paramount, and announced and maintained their -supremacy to the beginning of the rebellion over every State court and -State law and constitution.[111] - - [111] See 22 Howard, 227; Sinnott _vs._ Davenport, 21 Howard, 506; - Ableman _vs._ Booth, 5 Howard, 134; Rowan _vs._ Runnells. In these two - last cases Taney and the Court put aside the decrees of the Supreme - Courts of Wisconsin and Mississippi, because they were in conflict - with the powers given to the United States; in the latter case, - overruling and even reversing the decision of the Supreme Court of - Mississippi as to when its constitution took effect. - -The action of the State of Georgia in 1832, in a controversy between -that State and the United States Supreme Court, has been cited in -support of the theory that Georgia maintained the doctrine of State -supremacy. In that case the matter never came to an actual conflict. Why -the United States decision was not promptly enforced is a matter that it -is not here worth while to enter into.[112] It is sufficient to quote -the resolutions of the Legislature of the State in 1833, that she -abhorred the doctrine of nullification and deplored the revolutionary -measures of South Carolina and warned her citizens against adopting -that mischievous policy, to show that the State, in her opposition to -the christianizing of Cherokee Indians, did not question the supremacy -of the United States Government. - - [112] General Jackson's sympathy was with Georgia in this matter, and - he is reported as saying: "John Marshall has made the decision, now - let him execute it." The missionary that Georgia had imprisoned was, - however, released by the State. - -It is often asserted by historical writers that the Supreme Court of the -United States, under the guidance of Marshall, has built up, magnified, -and extended the powers of the government. Undoubtedly the court has -great power in deciding whether the laws of a State or the acts of a -State officer are illegal, when the question is whether they infringe on -the rights of the general government; it, however, cannot make laws and -acts extending the national powers. Its authority is, for the most part, -that of restraint over the acts of the executive and United State -officers, and of annulling, as it often has, the laws of Congress -adjudged to be beyond its powers. It is Congress that made the Alien and -Sedition laws, United States banks, tariffs and embargoes; it was the -President and Congress who freed the negroes. Even in the war of -secession, the judiciary declared the President's disregard of the -habeas corpus in Milligan's case illegal.[113] - - [113] _Ex parte_ Milligan, 4, Wallace, 2. - -The idea which has found favor that Judge Story yielded his early -convictions as to the nationality of the government to the influence of -Marshall, is founded on the erroneous theory that the doctrine of the -Kentucky resolutions were, after their promulgation, held and believed -in by Story and the republicans. Anyone who was personally acquainted -with Story, or was taught by him in the law school at Cambridge, or -heard the opinions of the eminent counsel who tried cases before him, -knows that no judge of a more uncompromising confidence in his own -conclusions and decisions ever sat on the bench. The great fault of this -most learned of our judges was the quickness of his apprehension and of -his arriving at a conclusion in the beginning of a case he was hearing, -and the tenacity with which he held and enforced it, sometimes even to -the detriment of justice itself. Story, though generally agreeing with -the Chief Justice, at times gave dissenting opinions on constitutional -questions. - -The government, from the time of South Carolina's earlier nullification -ordinances to that of the civil war, excepting for very short periods, -was in the hands of the South. Under it, and in the interest of the -slave States, Polk made war with Mexico, an act of Congress declaring -that it existed. Texas with its immense territory of over two hundred -thousand square miles was annexed in Tyler's administration, Calhoun -becoming Secretary of State for that purpose. Laws interfering with the -constitutional rights of Northern citizens of the black and mixed race, -and for the protection of slavery, were passed and enforced by the -Southern States. - -There can be no doubt that the belief had been growing in those States, -that they would be better off out of the Union than in it. The -opposition to slavery was increasing at the North; no works were so -widely read there as those setting forth its iniquities. The South, -then, as in the time of the making of the Constitution, was an -agricultural country, depending for its prosperity on a cheap, forced -labor, and the exportation of its cotton and other products. It was -strong in men, and no longer required the protection of the Eastern -States, as in the days of the National Convention. In 1854, by the laws -enacted by Congress, the whole territory of the United States was thrown -open to the introduction of slavery, giving to the Southern States the -right to carry into it their "peculiar property," and taking away their -great grievance. Then also came the decision of the United States -Supreme Court in the Dred Scott case, that all laws excluding slavery -from the territories were unconstitutional, and asserting that the -inhabitants of those territories could not interfere with that right. -The only matter the South could complain of was the hostility of the -Northern States to slavery, and that some of them would not comply with -the laws for the rendition of their slaves, and had passed State laws -and committed acts interfering with their legal and constitutional -right of seizing them on Northern territory. There was no pretence that -there was any tyrannical usurpation of undelegated authority by the -United States, such as the Virginia resolutions referred to. Prof. Bazil -L. Gildersleeve, a confederate soldier, in the _Atlantic Monthly -Magazine_, says in a paper called "The Creed of the old South," that the -cause of secession was, that "the extreme Southern States considered -their rights menaced by the issue of the presidential election."[114] - - [114] _Atlantic Monthly_, January, 1892. - -Upon the choice of Lincoln, and while Buchanan was President, -preparations were made by the South for a disruption of the Union. -Reuben Davis, a distinguished lawyer and a member of Congress from -Mississippi, in his autobiography, informs us that he spent much time -with Floyd, the Secretary of War, who had been for twelve months sending -arms to Southern arsenals and had put the forts in condition to be -captured. He estimated that one half of the munitions of war was in the -South.[115] South Carolina again took the initiative and seceded on the -ground that as a sovereign State she had the right to withdraw from the -compact she had entered into; and for the second time in our history did -a State, and the same State, assert its sovereign right against the -supreme authority of the United States. The other plantation States -quickly followed South Carolina; generally there was no elaborate -statement by them of their grievances, nor did they explain why the -doctrines they abhorred less than thirty years before, they now asserted -and so courageously fought for. Virginia joined the Southern Confederacy -without passing any formal act of secession. Her convention, called for -the purpose of considering the matter, voted not to secede. In an -address delivered in October, 1887, at Richmond, on the dedication of a -statue to Lee, the orator, a descendant of the great Chief-Justice -Marshall, undertakes to explain and defend Virginia's course in joining -the South. He does not claim the right of secession and apparently -agrees with Lee, and puts in italics what Lee wrote on the 23d of -January, 1861, that "_Secession is nothing but revolution_." He states -also that secession was unjustifiable, because the opponents of Lincoln -had the majority in the National House of Representatives and Senate; -but that the method of Lincoln of composing the troubles of the country -brought Virginia into the contest. Following, as Southern writers and -speakers do, the extravagant denunciations of Calhoun, he says: "Instead -of maintaining the honor, the integrity of our National Union, it -destroyed that Union in all but a territorial sense, as effectually as -secession, by substituting conquered provinces for free States, and -repeating in America the shameful history of Russia and Poland." As our -Poland when he spoke had an executive of its own choice and a majority -of the House of Representatives, it was its own fault, if its -inhabitants were in that abject condition. Is it not absurd to talk in -this way, when no secessionist has been hung for treason, and a silver -crown a short time since, at a public meeting, was prepared by some -admirer for the dethroned autocrat of our Poland? At any rate we have no -sedition law now, and freedom of speech against the government passes -without comment. An unsuccessful revolution is rebellion, generally -punished in other countries by death. It has not been so in our Russia. -Jefferson Davis was indicted for treason; his trial never took place, as -President Johnson issued a general amnesty proclamation. - - [115] _Reuben Davis' Recollections_, p. 395. - -Undoubtedly the confidence of the South in its assumed superiority in -courage and fighting qualities had great influence in inducing its -attempted secession. Jefferson Davis in his history gives instances of -advantages gained at the outset by the Southern soldiers through their -skill in the use of firearms. He did not tell us, and it seems to have -escaped notice generally, that the Southern States had also the great -benefit of the military academies they had established, which furnished -at once trained officers for their troops. Their renowned general, -Stonewall Jackson, was a professor in that of Virginia, and went from -the academy to the Confederate army.[116] - - [116] See article by John S. Wise in the _Century Magazine_, Jan., - 1890. The Virginia Military Academy was established by the State in - 1839. Col. Smith, a graduate of West Point, was at the head. It was - continued during the civil war under the charge of disabled officers. - In 1860 a professor in this school informed the writer that there were - similar academies in all the Southern States. Apparently they have - been discontinued in most of them, South Carolina, however, yet - maintaining hers. - -The seceding States in forming their new compact, in article after -article followed the Constitution they rejected, prefacing it with the -declaration, "We, the people of the Confederate States, each State -acting in its sovereign and independent character, in order to form a -more permanent Federal Government," instead of "We, the people of the -United States, in order to form a more perfect Union, for ourselves and -our posterity." They took particular care, however, by their new -"Compact," to provide for the perpetuity of slavery in their -Confederacy,--and, looking to conquests, in any new territory that might -be acquired. - -Instead of slavery being perpetuated, the whole system was annihilated -under and within the Constitution. The amendment abolishing it forever -was passed in the manner required in the Constitution by all the States -that had refused an obedience to the United States laws. No longer is -the declaration of independence that all men are born free and equal, -in the language of Calhoun, "a glittering generality." - -The seceding States were not without their internal trouble, and the -authority of the Confederate Government was questioned by Georgia. - -We all know how patiently and assiduously Lincoln tried to keep the -Southern States in the Union and how ineffectually; and when he found -that his effort was of no avail, with how firm a hand he wielded the -powers of the Executive. In Merriam's case, he maintained his suspension -of the habeas corpus, although Chief-Justice Taney held it was illegal. -His decreeing freedom to the slaves of those in rebellion, as a war -measure, was an act of imperial power seldom surpassed. Our whole -history, as well as the epoch of the civil war, has proved how unfounded -was Hamilton's fear that the government was not strong enough. - -How wonderfully well the founders of our Constitution did their work, is -shown by the fact that so few amendments have been made, while the -constitutions of the different States have been changed again and again. -The ten articles declaring certain rights to be in the people were -adopted in 1791, then in 1798 the article taking away from the United -States the jurisdiction of suits of individuals against a State; -afterwards in 1804 two articles changing the manner of electing the -President and Vice-President. The theory of the founders of the -Constitution, that it would be best to leave to men of prominence as -electors to confer and choose those most fit for President and -Vice-President, has failed. The electors chosen by the people are -pledged to vote for candidates nominated at party conventions. After -these few amendments, none were passed until those as to slavery, -following the civil war. - -A strict construction of the powers granted by the Constitution is a -"State's rights" that those who believe in the supremacy of the National -Union can well favor. It is beyond human wisdom to enact laws of which -there can be no question; the decisions of the Supreme Court show how -hard it is to make a law whose constitutionality is not disputed. -Government would have been impossible, if the power had been in each -State to decide for itself as to the validity of every law passed and -every act of the General Government, and to secede at its will whenever -it chose. Yet this is the government that the South claimed our -forefathers established. - -In forming the Confederacy of the Revolution, it was declared in its -articles that it was indissoluble; the same declaration is in the -Constitution when the States "formed a more perfect Union" than that of -the Confederacy "for ourselves and our posterity," and were merged into -one Nation. This Constitution and the laws of the United States are -declared there, "as the supreme law of the land; and the judges in every -State shall be bound thereby, anything in the Constitution or laws of -any State to the contrary notwithstanding." Supreme over what, if not -over the States that should adopt it? Historically that supremacy has -been maintained and enforced by the United States Courts and Executive -and Legislature. - -In resisting the supremacy of this Constitution no State, dismembered -Virginia perhaps excepted, has suffered more than South Carolina. It is -truly pathetic in passing through the streets of Charleston, the home of -the great planters and politicians that shaped the destinies of the -State, to hear the names of the foreign bankers and merchants that have -taken the place and the homes of the old leaders or who have built more -pretentious abodes, to see the buildings with walls cracked and fissured -by the earthquake mended by contributions cheerfully given by Northern -friends, to read the newspapers lamenting the loss of their trade to -Savannah and calling on the United States for larger appropriations to -deepen the channels of their harbor. Then to look upon their statues of -those distinguished at different periods: the mutilated one of the great -Earl of Chatham, the friend of American freedom in Colony times; those -of the heroes of the Revolution and the war of 1812; and in the square -opposite the barracks of her Military Academy, the great glittering -bronze of Calhoun,[117] who brought so much misery to them all. But as -we go Westward, where the sandy soil of the plains yields to the clay of -the foothills, and find the streams turning the wheels of the factory, -and hear the whirl of the spindle tended by white operatives, and see -the plough, generally followed by a white man, turning over the soil -amidst the stumps of trees in fields newly reclaimed; and come at last -to Spartanburg and read the inscription there on the monument recently -raised to those who fell at Cowpens, by the old thirteen States and -Tennessee, bringing to memory the days of Greene and Morgan, we cannot -but believe instead of four and forty sovereign States, we shall, in -Webster's words, have for all time, "one Nation, one Union, one -Destiny." - - [117] This was written four years ago: Charleston now shows few signs - of the earthquake, and Calhoun's statue has mellowed into a pleasing - bronze color. - - - - -INDEX. - - - A - - Adams, Charles Francis, Minister to England, 3 - - Adams, Henry, opinion concerning Virginia's estimation of validity of - United States laws, 100; - controverted, 113-115 - - Adams, John, influence of Alien and Sedition laws on re-election, 112 - - Alien and Sedition laws of 1798, 88; - Jefferson's opposition to, 88; - influence in defeating federal party, 112 - - Amendments to Constitution, how made, 40; - first ten articles, 78, 79 - - - B - - British opinion of right of secession, 2-3 - - Bryce, James, on right of Southern States, 3; - theory of his book, 3, _note_ - - - C - - Calhoun, John C., United States a confederacy, not a nation, 24; - his youthful prominence in Congress, 34; - his early opinions of the Constitution, 134, 135; - change of opinion, 137, 138; - personal appearance, 138, 139; - his reasoning on right of nullification, 140; - his argument considered, 140, 141 - - Chase, Salmon P., decision on secession, 34, 35 - - Clay, Henry, tariff compromise, 23 - - Clinton, George, his opinion as stated by Mr. Lodge, 5; - his written declaration that the United States Government is - perpetual, 77, 78 - - Compact, may be for national, indissoluble government, 28, 29; - a voluntary union of independent nations must be by compact, 28; - Southern views of, 30 - - Confederacy of the Southern States, constitution and compact as to - slavery, 158 - - Confederacy of the United States, its failure, 31, 32; - dependent upon the States, 48 - - Constitution of United States, adoption by Continental Congress, - States, and _people_, 32; - perpetuity declared in preamble, 33, 34; - supremacy, 35, 36, 49; - oath of every State officer and judge to support, 36; - supremacy in all sovereign powers, 37, 38; - prohibitions to States, 38, 39, 47; - power to coerce States in articles punishing treason, 41, 42, 43; - can take all powers from States by amendments, 45, 46; - made States suable, 44; - powers given by Constitution to States, 46; - naturalization, 47; - takes from States powers of resistance, 47, 48; - its excellence proved by few amendments, 159, 160; - its adoption opposed on account of its nationality and of excessive - powers given, 69-73; - no claim of right of secession or nullification suggested in the - conventions adopting the Constitution, 73 - - Convention that made the Constitution, its members and mode of voting, - 51-53; - proposition of the delegation of Virginia for a National Government - debated and passed, 51-53; - New Jersey plan amending confederacy, 54, 56; - resolves for a National Government again taken up and passed, 56-62; - representation in Senate, 58-60; - a compromise of representation not a compromise of powers granted, - 60, 61; - resolutions calling the proposed government national referred to - Committee to Report a Constitution, 61, 62; - report of committee and articles again considered separately, 62-64; - change in preamble by Committee of Style and Arrangement, 64; - opinions of members, 65, 66; - its nationality and great powers, 70-72 - - Cooper, Thomas, pronounced in 1833, in South Carolina, author of - nullification, 141, 142 - - - D - - Davis, Jefferson, indicted for treason and not tried, 157; - asserted advantage of Southern soldiers, 157 - - - E - - Embargo, 129, 130 - - - F - - Federal, the party, meaning of the term, 37 - - Franklin, Benjamin, services as member of the convention, 68 - - - G - - Georgia, suit of Chisholm against, 82-84; - claim of sovereignty, 83; - decision of Supreme Court, 83, 84; - controversy as to Cherokee Indians, 151; - vigorous resolutions in 1833 against South Carolina's nullification - doctrines, 147 - - Gerry, Elbridge, objection to conferring power of amending - Constitution as fatal to the States, 45, 46; - refused to sign the Constitution, 68 - - - H - - Hamilton, Alexander, proposed plan for a strong government not favored - in the convention, 54, 55; - his speech as to democracy, 55; - promised support of Constitution, 68; - correspondence with Madison, 72; - successful support of the adoption of the Constitution by New York, - 72; - states in the _Federalist_ the supremacy of the judicial power of - the United States, 129 - - Hartford convention, called by Massachusetts, discontent of the State, - 131; - resolutions passed did not assert State sovereignty, but proposed - amendments to Constitution, 131, 132 - - Hayne, Robert Y., denunciation of the Eastern States, 8; - his doctrine, 9; - approval of, by citizens of Charleston, 138 - - Henry, Patrick, Lodge's assertion as to his opinion, 5; - strenuous objection to adoption of the Constitution as national, 70, - 71; - opposition to the Virginia resolutions, 113; - his declaration that Virginia was to the United States as a county - to Virginia, 113, 114 - - - I - - Iredell, James, dissenting opinion in Chisholm against Georgia was not - by reason of sovereignty of Georgia, 83 - - Ireland, bill of 1886 for home rule, 40 - - - J - - Jackson, Andrew, his proclamation against nullification, 21, 22; - his popularity and arbitrary exercise of power, 23; - his character and early life, 143; - experience in politics and law, 144; - proclamation of his own work, 142, 143, 145; - threat to hang Calhoun, 22; - collected duties after South Carolina declared they should not be - levied, 145, _note_, 146 - - Jay, John, wrote, "the convention and people agreed a National - Government was necessary," 71, 72; - his opinion in Chisholm _vs._ Georgia as to sovereignty of United - States, 80, 81 - - Jefferson, Thomas, reputed author of Kentucky resolutions, 88; - approval of coercing States, 93; - became president immediately after passage of Kentucky resolutions, - 116; - his inaugural address national, 116-118; - approved of bills in favor of a national road, 118; - approval of the use of the army and navy against Pennsylvania in the - Gideon Olmstead case, 118-121; - approval of annexation of Louisiana, 123; - opinion as to nullification and secession, 125; - opposition to Alien and Sedition laws, 126, 127; - national views, the embargo, 129, 130; - prescribed _Federalist_ as text-book in University of Virginia, 128, - 129 - - Judiciary of the United States, made supreme by the Constitution, 37; - power to decide on laws of Congress, 49, 50; - supremacy of the Government uniformly sustained by it, 148-151 - - - K - - Kentucky resolutions, 90; - not much noticed as coming from a new State, 89; - merely the opinion of the legislature that passed them, 89; - their doctrine considered, 90-93; - they deny that the United States Government could punish any crime - except when the power is specifically given, 93, 94; - they protest against laws of Congress, do not treat them as invalid, - 94, 95; - not sanctioned by other State legislatures, their purport escaped - notice, 101; - State let them drop, 101, 102; - no assertion of their doctrine until 1830, 133 - - - L - - Lansing, John, with Yates a delegate from New York, left the - convention July 3d when a National Government was agreed on, 66; - his motion for conditional acceptance of the Constitution rejected - by New York convention, 72, 73 - - Lee, Robert E., opinion that secession was revolution, that the United - States Government was national and perpetual, 4, 156 - - Lieber, Francis, on Webster's oratory, 13 - - Lincoln, Abraham, acts in Merriam's case, declaration of freedom to - slaves, 46, 159 - - Livingston, Edward, Jackson's proclamation, 142, 143 - - Lodge, Henry Cabot, on secession and Webster's argument, 5, 6; - on Josiah Quincy and Hartford convention, 132 - - - M - - Madison, James, protective duties, 26; - as to compact, 29; - suggestions as to convention to form government, 51; - letter to Hamilton on adoption of Constitution, 72; - wrongly accused of support of nullification, 96; - author of Virginia resolutions of 1798 and explanation of 1799, 102; - a strict constructionist, 82; - signed re-charter of the United States Bank, 133; - _see_ Virginia resolutions - - Marshall, John, Chief-Justice, declaration concerning supremacy of - United States, 142; - that State courts had invariably yielded, 150 - - Martin, Luther, definition of extent of judicial power of United - States, 20; - objection to punishing treason, 43 - - Mason, George, insisted on National Government, 57; - refused to sign Constitution, reasons, 69 - - Massachusetts, acceptance of Constitution and use of word compact, 75; - submission to embargo, 30 - - Military academies in Southern States, 158 - - Missouri Compromise, 135, 136 - - Morley, John, on British opinion, 2, 3 - - Morris, Gouverneur, report of draft of Constitution, 64; - on the importance of the Mississippi, 123 - - - N - - New England, discontent with embargo and submission, 130 - - New York, consideration of the acceptance of the Constitution, 72, 73; - unanimous assertion of its convention that the adoption was for - perpetuity, 77, 78 - - Nullification, claim that validity of laws of general government are - at the caprice of each State, 25, 26; - no suggestion of such right in conventions, 75; - no claim of such right save in Kentucky resolutions until 1830, 133; - so stated by Jackson, Marshall, and the nullifiers of South - Carolina, 141, 142 - - - P - - Pennsylvania, resistance to excise law, 84, 85; - resistance to United States in Gideon Olmstead case, 118-122; - proposition to Virginia for amendment of Constitution as to - questions between States and United States, 122, 123 - - Pinckney, Charles C., declaration in convention of South Carolina that - the States never had sovereignty, 74; - satisfaction with Constitution, 67 - - Pinckney, Charles, declaration as to nationality of the Constitution, - 74 - - - Q - - Quincy, Josiah, his declaration a threat of rebellion, not a claim of - right of secession, 124, 125; - non-concurrence of Massachusetts, 124, 130, 131; - not made delegate to Hartford convention, 132 - - - R - - Randolph, Edmund, introduced national resolutions in convention, 51; - did not sign Constitution, 69; - supported it in Virginia convention, 71 - - Resolutions of State legislatures are mere opinions, 89; - even when declaring laws of United States null and void, 148 - - - S - - Secession, general belief in right of, by Southern and English - writers, 1-4; - belief of some Northern writers, 5, 6; - impracticability of claim, 25; - declaration of perpetuity in preamble of Constitution, 33, 34; - historically no claim of such right until 1830, 142 - - Senate, equality of States in, merely a compromise of representation, - 60, 61 - - Slavery abolished by power given in Constitution, 46, 158 - - South Carolina, declaration concerning tariff, warlike preparations, - 138; - original adoption of the Constitution, 73, 74; - nationality asserted in convention, 74; - only State asserting right of nullification in 1833, 146; - resolutions of other Southern States opposing her opinions, 146-148; - collection of duties after State ordinance, 145, 146, and _note_; - submission to judgment overruling taxation of United States Bank, - 150; - first State to secede, 155; - statue of Calhoun and monument at Spartanburg, 161, 162 - - Southern States, satisfaction with Constitution at first, 67; - opposition to secession in 1833, 146; - resolves of legislatures, 146-148; - change of views, 154; - control of the government before the Civil War, 153; - laws of United States and decision of Supreme Court establishing - right to introduce slaves into territories, 154; - preparations for secession, 155; - confidence of success, 157 - - State governments, powers derived from Constitutions, 27; - subordinate and local, 39, 40; - limited under the Constitution of United States, 46; - original sovereignty questioned, 79-81; - admitted by Webster, 80; - denied in convention of South Carolina, 74; - resolutions of legislatures mere opinions, 148 - - Stephens, Alexander H., on secession, 1, 2 - - Story, Joseph, Judge of Supreme Court, doctrine of supremacy of United - States, tenacity in his belief, 152, 153 - - Supreme Court of United States, its powers principally those of - restraint, 152; - _see_ Judiciary of the United States - - - T - - Taney, Roger B., Chief-Justice, maintained authority of United States, - 151 and _note_ - - Tariffs, for revenue and protection, second act, first Congress, 26; - no question of power then, 81, 82 - - Taylor, John, views concerning the government, 114, 115 - - Treason, crime according to the Constitution, 41; - right of government to punish, implies its citizens owe allegiance, - 41; - a confederacy does not punish it, 41; - the old confederacy, 41; - consideration of the clauses of punishment of, 41, 42 - - - U - - United States Government, limited to powers granted by the - Constitution, 27; - was a nation or a confederacy made? 28, 29; - the compact was for a nation, 30; - perpetuity declared in preamble, 34; - its supremacy expressly declared and nature of powers granted, 35, - 36; - great powers over States, 38, 44; - can be extended by amendment, 45, 46; - _see_ Judiciary of the United States - - - V - - Virginia, acceptance of Constitution, 76; - its powers derived from the people of the United States, 76; - approval by legislature of the supremacy of the United States - judiciary, 122, 123; - did not secede, reasons for joining the South, 156 - - Virginia resolutions, statement of, 98, 99; - did not declare a State could interpose, 99; - a denunciation of assumption of undelegated powers by United States, - 99; - opposed by other States, 100, 101; - explanation of their meaning, 102-111; - State means people of the State, 103, 104; - of rights of States in case of usurpations, 105; - right to redress usurpations, 105, 106; - admission of authority of judiciary, 106; - allegation that assumption of undelegated powers would end in - monarchy, 108; - attack on Alien and Sedition laws, 109, 111, 112; - assertion that resolutions are mere opinions, 109, 110; - patriotism of the State, 111; - remedial methods suggested, 112 - - - W - - Walker, Robert J., as to Jefferson's views of nullification, 125; - successful canvass of Mississippi, 147 - - Washington, George, services in convention, 67, 68; - suppression of insurrection by military force, 84; - letter on disbanding the army, 86; - letter submitting Constitution to each State as to consolidation of - Union, 86; - farewell address, on unity of government, 86; - action on the Virginia resolutions, 113 - - Webster, Daniel, personal appearance, 1; - reply to Hayne's attack on the East, 11, 12; - the coalition and Banquo's ghost, 10, 11; - eulogium of South Carolina, 13; - declaration that the government was made by the people, for the - people, 16; - supremacy and nationality of government, 16-21 - - Wilson, James, services in the general and State conventions, 70 - - Wolseley, Lord, as to Lee and secession, 4 - - - * * * * * - - -Transcriber's Notes: - -Punctuation has been standardised--in particular, missing periods -and quotation marks have been supplied where obviously required. -All other original errors and inconsistencies have been retained, -except as follows: - - Page iv: added missing , - (and not "We, the States,") - Page 3: changed 1 to i. - (of chapter iv., vol. i., page 29) - Page 10: changed filled to filed - (they had 'filed their mind,' that their) - Page 18: changed it to is - (political system which is established) - Page 18: changed . to ? - (sovereign powers a _government_?) - Page 55: changed Elliott to Elliot - (See his plan, 5 Elliot, 205.) - Page 83: added missing , - (reasoned opinions. Iredell, a member) - Page 93: changed Elliott to Elliot - (Kentucky resolutions, 4 Elliot, 540.) - Page 101: added missing , - (United States laws, though asserted) - Page 114: changed John to Moses - (pp. 393, 394. Moses Coit Tyler's) - Page 122: changed Pinkney's to Pinckney's - (Virginia in Mr. Pinckney's argument) - Page 128: changed collonaded to colonnaded - (the pleasing colonnaded buildings) - Page 163: changed 213 to 2-3 - (right of secession, 2-3) - Page 166: added missing word 'of' - (proclamation of his own work,) - - - - - -End of the Project Gutenberg EBook of Nullification, Secession Webster's -Argument and the Kentucky and Virginia Resolutions, by Caleb William Loring - -*** END OF THIS PROJECT GUTENBERG EBOOK NULLIFICATION, SECESSION *** - -***** This file should be named 41673-8.txt or 41673-8.zip ***** -This and all associated files of various formats will be found in: - http://www.gutenberg.org/4/1/6/7/41673/ - -Produced by David Edwards, Rosanna Murphy and the Online -Distributed Proofreading Team at http://www.pgdp.net (This -file was produced from images generously made available -by The Internet Archive) - - -Updated editions will replace the previous one--the old editions -will be renamed. - -Creating the works from public domain print editions means that no -one owns a United States copyright in these works, so the Foundation -(and you!) can copy and distribute it in the United States without -permission and without paying copyright royalties. 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You may copy it, give it away or -re-use it under the terms of the Project Gutenberg License included -with this eBook or online at www.gutenberg.org/license - - -Title: Nullification, Secession Webster's Argument and the Kentucky and Virginia Resolutions - Considered in Reference to the Constitution and Historically - -Author: Caleb William Loring - -Release Date: December 20, 2012 [EBook #41673] - -Language: English - -Character set encoding: UTF-8 - -*** START OF THIS PROJECT GUTENBERG EBOOK NULLIFICATION, SECESSION *** - - - - -Produced by David Edwards, Rosanna Murphy and the Online -Distributed Proofreading Team at http://www.pgdp.net (This -file was produced from images generously made available -by The Internet Archive) - - - - - - -</pre> - - - +<div>*** START OF THE PROJECT GUTENBERG EBOOK 41673 ***</div> <div class="tnote"> <p class="center"><b>Transcriber’s Notes:</b></p> @@ -7052,388 +7010,6 @@ Virginia in Mr. <span class="correction">Pinckney’s</span> argument </ul> </div> - - - - - - - -<pre> - - - - - -End of the Project Gutenberg EBook of Nullification, Secession Webster's -Argument and the Kentucky and Virg, by Caleb William Loring - -*** END OF THIS PROJECT GUTENBERG EBOOK NULLIFICATION, SECESSION *** - -***** This file should be named 41673-h.htm or 41673-h.zip ***** -This and all associated files of various formats will be found in: - http://www.gutenberg.org/4/1/6/7/41673/ - -Produced by David Edwards, Rosanna Murphy and the Online -Distributed Proofreading Team at http://www.pgdp.net (This -file was produced from images generously made available -by The Internet Archive) - - -Updated editions will replace the previous one--the old editions -will be renamed. - -Creating the works from public domain print editions means that no -one owns a United States copyright in these works, so the Foundation -(and you!) can copy and distribute it in the United States without -permission and without paying copyright royalties. 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You may copy it, give it away or -re-use it under the terms of the Project Gutenberg License included -with this eBook or online at www.gutenberg.org/license - - -Title: Nullification, Secession Webster's Argument and the Kentucky and Virginia Resolutions - Considered in Reference to the Constitution and Historically - -Author: Caleb William Loring - -Release Date: December 20, 2012 [EBook #41673] - -Language: English - -Character set encoding: ASCII - -*** START OF THIS PROJECT GUTENBERG EBOOK NULLIFICATION, SECESSION *** - - - - -Produced by David Edwards, Rosanna Murphy and the Online -Distributed Proofreading Team at http://www.pgdp.net (This -file was produced from images generously made available -by The Internet Archive) - - - - - - - - - - NULLIFICATION, SECESSION - WEBSTER'S ARGUMENT - - AND - - THE KENTUCKY AND VIRGINIA RESOLUTIONS - - CONSIDERED IN REFERENCE TO THE - CONSTITUTION AND HISTORICALLY - - - BY - - CALEB WILLIAM LORING - - - - - G. P. PUTNAM'S SONS - - NEW YORK - 27 WEST TWENTY-THIRD STREET - - LONDON - 24 BEDFORD STREET, STRAND - - The Knickerbocker Press - 1893 - - - - - COPYRIGHT, 1893 - BY - CALEB WILLIAM LORING - - - Electrotyped, Printed, and Bound by - The Knickerbocker Press, New York - G. P. PUTNAM'S SONS - - - - -PREFACE. - - -I was much shocked a few years ago, in reading a Life of Webster, by the -statement of its able and distinguished author that really Hayne had the -right of the argument in the renowned debate on nullification. In reply -I prepared a statement of Webster's argument. Besides what Webster had -so ably said, I found in the Constitution itself other proofs of the -nationality of our government, of the intent of those who made it to -establish a nation, of their full belief that they had done so, and -that, historically, there was no contention as to this. - -The vital question is whether a national union was established by the -States, or a confederacy of independent nations formed with the right of -each to decide upon the validity of the acts of the General Government -and leave it at its pleasure. - -The superiority in men and wealth that gave the North the victory did -not decide the right or wrong of secession: it may have shown its -impracticability; but if the right ever existed it remains to-day. - -There are many authors who have at great length discussed this matter on -the side of the South, but the case of the North, it seems to me, has -not been fully set forth. The idea appears to be creeping into history, -a recent fad of some Northern writers and commentators, that the -nationality of our government was a question from its inception, and -that the United States Judiciary and Congress by assumptions have -largely extended its powers. - -The nation, as Pallas Athene full grown and armed from the brain of -Zeus, sprang to life from the Constitution with the sovereign authority -necessary for its existence and the power to enforce its rule. In the -beginning there was no debate, no question of its nationality. The early -commentators on the Constitution (and Story wrote three volumes upon -that matter) did not even mention that there was a doubt of it. - -To those who so often quote the Kentucky resolutions, it will perhaps be -a matter of surprise to learn that their purport and existence were -forgotten from the time they were promulgated until South Carolina's -threat in 1830 of nullification. - -That Virginian of Virginians, Patrick Henry, who so strenuously opposed -his State's adoption of the Constitution, struck the keynote, when he -objected that it was "We, the people," and not "We, the States," that -made the government. Later, when convinced of the wisdom of the -adoption, and Virginia had shown by its resolutions its objections to -the Alien and Sedition laws, and discontent at the rule of John Adams -and the Federalists, he no less forcibly declared that Virginia _owed_ -an obedience to the laws of the United States. - -It will be new to many that the Virginia resolutions do not in the least -countenance the doctrine of secession and nullification: that the -resolutions and explanations of them by the Virginia Legislature testify -to an attachment and love of the Union, and a professed intent to -strengthen and perpetuate it, and are, as they declare, only a protest -against the assumption by the government of undelegated power. - -In the belief that the right and might both prevailed in our civil war, -and in full trust in that faith, these remarks are submitted to the -people of our whole country. - - CALEB WILLIAM LORING. - - - - -CONTENTS - - - CHAPTER I. - PAGE - WEBSTER AND HAYNE 1 - - Insistance of the South on the right of secession--Belief in this - of English and of some Northern writers--The doctrine of - Webster's speech on nullification approved throughout the country - except in South Carolina--Hayne's doctrine and speech--Webster's - reply to Hayne's attack on the Eastern States--Statement of - Webster's argument in reply to Hayne and Calhoun--Jackson's - vigorous opposition to nullification, and his proclamation. - - - CHAPTER II. - - THE NATIONALITY OF THE CONSTITUTION 24 - - The question is whether a national government or a confederacy of - nations was made by the adoption of the Constitution--The - doctrine of nullification and secession considered--The State - governments and the National government have limited powers--The - foundation of our government was necessarily a compact--The - compact was for a national government--The failure of the - government of the Confederacy of the revolution--The Constitution - had the sanction of the Confederacy, of the State government and - of the people--Preamble of Constitution declares its - perpetuity--Supremacy of the Constitution over State judiciaries - and laws--All really sovereign powers given to United - States--Restriction of State powers--Powers of States only - local--People of States or parts of States making war against the - United States guilty of treason--Originally States, like - counties, were suable by the Constitution--By amendments to the - Constitution the United States can assume any power over the - States--Other provisions giving the general government great - power over States--Restriction of States to prevent their making - resistance--Constitution established a government over - individuals not States--Authority of the judiciary. - - - CHAPTER III. - - THE CONSTITUTIONAL CONVENTION INTENDED NATIONALITY 51 - - Convention called to amend the articles of Confederacy--First - resolution passed: the government should be supreme and - national--The national plan offered by the Virginia delegation - preferred and considered--The New Jersey plan of a confederacy of - the States with coercive power to compel obedience--Hamilton's - plan--The Virginia plan again adopted. The United States adopted - as the title--Resolutions passed that there should be two - branches of the legislature, the first to be chosen by the - people--Long controversy as to representation in Senate, settled - by an equal representation of the States, the vote to be per - capita--This compromise of representation in Senate does not - affect the supremacy of the granted powers--Resolution of - Elbridge Gerry referring the plan of a _national_ government to - the committee of detail unanimously passed--Government called - national in many of the referred votes--Committee of detail - report votes passed; the preamble declaring the government to be - for posterity--Article against treason again debated and passed - unanimously--Constitution committed to committee of style and - arrangement--New draft considered at length, adopted, and signed - by delegates--Diversity of opinion as to durability, no - suggestion that a State had a right to leave the Union--Yates and - Lansing left convention because the Constitution made a national - government--Satisfaction with it of Southern States--Washington's - service--Franklin's happy speech at close--George Mason did not - sign, though efficient in making it--Constitution submitted by - State legislatures in each State to a convention of the - people--Its acceptance considered in long sessions of the - conventions held in the several States--Everywhere announced as a - national government--Ratified as national in Massachusetts and - Virginia--Unanimous opinion of convention of New York of its - perpetuity--Amendments of Constitution, passed to quiet - apprehension as to its excessive powers--Early laws show a - liberal construction of the powers of the government--The right - of individuals to sue States taken away, but jurisdiction over - States and disputes between States retained--Insurrection in - Pennsylvania against excise law suppressed--Opinion of Washington - as to power of government--Alien and sedition laws passed. - - - CHAPTER IV. - - KENTUCKY AND VIRGINIA RESOLUTIONS 88 - - Jefferson reputed author of Kentucky resolutions--Slight notice - taken of Kentucky resolutions--Resolutions are merely the opinion - of the legislature passing them--Kentucky resolutions declare the - States being united by compact, each has a right to pass on the - validity of the laws and doings of government made by the - compact--The compact of the Constitution is to leave to the - United States judiciary the determination of the validity of all - laws and cases. Right of contracting powers to compel - performance by a party refusing to keep its contract--Further - absurdity of Kentucky resolutions in denying the validity of all - punitive laws passed by Congress except for offences mentioned in - the Constitution--Virginia's resolutions fundamentally - different--Madison never sanctioned nullification--Resolutions of - Virginia--They are: in case of usurpation it is the duty of the - States, not a State, to interpose to redress the evil--This not - an assertion that States could refuse obedience to the - laws--Opposing declarations of other States--Kentucky replied to - the resolutions of other States by protest, not by - nullification--Virginia's explanation to counter-resolutions of - the other States drawn by Madison--The reply conciliatory--It - affirms the Constitution is the compact to which the States are a - party--It defines States as meaning people of the States--The - right to resist in the last resort is a claim of right of - revolution--The right to interpose exists only in usurpation of - powers and for the sole purpose of arresting the - usurpation--Admitted the judiciary is to decide on all questions - submitted to it--The assumption of undelegated powers stated to - be dangerous to liberty--Alien and sedition laws declared to be - unconstitutional--These resolutions are merely opinions--No - objection to sending them to other States--May possibly influence - opinion even of the judiciary--The request of Virginia to other - States to join her in constitutional ways to maintain their - rights not objectionable--Resolutions asserted to be strongest - proof of the attachment of Virginia to the Constitution and - Union--The resolutions, perhaps partisan, but do not assert the - doctrine of nullification--Resolutions before the explanation - alarmed Washington and Henry who vigorously attacked - them--Henry's declaration that Virginia owed the same obedience - to United States as one of her counties did to her. - - - CHAPTER V. - - SUPREMACY OF CONSTITUTION MAINTAINED 116 - - Doctrines of Jefferson's inaugural--Serious conflict in the - Gideon Olmstead case--Jefferson signed an act authorizing the use - of the army and navy against a State--The United States - jurisdiction enforced against Pennsylvania--Unanimous objection - of legislature of Virginia to taking from the Supreme Court its - exclusive jurisdiction in cases where States were - concerned--Purchase of Louisiana by Jefferson--Josiah Quincy's - speech a threat of rebellion, not a claim of right of - secession--Sayings and acts of Jefferson opposed to nullification - and secession--Jefferson's direction that the _Federalist_ should - be the permanent text-book of the University of Virginia--The - submission of New England to the embargo--The Hartford convention - passed no resolves asserting State rights; it proposed amendments - to the Constitution--Supremacy of the government always - maintained. - - - CHAPTER VI. - - CALHOUN, JACKSON, AND NATIONAL GOVERNMENT 134 - - Calhoun in the beginning a leader and advocate of national views - in the House of Representatives--Sectional division of States on - the question of slavery--Missouri compromise--Calhoun's change of - opinion--The nullification of South Carolina--Calhoun's - "inexorable logic" considered--The doctrine of nullification not - asserted from time of the Kentucky resolves until revived by - South Carolina--Jackson's proclamation--His firmness--His - experience in political matters as lawyer, legislator, and - judge--Congress passed a force bill to collect duties--Act - reducing duties also passed--Strong resolutions of legislatures - of the Southern States against nullification--Supremacy of the - government maintained by judges appointed by all the political - parties in every case and over all the States--Judgments of State - courts constantly reversed until the time of the civil war--It is - Congress, not the court, that makes the laws--Judge - Story--History after the threatened nullification of South - Carolina--Legislation and decision of Supreme Court extending - slavery--The South's preparation for disruption of the - Union--Virginia opposed the government without passing an - ordinance of secession--Military academies of Southern - States--The government stronger than Hamilton thought--The - exceeding excellence of the Constitution--New vigor of South - Carolina as a free State. - - - - -NULLIFICATION, SECESSION, WEBSTER. - - - - -CHAPTER I. - -WEBSTER AND HAYNE. - - -In the renewed friendly relations at the dinner-table and in the -lecture-room, the North of late has had the pleasure of listening to the -speeches and discourses of Southern orators, soldiers, and politicians, -who, while asserting their loyalty to the Union, claim that that Union -was a compact between independent sovereign States, from which each of -these independent sovereign States had an undoubted right to secede; our -Southern brethren, beaten in the trial of arms, persistently insist that -they fought for the right. - -Besides Jefferson Davis' _History of the Confederacy_, as bitter to some -of its generals as to the North, the Vice-President of that government, -of high repute for ability and reasoning powers, Alexander H. Stephens, -published two ponderous volumes to prove not only that the South could -secede, but that it was obligatory, if it wished to retain its equality -and freedom, alleging as the principal reason the wrongful infringement -of the right of the South to take its "peculiar property," slaves, into -all the territories of the Union, the common property of all the States. -Recently was published Semmes' _Career of the Sumter and Alabama_, -abusive of the Yankee and of Northern friends like Buchanan, insisting -on the justice and necessity of secession, and asserting the tyranny and -mean oppression of the North. We have had also a republication of -Governor Tazewell's _Review of President Jackson's Proclamation against -Nullification_; and generally the dedication of statues and decorating -of the graves of the soldiers of the Confederacy have been taken as -occasions to show the justice of the lost cause. - -It is to be hoped that few agree with General Early's declamation at -Winchester as to those of the South who changed their opinion as to -secession: "The Confederate who has deserted since the war is infinitely -worse than the one who deserted during the war." - -The same opinion as to the right of secession has been very generally -held by British politicians; and that opinion to a great extent -prevailed, and to-day prevails, in the English army and navy. Mr. John -Morley, in his life of Burke, in reference to Burke's speeches -denouncing the conduct of Great Britain towards us as colonies, says -that "the current of opinion was then precisely similar in England in -the struggle to which the United States owed its existence, as in the -great civil war between the Northern and Southern States of the American -Union"; "people in England convinced themselves, some after careful -examination, others on hearsay, that the South had a right to secede." - -Lord Coleridge, who served as one of the British commissioners in the -Geneva arbitration, in an address recently delivered at Exeter on Sir -Stafford Northcote, says: - - "I have myself seen that most distinguished man, Charles - Francis Adams, subjected in society to treatment which, if he - had resented it, might have seriously imperilled the relations - of the two countries.... But in this critical state of things, - in and out of Parliament, Mr. Disraeli and Sir Stafford - Northcote on one side, and the Duke of Argyll and Sir George - Cornewall Lewis on the other, mainly contributed to keep this - country neutral, and to save us from the serious mistake of - taking part with the South." - -Even Mr. Bryce, a most learned author, whose opinion in this matter has -great weight, intimates that the seceding States legally may have been -right.[1] - - [1] Bryce's _American Commonwealth_, vol. i., pages 409 and _seq._ Yet - Mr. Bryce's whole work is in accordance with the theory he asserts at - the beginning of chapter iv., vol. i., page 29: "The acceptance of the - Constitution of 1789 made the American people a nation. It turned what - had been a league of States into a Federal State by giving it a - National Government with a direct authority over all citizens." - -Lord Wolseley, in his article in _Macmillan's Magazine_ on the life of -Lee, extolling him as the greatest general of his age and the most -perfect man,[2] informs us that each State possessed the right both -historically and legally under the Constitution to leave the Union at -its will. Apparently he did not know that January 23, 1861, Lee wrote to -his son: "Secession is nothing but revolution." "It" (the Constitution) -"is intended for perpetual union, so expressed in the preamble, and for -the establishment of a government not a compact, and which can only be -dissolved by revolution or the assent of all the people in convention -assembled. It is idle to talk of secession."[2] - - [2] General Long's _Memoirs of Lee_, page 88. - -Possibly in time the North may be of the same opinion as to Lee's -transcendent ability as a general. No one doubts now his great soldierly -attainments and the worth of his private character, but for the sake of -the existence of our nation, may it never believe he fought for the -right. - -Very generally and very fortunately for the country our Southern -fellow-citizens, except their historians, some of their politicians, and -a few whom they call unreconstructed rebels, concede that the right of -secession has been put to the arbitrament of war and decided against the -South forever. Now they tell us that none are more loyal and will march -more willingly under the Stars and Stripes than those who fought so -bravely to the bitter end under the flag of the Confederacy. Even -Jefferson Davis, in the conclusion of his history, concedes that the -result of the war has shown that secession is impracticable. It is -difficult, however, to understand how might has made right, and the -conquest of the richer and more populous North over the weaker South has -settled forever the right or wrong of the matter. The North does not -believe in the sneering maxim of Frederick the Great, that the Almighty -is on the side of the heavier battalions. - -Nor need we go to the South or to our English military critics for this -opinion as to the Northern right. In a recent short life of Webster -written for the American Statesmen series, a distinguished Republican -politician and historian, Henry Cabot Lodge, in criticising the greatest -speech of our greatest orator, Webster's in reply to Hayne, on South -Carolina's nullification doctrines, makes these astounding statements: - - "That it was probably necessary, at all events Mr. Webster felt - it to be so, to argue that the Constitution at the outset was - not a compact between States, but a national instrument.... - When the Constitution was adopted, it is safe to say that there - was not a man in the country, from Washington and Hamilton on - the one side, to George Clinton and George Mason on the other, - who regarded the new system as anything but an experiment - entered upon by the States, and from which each and every State - had the right peaceably to withdraw, a right which was very - likely to be exercised." - -This is a declaration of the right of secession at the inception of our -government and that every one held that belief. If this be correct, with -such a right the Union was no enduring tie, but was a mere rope of sand. - -He adds that the weak places in Webster's armor were historical in -nature. In support of this opinion, he instances the Virginia and -Kentucky resolves in 1799, and the Hartford convention of 1814; a few -disloyal, some might say treasonable, acts and declarations; and then -tells us a confederacy had grown into a nation, and that Mr. Webster set -forth the national conception of the Union; and the principles, which he -made clear and definite, went on broadening and deepening and carried -the North through the civil war and preserved the national life. A -singular result from a speech, if it were so fundamentally and -historically wrong. - -If Mr. Lodge, and those who agree with him, and there are some at the -North who do, be right, and Hayne got the better of Webster in that -celebrated contest, the nullification doctrines and acts of South -Carolina were constitutionally sound and legal; and if South Carolina -were right in her nullification, the secession of the South, thirty -years afterwards, was also right. - -We do not concede that nullification and secession have been barred -because the course of events has been such that independent sovereign -States have grown into a nation; nor do we admit that the Union and its -indissolubility depend only on the result of an appeal to arms. We claim -with Webster that nullification and secession were entirely indefensible -constitutionally, and also in the light of history at the time of the -foundation of our Constitution, and ever since. - -There can be no doubt of the effect of Webster's speeches at the time of -their delivery; they aroused the national pride of the people, and the -whole country, except portions of the South, responded. - -It was in this nullification controversy that Webster won the title of -the Great Expounder of the Constitution; he was then at his prime, -physically and mentally. Always carefully dressed, when he made his -speeches, in the blue coat with brass buttons, buff waistcoat, and white -cravat of the Whigs of Fox's time; his large frame, his massive head -with dark, straight hair, and deep set and, in debate, luminous black -eyes; his superb swarthy complexion brightened with brilliant color that -is even in women so handsome; his grand and rich voice; his emphatic -delivery;--all served to make him the most impressive of orators. - -It was often said by his contemporaries at the bar that unless Webster -wholly believed in the justice of the cause he was maintaining he could -not argue well. He was not like some of the greatest advocates, whose -ability and ingenuity are only fully brought forth when they have to -contend with the difficulties of a weak and almost desperate case. - -Hayne, his antagonist, was an able, eloquent, and accomplished orator. -His speech did not create that enthusiasm at the South that Webster's -did at the North; but his own State pertinaciously adhered to its -doctrine of nullification and saw no defeat to its champion. - -There were no less than three speeches of Hayne's--one of them, the -second, running through two days--and the same number of replies by -Webster. The debate took place in the Senate in January, 1830; it arose -on an amended resolution originally offered by Mr. Foote as to the -expediency of limiting or hastening the sales of the public lands. South -Carolina was then threatening to declare the existing tariff null and -void, and to pass laws preventing the United States from collecting -duties in its ports. Hayne urged that the government should dispose of -the public lands and after paying the national debt with the proceeds -should get rid of the remainder, so that there should not be a shilling -of permanent revenue; he looked with alarm on the consolidation of the -government. To get the support of the West against the East, he accused -the East of a narrow policy towards the West as to the public lands and -the tariff, "the accursed tariff," as he termed it, which kept -multitudes of laborers in the East to the detriment of the West. In his -second speech, Hayne not only attacked the East and its policy as to the -public lands and support of the tariff, but went further and "carried -the war into Africa," as he styled it, reading speeches, pamphlets, and -sermons, showing, as he claimed, the disloyalty of New England in the -war of 1812. - -He maintained that the United States had exceeded the powers granted to -it by the Constitution in making the existing tariff, which protected -the manufacturing industry of the East, only a section of the country, -and compelled the non-manufacturing States to pay tribute to it; that -the United States government was a compact between independent sovereign -States; that each of the States, being an independent sovereign, had a -right in its own sovereign capacity to decide whether laws made by the -United States exceeded the powers given it by the Constitution, and if a -State held a law made by the United States was not authorized by the -Constitution, it could treat it as null and void; that the existing -tariff was a clear and palpable violation of the Constitution, and that -South Carolina could and would pass laws forbidding and preventing the -collection in its territory of the duties levied under it. - -Before taking up Webster's constitutional argument, we will give a brief -account of his answer to the attack made on himself and the East. - -Webster, in his great speech, the second in reply to Hayne, alluding to -Hayne's allegation that he, Webster, had slept upon his first speech, -said, "he must have slept upon it, or not slept at all": and he assured -him that he did sleep on it and slept soundly. - -One of the most stinging and dramatic events that ever occurred in the -Senate-chamber, as a distinguished Senator from Maine has told the -writer, was the manner in which Webster turned upon his opponents the -taunt of Hayne, that the ghost of the murdered coalition, like Banquo's, -would not down at their bidding, and had brought up him and his friends -to defend themselves. Webster replied that it was not the friends but -the enemies of the murdered Banquo, at whose bidding the spirit would -not down. The ghost of Banquo, like that of Hamlet, was an honest ghost; -then turning on and pointing to Calhoun, who, as Vice-President in -Jackson's first administration, was presiding over the Senate, and whose -reputed ambition to succeed as President had signally failed, he asked: - - "Those who murdered Banquo, what did they win by it? - Substantial good? Permanent power? Or disappointment rather, - and sore mortification;--dust and ashes--the common fate of - vaulting ambition overleaping itself?... Did they not soon find - that for another they had 'filed their mind,' that their - ambition had put - - "'A barren sceptre in their gripe, - Thence to be wrenched by an unlineal hand-- - No son of theirs succeeding.'" - -Calhoun showed his emotion and moved in his chair. In a speech made -three years afterwards, when a Senator, he denied that he had aspired -after the presidency. - -Webster defended at great length, and successfully, the policy of the -East as to the public lands, internal improvements, and the tariff. He -showed that Calhoun himself was originally in favor of internal -improvements, and that he voted for tariffs; that in 1816 a protective -tariff (denounced as such) was supported by South Carolina votes and was -opposed by Massachusetts; that under the tariffs of 1816, 1824, 1828, -which were protective tariffs and had become the policy of the country, -Massachusetts became interested in manufacturing; so he, Mr. Webster, in -1828 supported a protective tariff, though in 1816 and 1824 he had -opposed it. - -As to Hayne's "carrying the war into the enemy's country by attacking -Massachusetts," Webster asks: "Has he disproved a fact, refuted a -proposition, weakened an argument, maintained by me?" And "what sort of -a war has he made of it? Why, sir, he has stretched a drag net over the -whole surface of perished pamphlets, indiscreet sermons, frothy -paragraphs, and fuming popular addresses; over whatever the pulpit in -its moments of alarm, the press in its heats, and parties in their -extravagance, have severally thrown off in times of general excitement -and violence." - -Webster, declining to separate these accusations and answer them, asks: -"But what had this to do with the controversy on hand; why should New -England be abused for holding opinions as dangerous to the Union as -those which he now holds? Why does he find no fault with those opinions -recently promulgated in South Carolina?" - -Then Webster, noticing Hayne's eulogium of South Carolina, instead of -attacking her, puts himself on the higher plane of a common national -pride and patriotism. - - "I shall not acknowledge that the honorable member goes before - me in regard for whatever of distinguished talent or - distinguished character South Carolina has produced. I claim - part of the honor, I partake in the pride of her great names. I - claim them for countrymen one and all. The Laurenses, the - Rutledges, the Pinckneys, the Sumters, the Marions,--Americans - all, whose fame is no more to be hemmed in by State lines, than - their talents and patriotism were capable of being - circumscribed within the same narrow limits. Him whose honored - name the gentleman himself bears, does he esteem me less - capable of gratitude for his patriotism, or sympathy for his - sufferings, than if his eyes had first opened on the light of - Massachusetts, instead of South Carolina?" - -Then Webster refers to the great harmony of principle and feeling -formerly existing between the two States. "Shoulder to shoulder they -went through the revolution, hand in hand they stood round the -administration of Washington and felt his own great arm lean on them for -support." - -It was one of those great efforts delivered on the spur of the moment, -which, though not written out, had been thought and studied beforehand. -The bitter invective, the grand patriotic words for our National Union, -which make the heart beat and quicken the blood, came from the genius of -the orator. Dr. Francis Lieber, a most competent judge, wrote: "To test -Webster's oratory, which has been very attractive to me, I read a -portion of my favorite speeches of Demosthenes and then read, always -aloud, parts of Webster's; then returned to the Athenian, and Webster -stood the test."[3] The question of the supremacy of the government of -the Union over that of the States was familiar to Webster; he had taken -part in the argument of the cases before the Supreme Court involving -that issue, and well knew the decisions of Marshall, its great chief. -There is no such thing "as extemporaneous acquisition," as Webster -himself said of his speech. Its views and arguments have been adopted by -our jurists, and by Bancroft, Hildreth, Fiske, and all of our old -Northern historians. Webster was probably a more diligent student than -Mr. Lodge gives him credit for; his habit being to rise in the early -morn and work then. The writer of this has heard him say that he had -read through all the volumes of _Hansard's Parliamentary Debates_. - - [3] Lodge's _Webster_, p. 187. - -In giving Webster's argument on the question of nullification, we will -use his speech in reply to Hayne, and his subsequent speech in answer to -Calhoun, delivered three years later, in 1833. - -He showed, as we shall see, that by adopting the Constitution a national -government was formed, with legislative authority to make laws that -should be supreme within the powers granted in the Constitution, with an -Executive to carry out those laws, and a supreme Judicial Department -that should decide all questions arising under those laws, and whether -they were within the granted powers, whose decision no State could -question. - -After disposing of the personal attack on himself and that against the -East, Webster took up that against the Union; he went back to its -formation, treating it historically. Under the confederacy made between -the States the whole power of the government was in the Continental -Congress. Though it could make war and peace, it could raise troops -and obtain its revenues only through the action of the several States; -it could not even regulate commerce and had no coercive power over the -States; its executive powers were exercised by committees and officers -appointed by the Congress. This Continental Congress carried the -country safely through the revolution; but during the few years -afterwards,--without the rights and powers essential to an effective -government, without a Judiciary and a responsible Executive, the -States quarrelling amongst themselves and struggling with internal -troubles--its authority became so weakened that it inspired respect -neither at home nor abroad[4]; and the people of all the States, finding -the necessity of a stronger government, the separate States entered into -a convention to form one. - - [4] Chief-Justice Marshall, in his opinion in the case of Cohens _vs._ - Virginia, says that its requisitions were habitually disregarded by - the States. Mr. John Fiske, in his admirable work, called _The - Critical Period of American History_, fully shows the inefficiency and - inadequacy of the government of the Confederacy. - -The first resolution of this convention was, that the government of the -United States ought to consist of a _Supreme Legislature, Judiciary, and -Executive_; this showed the power that it intended to give the -government. - -The declaration in the preamble of the Constitution they formed, set -forth: "We, the PEOPLE of the United States, in order to form a more -perfect Union," etc., "do _ordain and establish_ this Constitution for -the United States of America."[5] It was not that the States or the -people of the separate States made the Constitution, but it was the -people of the whole United States, and the acceptance of this -Constitution was submitted to conventions of each State, chosen by the -people, and not to the State governments and legislatures. - - [5] See Webster's speech in answer to Calhoun, Webster's _Speeches_, - vol. ii., page 180. Ed. of 1850. - -It was from Webster's declaration, "It is the people's Constitution, the -people's government; made for the people; made by the people and -answerable to the people," that Lincoln took the closing words of his -short immortal Gettysburg address, and applied them to the national -soldiers who had there died for the Union: "That this nation, under God, -shall have a new birth of freedom, and that government of the people, by -the people, for the people, shall not perish from the earth." - -Webster referred to contemporary history, to the writings of the -_Federalist_, to the debates in the conventions, to the publications of -friends and foes, as all agreeing in the statement that a change had -been made from a confederacy of States to a different system, to a -national government. The writers of the _Federalist_ say: - - "However gross a heresy it may be to maintain, that a party to - a compact has a right to revoke the compact, the doctrine - itself has had respectable advocates. The possibility of a - question of this nature proves the necessity of laying the - foundations of our national government deeper than in the mere - sanction of delegated authority. The fabric of American empire - ought to rest on the solid basis _of the consent of the - people_." - -And amongst all the ratifications by the States, there is not one which -speaks of the Constitution as a compact between States. "They say they -ordain and establish it; we do not speak of ordaining leagues and -compacts." He argued that the Constitution that was formed was not a -league, confederacy, or compact between States, but a _government -proper_, creating direct relations between itself and individuals of the -States. It punished all crimes committed against the United States. It -had power to tax individuals, in any mode and to any extent, and it -possessed the power of demanding from individuals military service. "It -does not call itself a compact; it uses the word compact but once and -that is when it declares that the States shall enter into no compact. It -does not call itself a league or a confederacy but it declares itself a -constitution." "A constitution is the fundamental regulation which -determines the manner in which the public authority is to be -executed,"[6] "the very being of the political society." It says, this -Constitution shall be the law of the land, anything in any State -constitution to the contrary notwithstanding; "and it speaks of itself, -too, in plain contradistinction from a confederation; for it says that -all debts contracted and all engagements entered into by the United -States shall be as valid under this Constitution as under the -confederation; it does not say as valid under this compact, or this -league, or this confederation." - - [6] Webster's definition of constitution apparently is not a full one. - A constitution is the fundamental statement of the powers granted to - the government established by it; and it may, as Webster says, also - contain the regulation under which its authority is to be executed. - -"Again the Constitution speaks of that political system which is -established as the _Government of the United States_. Is it not doing -strange violence to language to call a league or compact between -sovereign powers a _government_?" - -The United States Government thus originated from the people, as did the -State governments. It is created for one purpose, the State governments -for another; it has its own powers, they have theirs. There is no more -authority with them to arrest the operation of a law of Congress, than -with Congress to arrest the operation of their laws. - -It was an Union among the States that should last for all time. It -contains provisions for its amendment, none for its abandonment at any -time. It declares that new States may come into it, but it does not -declare that old States may go out. - -The Government was brought into existence for the very purpose of -imposing certain salutary restraints on the State governments: it gave -the United States _sovereign powers_ over the States; it could make war, -it could coin money, it could make treaties; it prohibited a State from -making war, coining money, or making treaties; it gave the United States -the exclusive power to make citizens. The people erected this -Government; they gave it a Constitution, and in that Constitution they -enumerated the powers they bestowed; they made it a limited Government; -they defined its authority. They did not leave it to the States to carry -out the legal action--the application of law to individuals--as the -Confederacy did. In the Constitution itself it declared the -_Constitution and the laws of the United States, made in pursuance -thereof, shall be the supreme law of the land, anything in the -constitution or laws of any State to the contrary notwithstanding_. No -State law is to be valid which comes in conflict. - -Having enumerated the specified powers of the Government, it gives to -Congress as a distinct and substantive clause, the power to make all -laws which shall be necessary and proper for carrying into execution the -foregoing powers and all other powers vested by this Constitution in the -Government of the United States or in any department or office thereof. - -Who is to decide when a controversy arises between the laws of a State -and the United States? The claim of South Carolina is that instead -of one tribunal we are to have four and twenty, as many tribunals -as States; that each State is at liberty to decide as to the -constitutionality of an act for itself and none bound to respect the -decision of others. - - "But in regard to this question the Constitution is still more - express and emphatic. It declares that the judicial power of - the United States shall extend to all _cases_ in law or equity - arising under the Constitution, laws of the United States, and - treaties; that there shall be one Supreme Court, and that this - Supreme Court shall have appellate jurisdiction of all these - cases, subject to such exceptions as Congress may make." - - "No language could provide with more effect and precision than - is here done, for subjecting constitutional questions to the - ultimate decision of the Supreme Court." "And after the - Constitution was formed and while the whole country was - engaged in discussing its merits, one of its most - distinguished advocates, Madison, told the people 'it was true - that in controversies relating to the boundary between the two - jurisdictions, the tribunal which is ultimately to decide is - to be established under the General Government.' Mr. Martin - who had been a member of the convention, asserted the same - thing to the Legislature of Maryland and urged it as a reason - for rejecting the Constitution.[7] Mr. Pinckney, himself also - a leading member of the convention, declared it to the people - of South Carolina; everywhere it was admitted by friends and - foes that this power was given to the United States Judiciary - in the Constitution." - - [7] As the whole question of nullification depends upon whether a - State is bound by a decision of the United States Court we give Mr. - Martin's succinct and comprehensive statement of the power that the - third article of the Constitution conferred on the United States. - "Whether, therefore, any laws or _regulations_ of the Congress, any - acts of _its President or other officers_, are contrary to, or not - warranted by the Constitution, rests only with the judges, who are - appointed by Congress, to determine; by whose determination every - State must _be bound_." Luther Martin's letter, Elliot's _Debates_ - (second ed.), 1863, vol. i., p. 380. - -We must bear in mind that this discussion was on the power of South -Carolina while remaining in the Union to declare the laws of the United -States null and void, and her own laws preventing their execution valid. -A singular claim that a State could enjoy the benefits of the Union and -at the same time disobey its laws; this is nullification which Mr. -Webster had to combat. His argument, however, applies equally strongly -to the claim of the right of secession. Indeed he says in his speech in -reply to Calhoun: - - "Therefore, since any State before she can prove her right to - dissolve the Union, must show her authority to undo what has - been done, no State is at liberty to _secede_ on the ground - that the other States have done nothing but _accede_. She must - show that she has a right to _reverse_ what has been - _ordained_, to _unsettle_ and _overthrow_ what has been - _established_, to _reject_ what the people have _adopted_, and - to _break up_ what they have _ratified_, because these are the - terms which express the transactions which have actually taken - place. In other words, she must show her right to make a - revolution." - -Between Webster's debate with Hayne, and that with Calhoun three years -afterwards, South Carolina had called a convention of its people and -passed resolutions declaring the United States tariff laws null and -void, and made laws of her own, forbidding and preventing the collection -of duties in the State, with threats of secession if an attempt to -collect them were made. Measures had also been taken to make a forcible -resistance--munitions of war collected and the militia organized and -drilled. Fortunately for the country at that crisis Andrew Jackson, the -President, was a Southerner and owner of many slaves and true to the -Union. He was a man of indomitable will, believed in implicitly and -trusted and enthusiastically followed by the great mass of the people. -Any policy of his commanded success. He did not hesitate as to his -course, he at once issued a proclamation, and sent a message to -Congress asking for powers to enforce the tariff laws of the United -States and if necessary to remove the custom-houses to safe places. In -his proclamation he declared that the Constitution of the United States -forms a government, not a league; that it is a government that acts on -the people individually and not on the States, and whether it be formed -by compact between the States or in any other manner its character is -the same. "The States retained all the power of the government," he -said, "they did not grant: but each State, having expressly parted with -so many powers as to constitute, jointly with the other States, a single -nation, cannot from that period possess any right to secede, because -such secession does not break a league, but destroys the unity of a -nation." As a South Carolinian--Jackson supposed he was born in South -Carolina, though his biographer, Parton, says it was in North Carolina, -near the line--he earnestly pleaded with his fellow-citizens not to -resist the laws of the United States.[8] He had previously at a dinner -in celebration of Jefferson's birthday, when nullification sentiments -had been advanced, given as his toast: "Our Federal Union: it must be -preserved." - - [8] Jackson's proclamation, Elliot's _Debates_, 582. Elliot's - _Debates_ were published by authority of Congress, Calhoun highly - praising them. See his letter in the beginning of vol. i. - -It was generally said and believed that Jackson had threatened to hang -Calhoun as high as Haman if the law was resisted. This from Jackson was -no idle threat. There had been no other President of such inflexible -will. No other general ever assumed the authority he did in the Indian -wars and in that of 1812. He had fought those campaigns and gained the -battle of New Orleans, suffering at times agony from old wounds received -in a street brawl, that would have disabled any ordinary commander. -Thrice when in command he had exercised the power of punishing -capitally; he had hanged Arbuthnot and Ambrister; again, he had a -militiaman shot; and at the close of the war had permitted the execution -of six Tennesseeans, though they pleaded in defence, and probably -believed, that their time of enlistment had ended. The threat of -hanging, however, did not daunt Calhoun, who declared boldly, perhaps -pathetically, that Carolina alone would resist, even to death itself. - -Mr. Clay, as on other occasions where a great crisis had arisen, -effected a compromise. A force bill to collect duties, which South -Carolina strenuously opposed, was enacted by large majorities in the -Senate and House of Representatives; and a bill was afterwards passed -gradually reducing the import duties then levied, which Calhoun and -South Carolina assented to. - - - - -CHAPTER II. - -THE NATIONALITY OF THE CONSTITUTION. - - -The claim of South Carolina, at the time of her threatened nullification -and secession, and of the South at the period of our civil war, is, that -the Constitution which the States adopted formed them into a confederacy -and not a nation. It is admitted, and is not denied, that if the -government established was national there can be no valid claim of a -component part to treat its laws as of no validity, a nullity, or to -dissolve it at its will. - -Indeed, Calhoun, the great expounder of the nullification and secession -doctrine, considered this to be a vital matter, and always insisted that -the United States was not a nation. He complained that the reporters -made him say, - - "this Nation instead of this Union." "I never use the word - nation in speaking of the United States: I always use the word - union or confederacy. We are not a nation, but a union, a - confederacy of equal and sovereign States. England is a nation, - Austria is a nation, Russia is a nation, but the United States - are not a nation."[9] - - [9] _Great Senators_, by Oliver Dyer, p. 153. - -The South during the civil war claimed that the States made the -government of the United States, and that the States were and remained -independent sovereign nations. And each State being an independent -sovereign nation, had the right to decide whether the power it had given -to the United States Government was properly exercised by its -Legislature or its officers, and to declare and treat as a nullity and -as void any law passed, any act done in excess of that authority, and to -withdraw from the Confederacy--that is, to secede, at its will. - -It will at once be seen, as the time during which the Union is to endure -is not limited in the Constitution, that, if this right of secession -exists, a State could leave the day after it adopted the Constitution. -The Union is either perpetual or dissoluble at pleasure. In the -secession ordinances passed by the Southern States at the commencement -of the civil war the ground was taken that the States of their sovereign -right and will resumed their place as independent nations. That is, the -duration of the Union was from the very beginning at the caprice of each -and every State. No less, if the doctrine of nullification be correct, -that each State can declare and treat as null and void the acts of the -United States it deems beyond the powers it has granted, it can nullify -and make void the laws of the United States, all the acts of its -officers, all the judiciary proceedings at its caprice. - -Nor is it extravagant to say caprice. South Carolina's nullification and -secession acts and resolves in 1832 were on the ground of the -unconstitutionality of a protective tariff. There had been a great -number of protective tariffs enacted before, which South Carolina had -favored by her votes, and the second law of the United States, enacted -at the commencement of the government, at the first session of the first -Congress, was for the protection and encouragement of manufactures. Its -preamble is: "Whereas, it is necessary for the support of government, -for the discharge of the debts of the United States, and the -encouragement and protection of manufactures, that duties be laid on -goods, wares, and merchandise imported." Madison,[10] who was the leader -of the House of Representatives in this first Congress, wrote that no -one questioned the right of making protective duties. Billions of -dollars have been levied by the collection of protective duties from the -beginning of the government to the present day. No litigant paying -duties even as excessive as those on pearl buttons and tin plates, nor -lawyer, a class not diffident in advancing untenable claims, has been -found, as far as we know, to question before the Supreme Court the -legality of these duties, because they were protective or paid this -slight reverence to a doctrine in support of which South Carolina -threatened war and secession. - - [10] See 4 Elliot's _Debates_, pp. 345 and 349, showing at the - inception and in the early period of our government protective duties - were apparently universally approved by Congress and the Presidents. - -It seems only necessary to state the viciousness of this doctrine of -nullification and secession, that every State could practically put its -veto on every law and act of the General Government it questioned, and -dissolve it at its pleasure, to prove that no such impracticable -government was established. Certainly, reasoning _a priori_, this -doctrine has no standing. - -Our General Government differs from that of Great Britain and nearly all -other governments in that it is created by a written Constitution, and -its authority is limited by that Constitution. The power of Parliament -is imperial; there is no limit to it; it does what it deems best. There -apparently is an almost insurmountable difficulty in the writers of -other countries, only knowing unlimited, imperial supreme governments, -to comprehend that a government of limited powers can be supreme in the -powers granted to it. Knowing that the powers of our General Government -are limited, they are apt to draw the conclusion that the fundamental -unlimited power must be in the subordinate component parts, the States. - -Our States, as well as the General Government, have limited powers -granted by written constitutions. The State governments are not only -limited in their powers, but the people, who established them in their -constitutions, have invariably recognized the supreme power of the -General Government; in none of them have they undertaken to confer on -the State Legislatures or government powers in conflict with the -sovereign national powers of the General Government. The powers given to -the State governments are subordinate and local. All the constitutions, -State and General, have had the sanction and an adoption by the people. - -The argument of Hayne, Calhoun, and his followers, and of all Southern -writers--that the United States Constitution is a compact or agreement -amongst the several States as independent sovereign nations, and that in -every compact between nations, a contracting power, where there is a -disagreement, as there is no superior authority over them, has the right -to maintain the correctness of its construction--ignores the case where -the compact may be one for the making of the several contracting powers -one nation. - -Compact means an agreement, nothing more or less, whether applied to -states or individuals. It cannot be denied that independent sovereign -nations can _by compact or agreement_ make themselves into a perpetual, -indissoluble nation. The voluntary combination of independent sovereign -powers, or nations, or states into one national union _must be by -compact_. - -The question therefore resolves itself into this, What was the agreement -or compact made between the people of the States? Was it for a nation -with supreme powers over the subdivisions of States in its territory and -all living therein, as far as power was given to it, and for -perpetuity, or was it for a confederacy or league for certain purposes, -limited by the right of each of the parties to it, to judge whether the -government exceeded its authority, and at its pleasure to dissolve it? - -In other words, the fundamental question is, Was an indissoluble -national power made or a confederacy or league declared by the adopting -of the Constitution? - -Webster perhaps unfortunately used the word compact in his argument when -he said the Constitution was not a compact, meaning it was not a mere -agreement amongst the States, a league, or confederacy, but that it was -the fundamental declaration of a nation. - -Madison agreed with Webster as to secession and nullification and the -powers of the General Government, and of its judiciary to define and -pass on them, but he held "that the government with its powers was -established by a compact which each of the States had entered into, the -authority for it being derived from the same source as that of the State -governments--the people."[11] Webster himself, in his speech in answer -to Calhoun, recognizes that compact may mean an agreement for a nation. -Speaking of the Constitution, he says: "Founded in or on the consent of -the people, it may be said to rest on compact or consent, but it is -itself not the compact, but the result."[12] It is necessary to -constantly bear in mind that the word compact, used in reference to the -Constitution, is consistent with its nationality. - - [11] See also, to same effect, _North American Review_, Oct., 1830, p. - 537. Madison's letter to Edward Everett. - - [12] Webster's _Speeches_, vol. ii., ed. 1850, p. 177. - -The prominent writers who maintain the right of nullification and -secession, Calhoun, Davis, Stephens, and Bledsoe in his work, _Is Davis -a Traitor?_ all assert to an excessive length that any person or any -State that uses the word compact in reference to the Constitution admits -their theory of government, which is, that the Union between the States -was a mere dissoluble agreement, in which the States retained their -sovereignty and right of judgment over the acts done by the United -States. They mention the State of Massachusetts, Washington's, -Madison's, and even Webster's subsequent use of that word as evidence of -their assent to this doctrine. The fault in their reasoning is what -logicians call the undistributed middle; they assume that the persons or -States using the word compact are speaking of the sort of compact they -maintain the Union to be--a league or mere dissoluble agreement, when in -fact they may be, and are, speaking of another sort of compact, a -compact for a national government. - -We propose to show that by the adoption of the Constitution the people -of the States formed themselves into a nation. - -First: The Constitution declares its perpetuity, and the powers given by -it to the government established are those of an indissoluble nation -with supreme authority over every one, not of a confederacy of nations. - -Second: The members of the convention that made the Constitution -intended to make a national government; and that they considered that -they had done so is conclusively shown by the contemporary reports of -their debates and proceedings. The members of the conventions of the -people of the several States that adopted the Constitution without -exception also considered and spoke of the government as national. - -Third: That the government exercised its supreme national power -repeatedly and uniformly over the States and over all the citizens of -every State, from the time of its inception to the civil war. -Historically we were a nation. - -Fourth: That the general belief that the Virginia resolutions questioned -this supremacy and nationality is wholly unfounded. - -There is no question of the universal opinion after the termination of -the war of the Revolution that the provisions under which the States -were associated, made on the 15th of November, 1777, had failed -essentially in giving to the Confederate Congress government the -necessary powers to carry it on.[13] The Confederacy was made by -delegates from the Legislatures of the State governments of the -different States; the powers of the Confederacy were given to a Congress -which consisted of one body or House, and in that Congress each State -had one vote, that of Delaware, with a diminutive territory and about -one sixteenth of the population, equalling that of Virginia. The -Constitution which contains and defines the powers given to the United -States Government was made by delegates appointed by the different State -Legislatures of the Confederacy, all being represented except Rhode -Island. Its members were the most prominent and distinguished men of the -country. After the most careful, thorough, and patient examination and -discussion, extending through four months, they formed the instrument -giving the powers of the new government. They sent it to the existing -Congress of the Confederacy, with the request that it might be submitted -to a convention of delegates chosen in each State by the people thereof, -under the recommendation of its Legislature, for their consideration and -assent if approved of. - - [13] The condition of affairs then is well stated in Fiske's _Critical - Period of American History_. - -The Continental Congress unanimously forwarded the proposed Constitution -to the Legislatures of the several States, who each submitted it to a -convention of the people called for the purpose of deciding whether they -would adopt it. - -By necessity the submission was to the people of the States separately. -The acceptation or rejection rested on them, the people; they -appointing delegates to carefully consider the matter and to decide for -them. Thus the adoption of the Constitution was not only sanctioned by -the Congress of the Confederacy, by the separate State governments, but -finally by the people themselves of every State acting by virtue of -their fundamental, sovereign power, they appointing the delegates who -met in convention, and who in each State decided for the people, whether -they would or would not enter into this new form of government. A -sanction more binding on every one could not have been made. - -Mr. Webster's argument that our government is that of a nation and not a -confederacy, was in a great measure founded on the Constitution itself. -There are other declarations and powers in the Constitution, besides -those he so forcibly presented, which should not be overlooked. The -Constitution is a very brief, and, as time has shown, a very perfect -instrument. It gives to a general government it establishes, all the -powers necessary for the existence and maintenance of a nation. - -Its first declaration is, _We, the People_ of the United States, do -ordain and establish this Constitution. This is in emphatic contrast to -the preamble and articles of the Confederacy. The preamble of the -Confederacy is, Articles of confederation and perpetual union between -the "States of New Hampshire, Massachusetts Bay," etc. Article I. is, -"The style of this Confederacy shall be 'The United States of America.'" -Article III., "The said States hereby severally enter into a firm -league of friendship with each other for their common defence, the -security of their liberties, and their mutual and general welfare." - -Not only did the people actually make this great charter, in which they -gave to the government they established over them the powers it has, but -they declared in the very beginning that it was "we, the people," and -not their State governments, that made it, and they also declared its -perpetuity. It is "We, the People of the United States, in order to form -a more perfect union, establish justice, insure domestic tranquillity, -provide for the common defence, promote the general welfare, and to -secure the blessings of liberty to ourselves and _our posterity_, do -ordain and establish this Constitution for the United States of -America." Here is the express declaration that it is for perpetuity, not -for the people making it, but for those succeeding them, for their -posterity, for all time. - -When, after the civil war, the question of the legality of secession -came before the Supreme Court of the United States, in the case of the -State of Texas against White,[14] Chief-Justice Chase, apparently -overlooking this explicit statement, in delivering the opinion of the -court, said: "That by the articles of the Confederacy, the union of the -States was solemnly declared to be perpetual, and when these articles -were found to be inadequate to the exigency of the country, the -Constitution was ordained to form a more perfect union," and asks, "what -can be more indissoluble if a perpetual union made more perfect is not?" - - [14] 7 Wallace _Reports_, p. 700. - -Neither the Chief Justice nor those distinguished jurists, Justice -Swayne[15] and Justice Bradley,[16] controverted the right of secession -when the case came before them, in the manner that Chief-Justice -Marshall treated constitutional questions. They, however, declared in -the most emphatic terms that there could be no secession, that the Union -was an indissoluble one of indestructible States by the very provisions -of the Constitution itself. - - [15] In case of White _vs._ Hart, 13 Wallace, 646. - - [16] Keith _vs._ Clark, 97 _United States Reports_, 476. - -If we examine the provisions of the Constitution, we find in the first -clause is declared the perpetuity of the Union; in the last clause, -excepting that setting forth it shall be established on the ratification -by nine States, is stated in language that cannot be mistaken, its -supremacy over States and State constitutions. - -It is by its very terms, we, the people, do ordain and establish this -Constitution, that is the great charter giving powers to our new -government, and it is, therefore, we, the people of every State, who -declare that this Constitution, this government, and the laws and -treaties made under it "shall be the supreme law of the land and the -judges in every State shall be bound thereby, anything in the -constitution or laws of any State to the contrary notwithstanding." -There is no qualification that if we do not deem them legal we can treat -them as null and void. - -In order to secure and maintain that supremacy the people who made it -require that the United States Senators and Representatives, "and -_members of the several State Legislatures_, and all executive and -judicial officers, both of the United States _and of the several -States_, shall be bound by oath or affirmation to support this -Constitution"; stamping, as on its coins, its authority over States and -every State officer. - -Now when the people of each and every State did "ordain and establish" a -new form of government which was to be supreme over the constitution, -that is the government of their particular State, and imposed upon every -legislative, executive, and judicial officer of their own State an oath -to support that government, where is the right of a State to question? -Over what is the United States supreme if not over States? Why should an -oath have been required to support that supremacy over State governments -unless to make that supremacy certain, and resistance to or question of -it criminal? - -Those who made and established the government knew of the oath that is -required by State governments of their officers to support their -constitutions, and they would not have required this additional oath if -the two oaths could have conflicted, or if there could have been any -doubt that the obligations required by a State government were to be -subordinated to the supreme powers and laws of the general government. - -Then to prevent the government from being encroached upon by the States -the judicial power was given to the United States over all cases arising -under this Constitution, the laws of the United States, its treaties, -and cases affecting ambassadors, etc. So, as Webster declared, no State -law or judicial decision of a State could interfere. By this clause the -United States courts had the right, which they have uniformly and very -often exercised, from the beginning of our government until this day, of -taking from the jurisdiction of the State courts all and every case in -which the construction of a United States law came in question or where -the legality of the act of any United States official was concerned. - -We have seen that the supremacy of the United States over all States and -State laws and the right to maintain that supremacy through its own -courts and by its own officers was fully established by the -Constitution. If we examine further the powers granted to the general -government by this Constitution, we find all that can be called -sovereign: those of intercourse with foreign nations, of war and peace, -of raising and keeping an army and navy, of the currency, of commerce -external and internal, of establishing post-offices and post-roads, and -fixing the standard of weights and measures, the exclusive right of -making citizens by naturalization, the regulating and command of the -militia when in its service, and issuing of copyrights and patents, the -making of all laws necessary and proper for carrying into execution the -granted powers and all other powers vested by the Constitution in the -government of the United States or in any department or office thereof, -with prohibitions to the States from entering into any treaty, alliance, -or confederation with another State or foreign power, making agreements -or _compacts_ with other States, keeping an army or war vessels in the -time of peace, or making laws impairing the obligation of a contract, -and _ex post facto_ law, coining money, emitting bills of credit--that -is making a paper currency (the issuing of paper had been carried to an -excess by the States and the Continental Congress during the -Revolution), and laying imposts or duties on imports or exports.[17] -There is no sovereignty remaining to a State that has granted all these -powers to the government over it, and is so restricted in its acts, and -cannot even make an agreement or a compact with a sister State. Indeed, -Calhoun, in his argument, seemed hard pushed to specify any sovereign -powers left to the States, when he mentioned that the States had the -power to appoint the officers of the militia and that Pennsylvania had -undertaken to punish treason. - - [17] See Constitution of United States, Article I., Sections 8, 9, and - 10, for statement of granted powers and restrictions on States. - -Though the United States alone have those supreme powers, which by -political writers are generally called sovereign, the word sovereign has -been also used by American writers and politicians in reference to the -powers of a State. The people of every State have supreme powers over -their own local affairs, their own territory and citizens where the -power has not been given to the United States; they can enact laws -making the penalty of stealing a pocket-handkerchief or smoking on the -street punishable with death and carry them into effect. If they were, -however, to make such laws to take effect for past acts, the United -States would interfere, because no State can make an _ex post facto_ -law. So, in our separate States, a town or a county can run a road -through anybody's land and the State cannot interfere; because the -people of the State have given that authority to the town or county. A -Board of Health in many States can stop one's factory, destroy his -business, or close his house, by reason of its being deleterious to the -general health, and there is no appeal. In these matters the town or -county or Board of Health have supreme powers in their jurisdiction; -but however supreme or however arbitrary they may be in their -jurisdiction, they cannot extend them beyond--these supreme local powers -are not sovereign powers. - -It is a large, local, internal government that each State has over its -territory, and the property and the acts of its citizens in that -territory. The General Government in our extensive domain, having in -addition to the powers it now has those of the States, would from the -overwhelming mass of its duties be a failure. - -Indeed, we find that from necessity Great Britain is on the path of -giving to her three kingdoms greater powers of local government. If one -examines the bill for home rule for Ireland, proposed in 1886 by the -Gladstone administration, he will find that the powers it proposed to -give to Ireland are far beyond those our separate States have. Ireland, -besides the right of taxing, was empowered to levy duties of customs and -excise--that is, the right of protecting her own manufactures to the -injury of England's. Ireland was to pay over specified contributions to -the British Government, some millions of pounds annually, for her -proportion of the interest on the national debt, and of the cost of the -support of the army and navy, and other expenses. If there were a -failure in these contributions the General Government would have been -obliged to use coercion--a civil war--a policy considered fatally -objectionable in the convention that made our Constitution. Ireland -also was to lose her representation in the Imperial Parliament. - -As far as secession is concerned, the most important provision in the -Constitution is Section 3, of Article III., concerning treason. There is -no such thing as treason except where allegiance is due. The citizen of -an independent sovereign State owes his allegiance to it, and not to a -confederacy or a league the State has joined. There can be no treason -except against a government proper. The establishing by the Constitution -of the punishment of treason, implies the nationality of the Union, and -that every inhabitant of its domain is a citizen. In the articles of the -old Confederacy there was no punishment of treason; on the contrary, -each State agreed in those articles to deliver up to its sister States -any one that it might claim had committed treason. - -The first part of the two clauses of Section 3 are "Treason against the -United States shall consist only in levying war against them, or in -adhering to their enemies, giving them aid and comfort," and "The -Congress shall have the power to declare the punishment of treason." - -The peculiarity of the introduction of this first clause is to be -noticed: it is taken for granted that there is treason against the -United States, and that it is expedient to limit it. The founders of our -new government did not intend to have rash speech, or plots, or mere -resistance to its authority punishable as the high crime of treason. -They knew from the experience of their mother country the danger to -personal liberty from constructive treason; so they limited the power to -punish that offence, and gave it only in case of levying of war, or -aiding and adhering to enemies. - -It has been claimed by many writers North as well as South, that -admitting secession to be illegal, the United States had no authority to -use force against a seceding State. At the foundation of all government -must be the right to maintain itself, and by force when necessary. There -is no need of the declaration of this right. The establishment of a -government implies the power to compel the obedience of its subjects. - -This power in the government to punish as treason the levying of war -against it applies directly and expressly to a State, or a combination -of States, or a part of a State levying war. A foreign state, an enemy -levying war, cannot commit treason. Its subjects owe no allegiance. Nor -does a riot or a mob levy war. This making the levying of war treason -was intended for powers within the National Government, like States and -combination of States and parts of States. It was against some power -that should have the organization and ability to levy or wage war; and -the word levying is far reaching and extends beyond mere fighting. It -could not have been intended for anything else than coercing such -powers. - -That this law was understood to reach a citizen of a State resisting the -authority of the United States is clearly shown by the letter of Luther -Martin, a distinguished jurist, and also the Attorney-General of -Maryland, and afterwards a leader of the bar in the United States -Courts, and who as a lawyer was accustomed to consider the meaning of -instruments like the Constitution. In this letter to the Legislature of -Maryland objecting to the ratification of the Constitution, he declares -that this clause was kept for the purpose of coercing a State. He wrote: -"The time may come when it shall be the duty of a State in order to -preserve itself from the oppression of the General Government to have -recourse to the sword; in which case, the proposed form of government -declares, that the State, and every one of its citizens who acts under -its authority, are guilty of a direct act of treason," and a citizen is -thus put in the dilemma of being exposed to punishment, either by the -State or the United States, however he may act. To prevent this, he -writes, he offered an amendment that acts done under the authority of -one or more States should not be deemed treason or punished as such; but -this provision was not adopted.[18] - - [18] Martin's Letter, Elliot's _Debates_, vol. I., pp. 382, 383. - -The interference of the United States with a State is expressly directed -by another clause in the Constitution, that by which the United States -is obliged to protect a State against domestic violence and guarantees -to put down any government if it be not republican. There is no limit to -this guaranty and it is no matter if the unrepublican government be -established by a majority or unanimity of votes. - -A sovereign government seldom, if ever, allows itself to be sued, and -never gives the decision of a suit against itself or between itself and -other governments to _another jurisdiction_. That is a direct surrender -of sovereignty. The Constitution as originally adopted, gave to the -United States judicial power in controversies to which the United States -shall be a party, in controversies between two or more States, between a -State and citizens of another State and between a State and foreign -states, citizens, or subjects. The jurisdiction in suits by individuals -against a State was afterwards taken away by the passage of an amendment -to the Constitution, leaving however jurisdiction in controversies to -which the United States shall be a party and between two or more States -and a foreign State. The fact, however, remains, that the Constitution -as formed and as adopted by the original States, (all that can claim to -have been sovereign), did give jurisdiction to the United States over -all claims, even those of individuals out of the State against the -State, as if the State had no more political importance than a county or -a town. - -A yet more important clause in the Constitution shows conclusively the -supremacy and national character of the government; namely that giving -it the power of changing and extending its authority to whatever extent -it chooses by amendments, provided they are accepted by the Legislatures -of three quarters of the States. By amendments made in this manner the -United States can take whatever authority it pleases from the States. It -can give its government a veto over the laws of the separate States, -appoint the executive officers of a State--powers proposed in the -convention that made the Constitution. The only limit in the -Constitution to the extension of the government's power by amendments is -that no State without its consent could be deprived of its equal -suffrage in the Senate, and the importation of slaves until 1808 should -not be prohibited. Under this provision the General Government, with the -concurrence of three fourths of the Legislatures of the States, has an -authority that no State government has. None of the State constitutions -grant its Legislature the right to extend its powers over counties, -cities, and towns; it must go to the people for that. - -How can it be said that sovereignty remains in a State, when it gives to -its associates the right to make all its laws if only three quarters of -them so elect? The granting by a community of power to a government over -it to control it, as it pleases, takes away the very foundation of -sovereign right; and objection was made to this clause for this very -reason. In the convention Elbridge Gerry, a prominent delegate from -Massachusetts, afterwards Governor of that State and Vice-President of -the United States, objected because the Constitution is paramount to the -State constitutions, and that two thirds of the States may introduce -innovations that would subvert the State constitution altogether.[19] It -is by the power given in this clause, that after the war of secession -slavery was abolished through the acceptance by the States of amendments -to that effect. The proclamation of Lincoln abolishing slavery in the -States in insurrection on January 1, 1863, did not give liberty to the -slaves in Delaware, Maryland, Missouri and Kentucky, and parts of other -States, that were not in rebellion. Many, perhaps all, of these States -abolished slavery before the amendments were passed. - - [19] 5 Elliot, p. 530. The clause was altered so that the ratification - of three fourths of the Legislatures of the States was required, - though two thirds of the States can call a new convention, and two - thirds of Congress propose amendments to the Constitution. - -The only authority given by the Constitution to States is this power of -amending it by the concurrence of State Legislatures in propositions -made by the Congress of the United States or the Legislatures of three -fourths of the States, and also the right of equal representation in the -Senate, and that in the election of President the vote is by electors -appointed in such manner as the State Legislature may direct. - -The provision forbidding a State from emitting bills of credit, passing -any bill of attainder, _ex post facto_ law, or law impairing the -obligation of contracts, are a restriction that sovereign nations would -never have submitted to. - -When a foreigner becomes a citizen, he abjures his allegiance to -his native country, and the oath he takes is before a United States -officer to the United States, not to the State in which he is -naturalized. Finally, by the Constitution the President is made the -commander-in-chief of the army and navy of the United States, and of the -militia of the several States. While an oath or affirmation is required -of every Senator or Representative, of every executive and judicial -officer of the United States and of every State, to support the -Constitution, the President alone--the one having the supreme military -power over all forces on land or sea--must swear or affirm that he will -faithfully execute the office, and "to the best of my ability, preserve, -protect, and defend the Constitution of the United States"; not to keep -from encroachment upon the rights of the States, but to preserve, -protect, and defend the Constitution. Can it be said that it is not to -be preserved over its citizens and States that are in arms to subvert or -resist its laws and supremacy? - -Jefferson, in the time of the Confederacy, when the States were -neglecting to pay the requisitions made of them, recommended that the -Continental Congress should show its teeth and send a frigate into the -ports of a delinquent State; but the new Constitution intended to draw -the teeth of the States by prohibiting them from keeping troops or ships -of war; and it reserved to the national government the right "to raise -and support armies"; "to provide and maintain a navy"; and gave it the -power of "calling forth the militia to execute the laws of the Union, -suppress insurrection, and repel invasion." Thus the Constitution added -to the supremacy of the new government the power to enforce it, and took -from the States the power, as far as it could consistently with freedom, -of resistance. - -The government of the Confederacy depended upon the several State -governments, their soldiers, and their contributions; it had no direct -control over the people; from the failure of the State government to -make the required contributions and enforce its decrees it was fast -falling into total inefficacy. We have shown that the new government, -established by the people of each State over themselves and the people -of the other States, had by its Constitution all the powers necessary -for a national government, and State governments were prohibited from -the exercise of conflicting powers; that waging war against that -government was treason, thus affirming that they, the people of each -State who established it, owed allegiance and were subjects of the -government; they, the people, also declared in the Constitution, that -the judiciary of their general government should have authority over -every case and question arising under its laws and acts; further, they -gave that judiciary and the government the power to enforce their laws -and the authority over every individual in its domain; and finally they -expressly declared the supremacy of the government and its laws over all -State laws and State constitutions. - -The departments of the government established by the Constitution are -three in number: the Legislative (Congress), to make the laws and to -pass the acts for the carrying it on; the Executive (the President and -the officers under him), to administer it, to carry into effect its laws -and acts, and represent it in its dealings with other countries; and -thirdly the Judiciary, to decide upon all controversies arising under -the laws and acts of the government. - -A department, however, in some instances has an authority in the others; -the President, the chief executive officer, has the right of veto, and -his principal appointments, especially those of the judiciary and -foreign ministers, are subject to the approval of the Senate. - -The power of the United States Judiciary Department to pass upon the -constitutionality or validity of laws made by the Legislature, is one -unknown to the unlimited imperial power of the Parliament of Great -Britain, and has been a source of perplexity to the writers and -legislators of that country, and of question recently in the House of -Commons. The question cannot arise and never comes before the judiciary -of that government, whether a law is within the parliamentary power. -With us, however, the question often arises, and the judiciary decides -whenever question is made as to whether a law is within the powers -granted by the Constitution. In all our States the State judiciary has -the same power to decide on the constitutionality of the laws and acts -of the State government. - -This system of giving the judiciary the right to define the extent of -the powers of the government has with us met with almost universal -approval. - - - - -CHAPTER III. - -THE CONSTITUTIONAL CONVENTION INTENDED NATIONALITY. - - -Let us now retrace our steps and see what took place in the convention -that made the Constitution, and what those that made it intended. -Fortunately we have the journals of the convention that framed the -Constitution; the minutes, until he left, of Mr. Yates, a delegate from -the State of New York; and Madison's full and careful report of all the -proceedings, debates, and votes. From these sources we shall see that -the makers intended, and that they considered they had made, a -perpetual, consolidated, National Government. - -The convention was called to amend the articles of the confederacy, and -to it were sent most of the distinguished men of the country. The State -of Virginia took an early and important part in the formation of the new -government. Before the meeting of the convention, Madison wrote to -Edmund Randolph, one of the delegates, that it would be well for him to -prepare some propositions from Virginia, he in his letter suggesting -what they should be. Immediately after the organization of the -convention after the choice of Washington as the presiding officer and -the establishing of standing rules, Randolph introduced a series of -resolutions, which had been considered by his colleagues and were known -in the convention as those of Virginia. They were in substance, that the -articles of confederation should be corrected and enlarged; that the -rights of suffrage in the national Legislature ought to be proportioned -to the quotas of contribution, or to the number of free inhabitants; -that the Legislature should consist of two branches, the first branch to -be elected by the people of every State; that the Legislature should -have supreme rights with coercive power against any member failing to -perform its duty, and that there should be a national Executive and -Judiciary. - -These resolutions were referred to the next meeting. At that meeting -Randolph, at the suggestion of Gouverneur Morris, who said that his -subsequent resolutions did not agree with the first, moved that this -first resolution, which was that the articles of confederation should be -corrected and enlarged, should be postponed, which was unanimously -agreed to. Randolph then proposed three other resolutions, the first two -that a union merely federal and treaties between the States as -sovereigns would be insufficient. The convention, after debate and other -propositions, considering the first two resolutions unnecessary, passed -the third, which was: "That a National Government ought to be -established consisting of a supreme legislative, executive, and -judiciary." All the States present voted ay, Connecticut only no, New -York divided--Hamilton ay, Yates no.[20] Yates in his minutes says -Randolph in first proposing his resolutions, "candidly confessed they -were not intended for a federal government; and that he meant a strong -consolidated union." Mr. Morris on the 30th observed that Randolph's -preamble as to amending the articles of the confederacy was unnecessary, -as the subsequent resolutions would not agree with it.[21] - - [20] 5 Elliot, 132-34. - - [21] 1 Elliot, 391 and 392. Yates' minutes. - -The votes in the convention were as in the confederacy, each State had -one and voted as a whole. If the delegation of a State was equally -divided, its vote was lost. - -By the 13th of June the Virginia resolutions had been considered and -passed with changes and amendments,[22] the first resolution as changed, -being that a national government ought to be established; the plan as to -representation (Resolves 7 and 8), being that the representation in the -two branches of the Legislature should be in accordance with the free -population and three fifths of all other persons (slaves), and excepting -Indians. - - [22] 5 Elliot, 189-90 states the resolutions. - -Further action on this report was deferred to June 14th at the request -of Mr. Patterson, who then offered a plan called that of New Jersey, -formed by the deputations of Connecticut, New York, New Jersey, and -Delaware, preserving the articles of the confederation, one Legislature, -the equal vote of each State, but revising, correcting, and enlarging -the conferred powers so as to render them "adequate to the exigencies of -government and the preservation of the Union." In the resolutions the -Executive, if any State or any body of men in the State should oppose -the execution of the acts or treaties of the government, was to call -forth the power of the States to enforce and compel an obedience.[23] -The ratification was to be by the Legislatures of the States; that of -the Virginia plan was to be by the people. The objection that the -delegates to the convention were exceeding their authority, which was -only to amend the articles of the confederation, was again brought up; -the discussion whether the government should be national or a -confederacy was again renewed. It was pointed out as a fatal objection -by Madison, Hamilton (who then spoke for the first time), and others, -that under a confederacy the coercing of a State to pay its quota or -compelling it to obey would in fact be a civil war, where the militia of -other States would have to march against the delinquent power. Hamilton -said he neither liked the Virginia nor the New Jersey plan; he praised -the constitutional monarchy of Great Britain as the most perfect -government. He was particularly opposed to Patterson's plan, "being -fully convinced that no amendment of the confederation leaving the -States in possession of their sovereignty could possibly answer the -purpose."[24] He stated the plan he should prefer: a general government, -with an executive and a senate for life or good behavior, the general -government to have the appointment of the governors of each State, who -should have a veto over the State laws.[25] He wished the States -abolished as States, but admitted the necessity of their having -subordinate jurisdiction.[26] He was aware that others did not approve -of his plan, nor would they, he thought, of that of Virginia, but they -might finally come to it. He thought universal suffrage a bad principle -of government. He apparently did not know how strongly the democratic -feeling existed amongst the people of this country; nor perhaps -appreciate the strength of a government that has at its back the will -and brute power of the majority of fighting men, as shown in our civil -war. He made that unfortunate speech, afterwards used against him, that -the people were getting tired of an excess of _democracy_, "and what is -even the Virginia plan _but pork still, with a little change of the -sauce_."[27] - - [23] 5 Elliot, 192, sixth resolve. - - [24] 5 Elliot, 199. - - [25] See his plan, 5 Elliot, 205. - - [26] 5 Elliot, 212. - - [27] Elliot, 423; also 5 Elliot, p. 206 note. - -As no one seconded Hamilton's plan and he did not urge it, the question -before the convention was between Mr. Patterson's plan enlarging the -power of the confederacy or the national one of Virginia. The former, -after much debate, was laid aside, only New York and New Jersey voting -no. The Virginia resolutions were taken up again by a vote of seven -States ay, to three nay, Maryland divided, which was a vote, so Madison -says, that they "should be adhered to as preferable to those of Mr. -Patterson."[28] - - [28] 5 Elliot, 212. - -That the word national was dropped from the resolutions of Virginia has -been dwelt upon by Southern writers, and by Calhoun at length in his -speech of 1833, as a proof that the national idea was abandoned. No such -conclusion can be drawn from the way in which it was done. On June 20th, -the day after the Virginia resolutions were again taken up and adopted, -the first resolution being before the House, Mr. Ellsworth moved it -should read: "That the government of the United States ought to consist -of a supreme legislative, executive, and judiciary." This alteration, he -said would drop the word national and retain the proper title, "The -United States." Mr. Randolph said he did not object, and it was -unanimously acquiesced in. - -The second resolution, that the Legislature should consist of two -branches, was taken up. Mr. Lansing moved instead, that "legislation be -vested in the United States in Congress," and again urged a confederacy. -On this George Mason,[29] to whom Mr. Lodge refers, said he did not -expect this point to be re-agitated, and compared a national government -to a confederate one. He spoke, "with horror," of the necessity that the -latter would have of collecting its taxes by compulsion over States, of -marching the militia of one State against another to enforce taxes; -_rebellion_ was the only case where military force should be exerted -against citizens. In the early days of the convention he had urged that -the new government should be one over individuals not States. He would -not, however, abolish the State governments or render them absolutely -insignificant. This second resolution was carried seven States to three, -Maryland divided.[30] - - [29] 5 Elliot, 216, 217. - - [30] 5 Elliot, 223. - -The next resolution, that the first branch of the Legislature should be -elected by the people, was supported by Mason, and Wilson said he -considered it the corner-stone of the fabric; only New Jersey voted -against it, Maryland divided. - -On the resolution of how the second branch of the Legislature should be -elected--by the State Legislature or the people,--Virginia voted that it -should be by the people.[31] - - [31] 5 Elliot, 240 and note. - -That the representation in the first branch should be in proportion to -the people was established. Then June 29th began the great controversy -in the convention of how the representation should be in the second -branch, whether in proportion to population or by State. - -When this discussion took place, the three great States were Virginia, -Massachusetts, and Pennsylvania. Virginia then comprised the territory -which is now West Virginia and Kentucky, and, including her slaves, had -the largest population. Massachusetts, instead of being insignificant in -territory, had the large area of Maine, which was made into a separate -State in 1820. Massachusetts had the largest white population and had -furnished more soldiers than any other State in the Revolution; and it -was probably for this reason that Madison alluded to it as the most -powerful State. New York had then about the same population that -Connecticut and Maryland had, and from apparent want of foresight as to -its future great and immediate increase in population and power took a -prominent part with the smaller States that wished representation should -be by an equal vote in both branches of the new Legislature. The -representatives of Connecticut, Sherman and Ellsworth, were also -strenuously in favor of equality of States. Ellsworth, in reply to -Madison's attack on Connecticut for refusing compliance to federal -requisitions, excused his State by reason of her distress and -impoverishment by her exertions during the revolutionary war, and -asserted that the muster rolls will show she had more troops in the -field in the revolutionary war than even Virginia, and he appealed to -the presiding officer, Washington, as to the truth of his statement.[32] -Georgia, then estimated to be the smallest in population, trusting to -the future settlement of its claimed large territory extending from the -sea-coast to the Mississippi, usually voted with the larger States.[33] -Mr. Bedford, of Delaware, asserted that South Carolina, puffed up with -the possession of her wealth and negroes, and North Carolina were both -united with the great States, and for the smaller States threatened, -"sooner than be ruined, there are _foreign powers_ who will take us by -the hand."[34] For this he was very justly rebuked by Rufus King, of -Massachusetts. It was hard for the smaller States having an equal vote -in the Confederacy to change it for one proportioned to inhabitants. It -was estimated that Delaware would have but one representative in each -branch to Virginia's sixteen. The argument of the smaller States was -that Virginia, Massachusetts, and Pennsylvania would combine to crush -the other States. Madison replied that their interests were so different -there was no fear of this. Massachusetts' product was fish; -Pennsylvania's, flour; Virginia's, tobacco. He predicted that the -struggle, when it came, would be between the Southern States with their -interests as exporters and the Northern commercial States. The opinion -was pretty generally entertained that any division that might arise -would be between North and South. - - [32] 1 Elliot, 469. - - [33] See estimates, Note 160, 5 Elliot, 598. - - [34] 1 Elliot, 472. - -The dispute between the greater and smaller States was finally settled -by the provision that all money bills should originate in the first -branch of the Legislature, that direct taxation should be in proportion -to representation in that branch, and that there should be an equal -representation in the upper House, the vote however being _per capita_ -and not by States. The final vote on this settlement was almost -unanimous, only one State, Maryland, in the negative.[35] - - [35] 5 Elliot, 357. - -It has been argued by Davis, Stephens, and others, that this equal -representation of the States in the Senate was an establishment of a -confederacy, and it has been a stumbling-block in the way of many -constitutional commentators who have considered it a _compromise_ -between a national and a confederate government. It is a _compromise of -the right of representation_ in one branch only of the legislative -department of the government; but it is _no compromise_ in the _powers -granted_. The powers granted to the government are of supremacy, -legislative, executive, and judicial, over State and State constitutions -and State judiciaries. If there had been rotten boroughs established by -the Constitution like those then in Great Britain, if Delaware and Rhode -Island had been given double the representation that Virginia had, or if -every slave of the South had counted for two white men in the free -States, the granted powers of the government would have been none the -less supreme and national, as the Constitution itself declares, and as -they in reality are. Scotland is not a sovereign nation because her -peers elect twelve of their number to the House of Lords of the -government of Great Britain. Oxford and Cambridge Colleges are not -sovereign powers because they choose representatives to the House of -Commons. Charles Pinckney of South Carolina with reason said: "Give New -Jersey an equal vote and she will dismiss her scruples and concur in the -national system." - -The other resolutions of Virginia, except those relating to an -executive, had been acted upon, when Elbridge Gerry of Massachusetts -moved, that "the proceedings of the convention for the establishing of a -_national government_" "be referred to a committee to prepare and report -a Constitution"; a committee of five was agreed upon, no one -objecting,[36] no one denying that the government was a national one. -From the 23d to the 26th of July the plan of the Executive was -considered and settled, and was unanimously referred to the Committee of -Detail, that of five already appointed to prepare and report the -Constitution. The convention adjourned until August 6th, to give the -necessary time to their committee. The resolves then passed are stated -in Elliot's _Debates_.[37] - - [36] 5 Elliot, 357. - - [37] 5 Elliot, 374-6. - -The first was, that the government of the United States ought to consist -of a supreme legislative, judiciary, and executive. The second, third, -fourth, and fifth were the resolves as to the two branches of the -Legislature. The sixth was: "Resolved, that the national Legislature -ought to possess the legislative rights vested in Congress by the -Confederation; and moreover to legislate in all cases for the general -interests of the Union," etc., etc. - -In the 12th, 13th, 14th, 15th, 16th, 20th, and 23d--the last, the -executive, the legislative, the judiciary, and the government were -termed national. These are the resolutions passed by the convention, all -declaring the government and every branch of it was national. This was -the plan agreed on; no changes were made except of detail and for -euphony, and some modifications. - -On August 6th the Committee of Detail reported the Constitution; a -printed copy was furnished to each member.[38] The preamble was, "We, -the people of the States of New Hampshire, Massachusetts," then follow -the names of all the other States, "do ordain, declare, and establish -the following Constitution for the government of ourselves and our -posterity." - - [38] Copy of Constitution as reported, 5 Elliot, 376-81. - -"Article I. The style of the government shall be the United States of -America." - -"Article II. The government shall consist of supreme legislative, -executive, and judicial powers." - -By Article X. the executive was vested in a president, to hold his -office for seven years, but not re-eligible, whose title was to be "His -Excellency." - -It will be noticed that the preamble had the declaration of perpetuity, -that we, the people, made it for "our posterity." - -The Constitution was then taken up by its separate articles, and they -were minutely and thoroughly discussed and somewhat altered. Each was -again passed, taking all the time from the 7th of August until September -12th. - -The definition of treason was considered at great length, and in the -debate it was shown that States might punish for acts against their -authority under the name of treason or under other names. Madison -thought the definition too narrow; Mason was in favor of extending the -definition and adopting the statute of Edward III.[39] The record of the -convention shows this article punishing treason was unanimously agreed -to, notwithstanding the objection Luther Martin said he made.[40] - - [39] 5 Elliot, 447. - - [40] 5 Elliot, 451. Article VII., Sec. 2, was then agreed to - _nem-con_. - -The supremacy of the Constitution and the laws of the United States over -the States and all citizens and State judiciary was passed, no one -opposing, August 23d.[41] - - [41] 5 Elliot, 467. - -The provisions relating to the office of President and his powers and -duties were much discussed and changed, and the title of "His -Excellency" dropped. - -The amended draft of the Constitution was submitted to a Committee of -Style and Arrangement, of which Gouverneur Morris was chairman, and they -changed the preamble to, "We, the people of the United States," from -that of "We, the people of New Hampshire," etc.; they inserted the -words, "in order to form a more perfect union, establish justice, insure -domestic tranquillity, provide for the common defence, promote the -general welfare, and secure the blessings of liberty," retaining that it -was to ourselves and our posterity, that we do ordain and establish this -Constitution of the United States of America. It has been argued and -strenuously claimed that this change to "We, the people of the United -States," was one made for euphony at the end of the session of the -convention, and has no force as a declaration that it was made by the -people. But it will be seen it took the place of one as explicit, one -declaring it was by the people of every State and for themselves and -posterity. It was necessary to drop the name of each State, as the -Constitution was to be obligatory only on the people of those States -adopting it. This change was not objected to by any one. The convention -considered this final draft from the 12th to the 17th of September, and -made some changes, when it was signed by all the delegates present -except four. - -The members of the convention evidently had studied for the occasion and -were learned in the history of leagues and governments; they referred to -Montesquieu, to Holland, Swiss Cantons, United Netherlands, Poland, -Amphictyonic Conference, Archaean and Lycian Leagues, the Germanic body, -and to Germany, from which the general principles of government came. - -There was a diversity of opinion in the convention about the durability -of the Union. Its rapid increase in population, its future greatness in -territory (for the members believed in the acquisition of the -Mississippi to its mouth), were foreseen and spoken of by many. - -Some there were who thought, with the extreme difficulty of -communication and intercourse, not knowing how steam navigation and the -railroad would almost annihilate distance, that it would be impossible -to keep such an immense territory and people together. Others -congratulated themselves as the founders of a great empire. Sherman of -Connecticut, on the question of limiting the number of new States to be -admitted, from the fear of their controlling the old thirteen, replied: -"We are providing for our posterity, our children and grandchildren, who -are as likely to be citizens of new Western States as of the old -States."[42] No one suggested any dissolution by claim of right of -secession. - - [42] 5 Elliot, 310. - -When the supremacy and nationality of the intended government were -settled, Yates and Lansing (who with Hamilton formed the delegation from -New York) on July 3d left the convention, and in their letter to -Governor Clinton,[43] stated that they did so because they were chosen -to revise the Articles of the Confederation and that the principles of -the Constitution sanctioned by the convention met with their "decided -and unreserved dissent," as would any system "which had in object the -consolidation of the United States into one government"; and that "a -persuasion that their further attendance would be fruitless and -unavailing rendered them less solicitous to return." - - [43] 1 Elliot, 480. - -We find after equal representation in the Senate had been granted to the -smaller States, that their delegates took a prominent part in enlarging -and strengthening the powers of the General Government. - -Luther Martin, who throughout the session of the convention had been -the most able and persistent opponent to a national government, -expressed his dissatisfaction at the close and was one of the four who -refused to sign. The three Southern States, North and South Carolina and -Georgia, as was stated in the convention, had exalted opinions of their -future population, and had been often on the side of the larger States. -They had obtained their wishes--representation for their slaves, the -right to import them until 1808,[44] the prohibition of export duties on -their rice, indigo, and tobacco, yielding only the taxation of imports. - - [44] Virginia opposed the importation of slaves. Mason particularly - condemned it. 5 Elliot, 458. - -General Charles Cotesworth Pinckney of South Carolina, towards the close -of the convention, expressed the satisfaction of the South at the -liberal conduct shown to them, and that it was for the interest of the -weak Southern States to be united with the strong Eastern States, that -the government should have the power of making commercial regulations, -and that though he had had his prejudices against the Eastern States, -"he had found them as liberal and candid as any men whatever."[45] - - [45] 5 Elliot, 489. - -Washington, the presiding officer, who had been advised by his best -friends not to accept the nomination as a member of the convention, and -who from a sense of duty assented to act, spoke but seldom. - -At the close of the proceedings he urged an amendment that removed the -objections of some members, which was agreed to unanimously. - -Next to Washington, Franklin was perhaps the most prominent person in -the country. His motions and suggestions did not generally meet with the -approval of the convention, excepting perhaps in reference to the -equality of representation in the Senate, where the committee appointed -under his resolutions brought in a plan for a settlement. His witty -remark, when the last members were signing, has taken its place in -history. Looking towards the President's chair, at the back of which a -rising or setting sun had been painted, he observed to those around him -that painters had found it difficult to distinguish a rising from a -setting sun, that during the session, between his hopes and fears as to -the issue, he would look at the sun behind the President and could not -tell whether it was rising or setting, but now he knew that it was a -rising one. Hamilton did not conceal his dislike to the plan adopted, -but promised his ardent support. His strenuous labors to that end in the -New York convention against the most persistent and determined -opposition were finally crowned with success. Gerry of Massachusetts -refused to sign; Gorham and Rufus King--who with Gerry had taken active -parts in the discussion,--together with their colleague, Caleb Strong, -signed. Madison and Blair alone signed for Virginia. Mason, though he -had said he would bury his bones in the city rather than the convention -should dissolve without doing anything,[46] and had been from the -beginning in favor of a national government, declined to sign what he -had been so instrumental in making; because he thought the great power -given to the Senate of trying impeachment, of making treaties, of -appointing ambassadors, judicial and other officers, would make an -aristocracy of its members. He and Randolph, the one who brought the -plan forward, thought the Constitution agreed on needed amendment and -wished another convention. One cannot help thinking their decision might -have been different, if Virginia had been allowed her proposed -representation in the Senate in proportion to population. - - [46] 5 Elliot, 278. - -We have already stated that the Constitution was sent to the Congress of -the Confederacy and by them submitted to the State Legislatures, who all -sanctioned it so far as to submit it to conventions chosen by the -people. In each and every State the coming into the new government was -ultimately decided by the people, and not by the State government. - -In many of the States the adoption of the Constitution was -pertinaciously and vehemently opposed on the ground of the great and -excessive powers given to the new government, that might be destructive -of the liberty of the people. The appointment of officers, and the power -of the President with his command of an army and navy in peace as well -as in war, the legislative rights of Congress with an unlimited right of -taxation, were so great that eminent and prominent men expressed their -belief that the government would end in a despotism. - -In Pennsylvania, Wilson at great length explained the new form of -government, stating "that by adopting this system we become a nation; at -present we are not one."[47] His labors in the State and the general -conventions have been fully recognized by recent writers. - - [47] 2 Elliot, 526. - -It was only after a long and heated discussion in the large convention -of the then important State of Massachusetts, where were present, John -Hancock, Fisher Ames, Rufus King, and Sam Adams, who reluctantly yielded -consent, that the Constitution was adopted, the majority in favor being -small. - -In Virginia, which was the tenth State to come into the Union, Patrick -Henry, who had declined the appointment to the general convention, -objected because the Constitution said "We, the people," instead of "We, -the States"; and "if the States be not the agents of this compact, it -must be one great consolidated national government of the people of all -the States."[48] "It had an awful squinting towards monarchy." "The -federal convention ought to have amended the old system." George Mason -objected because the Constitution had no bill of rights and would end in -a monarchy or corrupt oppressive aristocracy, and the confederation be -converted to one grand consolidated government.[49] The acceptance was -ably argued and urged by Madison and others and Edmund Randolph, who had -refused to sign, but had since come to the conclusion that the only -chance of escape from the discredited, crumbling Confederacy was in -adopting the new Constitution. He said in the beginning of the debate, -"I shall endeavor to make the committee sensible of the necessity of -establishing a _national government_. In the course of my argument I -shall show the inefficacy of the confederation."[50] - - [48] 3 Elliot, 22. - - [49] See Mason's objections, 1 Elliot, 494, also _Debates_. - - [50] 3 Elliot, 64. - -The acceptance of New York, her territory dividing the Central and -Southern States from the Eastern, was considered all important. Her -ratification of the Constitution came late. She was the eleventh State, -and neglected to vote for President at Washington's first election. - -John Jay, the Minister for Foreign Affairs of the Congress of the United -States, in an address to the people, plainly told them the new -government was national. He said: "Friends and Fellow-Citizens--The -convention concurred in opinion with the people, that a national -government, competent to every national object, was indispensably -necessary."[51] - - [51] 1 Elliot, 496. - -Hamilton, Jay, Chancellor and other Livingstons, Melanchthon Smith, and -a number of leading citizens were members of the convention. Yates and -Lansing, who were members of the general convention that made the -Constitution, and Governor George Clinton strenuously and persistently -opposed the ratification, alleging as the reason the danger from the -great powers given to the General Government subverting those of the -State. - -This New York convention for a long time was opposed to the -ratification. Hamilton, who was exceedingly zealous for it, wrote almost -in despair to Madison, asking if a State could adopt the Constitution -conditionally and afterwards withdraw from the Union if its proposed -amendments were not adopted. Madison replied, that "a conditional -ratification did not make a State a member of the Union. The -Constitution requires an adoption _in toto_ and _forever_. It has been -so adopted by the other States. An adoption for a limited time would be -as defective as of some articles only." Hamilton did not question the -correctness of this opinion; but New York was brought finally to giving -her consent. Mr. Lansing's two motions (which show that he thought the -Union perpetual) of a conditional ratification with a bill of rights, -and of a reservation of a right to withdraw from the Union after a -certain number of years unless the amendments proposed should previously -be submitted to a general convention, were negatived;[52] a similar -conditional acceptance had been proposed in the Virginia convention and -abandoned. - - [52] 2 Elliot, 412. The acceptance was passed in full confidence that - the bill of rights proposed by New York would be passed. - -The proceedings in most of the conventions called by the several States -are reported in Elliot's _Debates_. In none of them was the theory -advanced or suggested that a State had the power to secede from the -government or decide as an independent sovereignty on the validity of -the acts or laws of the new government. If the power to nullify was then -supposed to exist, if the right of a State to leave at its will was -thought of, why was it not then urged that nullification and secession -were easy remedies if the Union should be or become oppressive? No one -imagined that there was any such power remaining in the States. No one -answered to the alleged fear of oppression and tyranny that the State -could nullify or secede. Neither friend nor foe, as Webster said, -claimed either. - -On all occasions, in all the speeches, it was assumed as granted, that -the consolidation of the States, as it was termed, was national and -perpetual. Even in South Carolina the proceedings are conclusive on -this point. The Constitution first came before the legislature on the -question of submitting it to the people of the State. Charles Pinckney, -who had also been a very prominent member of the general convention that -made the Constitution, said: "He repeated that the necessity of having a -government which should at once operate upon the people, and not upon -the States, was conceived to be indispensable by every delegation -present."[53] - - [53] 4 Elliot, 256. - -The question whether the States ever had individual sovereignty arose in -the convention chosen for deciding on the ratification of the -Constitution, and General Charles C. Pinckney[54] insisted that our -independence came from the Declaration of Independence made by the -Congress of the Confederacy, wherein in the name of the good people of -these colonies we were declared free and independent States. The -separate independence and individual sovereignty of the several States -was never thought of, not even mentioned by name in any part of it. The -same objection in South Carolina as in other States to the Constitution -as destructive of liberty was made. James Lincoln, a delegate from -Ninety-six, said: "From a democratic you are rushing into an -aristocratic government. Liberty! what is liberty? The power of -governing yourselves. If you adopt this Constitution have you this -power? No; you give it into the hands of a set of men who live one -thousand miles distant from you."[55] - - [54] 4 Elliot, 301. - - [55] 4 Elliot, 313. The objections to the Constitution came very -generally from the interior western parts of the State. They were so in -Massachusetts, Virginia, and New York. - -The words of ratification of the States are also conclusive on these -points. We will take the three important States whose acceptance was for -a long time doubtful. Massachusetts in her pious and reverential -ratification used the word compact, which numerous Southern writers, -Davis, Stephens, and others, bring up as proof that Massachusetts -considered the Constitution a mere confederacy and not a government. - -To refute this it is but necessary to give the very words used: - - "The Convention, acknowledging with grateful hearts the - goodness of the Supreme Ruler of the Universe in affording the - people of the United States, in the course of his providence, - an opportunity deliberately and peaceably without fraud or - surprise of entering into an explicit and solemn compact with - each other, by assenting to and ratifying a new constitution in - order to form a more perfect union, ... do, in the name and - behalf of the people of the Commonwealth of Massachusetts, - assent to and ratify the said Constitution for the United - States of America." - -It is _the people of the United States_, not the States, nor the people -of the State of Massachusetts, that enter into this explicit and solemn -compact with each other for a more perfect union. As we have said -before, a compact may be for a national government or for a confederacy. -If the convention understood that it was States making a confederacy, -they would have said the people of the State, and not the people of the -United States. - -We come next to Virginia's acceptance of the Constitution, which, to -Calhoun's peculiar mind, was "a conditional one." "A condition made in -the interest of all the States, and of which any State could avail." - -The acceptance was made "_in behalf of the people of Virginia_"; the -condition was, "that the powers granted under the Constitution being -derived from _the people of the United States_ may be resumed _by them_, -whensoever the same shall be perverted to their injury or oppression," -and that "among other essential rights the liberty of conscience and of -the press cannot be cancelled, abridged, restrained, or modified by any -authority of the United States." - -It cannot be disputed that the convention, by this acceptance, -understood and declared that there was thence but one nation; they -accept the government in behalf of the people of Virginia; they -acknowledge that the powers are derived from "the people of the United -States"; and add, if the government be perverted to the injury and -oppression of the _people_ of the _United States, they, the people of -the United States_, may resume the granted powers, not the people of -Virginia or the State of Virginia. If the convention understood that -they were making a _compact between States_ that were to retain -sovereignty, or the right to withdraw, it certainly would have said: if -the United States Government be perverted to the injury of the States, -then the State or sovereign State of Virginia or the people of the State -could resume the powers granted by her. - -Clinton is one of the four persons whom Mr. Lodge cites as of the -opinion that the Union was a dissoluble, precarious, and temporary -affair. The letter of Madison to Hamilton--we have before mentioned--in -relation to the perpetuity of the Union and that there could be no -conditional acceptance, is well known to constitutional writers and -historians, and regarded as of the highest authority; but the more -emphatic and decisive declaration of the convention of New York, in its -circular-letter to the governors of the different States, signed by -Clinton, its President, and _ordered unanimously_, seems to have escaped -all notice. In that letter he and they state to the governor of each -State the ratification of the Constitution by New York and her -recommendation of certain amendments. He and they add, none of these -amendments originated in local views. - - "Our attachment to our sister States, and the confidence we - repose in them, cannot be more forcibly demonstrated than by - acceding to a government which many of us think very imperfect, - and devolving the power of determining whether that government - shall be rendered _perpetual in its present form_ or altered - agreeably to our wishes and a minority of the States with whom - we unite."[56] - - [56] Circular-letter from the convention of New York to the governors - of the several States of the Union. Elliot's _Debates_, vol. ii., - pages 413, 414. - -Can anything be more explicit that every one, everywhere, at that time -understood the Union was perpetual, than this unanimous address of the -convention of New York saying so to all the other States, and the -submissive request that they would amend the Constitution in accordance -with their wishes? - -The conventions of Massachusetts, Virginia, and New York passed -resolutions recommending what they considered important necessary -amendments to the Constitution. These resolutions and the -recommendations of other States were considered in the first Congress, -and ten articles, commonly called the Bill of Rights, were passed, and -duly ratified by the legislatures of the States. These articles are -safeguards against the feared tyrannical grants that had been given, and -are all restrictive of the powers of the United States over its -citizens, not of its powers over States. They are: that the people -should have the right of petition; and "a well regulated militia being -necessary to the security of a free State, the right of the people to -keep and bear arms shall not be infringed." This shows how deep and -serious the States believed the danger to be from the great powers of -the General Government with a standing army and navy. - -Other amendments were, that no law should be passed abridging the -freedom of speech or of the press, or of trial by jury in suits at -common law where the amount involved exceeds twenty dollars; that there -should be no established religion, and matters of that kind. None of -these ten amendments give any powers to State governments. The final -clause reserves all the powers not granted, "to the _States_ -respectively, or to the _people_," not to the States and their people, -or the people of the respective States; but to the people, putting the -people as a whole. - -Great stress has been laid by Calhoun and his followers on this clause, -as giving power to the States. As the United States Government's -sovereignty is undoubtedly limited to the express grants of the -Constitution, the powers not granted are in the States or people. There -was no need of any reservation, except to allay the fears of those who -erroneously believed that the Constitution gave unlimited power to the -Union. - -We have seen that in the discussions in the constitutional conventions -it was denied that any separate State ever had or exercised sovereign -powers. Judge Story, whose authority is as great as that of any legal -writer, in his commentaries on the Constitution maintains this doctrine. -Many of our earlier historians concur in this. - -It is urged that originally we were one people of different colonies, -subjects of the British Kingdom; our independence of that kingdom and -existence as a power came from the declaration of the Congress of our -combined government, in which we are called one people. No State ever -acted separately in any sovereign capacity; we carried on the war, made -peace, and treated with foreign countries as one nation. Even territory -had been ceded to the Confederacy by the several States; and it was the -Confederacy that passed the ordinance of 1787 abolishing slavery in the -Northwest. The States had declared this Confederacy indissoluble. -Webster, as we have seen, did not found his argument on the ground that -the States never had sovereignty; he impliedly admitted the claimed -independence, or sovereignty of the States, before the forming of the -Union; it is safer to make this concession as Webster did. Each State -had its choice to join the Union or to remain apart and become an -independent sovereign power. - -Our first chief-justice, John Jay, a most eminent jurist, a member of -the New York convention, and one of the writers of the _Federalist_, in -his decision in the case of Chisholm against the State of Georgia, where -Georgia denied that a State could be sued, very clearly states how our -government was formed and where the sovereignty is. He said: All the -people of our country were subjects, every acre of land was held by -grants from the Crown of Great Britain; the sovereignty passed from the -Crown to the people, and a confederation of States was established as -the basis of a general government. Then the people of the country made -a new government saying, "We, the people of the United States, do ordain -and establish this Constitution." Every State constitution is a compact -between the citizens to govern themselves in a certain manner, and the -Constitution of the United States is likewise a compact made by the -people of the United States to govern themselves as to general objects -in a certain manner.[57] - - [57] See 2 Dallas _Reports_, p. 471, for opinion in full. - -It has often been asserted and apparently is generally believed, that in -the lapse of time the limited authority of the United States has been -gradually extended, national powers assumed, and the whole fabric of -government changed. An examination, however, of the laws passed by the -earliest Legislatures shows a very liberal construction of the granted -powers. Madison was a leader in the first Congress, he was through life -a strict constructionist of the extent of the powers given by the -Constitution. He informs us that no one doubted in that Congress that -the United States had the power of levying duties for protection.[58] -The want of such power was the very ground on which South Carolina -passed the nullification acts of 1832. The preamble of the law of the -first Congress, stating that the duties laid were for the encouragement -and protection of manufactures, we have already cited. The same act -made a discrimination in favor of imports of teas from China and India -direct in ships belonging to citizens of the United States, allowed a -drawback on dried and pickled fish and salted provisions in lieu of a -drawback on the salt used in them. In the third session of that first -Congress, an excise tax was laid on distilled spirits, and the Bank of -the United States was incorporated--because of its utility to the -government in the collection and transmitting of its revenue. Carriages -were taxed in 1794. To the charter of the bank and the carriage-tax -Madison and others objected as not within the granted powers. Also in -1794 sales of wines and liquors by retail and sales by auction were -taxed. And Madison himself introduced a bill to make a post-road through -the whole length of the States from Maine to Georgia. - - [58] Madison's letter to Jos. C. Cabell: Consideration No. 8. - 4 Elliot, 602. - -The suit before referred to against the State of Georgia,[59] under the -clause giving the United States Courts jurisdiction between a State and -citizens of another State, is another piece of contemporary history and -the strongest possible proof what was the understanding of that day. -Georgia was sued by a citizen of South Carolina in a simple action of -assumpsit, the legal term for a suit in which one would recover for the -cost of a pair of shoes or a day's wages. Georgia refused to defend the -claim on the ground that she was a sovereign State. - - [59] 2 Dallas _Reports_, 419. - -The case came before the full bench of the Supreme Court, and was argued -for the plaintiff by Edmund Randolph, then Attorney-General, the -prominent member of the general convention and that of Virginia, who -stated his opinion strongly against this claim of Georgia. The decision -was against Georgia; Blair and Wilson, who were members of the -convention that made the Constitution, the Chief-Justice Jay, and -Cushing giving fully reasoned opinions. Iredell, a member of the North -Carolina Convention, gave a dissenting opinion; it was not because he -held that Georgia was a sovereign State as generally stated. He said as -to sovereignty: "The United States are sovereign as to all the powers of -government actually surrendered; each State in the Union is sovereign as -to all the powers reserved." This same doctrine, as to the sovereignty -of a State in unsurrendered powers, was held by Marshall.[60] - - [60] Providence Bank _vs._ Billings, 4 Peters, 514. - -The reason of Iredell's dissent was that before the adoption of the -Constitution a State could not be sued; that no suit now could be -brought against a State, because Congress had not made a law providing -for it. Further, he intimated it was not intended by the Constitution to -give the right of a compulsory suit against a State. As to the -sovereignty of the United States in the powers conferred to it, the -court was unanimous. - -In the same suit, Jay and Cushing maintained that the United States -cannot be sued, a dictum since followed, though the Constitution gives -jurisdiction to the courts where the United States are a party. - -At this time all the States were greatly indebted and many suits were -instituted against them, the United States Courts maintaining their -jurisdiction over the States. The alarm was general, and to quiet the -apprehension that was so extensively entertained, an amendment, taking -from the United States judicial power in suits against a State, was -adopted in Congress and afterwards ratified by the State Legislatures in -1798. That its motive was not to maintain the sovereignty of a State -from the degradation supposed to attend a compulsory appearance before -the tribunal of the nation may be inferred from the terms of the -amendment. It left jurisdiction to the United States of controversies to -which the United States shall be a party, of controversies between two -or more States, between citizens of different States, between citizens -of the same State claiming under grants of different States.[61] - - [61] Chief-Justice Marshall's remarks in Cohens _vs._ Virginia, 6 - Wallace, 264. - -Early in our history, in the second administration of Washington, a -formidable, armed, organized resistance was made to the enforcement of -the excise laws of the General Government in the western portion of -Pennsylvania, which extended into a part of Virginia. It was computed -that there were sixteen thousand men capable of bearing arms in the -district in insurrection. Washington called out the militia of several -of the States and, as Commander-in-chief, suppressed the revolt. The -march of the troops was fatiguing and long, late in the fall, in rain -and storms, which caused much suffering and, in the end, a good many -deaths. The insurrection was crushed by the power of the General -Government with promptness and vigor, much to the satisfaction of -Washington and Hamilton then Secretary of the Treasury; it strengthened -the government and the administration. Of the prisoners tried before the -United States Court at Philadelphia two were found guilty of treason, -who from some palliating circumstances were ultimately pardoned by the -President.[62] - - [62] Hildreth's _History_, vol. iv., p. 515. - -We have seen what were the opinions of the nature of the new government -held by Hamilton, Mason, and Clinton, three of the persons Mr. Lodge -named. There can be no doubt what Washington's was. No one knew better -than Washington, what a miserable condition the States, then petty in -population and poor in resources, would be without a strong, -indissoluble Union. Only one of the States, Virginia, had over half a -million of inhabitants, nearly half slaves; two had about sixty -thousand. - -Washington, long before, on the disbanding of the army in 1783, wrote -to the governors of the States that, according to the policy the States -should adopt, depended whether the revolution was a blessing; and he put -"first" among the essential requisites "an indissoluble union of the -States under one federal head."[63] In his address as president of the -convention submitting the Constitution to the Congress of the States, he -said: "In all our deliberations on this subject we kept steadily in our -view that which appeared to us the greatest interest of every true -American, _the consolidation of the Union_, in which is involved our -prosperity, felicity, safety, perhaps our _national_ existence." In his -farewell address, as President, to the people of the United States, in -no less emphatic terms, he declared the importance and the success of -the Union. He said: "The _unity of Government_, which constitutes _you -one people_, is also now dear to you; it is justly so, for it is a main -pillar in the edifice of your real independence--the support of your -tranquillity at home, your peace abroad; of your safety; of your -prosperity; of that very liberty which you so highly prize."[64] - - [63] Eliot's _Manual of United States History_, 266. - - [64] Sparks' _Washington_, vol. xii., p. 214. - -We have before stated, that at the institution of our government there -was a great fear on the part of a portion of the people of its -consolidation and the extension of its granted powers over those -reserved to the States and people. It was not however until the -administration of John Adams, about ten years after the government had -gone into operation, that the power of a State to pass judgment on the -validity of the acts of the United States was suggested. Those who had -elected Adams as President called themselves Federalists, and, as is -natural in those controlling the government, were in favor of a liberal -construction of its powers. The name federal, taking its Latin -derivation, refers to a bond uniting states; that bond may be, however, -that of a confederacy or of a nation. Perhaps it was a misnomer for the -party in favor of a broad national construction of the Constitution. The -name has come into use, however, as descriptive of our government; it is -very generally called the Federal Government. The proposed uniting of -states, like the British colonies in the Pacific, is spoken of as -federal. Indeed there is no substantial objection to terming any sort of -government made by a constitution or agreement federal. - -The party, at that time of our history, in opposition to the Federal, -and who were in favor of a strict construction of the Constitution, -called themselves by the national name of Republicans. When, however, -they came into power under Jefferson, they were no longer strict -constructionists. - - - - -CHAPTER IV. - -KENTUCKY AND VIRGINIA RESOLUTIONS. - - -During Adams' administration peace had been endangered by the endeavor -of foreigners to embroil the country in the war then raging in Europe. -In 1798 the Alien Laws giving the power to the President to expel -foreigners, and the Sedition Law punishing seditious acts and libellers -of the government, were passed. The constitutionality of these laws may -be fairly questioned. - -Jefferson, the leader of the party in opposition to those in power, was -not a member of the convention that formed the Constitution, he was at -that time serving the country in Europe. He was exceedingly disturbed by -the Alien and Sedition Laws, and has generally been held as the -instigator and author of the Kentucky resolutions condemning them, and -asserting the right of nullification, passed by its Legislature in -November, 1798.[65] The Virginia Assembly soon afterwards, late in -December of that year, passed the famous resolutions so much relied upon -by those claiming the right of nullification and secession. Jefferson -did not find the Legislature of Virginia as compliant as that of -Kentucky; and the resolves passed by Virginia differ fundamentally from -those of Kentucky. - - [65] Two drafts of the resolutions in his handwriting were found - amongst his papers and are published in his writings. - -At the time they were passed little notice was taken of the Kentucky -resolves, owing undoubtedly to the small importance of the declarations -of the Legislature of a State just admitted to the Union with but few -inhabitants. Besides, Kentucky had no claim to original sovereignty. She -owed her existence, the right of government over her territory, and of -expressing her opinions, to the privilege the General Government had -given her to become a State. How with any decency could such a State -claim to be a sovereign, to pass judgment on the legality of the laws of -the United States from whom came her very being? - -Then, after all, resolutions are not laws, and these resolutions of -Kentucky (and the same remark applies to the resolutions of all other -States passing judgment on the laws of the United States declaring them -null and void) are merely the opinion of that particular Legislature -that passed them, a sort of harmless suggestion of superior wisdom. -There is no provision in any of our State constitutions authorizing the -Legislature to give such opinions and the next Legislature may pass -others directly contradictory. They are only entitled to respect as -_opinions_, as would be the opinion of any town meeting or synod of -clergymen or assemblage of citizens. - -The Kentucky resolutions declare, and it was the first time any such -declaration was made, the same doctrine that Calhoun and Hayne -subsequently maintained; that the several States are united by compact, -under the style and title of a constitution, in a general government for -special purposes, and when the General Government assumes undelegated -powers its acts are void and of no force. - -Then comes the doctrine, that this government created by this compact is -not the exclusive or final judge of the extent of the powers delegated -to it, "but that, as in all other cases of compact among parties having -no common judge, each party has an equal right to judge for itself, as -well of infractions as of the mode and measure of redress." - -Let us examine this reasoning of the Kentucky resolutions. It is that -the States are united in a general government by a compact, called a -constitution, for special purposes, and when the government assumes -undelegated powers its acts are null and void. There is no objection to -calling the Constitution a compact for special purposes only, and -declaring that the government under it has no right to assume not -granted or undelegated powers, and that any such assumption is void and -of no force. - -The only objection to this first clause is the ambiguity in the -declaration that _the several States_ are united by compact. The -Constitution may be called a compact; but it cannot be denied that it -was between the people of the different States. It was not a treaty or -agreement made by the State Legislatures or State governments. - -In the second clause comes the objectionable clause, that the government -created is not the exclusive or final judge of the extent of the powers -delegated to it. - -We have already set forth that in this Constitution, or compact, which -is declared, by those who made it, supreme over all constitutions and -laws of every State, that all cases arising under the Constitution or -laws of the United States shall be tried by its judiciary.[66] Here is a -compact by the people of the several States, that when any questions or -cases arise the United States Judiciary shall have jurisdiction and -decide upon them. The parties to this compact have thus expressly made -that judiciary the final judge of the validity of the laws, and -therefore necessarily of the extent of power delegated to the -government. It cannot be denied that even independent sovereign nations -can establish a tribunal over themselves by arbitration or compact that -shall be conclusive. How then can the supremacy of the judiciary of the -United States be questioned by a State, whose people have deliberately -declared the United States Judiciary supreme over the State -constitution and laws, and that it has supreme judicial authority over -all cases arising under its Constitution and laws. - - [66] Article III., Sec. 1, of the Constitution. - -We must bear in mind that our Constitution and Government would have -been an absurdity and a failure, if every State, as an independent -authority, could question the validity of a United States law or the act -of any of its legal or administrative officers; four and forty different -State judiciaries to decide on what law was valid in each independent -sovereign State or Nation. As Webster and Chief-Justice Marshall said, -and Calhoun admitted, on every constitutional question this theory of -nullification gave as many vetoes as there are States. - -Admitting, however, for the argument, that the States are independent -sovereign nations, this nullification doctrine of the Kentucky -resolutions is very faulty. It asserts the right of those who deny the -binding obligation of the compact, to break it; it entirely ignores the -right of the other parties, even when of the majority, who hold to a -different construction, to enforce their view. In all compacts or -agreements between nations there is the right of the independent -sovereign nations, and emphatically when of the majority, to make -another independent nation perform the compact it has made. The majority -is not obliged to yield to the minority. The _ultima ratio_, the final -reasoning of nations is war, and the majority certainly have that -right. - -Jefferson himself asserted this right of a confederacy to coerce a -State, a party to an agreement, when he wrote to Cartwright that the -Confederate Congress should send a frigate and compel a State to pay its -quota. Washington was of the same opinion, when, in reference to New -Jersey's refusal to pay her contribution, he wrote, "that counties in -Virginia and Massachusetts might oppose themselves to the laws of the -State in which they are, as an individual State can oppose itself to the -Federal Government."[67] - - [67] Washington's letter to Dr. Wm. Gordon. Bancroft's _History of the - Constitution_, vol. i., p. 320, Appendix. - - See also in Jefferson's _Works_, letter to Madison, April 16, 1781, - approving of coercion by a party to a compact. - -The absurdity of the Kentucky resolutions[68] does not end with the -nullification theory. One would imagine the dispute would have been, who -did not write them, not who did. By the Constitution certain powers are -given to Congress, and the authority "to make all laws which shall be -necessary and proper for carrying into execution the foregoing powers." -The power to punish three offences only is mentioned, but that Congress -had the power to enact all laws necessary to enforce and maintain its -authority is expressly given, and never had been questioned before these -resolutions. - - [68] Kentucky resolutions, 4 Elliot, 540. - -The authority of Congress is often illustrated by referring to the power -given "to establish post-offices and post-roads." Under this brief -grant, Congress has passed laws punishing the robbing and obstructing -the mail, and breaking open letters, and has assumed the right of taking -of lands, and building post-offices, and doing everything requisite for -protecting, transmitting, and distributing mail matter. Congress has -also passed laws punishing the bribing of judges and of obstructing or -in any way interfering with judicial processes. In fact, it is difficult -to see how the government could go on without these powers to enforce -and maintain its authority. But this Kentucky Legislature resolved that -Congress had only the power to punish treason, counterfeiting the -securities and coin of the United States, and piracies and felonies -committed on the high seas, and offences against the laws of nations; -because the power to punish these three crimes was alone enumerated in -the Constitution. And it expressly enumerated two acts, one the Sedition -Law, and the other an act to punish forging or uttering counterfeit -bills of the Bank of the United States, "and all other their acts -('Congress') which assume to create, define, or punish crimes other than -those enumerated in the Constitution, are altogether void and of no -force"; that the States only had this power each in its own territory. - -The resolutions also arraigned the government for the sedition and other -acts punishing crimes, saying "that the General Government may place -any act they think proper on the list of crimes and punish it -themselves." It declared "that these and successive acts of the same -character may tend to drive these States into revolution and blood." It -will be noticed that the resolutions make no claim of a right of -secession. The use of the words revolution and blood implied that -resistance to the laws would be war. - -The resolutions also arraigned the government for the Alien Law, calling -it a tyranny, and asking the States to concur with them in considering -that the acts of the General Government were so unconstitutional that -they amount to an undisguised declaration "that the compact is not meant -to be the measure of the powers of the General Government, but that it -will proceed in the exercise over these States of all powers -whatsoever"; and they ask the States that they will concur in declaring -these laws void and of no force, and in requesting their repeal. The -resolutions did not call upon the people or State of Kentucky to treat -these denounced laws as null and void, but asked the other States to -join them in getting Congress to repeal them. - -For some reasons wholly incomprehensible, these nullifying resolutions -of Kentucky and those of Virginia have been seized upon and referred to -by late writers in the mistaken belief that they were the same, and are -alike declaratory of the right of a State, as an independent sovereign -power, to treat as null and void any United States law it deems to be -so, and with apparently the belief that they were concurred in to a -great extent at the time of their adoption.[69] - - [69] See vol. i., Bryce's _American Commonwealth_, p. 328. - -No one has suffered more than Madison from this error,--Madison, justly -called the father of the Constitution, who, when its adoption seemed to -depend upon the acquiescence of New York, and that State hesitated about -joining the Union and proposed to make a conditional acceptance, firmly -declared an acceptance was absolute and perpetual, who in No. 39 of the -_Federalist_, the work written for the purpose of setting forth the plan -of the new government, was no less explicit on the question of -nullification, and said: "It is true that in controversies relating to -the boundary between the two jurisdictions, the tribunal which is -ultimately to decide is to be established under the general -government.... Some such tribunal is clearly essential to prevent an -appeal to the sword and a dissolution of the compact, ... and it could -be safely established under the first alone,"--the General Government. -And who later in 1833 wrote to Webster in reference to his speech in -answer to Calhoun: "It crushed nullification, and must hasten an -abandonment of secession."[70] His biographers speak of his double -dealing in this matter, and even Mr. Hare, in his valuable commentaries -on the Constitution, passes the same judgment on his conduct.[71] - - [70] Bledsoe, _Is Jefferson Davis a Traitor_, p. 173. - - [71] There are several works on the Constitution by Story, Bancroft, - G. T. Curtis, and others, but none of them that we have seen, except - the recent work of Professor Hare, that ably treats the matter, has - taken up the question of nullification and secession. Apparently the - authors did not think such a claim could be made. Some editions - recently published have notes on this matter. - -But, besides Madison, the fair fame of the State of Virginia, to whom, -for its being, the nation owes the greatest debt of gratitude, should -not be tarnished by the taint of having so soon declared that the laws -of the United States and the acts of its officers could be held and -treated as null and void by every State that questioned their validity. -From Virginia came Washington, the great general under whose command we -became a nation, the presiding officer over the convention that made the -Constitution, and who as our first President inaugurated and put -successfully into operation the national government, assuming no -unauthorized powers. To Virginia also is due the plan of the new -government proposed in the convention by Randolph, and ably shaped and -developed by Madison and Mason. Nor can we overlook the great -Chief-Justice, Marshall, who for so many years and from its early -existence defined the powers granted to the government, and maintained -them with fairness and without encroachment on those of the States. - -In these famed resolutions the Virginia State Assembly, professing a -determination to maintain and defend the Constitution of the United -States and of the State, and a warm attachment to the Union, declared -that the powers of the Federal Government were limited by the plain -sense and intention of the instrument constituting the compact the -States are parties to, and that in a case of a deliberate, palpable, and -dangerous exercise by the Federal Government of other powers not granted -by the instrument of the compact between the States, it is the right and -duty of the States, the parties thereto, to interpose and arrest the -evil and maintain their rights. It asserted, with deep regret, that the -Federal Government had enlarged its powers by forced constructions of -the constitutional charter which defines them, and that there were -indications of a design to consolidate the States into one sovereignty -and to transform the government into an absolute or at best a mixed -monarchy; that particularly the Alien and Sedition Acts exceeded the -powers delegated by the Constitution, and were subversive of the general -principles of a free government, and were expressly and positively -forbidden by the Constitution; that the good people of this -commonwealth, with the truest anxiety for establishing and perpetuating -the Union, and with the most scrupulous fidelity to the Constitution, -appeal to the other States to concur in declaring the acts aforesaid -unconstitutional, and in taking the necessary and proper measures, in -co-operation with Virginia to maintain the rights reserved to the States -or people.[72] - - [72] Virginia's resolutions and explanations, 4 Elliot, 528, 529, 546 - to 580. - -It is to be borne in mind that the declaration of Virginia is, "that in -a case of a deliberate, palpable, and dangerous exercise by the Federal -Government of other powers not granted"--(that is, in the case of -usurpations), it is the duty of the States, not the duty of a State, to -interpose and arrest the evil and maintain their rights. Certainly in -such cases some power should interpose, and if States can legally under -the Constitution interpose to remedy such an evil, there can be no -objection to such interposition. Indeed a usurpation of powers might be -so plain and serious as to justify rebellion. - -There is apparently a belief amongst some writers since Von Holst -published his, so-called, _Constitutional History of the United States_, -that Virginia laid down the doctrine, that "States can interpose." As if -it had been declared there was a right of States to interpose their -authority and prevent the United States from enforcing its laws. It is -in case of _usurpations only_ Virginia claims that it is a duty and -right _to interpose to redress this evil_. There is no statement how -States should interpose; no suggestion that the method should be other -than in the way the Constitution sanctions. - -It is very much to be regretted that Mr. Henry Adams, in his very able -and interesting history of the United States, should have added his -great authority to this construction of the resolves. He says the -Republican and the Federalist parties "were divided by a bottomless gulf -in their theories of constitutional powers." "The Union was a question -of expediency, not of obligation: this was the conviction of the true -Virginian school and of Jefferson's opponents as well as of his -supporters, of Patrick Henry as well as of John Taylor of Carolina and -of John Randolph of Roanoke"; and "The essence of Virginian -republicanism lay in a single maxim--the Government shall not be the -final judge of its own powers." - -The resolutions of Virginia were understood by the other States as a -denunciation of the laws of Congress, not as an assertion of a right of -a State to interpose in their execution. Of the sixteen States, -ten--Hildreth informs us, a fact that seems to be now overlooked, -Maryland, Delaware, Pennsylvania, New Jersey, New York, Connecticut, -Rhode Island, Massachusetts, New Hampshire, and Vermont--answered and -condemned them.[73] The resolutions of seven of these ten are in -Elliot's _Debates_.[74] None of the other States supported them; indeed, -from Jefferson's and Madison's correspondence, they were afraid North -Carolina would also oppose them. The purport of the opposing -resolutions is well stated in the report of a Committee of the -Legislature of New York made in February, 1833, in the following words: - - "These resolutions were met by several of the State - Legislatures to whom they had been communicated by counter - resolutions protesting against them with much warmth, chiefly - on the ground that the act of a State Legislature declaring a - law of the United States unconstitutional was in itself an - unconstitutional assumption of authority, and an unreasonable - interference with the exclusive jurisdiction of the Supreme - Court of the United States; accompanied in some instances, with - severe denunciation against their disorganizing tendency." - - [73] Hildreth's _History of U. S._, vol. v., p. 296. - - [74] 4 Elliot, pp. 532-9. - -Some of the States argued the question of the constitutionality and -expediency of the Alien and Sedition Laws, and one State approved of the -able advocacy and demonstration of their validity and expediency by the -minority of the General Assembly of Virginia. - -Of the States, whose resolutions are in Elliot's _Debates_, two only, -New York and New Hampshire, mention the name of Kentucky. Apparently the -extreme viciousness of her doctrine escaped notice. In fact the -nullification doctrine, the right of each State to resist the execution -of United States laws, though asserted at the time by Kentucky, was -unnoticed or forgotten until brought to life again by South Carolina -thirty years afterwards. The right of secession was not suggested in the -resolutions of either Virginia or Kentucky. - -Nor did it appear that any one of the Senators or the Representatives of -Kentucky ventured to lay before their respective Congressional Houses -the nullifying resolutions of that State, notwithstanding the injunction -contained in them to that effect.[75] - - [75] Hildreth's _History_, vol. v., 296. - -Kentucky's Legislature answered the resolutions of the other States -regretting the unfounded and uncandid suggestions in them derogatory to -her, and then declared an attachment to the Union. The Legislature none -the less resolved, that the several States that formed the Constitution -were sovereign and independent, having the unquestionable right to judge -of infractions, and that in such a case nullification was the rightful -remedy. The ending is not however that they nullify, but "this -Commonwealth does now enter against them" (the Alien and Sedition Laws) -"its solemn PROTEST."[76] The protest in capital letters: and that is -all the State did. - - [76] 4 Elliot, 545. - -We come again to the Virginia resolutions. When that State, in answer to -her resolutions, received the indignant remonstrances of her sister -States, she felt obliged to defend her position. That defence was made -at great length in her General Assembly held the next year, 1799, by -Madison, the author of the resolutions and the chairman of the committee -to whom the communications of the other States had been referred. The -report which was adopted by the assembly, coming from Madison, the -principal constructor of the Constitution, should give no countenance to -nullification and secession. Upon examination it will be found that -there is none. - -It begins with the very conciliatory and dignified statement that, -though there might be painful remarks on the spirit and manner of the -proceedings of the States who disapprove of the resolutions of Virginia, -it is more consistent with the dignity and duty of the General Assembly -to hasten an oblivion of every circumstance diminishing the mutual -respect, confidence, and affection of the members of the Union. - -The explanatory report takes up, first, the resolution to maintain and -defend the Constitution of the United States and the warm attachment of -Virginia to the Union, and justly says no one can object to this. - -The report next notices the assertion that the powers of the Federal -Government, as resulting from the compact to which the States are -parties, are limited by the plain sense and intention of the instrument -constituting that compact. This is merely, the powers of the United -States come from and are limited by the Constitution. - -The report goes on and says the compact is the Constitution, to which -the States are parties. Then is defined what is meant by States. States -sometimes mean territories occupied by the political societies within -them, sometimes those societies organized into governments, and, "lastly -it means the people composing those political societies in their -highest sovereign capacity." It says all will concur in the -last-mentioned, "because in that sense the Constitution was submitted to -the States, in that sense the States ratified it," and in that sense -they are parties to the compact from which the powers of the Federal -Government result. Now, not forgetting it is the States, the people, -that are parties, is not this a declaration, an explicit one, that the -people of the several States made the Constitution, and not one -independent sovereign State with other independent sovereign States? - -Then the report further says that the Constitution was formed by the -sanction of the States, given by each in its sovereign capacity. Taking -the definition of States as before given, this is merely an assertion -that in each State the people, who have the sovereign capacity, -sanctioned it. After this comes the rather obscure, and possibly -objectionable, doctrine. "The States," meaning the people, "then, being -the parties to the constitutional compact, and in their sovereign -capacity, it follows of necessity that there can be no tribunal above -their authority to decide, in the last resort, whether the contract made -by them be violated, and consequently that as the parties to it they -must themselves decide in the last resort." - -It is to be noticed that the resolution carefully limits the decision of -the people or States to "in the last resort." It does not define when -the last resort occurs. But the resolution (what the report is -commenting on) is, "that in case of a deliberate, palpable, and -dangerous exercise of other powers not granted by the said -compact"--that is, in cases of deliberate, palpable, and dangerous -usurpation--there is a right of the parties to the compact or government -to decide, to act, to resist that usurpation. This is a declaration of -the right of revolution; it is an assertion of that right in the last -resort,--when argument and reasoning fail; a right that Webster -admitted; the right that we the colonies claimed against Great Britain; -the right of resistance against deliberate, palpable, dangerous -usurpations of power; otherwise there is no redress for tyranny. No one -denies this right. If unsuccessful, it is rebellion, and punished as -such. So carefully, however, did Virginia assert this right that the -explanatory report itself calls attention to "guard against -misconstruction." The interposition is not only to be in cases of -deliberate, dangerous, and palpable breaches of the Constitution, but -"to be _solely_ that of arresting the progress of the evil of -_usurpation_." The resolutions do not even claim that in case of -usurpation _the binding compact of the government is broken up_, but -that the parties to it, which it has stated to be the people, should -solely interfere to arrest the evil. The report proceeds with the -statement that if there could be no interposition from _usurped_ powers -there is a subversion of rights recognized under State constitutions, -and a denial of the fundamental principle upon which our independence -was declared. - -The report admits as true, "that the judicial department is in all -questions submitted to it by the forms of the Constitution to decide in -the last resort." We have only to turn to the Constitution to see how -extensive is this submission. It is in all cases arising under the -Constitution and the laws made under it, in all cases in which States -are parties, in all cases where treaties or the United States are -concerned that it has this supreme power of judgment. This is precisely -the contrary doctrine to that of nullification. - -The explanation further proceeds that it is in the last resort, "in -relation to the authorities of the other departments of the government, -and not in relation to the rights of the parties to the constitutional -compact, from which the judicial as well as the other departments, hold -their delegated trusts. On any other hypothesis, the delegation of -judicial power would annul the authority delegating it; and the -concurrence of this department with the others in usurped powers, might -subvert forever, and beyond the possible reach of any rightful remedy, -the very Constitution which all were instituted to preserve." Perhaps it -may not be amiss to notice that all judicial power is over the rights of -the parties delegating it, the parties to the compact establishing the -government. The delegation is not confined to power over the authorities -of the other departments of the government, and the delegation of -judicial power does annul the authority delegating it as far as the -power delegated extends. It does not delegate usurpation of powers, nor -does it prevent revolution against usurped powers. This is what the -explanation means. But why the exception as to the other departments of -government? Usurpation by the judiciary over the other departments is -contrary to the conferred powers, and thereby affects the rights of the -parties to the compact. It is beyond what they delegate. Such usurpation -could very properly be resolved against: even more, resisted "in the -last resort." - -Then comes the assertion: "The authority of constitutions over -governments and of the sovereignty of the people over constitutions are -truths which are at all times to be kept in mind, and at no time -perhaps, more necessary than at present." - -As people make constitutions for the sole purpose of conferring powers -to governments over themselves which are to be superior and to compel -obedience, and punish those refusing it; and as the people always have -the power to make new constitutions or to amend them under the -regulations they have established; the suggestion of superiority seems a -glittering generality, at that time rather out of place. - -The explanation then defends the assertion in the resolutions, that -these assumptions of powers, extending the sovereignty of the United -States, supersede the sovereignty of the States in the cases reserved to -them, and that its result "would be to transform the republican system -of the United States into a monarchy." This fear that the government -would by assuming undelegated powers end in a monarchy was the objection -to the Constitution made in the convention that formed it, and in the -conventions of the people of the different States when they adopted it. -And in the Virginia resolutions it is said to be "the general sentiment -of America." It is further argued this great assumption of increased -prerogative and patronage of the President might enable him to secure -his re-election and regulate the succession and establish it as -hereditary. This fear of that day to us seems absurd; but in the days of -George the Third, and not so many years from the Stuarts, it had a more -plausible foundation. - -The explanation further says, and it is in fact an admission of its -truth, "that it has been stated that it belongs to the judiciary of the -United States and not to the State Legislatures to declare the meaning -of the Federal Constitution." "But a declaration that proceedings of the -Federal Government are not warranted by the Constitution is a novelty -neither among the citizens nor among the Legislatures of the States." - -The report then takes up and undertakes to defend the resolve, that the -government has manifested a spirit to enlarge its granted powers by a -forced construction of the Constitution. It instances especially the -Alien and Sedition Laws, and declares the Alien Law to be -unconstitutional, because it gave the President legislative and judicial -powers in addition to those of the Executive. The Act, it says, enabled -him to send out of the country, in times of peace, aliens, citizens of a -friendly nation whom he should judge dangerous to the public safety or -suspect of treacherous or secret machinations against the government, -giving him thus legislative power, making his will the law. He also is -the judiciary; without the oath or affirmation of an accuser, his -suspicion the only evidence to convict; his order the only judgment to -be executed. And this order may be so made as to deprive the victim of -the privilege of the _habeas corpus_. - -The Sedition act was also claimed to be beyond the power of Congress for -many reasons, and emphatically because it punished by fine and -imprisonment false, scandalous, and malicious writings against the -government; thus abridging the liberty of the press, the provision in -the amendments of the constitution for which Virginia had been so -strenuous. - -In conclusion and in relation to these resolves the report says, nor can -declarations either denying or affirming the constitutionality of -measures of the government be deemed, in any point of view as assumption -of the office of the judge. They "are _expressions of opinion -unaccompanied with any other effect_ than that they may produce an -opinion by exciting reflection." They "may lead to a change in the -legislative expressions of the general will--possibly to a change in the -opinion of the judiciary."[77] - - [77] 4 Elliot, 578. - -"And there can be no impropriety in communicating such a declaration to -other States," "and inviting their concurrence in a like declaration." -Then it speaks of the legitimate rights of States to originate -amendments to the Constitution; that it was not improper or -objectionable in Virginia to ask the States to take "the _necessary and -proper measures_" to maintain the rights reserved to the States or -people; and that if the other States had concurred, "it can be scarcely -doubted these simple measures would have been as sufficient as they are -unexceptionable." This is a statement that the resolutions were a mere -matter of opinion and that the laws complained of were unconstitutional, -and if the other States had been of the same opinion, the States might -have constitutionally remedied the evil. - -Again is a repetition of the warm affection of the people of the State -to the Union, and the explanation calls to remembrance the part the -State had borne in the establishment of the "National Constitution," and -subsequently of maintaining its authority without a single exception of -internal resistance or commotion, and a declaration that the people of -Virginia must be above the necessity of opposing any other shield to -attacks on their national patriotism, "that the resolutions themselves -are the strongest evidence of attachment both to the Constitution and -the Union." "And as the result of the whole," they adhere to their -resolutions and "renew their protest against Alien and Sedition acts as -palpable and alarming infractions of the Constitution." Madison in a -letter to Edward Everett informs us the words, "not law but utterly -null, void, and of no force or effect," which followed the word -"unconstitutional" in the resolutions as to the Alien and Sedition laws, -were struck out by consent, and also that, "the tenor of the debate -discloses no reference whatever to a constitutional right in an -individual State to arrest by force the operation of a law of the United -States."[78] - - [78] Madison's letter to Everett, before referred to. Oct. No. _N. - Amer. Review_, 1830. - -These resolutions and the explanation--Virginians always put them -together--were nominally the political creed of the republican party -that so long ruled the United States. They were a denunciation--perhaps -a partisan one--of alleged unconstitutional laws made by the federal -party in the administrations of Washington and Adams, and expressed a -belief, which few to-day will say was warranted, that there was a -design in them to transform the government into an absolute or at best a -mixed monarchy. - -The methods to arrest the evils of these alleged unconstitutional -assumptions of undelegated powers were stated to be authorized by the -Constitution itself. And by the concurrence with Virginia of the other -States to whom the resolutions were submitted, they, the States, might -remedy the alleged evils by their representatives in Congress or by the -choice of Senators of different opinions; there were to be, the Virginia -explanation said, no less than two Congresses before the laws expired by -their limitation; or if necessary, the explanation further said, the -States by a convention could alter the Constitution. - -The resolutions are those of strict constructionists of the powers -granted by the Constitution; they in no way assert the nullification -doctrines of Kentucky, which some thirty years afterwards were revived -and developed to their logical result of secession by Calhoun and South -Carolina. - -The prosecutions under the Sedition law, the arresting and carrying -through the country and the fining and imprisoning as criminals, for the -expression of opinions, of men whom the Republicans held as eminent and -respectable, such as Thomas Cooper, Jefferson's dear friend, had very -great influence in the defeat of the federal party under the elder Adams -and of the triumph of Jefferson and the Republicans. - -The resolutions of Virginia alarmed Washington as exhibiting a -discontent with the Union. He wrote to Patrick Henry, one of the -Virginians Henry Adams names, to induce him to interpose his great -influence in the matter.[79] Henry, whose impassioned eloquence had done -so much to bring Virginia into the war of the revolution, who ably and -persistently opposed in the Virginia convention the acceptance of the -Constitution from fear that the great powers given to the United States -would be fatal to liberty, had become one of its strongest supporters. -He shared Washington's anxiety. Though he had often been Governor of the -State, and had declined offers of the most important national offices -under Washington, he offered himself as a candidate for election to the -House of Burgesses, to do what he could to put an end to this discontent -and what he considered the rash measures of the State. In his speech -before his constituents, he declared that Virginia had quitted the -sphere in which she had been placed by the Constitution in daring to -pronounce upon the validity of federal laws, and asked, "whether the -county of Charlotte would have any authority to dispute an obedience to -the laws of Virginia, and he pronounced Virginia to be to the Union -what the county of Charlotte was to her."[80] Nor did he believe that -resistance would be peaceful; for he warned the people that the -opposition of Virginia to the acts of the General Government must beget -their enforcement, and that war would ensue with Washington and a -veteran army as opponents. It was the period of our hostility with -France, and Washington had been made commander-in-chief. Henry was -chosen to the House of Burgesses by a large majority, but died before -the session began in which Virginia's conciliatory explanation of her -resolves and her loyalty and attachment to the Union and the supremacy -of those laws in all delegated powers was made. - - [79] Washington's letter to Henry, Sparks' _Washington_, vol. xi., p. - 387. The letter also contains his opinion of those in opposition to - the government. - - [80] Wirt's _Life of Patrick Henry_, pp. 393, 394. Moses Coit Tyler's - _Life of Patrick Henry_, p. 373. - -The other two distinguished Virginians whom Mr. Adams mentions, are John -Taylor of Caroline and John Randolph of Roanoke. Taylor, a great friend -of Jefferson's, in 1823 published a book called _New Views of the -Constitution of the United States_. Of so little importance, so little -known, were the Kentucky resolutions then that he does not cite them, as -far as we can find from our examination, which we do not claim to be -thorough. In the preface he speaks of his "survey as not devoid of -novelty." He controverts at great length the opinions of Hamilton and -Madison, as given in the _Federalist_ and a pamphlet published in South -Carolina with similar views, called _National and State Rights -Considered by One of the People_. His views of the Constitution are, as -he says, new. He advances the doctrine that in a conflict between the -laws and measures of the State and General Government neither shall -prevail, but substantially the State should, unless three fourths of the -States by an amendment of the Constitution should decide otherwise. - -John Randolph of Roanoke was notorious for his eccentricities and -vagaries, his attacks on all parties and all policies; if he had any -opinion it was probably, as he said, that the Virginia resolutions and -their explanations were "his political Bible." What the resolutions and -explanations are we have endeavored to set forth. - - - - -CHAPTER V. - -SUPREMACY OF CONSTITUTION MAINTAINED. - - -In less than the brief space of two and a half years after the Kentucky -resolutions were passed Jefferson became President. If he believed in -those resolutions he should at once have made a general jail delivery. -All those in prison under United States laws for counterfeiting or -forging United States bank bills, robbing or embezzling from the mail, -violating the custom-house laws, interfering with the judicial -proceedings of the government, or committing any crime, except the few -mentioned in the Constitution, should have been set free (for the -Kentucky resolutions expressly denounced all the United States laws -punishing those crimes "as altogether void and of no force"). Jefferson -contented himself with pardoning those imprisoned under the Sedition -laws. - -In his inaugural address to Congress, at the very beginning of his -administration, Jefferson announced principles totally and fundamentally -opposed to the Kentucky resolutions. He pleaded for unity, and denied -that every difference of opinion was a difference of principle. "We are -all Republicans; we are all Federalists."[81] He declared "the -preservation of the general government, in its whole constitutional -vigor, as the sheet-anchor of our peace at home and safety abroad." He -also said "absolute acquiescence in the decisions of the majority, the -vital principle of republics from which there is no appeal but to force, -the vital principle and immediate parent of despotism."[82] Can anything -be more directly opposed to the Kentucky resolutions, that give to every -State a veto of every United States law or act that it deems -unconstitutional, than these declarations of the preservation of the -government in all its constitutional vigor and of _absolute acquiescence -in the will of the majority_? Have they not been, ever since that -inauguration day, the cardinal principles of Jeffersonian democracy? -Perhaps it is strange that Jefferson, coming from Virginia, did not make -the exception of the resolutions of the Legislature of that State, that -in case of plain palpable usurpation of powers the people of the States -could interpose to redress the evil by constitutional methods. Absolute -acquiescence in every decision of the majority abrogates even the right -of rebellion against oppressive usurpations that Webster announced. It -is but reasonable to suppose that Jefferson would have made this -exception of Webster's and the reasonable affirmations of the Virginia -resolutions, if he had been obliged to notice them. No possible -argument, however, can reconcile these inaugural principles with the -Kentucky resolutions. Is it possible that the great leader of the -Republican party could have announced such doctrines if the Republican -party of Virginia, of which he was the chief, held precisely the -contrary, as Mr. Adams informs us? - - [81] H. Adams, vol. i., p. 200. - - [82] H. Adams, vol. i., p. 203. - -Jefferson's policy during the eight years of his administration was -emphatically national, and not that of a favorer of State rights nor -even of a strict construction of the powers delegated to the General -Government. In March, 1806, he signed an act laying out and making a -road from Cumberland, on the Potomac, in Maryland, to Ohio. Again he -approved a bill for this purpose in 1810, though from his writings it is -apparent he doubted their constitutionality. Madison, Monroe, and -Jackson afterwards vetoed bills passed by Congresses of their political -faith in favor of this or other roads, because, as they declared, they -were beyond the powers granted by the Constitution. - -During Jefferson's administration a serious controversy between the -United States and the great State of Pennsylvania as to the national -powers of the government came to a crisis. During the revolutionary war -the sloop _Active_, bound for New York with a cargo of supplies for the -British, was taken from her master by Gideon Olmstead of Connecticut -and three men, who had been impressed by the English and put on the -vessel to assist in her navigation. An armed brig of Pennsylvania took -the _Active_ from Olmstead and his associates and brought her into the -port of Philadelphia. The State Admiralty Court of Pennsylvania tried -the case by a jury according to the State laws, awarding to Olmstead and -his companions only one quarter of the prize money, and distributing the -remainder to the State, and those interested in the brig taking the -_Active_ and a companion vessel. An appeal was made by Olmstead from the -State court to the Continental Congress as the power that had control of -the maritime affairs of the revolting colonies. Congress very properly -insisted on its jurisdiction over such cases. The Admiralty Court of -Pennsylvania, disregarding this right, ordered the sloop and cargo to be -sold, and distributed the proceeds; the Continental Congress, not having -the power to enforce its rights, let the matter pass. Some years -afterwards, when our new government had gone into effect, Olmstead filed -his libel before the United States District Court of Pennsylvania and -obtained a decision in his favor reversing the decree of the -Pennsylvania court. Judge Peters, of the United States District Court, -hesitated to enforce this decree against Pennsylvania, wishing to obtain -the sanction of the Supreme Court of the United States. A mandamus was -issued by the Supreme Court directing its district court to enforce its -decree, Chief-Justice Marshall saying that if a State could annul the -judgment of a United States Court the Constitution itself became a -solemn mockery. "The State of Pennsylvania can possess no constitutional -power to resist the legal process which may be directed in this case." - -The State of Pennsylvania did resist and did pass laws and make military -preparations to enforce them. Here was a clear case of conflict between -a State and the United States as to the powers the State had given, and -where, according to the Kentucky resolutions, and according to -Jefferson, if he were the author, the State, as a party to the compact -of government, there being no umpire, could lawfully resist and insist -on the construction it gave to the case. While this conflict was -pending, the Republican party, which was predominant in the United -States Congress, both House and Senate, in order to enforce the -authority of the United States and the decision of its Court, passed an -act authorizing the President, in cases of insurrection or obstruction -to the law, to employ such part of the land and naval force of the -United States as shall be judged necessary. Jefferson signed this act in -1807, thus sanctioning the compelling of the obedience of a State to the -General Government. - -It is to be observed that this took place in a case where the dispute -was as to the jurisdiction of the United States in a case between a -State court and the authority of the old Confederate Government. The -party of which Jefferson was the chief could have refused to enforce the -decision of the Supreme Court on what seems a plausible ground, that the -Constitution gave no power to the United States over the disputes -between the old Confederacy and the States; but neither Congress, nor -Jefferson by a veto, did this. They enforced the nationality of the -Confederacy and of the United States Government as its successor. - -The carrying out of the decree of the United States Court was resisted -by the Pennsylvania State militia under General Bright, who had been -called out by the Governor under the sanction of the Legislature; the -United States marshal summoned a posse of two thousand men, and war was -imminent. Madison had now become President, and the Governor appealed to -him to discriminate between a factious opposition to the laws of the -United States and resistance to a decree founded on a usurpation of -power; but Madison replied that he was specially enjoined by statute to -enforce the decrees of the Supreme Court. The State yielded, and also -paid the money necessary to carry out the decree of the United States -Court. General Bright and his men were brought to trial for forcibly -obstructing the United States process, and were convicted and sentenced -to fine and imprisonment. Madison pardoned those convicted, and -remitted the fines on the ground that they had acted under a mistaken -sense of duty.[83] - - [83] A full account of this case, though well known and reported, is - not to be found in the histories. The case was referred to as the - Gideon Olmstead case in the debates in Congress at the time of South - Carolina's threatened nullification in 1833. The account of the trial - of General Bright is taken from Carson's _History of the Supreme Court - of the United States_, p. 213 and _seq._ - -Nor is this all of this matter. Pennsylvania, though finally yielding an -obedience to the United States, felt aggrieved, and suggested an -amendment to the Constitution, that questions arising between States and -the federal judiciary should be submitted to an impartial tribunal, and -sent the proposed amendment to Virginia. - -The Legislature of Virginia appointed a committee to consider this -proposed amendment, part of whose report was, "that a tribunal is -already provided by the Constitution of the United States, to wit, the -Supreme Court, more eminently qualified, from their habits and duties, -from the mode of their selection, and from their tenure of office, to -decide the disputes aforesaid in an enlightened and impartial manner -than any other tribunal that could be created." The resolutions -disapproving the proposed amendment were passed _unanimously_, both in -the House of Delegates and Senate.[84] Thus in January, 1810, only ten -years after her own resolutions and explanations, Virginia, instead of -giving countenance to the nullification doctrine of Kentucky, and -replying to Pennsylvania that, as a State, a party making the compact, -you have a right to judge whether the United States exceeds its -authority, declared that a fit tribunal for the trial of questions -between the States and the United States existed in the Supreme Court of -the United States, and that a better one could not be created. This -should be conclusive that Virginia republicanism in no way countenanced -nullification. - - [84] Webster's _Speeches_, 8th ed., 1850, vol. i., pp. 427, 428. See - part of report and resolutions of Virginia in Mr. Pinckney's argument - in Cohens _vs._ Virginia, 6 Wheaton, Rep., 264. - -Immediately after the commencement of his administration, Jefferson, and -Madison, the Secretary of State, entered into negotiations with France -for the acquisition of the province of Louisiana and the immense -territory belonging to it. The purchase was completed early in 1803, and -by it and for all time the power of the old States in the Union was -diminished. Even a liberal constructionist might have hesitated as to -its constitutionality. Jefferson himself had his doubts. Neither he, -however, nor any of his party took any measures to have an amendment of -the Constitution to sanction it. It was indeed a measure of vital -necessity, and acquiesced in by the people of all the States as such. - -In the national convention Gouverneur Morris said that the fisheries and -the Mississippi were the two great objects of the Union.[85] -Negotiations with Spain with reference to the navigation of the -Mississippi were constantly before the Congress of the Confederacy in -1787, this river being the only outlet for the products of Kentucky, -Tennessee, and of parts of Western Virginia and Pennsylvania, as well as -of the great then unsettled country beyond. There was a fear that the -inhabitants of this western territory might ally themselves with Great -Britain, because of her power to compel Spain to grant the right of way -to the sea; for it was recognized that the inhabitants of that country -would and must be a part of the power that held the mouth of the great -river. More than this, the Constitution itself provides for the -admission of new States, and the annexation of Canada had been -contemplated in the articles of the Confederacy. - - [85] 5 Elliot, 526. - -Josiah Quincy's speech, in 1811, when the admission of Louisiana as a -State came up, is often quoted by Southern writers as justifying -secession. He said: "If this bill passes, it is my deliberate opinion -that it 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." - -This declaration does not contain any claimed right of a State as a -party to a compact to judge whether it has been broken, or of a -sovereign State to secede. It is an assertion that the government or -nation was so changed by the annexation of Louisiana as a State, from -territory formerly no part of the Union, that the other States had a -right to break it up. This opinion was not concurred in by the Governor -or Legislature or State of Massachusetts, which assented to the -admission of Louisiana.[86] Quincy's declaration contains no assertion -of the sovereignty of a State, or right to secede at will. It admits -that separation, unless assented to, must be by force. - - [86] H. Adams' _History_, vol. v., p. 326. - -It is impossible to reconcile the doctrine of the Kentucky resolutions -with those of Jefferson in his inaugural and with his whole policy -during his term as President. They are fundamentally different. It must -be remembered that his authorship of the Kentucky resolutions was not -then known. - -There are many followers and admirers of Jefferson who maintain that he -did not take the same view of the Kentucky resolves as the nullifiers of -South Carolina. Robert J. Walker, the distinguished financier and -Secretary of the Treasury in Polk's time, in an article on nullification -and secession, in the February number of the _Continental Monthly_, -published at Philadelphia in 1863, gives what he alleges are Jefferson's -views, and says that they were opposed to nullification and secession. -Indeed, the Kentucky resolves do not claim the right of secession; they -do not follow out their premises to its logical conclusion. They do not -declare or recommend that the State should treat the Alien and Sedition -laws as null and void, though in their reply to the other States they -say a nullification is "the rightful remedy." They carefully let it be -known they only protest. That Jefferson did not carry this theory of the -Kentucky resolutions to the right of secession, is perhaps shown by his -correspondence when the acceptance of the Constitution was pending in -Virginia. Even at the time of the Kentucky resolutions he speaks of the -"scission" of the States, and about 1820, during the period of the -Missouri dispute, he again alludes to the "scission," if it should come, -as geographical. He would hardly have used this word, implying a cutting -or tearing asunder, if he had believed in a right of secession. - -Jefferson had not the cool, dispassionate judgment of Washington. He was -a violent partisan. He believed the federalists were striving for a -monarchy; he spoke of the great Chief-Justice Marshall, when he -disagreed with a decision made by him, as a sly old fox. Both Jefferson -and Madison were displeased with the rulings of Marshall on the trial -of Burr for treason. The reason of their displeasure was the strict -construction the Chief Justice gave to the law punishing that offence, -not the too liberal wielding of the judicial powers. The enactment of -the Alien and Sedition laws and their enforcement were to Jefferson -outrageous violations of liberty, and of the very amendments to the -Constitution for which Virginia and Massachusetts and New York had been -so persistent. He believed that the federal party was determined to -keep possession of the government by crushing out the freedom of the -press and the people. To oppose this, to prevent what he thought was a -tyrannical abuse of authority with the intent of perpetuating itself, -he was willing to put to question the fundamental authority of the -government to pull down the whole structure. He found that his own -State, Virginia, did not acquiesce in the doctrines of Kentucky. By a -letter of his of the date of November 17, 1798, it appears he sent a -draft of the Kentucky resolutions to Madison, saying that we should -distinctly affirm all these important principles, not however stating -that he was the author. When he came into power, if he thought of the -matter at all, he must have seen that the practice of nullification -would be the end of all United States government. What these resolutions -actually were had apparently not been understood by the other States. -Madison, his Secretary of State, who always maintained the supremacy of -the General Government, was his dear friend and undoubtedly then, as in -after years, his adviser. Nor was his change of principles, if there -were any change, more strange than his change of dress. Mr. Adams tells -us he began his administration by receiving the gorgeously dressed -foreign ministers in his threadbare coat, old much soiled corduroy small -clothes, faded by many washings, and slippers without heels; for these -clothes he afterwards substituted a dress of black, clean linen, and -powdered hair. Is it Carlyle that says that clothes and principles are -the same--that they make the man? - -That Jefferson ever afterwards believed in the nationality of the Union, -is shown by his administration and correspondence, and made evident by -his acts in the crowning work of his life, the establishing of the -University of Virginia. That he was the founder, he directed should be -inscribed on the monument over his grave. In Charlottesville, where the -mountains of the Blue Ridge come down to the plains that stretch many -miles to the sea, was Monticello, Jefferson's charming home, the seat -of his unbounded hospitality, and close to that of Madison. Near by -amongst the rolling hills, most picturesquely placed by the direction -of Jefferson, are the pleasing colonnaded buildings of the University, -planned by his own hand. It is the University's boast, but questioned by -Harvard College, that Jefferson introduced there the system of elective -studies, that is now spreading so widely. There were but four things -that Jefferson declared should be obligatory to the University: one was -the study of the _Federalist_,--the work of Hamilton, Madison, and Jay, -expounding the national doctrines of the founders of the Republic, with -no countenance of those of the Kentucky resolutions. To-day Jefferson's -directions are observed, and the _Federalist_ remains the text-book.[87] - - [87] See No. LXXX. of the _Federalist_ for Hamilton's clear and able - statement of the powers of the judicial department. He says it is a - political axiom, that the judicial power of a government should be - co-extensive with its legislative, and that the government should and - did have the power over States and their judiciary in all cases - arising under the Constitution and United States laws. - -No President until Lincoln, save perhaps Madison in his first -administration, had so troublesome a time as Jefferson in his second -term of office. The rights of the United States, a small, weak power, -were not only disregarded by England and France in their deadly -struggle, but decrees were issued confiscating property and vessels -engaged in what by the laws of nations is now universally held to be a -lawful trade. Great Britain impressed sailors from American vessels, and -one of her men-of-war arrogantly fought and captured a smaller United -States frigate, killing and wounding many of her crew, and taking from -the disabled ship her claimed subjects. - -Jefferson's great panacea to cure these evils and to bring England -and France to respect and grant our rights was the forcing of -non-intercourse on the high seas between the United States and all -foreign countries--an embargo on all shipping. By virtue of the power -in the Constitution to regulate commerce, Jefferson and his party -destroyed it. The vessels were left rotting at the wharves, and -ship-building and the many industries depending upon it and the sale of -the products of the country abroad were stopped. The New England States -suffered particularly by this arbitrary decree; they had an extensive -and flourishing neutral commerce; their merchants had amassed great -wealth. They, as Mr. Webster said, brought the matter to trial before -the United States Court; the case was decided against them, and they -submitted. No Northern State passed any resolutions affirming the -doctrine of its sovereignty and its right to judge of what seemed to -many "a deliberate, palpable, and dangerous exercise of powers not -granted" by the Constitution. Instead of asserting sovereignty to judge, -the Massachusetts Legislature passed in 1809 a resolve proposing an -amendment of the Constitution prohibiting the laying of an embargo -beyond a limited period. The measure failed because of not obtaining the -consent of the other States. - -It is always to be carefully borne in mind that the declarations of -Quincy, Pickering, and Griswold, brought forward by Southern writers, -favoring or threatening a separation, were never made on the ground of -the sovereignty of a State and its right to secede. The doctrine of -those who held the most extreme opinions was that the policy and acts of -the general government were so tyrannical and oppressive that the -eastern commercial States were justified in rebellion and in separating -themselves from the more southern States, where the political party was -dominant, that had most grievously oppressed and impoverished them and -annihilated their commerce in a futile attempt to injure Great Britain. -This was not a claim of right to leave the Union and dissolve it at -pleasure. Indeed, when the leaders went too far in their discontent, the -people of the Eastern States would sometimes elect governors and -representatives of the Republican party. The spirit of loyalty to the -Union and the love of a common country would always spring up and assert -itself when it came to the question of disunion and treason. - -Towards the close of the war of 1812 there was great discontent at the -failure of the government to repel the English forces from Maine, then a -portion of Massachusetts. Troops raised in that State were sent to the -defence of our more western Canadian boundary. Beyond the discontent, -there was some disloyalty. At this time the Hartford convention was -called by Massachusetts. That convention did not even pass resolutions -of hostility to the Union. The convention was called to devise means of -security and defence "not repugnant to their obligations as members of -the Union," and, according to Mr. Lodge, Josiah Quincy was not made a -delegate by reason of his extreme views.[88] The convention neither -asserted nor suggested nullification or secession, but _proposed -amendments to the Constitution_. Its recommendations were of no -particular importance.[89] The only persons who were affected by its -doings were the members, who ever afterwards suffered politically from a -taint of disloyalty. Peace soon came and terminated the oppressive -grievances and removed the discontent. - - [88] Lodge's _Life of George Cabot_, p. 518. - - [89] _History of Hartford Convention_, by Theo. Dwight. - -Not only as stated in the beginning of this article is the Hartford -convention with the Kentucky and Virginia resolutions brought forward by -Mr. Lodge in proof of the weakness of the Union, but Southern orators -and writers delight in referring to that convention in justification of -nullification and secession. We have the journal of the proceedings, of -the motions made and votes passed. Is it not the strongest proof -possible of the universal belief in the nationality of our government -that nobody, in that body of malcontents, suggested that any right -existed to refuse an obedience to the laws and policy of the -administration they deemed so oppressive? - -After the purchase of Louisiana came that of Florida, also enlarging the -territory of the Union and curtailing the relative power in it of each -of the old States. The charter of a second United States Bank was -granted by the party that in the first Congress had opposed it and -claimed to be strict constructionists of the Constitution. Madison -justified his assent on the ground of the general approval and the -opinion of the Supreme Court establishing its constitutionality.[90] -Historically there is no attempt to maintain, no assertion of, the -doctrine of the Kentucky resolutions from the time they were passed -until the debate in the Congress of 1830. The only trace of them is in -the resolutions frequently passed by the Legislatures of States, which -are mere opinions beyond their legislative powers, that certain laws of -the government were unconstitutional and therefore null and void. If -unconstitutional, they were and are null and void, but no State ever -treated them as null and void. The United States Government, by its -judiciary, however, took cognizance of all State laws in conflict with -its laws and authority, and maintained uniformly its national supremacy. - - [90] Madison's letter, 4 Elliot's _Debates_, 615. - - - - -CHAPTER VI. - -CALHOUN, JACKSON, AND NATIONAL GOVERNMENT. - - -In 1811, John C. Calhoun of South Carolina, a young man not of the age -of thirty years, took his seat as a member of the national House of -Representatives, and at once became a leader in public affairs. He was -one of the Committee on Foreign Relations. On the 12th of December he -said what was the road the nation should tread "to make it great and to -produce in this country not the form but the real spirit of union."[91] -In March, 1815, he voted for a high tariff and said: "He believed the -policy of the country required protection to our manufacturing -establishments."[92] He also reported the bill to incorporate a United -States Bank, and supported it in a speech on its constitutionality.[93] -Webster, on the contrary, opposed the tariff bills, not however on the -ground of their unconstitutionality. In December, 1816, Calhoun moved -"that a committee be appointed to inquire into the expediency of setting -apart a permanent fund for internal improvement"; on December 23d, he -reported a bill setting aside the bonus paid by the United States Bank, -$1,500,000 and future dividends from bank stock, "as a fund for -constructing roads and canals."[94] In his speech supporting it he said: -"that the extent of our republic exposes us to the greatest of all -calamities, next to the loss of liberty, and even to that in its -consequences, _disunion_." "Probably not more than twenty-five or thirty -members, in the total number of one hundred and seventy, regarded the -constitutional difficulty as fatal to the bill."[95] Madison, however, -consistent and persistent in his strict construction of the -Constitution, vetoed it. - - [91] H. Adams, vol. vi., p. 143. - - [92] H. Adams, vol. ix., p. 115. _Annals of Congress_, 1815-1816, p. - 1272. - - [93] H. Adams, vol. ix., p. 116. - - [94] H. Adams, vol. ix., p. 148. - - [95] See H. Adams, vol. ix., pp. 149 to 153, for debate and Calhoun's - views. - -In 1819 and 1820 came the admission of Missouri and the struggle over -the extension or restriction of slavery. The Southern statesmen feared -that the South was losing its relative importance in the Union. Even -those of Virginia, who had formerly been opposed to slavery, now took -the opposite view, and the Legislature of that State passed resolutions -for the admission of Missouri with slavery. The increase in the -production of cotton had made the raising of slaves profitable. The -controversy was settled by the bill called the Missouri Compromise, -admitting Missouri with slavery, and excluding slavery from all the -rest of the country west of that State and north of 36 deg. 30', the -southern boundary of Missouri. This was the first important controversy -dividing the States geographically. It was the division that Mason, -Madison, and others foresaw in the convention that made the -Constitution; not a combination of the great States against the small, -but geographical, between the South and the North, the planting and -commercial States, and, underlying this and more potent, the institution -of slavery repugnant to the North and existing only in the South. - -It was this difference of interest between the two sections that brought -Calhoun to a change of opinion on the great industrial, commercial, and -moral questions that had arisen. His convictions followed what he wished -to believe: not an unusual temperament. From a protectionist he became -the zealous advocate of extreme free trade, from a nationalist to the -belief that the Union was nothing but a league any State could break at -its will, from holding slavery to be a moral evil to the support of it -as a divine institution. In 1837, after the nullification controversy, -when he introduced resolutions in the Senate as to slavery, he said: - - "This question has produced one happy effect, at least it has - compelled us of the South to look into the nature and character - of this great institution (slavery), and to correct many false - impressions that even we had entertained in relation to it. - Many in the South once believed that it was a moral and - political evil. That folly and delusion are gone. We see it now - in its true light, and regard it as the most safe and stable - basis for free institutions in the world. It is impossible with - us that the conflict take place between labor and capital." - -He went so far as to say a mysterious Providence had brought together -two races from different portions of the globe and placed them together -in equal numbers in the southern portion of the Union. To which Clay -forcibly replied, "to call a generation of slave-hunting pirates (who -brought the negroes to this country) a mysterious Providence, was an -insult to the Supreme Being."[96] - - [96] Oliver Dyer's _Great Senators_, pp. 183, 184. - -Calhoun and many of the leaders and politicians of the cotton-raising -States saw that they were losing their relative importance in population -and wealth; they believed that, with free trade bringing to them -everything they consumed at a lower price, their products and profits -would be increased. South Carolina with Calhoun as the master spirit was -the leader in this matter; the existing protective tariff bearing hardly -on the plantation States was in their opinion the great hindrance to -their prosperity. It was not difficult for them to come to the -conclusion it was a tyrannical and palpable violation of the -Constitution. Seeing that they could not bring the majority in Congress -to their belief, the South Carolinian politicians revived and developed -the doctrine of the Kentucky resolutions of the sovereignty of each -State, and of its right as a sovereign to judge of the constitutionality -of an act of the United States. A convention of the people of the State -was called, and under the claimed right of sovereignty the convention, -on the 24th of November, 1832, passed an ordinance in which it was -declared the tariff laws of the United States were null and void, and -that no duties imposed by the United States should be collected after -the first of February, A. D. 1833. The convention further declared that -they would resist any acts of the United States to collect its duties or -to coerce the State into paying them, and that such acts of the United -States would absolve the people of the State from any political -connection with the people of the other States, and that the State would -organize as a sovereign independent government. - -Thus South Carolina, more than forty years after the adoption of the -Constitution, was the first State that assumed to act as a distinct -sovereign power. To such a degree did the confidence of the State in its -own prowess and a spirit of rash defiance of the United States exist, -that upon Governor Haynes' return to Charleston from the State Capital, -the horses were taken from his carriage and the citizens dragged him in -triumph through the streets. - -Few leaders have had more warm admirers than Calhoun. Oliver Dyer in his -_Great Senators_, tells us he was tall and gaunt, his complexion dark -and Indian-like. Eyes large, black, piercing, scintillant; his iron-gray -hair hung down in thick masses. He was remarkable for the exceeding -courtesy of his demeanor and for the sweetness and bell-like resonance -of his voice. His private life, what could not be said of most of his -contemporaries, was unimpeachable. - -His followers are fond of praising his "inexorable logic." They probably -called it so because he did not hesitate to carry out his reasoning to -the extremest extravagance of conclusions. In his speech in 1833, in -reply to Webster, he admitted that this sovereignty of each State, there -being four and twenty of them, did give each State a separate right to -judge of a law of Congress, "four and twenty vetoes." He instanced with -approval the government of Rome, where the plebeians and patricians -could check and overrule each other through the tribunes and the Senate. -He knew "nowhere, no case in history where the power of arresting of -government was too strong, except in Poland, where every freeman -possessed a veto." But even there he speaks of it with favor, as the -source of "the highest and most lofty attachment to liberty." He -overlooked that Rome's plebeian veto produced a Sulla and a Caesar and -ended in an absolute despotism over an abject people, and that the -government of Poland, unstable as water, vanished from the face of the -earth. He spoke of this country as sunken into avarice, intrigue, and -electioneering, from which only an opposition like Carolina's could -arouse it. Afterwards, in 1850, he said: "What was once a constitutional -federal republic is now converted, in reality, into one as absolute as -that of the autocrat of Russia, and as despotic in its tendency as any -absolute government that ever existed." And yet many people of the South -believed or brought themselves to believe this, and most of their -writers now arguing for State sovereignty profess the same opinion. - -Following up Calhoun's "inexorable logic," that each State has a right -to pass its judgment on any act and law made by the United States, and -to decide whether it is invalid and null, if it be of opinion that it -exceeds the delegated authority, every citizen of South Carolina or of -any other State has a right to judge whether any law of that State be -invalid or null, as exceeding its delegated authority. For the State of -South Carolina under its Constitution, like the United States under its -Constitution, has only a limited delegated authority, and the -sovereignty, according to all the political writers, remains in its -people or voting citizens. Why cannot a voting citizen, or one of the -people of the State, maintain that, possessing the sovereign right of -all power, and being one of the parties who made the compact of the -State constitution, he can judge as to whether he has delegated the -power to make a certain law; and if he thinks he has not, why cannot he -defy the court and the State that undertakes to execute it? This would -at once put the State in the happy condition of Poland, and almost allow -the freedom claimed by a Chicago anarchist. The answer is evident, the -citizens owe an obedience to the laws that they establish over -themselves. They have, for the benefit of all, given to the judiciary -the right to judge of the extent of the delegated power. That the -doctrine of State sovereignty was unknown at the time South Carolina -promulgated it, is proved by Jackson's proclamation. In it he speaks of -the hardness and inequality of the excise law in Pennsylvania, the -embargo and non-intercourse law in the Eastern States, the carriage tax -in Virginia. All these laws and the war of 1812 in the commercial States -were, he says, deemed unconstitutional, but yet they were submitted to, -and this remedy of nullification and secession was not suggested. "The -discovery of this important feature in our Constitution was reserved to -the present day. To the statesmen of South Carolina belongs the -invention."[97] Indeed it was a question in South Carolina itself who -first discovered this doctrine of nullification. Dr. Thomas Cooper, -Jefferson's old friend, was agreed upon as the author of its revival, -and was toasted as the father of nullification at Columbia, the capital -of South Carolina, at a Fourth of July dinner[98] in 1833. If the -Kentucky resolutions and the doctrine of nullification had not been -dead, and buried in oblivion, it is impossible that Chief-Justice -Marshall should have announced in the case of McCulloch against the -State of Maryland that there was a universal assent to the proposition -that the government of the Union, though limited in its powers, was -supreme in its sphere; that General Jackson, in a proclamation to the -whole country, could have declared its discovery was made by the -statesmen of South Carolina of that day; and that the nullifiers of -South Carolina should have toasted Cooper as its author. - - [97] 4 Elliot, 584. - - [98] Niles' _Register_, p. 335, July 20, 1833. Cooper was President of - the University of South Carolina. The University of Virginia would not - have him as professor on account of his Unitarian belief, though - Jefferson wished it. Is it possible that he was the original author of - the Kentucky Resolutions, and furnished them to Jefferson? Jefferson's - correspondence, as far as we have examined, shows no belief in that - doctrine. - -We have found nowhere any claim of a right of secession, not even the -use of the word, until the threat of South Carolina's nullification. Any -separation before was considered as a disruption of the Union. Jefferson -spoke of it as scission. While some hold that Jackson "with his iron -heel crushed out secession," numerous attempts have been made, even -recently, to prove that Jackson was not opposed to nullification, that -in reality the proclamation was not his but was Edward Livingston's. -Parton, Jefferson's biographer, tells us, when a pamphlet containing -the proceedings of South Carolina reached Jackson, he went to his office -and began to dash off page after page of the proclamation. To this was -added many more of notes and memoranda which he had been accumulating. -The papers were given to Mr. Livingston to draw up in proper form. In -three or four days Livingston gave to Jackson a draft of the -proclamation for examination. Jackson said that Livingston had not -correctly understood his notes and suggested alterations, and had them -made.[99] - - [99] Parton's _Life of Jackson_, vol. iii., p. 466. - -The proclamation, whoever wrote it, is a clear, strong statement of the -nature of our Union and its nationality; an abler production than Edward -Livingston's speech, when as Senator he spoke on this matter in 1830. If -Jackson did not write a line of it he was not totally wanting in -knowledge and comprehension, and must have understood the most important -question that had arisen in his administration or in any administration -since the inception of the government. - -Jackson, as well as Calhoun, was of the Protestant Scotch-Irish race, -that famous strain of blood that settled around Belfast and has made its -mark in this country. Those who knew him well said that he had the -craftiness of his canny Scotch ancestors, which he often concealed under -apparently unpremeditated and ungovernable bursts of temper. No one -before who had been a duellist and had killed his opponent, and had -been a participator in street brawls and encounters, had become -President. He was a warm friend and a bitter enemy, and against Calhoun -he had a lasting grievance. His declaration, "I take the -responsibility," was characteristic of the man and admired by his -adherents. No one of a will so indomitable ever came to the presidency. -A mere boy of fourteen he fought in the revolutionary war. He studied -law in North Carolina and at the age of twenty-two years he commenced -his professional life in Tennessee, and acquired at once a large -practice throughout the State, that brought him into public notice. He -was the district attorney of the territory, and a member of the -convention that made the constitution of that State, and as its first -representative in Congress opposed Washington's administration, and was -one of the twelve members who would not join in the vote of thanks to -him when he retired from the presidency. He was elected Senator in 1797 -and opposed the administration of John Adams, but soon resigned the -senatorship and became a judge of the Supreme Court of Tennessee and -held that office for six years. He was of the party of strict -constructionists. As President he vetoed bills for the aid of the -Maysville and Lexington Road, a re-charter of the Second Bank of the -United States, and several bills for internal improvements for harbors -and rivers. - -However much Livingston may have improved the style of the proclamation, -or contributed to its argument, there can be no doubt that the reasoning -and principles were Jackson's. The public seems to have forgotten that -he was a lawyer of large experience in his younger days, and an active -politician all his lifetime. The proclamation was on a subject of which -he had full knowledge and had formed decided opinions. When he came to a -conclusion he cared not what any other man thought. - -It has been a disputed matter whether the General Government actually -prevailed in its controversy with South Carolina. Though the State -prepared munitions of war, increased its militia, passed laws to punish -persons executing those of the United States, and declared its secession -from the Union if the United States laws were attempted to be enforced, -neither the State nor its citizens did actually commit any overt act of -resistance. They claimed, however, that Clay's compromise bill, -gradually reducing duties, which became law March 2d, was a surrender to -them. - -On the other hand it is asserted that the bill was not at all what South -Carolina had demanded. It is undisputed that the United States -Government passed a force bill based on the ground that it could compel -the exercise of its authority over the citizens of a State disputing it, -and that no resistance was made to the collection of the import duties -after February 1st, when the State declared its ordinance should be -enforced, the reduction of the tariff being subsequently passed.[100] - - [100] Alex. Johnston, in Winsor's _History of America_, vol. vii., p. - 286, says that Jackson collected the duties at Charleston by naval and - military force, and that the day before February 1st a meeting of - "leading nullifiers" agreed to avoid all collision with the Federal - Government. - -It was in South Carolina alone that the right of nullification was -sanctioned by a majority of its citizens. There were in the debates in -Congress on that matter members from other States who maintained that -doctrine, but Southern writers have apparently purposely omitted, and -Von Holst, Greeley, and Benton, historians of that time, have overlooked -the resolutions of the other Southern States condemning the doctrines of -South Carolina, which are the more significant as those States agreed -with her in opposing and denouncing the tariff. - -Virginia's position, though less decided than that of the other States, -did not please Calhoun; in reply to her Senator, Mr. Rives, who had -opposed the South Carolinian doctrine, he spoke of her as "a once" -patriotic State. Virginia's resolutions were, that the doctrines of -State sovereignty and State rights as set forth in her resolutions of -1798, and sustained by the report thereon of 1799, were a true -interpretation of the Constitution, but she did not consider them as -sanctioning the proceedings of South Carolina in her said ordinances, -nor as countenancing all the principles assumed by the President in his -proclamation. Virginia sent Mr. Leigh as a commissioner to South -Carolina, but without result. - -Mississippi, Jefferson Davis' State, declared "that, in the language of -the father of his country, we will indignantly frown upon the first -dawning of every attempt to alienate any portion of our country from the -rest, or to enfeeble the ties which link together its various parts." -Nullification was condemned in the strongest terms, and it was declared -they would support the President in maintaining the Union. - -In the next year, Robert J. Walker canvassed the State for a seat in the -Senate with Poindexter, his opponent; the issue was a question of -nullification, and Walker, after a contest of three years, prevailed and -became Senator at the election, January 8, 1836. General Jackson wrote a -letter in his favor.[101] - - [101] Article by R. J. Walker on "Nullification and Secession," - February, 1863, p. 179, _Continental Monthly Magazine_. - -Alabama declared nullification "is unsound in theory and dangerous in -practice"; North Carolina, that it "is revolutionary in its character, -and subversive of the Constitution, and leads to disunion"; Georgia, -"that we abhor the doctrine of nullification as neither a peaceful nor a -constitutional remedy," and further declare, while they deplore the rash -and revolutionary measures of South Carolina, they warn their citizens -against adopting her mischievous policy.[102] - - [102] State papers on nullification, collected and published in 1834 - by order of the General Court of Massachusetts. The volume contains - the remonstrances of many State Legislatures besides those quoted. It - has also the ordinance of the South Carolina convention at the - adjournment, held March 19, 1833, in which the convention declared the - State's nullification of the force bill of Congress of March 2d then - enforced: this declaration was mere _brutum fulmen_. - -These were the opinions of the Southern States in 1833. So that at that -time, as a matter of history, South Carolina alone claimed the right of -nullification and secession. - -We have before said it has been customary for the Legislatures of States -to pass resolutions declaring acts and laws of the United States--that -they are opposed to--unconstitutional, and therefore null and void; but -that these State resolutions do not make them so; that they are merely -the opinions of the Legislatures that pass them; that the decision, -whether laws of the United States or acts of its government are null and -void, rests solely with the judiciary of the United States. - -On examination we find, from the inception of Washington's -administration until the inauguration of Lincoln, that, without -exception, the authority and supremacy of the laws and government of the -United States have been maintained and enforced by its courts over every -State, and every State government and judiciary, and every individual -therein:--Over Pennsylvania, as we have before set forth in the Gideon -Olmstead case, when the representatives of the State officer who had -disbursed prize money under the decision of the State Court were -compelled to repay it to the United States.[103] Over Kentucky itself, -in 1812, when the court maintained that a Kentucky State court had no -jurisdiction to enjoin a judgment of a court of the United States.[104] -Over Kentucky and Virginia, in a serious controversy about the validity -of the grants of those States.[105] Over Maryland, when the State -undertook to tax the branch of the United States Bank established in her -territory, on the ground that no State could tax the instrument employed -by the government in the exercise of its powers.[106] In this case -Chief-Justice Marshall declared: "If any one proposition would command -the universal assent of mankind, we might expect it to be this, that the -government of the Union, though limited in its powers, is supreme within -its sphere." Even further, the United States Court interfered and took -from the State court of Virginia jurisdiction of the prosecution by that -great State of _one of its own citizens_ for illegally selling tickets -in a lottery, because the lottery had been authorized in the District of -Columbia and brought in question the validity of a United States -law.[107] Over Massachusetts, in declaring the embargo legal. Over New -York, when it declared illegal the State's grants to Fulton, the -inventor of the steamboat, of the exclusive right of navigation of the -Hudson. Over Ohio, when the State insisted on taxing the branch of the -Bank of the United States, the court issuing its mandamus and compelling -the State's Treasurer to obey its decree.[108] Over South Carolina, in -1829, not long before her threatened nullification, when the court -annulled the taxation by the city of Charleston of the bonds of the -United States, because it was an interference with the power of the -General Government to borrow money.[109] The disputes of States about -their boundaries often came before the Supreme Court and were settled, -the States appearing as parties. Indeed, such interference and control -were so frequent and so implicitly submitted to that Chief-Justice -Marshall said: "Though it had been the unpleasant duty of the United -States courts to reverse the judgments of many State courts in cases in -which the strongest State feelings were engaged, the State judges have -yielded without hesitation to their authority, while perhaps -disapproving the judgment of reversal."[110] - - [103] United States _vs._ Peters, 5 Cranch, 115. - - [104] McKim _vs._ Voorhies, 7 Cranch, 279. - - [105] Green _vs._ Biddle, 8 Wheaton, 1. - - [106] McCulloch _vs._ Maryland, 4 Wheaton, 316. - - [107] Cohens _vs._ Virginia, 6 Wheaton, 264. - - [108] Bank of U. S. _vs._ Osborn, 9 Wheaton, 738. - - [109] Weston _vs._ Charleston, 2 Peters, 449. - - [110] Cohens _vs._ Virginia. - -These decisions of the United States Supreme Court were made by judges -appointed by all the political parties that had been in power, by those -in favor of a strict as well as a liberal construction of the -Constitution. Taney, a very eminent jurist, and his associates, judges -appointed by the political party predominant in the States that -attempted to disrupt the Union, held that the Constitution and the laws -of the government were paramount, and announced and maintained their -supremacy to the beginning of the rebellion over every State court and -State law and constitution.[111] - - [111] See 22 Howard, 227; Sinnott _vs._ Davenport, 21 Howard, 506; - Ableman _vs._ Booth, 5 Howard, 134; Rowan _vs._ Runnells. In these two - last cases Taney and the Court put aside the decrees of the Supreme - Courts of Wisconsin and Mississippi, because they were in conflict - with the powers given to the United States; in the latter case, - overruling and even reversing the decision of the Supreme Court of - Mississippi as to when its constitution took effect. - -The action of the State of Georgia in 1832, in a controversy between -that State and the United States Supreme Court, has been cited in -support of the theory that Georgia maintained the doctrine of State -supremacy. In that case the matter never came to an actual conflict. Why -the United States decision was not promptly enforced is a matter that it -is not here worth while to enter into.[112] It is sufficient to quote -the resolutions of the Legislature of the State in 1833, that she -abhorred the doctrine of nullification and deplored the revolutionary -measures of South Carolina and warned her citizens against adopting -that mischievous policy, to show that the State, in her opposition to -the christianizing of Cherokee Indians, did not question the supremacy -of the United States Government. - - [112] General Jackson's sympathy was with Georgia in this matter, and - he is reported as saying: "John Marshall has made the decision, now - let him execute it." The missionary that Georgia had imprisoned was, - however, released by the State. - -It is often asserted by historical writers that the Supreme Court of the -United States, under the guidance of Marshall, has built up, magnified, -and extended the powers of the government. Undoubtedly the court has -great power in deciding whether the laws of a State or the acts of a -State officer are illegal, when the question is whether they infringe on -the rights of the general government; it, however, cannot make laws and -acts extending the national powers. Its authority is, for the most part, -that of restraint over the acts of the executive and United State -officers, and of annulling, as it often has, the laws of Congress -adjudged to be beyond its powers. It is Congress that made the Alien and -Sedition laws, United States banks, tariffs and embargoes; it was the -President and Congress who freed the negroes. Even in the war of -secession, the judiciary declared the President's disregard of the -habeas corpus in Milligan's case illegal.[113] - - [113] _Ex parte_ Milligan, 4, Wallace, 2. - -The idea which has found favor that Judge Story yielded his early -convictions as to the nationality of the government to the influence of -Marshall, is founded on the erroneous theory that the doctrine of the -Kentucky resolutions were, after their promulgation, held and believed -in by Story and the republicans. Anyone who was personally acquainted -with Story, or was taught by him in the law school at Cambridge, or -heard the opinions of the eminent counsel who tried cases before him, -knows that no judge of a more uncompromising confidence in his own -conclusions and decisions ever sat on the bench. The great fault of this -most learned of our judges was the quickness of his apprehension and of -his arriving at a conclusion in the beginning of a case he was hearing, -and the tenacity with which he held and enforced it, sometimes even to -the detriment of justice itself. Story, though generally agreeing with -the Chief Justice, at times gave dissenting opinions on constitutional -questions. - -The government, from the time of South Carolina's earlier nullification -ordinances to that of the civil war, excepting for very short periods, -was in the hands of the South. Under it, and in the interest of the -slave States, Polk made war with Mexico, an act of Congress declaring -that it existed. Texas with its immense territory of over two hundred -thousand square miles was annexed in Tyler's administration, Calhoun -becoming Secretary of State for that purpose. Laws interfering with the -constitutional rights of Northern citizens of the black and mixed race, -and for the protection of slavery, were passed and enforced by the -Southern States. - -There can be no doubt that the belief had been growing in those States, -that they would be better off out of the Union than in it. The -opposition to slavery was increasing at the North; no works were so -widely read there as those setting forth its iniquities. The South, -then, as in the time of the making of the Constitution, was an -agricultural country, depending for its prosperity on a cheap, forced -labor, and the exportation of its cotton and other products. It was -strong in men, and no longer required the protection of the Eastern -States, as in the days of the National Convention. In 1854, by the laws -enacted by Congress, the whole territory of the United States was thrown -open to the introduction of slavery, giving to the Southern States the -right to carry into it their "peculiar property," and taking away their -great grievance. Then also came the decision of the United States -Supreme Court in the Dred Scott case, that all laws excluding slavery -from the territories were unconstitutional, and asserting that the -inhabitants of those territories could not interfere with that right. -The only matter the South could complain of was the hostility of the -Northern States to slavery, and that some of them would not comply with -the laws for the rendition of their slaves, and had passed State laws -and committed acts interfering with their legal and constitutional -right of seizing them on Northern territory. There was no pretence that -there was any tyrannical usurpation of undelegated authority by the -United States, such as the Virginia resolutions referred to. Prof. Bazil -L. Gildersleeve, a confederate soldier, in the _Atlantic Monthly -Magazine_, says in a paper called "The Creed of the old South," that the -cause of secession was, that "the extreme Southern States considered -their rights menaced by the issue of the presidential election."[114] - - [114] _Atlantic Monthly_, January, 1892. - -Upon the choice of Lincoln, and while Buchanan was President, -preparations were made by the South for a disruption of the Union. -Reuben Davis, a distinguished lawyer and a member of Congress from -Mississippi, in his autobiography, informs us that he spent much time -with Floyd, the Secretary of War, who had been for twelve months sending -arms to Southern arsenals and had put the forts in condition to be -captured. He estimated that one half of the munitions of war was in the -South.[115] South Carolina again took the initiative and seceded on the -ground that as a sovereign State she had the right to withdraw from the -compact she had entered into; and for the second time in our history did -a State, and the same State, assert its sovereign right against the -supreme authority of the United States. The other plantation States -quickly followed South Carolina; generally there was no elaborate -statement by them of their grievances, nor did they explain why the -doctrines they abhorred less than thirty years before, they now asserted -and so courageously fought for. Virginia joined the Southern Confederacy -without passing any formal act of secession. Her convention, called for -the purpose of considering the matter, voted not to secede. In an -address delivered in October, 1887, at Richmond, on the dedication of a -statue to Lee, the orator, a descendant of the great Chief-Justice -Marshall, undertakes to explain and defend Virginia's course in joining -the South. He does not claim the right of secession and apparently -agrees with Lee, and puts in italics what Lee wrote on the 23d of -January, 1861, that "_Secession is nothing but revolution_." He states -also that secession was unjustifiable, because the opponents of Lincoln -had the majority in the National House of Representatives and Senate; -but that the method of Lincoln of composing the troubles of the country -brought Virginia into the contest. Following, as Southern writers and -speakers do, the extravagant denunciations of Calhoun, he says: "Instead -of maintaining the honor, the integrity of our National Union, it -destroyed that Union in all but a territorial sense, as effectually as -secession, by substituting conquered provinces for free States, and -repeating in America the shameful history of Russia and Poland." As our -Poland when he spoke had an executive of its own choice and a majority -of the House of Representatives, it was its own fault, if its -inhabitants were in that abject condition. Is it not absurd to talk in -this way, when no secessionist has been hung for treason, and a silver -crown a short time since, at a public meeting, was prepared by some -admirer for the dethroned autocrat of our Poland? At any rate we have no -sedition law now, and freedom of speech against the government passes -without comment. An unsuccessful revolution is rebellion, generally -punished in other countries by death. It has not been so in our Russia. -Jefferson Davis was indicted for treason; his trial never took place, as -President Johnson issued a general amnesty proclamation. - - [115] _Reuben Davis' Recollections_, p. 395. - -Undoubtedly the confidence of the South in its assumed superiority in -courage and fighting qualities had great influence in inducing its -attempted secession. Jefferson Davis in his history gives instances of -advantages gained at the outset by the Southern soldiers through their -skill in the use of firearms. He did not tell us, and it seems to have -escaped notice generally, that the Southern States had also the great -benefit of the military academies they had established, which furnished -at once trained officers for their troops. Their renowned general, -Stonewall Jackson, was a professor in that of Virginia, and went from -the academy to the Confederate army.[116] - - [116] See article by John S. Wise in the _Century Magazine_, Jan., - 1890. The Virginia Military Academy was established by the State in - 1839. Col. Smith, a graduate of West Point, was at the head. It was - continued during the civil war under the charge of disabled officers. - In 1860 a professor in this school informed the writer that there were - similar academies in all the Southern States. Apparently they have - been discontinued in most of them, South Carolina, however, yet - maintaining hers. - -The seceding States in forming their new compact, in article after -article followed the Constitution they rejected, prefacing it with the -declaration, "We, the people of the Confederate States, each State -acting in its sovereign and independent character, in order to form a -more permanent Federal Government," instead of "We, the people of the -United States, in order to form a more perfect Union, for ourselves and -our posterity." They took particular care, however, by their new -"Compact," to provide for the perpetuity of slavery in their -Confederacy,--and, looking to conquests, in any new territory that might -be acquired. - -Instead of slavery being perpetuated, the whole system was annihilated -under and within the Constitution. The amendment abolishing it forever -was passed in the manner required in the Constitution by all the States -that had refused an obedience to the United States laws. No longer is -the declaration of independence that all men are born free and equal, -in the language of Calhoun, "a glittering generality." - -The seceding States were not without their internal trouble, and the -authority of the Confederate Government was questioned by Georgia. - -We all know how patiently and assiduously Lincoln tried to keep the -Southern States in the Union and how ineffectually; and when he found -that his effort was of no avail, with how firm a hand he wielded the -powers of the Executive. In Merriam's case, he maintained his suspension -of the habeas corpus, although Chief-Justice Taney held it was illegal. -His decreeing freedom to the slaves of those in rebellion, as a war -measure, was an act of imperial power seldom surpassed. Our whole -history, as well as the epoch of the civil war, has proved how unfounded -was Hamilton's fear that the government was not strong enough. - -How wonderfully well the founders of our Constitution did their work, is -shown by the fact that so few amendments have been made, while the -constitutions of the different States have been changed again and again. -The ten articles declaring certain rights to be in the people were -adopted in 1791, then in 1798 the article taking away from the United -States the jurisdiction of suits of individuals against a State; -afterwards in 1804 two articles changing the manner of electing the -President and Vice-President. The theory of the founders of the -Constitution, that it would be best to leave to men of prominence as -electors to confer and choose those most fit for President and -Vice-President, has failed. The electors chosen by the people are -pledged to vote for candidates nominated at party conventions. After -these few amendments, none were passed until those as to slavery, -following the civil war. - -A strict construction of the powers granted by the Constitution is a -"State's rights" that those who believe in the supremacy of the National -Union can well favor. It is beyond human wisdom to enact laws of which -there can be no question; the decisions of the Supreme Court show how -hard it is to make a law whose constitutionality is not disputed. -Government would have been impossible, if the power had been in each -State to decide for itself as to the validity of every law passed and -every act of the General Government, and to secede at its will whenever -it chose. Yet this is the government that the South claimed our -forefathers established. - -In forming the Confederacy of the Revolution, it was declared in its -articles that it was indissoluble; the same declaration is in the -Constitution when the States "formed a more perfect Union" than that of -the Confederacy "for ourselves and our posterity," and were merged into -one Nation. This Constitution and the laws of the United States are -declared there, "as the supreme law of the land; and the judges in every -State shall be bound thereby, anything in the Constitution or laws of -any State to the contrary notwithstanding." Supreme over what, if not -over the States that should adopt it? Historically that supremacy has -been maintained and enforced by the United States Courts and Executive -and Legislature. - -In resisting the supremacy of this Constitution no State, dismembered -Virginia perhaps excepted, has suffered more than South Carolina. It is -truly pathetic in passing through the streets of Charleston, the home of -the great planters and politicians that shaped the destinies of the -State, to hear the names of the foreign bankers and merchants that have -taken the place and the homes of the old leaders or who have built more -pretentious abodes, to see the buildings with walls cracked and fissured -by the earthquake mended by contributions cheerfully given by Northern -friends, to read the newspapers lamenting the loss of their trade to -Savannah and calling on the United States for larger appropriations to -deepen the channels of their harbor. Then to look upon their statues of -those distinguished at different periods: the mutilated one of the great -Earl of Chatham, the friend of American freedom in Colony times; those -of the heroes of the Revolution and the war of 1812; and in the square -opposite the barracks of her Military Academy, the great glittering -bronze of Calhoun,[117] who brought so much misery to them all. But as -we go Westward, where the sandy soil of the plains yields to the clay of -the foothills, and find the streams turning the wheels of the factory, -and hear the whirl of the spindle tended by white operatives, and see -the plough, generally followed by a white man, turning over the soil -amidst the stumps of trees in fields newly reclaimed; and come at last -to Spartanburg and read the inscription there on the monument recently -raised to those who fell at Cowpens, by the old thirteen States and -Tennessee, bringing to memory the days of Greene and Morgan, we cannot -but believe instead of four and forty sovereign States, we shall, in -Webster's words, have for all time, "one Nation, one Union, one -Destiny." - - [117] This was written four years ago: Charleston now shows few signs - of the earthquake, and Calhoun's statue has mellowed into a pleasing - bronze color. - - - - -INDEX. - - - A - - Adams, Charles Francis, Minister to England, 3 - - Adams, Henry, opinion concerning Virginia's estimation of validity of - United States laws, 100; - controverted, 113-115 - - Adams, John, influence of Alien and Sedition laws on re-election, 112 - - Alien and Sedition laws of 1798, 88; - Jefferson's opposition to, 88; - influence in defeating federal party, 112 - - Amendments to Constitution, how made, 40; - first ten articles, 78, 79 - - - B - - British opinion of right of secession, 2-3 - - Bryce, James, on right of Southern States, 3; - theory of his book, 3, _note_ - - - C - - Calhoun, John C., United States a confederacy, not a nation, 24; - his youthful prominence in Congress, 34; - his early opinions of the Constitution, 134, 135; - change of opinion, 137, 138; - personal appearance, 138, 139; - his reasoning on right of nullification, 140; - his argument considered, 140, 141 - - Chase, Salmon P., decision on secession, 34, 35 - - Clay, Henry, tariff compromise, 23 - - Clinton, George, his opinion as stated by Mr. Lodge, 5; - his written declaration that the United States Government is - perpetual, 77, 78 - - Compact, may be for national, indissoluble government, 28, 29; - a voluntary union of independent nations must be by compact, 28; - Southern views of, 30 - - Confederacy of the Southern States, constitution and compact as to - slavery, 158 - - Confederacy of the United States, its failure, 31, 32; - dependent upon the States, 48 - - Constitution of United States, adoption by Continental Congress, - States, and _people_, 32; - perpetuity declared in preamble, 33, 34; - supremacy, 35, 36, 49; - oath of every State officer and judge to support, 36; - supremacy in all sovereign powers, 37, 38; - prohibitions to States, 38, 39, 47; - power to coerce States in articles punishing treason, 41, 42, 43; - can take all powers from States by amendments, 45, 46; - made States suable, 44; - powers given by Constitution to States, 46; - naturalization, 47; - takes from States powers of resistance, 47, 48; - its excellence proved by few amendments, 159, 160; - its adoption opposed on account of its nationality and of excessive - powers given, 69-73; - no claim of right of secession or nullification suggested in the - conventions adopting the Constitution, 73 - - Convention that made the Constitution, its members and mode of voting, - 51-53; - proposition of the delegation of Virginia for a National Government - debated and passed, 51-53; - New Jersey plan amending confederacy, 54, 56; - resolves for a National Government again taken up and passed, 56-62; - representation in Senate, 58-60; - a compromise of representation not a compromise of powers granted, - 60, 61; - resolutions calling the proposed government national referred to - Committee to Report a Constitution, 61, 62; - report of committee and articles again considered separately, 62-64; - change in preamble by Committee of Style and Arrangement, 64; - opinions of members, 65, 66; - its nationality and great powers, 70-72 - - Cooper, Thomas, pronounced in 1833, in South Carolina, author of - nullification, 141, 142 - - - D - - Davis, Jefferson, indicted for treason and not tried, 157; - asserted advantage of Southern soldiers, 157 - - - E - - Embargo, 129, 130 - - - F - - Federal, the party, meaning of the term, 37 - - Franklin, Benjamin, services as member of the convention, 68 - - - G - - Georgia, suit of Chisholm against, 82-84; - claim of sovereignty, 83; - decision of Supreme Court, 83, 84; - controversy as to Cherokee Indians, 151; - vigorous resolutions in 1833 against South Carolina's nullification - doctrines, 147 - - Gerry, Elbridge, objection to conferring power of amending - Constitution as fatal to the States, 45, 46; - refused to sign the Constitution, 68 - - - H - - Hamilton, Alexander, proposed plan for a strong government not favored - in the convention, 54, 55; - his speech as to democracy, 55; - promised support of Constitution, 68; - correspondence with Madison, 72; - successful support of the adoption of the Constitution by New York, - 72; - states in the _Federalist_ the supremacy of the judicial power of - the United States, 129 - - Hartford convention, called by Massachusetts, discontent of the State, - 131; - resolutions passed did not assert State sovereignty, but proposed - amendments to Constitution, 131, 132 - - Hayne, Robert Y., denunciation of the Eastern States, 8; - his doctrine, 9; - approval of, by citizens of Charleston, 138 - - Henry, Patrick, Lodge's assertion as to his opinion, 5; - strenuous objection to adoption of the Constitution as national, 70, - 71; - opposition to the Virginia resolutions, 113; - his declaration that Virginia was to the United States as a county - to Virginia, 113, 114 - - - I - - Iredell, James, dissenting opinion in Chisholm against Georgia was not - by reason of sovereignty of Georgia, 83 - - Ireland, bill of 1886 for home rule, 40 - - - J - - Jackson, Andrew, his proclamation against nullification, 21, 22; - his popularity and arbitrary exercise of power, 23; - his character and early life, 143; - experience in politics and law, 144; - proclamation of his own work, 142, 143, 145; - threat to hang Calhoun, 22; - collected duties after South Carolina declared they should not be - levied, 145, _note_, 146 - - Jay, John, wrote, "the convention and people agreed a National - Government was necessary," 71, 72; - his opinion in Chisholm _vs._ Georgia as to sovereignty of United - States, 80, 81 - - Jefferson, Thomas, reputed author of Kentucky resolutions, 88; - approval of coercing States, 93; - became president immediately after passage of Kentucky resolutions, - 116; - his inaugural address national, 116-118; - approved of bills in favor of a national road, 118; - approval of the use of the army and navy against Pennsylvania in the - Gideon Olmstead case, 118-121; - approval of annexation of Louisiana, 123; - opinion as to nullification and secession, 125; - opposition to Alien and Sedition laws, 126, 127; - national views, the embargo, 129, 130; - prescribed _Federalist_ as text-book in University of Virginia, 128, - 129 - - Judiciary of the United States, made supreme by the Constitution, 37; - power to decide on laws of Congress, 49, 50; - supremacy of the Government uniformly sustained by it, 148-151 - - - K - - Kentucky resolutions, 90; - not much noticed as coming from a new State, 89; - merely the opinion of the legislature that passed them, 89; - their doctrine considered, 90-93; - they deny that the United States Government could punish any crime - except when the power is specifically given, 93, 94; - they protest against laws of Congress, do not treat them as invalid, - 94, 95; - not sanctioned by other State legislatures, their purport escaped - notice, 101; - State let them drop, 101, 102; - no assertion of their doctrine until 1830, 133 - - - L - - Lansing, John, with Yates a delegate from New York, left the - convention July 3d when a National Government was agreed on, 66; - his motion for conditional acceptance of the Constitution rejected - by New York convention, 72, 73 - - Lee, Robert E., opinion that secession was revolution, that the United - States Government was national and perpetual, 4, 156 - - Lieber, Francis, on Webster's oratory, 13 - - Lincoln, Abraham, acts in Merriam's case, declaration of freedom to - slaves, 46, 159 - - Livingston, Edward, Jackson's proclamation, 142, 143 - - Lodge, Henry Cabot, on secession and Webster's argument, 5, 6; - on Josiah Quincy and Hartford convention, 132 - - - M - - Madison, James, protective duties, 26; - as to compact, 29; - suggestions as to convention to form government, 51; - letter to Hamilton on adoption of Constitution, 72; - wrongly accused of support of nullification, 96; - author of Virginia resolutions of 1798 and explanation of 1799, 102; - a strict constructionist, 82; - signed re-charter of the United States Bank, 133; - _see_ Virginia resolutions - - Marshall, John, Chief-Justice, declaration concerning supremacy of - United States, 142; - that State courts had invariably yielded, 150 - - Martin, Luther, definition of extent of judicial power of United - States, 20; - objection to punishing treason, 43 - - Mason, George, insisted on National Government, 57; - refused to sign Constitution, reasons, 69 - - Massachusetts, acceptance of Constitution and use of word compact, 75; - submission to embargo, 30 - - Military academies in Southern States, 158 - - Missouri Compromise, 135, 136 - - Morley, John, on British opinion, 2, 3 - - Morris, Gouverneur, report of draft of Constitution, 64; - on the importance of the Mississippi, 123 - - - N - - New England, discontent with embargo and submission, 130 - - New York, consideration of the acceptance of the Constitution, 72, 73; - unanimous assertion of its convention that the adoption was for - perpetuity, 77, 78 - - Nullification, claim that validity of laws of general government are - at the caprice of each State, 25, 26; - no suggestion of such right in conventions, 75; - no claim of such right save in Kentucky resolutions until 1830, 133; - so stated by Jackson, Marshall, and the nullifiers of South - Carolina, 141, 142 - - - P - - Pennsylvania, resistance to excise law, 84, 85; - resistance to United States in Gideon Olmstead case, 118-122; - proposition to Virginia for amendment of Constitution as to - questions between States and United States, 122, 123 - - Pinckney, Charles C., declaration in convention of South Carolina that - the States never had sovereignty, 74; - satisfaction with Constitution, 67 - - Pinckney, Charles, declaration as to nationality of the Constitution, - 74 - - - Q - - Quincy, Josiah, his declaration a threat of rebellion, not a claim of - right of secession, 124, 125; - non-concurrence of Massachusetts, 124, 130, 131; - not made delegate to Hartford convention, 132 - - - R - - Randolph, Edmund, introduced national resolutions in convention, 51; - did not sign Constitution, 69; - supported it in Virginia convention, 71 - - Resolutions of State legislatures are mere opinions, 89; - even when declaring laws of United States null and void, 148 - - - S - - Secession, general belief in right of, by Southern and English - writers, 1-4; - belief of some Northern writers, 5, 6; - impracticability of claim, 25; - declaration of perpetuity in preamble of Constitution, 33, 34; - historically no claim of such right until 1830, 142 - - Senate, equality of States in, merely a compromise of representation, - 60, 61 - - Slavery abolished by power given in Constitution, 46, 158 - - South Carolina, declaration concerning tariff, warlike preparations, - 138; - original adoption of the Constitution, 73, 74; - nationality asserted in convention, 74; - only State asserting right of nullification in 1833, 146; - resolutions of other Southern States opposing her opinions, 146-148; - collection of duties after State ordinance, 145, 146, and _note_; - submission to judgment overruling taxation of United States Bank, - 150; - first State to secede, 155; - statue of Calhoun and monument at Spartanburg, 161, 162 - - Southern States, satisfaction with Constitution at first, 67; - opposition to secession in 1833, 146; - resolves of legislatures, 146-148; - change of views, 154; - control of the government before the Civil War, 153; - laws of United States and decision of Supreme Court establishing - right to introduce slaves into territories, 154; - preparations for secession, 155; - confidence of success, 157 - - State governments, powers derived from Constitutions, 27; - subordinate and local, 39, 40; - limited under the Constitution of United States, 46; - original sovereignty questioned, 79-81; - admitted by Webster, 80; - denied in convention of South Carolina, 74; - resolutions of legislatures mere opinions, 148 - - Stephens, Alexander H., on secession, 1, 2 - - Story, Joseph, Judge of Supreme Court, doctrine of supremacy of United - States, tenacity in his belief, 152, 153 - - Supreme Court of United States, its powers principally those of - restraint, 152; - _see_ Judiciary of the United States - - - T - - Taney, Roger B., Chief-Justice, maintained authority of United States, - 151 and _note_ - - Tariffs, for revenue and protection, second act, first Congress, 26; - no question of power then, 81, 82 - - Taylor, John, views concerning the government, 114, 115 - - Treason, crime according to the Constitution, 41; - right of government to punish, implies its citizens owe allegiance, - 41; - a confederacy does not punish it, 41; - the old confederacy, 41; - consideration of the clauses of punishment of, 41, 42 - - - U - - United States Government, limited to powers granted by the - Constitution, 27; - was a nation or a confederacy made? 28, 29; - the compact was for a nation, 30; - perpetuity declared in preamble, 34; - its supremacy expressly declared and nature of powers granted, 35, - 36; - great powers over States, 38, 44; - can be extended by amendment, 45, 46; - _see_ Judiciary of the United States - - - V - - Virginia, acceptance of Constitution, 76; - its powers derived from the people of the United States, 76; - approval by legislature of the supremacy of the United States - judiciary, 122, 123; - did not secede, reasons for joining the South, 156 - - Virginia resolutions, statement of, 98, 99; - did not declare a State could interpose, 99; - a denunciation of assumption of undelegated powers by United States, - 99; - opposed by other States, 100, 101; - explanation of their meaning, 102-111; - State means people of the State, 103, 104; - of rights of States in case of usurpations, 105; - right to redress usurpations, 105, 106; - admission of authority of judiciary, 106; - allegation that assumption of undelegated powers would end in - monarchy, 108; - attack on Alien and Sedition laws, 109, 111, 112; - assertion that resolutions are mere opinions, 109, 110; - patriotism of the State, 111; - remedial methods suggested, 112 - - - W - - Walker, Robert J., as to Jefferson's views of nullification, 125; - successful canvass of Mississippi, 147 - - Washington, George, services in convention, 67, 68; - suppression of insurrection by military force, 84; - letter on disbanding the army, 86; - letter submitting Constitution to each State as to consolidation of - Union, 86; - farewell address, on unity of government, 86; - action on the Virginia resolutions, 113 - - Webster, Daniel, personal appearance, 1; - reply to Hayne's attack on the East, 11, 12; - the coalition and Banquo's ghost, 10, 11; - eulogium of South Carolina, 13; - declaration that the government was made by the people, for the - people, 16; - supremacy and nationality of government, 16-21 - - Wilson, James, services in the general and State conventions, 70 - - Wolseley, Lord, as to Lee and secession, 4 - - - * * * * * - - -Transcriber's Notes: - -Punctuation has been standardised--in particular, missing periods -and quotation marks have been supplied where obviously required. -All other original errors and inconsistencies have been retained, -except as follows: - - Page iv: added missing , - (and not "We, the States,") - Page 3: changed 1 to i. - (of chapter iv., vol. i., page 29) - Page 10: changed filled to filed - (they had 'filed their mind,' that their) - Page 18: changed it to is - (political system which is established) - Page 18: changed . to ? - (sovereign powers a _government_?) - Page 55: changed Elliott to Elliot - (See his plan, 5 Elliot, 205.) - Page 83: added missing , - (reasoned opinions. Iredell, a member) - Page 93: changed Elliott to Elliot - (Kentucky resolutions, 4 Elliot, 540.) - Page 101: added missing , - (United States laws, though asserted) - Page 114: changed John to Moses - (pp. 393, 394. Moses Coit Tyler's) - Page 122: changed Pinkney's to Pinckney's - (Virginia in Mr. Pinckney's argument) - Page 128: changed collonaded to colonnaded - (the pleasing colonnaded buildings) - Page 163: changed 213 to 2-3 - (right of secession, 2-3) - Page 166: added missing word 'of' - (proclamation of his own work,) - - - - - -End of the Project Gutenberg EBook of Nullification, Secession Webster's -Argument and the Kentucky and Virginia Resolutions, by Caleb William Loring - -*** END OF THIS PROJECT GUTENBERG EBOOK NULLIFICATION, SECESSION *** - -***** This file should be named 41673.txt or 41673.zip ***** -This and all associated files of various formats will be found in: - http://www.gutenberg.org/4/1/6/7/41673/ - -Produced by David Edwards, Rosanna Murphy and the Online -Distributed Proofreading Team at http://www.pgdp.net (This -file was produced from images generously made available -by The Internet Archive) - - -Updated editions will replace the previous one--the old editions -will be renamed. - -Creating the works from public domain print editions means that no -one owns a United States copyright in these works, so the Foundation -(and you!) can copy and distribute it in the United States without -permission and without paying copyright royalties. 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