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    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,)