Nullification, Secession Webster's Argument and the Kentucky and Virginia Resolutions Part 3

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 Const.i.tution. In this letter to the Legislature of Maryland objecting to the ratification of the Const.i.tution, 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 Const.i.tution, 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 Const.i.tution 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 pa.s.sage of an amendment to the Const.i.tution, 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 Const.i.tution 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 Const.i.tution 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 Const.i.tution. The only limit in the Const.i.tution 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 const.i.tutions 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 a.s.sociates 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 Ma.s.sachusetts, afterwards Governor of that State and Vice-President of the United States, objected because the Const.i.tution is paramount to the State const.i.tutions, and that two thirds of the States may introduce innovations that would subvert the State const.i.tution 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 pa.s.sed.

[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 Const.i.tution.

The only authority given by the Const.i.tution 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, pa.s.sing 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 Const.i.tution 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 Const.i.tution, 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 Const.i.tution of the United States"; not to keep from encroachment upon the rights of the States, but to preserve, protect, and defend the Const.i.tution. 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 Const.i.tution 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 Const.i.tution 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 Const.i.tution 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 Const.i.tution, 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 const.i.tutions.

The departments of the government established by the Const.i.tution are three in number: the Legislative (Congress), to make the laws and to pa.s.s 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 princ.i.p.al 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 pa.s.s upon the const.i.tutionality 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 Const.i.tution. In all our States the State judiciary has the same power to decide on the const.i.tutionality 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 CONSt.i.tUTIONAL CONVENTION INTENDED NATIONALITY.

Let us now retrace our steps and see what took place in the convention that made the Const.i.tution, and what those that made it intended.

Fortunately we have the journals of the convention that framed the Const.i.tution; 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, pa.s.sed 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 pa.s.sed 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 const.i.tutional 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 t.i.tle, "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, Ma.s.sachusetts, and Pennsylvania. Virginia then comprised the territory which is now West Virginia and Kentucky, and, including her slaves, had the largest population. Ma.s.sachusetts, instead of being insignificant in territory, had the large area of Maine, which was made into a separate State in 1820. Ma.s.sachusetts 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 a.s.serted 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]