Nullification, Secession Webster's Argument and the Kentucky and Virginia Resolutions Part 4

Mr. Bedford, of Delaware, a.s.serted 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 Ma.s.sachusetts. 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, Ma.s.sachusetts, and Pennsylvania would combine to crush the other States. Madison replied that their interests were so different there was no fear of this. Ma.s.sachusetts' 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 const.i.tutional 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 const.i.tutions and State judiciaries. If there had been rotten boroughs established by the Const.i.tution 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 Const.i.tution 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 Ma.s.sachusetts moved, that "the proceedings of the convention for the establishing of a _national government_" "be referred to a committee to prepare and report a Const.i.tution"; 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 Const.i.tution. The convention adjourned until August 6th, to give the necessary time to their committee. The resolves then pa.s.sed 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 pa.s.sed 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 Const.i.tution; a printed copy was furnished to each member.[38] The preamble was, "We, the people of the States of New Hampshire, Ma.s.sachusetts," then follow the names of all the other States, "do ordain, declare, and establish the following Const.i.tution for the government of ourselves and our posterity."

[38] Copy of Const.i.tution 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 t.i.tle 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 Const.i.tution was then taken up by its separate articles, and they were minutely and thoroughly discussed and somewhat altered. Each was again pa.s.sed, 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 Const.i.tution and the laws of the United States over the States and all citizens and State judiciary was pa.s.sed, 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 t.i.tle of "His Excellency" dropped.

The amended draft of the Const.i.tution 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 Const.i.tution 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 Const.i.tution was to be obligatory only on the people of those States adopting it. This change was not objected to by any one. The convention considered this final draft from the 12th to the 17th of September, and made some changes, when it was signed by all the delegates present except four.

The members of the convention evidently had studied for the occasion and were learned in the history of leagues and governments; they referred to Montesquieu, to Holland, Swiss Cantons, United Netherlands, Poland, Amphictyonic Conference, Archaean and Lycian Leagues, the Germanic body, and to Germany, from which the general principles of government came.

There was a diversity of opinion in the convention about the durability of the Union. Its rapid increase in population, its future greatness in territory (for the members believed in the acquisition of the Mississippi to its mouth), were foreseen and spoken of by many.

Some there were who thought, with the extreme difficulty of communication and intercourse, not knowing how steam navigation and the railroad would almost annihilate distance, that it would be impossible to keep such an immense territory and people together. Others congratulated themselves as the founders of a great empire. Sherman of Connecticut, on the question of limiting the number of new States to be admitted, from the fear of their controlling the old thirteen, replied: "We are providing for our posterity, our children and grandchildren, who are as likely to be citizens of new Western States as of the old States."[42] No one suggested any dissolution by claim of right of secession.

[42] 5 Elliot, 310.

When the supremacy and nationality of the intended government were settled, Yates and Lansing (who with Hamilton formed the delegation from New York) on July 3d left the convention, and in their letter to Governor Clinton,[43] stated that they did so because they were chosen to revise the Articles of the Confederation and that the principles of the Const.i.tution 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 a.s.sented 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 Ma.s.sachusetts 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 amba.s.sadors, judicial and other officers, would make an aristocracy of its members. He and Randolph, the one who brought the plan forward, thought the Const.i.tution 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 Const.i.tution 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 Const.i.tution 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 Ma.s.sachusetts, where were present, John Hanc.o.c.k, Fisher Ames, Rufus King, and Sam Adams, who reluctantly yielded consent, that the Const.i.tution 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 Const.i.tution 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 Const.i.tution 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 Const.i.tution. 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_.