Nullification, Secession Webster's Argument and the Kentucky and Virginia Resolutions Part 5

[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 Const.i.tution 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 Const.i.tution, 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 Const.i.tution 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 Const.i.tution 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 pa.s.sed in full confidence that the bill of rights proposed by New York would be pa.s.sed.

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 a.s.sumed 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 Const.i.tution 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 Const.i.tution, 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 Const.i.tution, 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 Const.i.tution 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 Const.i.tution 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 Const.i.tution came very generally from the interior western parts of the State. They were so in Ma.s.sachusetts, 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. Ma.s.sachusetts in her pious and reverential ratification used the word compact, which numerous Southern writers, Davis, Stephens, and others, bring up as proof that Ma.s.sachusetts considered the Const.i.tution 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 a.s.senting to and ratifying a new const.i.tution in order to form a more perfect union, ... do, in the name and behalf of the people of the Commonwealth of Ma.s.sachusetts, a.s.sent to and ratify the said Const.i.tution for the United States of America."

It is _the people of the United States_, not the States, nor the people of the State of Ma.s.sachusetts, 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 Const.i.tution, 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 Const.i.tution 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 const.i.tutional 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 Const.i.tution 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 Const.i.tution in accordance with their wishes?

The conventions of Ma.s.sachusetts, Virginia, and New York pa.s.sed resolutions recommending what they considered important necessary amendments to the Const.i.tution. These resolutions and the recommendations of other States were considered in the first Congress, and ten articles, commonly called the Bill of Rights, were pa.s.sed, 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 pet.i.tion; 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 pa.s.sed 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 Const.i.tution, 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 Const.i.tution gave unlimited power to the Union.

We have seen that in the discussions in the const.i.tutional 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 Const.i.tution 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 pa.s.sed 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 pa.s.sed 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 Const.i.tution." Every State const.i.tution is a compact between the citizens to govern themselves in a certain manner, and the Const.i.tution 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 a.s.serted and apparently is generally believed, that in the lapse of time the limited authority of the United States has been gradually extended, national powers a.s.sumed, and the whole fabric of government changed. An examination, however, of the laws pa.s.sed 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 Const.i.tution. 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 pa.s.sed 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 a.s.sumpsit, 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 Const.i.tution, 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 Const.i.tution 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 Const.i.tution 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 Const.i.tution 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 inst.i.tuted 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 circ.u.mstances 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 Const.i.tution 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 const.i.tutes _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.