“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.”
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]
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.
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]
“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]
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.
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?
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]
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.
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.
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.
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]
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.
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.
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.
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: