"I ask, What are these principles? Do they require that, in the establishment of the Constitution, the States should be regarded as distinct and independent sovereigns? They are so regarded by the Constitution proposed.... Do these principles, in fine, require that the powers of the General Government should be limited, and that, beyond this limit, the States should be left in possession of their sovereignty and independence? We have seen that, in the new Government as in the old, the general powers are limited; and that the States, in all unenumerated cases, are left in the enjoyment of their sovereign and independent jurisdiction."
"The truth is," he adds, "that the great principles of the Constitution proposed by the Convention may be considered less as absolutely new, than as the expansion of principles which are found in the Articles of Confederation."90
In the papers immediately following, he establishes this position in detail by an analysis of the principal powers delegated to the Federal Government, showing that the spirit of the original instructions to the Convention had been followed in revising "the Federal Constitution" and rendering it "adequate to the exigencies of government and the preservation of the Union."91
The present Union owes its very existence to the dissolution, by separate secession of its members, of the former Union, which, as we have thus seen, as to its organic principles, rested upon precisely the same foundation. The right to withdraw from the association results, in either case, from the same principles—principles which, I think, have been established on an impregnable basis of history, reason, law, and precedent.
It is not contended that this right should be resorted to for insufficient cause, or, as the writer already quoted on the law of partnership says, "wantonly and injuriously to the other partners," without responsibility of the seceding party for any damage thus done. No association can be dissolved without a likelihood of the occurrence of incidental questions concerning common property and mutual obligations—questions sometimes of a complex and intricate sort. If a wrong be perpetrated, in such case, it is a matter for determination by the means usually employed among independent and sovereign powers—negotiation, arbitration, or, in the failure of these, by war, with which, unfortunately, Christianity and civilization have not yet been able entirely to dispense. But the suggestion of possible evils does not at all affect the question of right. There is no great principle in the affairs either of individuals or of nations that is not liable to such difficulties in its practical application.
But, we are told, there is no mention made of secession in the Constitution. Mr. Everett says: "The States are not named in it; the word sovereignty does not occur in it; the right of secession is as much ignored in it as the procession of the equinoxes." We have seen how very untenable is the assertion that the States are not named in it, and how much pertinency or significance in the omission of the word "sovereignty." The pertinent question that occurs is, Why was so obvious an attribute of sovereignty not expressly renounced if it was intended to surrender it? It certainly existed; it was not surrendered; therefore it still exists. This would be a more natural and rational conclusion than that it has ceased to exist because it is not mentioned.
The simple truth is, that it would have been a very extraordinary thing to incorporate into the Constitution any express provision for the secession of the States and dissolution of the Union. Its founders undoubtedly desired and hoped that it would be perpetual; against the proposition for power to coerce a State, the argument was that it would be a means, not of preserving, but of destroying, the Union. It was not for them to make arrangements for its termination—a calamity which there was no occasion to provide for in advance. Sufficient for their day was the evil thereof. It is not usual, either in partnerships between men or in treaties between governments, to make provision for a dissolution of the partnership or a termination of the treaty, unless there be some special reason for a limitation of time. Indeed, in treaties, the usual formula includes a declaration of their perpetuity; but in either case the power of the contracting parties, or of any of them, to dissolve the compact, on terms not damaging to the rights of the other parties, is not the less clearly understood. It was not necessary in the Constitution to affirm the right of secession, because it was an attribute of sovereignty, and the States had reserved all which they had not delegated.
The right of the people of the several States to resume the powers delegated by them to the common agency, was not left without positive and ample assertion, even at a period when it had never been denied. The ratification of the Constitution by Virginia has already been quoted, in which the people of that State, through their Convention, did expressly "declare and make known that the powers granted under the Constitution, being derived from the people of the United States, may be resumed by them, whensoever the same shall be perverted to their injury or oppression, and that every power not granted thereby remains with them and at their will."92
New York and Rhode Island were no less explicit, both declaring that "the powers of government may be reassumed by the people whenever it shall become necessary to their happiness."93
These expressions are not mere obiter dicta, thrown out incidentally, and entitled only to be regarded as an expression of opinion by their authors. Even if only such, they would carry great weight as the deliberately expressed judgment of enlightened contemporaries, but they are more: they are parts of the very acts or ordinances by which these States ratified the Constitution and acceded to the Union, and can not be detached from them. If they are invalid, the ratification itself was invalid, for they are inseparable. By inserting these declarations in their ordinances, Virginia, New York, and Rhode Island, formally, officially, and permanently, declared their interpretation of the Constitution as recognizing the right of secession by the resumption of their grants. By accepting the ratifications with this declaration incorporated, the other States as formally accepted the principle which it asserted.
I am well aware that it has been attempted to construe these declarations concerning the right of the people to reassume their delegations of power—especially in the terms employed by Virginia, "people of the United States"—as having reference to the idea of one people, in mass, or "in the aggregate." But it can scarcely be possible that any candid and intelligent reader, who has carefully considered the evidence already brought to bear on the subject, can need further argument to disabuse his mind of that political fiction. The "people of the United States," from whom the powers of the Federal Government were "derived," could have been no other than the people who ordained and ratified the Constitution; and this, it has been shown beyond the power of denial, was done by the people of each State, severally and independently. No other people were known to the authors of the declarations above quoted. Mr. Madison was a leading member of the Virginia Convention, which made that declaration, as well as of the general Convention that drew up the Constitution. We have seen what his idea of "the people of the United States" was—"not the people as composing one great body, but the people as composing thirteen sovereignties."94 Mr. Lee, of Westmoreland ("Light-Horse Harry"), in the same Convention, answering Mr. Henry's objection to the expression, "We, the people," said: "It [the Constitution] is now submitted to the people of Virginia. If we do not adopt it, it will be always null and void as to us. Suppose it was found proper for our adoption, and becoming the government of the people of Virginia, by what style should it be done? Ought we not to make use of the name of the people? No other style would be proper."95 It would certainly be superfluous, after all that has been presented heretofore, to add any further evidence of the meaning that was attached to these expressions by their authors. "The people of the United States" were in their minds the people of Virginia, the people of Massachusetts, and the people of every other State that should agree to unite. They could have meant only that the people of their respective States who had delegated certain powers to the Federal Government, in ratifying the Constitution and acceding to the Union, reserved to themselves the right, in event of the failure of their purposes, to "resume" (or "reassume") those powers by seceding from the same Union.
Finally, the absurdity of the construction attempted to be put upon these expressions will be evident from a very brief analysis. If the assertion of the right of reassumption of their powers was meant for the protection of the whole people—the people in mass—the people "in the aggregate"—of a consolidated republic—against whom or what was it to protect them? By whom were the powers granted to be perverted to the injury or oppression of the whole people? By themselves or by some of the States, all of whom, according to this hypothesis, had been consolidated into one? As no danger could have been apprehended from either of these, it must have been against the Government of the United States that the provision was made; that is to say, the whole people of a republic make this declaration against a Government established by themselves and entirely subject to their own control, under a Constitution which contains provision for its own amendment by this very same "whole people," whenever they may think proper! Is it not a libel upon the statesmen of that generation to attribute to their grave and solemn declarations a meaning so vapid and absurd?
To those who argue that the grants of the Constitution are fatal to the reservation of sovereignty by the States, the Constitution furnishes a conclusive answer in the amendment which was coeval with the adoption of the instrument, and which declares that all powers not delegated to the Government of the Union were reserved to the States or to the people. As sovereignty was not delegated by the States, it was necessarily reserved. It would be superfluous to answer arguments against implied powers of the States; none are claimed by implication, because all not delegated by the States remained with them, and it was only in an abundance of caution that they expressed the right to resume such parts of their unlimited power as was delegated for the purposes enumerated. As there be those who see danger to the perpetuity of the Union in the possession of such power by the States, and insist that our fathers did not intend to bind the States together by a compact no better than "a rope of sand," it may be well to examine their position. From what have dangers to the Union arisen? Have they sprang from too great restriction on the exercise of the granted powers, or from the assumption by the General Government of power claimed by implication? The whole record of our Union answers, from the latter only.
Was this tendency to usurpation caused by the presumption of paramount authority in the General Government, or by the assertion of the right of a State to resume the powers it had delegated? Reasonably and honestly it can not be assigned to the latter. Let it be supposed that the "whole people" had recognized the right of a State of the Union, peaceably and independently, to resume the powers which, peaceably and independently, she had delegated to the Federal Government, would not this have been potent to restrain the General Government from exercising its functions to the injury and oppression of such State? To deny that effect would be to suppose that a dominant majority would be willing to drive a State from the Union. Would the admission of the right of a State to resume the grants it had made, have led to the exercise of that right for light and trivial causes? Surely the evidence furnished by the nations, both ancient and modern, refutes the supposition. In the language of the Declaration of Independence, "All experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed." Would not real grievances be rendered more tolerable by the consciousness of power to remove them; and would not even imaginary wrongs be embittered by the manifestation of a purpose to make them perpetual? To ask these questions is to answer them.
The wise and brave men who had, at much peril and great sacrifice, secured the independence of the States, were as little disposed to surrender the sovereignty of the States as they were anxious to organize a General Government with adequate powers to remedy the defects of the Confederation. The Union they formed was not to destroy the States, but to "secure the blessings of liberty to ourselves and our posterity."
Footnote 89: (return)Ratification appended to Articles of Confederation. (See Elliott's "Debates," vol. i, p. 113.)
Coercion the Alternative to Secession.—Repudiation of it by the Constitution and the Fathers of the Constitutional Era.—Difference between Mr. Webster and Mr. Hamilton.
The alternative to secession is coercion. That is to say, if no such right as that of secession exists—if it is forbidden or precluded by the Constitution—then it is a wrong; and, by a well settled principle of public law, for every wrong there must be a remedy, which in this case must be the application of force to the State attempting to withdraw from the Union.
Early in the session of the Convention which formed the Constitution, it was proposed to confer upon Congress the power "to call forth the force of the Union against any member of the Union failing to fulfill its duty under the articles thereof." When this proposition came to be considered, Mr. Madison observed that "a union of the States containing such an ingredient seemed to provide for its own destruction. The use of force against a State would look more like a declaration of war than an infliction of punishment, and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound. He hoped that such a system would be framed as might render this recourse unnecessary, and moved that the clause be postponed." This motion was adopted nem. con., and the proposition was never again revived.96 Again, on a subsequent occasion, speaking of an appeal to force, Mr. Madison said: "Was such a remedy eligible? Was it practicable?... Any government for the United States, formed on the supposed practicability of using force against the unconstitutional proceedings of the States, would prove as visionary and fallacious as the government of Congress."97 Every proposition looking in any way to the same or a similar object was promptly rejected by the convention. George Mason, of Virginia, said of such a proposition: "Will not the citizens of the invaded State assist one another, until they rise as one man and shake off the Union altogether?"98
Oliver Ellsworth, in the ratifying Convention of Connecticut, said: "This Constitution does not attempt to coerce sovereign bodies, States, in their political capacity. No coercion is applicable to such bodies but that of an armed force. If we should attempt to execute the laws of the Union by sending an armed force against a delinquent State, it would involve the good and bad, the innocent and guilty, in the same calamity."99
Mr. Hamilton, in the Convention of New York, said: "To coerce the States is one of the maddest projects that was ever devised.... What picture does this idea present to our view? A complying State at war with a non-complying State: Congress marching the troops of one State into the bosom of another ... Here is a nation at war with itself. Can any reasonable man be well disposed toward a government which makes war and carnage the only means of supporting itself—a government that can exist only by the sword?... But can we believe that one State will ever suffer itself to be used as an instrument of coercion? The thing is a dream—it is impossible."100
Unhappily, our generation has seen that, in the decay of the principles and feelings which animated the hearts of all patriots in that day, this thing, like many others then regarded as impossible dreams, has been only too feasible, and that States have permitted themselves to be used as instruments, not merely for the coercion, but for the destruction of the freedom and independence of their sister States.
Edmund Randolph, Governor of Virginia, although the mover of the original proposition to authorize the employment of the forces of the Union against a delinquent member, which had been so signally defeated in the Federal Convention, afterward, in the Virginia Convention, made an eloquent protest against the idea of the employment of force against a State. "What species of military coercion," said he, "could the General Government adopt for the enforcement of obedience to its demands? Either an army sent into the heart of a delinquent State, or blocking up its ports. Have we lived to this, then, that, in order to suppress and exclude tyranny, it is necessary to render the most affectionate friends the most bitter enemies, set the father against the son, and make the brother slay the brother? Is this the happy expedient that is to preserve liberty? Will it not destroy it? If an army be once introduced to force us, if once marched into Virginia, figure to yourselves what the dreadful consequence will be: the most lamentable civil war must ensue."101
We have seen already how vehemently the idea of even judicial coercion was repudiated by Hamilton, Marshall, and others. The suggestion of military coercion was uniformly treated, as in the above extracts, with still more abhorrence. No principle was more fully and firmly settled on the highest authority than that, under our system, there could be no coercion of a State.
Mr. Webster, in his elaborate speech of February 16, 1833, arguing throughout against the sovereignty of the States, and in the course of his argument sadly confounding the ideas of the Federal Constitution and the Federal Government, as he confounds the sovereign people of the States with the State governments, says: "The States can not omit to appoint Senators and electors. It is not a matter resting in State discretion or State pleasure.... No member of a State Legislature can refuse to proceed, at the proper time, to elect Senators to Congress, or to provide for the choice of electors of President and Vice-President, any more than the members can refuse, when the appointed day arrives, to meet the members of the other House, to count the votes for those officers and ascertain who are chosen."102 This was before the invention in 1877 of an electoral commission to relieve Congress of its constitutional duty to count the vote. Mr. Hamilton, on the contrary, fresh from the work of forming the Constitution, and familiar with its principles and purposes, said: "It is certainly true that the State Legislatures, by forbearing the appointment of Senators, may destroy the national Government."103
It is unnecessary to discuss the particular question on which these two great authorities are thus directly at issue. I do not contend that the State Legislatures, of their own will, have a right to forego the performance of any Federal duty imposed upon them by the Constitution. But there is a power beyond and above that of either the Federal or State governments—the power of the people of the State, who ordained and established the Constitution, as far as it applies to themselves, reserving, as I think has been demonstrated, the right to reassume the grants of power therein made, when they deem it necessary for their safety or welfare to do so. At the behest of this power, it certainly becomes not only the right, but the duty, of their State Legislature to refrain from any action implying adherence to the Union, or partnership, from which the sovereign has withdrawn.
Some Objections considered.—The New States.—Acquired Territory.—Allegiance, false and true.—Difference between Nullification and Secession.—Secession a Peaceable Remedy.—No Appeal to Arms.—Two Conditions noted.
It would be only adding to a superabundance of testimony to quote further from the authors of the Constitution in support of the principle, unquestioned in that generation, that the people who granted—that is to say, of course, the people of the several States—might resume their grants. It will require but few words to dispose of some superficial objections that have been made to the application of this doctrine in a special case.
It is sometimes said that, whatever weight may attach to principles founded on the sovereignty and independence of the original thirteen States, they can not apply to the States of more recent origin—constituting now a majority of the members of the Union—because these are but the offspring or creatures of the Union, and must of course be subordinate and dependent.
This objection would scarcely occur to any instructed mind, though it may possess a certain degree of specious plausibility for the untaught. It is enough to answer that the entire equality of the States, in every particular, is a vital condition of their union. Every new member that has been admitted into the partnership of States came in, as is expressly declared in the acts for their admission, on a footing of perfect equality in every respect with the original members. This equality is as complete as the equality, before the laws, of the son with the father, immediately on the attainment by the former of his legal majority, without regard to the prior condition of dependence and tutelage. The relations of the original States to one another and to the Union can not be affected by any subsequent accessions of new members, as the Constitution fixes those relations permanently, and furnishes the normal standard which is applicable to all. The Boston memorial to Congress, referred to in a foregoing chapter, as prepared by a committee with Mr. Webster at its head, says that the new States "are universally considered as admitted into the Union upon the same footing as the original States, and as possessing, in respect to the Union, the same rights of sovereignty, freedom, and independence, as the other States."
But, with regard to States formed of territory acquired by purchase from France, Spain, and Mexico, it is claimed that, as they were bought by the United States, they belong to the same, and have no right to withdraw at will from an association the property which had been purchased by the other parties.
Happy would it have been if the equal rights of the people of all the States to the enjoyment of territory acquired by the common treasure could have been recognized at the proper time! There would then have been no secession and no war.
As for the sordid claim of ownership of States, on account of the money spent for the land which they contain—I can understand the ground of a claim to some interest in the soil, so long as it continues to be public property, but have yet to learn in what way the United States ever became purchaser of the inhabitants or of their political rights.
Any question in regard to property has always been admitted to be matter for fair and equitable settlement, in case of the withdrawal of a State.
The treaty by which the Louisiana territory was ceded to the United States expressly provided that the inhabitants thereof should be "admitted, as soon as possible, according to the principles of the Federal Constitution, to the enjoyment of all the rights, advantages, and immunities of citizens of the United States."104 In all other acquisitions of territory the same stipulation is either expressed or implied. Indeed, the denial of the right would be inconsistent with the character of American political institutions.
Another objection made to the right of secession is based upon obscure, indefinite, and inconsistent ideas with regard to allegiance. It assumes various shapes, and is therefore somewhat difficult to meet, but, as most frequently presented, may be stated thus: that the citizen owes a double allegiance, or a divided allegiance—partly to his State, partly to the United States: that it is not possible for either of these powers to release him from the allegiance due to the other: that the State can no more release him from his obligations to the Union than the United States can absolve him from his duties to his State. This is the most moderate way in which the objection is put. The extreme centralizers go further, and claim that allegiance to the Union, or, as they generally express it, to the Government—meaning thereby the Federal Government—is paramount, and the obligation to the State only subsidiary—if, indeed, it exists at all.
This latter view, if the more monstrous, is at least the more consistent of the two, for it does not involve the difficulty of a divided allegiance, nor the paradoxical position in which the other places the citizen, in case of a conflict between his State and the other members of the Union, of being necessarily a rebel against the General Government or a traitor to the State of which he is a citizen.
As to true allegiance, in the light of the principles which have been established, there can be no doubt with regard to it. The primary, paramount allegiance of the citizen is due to the sovereign only. That sovereign, under our system, is the people—the people of the State to which he belongs—the people who constituted the State government which he obeys, and which protects him in the enjoyment of his personal rights—the people who alone (as far as he is concerned) ordained and established the Federal Constitution and Federal Government—the people who have reserved to themselves sovereignty, which involves the power to revoke all agencies created by them. The obligation to support the State or Federal Constitution and the obedience due to either State or Federal Government are alike derived from and dependent on the allegiance due to this sovereign. If the sovereign abolishes the State government and ordains and establishes a new one, the obligation of allegiance requires him to transfer his obedience accordingly. If the sovereign withdraws from association with its confederates in the Union, the allegiance of the citizen requires him to follow the sovereign. Any other course is rebellion or treason—words which, in the cant of the day, have been so grossly misapplied and perverted as to be made worse than unmeaning. His relation to the Union arose from the membership of the State of which he was a citizen, and ceased whenever his State withdrew from it. He can not owe obedience—much less allegiance—to an association from which his sovereign has separated, and thereby withdrawn him.
Every officer of both Federal and State governments is required to take an oath to support the Constitution, a compact the binding force of which is based upon the sovereignty of the States—a sovereignty necessarily carrying with it the principles just stated with regard to allegiance. Every such officer is, therefore, virtually sworn to maintain and support the sovereignty of all the States.
Military and naval officers take, in addition, an oath to obey the lawful orders of their superiors. Such an oath has never been understood to be eternal in its obligations. It is dissolved by the death, dismissal, or resignation of the officer who takes it; and such resignation is not a mere optional right, but becomes an imperative duty when continuance in the service comes to be in conflict with the ultimate allegiance due to the sovereignty of the State to which he belongs.
A little consideration of these plain and irrefutable truths would show how utterly unworthy and false are the vulgar taunts which attribute "treason" to those who, in the late secession of the Southern States, were loyal to the only sovereign entitled to their allegiance, and which still more absurdly prate of the violation of oaths to support "the Government," an oath which nobody ever could have been legally required to take, and which must have been ignorantly confounded with the prescribed oath to support the Constitution.
Nullification and secession are often erroneously treated as if they were one and the same thing. It is true that both ideas spring from the sovereign right of a State to interpose for the protection of its own people, but they are altogether unlike as to both their extent and the character of the means to be employed. The first was a temporary expedient, intended to restrain action until the question at issue could be submitted to a convention of the States. It was a remedy which its supporters sought to apply within the Union; a means to avoid the last resort—separation. If the application for a convention should fail, or if the State making it should suffer an adverse decision, the advocates of that remedy have not revealed what they proposed as the next step—supposing the infraction of the compact to have been of that character which, according to Mr. Webster, dissolved it.
Secession, on the other hand, was the assertion of the inalienable right of a people to change their government, whenever it ceased to fulfill the purposes for which it was ordained and established. Under our form of government, and the cardinal principles upon which it was founded, it should have been a peaceful remedy. The withdrawal of a State from a league has no revolutionary or insurrectionary characteristic. The government of the State remains unchanged as to all internal affairs. It is only its external or confederate relations that are altered. To term this action of a sovereign a "rebellion," is a gross abuse of language. So is the flippant phrase which speaks of it as an appeal to the "arbitrament of the sword." In the late contest, in particular, there was no appeal by the seceding States to the arbitrament of arms. There was on their part no invitation nor provocation to war. They stood in an attitude of self-defense, and were attacked for merely exercising a right guaranteed by the original terms of the compact. They neither tendered nor accepted any challenge to the wager of battle. The man who defends his house against attack can not with any propriety be said to have submitted the question of his right to it to the arbitrament of arms.
Two moral obligations or restrictions upon a seceding State certainly exist: in the first place, not to break up the partnership without good and sufficient cause; and, in the second, to make an equitable settlement with former associates, and, as far as may be, to avoid the infliction of loss or damage upon any of them. Neither of these obligations was violated or neglected by the Southern States in their secession.
Early Foreshadowings.—Opinions of Mr. Madison and Mr. Rufus King.—Safeguards provided.—Their Failure.—State Interposition.—The Kentucky and Virginia Resolutions.—Their Endorsement by the People in the Presidential Elections of 1800 and Ensuing Terms.—South Carolina and Mr. Calhoun.—The Compromise of 1833.—Action of Massachusetts in 1843-'45.—Opinions of John Quincy Adams.—Necessity for Secession.
From the earliest period, it was foreseen by the wisest of our statesmen that a danger to the perpetuity of the Union would arise from the conflicting interests of different sections, and every effort was made to secure each of these classes of interests against aggression by the other. As a proof of this, may be cited the following extract from Mr. Madison's report of a speech made by himself in the Philadelphia Convention on the 30th of June, 1787:
"He admitted that every peculiar interest, whether in any class of citizens or any description of States, ought to be secured as far as possible. Wherever there is danger of attack, there ought to be given a constitutional power of defense. But he contended that the States were divided into different interests, not by their difference of size, but by other circumstances; the most material of which resulted from climate, but principally from the effects of their having or not having slaves. These two causes concurred in forming the great division of interests in the United States. It did not lie between the large and small States; it lay between the Northern and Southern; and, if any defensive power were necessary, it ought to be mutually given to these two interests."105
Mr. Rufus King, a distinguished member of the Convention from Massachusetts, a few days afterward, said, to the same effect: "He was fully convinced that the question concerning a difference of interests did not lie where it had hitherto been discussed, between the great and small States, but between the Southern and Eastern. For this reason he had been ready to yield something, in the proportion of representatives, for the security of the Southern.... He was not averse to giving them a still greater security, but did not see how it could be done."106
The wise men who formed the Constitution were not seeking to bind the States together by the material power of a majority; nor were they so blind to the influences of passion and interest as to believe that paper barriers would suffice to restrain a majority actuated by either or both of these motives. They endeavored, therefore, to prevent the conflicts inevitable from the ascendancy of a sectional or party majority, by so distributing the powers of government that each interest might hold a check upon the other. It was believed that the compromises made with regard to representation—securing to each State an equal vote in the Senate, and in the House of Representatives giving the States a weight in proportion to their respective population, estimating the negroes as equivalent to three fifths of the same number of free whites—would have the effect of giving at an early period a majority in the House of Representatives to the South, while the North would retain the ascendancy in the Senate. Thus it was supposed that the two great sectional interests would be enabled to restrain each other within the limits of purposes and action beneficial to both.
The failure of these expectations need not affect our reverence for the intentions of the fathers, or our respect for the means which they devised to carry them into effect. That they were mistaken, both as to the maintenance of the balance of sectional power and as to the fidelity and integrity with which the Congress was expected to conform to the letter and spirit of its delegated authority, is perhaps to be ascribed less to lack of prophetic foresight, than to that over-sanguine confidence which is the weakness of honest minds, and which was naturally strengthened by the patriotic and fraternal feelings resulting from the great struggle through which they had then but recently passed. They saw, in the sufficiency of the authority delegated to the Federal Government and in the fullness of the sovereignty retained by the States, a system the strict construction of which was so eminently adapted to indefinite expansion of the confederacy as to embrace every variety of production and consequent diversity of pursuit. Carried out in the spirit in which it was devised, there was in this system no element of disintegration, but every facility for an enlargement of the circle of the family of States (or nations), so that it scarcely seemed unreasonable to look forward to a fulfillment of the aspiration of Mr. Hamilton, that it might extend over North America, perhaps over the whole continent.
Not at all incompatible with these views and purposes was the recognition of the right of the States to reassume, if occasion should require it, the powers which they had delegated. On the contrary, the maintenance of this right was the surest guarantee of the perpetuity of the Union, and the denial of it sounded the first serious note of its dissolution. The conservative efficiency of "State interposition," for maintenance of the essential principles of the Union against aggression or decadence, is one of the most conspicuous features in the debates of the various State Conventions by which the Constitution was ratified. Perhaps their ideas of the particular form in which this interposition was to be made may have been somewhat indefinite; and left to be reduced to shape by the circumstances when they should arise, but the principle itself was assumed and asserted as fundamental. But for a firm reliance upon it, as a sure resort in case of need, it may safely be said that the Union would never have been formed. It would be unjust to the wisdom and sagacity of the framers of the Constitution to suppose that they entirely relied on paper barriers for the protection of the rights of minorities. Fresh from the defense of violated charters and faithless aggression on inalienable rights, it might, a priori, be assumed that they would require something more potential than mere promises to protect them from human depravity and human ambition. That they did so is to be found in the debates both of the General and the State Conventions, where State interposition was often declared to be the bulwark against usurpation.
At an early period in the history of the Federal Government, the States of Kentucky and Virginia found reason to reassert this right of State interposition. In the first of the famous resolutions drawn by Mr. Jefferson in 1798, and with some modification adopted by the Legislature of Kentucky in November of that year, it is declared that, "whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force; that to this compact each State acceded as a State, and is an integral party; that this Government, created by this compact, was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among parties having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress."
In the Virginia resolutions, drawn by Mr. Madison, adopted on the 24th of December, 1798, and reaffirmed in 1799, the General Assembly of that State declares that "it views the powers of the Federal Government as resulting from the compact, to which the States are parties, as limited by the plain sense and intention of the instrument constituting that compact, as no further valid than they are authorized by the grants enumerated in that compact; and that, in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the States, who are parties thereto, have the right, and are in duty bound, to interpose, for arresting the progress of the evil, and for maintaining within their respective limits the authorities, rights, and liberties, appertaining to them." Another of the same series of resolutions denounces the indications of a design "to consolidate the States by degrees into one sovereignty."
These, it is true, were only the resolves of two States, and they were dissented from by several other State Legislatures—not so much on the ground of opposition to the general principles asserted as on that of their being unnecessary in their application to the alien and sedition laws, which were the immediate occasion of their utterance. Nevertheless, they were the basis of the contest for the Presidency in 1800, which resulted in their approval by the people in the triumphant election of Mr. Jefferson. They became part of the accepted creed of the Republican, Democratic, State-Rights, or Conservative party, as it has been variously termed at different periods, and as such they were ratified by the people in every Presidential election that took place for sixty years, with two exceptions. The last victory obtained under them, and when they were emphasized by adding the construction of them contained in the report of Mr. Madison to the Virginia Legislature in 1799, was at the election of Mr. Buchanan—the last President chosen by vote of a party that could with any propriety be styled "national," in contradistinction to sectional.
At a critical and memorable period, that pure spirit, luminous intellect, and devoted adherent of the Constitution, the great statesman of South Carolina, invoked this remedy of State interposition against the Tariff Act of 1828, which was deemed injurious and oppressive to his State. No purpose was then declared to coerce the State, as such, but measures were taken to break the protective shield of her authority and enforce the laws of Congress upon her citizens, by compelling them to pay outside of her ports the duties on imports, which the State had declared unconstitutional, and had forbidden to be collected in her ports.
There remained at that day enough of the spirit in which the Union had been founded—enough of respect for the sovereignty of States and of regard for the limitations of the Constitution—to prevent a conflict of arms. The compromise of 1833 was adopted, which South Carolina agreed to accept, the principle for which she contended being virtually conceded.
Meantime there had been no lack, as we have already seen, of assertions of the sovereign rights of the States from other quarters. The declaration of these rights by the New England States and their representatives, on the acquisition of Louisiana in 1803, on the admission of the State of that name in 1811-'12, and on the question of the annexation of Texas in 1843-'45, have been referred to in another place. Among the resolutions of the Massachusetts Legislature, in relation to the proposed annexation of Texas, adopted in February, 1845, were the following:
"2. Resolved, That there has hitherto been no precedent of the admission of a foreign state or foreign territory into the Union by legislation. And as the powers of legislation, granted in the Constitution of the United States to Congress, do not embrace a case of the admission of a foreign state or foreign territory, by legislation, into the Union, such an act of admission would have no binding force whatever on the people of Massachusetts.
"3. Resolved, That the power, never having been granted by the people of Massachusetts, to admit into the Union States and Territories not within the same when the Constitution was adopted, remains with the people, and can only be exercised in such way and manner as the people shall hereafter designate and appoint."107
To these stanch declarations of principles—with regard to which (leaving out of consideration the particular occasion that called them forth) my only doubt would be whether they do not express too decided a doctrine of nullification—may be added the avowal of one of the most distinguished sons of Massachusetts, John Quincy Adams, in his discourse before the New York Historical Society, in 1839:
"Nations" (says Mr. Adams) "acknowledge no judge between them upon earth; and their governments, from necessity, must, in their intercourse with each other, decide when the failure of one party to a contract to perform its obligations absolves the other from the reciprocal fulfillment of its own. But this last of earthly powers is not necessary to the freedom or independence of States connected together by the immediate action of the people of whom they consist. To the people alone is there reserved as well the dissolving as the constituent power, and that power can be exercised by them only under the tie of conscience, binding them to the retributive justice of Heaven.
"With these qualifications, we may admit the same right as vested in the people of every State in the Union, with reference to the General Government, which was exercised by the people of the united colonies with reference to the supreme head of the British Empire, of which they formed a part; and under these limitations have the people of each State in the Union a right to secede from the confederated Union itself.
"Thus stands the RIGHT. But the indissoluble link of union between the people of the several States of this confederated nation is, after all, not in the RIGHT, but in the HEART. If the day should ever come (may Heaven avert it!) when the affections of the people of these States shall be alienated from each other, when the fraternal spirit shall give way to cold indifference, or collision of interests shall fester into hatred, the bonds of political association will not long hold together parties no longer attracted by the magnetism of conciliated interests and kindly sympathies; and far better will it be for the people of the disunited States to part in friendship with each other than to be held together by constraint. Then will be the time for reverting to the precedents which occurred at the formation and adoption of the Constitution, to form again a more perfect Union, by dissolving that which could no longer bind, and to leave the separated parts to be reunited by the law of political gravitation to the center."
Perhaps it is unfortunate that, in earlier and better times, when the prospect of serious difficulties first arose, a convention of the States was not assembled to consider the relations of the various States and the Government of the Union. As time rolled on, the General Government, gathering with both hands a mass of undelegated powers, reached that position which Mr. Jefferson had pointed out as an intolerable evil—the claim of a right to judge of the extent of its own authority. Of those then participating in public affairs, it was apparently useless to ask that the question should be submitted for decision to the parties to the compact, under the same conditions as those which controlled the formation and adoption of the Constitution; otherwise, a convention would have been utterly fruitless, for at that period, when aggression for sectional aggrandizement had made such rapid advances, it can scarcely be doubted that more than a fourth, if not a majority of States, would have adhered to that policy which had been manifested for years in the legislation of many States, as well as in that of the Federal Government. What course would then have remained to the Southern States? Nothing, except either to submit to a continuation of what they believed and felt to be violations of the compact of union, breaches of faith, injurious and oppressive usurpation, or else to assert the sovereign right to reassume the grants they had made, since those grants had been perverted from their original and proper purposes.
Surely the right to resume the powers delegated and to judge of the propriety and sufficiency of the causes for doing so are alike inseparable from the possession of sovereignty. Over sovereigns there is no common judge, and between them can be no umpire, except by their own agreement and consent. The necessity or propriety of exercising the right to withdraw from a confederacy or union must be determined by each member for itself. Once determined in favor of withdrawal, all that remains for consideration is the obligation to see that no wanton damage is done to former associates, and to make such fair settlement of common interests as the equity of the case may require.