We must bear in mind that this discussion was on the power of South Carolina while remaining in the Union to declare the laws of the United States null and void, and her own laws preventing their execution valid. A singular claim that a State could enjoy the benefits of the Union and at the same time disobey its laws; this is nullification which Mr. Webster had to combat. His argument, however, applies equally strongly to the claim of the right of secession. Indeed he says in his speech in reply to Calhoun:

Between Webster’s debate with Hayne, and that with Calhoun three years afterwards, South Carolina had called a convention of its people and passed resolutions declaring the United States tariff laws null and void, and made laws of her own, forbidding and preventing the collection of duties in the State, with threats of secession if an attempt to collect them were made. Measures had also been taken to make a forcible resistance—munitions of war collected and the militia organized and drilled. Fortunately for the country at that crisis Andrew Jackson, the President, was a Southerner and owner of many slaves and true to the Union. He was a man of indomitable will, believed in implicitly and trusted and enthusiastically followed by the great mass of the people. Any policy of his commanded success. He did not hesitate as to his course, he at once issued a proclamation, and sent a message to Congress asking for powers to enforce the tariff laws of the United States and if necessary to remove the custom-houses to safe places. In his proclamation he declared that the Constitution of the United States forms a government, not a league; that it is a government that acts on the people individually and not on the States, and whether it be formed by compact between the States or in any other manner its character is the same. “The States retained all the power of the government,” he said, “they did not grant: but each State, having expressly parted with so many powers as to constitute, jointly with the other States, a single nation, cannot from that period possess any right to secede, because such secession does not break a league, but destroys the unity of a nation.” As a South Carolinian—Jackson supposed he was born in South Carolina, though his biographer, Parton, says it was in North Carolina, near the line—he earnestly pleaded with his fellow-citizens not to resist the laws of the United States.[8] He had previously at a dinner in celebration of Jefferson’s birthday, when nullification sentiments had been advanced, given as his toast: “Our Federal Union: it must be preserved.”

It was generally said and believed that Jackson had threatened to hang Calhoun as high as Haman if the law was resisted. This from Jackson was no idle threat. There had been no other President of such inflexible will. No other general ever assumed the authority he did in the Indian wars and in that of 1812. He had fought those campaigns and gained the battle of New Orleans, suffering at times agony from old wounds received in a street brawl, that would have disabled any ordinary commander. Thrice when in command he had exercised the power of punishing capitally; he had hanged Arbuthnot and Ambrister; again, he had a militiaman shot; and at the close of the war had permitted the execution of six Tennesseeans, though they pleaded in defence, and probably believed, that their time of enlistment had ended. The threat of hanging, however, did not daunt Calhoun, who declared boldly, perhaps pathetically, that Carolina alone would resist, even to death itself.

Mr. Clay, as on other occasions where a great crisis had arisen, effected a compromise. A force bill to collect duties, which South Carolina strenuously opposed, was enacted by large majorities in the Senate and House of Representatives; and a bill was afterwards passed gradually reducing the import duties then levied, which Calhoun and South Carolina assented to.

CHAPTER II.

THE NATIONALITY OF THE CONSTITUTION.

The claim of South Carolina, at the time of her threatened nullification and secession, and of the South at the period of our civil war, is, that the Constitution which the States adopted formed them into a confederacy and not a nation. It is admitted, and is not denied, that if the government established was national there can be no valid claim of a component part to treat its laws as of no validity, a nullity, or to dissolve it at its will.

Indeed, Calhoun, the great expounder of the nullification and secession doctrine, considered this to be a vital matter, and always insisted that the United States was not a nation. He complained that the reporters made him say,

The South during the civil war claimed that the States made the government of the United States, and that the States were and remained independent sovereign nations. And each State being an independent sovereign nation, had the right to decide whether the power it had given to the United States Government was properly exercised by its Legislature or its officers, and to declare and treat as a nullity and as void any law passed, any act done in excess of that authority, and to withdraw from the Confederacy—that is, to secede, at its will.

It will at once be seen, as the time during which the Union is to endure is not limited in the Constitution, that, if this right of secession exists, a State could leave the day after it adopted the Constitution. The Union is either perpetual or dissoluble at pleasure. In the secession ordinances passed by the Southern States at the commencement of the civil war the ground was taken that the States of their sovereign right and will resumed their place as independent nations. That is, the duration of the Union was from the very beginning at the caprice of each and every State. No less, if the doctrine of nullification be correct, that each State can declare and treat as null and void the acts of the United States it deems beyond the powers it has granted, it can nullify and make void the laws of the United States, all the acts of its officers, all the judiciary proceedings at its caprice.

Nor is it extravagant to say caprice. South Carolina’s nullification and secession acts and resolves in 1832 were on the ground of the unconstitutionality of a protective tariff. There had been a great number of protective tariffs enacted before, which South Carolina had favored by her votes, and the second law of the United States, enacted at the commencement of the government, at the first session of the first Congress, was for the protection and encouragement of manufactures. Its preamble is: “Whereas, it is necessary for the support of government, for the discharge of the debts of the United States, and the encouragement and protection of manufactures, that duties be laid on goods, wares, and merchandise imported.” Madison,[10] who was the leader of the House of Representatives in this first Congress, wrote that no one questioned the right of making protective duties. Billions of dollars have been levied by the collection of protective duties from the beginning of the government to the present day. No litigant paying duties even as excessive as those on pearl buttons and tin plates, nor lawyer, a class not diffident in advancing untenable claims, has been found, as far as we know, to question before the Supreme Court the legality of these duties, because they were protective or paid this slight reverence to a doctrine in support of which South Carolina threatened war and secession.

It seems only necessary to state the viciousness of this doctrine of nullification and secession, that every State could practically put its veto on every law and act of the General Government it questioned, and dissolve it at its pleasure, to prove that no such impracticable government was established. Certainly, reasoning a priori, this doctrine has no standing.

Our General Government differs from that of Great Britain and nearly all other governments in that it is created by a written Constitution, and its authority is limited by that Constitution. The power of Parliament is imperial; there is no limit to it; it does what it deems best. There apparently is an almost insurmountable difficulty in the writers of other countries, only knowing unlimited, imperial supreme governments, to comprehend that a government of limited powers can be supreme in the powers granted to it. Knowing that the powers of our General Government are limited, they are apt to draw the conclusion that the fundamental unlimited power must be in the subordinate component parts, the States.

Our States, as well as the General Government, have limited powers granted by written constitutions. The State governments are not only limited in their powers, but the people, who established them in their constitutions, have invariably recognized the supreme power of the General Government; in none of them have they undertaken to confer on the State Legislatures or government powers in conflict with the sovereign national powers of the General Government. The powers given to the State governments are subordinate and local. All the constitutions, State and General, have had the sanction and an adoption by the people.

The argument of Hayne, Calhoun, and his followers, and of all Southern writers—that the United States Constitution is a compact or agreement amongst the several States as independent sovereign nations, and that in every compact between nations, a contracting power, where there is a disagreement, as there is no superior authority over them, has the right to maintain the correctness of its construction—ignores the case where the compact may be one for the making of the several contracting powers one nation.

Compact means an agreement, nothing more or less, whether applied to states or individuals. It cannot be denied that independent sovereign nations can by compact or agreement make themselves into a perpetual, indissoluble nation. The voluntary combination of independent sovereign powers, or nations, or states into one national union must be by compact.

The question therefore resolves itself into this, What was the agreement or compact made between the people of the States? Was it for a nation with supreme powers over the subdivisions of States in its territory and all living therein, as far as power was given to it, and for perpetuity, or was it for a confederacy or league for certain purposes, limited by the right of each of the parties to it, to judge whether the government exceeded its authority, and at its pleasure to dissolve it?

In other words, the fundamental question is, Was an indissoluble national power made or a confederacy or league declared by the adopting of the Constitution?

Webster perhaps unfortunately used the word compact in his argument when he said the Constitution was not a compact, meaning it was not a mere agreement amongst the States, a league, or confederacy, but that it was the fundamental declaration of a nation.

Madison agreed with Webster as to secession and nullification and the powers of the General Government, and of its judiciary to define and pass on them, but he held “that the government with its powers was established by a compact which each of the States had entered into, the authority for it being derived from the same source as that of the State governments—the people.”[11] Webster himself, in his speech in answer to Calhoun, recognizes that compact may mean an agreement for a nation. Speaking of the Constitution, he says: “Founded in or on the consent of the people, it may be said to rest on compact or consent, but it is itself not the compact, but the result.”[12] It is necessary to constantly bear in mind that the word compact, used in reference to the Constitution, is consistent with its nationality.

The prominent writers who maintain the right of nullification and secession, Calhoun, Davis, Stephens, and Bledsoe in his work, Is Davis a Traitor? all assert to an excessive length that any person or any State that uses the word compact in reference to the Constitution admits their theory of government, which is, that the Union between the States was a mere dissoluble agreement, in which the States retained their sovereignty and right of judgment over the acts done by the United States. They mention the State of Massachusetts, Washington’s, Madison’s, and even Webster’s subsequent use of that word as evidence of their assent to this doctrine. The fault in their reasoning is what logicians call the undistributed middle; they assume that the persons or States using the word compact are speaking of the sort of compact they maintain the Union to be—a league or mere dissoluble agreement, when in fact they may be, and are, speaking of another sort of compact, a compact for a national government.

We propose to show that by the adoption of the Constitution the people of the States formed themselves into a nation.

First: The Constitution declares its perpetuity, and the powers given by it to the government established are those of an indissoluble nation with supreme authority over every one, not of a confederacy of nations.

Second: The members of the convention that made the Constitution intended to make a national government; and that they considered that they had done so is conclusively shown by the contemporary reports of their debates and proceedings. The members of the conventions of the people of the several States that adopted the Constitution without exception also considered and spoke of the government as national.

Third: That the government exercised its supreme national power repeatedly and uniformly over the States and over all the citizens of every State, from the time of its inception to the civil war. Historically we were a nation.

Fourth: That the general belief that the Virginia resolutions questioned this supremacy and nationality is wholly unfounded.

There is no question of the universal opinion after the termination of the war of the Revolution that the provisions under which the States were associated, made on the 15th of November, 1777, had failed essentially in giving to the Confederate Congress government the necessary powers to carry it on.[13] The Confederacy was made by delegates from the Legislatures of the State governments of the different States; the powers of the Confederacy were given to a Congress which consisted of one body or House, and in that Congress each State had one vote, that of Delaware, with a diminutive territory and about one sixteenth of the population, equalling that of Virginia. The Constitution which contains and defines the powers given to the United States Government was made by delegates appointed by the different State Legislatures of the Confederacy, all being represented except Rhode Island. Its members were the most prominent and distinguished men of the country. After the most careful, thorough, and patient examination and discussion, extending through four months, they formed the instrument giving the powers of the new government. They sent it to the existing Congress of the Confederacy, with the request that it might be submitted to a convention of delegates chosen in each State by the people thereof, under the recommendation of its Legislature, for their consideration and assent if approved of.

The Continental Congress unanimously forwarded the proposed Constitution to the Legislatures of the several States, who each submitted it to a convention of the people called for the purpose of deciding whether they would adopt it.

By necessity the submission was to the people of the States separately. The acceptation or rejection rested on them, the people; they appointing delegates to carefully consider the matter and to decide for them. Thus the adoption of the Constitution was not only sanctioned by the Congress of the Confederacy, by the separate State governments, but finally by the people themselves of every State acting by virtue of their fundamental, sovereign power, they appointing the delegates who met in convention, and who in each State decided for the people, whether they would or would not enter into this new form of government. A sanction more binding on every one could not have been made.

Mr. Webster’s argument that our government is that of a nation and not a confederacy, was in a great measure founded on the Constitution itself. There are other declarations and powers in the Constitution, besides those he so forcibly presented, which should not be overlooked. The Constitution is a very brief, and, as time has shown, a very perfect instrument. It gives to a general government it establishes, all the powers necessary for the existence and maintenance of a nation.

Its first declaration is, We, the People of the United States, do ordain and establish this Constitution. This is in emphatic contrast to the preamble and articles of the Confederacy. The preamble of the Confederacy is, Articles of confederation and perpetual union between the “States of New Hampshire, Massachusetts Bay,” etc. Article I. is, “The style of this Confederacy shall be ‘The United States of America.’” Article III., “The said States hereby severally enter into a firm league of friendship with each other for their common defence, the security of their liberties, and their mutual and general welfare.”

Not only did the people actually make this great charter, in which they gave to the government they established over them the powers it has, but they declared in the very beginning that it was “we, the people,” and not their State governments, that made it, and they also declared its perpetuity. It is “We, the People of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.” Here is the express declaration that it is for perpetuity, not for the people making it, but for those succeeding them, for their posterity, for all time.

When, after the civil war, the question of the legality of secession came before the Supreme Court of the United States, in the case of the State of Texas against White,[14] Chief-Justice Chase, apparently overlooking this explicit statement, in delivering the opinion of the court, said: “That by the articles of the Confederacy, the union of the States was solemnly declared to be perpetual, and when these articles were found to be inadequate to the exigency of the country, the Constitution was ordained to form a more perfect union,” and asks, “what can be more indissoluble if a perpetual union made more perfect is not?”

Neither the Chief Justice nor those distinguished jurists, Justice Swayne[15] and Justice Bradley,[16] controverted the right of secession when the case came before them, in the manner that Chief-Justice Marshall treated constitutional questions. They, however, declared in the most emphatic terms that there could be no secession, that the Union was an indissoluble one of indestructible States by the very provisions of the Constitution itself.

If we examine the provisions of the Constitution, we find in the first clause is declared the perpetuity of the Union; in the last clause, excepting that setting forth it shall be established on the ratification by nine States, is stated in language that cannot be mistaken, its supremacy over States and State constitutions.

It is by its very terms, we, the people, do ordain and establish this Constitution, that is the great charter giving powers to our new government, and it is, therefore, we, the people of every State, who declare that this Constitution, this government, and the laws and treaties made under it “shall be the supreme law of the land and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.” There is no qualification that if we do not deem them legal we can treat them as null and void.

In order to secure and maintain that supremacy the people who made it require that the United States Senators and Representatives, “and members of the several State Legislatures, and all executive and judicial officers, both of the United States and of the several States, shall be bound by oath or affirmation to support this Constitution”; stamping, as on its coins, its authority over States and every State officer.

Now when the people of each and every State did “ordain and establish” a new form of government which was to be supreme over the constitution, that is the government of their particular State, and imposed upon every legislative, executive, and judicial officer of their own State an oath to support that government, where is the right of a State to question? Over what is the United States supreme if not over States? Why should an oath have been required to support that supremacy over State governments unless to make that supremacy certain, and resistance to or question of it criminal?

Those who made and established the government knew of the oath that is required by State governments of their officers to support their constitutions, and they would not have required this additional oath if the two oaths could have conflicted, or if there could have been any doubt that the obligations required by a State government were to be subordinated to the supreme powers and laws of the general government.

Then to prevent the government from being encroached upon by the States the judicial power was given to the United States over all cases arising under this Constitution, the laws of the United States, its treaties, and cases affecting ambassadors, etc. So, as Webster declared, no State law or judicial decision of a State could interfere. By this clause the United States courts had the right, which they have uniformly and very often exercised, from the beginning of our government until this day, of taking from the jurisdiction of the State courts all and every case in which the construction of a United States law came in question or where the legality of the act of any United States official was concerned.

We have seen that the supremacy of the United States over all States and State laws and the right to maintain that supremacy through its own courts and by its own officers was fully established by the Constitution. If we examine further the powers granted to the general government by this Constitution, we find all that can be called sovereign: those of intercourse with foreign nations, of war and peace, of raising and keeping an army and navy, of the currency, of commerce external and internal, of establishing post-offices and post-roads, and fixing the standard of weights and measures, the exclusive right of making citizens by naturalization, the regulating and command of the militia when in its service, and issuing of copyrights and patents, the making of all laws necessary and proper for carrying into execution the granted powers and all other powers vested by the Constitution in the government of the United States or in any department or office thereof, with prohibitions to the States from entering into any treaty, alliance, or confederation with another State or foreign power, making agreements or compacts with other States, keeping an army or war vessels in the time of peace, or making laws impairing the obligation of a contract, and ex post facto law, coining money, emitting bills of credit—that is making a paper currency (the issuing of paper had been carried to an excess by the States and the Continental Congress during the Revolution), and laying imposts or duties on imports or exports.[17] There is no sovereignty remaining to a State that has granted all these powers to the government over it, and is so restricted in its acts, and cannot even make an agreement or a compact with a sister State. Indeed, Calhoun, in his argument, seemed hard pushed to specify any sovereign powers left to the States, when he mentioned that the States had the power to appoint the officers of the militia and that Pennsylvania had undertaken to punish treason.

Though the United States alone have those supreme powers, which by political writers are generally called sovereign, the word sovereign has been also used by American writers and politicians in reference to the powers of a State. The people of every State have supreme powers over their own local affairs, their own territory and citizens where the power has not been given to the United States; they can enact laws making the penalty of stealing a pocket-handkerchief or smoking on the street punishable with death and carry them into effect. If they were, however, to make such laws to take effect for past acts, the United States would interfere, because no State can make an ex post facto law. So, in our separate States, a town or a county can run a road through anybody’s land and the State cannot interfere; because the people of the State have given that authority to the town or county. A Board of Health in many States can stop one’s factory, destroy his business, or close his house, by reason of its being deleterious to the general health, and there is no appeal. In these matters the town or county or Board of Health have supreme powers in their jurisdiction; but however supreme or however arbitrary they may be in their jurisdiction, they cannot extend them beyond—these supreme local powers are not sovereign powers.

It is a large, local, internal government that each State has over its territory, and the property and the acts of its citizens in that territory. The General Government in our extensive domain, having in addition to the powers it now has those of the States, would from the overwhelming mass of its duties be a failure.

Indeed, we find that from necessity Great Britain is on the path of giving to her three kingdoms greater powers of local government. If one examines the bill for home rule for Ireland, proposed in 1886 by the Gladstone administration, he will find that the powers it proposed to give to Ireland are far beyond those our separate States have. Ireland, besides the right of taxing, was empowered to levy duties of customs and excise—that is, the right of protecting her own manufactures to the injury of England’s. Ireland was to pay over specified contributions to the British Government, some millions of pounds annually, for her proportion of the interest on the national debt, and of the cost of the support of the army and navy, and other expenses. If there were a failure in these contributions the General Government would have been obliged to use coercion—a civil war—a policy considered fatally objectionable in the convention that made our Constitution. Ireland also was to lose her representation in the Imperial Parliament.

As far as secession is concerned, the most important provision in the Constitution is Section 3, of Article III., concerning treason. There is no such thing as treason except where allegiance is due. The citizen of an independent sovereign State owes his allegiance to it, and not to a confederacy or a league the State has joined. There can be no treason except against a government proper. The establishing by the Constitution of the punishment of treason, implies the nationality of the Union, and that every inhabitant of its domain is a citizen. In the articles of the old Confederacy there was no punishment of treason; on the contrary, each State agreed in those articles to deliver up to its sister States any one that it might claim had committed treason.

The first part of the two clauses of Section 3 are “Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort,” and “The Congress shall have the power to declare the punishment of treason.”

The peculiarity of the introduction of this first clause is to be noticed: it is taken for granted that there is treason against the United States, and that it is expedient to limit it. The founders of our new government did not intend to have rash speech, or plots, or mere resistance to its authority punishable as the high crime of treason. They knew from the experience of their mother country the danger to personal liberty from constructive treason; so they limited the power to punish that offence, and gave it only in case of levying of war, or aiding and adhering to enemies.

It has been claimed by many writers North as well as South, that admitting secession to be illegal, the United States had no authority to use force against a seceding State. At the foundation of all government must be the right to maintain itself, and by force when necessary. There is no need of the declaration of this right. The establishment of a government implies the power to compel the obedience of its subjects.

This power in the government to punish as treason the levying of war against it applies directly and expressly to a State, or a combination of States, or a part of a State levying war. A foreign state, an enemy levying war, cannot commit treason. Its subjects owe no allegiance. Nor does a riot or a mob levy war. This making the levying of war treason was intended for powers within the National Government, like States and combination of States and parts of States. It was against some power that should have the organization and ability to levy or wage war; and the word levying is far reaching and extends beyond mere fighting. It could not have been intended for anything else than coercing such powers.

That this law was understood to reach a citizen of a State resisting the authority of the United States is clearly shown by the letter of Luther Martin, a distinguished jurist, and also the Attorney-General of Maryland, and afterwards a leader of the bar in the United States Courts, and who as a lawyer was accustomed to consider the meaning of instruments like the Constitution. In this letter to the Legislature of Maryland objecting to the ratification of the Constitution, he declares that this clause was kept for the purpose of coercing a State. He wrote: “The time may come when it shall be the duty of a State in order to preserve itself from the oppression of the General Government to have recourse to the sword; in which case, the proposed form of government declares, that the State, and every one of its citizens who acts under its authority, are guilty of a direct act of treason,” and a citizen is thus put in the dilemma of being exposed to punishment, either by the State or the United States, however he may act. To prevent this, he writes, he offered an amendment that acts done under the authority of one or more States should not be deemed treason or punished as such; but this provision was not adopted.[18]

The interference of the United States with a State is expressly directed by another clause in the Constitution, that by which the United States is obliged to protect a State against domestic violence and guarantees to put down any government if it be not republican. There is no limit to this guaranty and it is no matter if the unrepublican government be established by a majority or unanimity of votes.

A sovereign government seldom, if ever, allows itself to be sued, and never gives the decision of a suit against itself or between itself and other governments to another jurisdiction. That is a direct surrender of sovereignty. The Constitution as originally adopted, gave to the United States judicial power in controversies to which the United States shall be a party, in controversies between two or more States, between a State and citizens of another State and between a State and foreign states, citizens, or subjects. The jurisdiction in suits by individuals against a State was afterwards taken away by the passage of an amendment to the Constitution, leaving however jurisdiction in controversies to which the United States shall be a party and between two or more States and a foreign State. The fact, however, remains, that the Constitution as formed and as adopted by the original States, (all that can claim to have been sovereign), did give jurisdiction to the United States over all claims, even those of individuals out of the State against the State, as if the State had no more political importance than a county or a town.

A yet more important clause in the Constitution shows conclusively the supremacy and national character of the government; namely that giving it the power of changing and extending its authority to whatever extent it chooses by amendments, provided they are accepted by the Legislatures of three quarters of the States. By amendments made in this manner the United States can take whatever authority it pleases from the States. It can give its government a veto over the laws of the separate States, appoint the executive officers of a State—powers proposed in the convention that made the Constitution. The only limit in the Constitution to the extension of the government’s power by amendments is that no State without its consent could be deprived of its equal suffrage in the Senate, and the importation of slaves until 1808 should not be prohibited. Under this provision the General Government, with the concurrence of three fourths of the Legislatures of the States, has an authority that no State government has. None of the State constitutions grant its Legislature the right to extend its powers over counties, cities, and towns; it must go to the people for that.

How can it be said that sovereignty remains in a State, when it gives to its associates the right to make all its laws if only three quarters of them so elect? The granting by a community of power to a government over it to control it, as it pleases, takes away the very foundation of sovereign right; and objection was made to this clause for this very reason. In the convention Elbridge Gerry, a prominent delegate from Massachusetts, afterwards Governor of that State and Vice-President of the United States, objected because the Constitution is paramount to the State constitutions, and that two thirds of the States may introduce innovations that would subvert the State constitution altogether.[19] It is by the power given in this clause, that after the war of secession slavery was abolished through the acceptance by the States of amendments to that effect. The proclamation of Lincoln abolishing slavery in the States in insurrection on January 1, 1863, did not give liberty to the slaves in Delaware, Maryland, Missouri and Kentucky, and parts of other States, that were not in rebellion. Many, perhaps all, of these States abolished slavery before the amendments were passed.

The only authority given by the Constitution to States is this power of amending it by the concurrence of State Legislatures in propositions made by the Congress of the United States or the Legislatures of three fourths of the States, and also the right of equal representation in the Senate, and that in the election of President the vote is by electors appointed in such manner as the State Legislature may direct.

The provision forbidding a State from emitting bills of credit, passing any bill of attainder, ex post facto law, or law impairing the obligation of contracts, are a restriction that sovereign nations would never have submitted to.

When a foreigner becomes a citizen, he abjures his allegiance to his native country, and the oath he takes is before a United States officer to the United States, not to the State in which he is naturalized. Finally, by the Constitution the President is made the commander-in-chief of the army and navy of the United States, and of the militia of the several States. While an oath or affirmation is required of every Senator or Representative, of every executive and judicial officer of the United States and of every State, to support the Constitution, the President alone—the one having the supreme military power over all forces on land or sea—must swear or affirm that he will faithfully execute the office, and “to the best of my ability, preserve, protect, and defend the Constitution of the United States”; not to keep from encroachment upon the rights of the States, but to preserve, protect, and defend the Constitution. Can it be said that it is not to be preserved over its citizens and States that are in arms to subvert or resist its laws and supremacy?

Jefferson, in the time of the Confederacy, when the States were neglecting to pay the requisitions made of them, recommended that the Continental Congress should show its teeth and send a frigate into the ports of a delinquent State; but the new Constitution intended to draw the teeth of the States by prohibiting them from keeping troops or ships of war; and it reserved to the national government the right “to raise and support armies”; “to provide and maintain a navy”; and gave it the power of “calling forth the militia to execute the laws of the Union, suppress insurrection, and repel invasion.” Thus the Constitution added to the supremacy of the new government the power to enforce it, and took from the States the power, as far as it could consistently with freedom, of resistance.

The government of the Confederacy depended upon the several State governments, their soldiers, and their contributions; it had no direct control over the people; from the failure of the State government to make the required contributions and enforce its decrees it was fast falling into total inefficacy. We have shown that the new government, established by the people of each State over themselves and the people of the other States, had by its Constitution all the powers necessary for a national government, and State governments were prohibited from the exercise of conflicting powers; that waging war against that government was treason, thus affirming that they, the people of each State who established it, owed allegiance and were subjects of the government; they, the people, also declared in the Constitution, that the judiciary of their general government should have authority over every case and question arising under its laws and acts; further, they gave that judiciary and the government the power to enforce their laws and the authority over every individual in its domain; and finally they expressly declared the supremacy of the government and its laws over all State laws and State constitutions.

The departments of the government established by the Constitution are three in number: the Legislative (Congress), to make the laws and to pass the acts for the carrying it on; the Executive (the President and the officers under him), to administer it, to carry into effect its laws and acts, and represent it in its dealings with other countries; and thirdly the Judiciary, to decide upon all controversies arising under the laws and acts of the government.

A department, however, in some instances has an authority in the others; the President, the chief executive officer, has the right of veto, and his principal appointments, especially those of the judiciary and foreign ministers, are subject to the approval of the Senate.

The power of the United States Judiciary Department to pass upon the constitutionality or validity of laws made by the Legislature, is one unknown to the unlimited imperial power of the Parliament of Great Britain, and has been a source of perplexity to the writers and legislators of that country, and of question recently in the House of Commons. The question cannot arise and never comes before the judiciary of that government, whether a law is within the parliamentary power. With us, however, the question often arises, and the judiciary decides whenever question is made as to whether a law is within the powers granted by the Constitution. In all our States the State judiciary has the same power to decide on the constitutionality of the laws and acts of the State government.

This system of giving the judiciary the right to define the extent of the powers of the government has with us met with almost universal approval.

CHAPTER III.

THE CONSTITUTIONAL CONVENTION INTENDED NATIONALITY.

Let us now retrace our steps and see what took place in the convention that made the Constitution, and what those that made it intended. Fortunately we have the journals of the convention that framed the Constitution; the minutes, until he left, of Mr. Yates, a delegate from the State of New York; and Madison’s full and careful report of all the proceedings, debates, and votes. From these sources we shall see that the makers intended, and that they considered they had made, a perpetual, consolidated, National Government.

The convention was called to amend the articles of the confederacy, and to it were sent most of the distinguished men of the country. The State of Virginia took an early and important part in the formation of the new government. Before the meeting of the convention, Madison wrote to Edmund Randolph, one of the delegates, that it would be well for him to prepare some propositions from Virginia, he in his letter suggesting what they should be. Immediately after the organization of the convention after the choice of Washington as the presiding officer and the establishing of standing rules, Randolph introduced a series of resolutions, which had been considered by his colleagues and were known in the convention as those of Virginia. They were in substance, that the articles of confederation should be corrected and enlarged; that the rights of suffrage in the national Legislature ought to be proportioned to the quotas of contribution, or to the number of free inhabitants; that the Legislature should consist of two branches, the first branch to be elected by the people of every State; that the Legislature should have supreme rights with coercive power against any member failing to perform its duty, and that there should be a national Executive and Judiciary.

These resolutions were referred to the next meeting. At that meeting Randolph, at the suggestion of Gouverneur Morris, who said that his subsequent resolutions did not agree with the first, moved that this first resolution, which was that the articles of confederation should be corrected and enlarged, should be postponed, which was unanimously agreed to. Randolph then proposed three other resolutions, the first two that a union merely federal and treaties between the States as sovereigns would be insufficient. The convention, after debate and other propositions, considering the first two resolutions unnecessary, passed the third, which was: “That a National Government ought to be established consisting of a supreme legislative, executive, and judiciary.” All the States present voted ay, Connecticut only no, New York divided—Hamilton ay, Yates no.[20] Yates in his minutes says Randolph in first proposing his resolutions, “candidly confessed they were not intended for a federal government; and that he meant a strong consolidated union.” Mr. Morris on the 30th observed that Randolph’s preamble as to amending the articles of the confederacy was unnecessary, as the subsequent resolutions would not agree with it.[21]

The votes in the convention were as in the confederacy, each State had one and voted as a whole. If the delegation of a State was equally divided, its vote was lost.

By the 13th of June the Virginia resolutions had been considered and passed with changes and amendments,[22] the first resolution as changed, being that a national government ought to be established; the plan as to representation (Resolves 7 and 8), being that the representation in the two branches of the Legislature should be in accordance with the free population and three fifths of all other persons (slaves), and excepting Indians.

Further action on this report was deferred to June 14th at the request of Mr. Patterson, who then offered a plan called that of New Jersey, formed by the deputations of Connecticut, New York, New Jersey, and Delaware, preserving the articles of the confederation, one Legislature, the equal vote of each State, but revising, correcting, and enlarging the conferred powers so as to render them “adequate to the exigencies of government and the preservation of the Union.” In the resolutions the Executive, if any State or any body of men in the State should oppose the execution of the acts or treaties of the government, was to call forth the power of the States to enforce and compel an obedience.[23] The ratification was to be by the Legislatures of the States; that of the Virginia plan was to be by the people. The objection that the delegates to the convention were exceeding their authority, which was only to amend the articles of the confederation, was again brought up; the discussion whether the government should be national or a confederacy was again renewed. It was pointed out as a fatal objection by Madison, Hamilton (who then spoke for the first time), and others, that under a confederacy the coercing of a State to pay its quota or compelling it to obey would in fact be a civil war, where the militia of other States would have to march against the delinquent power. Hamilton said he neither liked the Virginia nor the New Jersey plan; he praised the constitutional monarchy of Great Britain as the most perfect government. He was particularly opposed to Patterson’s plan, “being fully convinced that no amendment of the confederation leaving the States in possession of their sovereignty could possibly answer the purpose.”[24] He stated the plan he should prefer: a general government, with an executive and a senate for life or good behavior, the general government to have the appointment of the governors of each State, who should have a veto over the State laws.[25] He wished the States abolished as States, but admitted the necessity of their having subordinate jurisdiction.[26] He was aware that others did not approve of his plan, nor would they, he thought, of that of Virginia, but they might finally come to it. He thought universal suffrage a bad principle of government. He apparently did not know how strongly the democratic feeling existed amongst the people of this country; nor perhaps appreciate the strength of a government that has at its back the will and brute power of the majority of fighting men, as shown in our civil war. He made that unfortunate speech, afterwards used against him, that the people were getting tired of an excess of democracy, “and what is even the Virginia plan but pork still, with a little change of the sauce.”[27]

As no one seconded Hamilton’s plan and he did not urge it, the question before the convention was between Mr. Patterson’s plan enlarging the power of the confederacy or the national one of Virginia. The former, after much debate, was laid aside, only New York and New Jersey voting no. The Virginia resolutions were taken up again by a vote of seven States ay, to three nay, Maryland divided, which was a vote, so Madison says, that they “should be adhered to as preferable to those of Mr. Patterson.”[28]

That the word national was dropped from the resolutions of Virginia has been dwelt upon by Southern writers, and by Calhoun at length in his speech of 1833, as a proof that the national idea was abandoned. No such conclusion can be drawn from the way in which it was done. On June 20th, the day after the Virginia resolutions were again taken up and adopted, the first resolution being before the House, Mr. Ellsworth moved it should read: “That the government of the United States ought to consist of a supreme legislative, executive, and judiciary.” This alteration, he said would drop the word national and retain the proper title, “The United States.” Mr. Randolph said he did not object, and it was unanimously acquiesced in.

The second resolution, that the Legislature should consist of two branches, was taken up. Mr. Lansing moved instead, that “legislation be vested in the United States in Congress,” and again urged a confederacy. On this George Mason,[29] to whom Mr. Lodge refers, said he did not expect this point to be re-agitated, and compared a national government to a confederate one. He spoke, “with horror,” of the necessity that the latter would have of collecting its taxes by compulsion over States, of marching the militia of one State against another to enforce taxes; rebellion was the only case where military force should be exerted against citizens. In the early days of the convention he had urged that the new government should be one over individuals not States. He would not, however, abolish the State governments or render them absolutely insignificant. This second resolution was carried seven States to three, Maryland divided.[30]

The next resolution, that the first branch of the Legislature should be elected by the people, was supported by Mason, and Wilson said he considered it the corner-stone of the fabric; only New Jersey voted against it, Maryland divided.

On the resolution of how the second branch of the Legislature should be elected—by the State Legislature or the people,—Virginia voted that it should be by the people.[31]

That the representation in the first branch should be in proportion to the people was established. Then June 29th began the great controversy in the convention of how the representation should be in the second branch, whether in proportion to population or by State.

When this discussion took place, the three great States were Virginia, Massachusetts, and Pennsylvania. Virginia then comprised the territory which is now West Virginia and Kentucky, and, including her slaves, had the largest population. Massachusetts, instead of being insignificant in territory, had the large area of Maine, which was made into a separate State in 1820. Massachusetts had the largest white population and had furnished more soldiers than any other State in the Revolution; and it was probably for this reason that Madison alluded to it as the most powerful State. New York had then about the same population that Connecticut and Maryland had, and from apparent want of foresight as to its future great and immediate increase in population and power took a prominent part with the smaller States that wished representation should be by an equal vote in both branches of the new Legislature. The representatives of Connecticut, Sherman and Ellsworth, were also strenuously in favor of equality of States. Ellsworth, in reply to Madison’s attack on Connecticut for refusing compliance to federal requisitions, excused his State by reason of her distress and impoverishment by her exertions during the revolutionary war, and asserted that the muster rolls will show she had more troops in the field in the revolutionary war than even Virginia, and he appealed to the presiding officer, Washington, as to the truth of his statement.[32] Georgia, then estimated to be the smallest in population, trusting to the future settlement of its claimed large territory extending from the sea-coast to the Mississippi, usually voted with the larger States.[33] Mr. Bedford, of Delaware, asserted that South Carolina, puffed up with the possession of her wealth and negroes, and North Carolina were both united with the great States, and for the smaller States threatened, “sooner than be ruined, there are foreign powers who will take us by the hand.”[34] For this he was very justly rebuked by Rufus King, of Massachusetts. It was hard for the smaller States having an equal vote in the Confederacy to change it for one proportioned to inhabitants. It was estimated that Delaware would have but one representative in each branch to Virginia’s sixteen. The argument of the smaller States was that Virginia, Massachusetts, and Pennsylvania would combine to crush the other States. Madison replied that their interests were so different there was no fear of this. Massachusetts’ product was fish; Pennsylvania’s, flour; Virginia’s, tobacco. He predicted that the struggle, when it came, would be between the Southern States with their interests as exporters and the Northern commercial States. The opinion was pretty generally entertained that any division that might arise would be between North and South.

The dispute between the greater and smaller States was finally settled by the provision that all money bills should originate in the first branch of the Legislature, that direct taxation should be in proportion to representation in that branch, and that there should be an equal representation in the upper House, the vote however being per capita and not by States. The final vote on this settlement was almost unanimous, only one State, Maryland, in the negative.[35]

It has been argued by Davis, Stephens, and others, that this equal representation of the States in the Senate was an establishment of a confederacy, and it has been a stumbling-block in the way of many constitutional commentators who have considered it a compromise between a national and a confederate government. It is a compromise of the right of representation in one branch only of the legislative department of the government; but it is no compromise in the powers granted. The powers granted to the government are of supremacy, legislative, executive, and judicial, over State and State constitutions and State judiciaries. If there had been rotten boroughs established by the Constitution like those then in Great Britain, if Delaware and Rhode Island had been given double the representation that Virginia had, or if every slave of the South had counted for two white men in the free States, the granted powers of the government would have been none the less supreme and national, as the Constitution itself declares, and as they in reality are. Scotland is not a sovereign nation because her peers elect twelve of their number to the House of Lords of the government of Great Britain. Oxford and Cambridge Colleges are not sovereign powers because they choose representatives to the House of Commons. Charles Pinckney of South Carolina with reason said: “Give New Jersey an equal vote and she will dismiss her scruples and concur in the national system.”

The other resolutions of Virginia, except those relating to an executive, had been acted upon, when Elbridge Gerry of Massachusetts moved, that “the proceedings of the convention for the establishing of a national government” “be referred to a committee to prepare and report a Constitution”; a committee of five was agreed upon, no one objecting,[36] no one denying that the government was a national one. From the 23d to the 26th of July the plan of the Executive was considered and settled, and was unanimously referred to the Committee of Detail, that of five already appointed to prepare and report the Constitution. The convention adjourned until August 6th, to give the necessary time to their committee. The resolves then passed are stated in Elliot’s Debates.[37]

The first was, that the government of the United States ought to consist of a supreme legislative, judiciary, and executive. The second, third, fourth, and fifth were the resolves as to the two branches of the Legislature. The sixth was: “Resolved, that the national Legislature ought to possess the legislative rights vested in Congress by the Confederation; and moreover to legislate in all cases for the general interests of the Union,” etc., etc.

In the 12th, 13th, 14th, 15th, 16th, 20th, and 23d—the last, the executive, the legislative, the judiciary, and the government were termed national. These are the resolutions passed by the convention, all declaring the government and every branch of it was national. This was the plan agreed on; no changes were made except of detail and for euphony, and some modifications.

On August 6th the Committee of Detail reported the Constitution; a printed copy was furnished to each member.[38] The preamble was, “We, the people of the States of New Hampshire, Massachusetts,” then follow the names of all the other States, “do ordain, declare, and establish the following Constitution for the government of ourselves and our posterity.”

“Article I. The style of the government shall be the United States of America.”

“Article II. The government shall consist of supreme legislative, executive, and judicial powers.”

By Article X. the executive was vested in a president, to hold his office for seven years, but not re-eligible, whose title was to be “His Excellency.”

It will be noticed that the preamble had the declaration of perpetuity, that we, the people, made it for “our posterity.”

The Constitution was then taken up by its separate articles, and they were minutely and thoroughly discussed and somewhat altered. Each was again passed, taking all the time from the 7th of August until September 12th.

The definition of treason was considered at great length, and in the debate it was shown that States might punish for acts against their authority under the name of treason or under other names. Madison thought the definition too narrow; Mason was in favor of extending the definition and adopting the statute of Edward III.[39] The record of the convention shows this article punishing treason was unanimously agreed to, notwithstanding the objection Luther Martin said he made.[40]

The supremacy of the Constitution and the laws of the United States over the States and all citizens and State judiciary was passed, no one opposing, August 23d.[41]

The provisions relating to the office of President and his powers and duties were much discussed and changed, and the title of “His Excellency” dropped.

The amended draft of the Constitution was submitted to a Committee of Style and Arrangement, of which Gouverneur Morris was chairman, and they changed the preamble to, “We, the people of the United States,” from that of “We, the people of New Hampshire,” etc.; they inserted the words, “in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty,” retaining that it was to ourselves and our posterity, that we do ordain and establish this Constitution of the United States of America. It has been argued and strenuously claimed that this change to “We, the people of the United States,” was one made for euphony at the end of the session of the convention, and has no force as a declaration that it was made by the people. But it will be seen it took the place of one as explicit, one declaring it was by the people of every State and for themselves and posterity. It was necessary to drop the name of each State, as the Constitution was to be obligatory only on the people of those States adopting it. This change was not objected to by any one. The convention considered this final draft from the 12th to the 17th of September, and made some changes, when it was signed by all the delegates present except four.

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

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

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

When the supremacy and nationality of the intended government were settled, Yates and Lansing (who with Hamilton formed the delegation from New York) on July 3d left the convention, and in their letter to Governor Clinton,[43] stated that they did so because they were chosen to revise the Articles of the Confederation and that the principles of the Constitution sanctioned by the convention met with their “decided and unreserved dissent,” as would any system “which had in object the consolidation of the United States into one government”; and that “a persuasion that their further attendance would be fruitless and unavailing rendered them less solicitous to return.”

We find after equal representation in the Senate had been granted to the smaller States, that their delegates took a prominent part in enlarging and strengthening the powers of the General Government.

Luther Martin, who throughout the session of the convention had been the most able and persistent opponent to a national government, expressed his dissatisfaction at the close and was one of the four who refused to sign. The three Southern States, North and South Carolina and Georgia, as was stated in the convention, had exalted opinions of their future population, and had been often on the side of the larger States. They had obtained their wishes—representation for their slaves, the right to import them until 1808,[44] the prohibition of export duties on their rice, indigo, and tobacco, yielding only the taxation of imports.

General Charles Cotesworth Pinckney of South Carolina, towards the close of the convention, expressed the satisfaction of the South at the liberal conduct shown to them, and that it was for the interest of the weak Southern States to be united with the strong Eastern States, that the government should have the power of making commercial regulations, and that though he had had his prejudices against the Eastern States, “he had found them as liberal and candid as any men whatever.”[45]