Washington, the presiding officer, who had been advised by his best friends not to accept the nomination as a member of the convention, and who from a sense of duty assented to act, spoke but seldom.

At the close of the proceedings he urged an amendment that removed the objections of some members, which was agreed to unanimously.

Next to Washington, Franklin was perhaps the most prominent person in the country. His motions and suggestions did not generally meet with the approval of the convention, excepting perhaps in reference to the equality of representation in the Senate, where the committee appointed under his resolutions brought in a plan for a settlement. His witty remark, when the last members were signing, has taken its place in history. Looking towards the President’s chair, at the back of which a rising or setting sun had been painted, he observed to those around him that painters had found it difficult to distinguish a rising from a setting sun, that during the session, between his hopes and fears as to the issue, he would look at the sun behind the President and could not tell whether it was rising or setting, but now he knew that it was a rising one. Hamilton did not conceal his dislike to the plan adopted, but promised his ardent support. His strenuous labors to that end in the New York convention against the most persistent and determined opposition were finally crowned with success. Gerry of Massachusetts refused to sign; Gorham and Rufus King—who with Gerry had taken active parts in the discussion,—together with their colleague, Caleb Strong, signed. Madison and Blair alone signed for Virginia. Mason, though he had said he would bury his bones in the city rather than the convention should dissolve without doing anything,[46] and had been from the beginning in favor of a national government, declined to sign what he had been so instrumental in making; because he thought the great power given to the Senate of trying impeachment, of making treaties, of appointing ambassadors, judicial and other officers, would make an aristocracy of its members. He and Randolph, the one who brought the plan forward, thought the Constitution agreed on needed amendment and wished another convention. One cannot help thinking their decision might have been different, if Virginia had been allowed her proposed representation in the Senate in proportion to population.

We have already stated that the Constitution was sent to the Congress of the Confederacy and by them submitted to the State Legislatures, who all sanctioned it so far as to submit it to conventions chosen by the people. In each and every State the coming into the new government was ultimately decided by the people, and not by the State government.

In many of the States the adoption of the Constitution was pertinaciously and vehemently opposed on the ground of the great and excessive powers given to the new government, that might be destructive of the liberty of the people. The appointment of officers, and the power of the President with his command of an army and navy in peace as well as in war, the legislative rights of Congress with an unlimited right of taxation, were so great that eminent and prominent men expressed their belief that the government would end in a despotism.

In Pennsylvania, Wilson at great length explained the new form of government, stating “that by adopting this system we become a nation; at present we are not one.”[47] His labors in the State and the general conventions have been fully recognized by recent writers.

It was only after a long and heated discussion in the large convention of the then important State of Massachusetts, where were present, John Hancock, Fisher Ames, Rufus King, and Sam Adams, who reluctantly yielded consent, that the Constitution was adopted, the majority in favor being small.

In Virginia, which was the tenth State to come into the Union, Patrick Henry, who had declined the appointment to the general convention, objected because the Constitution said “We, the people,” instead of “We, the States”; and “if the States be not the agents of this compact, it must be one great consolidated national government of the people of all the States.”[48] “It had an awful squinting towards monarchy.” “The federal convention ought to have amended the old system.” George Mason objected because the Constitution had no bill of rights and would end in a monarchy or corrupt oppressive aristocracy, and the confederation be converted to one grand consolidated government.[49] The acceptance was ably argued and urged by Madison and others and Edmund Randolph, who had refused to sign, but had since come to the conclusion that the only chance of escape from the discredited, crumbling Confederacy was in adopting the new Constitution. He said in the beginning of the debate, “I shall endeavor to make the committee sensible of the necessity of establishing a national government. In the course of my argument I shall show the inefficacy of the confederation.”[50]

The acceptance of New York, her territory dividing the Central and Southern States from the Eastern, was considered all important. Her ratification of the Constitution came late. She was the eleventh State, and neglected to vote for President at Washington’s first election.

John Jay, the Minister for Foreign Affairs of the Congress of the United States, in an address to the people, plainly told them the new government was national. He said: “Friends and Fellow-Citizens—The convention concurred in opinion with the people, that a national government, competent to every national object, was indispensably necessary.”[51]

Hamilton, Jay, Chancellor and other Livingstons, Melanchthon Smith, and a number of leading citizens were members of the convention. Yates and Lansing, who were members of the general convention that made the Constitution, and Governor George Clinton strenuously and persistently opposed the ratification, alleging as the reason the danger from the great powers given to the General Government subverting those of the State.

This New York convention for a long time was opposed to the ratification. Hamilton, who was exceedingly zealous for it, wrote almost in despair to Madison, asking if a State could adopt the Constitution conditionally and afterwards withdraw from the Union if its proposed amendments were not adopted. Madison replied, that “a conditional ratification did not make a State a member of the Union. The Constitution requires an adoption in toto and forever. It has been so adopted by the other States. An adoption for a limited time would be as defective as of some articles only.” Hamilton did not question the correctness of this opinion; but New York was brought finally to giving her consent. Mr. Lansing’s two motions (which show that he thought the Union perpetual) of a conditional ratification with a bill of rights, and of a reservation of a right to withdraw from the Union after a certain number of years unless the amendments proposed should previously be submitted to a general convention, were negatived;[52] a similar conditional acceptance had been proposed in the Virginia convention and abandoned.

The proceedings in most of the conventions called by the several States are reported in Elliot’s Debates. In none of them was the theory advanced or suggested that a State had the power to secede from the government or decide as an independent sovereignty on the validity of the acts or laws of the new government. If the power to nullify was then supposed to exist, if the right of a State to leave at its will was thought of, why was it not then urged that nullification and secession were easy remedies if the Union should be or become oppressive? No one imagined that there was any such power remaining in the States. No one answered to the alleged fear of oppression and tyranny that the State could nullify or secede. Neither friend nor foe, as Webster said, claimed either.

On all occasions, in all the speeches, it was assumed as granted, that the consolidation of the States, as it was termed, was national and perpetual. Even in South Carolina the proceedings are conclusive on this point. The Constitution first came before the legislature on the question of submitting it to the people of the State. Charles Pinckney, who had also been a very prominent member of the general convention that made the Constitution, said: “He repeated that the necessity of having a government which should at once operate upon the people, and not upon the States, was conceived to be indispensable by every delegation present.”[53]

The question whether the States ever had individual sovereignty arose in the convention chosen for deciding on the ratification of the Constitution, and General Charles C. Pinckney[54] insisted that our independence came from the Declaration of Independence made by the Congress of the Confederacy, wherein in the name of the good people of these colonies we were declared free and independent States. The separate independence and individual sovereignty of the several States was never thought of, not even mentioned by name in any part of it. The same objection in South Carolina as in other States to the Constitution as destructive of liberty was made. James Lincoln, a delegate from Ninety-six, said: “From a democratic you are rushing into an aristocratic government. Liberty! what is liberty? The power of governing yourselves. If you adopt this Constitution have you this power? No; you give it into the hands of a set of men who live one thousand miles distant from you.”[55]

The words of ratification of the States are also conclusive on these points. We will take the three important States whose acceptance was for a long time doubtful. Massachusetts in her pious and reverential ratification used the word compact, which numerous Southern writers, Davis, Stephens, and others, bring up as proof that Massachusetts considered the Constitution a mere confederacy and not a government.

To refute this it is but necessary to give the very words used:

It is the people of the United States, not the States, nor the people of the State of Massachusetts, that enter into this explicit and solemn compact with each other for a more perfect union. As we have said before, a compact may be for a national government or for a confederacy. If the convention understood that it was States making a confederacy, they would have said the people of the State, and not the people of the United States.

We come next to Virginia’s acceptance of the Constitution, which, to Calhoun’s peculiar mind, was “a conditional one.” “A condition made in the interest of all the States, and of which any State could avail.”

The acceptance was made “in behalf of the people of Virginia”; the condition was, “that the powers granted under the 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 “among other essential rights the liberty of conscience and of the press cannot be cancelled, abridged, restrained, or modified by any authority of the United States.”

It cannot be disputed that the convention, by this acceptance, understood and declared that there was thence but one nation; they accept the government in behalf of the people of Virginia; they acknowledge that the powers are derived from “the people of the United States”; and add, if the government be perverted to the injury and oppression of the people of the United States, they, the people of the United States, may resume the granted powers, not the people of Virginia or the State of Virginia. If the convention understood that they were making a compact between States that were to retain sovereignty, or the right to withdraw, it certainly would have said: if the United States Government be perverted to the injury of the States, then the State or sovereign State of Virginia or the people of the State could resume the powers granted by her.

Clinton is one of the four persons whom Mr. Lodge cites as of the opinion that the Union was a dissoluble, precarious, and temporary affair. The letter of Madison to Hamilton—we have before mentioned—in relation to the perpetuity of the Union and that there could be no conditional acceptance, is well known to constitutional writers and historians, and regarded as of the highest authority; but the more emphatic and decisive declaration of the convention of New York, in its circular-letter to the governors of the different States, signed by Clinton, its President, and ordered unanimously, seems to have escaped all notice. In that letter he and they state to the governor of each State the ratification of the Constitution by New York and her recommendation of certain amendments. He and they add, none of these amendments originated in local views.

Can anything be more explicit that every one, everywhere, at that time understood the Union was perpetual, than this unanimous address of the convention of New York saying so to all the other States, and the submissive request that they would amend the Constitution in accordance with their wishes?

The conventions of Massachusetts, Virginia, and New York passed resolutions recommending what they considered important necessary amendments to the Constitution. These resolutions and the recommendations of other States were considered in the first Congress, and ten articles, commonly called the Bill of Rights, were passed, and duly ratified by the legislatures of the States. These articles are safeguards against the feared tyrannical grants that had been given, and are all restrictive of the powers of the United States over its citizens, not of its powers over States. They are: that the people should have the right of petition; and “a well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed.” This shows how deep and serious the States believed the danger to be from the great powers of the General Government with a standing army and navy.

Other amendments were, that no law should be passed abridging the freedom of speech or of the press, or of trial by jury in suits at common law where the amount involved exceeds twenty dollars; that there should be no established religion, and matters of that kind. None of these ten amendments give any powers to State governments. The final clause reserves all the powers not granted, “to the States respectively, or to the people,” not to the States and their people, or the people of the respective States; but to the people, putting the people as a whole.

Great stress has been laid by Calhoun and his followers on this clause, as giving power to the States. As the United States Government’s sovereignty is undoubtedly limited to the express grants of the Constitution, the powers not granted are in the States or people. There was no need of any reservation, except to allay the fears of those who erroneously believed that the Constitution gave unlimited power to the Union.

We have seen that in the discussions in the constitutional conventions it was denied that any separate State ever had or exercised sovereign powers. Judge Story, whose authority is as great as that of any legal writer, in his commentaries on the Constitution maintains this doctrine. Many of our earlier historians concur in this.

It is urged that originally we were one people of different colonies, subjects of the British Kingdom; our independence of that kingdom and existence as a power came from the declaration of the Congress of our combined government, in which we are called one people. No State ever acted separately in any sovereign capacity; we carried on the war, made peace, and treated with foreign countries as one nation. Even territory had been ceded to the Confederacy by the several States; and it was the Confederacy that passed the ordinance of 1787 abolishing slavery in the Northwest. The States had declared this Confederacy indissoluble. Webster, as we have seen, did not found his argument on the ground that the States never had sovereignty; he impliedly admitted the claimed independence, or sovereignty of the States, before the forming of the Union; it is safer to make this concession as Webster did. Each State had its choice to join the Union or to remain apart and become an independent sovereign power.

Our first chief-justice, John Jay, a most eminent jurist, a member of the New York convention, and one of the writers of the Federalist, in his decision in the case of Chisholm against the State of Georgia, where Georgia denied that a State could be sued, very clearly states how our government was formed and where the sovereignty is. He said: All the people of our country were subjects, every acre of land was held by grants from the Crown of Great Britain; the sovereignty passed from the Crown to the people, and a confederation of States was established as the basis of a general government. Then the people of the country made a new government saying, “We, the people of the United States, do ordain and establish this Constitution.” Every State constitution is a compact between the citizens to govern themselves in a certain manner, and the Constitution of the United States is likewise a compact made by the people of the United States to govern themselves as to general objects in a certain manner.[57]

It has often been asserted and apparently is generally believed, that in the lapse of time the limited authority of the United States has been gradually extended, national powers assumed, and the whole fabric of government changed. An examination, however, of the laws passed by the earliest Legislatures shows a very liberal construction of the granted powers. Madison was a leader in the first Congress, he was through life a strict constructionist of the extent of the powers given by the Constitution. He informs us that no one doubted in that Congress that the United States had the power of levying duties for protection.[58] The want of such power was the very ground on which South Carolina passed the nullification acts of 1832. The preamble of the law of the first Congress, stating that the duties laid were for the encouragement and protection of manufactures, we have already cited. The same act made a discrimination in favor of imports of teas from China and India direct in ships belonging to citizens of the United States, allowed a drawback on dried and pickled fish and salted provisions in lieu of a drawback on the salt used in them. In the third session of that first Congress, an excise tax was laid on distilled spirits, and the Bank of the United States was incorporated—because of its utility to the government in the collection and transmitting of its revenue. Carriages were taxed in 1794. To the charter of the bank and the carriage-tax Madison and others objected as not within the granted powers. Also in 1794 sales of wines and liquors by retail and sales by auction were taxed. And Madison himself introduced a bill to make a post-road through the whole length of the States from Maine to Georgia.

The suit before referred to against the State of Georgia,[59] under the clause giving the United States Courts jurisdiction between a State and citizens of another State, is another piece of contemporary history and the strongest possible proof what was the understanding of that day. Georgia was sued by a citizen of South Carolina in a simple action of assumpsit, the legal term for a suit in which one would recover for the cost of a pair of shoes or a day’s wages. Georgia refused to defend the claim on the ground that she was a sovereign State.

The case came before the full bench of the Supreme Court, and was argued for the plaintiff by Edmund Randolph, then Attorney-General, the prominent member of the general convention and that of Virginia, who stated his opinion strongly against this claim of Georgia. The decision was against Georgia; Blair and Wilson, who were members of the convention that made the Constitution, the Chief-Justice Jay, and Cushing giving fully reasoned opinions. Iredell, a member of the North Carolina Convention, gave a dissenting opinion; it was not because he held that Georgia was a sovereign State as generally stated. He said as to sovereignty: “The United States are sovereign as to all the powers of government actually surrendered; each State in the Union is sovereign as to all the powers reserved.” This same doctrine, as to the sovereignty of a State in unsurrendered powers, was held by Marshall.[60]

The reason of Iredell’s dissent was that before the adoption of the Constitution a State could not be sued; that no suit now could be brought against a State, because Congress had not made a law providing for it. Further, he intimated it was not intended by the Constitution to give the right of a compulsory suit against a State. As to the sovereignty of the United States in the powers conferred to it, the court was unanimous.

In the same suit, Jay and Cushing maintained that the United States cannot be sued, a dictum since followed, though the Constitution gives jurisdiction to the courts where the United States are a party.

At this time all the States were greatly indebted and many suits were instituted against them, the United States Courts maintaining their jurisdiction over the States. The alarm was general, and to quiet the apprehension that was so extensively entertained, an amendment, taking from the United States judicial power in suits against a State, was adopted in Congress and afterwards ratified by the State Legislatures in 1798. That its motive was not to maintain the sovereignty of a State from the degradation supposed to attend a compulsory appearance before the tribunal of the nation may be inferred from the terms of the amendment. It left jurisdiction to the United States of controversies to which the United States shall be a party, of controversies between two or more States, between citizens of different States, between citizens of the same State claiming under grants of different States.[61]

Early in our history, in the second administration of Washington, a formidable, armed, organized resistance was made to the enforcement of the excise laws of the General Government in the western portion of Pennsylvania, which extended into a part of Virginia. It was computed that there were sixteen thousand men capable of bearing arms in the district in insurrection. Washington called out the militia of several of the States and, as Commander-in-chief, suppressed the revolt. The march of the troops was fatiguing and long, late in the fall, in rain and storms, which caused much suffering and, in the end, a good many deaths. The insurrection was crushed by the power of the General Government with promptness and vigor, much to the satisfaction of Washington and Hamilton then Secretary of the Treasury; it strengthened the government and the administration. Of the prisoners tried before the United States Court at Philadelphia two were found guilty of treason, who from some palliating circumstances were ultimately pardoned by the President.[62]

We have seen what were the opinions of the nature of the new government held by Hamilton, Mason, and Clinton, three of the persons Mr. Lodge named. There can be no doubt what Washington’s was. No one knew better than Washington, what a miserable condition the States, then petty in population and poor in resources, would be without a strong, indissoluble Union. Only one of the States, Virginia, had over half a million of inhabitants, nearly half slaves; two had about sixty thousand.

Washington, long before, on the disbanding of the army in 1783, wrote to the governors of the States that, according to the policy the States should adopt, depended whether the revolution was a blessing; and he put “first” among the essential requisites “an indissoluble union of the States under one federal head.”[63] In his address as president of the convention submitting the Constitution to the Congress of the States, he said: “In all our deliberations on this subject we kept steadily in our view that which appeared to us the greatest interest of every true American, the consolidation of the Union, in which is involved our prosperity, felicity, safety, perhaps our national existence.” In his farewell address, as President, to the people of the United States, in no less emphatic terms, he declared the importance and the success of the Union. He said: “The unity of Government, which constitutes you one people, is also now dear to you; it is justly so, for it is a main pillar in the edifice of your real independence—the support of your tranquillity at home, your peace abroad; of your safety; of your prosperity; of that very liberty which you so highly prize.”[64]

We have before stated, that at the institution of our government there was a great fear on the part of a portion of the people of its consolidation and the extension of its granted powers over those reserved to the States and people. It was not however until the administration of John Adams, about ten years after the government had gone into operation, that the power of a State to pass judgment on the validity of the acts of the United States was suggested. Those who had elected Adams as President called themselves Federalists, and, as is natural in those controlling the government, were in favor of a liberal construction of its powers. The name federal, taking its Latin derivation, refers to a bond uniting states; that bond may be, however, that of a confederacy or of a nation. Perhaps it was a misnomer for the party in favor of a broad national construction of the Constitution. The name has come into use, however, as descriptive of our government; it is very generally called the Federal Government. The proposed uniting of states, like the British colonies in the Pacific, is spoken of as federal. Indeed there is no substantial objection to terming any sort of government made by a constitution or agreement federal.

The party, at that time of our history, in opposition to the Federal, and who were in favor of a strict construction of the Constitution, called themselves by the national name of Republicans. When, however, they came into power under Jefferson, they were no longer strict constructionists.

CHAPTER IV.

KENTUCKY AND VIRGINIA RESOLUTIONS.

During Adams’ administration peace had been endangered by the endeavor of foreigners to embroil the country in the war then raging in Europe. In 1798 the Alien Laws giving the power to the President to expel foreigners, and the Sedition Law punishing seditious acts and libellers of the government, were passed. The constitutionality of these laws may be fairly questioned.

Jefferson, the leader of the party in opposition to those in power, was not a member of the convention that formed the Constitution, he was at that time serving the country in Europe. He was exceedingly disturbed by the Alien and Sedition Laws, and has generally been held as the instigator and author of the Kentucky resolutions condemning them, and asserting the right of nullification, passed by its Legislature in November, 1798.[65] The Virginia Assembly soon afterwards, late in December of that year, passed the famous resolutions so much relied upon by those claiming the right of nullification and secession. Jefferson did not find the Legislature of Virginia as compliant as that of Kentucky; and the resolves passed by Virginia differ fundamentally from those of Kentucky.

At the time they were passed little notice was taken of the Kentucky resolves, owing undoubtedly to the small importance of the declarations of the Legislature of a State just admitted to the Union with but few inhabitants. Besides, Kentucky had no claim to original sovereignty. She owed her existence, the right of government over her territory, and of expressing her opinions, to the privilege the General Government had given her to become a State. How with any decency could such a State claim to be a sovereign, to pass judgment on the legality of the laws of the United States from whom came her very being?

Then, after all, resolutions are not laws, and these resolutions of Kentucky (and the same remark applies to the resolutions of all other States passing judgment on the laws of the United States declaring them null and void) are merely the opinion of that particular Legislature that passed them, a sort of harmless suggestion of superior wisdom. There is no provision in any of our State constitutions authorizing the Legislature to give such opinions and the next Legislature may pass others directly contradictory. They are only entitled to respect as opinions, as would be the opinion of any town meeting or synod of clergymen or assemblage of citizens.

The Kentucky resolutions declare, and it was the first time any such declaration was made, the same doctrine that Calhoun and Hayne subsequently maintained; that the several States are united by compact, under the style and title of a constitution, in a general government for special purposes, and when the General Government assumes undelegated powers its acts are void and of no force.

Then comes the doctrine, that this government created by this compact is not the exclusive or final judge of the extent of the powers delegated to it, “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.”

Let us examine this reasoning of the Kentucky resolutions. It is that the States are united in a general government by a compact, called a constitution, for special purposes, and when the government assumes undelegated powers its acts are null and void. There is no objection to calling the Constitution a compact for special purposes only, and declaring that the government under it has no right to assume not granted or undelegated powers, and that any such assumption is void and of no force.

The only objection to this first clause is the ambiguity in the declaration that the several States are united by compact. The Constitution may be called a compact; but it cannot be denied that it was between the people of the different States. It was not a treaty or agreement made by the State Legislatures or State governments.

In the second clause comes the objectionable clause, that the government created is not the exclusive or final judge of the extent of the powers delegated to it.

We have already set forth that in this Constitution, or compact, which is declared, by those who made it, supreme over all constitutions and laws of every State, that all cases arising under the Constitution or laws of the United States shall be tried by its judiciary.[66] Here is a compact by the people of the several States, that when any questions or cases arise the United States Judiciary shall have jurisdiction and decide upon them. The parties to this compact have thus expressly made that judiciary the final judge of the validity of the laws, and therefore necessarily of the extent of power delegated to the government. It cannot be denied that even independent sovereign nations can establish a tribunal over themselves by arbitration or compact that shall be conclusive. How then can the supremacy of the judiciary of the United States be questioned by a State, whose people have deliberately declared the United States Judiciary supreme over the State constitution and laws, and that it has supreme judicial authority over all cases arising under its Constitution and laws.

We must bear in mind that our Constitution and Government would have been an absurdity and a failure, if every State, as an independent authority, could question the validity of a United States law or the act of any of its legal or administrative officers; four and forty different State judiciaries to decide on what law was valid in each independent sovereign State or Nation. As Webster and Chief-Justice Marshall said, and Calhoun admitted, on every constitutional question this theory of nullification gave as many vetoes as there are States.

Admitting, however, for the argument, that the States are independent sovereign nations, this nullification doctrine of the Kentucky resolutions is very faulty. It asserts the right of those who deny the binding obligation of the compact, to break it; it entirely ignores the right of the other parties, even when of the majority, who hold to a different construction, to enforce their view. In all compacts or agreements between nations there is the right of the independent sovereign nations, and emphatically when of the majority, to make another independent nation perform the compact it has made. The majority is not obliged to yield to the minority. The ultima ratio, the final reasoning of nations is war, and the majority certainly have that right.

Jefferson himself asserted this right of a confederacy to coerce a State, a party to an agreement, when he wrote to Cartwright that the Confederate Congress should send a frigate and compel a State to pay its quota. Washington was of the same opinion, when, in reference to New Jersey’s refusal to pay her contribution, he wrote, “that counties in Virginia and Massachusetts might oppose themselves to the laws of the State in which they are, as an individual State can oppose itself to the Federal Government.”[67]

The absurdity of the Kentucky resolutions[68] does not end with the nullification theory. One would imagine the dispute would have been, who did not write them, not who did. By the Constitution certain powers are given to Congress, and the authority “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers.” The power to punish three offences only is mentioned, but that Congress had the power to enact all laws necessary to enforce and maintain its authority is expressly given, and never had been questioned before these resolutions.

The authority of Congress is often illustrated by referring to the power given “to establish post-offices and post-roads.” Under this brief grant, Congress has passed laws punishing the robbing and obstructing the mail, and breaking open letters, and has assumed the right of taking of lands, and building post-offices, and doing everything requisite for protecting, transmitting, and distributing mail matter. Congress has also passed laws punishing the bribing of judges and of obstructing or in any way interfering with judicial processes. In fact, it is difficult to see how the government could go on without these powers to enforce and maintain its authority. But this Kentucky Legislature resolved that Congress had only the power to punish treason, counterfeiting the securities and coin of the United States, and piracies and felonies committed on the high seas, and offences against the laws of nations; because the power to punish these three crimes was alone enumerated in the Constitution. And it expressly enumerated two acts, one the Sedition Law, and the other an act to punish forging or uttering counterfeit bills of the Bank of the United States, “and all other their acts (‘Congress’) which assume to create, define, or punish crimes other than those enumerated in the Constitution, are altogether void and of no force”; that the States only had this power each in its own territory.

The resolutions also arraigned the government for the sedition and other acts punishing crimes, saying “that the General Government may place any act they think proper on the list of crimes and punish it themselves.” It declared “that these and successive acts of the same character may tend to drive these States into revolution and blood.” It will be noticed that the resolutions make no claim of a right of secession. The use of the words revolution and blood implied that resistance to the laws would be war.

The resolutions also arraigned the government for the Alien Law, calling it a tyranny, and asking the States to concur with them in considering that the acts of the General Government were so unconstitutional that they amount to an undisguised declaration “that the compact is not meant to be the measure of the powers of the General Government, but that it will proceed in the exercise over these States of all powers whatsoever”; and they ask the States that they will concur in declaring these laws void and of no force, and in requesting their repeal. The resolutions did not call upon the people or State of Kentucky to treat these denounced laws as null and void, but asked the other States to join them in getting Congress to repeal them.

For some reasons wholly incomprehensible, these nullifying resolutions of Kentucky and those of Virginia have been seized upon and referred to by late writers in the mistaken belief that they were the same, and are alike declaratory of the right of a State, as an independent sovereign power, to treat as null and void any United States law it deems to be so, and with apparently the belief that they were concurred in to a great extent at the time of their adoption.[69]

No one has suffered more than Madison from this error,—Madison, justly called the father of the Constitution, who, when its adoption seemed to depend upon the acquiescence of New York, and that State hesitated about joining the Union and proposed to make a conditional acceptance, firmly declared an acceptance was absolute and perpetual, who in No. 39 of the Federalist, the work written for the purpose of setting forth the plan of the new government, was no less explicit on the question of nullification, and said: “It is true that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide is to be established under the general government.... Some such tribunal is clearly essential to prevent an appeal to the sword and a dissolution of the compact, ... and it could be safely established under the first alone,”—the General Government. And who later in 1833 wrote to Webster in reference to his speech in answer to Calhoun: “It crushed nullification, and must hasten an abandonment of secession.”[70] His biographers speak of his double dealing in this matter, and even Mr. Hare, in his valuable commentaries on the Constitution, passes the same judgment on his conduct.[71]

But, besides Madison, the fair fame of the State of Virginia, to whom, for its being, the nation owes the greatest debt of gratitude, should not be tarnished by the taint of having so soon declared that the laws of the United States and the acts of its officers could be held and treated as null and void by every State that questioned their validity. From Virginia came Washington, the great general under whose command we became a nation, the presiding officer over the convention that made the Constitution, and who as our first President inaugurated and put successfully into operation the national government, assuming no unauthorized powers. To Virginia also is due the plan of the new government proposed in the convention by Randolph, and ably shaped and developed by Madison and Mason. Nor can we overlook the great Chief-Justice, Marshall, who for so many years and from its early existence defined the powers granted to the government, and maintained them with fairness and without encroachment on those of the States.

In these famed resolutions the Virginia State Assembly, professing a determination to maintain and defend the Constitution of the United States and of the State, and a warm attachment to the Union, declared that the powers of the Federal Government were limited by the plain sense and intention of the instrument constituting the compact the States are parties to, and that in a case of a deliberate, palpable, and dangerous exercise by the Federal Government of other powers not granted by the instrument of the compact between the States, it is the right and duty of the States, the parties thereto, to interpose and arrest the evil and maintain their rights. It asserted, with deep regret, that the Federal Government had enlarged its powers by forced constructions of the constitutional charter which defines them, and that there were indications of a design to consolidate the States into one sovereignty and to transform the government into an absolute or at best a mixed monarchy; that particularly the Alien and Sedition Acts exceeded the powers delegated by the Constitution, and were subversive of the general principles of a free government, and were expressly and positively forbidden by the Constitution; that the good people of this commonwealth, with the truest anxiety for establishing and perpetuating the Union, and with the most scrupulous fidelity to the Constitution, appeal to the other States to concur in declaring the acts aforesaid unconstitutional, and in taking the necessary and proper measures, in co-operation with Virginia to maintain the rights reserved to the States or people.[72]

It is to be borne in mind that the declaration of Virginia is, “that in a case of a deliberate, palpable, and dangerous exercise by the Federal Government of other powers not granted”—(that is, in the case of usurpations), it is the duty of the States, not the duty of a State, to interpose and arrest the evil and maintain their rights. Certainly in such cases some power should interpose, and if States can legally under the Constitution interpose to remedy such an evil, there can be no objection to such interposition. Indeed a usurpation of powers might be so plain and serious as to justify rebellion.

There is apparently a belief amongst some writers since Von Holst published his, so-called, Constitutional History of the United States, that Virginia laid down the doctrine, that “States can interpose.” As if it had been declared there was a right of States to interpose their authority and prevent the United States from enforcing its laws. It is in case of usurpations only Virginia claims that it is a duty and right to interpose to redress this evil. There is no statement how States should interpose; no suggestion that the method should be other than in the way the Constitution sanctions.

It is very much to be regretted that Mr. Henry Adams, in his very able and interesting history of the United States, should have added his great authority to this construction of the resolves. He says the Republican and the Federalist parties “were divided by a bottomless gulf in their theories of constitutional powers.” “The Union was a question of expediency, not of obligation: this was the conviction of the true Virginian school and of Jefferson’s opponents as well as of his supporters, of Patrick Henry as well as of John Taylor of Carolina and of John Randolph of Roanoke”; and “The essence of Virginian republicanism lay in a single maxim—the Government shall not be the final judge of its own powers.”

The resolutions of Virginia were understood by the other States as a denunciation of the laws of Congress, not as an assertion of a right of a State to interpose in their execution. Of the sixteen States, ten—Hildreth informs us, a fact that seems to be now overlooked, Maryland, Delaware, Pennsylvania, New Jersey, New York, Connecticut, Rhode Island, Massachusetts, New Hampshire, and Vermont—answered and condemned them.[73] The resolutions of seven of these ten are in Elliot’s Debates.[74] None of the other States supported them; indeed, from Jefferson’s and Madison’s correspondence, they were afraid North Carolina would also oppose them. The purport of the opposing resolutions is well stated in the report of a Committee of the Legislature of New York made in February, 1833, in the following words: