Nullification, Secession Webster's Argument and the Kentucky and Virginia Resolutions Part 6

We have before stated, that at the inst.i.tution 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 pa.s.s 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 Const.i.tution. 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 const.i.tution 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 Const.i.tution, 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 punis.h.i.+ng seditious acts and libellers of the government, were pa.s.sed. The const.i.tutionality 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 Const.i.tution, 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 a.s.serting the right of nullification, pa.s.sed by its Legislature in November, 1798.[65] The Virginia a.s.sembly soon afterwards, late in December of that year, pa.s.sed 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 pa.s.sed by Virginia differ fundamentally from those of Kentucky.

[65] Two drafts of the resolutions in his handwriting were found amongst his papers and are published in his writings.

At the time they were pa.s.sed 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 pa.s.s 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 pa.s.sing judgment on the laws of the United States declaring them null and void) are merely the opinion of that particular Legislature that pa.s.sed them, a sort of harmless suggestion of superior wisdom.

There is no provision in any of our State const.i.tutions authorizing the Legislature to give such opinions and the next Legislature may pa.s.s others directly contradictory. They are only ent.i.tled to respect as _opinions_, as would be the opinion of any town meeting or synod of clergymen or a.s.semblage 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 t.i.tle of a const.i.tution, in a general government for special purposes, and when the General Government a.s.sumes 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 const.i.tution, for special purposes, and when the government a.s.sumes undelegated powers its acts are null and void. There is no objection to calling the Const.i.tution a compact for special purposes only, and declaring that the government under it has no right to a.s.sume not granted or undelegated powers, and that any such a.s.sumption 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 Const.i.tution 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 Const.i.tution, or compact, which is declared, by those who made it, supreme over all const.i.tutions and laws of every State, that all cases arising under the Const.i.tution 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 const.i.tution and laws, and that it has supreme judicial authority over all cases arising under its Const.i.tution and laws.

[66] Article III., Sec. 1, of the Const.i.tution.

We must bear in mind that our Const.i.tution 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 const.i.tutional 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 a.s.serts 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 a.s.serted 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. Was.h.i.+ngton was of the same opinion, when, in reference to New Jersey's refusal to pay her contribution, he wrote, "that counties in Virginia and Ma.s.sachusetts 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]

[67] Was.h.i.+ngton's letter to Dr. Wm. Gordon. Bancroft's _History of the Const.i.tution_, vol. i., p. 320, Appendix.

See also in Jefferson's _Works_, letter to Madison, April 16, 1781, approving of coercion by a party to a compact.

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 Const.i.tution 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.

[68] Kentucky resolutions, 4 Elliot, 540.

The authority of Congress is often ill.u.s.trated by referring to the power given "to establish post-offices and post-roads." Under this brief grant, Congress has pa.s.sed laws punis.h.i.+ng the robbing and obstructing the mail, and breaking open letters, and has a.s.sumed the right of taking of lands, and building post-offices, and doing everything requisite for protecting, transmitting, and distributing mail matter. Congress has also pa.s.sed laws punis.h.i.+ng 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 Const.i.tution. 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 a.s.sume to create, define, or punish crimes other than those enumerated in the Const.i.tution, 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 punis.h.i.+ng 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 unconst.i.tutional 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]

[69] See vol. i., Bryce's _American Commonwealth_, p. 328.

No one has suffered more than Madison from this error,--Madison, justly called the father of the Const.i.tution, 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 Const.i.tution, pa.s.ses the same judgment on his conduct.[71]

[70] Bledsoe, _Is Jefferson Davis a Traitor_, p. 173.

[71] There are several works on the Const.i.tution by Story, Bancroft, G. T. Curtis, and others, but none of them that we have seen, except the recent work of Professor Hare, that ably treats the matter, has taken up the question of nullification and secession. Apparently the authors did not think such a claim could be made. Some editions recently published have notes on this matter.

But, besides Madison, the fair fame of the State of Virginia, to whom, for its being, the nation owes the greatest debt of grat.i.tude, 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 Was.h.i.+ngton, the great general under whose command we became a nation, the presiding officer over the convention that made the Const.i.tution, and who as our first President inaugurated and put successfully into operation the national government, a.s.suming 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 a.s.sembly, professing a determination to maintain and defend the Const.i.tution 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 const.i.tuting 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 a.s.serted, with deep regret, that the Federal Government had enlarged its powers by forced constructions of the const.i.tutional 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 Const.i.tution, and were subversive of the general principles of a free government, and were expressly and positively forbidden by the Const.i.tution; that the good people of this commonwealth, with the truest anxiety for establis.h.i.+ng and perpetuating the Union, and with the most scrupulous fidelity to the Const.i.tution, appeal to the other States to concur in declaring the acts aforesaid unconst.i.tutional, and in taking the necessary and proper measures, in co-operation with Virginia to maintain the rights reserved to the States or people.[72]

[72] Virginia's resolutions and explanations, 4 Elliot, 528, 529, 546 to 580.

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 Const.i.tution 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, _Const.i.tutional 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 Const.i.tution 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 const.i.tutional 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 a.s.sertion 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, Ma.s.sachusetts, New Hamps.h.i.+re, 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:

"These resolutions were met by several of the State Legislatures to whom they had been communicated by counter resolutions protesting against them with much warmth, chiefly on the ground that the act of a State Legislature declaring a law of the United States unconst.i.tutional was in itself an unconst.i.tutional a.s.sumption of authority, and an unreasonable interference with the exclusive jurisdiction of the Supreme Court of the United States; accompanied in some instances, with severe denunciation against their disorganizing tendency."

[73] Hildreth's _History of U. S._, vol. v., p. 296.

[74] 4 Elliot, pp. 532-9.

Some of the States argued the question of the const.i.tutionality and expediency of the Alien and Sedition Laws, and one State approved of the able advocacy and demonstration of their validity and expediency by the minority of the General a.s.sembly of Virginia.

Of the States, whose resolutions are in Elliot's _Debates_, two only, New York and New Hamps.h.i.+re, mention the name of Kentucky. Apparently the extreme viciousness of her doctrine escaped notice. In fact the nullification doctrine, the right of each State to resist the execution of United States laws, though a.s.serted at the time by Kentucky, was unnoticed or forgotten until brought to life again by South Carolina thirty years afterwards. The right of secession was not suggested in the resolutions of either Virginia or Kentucky.

Nor did it appear that any one of the Senators or the Representatives of Kentucky ventured to lay before their respective Congressional Houses the nullifying resolutions of that State, notwithstanding the injunction contained in them to that effect.[75]

[75] Hildreth's _History_, vol. v., 296.