Nullification, Secession Webster's Argument and the Kentucky and Virginia Resolutions Part 7

Kentucky's Legislature answered the resolutions of the other States regretting the unfounded and uncandid suggestions in them derogatory to her, and then declared an attachment to the Union. The Legislature none the less resolved, that the several States that formed the Const.i.tution were sovereign and independent, having the unquestionable right to judge of infractions, and that in such a case nullification was the rightful remedy. The ending is not however that they nullify, but "this Commonwealth does now enter against them" (the Alien and Sedition Laws) "its solemn PROTEST."[76] The protest in capital letters: and that is all the State did.

[76] 4 Elliot, 545.

We come again to the Virginia resolutions. When that State, in answer to her resolutions, received the indignant remonstrances of her sister States, she felt obliged to defend her position. That defence was made at great length in her General a.s.sembly held the next year, 1799, by Madison, the author of the resolutions and the chairman of the committee to whom the communications of the other States had been referred. The report which was adopted by the a.s.sembly, coming from Madison, the princ.i.p.al constructor of the Const.i.tution, should give no countenance to nullification and secession. Upon examination it will be found that there is none.

It begins with the very conciliatory and dignified statement that, though there might be painful remarks on the spirit and manner of the proceedings of the States who disapprove of the resolutions of Virginia, it is more consistent with the dignity and duty of the General a.s.sembly to hasten an oblivion of every circ.u.mstance diminis.h.i.+ng the mutual respect, confidence, and affection of the members of the Union.

The explanatory report takes up, first, the resolution to maintain and defend the Const.i.tution of the United States and the warm attachment of Virginia to the Union, and justly says no one can object to this.

The report next notices the a.s.sertion that the powers of the Federal Government, as resulting from the compact to which the States are parties, are limited by the plain sense and intention of the instrument const.i.tuting that compact. This is merely, the powers of the United States come from and are limited by the Const.i.tution.

The report goes on and says the compact is the Const.i.tution, to which the States are parties. Then is defined what is meant by States. States sometimes mean territories occupied by the political societies within them, sometimes those societies organized into governments, and, "lastly it means the people composing those political societies in their highest sovereign capacity." It says all will concur in the last-mentioned, "because in that sense the Const.i.tution was submitted to the States, in that sense the States ratified it," and in that sense they are parties to the compact from which the powers of the Federal Government result. Now, not forgetting it is the States, the people, that are parties, is not this a declaration, an explicit one, that the people of the several States made the Const.i.tution, and not one independent sovereign State with other independent sovereign States?

Then the report further says that the Const.i.tution was formed by the sanction of the States, given by each in its sovereign capacity. Taking the definition of States as before given, this is merely an a.s.sertion that in each State the people, who have the sovereign capacity, sanctioned it. After this comes the rather obscure, and possibly objectionable, doctrine. "The States," meaning the people, "then, being the parties to the const.i.tutional compact, and in their sovereign capacity, it follows of necessity that there can be no tribunal above their authority to decide, in the last resort, whether the contract made by them be violated, and consequently that as the parties to it they must themselves decide in the last resort."

It is to be noticed that the resolution carefully limits the decision of the people or States to "in the last resort." It does not define when the last resort occurs. But the resolution (what the report is commenting on) is, "that in case of a deliberate, palpable, and dangerous exercise of other powers not granted by the said compact"--that is, in cases of deliberate, palpable, and dangerous usurpation--there is a right of the parties to the compact or government to decide, to act, to resist that usurpation. This is a declaration of the right of revolution; it is an a.s.sertion of that right in the last resort,--when argument and reasoning fail; a right that Webster admitted; the right that we the colonies claimed against Great Britain; the right of resistance against deliberate, palpable, dangerous usurpations of power; otherwise there is no redress for tyranny. No one denies this right. If unsuccessful, it is rebellion, and punished as such. So carefully, however, did Virginia a.s.sert this right that the explanatory report itself calls attention to "guard against misconstruction." The interposition is not only to be in cases of deliberate, dangerous, and palpable breaches of the Const.i.tution, but "to be _solely_ that of arresting the progress of the evil of _usurpation_." The resolutions do not even claim that in case of usurpation _the binding compact of the government is broken up_, but that the parties to it, which it has stated to be the people, should solely interfere to arrest the evil. The report proceeds with the statement that if there could be no interposition from _usurped_ powers there is a subversion of rights recognized under State const.i.tutions, and a denial of the fundamental principle upon which our independence was declared.

The report admits as true, "that the judicial department is in all questions submitted to it by the forms of the Const.i.tution to decide in the last resort." We have only to turn to the Const.i.tution to see how extensive is this submission. It is in all cases arising under the Const.i.tution and the laws made under it, in all cases in which States are parties, in all cases where treaties or the United States are concerned that it has this supreme power of judgment. This is precisely the contrary doctrine to that of nullification.

The explanation further proceeds that it is in the last resort, "in relation to the authorities of the other departments of the government, and not in relation to the rights of the parties to the const.i.tutional compact, from which the judicial as well as the other departments, hold their delegated trusts. On any other hypothesis, the delegation of judicial power would annul the authority delegating it; and the concurrence of this department with the others in usurped powers, might subvert forever, and beyond the possible reach of any rightful remedy, the very Const.i.tution which all were inst.i.tuted to preserve." Perhaps it may not be amiss to notice that all judicial power is over the rights of the parties delegating it, the parties to the compact establis.h.i.+ng the government. The delegation is not confined to power over the authorities of the other departments of the government, and the delegation of judicial power does annul the authority delegating it as far as the power delegated extends. It does not delegate usurpation of powers, nor does it prevent revolution against usurped powers. This is what the explanation means. But why the exception as to the other departments of government? Usurpation by the judiciary over the other departments is contrary to the conferred powers, and thereby affects the rights of the parties to the compact. It is beyond what they delegate. Such usurpation could very properly be resolved against: even more, resisted "in the last resort."

Then comes the a.s.sertion: "The authority of const.i.tutions over governments and of the sovereignty of the people over const.i.tutions are truths which are at all times to be kept in mind, and at no time perhaps, more necessary than at present."

As people make const.i.tutions for the sole purpose of conferring powers to governments over themselves which are to be superior and to compel obedience, and punish those refusing it; and as the people always have the power to make new const.i.tutions or to amend them under the regulations they have established; the suggestion of superiority seems a glittering generality, at that time rather out of place.

The explanation then defends the a.s.sertion in the resolutions, that these a.s.sumptions of powers, extending the sovereignty of the United States, supersede the sovereignty of the States in the cases reserved to them, and that its result "would be to transform the republican system of the United States into a monarchy." This fear that the government would by a.s.suming undelegated powers end in a monarchy was the objection to the Const.i.tution made in the convention that formed it, and in the conventions of the people of the different States when they adopted it.

And in the Virginia resolutions it is said to be "the general sentiment of America." It is further argued this great a.s.sumption of increased prerogative and patronage of the President might enable him to secure his re-election and regulate the succession and establish it as hereditary. This fear of that day to us seems absurd; but in the days of George the Third, and not so many years from the Stuarts, it had a more plausible foundation.

The explanation further says, and it is in fact an admission of its truth, "that it has been stated that it belongs to the judiciary of the United States and not to the State Legislatures to declare the meaning of the Federal Const.i.tution." "But a declaration that proceedings of the Federal Government are not warranted by the Const.i.tution is a novelty neither among the citizens nor among the Legislatures of the States."

The report then takes up and undertakes to defend the resolve, that the government has manifested a spirit to enlarge its granted powers by a forced construction of the Const.i.tution. It instances especially the Alien and Sedition Laws, and declares the Alien Law to be unconst.i.tutional, because it gave the President legislative and judicial powers in addition to those of the Executive. The Act, it says, enabled him to send out of the country, in times of peace, aliens, citizens of a friendly nation whom he should judge dangerous to the public safety or suspect of treacherous or secret machinations against the government, giving him thus legislative power, making his will the law. He also is the judiciary; without the oath or affirmation of an accuser, his suspicion the only evidence to convict; his order the only judgment to be executed. And this order may be so made as to deprive the victim of the privilege of the _habeas corpus_.

The Sedition act was also claimed to be beyond the power of Congress for many reasons, and emphatically because it punished by fine and imprisonment false, scandalous, and malicious writings against the government; thus abridging the liberty of the press, the provision in the amendments of the const.i.tution for which Virginia had been so strenuous.

In conclusion and in relation to these resolves the report says, nor can declarations either denying or affirming the const.i.tutionality of measures of the government be deemed, in any point of view as a.s.sumption of the office of the judge. They "are _expressions of opinion unaccompanied with any other effect_ than that they may produce an opinion by exciting reflection." They "may lead to a change in the legislative expressions of the general will--possibly to a change in the opinion of the judiciary."[77]

[77] 4 Elliot, 578.

"And there can be no impropriety in communicating such a declaration to other States," "and inviting their concurrence in a like declaration."

Then it speaks of the legitimate rights of States to originate amendments to the Const.i.tution; that it was not improper or objectionable in Virginia to ask the States to take "the _necessary and proper measures_" to maintain the rights reserved to the States or people; and that if the other States had concurred, "it can be scarcely doubted these simple measures would have been as sufficient as they are unexceptionable." This is a statement that the resolutions were a mere matter of opinion and that the laws complained of were unconst.i.tutional, and if the other States had been of the same opinion, the States might have const.i.tutionally remedied the evil.

Again is a repet.i.tion of the warm affection of the people of the State to the Union, and the explanation calls to remembrance the part the State had borne in the establishment of the "National Const.i.tution," and subsequently of maintaining its authority without a single exception of internal resistance or commotion, and a declaration that the people of Virginia must be above the necessity of opposing any other s.h.i.+eld to attacks on their national patriotism, "that the resolutions themselves are the strongest evidence of attachment both to the Const.i.tution and the Union." "And as the result of the whole," they adhere to their resolutions and "renew their protest against Alien and Sedition acts as palpable and alarming infractions of the Const.i.tution." Madison in a letter to Edward Everett informs us the words, "not law but utterly null, void, and of no force or effect," which followed the word "unconst.i.tutional" in the resolutions as to the Alien and Sedition laws, were struck out by consent, and also that, "the tenor of the debate discloses no reference whatever to a const.i.tutional right in an individual State to arrest by force the operation of a law of the United States."[78]

[78] Madison's letter to Everett, before referred to. Oct. No. _N.

Amer. Review_, 1830.

These resolutions and the explanation--Virginians always put them together--were nominally the political creed of the republican party that so long ruled the United States. They were a denunciation--perhaps a partisan one--of alleged unconst.i.tutional laws made by the federal party in the administrations of Was.h.i.+ngton and Adams, and expressed a belief, which few to-day will say was warranted, that there was a design in them to transform the government into an absolute or at best a mixed monarchy.

The methods to arrest the evils of these alleged unconst.i.tutional a.s.sumptions of undelegated powers were stated to be authorized by the Const.i.tution itself. And by the concurrence with Virginia of the other States to whom the resolutions were submitted, they, the States, might remedy the alleged evils by their representatives in Congress or by the choice of Senators of different opinions; there were to be, the Virginia explanation said, no less than two Congresses before the laws expired by their limitation; or if necessary, the explanation further said, the States by a convention could alter the Const.i.tution.

The resolutions are those of strict constructionists of the powers granted by the Const.i.tution; they in no way a.s.sert the nullification doctrines of Kentucky, which some thirty years afterwards were revived and developed to their logical result of secession by Calhoun and South Carolina.

The prosecutions under the Sedition law, the arresting and carrying through the country and the fining and imprisoning as criminals, for the expression of opinions, of men whom the Republicans held as eminent and respectable, such as Thomas Cooper, Jefferson's dear friend, had very great influence in the defeat of the federal party under the elder Adams and of the triumph of Jefferson and the Republicans.

The resolutions of Virginia alarmed Was.h.i.+ngton as exhibiting a discontent with the Union. He wrote to Patrick Henry, one of the Virginians Henry Adams names, to induce him to interpose his great influence in the matter.[79] Henry, whose impa.s.sioned eloquence had done so much to bring Virginia into the war of the revolution, who ably and persistently opposed in the Virginia convention the acceptance of the Const.i.tution from fear that the great powers given to the United States would be fatal to liberty, had become one of its strongest supporters.

He shared Was.h.i.+ngton's anxiety. Though he had often been Governor of the State, and had declined offers of the most important national offices under Was.h.i.+ngton, he offered himself as a candidate for election to the House of Burgesses, to do what he could to put an end to this discontent and what he considered the rash measures of the State. In his speech before his const.i.tuents, he declared that Virginia had quitted the sphere in which she had been placed by the Const.i.tution in daring to p.r.o.nounce upon the validity of federal laws, and asked, "whether the county of Charlotte would have any authority to dispute an obedience to the laws of Virginia, and he p.r.o.nounced Virginia to be to the Union what the county of Charlotte was to her."[80] Nor did he believe that resistance would be peaceful; for he warned the people that the opposition of Virginia to the acts of the General Government must beget their enforcement, and that war would ensue with Was.h.i.+ngton and a veteran army as opponents. It was the period of our hostility with France, and Was.h.i.+ngton had been made commander-in-chief. Henry was chosen to the House of Burgesses by a large majority, but died before the session began in which Virginia's conciliatory explanation of her resolves and her loyalty and attachment to the Union and the supremacy of those laws in all delegated powers was made.

[79] Was.h.i.+ngton's letter to Henry, Sparks' _Was.h.i.+ngton_, vol. xi., p.

387. The letter also contains his opinion of those in opposition to the government.

[80] Wirt's _Life of Patrick Henry_, pp. 393, 394. Moses Coit Tyler's _Life of Patrick Henry_, p. 373.

The other two distinguished Virginians whom Mr. Adams mentions, are John Taylor of Caroline and John Randolph of Roanoke. Taylor, a great friend of Jefferson's, in 1823 published a book called _New Views of the Const.i.tution of the United States_. Of so little importance, so little known, were the Kentucky resolutions then that he does not cite them, as far as we can find from our examination, which we do not claim to be thorough. In the preface he speaks of his "survey as not devoid of novelty." He controverts at great length the opinions of Hamilton and Madison, as given in the _Federalist_ and a pamphlet published in South Carolina with similar views, called _National and State Rights Considered by One of the People_. His views of the Const.i.tution are, as he says, new. He advances the doctrine that in a conflict between the laws and measures of the State and General Government neither shall prevail, but substantially the State should, unless three fourths of the States by an amendment of the Const.i.tution should decide otherwise.

John Randolph of Roanoke was notorious for his eccentricities and vagaries, his attacks on all parties and all policies; if he had any opinion it was probably, as he said, that the Virginia resolutions and their explanations were "his political Bible." What the resolutions and explanations are we have endeavored to set forth.

CHAPTER V.

SUPREMACY OF CONSt.i.tUTION MAINTAINED.

In less than the brief s.p.a.ce of two and a half years after the Kentucky resolutions were pa.s.sed Jefferson became President. If he believed in those resolutions he should at once have made a general jail delivery.

All those in prison under United States laws for counterfeiting or forging United States bank bills, robbing or embezzling from the mail, violating the custom-house laws, interfering with the judicial proceedings of the government, or committing any crime, except the few mentioned in the Const.i.tution, should have been set free (for the Kentucky resolutions expressly denounced all the United States laws punis.h.i.+ng those crimes "as altogether void and of no force"). Jefferson contented himself with pardoning those imprisoned under the Sedition laws.

In his inaugural address to Congress, at the very beginning of his administration, Jefferson announced principles totally and fundamentally opposed to the Kentucky resolutions. He pleaded for unity, and denied that every difference of opinion was a difference of principle. "We are all Republicans; we are all Federalists."[81] He declared "the preservation of the general government, in its whole const.i.tutional vigor, as the sheet-anchor of our peace at home and safety abroad." He also said "absolute acquiescence in the decisions of the majority, the vital principle of republics from which there is no appeal but to force, the vital principle and immediate parent of despotism."[82] Can anything be more directly opposed to the Kentucky resolutions, that give to every State a veto of every United States law or act that it deems unconst.i.tutional, than these declarations of the preservation of the government in all its const.i.tutional vigor and of _absolute acquiescence in the will of the majority_? Have they not been, ever since that inauguration day, the cardinal principles of Jeffersonian democracy?

Perhaps it is strange that Jefferson, coming from Virginia, did not make the exception of the resolutions of the Legislature of that State, that in case of plain palpable usurpation of powers the people of the States could interpose to redress the evil by const.i.tutional methods. Absolute acquiescence in every decision of the majority abrogates even the right of rebellion against oppressive usurpations that Webster announced. It is but reasonable to suppose that Jefferson would have made this exception of Webster's and the reasonable affirmations of the Virginia resolutions, if he had been obliged to notice them. No possible argument, however, can reconcile these inaugural principles with the Kentucky resolutions. Is it possible that the great leader of the Republican party could have announced such doctrines if the Republican party of Virginia, of which he was the chief, held precisely the contrary, as Mr. Adams informs us?

[81] H. Adams, vol. i., p. 200.

[82] H. Adams, vol. i., p. 203.

Jefferson's policy during the eight years of his administration was emphatically national, and not that of a favorer of State rights nor even of a strict construction of the powers delegated to the General Government. In March, 1806, he signed an act laying out and making a road from c.u.mberland, on the Potomac, in Maryland, to Ohio. Again he approved a bill for this purpose in 1810, though from his writings it is apparent he doubted their const.i.tutionality. Madison, Monroe, and Jackson afterwards vetoed bills pa.s.sed by Congresses of their political faith in favor of this or other roads, because, as they declared, they were beyond the powers granted by the Const.i.tution.

During Jefferson's administration a serious controversy between the United States and the great State of Pennsylvania as to the national powers of the government came to a crisis. During the revolutionary war the sloop _Active_, bound for New York with a cargo of supplies for the British, was taken from her master by Gideon Olmstead of Connecticut and three men, who had been impressed by the English and put on the vessel to a.s.sist in her navigation. An armed brig of Pennsylvania took the _Active_ from Olmstead and his a.s.sociates and brought her into the port of Philadelphia. The State Admiralty Court of Pennsylvania tried the case by a jury according to the State laws, awarding to Olmstead and his companions only one quarter of the prize money, and distributing the remainder to the State, and those interested in the brig taking the _Active_ and a companion vessel. An appeal was made by Olmstead from the State court to the Continental Congress as the power that had control of the maritime affairs of the revolting colonies. Congress very properly insisted on its jurisdiction over such cases. The Admiralty Court of Pennsylvania, disregarding this right, ordered the sloop and cargo to be sold, and distributed the proceeds; the Continental Congress, not having the power to enforce its rights, let the matter pa.s.s. Some years afterwards, when our new government had gone into effect, Olmstead filed his libel before the United States District Court of Pennsylvania and obtained a decision in his favor reversing the decree of the Pennsylvania court. Judge Peters, of the United States District Court, hesitated to enforce this decree against Pennsylvania, wis.h.i.+ng to obtain the sanction of the Supreme Court of the United States. A mandamus was issued by the Supreme Court directing its district court to enforce its decree, Chief-Justice Marshall saying that if a State could annul the judgment of a United States Court the Const.i.tution itself became a solemn mockery. "The State of Pennsylvania can possess no const.i.tutional power to resist the legal process which may be directed in this case."

The State of Pennsylvania did resist and did pa.s.s laws and make military preparations to enforce them. Here was a clear case of conflict between a State and the United States as to the powers the State had given, and where, according to the Kentucky resolutions, and according to Jefferson, if he were the author, the State, as a party to the compact of government, there being no umpire, could lawfully resist and insist on the construction it gave to the case. While this conflict was pending, the Republican party, which was predominant in the United States Congress, both House and Senate, in order to enforce the authority of the United States and the decision of its Court, pa.s.sed an act authorizing the President, in cases of insurrection or obstruction to the law, to employ such part of the land and naval force of the United States as shall be judged necessary. Jefferson signed this act in 1807, thus sanctioning the compelling of the obedience of a State to the General Government.

It is to be observed that this took place in a case where the dispute was as to the jurisdiction of the United States in a case between a State court and the authority of the old Confederate Government. The party of which Jefferson was the chief could have refused to enforce the decision of the Supreme Court on what seems a plausible ground, that the Const.i.tution gave no power to the United States over the disputes between the old Confederacy and the States; but neither Congress, nor Jefferson by a veto, did this. They enforced the nationality of the Confederacy and of the United States Government as its successor.

The carrying out of the decree of the United States Court was resisted by the Pennsylvania State militia under General Bright, who had been called out by the Governor under the sanction of the Legislature; the United States marshal summoned a posse of two thousand men, and war was imminent. Madison had now become President, and the Governor appealed to him to discriminate between a factious opposition to the laws of the United States and resistance to a decree founded on a usurpation of power; but Madison replied that he was specially enjoined by statute to enforce the decrees of the Supreme Court. The State yielded, and also paid the money necessary to carry out the decree of the United States Court. General Bright and his men were brought to trial for forcibly obstructing the United States process, and were convicted and sentenced to fine and imprisonment. Madison pardoned those convicted, and remitted the fines on the ground that they had acted under a mistaken sense of duty.[83]

[83] A full account of this case, though well known and reported, is not to be found in the histories. The case was referred to as the Gideon Olmstead case in the debates in Congress at the time of South Carolina's threatened nullification in 1833. The account of the trial of General Bright is taken from Carson's _History of the Supreme Court of the United States_, p. 213 and _seq._

Nor is this all of this matter. Pennsylvania, though finally yielding an obedience to the United States, felt aggrieved, and suggested an amendment to the Const.i.tution, that questions arising between States and the federal judiciary should be submitted to an impartial tribunal, and sent the proposed amendment to Virginia.

The Legislature of Virginia appointed a committee to consider this proposed amendment, part of whose report was, "that a tribunal is already provided by the Const.i.tution of the United States, to wit, the Supreme Court, more eminently qualified, from their habits and duties, from the mode of their selection, and from their tenure of office, to decide the disputes aforesaid in an enlightened and impartial manner than any other tribunal that could be created." The resolutions disapproving the proposed amendment were pa.s.sed _unanimously_, both in the House of Delegates and Senate.[84] Thus in January, 1810, only ten years after her own resolutions and explanations, Virginia, instead of giving countenance to the nullification doctrine of Kentucky, and replying to Pennsylvania that, as a State, a party making the compact, you have a right to judge whether the United States exceeds its authority, declared that a fit tribunal for the trial of questions between the States and the United States existed in the Supreme Court of the United States, and that a better one could not be created. This should be conclusive that Virginia republicanism in no way countenanced nullification.