THE AUTHOR'S OWN VIEW OF THE NATURE OF OUR GOVERNMENT, AS BEING A
UNION IN CONTRADISTINCTION TO A LEAGUE: PRESENTED IN A SUBSEQUENT
SPEECH ON MISSOURI RESOLUTIONS.
I do not discuss these resolutions at this time. That discussion
is no part of my present object. I speak of the pledge which they
contain, and call it a mistake; and say, that whatever may be the
wishes or the opinions of the people of Missouri on the subject of
the extension or non-extention of slavery to the Territories, they
have no idea of resisting any act of Congress on the subject. They
abide the law, when it comes, be it what it may, subject to the
decision of the ballot-box and the judiciary.
I concur with the people of Missouri in this view of their duty,
and believe it to be the only course consistent with the terms and
intention of our constitution, and the only one which can save this
Union from the fate of all the confederacies which have successively
appeared and disappeared in the history of nations. Anarchy among
the members, and not tyranny in the head, has been the rock on which
all such confederacies have split. The authors of our present form
of government knew the danger of this rock, and they endeavored to
provide against it. They formed a Union--not a league--a federal
legislature to act upon persons, not upon States; and they provided
peaceful remedies for all the questions which could arise between
the people and the government. They provided a federal judiciary
to execute the federal laws when found to be constitutional; and
popular elections to repeal them when found to be bad. They formed a
government in which the law and the popular will, and not the sword,
was to decide questions; and they looked upon the first resort to
the sword for the decision of such questions as the death of the
Union.
The old confederation was a league, with a legislature acting upon
sovereignties, without power to enforce its decrees, and without
union except at the will of the parties. It was powerless for
government, and a rope of sand for union. It was to escape from that
helpless and tottering government that the present constitution
was formed; and no less than ten numbers of the federalist--from
the tenth to the twentieth--were devoted to this defect of the old
system, and the necessity of the new one. I will read some extracts
from these numbers--the joint product of Hamilton and Madison--to
show the difference between the league which we abandoned and the
Union which we formed--the dangers of the former and the benefits of
the latter--that it may be seen that the resolutions of the general
assembly of Missouri, if carried out to their conclusions, carry
back this Union to the league of the confederation--make it a rope
of sand, and the sword the arbiter between the federal head and its
members.
Mr. B. then read as follows:
"The great and radical vice, in the structure of the existing
confederation, is in the principle of legislation for States or
governments, in their corporate or collective capacities, and as
contra-distinguished from the individuals of which they consist.
Though this principle does not run through all the powers delegated
to the Union, yet it prevades and governs those on which the
efficacy of the rest depends. The consequence of this is, that,
though in theory constitutionally binding on the members of the
Union, yet in practice they are mere recommendations, which the
States observe or disregard at their option. Government implies
the power of making laws. It is essential to the idea of a law
that it be attended with a sanction, or, in other words, a penalty
or punishment for disobedience. This penalty, whatever it may be,
can only be inflicted in two ways--by the agency of the courts and
ministers of justice, or by military force; by the coercion of the
magistracy, or by the coercion of arms. The first kind can evidently
apply only to men; the last kind must of necessity be employed
against bodies politic, or communities, or States. It is evident
there is no process of a court by which their observance of the laws
can, in the last resort, be enforced. Sentences may be denounced
against them for violations of their duty; but these sentences can
only be carried into execution by the sword. In an association where
the general authority is confined to the collective bodies of the
communities that compose it, every breach of the laws must involve a
state of war; and military execution must become the only instrument
of civil obedience. Such a state of things can certainly not deserve
the name of government, nor would any prudent man choose to commit
his happiness to it."
Of the certain destruction of the Union when the sword is once drawn
between the members of a Union and their head, they speak thus:
"When the sword is once drawn, the passions of men observe no bounds
of moderation. The suggestions of wounded pride, the instigations
of irritated resentment, would be apt to carry the States, against
which the arms of the Union were exerted, to any extremes necessary
to avenge the affront, or to avoid the disgrace of submission. The
first war of this kind would probably terminate in a dissolution of
the Union."
Of the advantage and facility of the working of the federal
system, and its peaceful, efficient, and harmonious operation--if
the federal laws are made to operate upon citizens, and not upon
States--they speak in these terms:
"But if the execution of the laws of the national government
should not require the intervention of the State legislatures;
if they were to pass into immediate operation upon the citizens
themselves, the particular governments could not interrupt their
progress without an open and violent exertion of unconstitutional
power. They would be obliged to act, and in such manner as would
leave no doubt that they had encroached on the national rights. An
experiment of this nature would always be hazardous in the face of
a constitution in any degree competent to its own defence, and of a
people enlightened enough to distinguish between a legal exercise
and an illegal usurpation of authority. The success of it would
require not merely a factious majority in the legislature, but
the concurrence of the courts of justice, and of the body of the
people. If the judges were not embarked in a conspiracy with the
legislature, they would pronounce the resolutions of such a majority
to be contrary to the supreme law of the land, unconstitutional and
void. If the people were not tainted with the spirit of their State
representatives, they, as the natural guardians of the constitution,
would throw their weight into the national scale, and give it a
decided preponderance in the contest."
Of the ruinous effects of these civil wars among the members of a
republican confederacy, and their disastrous influence upon the
cause of civil liberty itself throughout the world, they thus speak:
"It is impossible to read the history of the petty republics of
Greece and Italy, without feeling sensations of disgust and horror
at the distractions with which they were continually agitated, and
at the rapid succession of revolutions by which they were kept
continually vibrating between the extremes of tyranny and anarchy.
From the disorders which disfigure the annals of those republics,
the advocates of despotism have drawn arguments, not only against
the forms of republican government, but against the very principles
of civil liberty. They have decried all free government as
inconsistent with the order of society, and have indulged themselves
in malicious exultation over its friends and partisans."
And again they say:
"It must carry its agency to the persons of the citizens. It must
stand in need of no intermediate legislation; but must itself be
empowered to employ the arm of the ordinary magistrate to execute
its own resolutions. The majesty of the national authority must be
manifested through the medium of the courts of justice."
After reading these extracts, Mr. B. said: It was to get rid of the
evils of the old confederation that the present Union was formed;
and, having formed it, they who formed it undertook to make it
perpetual, and for that purpose had recourse to all the sanctions
held sacred among men--commands, prohibitions, oaths. The States
were forbid to form compacts or agreements with each other; the
constitution and the laws made in pursuance of it, were declared
to be the supreme law of the land; and all authorities, State and
federal, legislative, executive, and judicial, were to be sworn to
support it. The resolutions which have been read contradict all
this; and the General Assembly mistook their own powers as much as
they mistook the sentiments of the people of Missouri when they
adopted them.