Early Foreshadowings.--Opinions of Mr. Madison and Mr. Rufus
King.--Safeguards provided.--Their Failure.--State
Interposition.--The Kentucky and Virginia Resolutions.--Their
Endorsement by the People in the Presidential Elections of 1800
and Ensuing Terms.--South Carolina and Mr. Calhoun.--The
Compromise of 1833.--Action of Massachusetts in
1843-'45.--Opinions of John Quincy Adams.--Necessity for
Secession.
From the earliest period, it was foreseen by the wisest of our statesmen
that a danger to the perpetuity of the Union would arise from the
conflicting interests of different sections, and every effort was made
to secure each of these classes of interests against aggression by the
other. As a proof of this, may be cited the following extract from Mr.
Madison's report of a speech made by himself in the Philadelphia
Convention on the 30th of June, 1787:
"He admitted that every peculiar interest, whether in any class
of citizens or any description of States, ought to be secured as
far as possible. Wherever there is danger of attack, there ought
to be given a constitutional power of defense. But he contended
that the States were divided into different interests, not by
their difference of size, but by other circumstances; the most
material of which resulted from climate, but principally from
the effects of their having or not having slaves. These two
causes concurred in forming the great division of interests in
the United States. It did not lie between the large and small
States; it lay between the Northern and Southern; and, if any
defensive power were necessary, it ought to be mutually given to
these two interests."[105]
Mr. Rufus King, a distinguished member of the Convention from
Massachusetts, a few days afterward, said, to the same effect: "He was
fully convinced that the question concerning a difference of interests
did not lie where it had hitherto been discussed, between the great and
small States, but between the Southern and Eastern. For this reason he
had been ready to yield something, in the proportion of representatives,
for the security of the Southern.... He was not averse to giving them a
still greater security, but did not see how it could be done."[106]
The wise men who formed the Constitution were not seeking to bind the
States together by the material power of a majority; nor were they so
blind to the influences of passion and interest as to believe that paper
barriers would suffice to restrain a majority actuated by either or both
of these motives. They endeavored, therefore, to prevent the conflicts
inevitable from the ascendancy of a sectional or party majority, by so
distributing the powers of government that each interest might hold a
check upon the other. It was believed that the compromises made with
regard to representation--securing to each State an equal vote in the
Senate, and in the House of Representatives giving the States a weight
in proportion to their respective population, estimating the negroes as
equivalent to three fifths of the same number of free whites--would have
the effect of giving at an early period a majority in the House of
Representatives to the South, while the North would retain the
ascendancy in the Senate. Thus it was supposed that the two great
sectional interests would be enabled to restrain each other within the
limits of purposes and action beneficial to both.
The failure of these expectations need not affect our reverence for the
intentions of the fathers, or our respect for the means which they
devised to carry them into effect. That they were mistaken, both as to
the maintenance of the balance of sectional power and as to the fidelity
and integrity with which the Congress was expected to conform to the
letter and spirit of its delegated authority, is perhaps to be ascribed
less to lack of prophetic foresight, than to that over-sanguine
confidence which is the weakness of honest minds, and which was
naturally strengthened by the patriotic and fraternal feelings resulting
from the great struggle through which they had then but recently passed.
They saw, in the sufficiency of the authority delegated to the Federal
Government and in the fullness of the sovereignty retained by the
States, a system the strict construction of which was so eminently
adapted to indefinite expansion of the confederacy as to embrace every
variety of production and consequent diversity of pursuit. Carried out
in the spirit in which it was devised, there was in this system no
element of disintegration, but every facility for an enlargement of the
circle of the family of States (or nations), so that it scarcely seemed
unreasonable to look forward to a fulfillment of the aspiration of Mr.
Hamilton, that it might extend over North America, perhaps over the
whole continent.
Not at all incompatible with these views and purposes was the
recognition of the right of the States to reassume, if occasion should
require it, the powers which they had delegated. On the contrary, the
maintenance of this right was the surest guarantee of the perpetuity of
the Union, and the denial of it sounded the first serious note of its
dissolution. The conservative efficiency of "_State interposition_," for
maintenance of the essential principles of the Union against aggression
or decadence, is one of the most conspicuous features in the debates of
the various State Conventions by which the Constitution was ratified.
Perhaps their ideas of the particular form in which this interposition
was to be made may have been somewhat indefinite; and left to be reduced
to shape by the circumstances when they should arise, but the principle
itself was assumed and asserted as fundamental. But for a firm reliance
upon it, as a sure resort in case of need, it may safely be said that
the Union would never have been formed. It would be unjust to the wisdom
and sagacity of the framers of the Constitution to suppose that they
entirely relied on paper barriers for the protection of the rights of
minorities. Fresh from the defense of violated charters and faithless
aggression on inalienable rights, it might, _a priori_, be assumed that
they would require something more potential than mere promises to
protect them from human depravity and human ambition. That they did so
is to be found in the debates both of the General and the State
Conventions, where State interposition was often declared to be the
bulwark against usurpation.
At an early period in the history of the Federal Government, the States
of Kentucky and Virginia found reason to reassert this right of State
interposition. In the first of the famous resolutions drawn by Mr.
Jefferson in 1798, and with some modification adopted by the Legislature
of Kentucky in November of that year, it is declared that, "whensoever
the General Government assumes undelegated powers, its acts are
_unauthoritative, void, and of no force_; that to this compact each
State acceded as a State, and is an integral party; that this
Government, created by this compact, was not made the exclusive or final
judge of the extent of the powers delegated to itself; since that would
have made its discretion, and not the Constitution, the measure of its
powers; 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_."
In the Virginia resolutions, drawn by Mr. Madison, adopted on the 24th
of December, 1798, and reaffirmed in 1799, the General Assembly of that
State declares that "it views the powers of the Federal Government as
resulting from the compact, to which the States are parties, as limited
by the plain sense and intention of the instrument constituting that
compact, as no further valid than they are authorized by the grants
enumerated in that compact; and that, in case of a deliberate, palpable,
and dangerous exercise of other powers, not granted by the said compact,
the States, who are parties thereto, have the right, and are in duty
bound, to interpose, for arresting the progress of the evil, and for
maintaining within their respective limits the authorities, rights, and
liberties, appertaining to them." Another of the same series of
resolutions denounces the indications of a design "to consolidate the
States by degrees into one sovereignty."
These, it is true, were only the resolves of two States, and they were
dissented from by several other State Legislatures--not so much on the
ground of opposition to the general principles asserted as on that of
their being unnecessary in their application to the alien and sedition
laws, which were the immediate occasion of their utterance.
Nevertheless, they were the basis of the contest for the Presidency in
1800, which resulted in their approval by the people in the triumphant
election of Mr. Jefferson. They became part of the accepted creed of the
Republican, Democratic, State-Rights, or Conservative party, as it has
been variously termed at different periods, and as such they were
ratified by the people in every Presidential election that took place
for sixty years, with two exceptions. The last victory obtained under
them, and when they were emphasized by adding the construction of them
contained in the report of Mr. Madison to the Virginia Legislature in
1799, was at the election of Mr. Buchanan--the last President chosen by
vote of a party that could with any propriety be styled "national," in
contradistinction to sectional.
At a critical and memorable period, that pure spirit, luminous
intellect, and devoted adherent of the Constitution, the great statesman
of South Carolina, invoked this remedy of State interposition against
the Tariff Act of 1828, which was deemed injurious and oppressive to his
State. No purpose was then declared to coerce the State, as such, but
measures were taken to break the protective shield of her authority and
enforce the laws of Congress upon her citizens, by compelling them to
pay outside of her ports the duties on imports, which the State had
declared unconstitutional, and had forbidden to be collected in her
ports.
There remained at that day enough of the spirit in which the Union had
been founded--enough of respect for the sovereignty of States and of
regard for the limitations of the Constitution--to prevent a conflict of
arms. The compromise of 1833 was adopted, which South Carolina agreed to
accept, the principle for which she contended being virtually conceded.
Meantime there had been no lack, as we have already seen, of assertions
of the sovereign rights of the States from other quarters. The
declaration of these rights by the New England States and their
representatives, on the acquisition of Louisiana in 1803, on the
admission of the State of that name in 1811-'12, and on the question of
the annexation of Texas in 1843-'45, have been referred to in another
place. Among the resolutions of the Massachusetts Legislature, in
relation to the proposed annexation of Texas, adopted in February, 1845,
were the following:
"2. _Resolved_, That there has hitherto been no precedent of the
admission of a foreign state or foreign territory into the Union
by legislation. And as the powers of legislation, granted in the
Constitution of the United States to Congress, do not embrace a
case of the admission of a foreign state or foreign territory,
by legislation, into the Union, such an act of admission _would
have no binding force whatever on the people of Massachusetts_.
"3. _Resolved_, That the power, _never having been granted by
the people of Massachusetts_, to admit into the Union States and
Territories not within the same when the Constitution was
adopted, _remains with the people, and can only be exercised in
such way and manner as the people shall hereafter designate and
appoint_."[107]
To these stanch declarations of principles--with regard to which
(leaving out of consideration the particular occasion that called them
forth) my only doubt would be whether they do not express too decided a
doctrine of nullification--may be added the avowal of one of the most
distinguished sons of Massachusetts, John Quincy Adams, in his discourse
before the New York Historical Society, in 1839:
"Nations" (says Mr. Adams) "acknowledge no judge between them
upon earth; and their governments, from necessity, must, in
their intercourse with each other, decide when the failure of
one party to a contract to perform its obligations absolves the
other from the reciprocal fulfillment of its own. But this last
of earthly powers is not necessary to the freedom or
independence of States connected together by the immediate
action of the people of whom they consist. To the people alone
is there reserved as well the dissolving as the constituent
power, and that power can be exercised by them only under the
tie of conscience, binding them to the retributive justice of
Heaven.
"With these qualifications, we may admit the same right as
vested in the _people of every State_ in the Union, with
reference to the General Government, which was exercised by the
people of the united colonies with reference to the supreme head
of the British Empire, of which they formed a part; and under
these limitations have the people of each State in the Union a
right to secede from the confederated Union itself.
"Thus stands the RIGHT. But the indissoluble link of union
between the people of the several States of this confederated
nation is, after all, not in the RIGHT, but in the HEART. If the
day should ever come (may Heaven avert it!) when the affections
of the people of these States shall be alienated from each
other, when the fraternal spirit shall give way to cold
indifference, or collision of interests shall fester into
hatred, the bonds of political association will not long hold
together parties no longer attracted by the magnetism of
conciliated interests and kindly sympathies; and _far better
will it be for the people of the disunited States to part in
friendship with each other than to be held together by
constraint_. Then will be the time for reverting to the
precedents which occurred at the formation and adoption of the
Constitution, to form again a _more perfect Union, by dissolving
that which could no longer bind_, and to leave the separated
parts to be reunited by the law of political gravitation to the
center."
Perhaps it is unfortunate that, in earlier and better times, when the
prospect of serious difficulties first arose, a convention of the States
was not assembled to consider the relations of the various States and
the Government of the Union. As time rolled on, the General Government,
gathering with both hands a mass of undelegated powers, reached that
position which Mr. Jefferson had pointed out as an intolerable evil--the
claim of a right to judge of the extent of its own authority. Of those
then participating in public affairs, it was apparently useless to ask
that the question should be submitted for decision to the parties to the
compact, under the same conditions as those which controlled the
formation and adoption of the Constitution; otherwise, a convention
would have been utterly fruitless, for at that period, when aggression
for sectional aggrandizement had made such rapid advances, it can
scarcely be doubted that more than a fourth, if not a majority of
States, would have adhered to that policy which had been manifested for
years in the legislation of many States, as well as in that of the
Federal Government. What course would then have remained to the Southern
States? Nothing, except either to submit to a continuation of what they
believed and felt to be violations of the compact of union, breaches of
faith, injurious and oppressive usurpation, or else to assert the
sovereign right to reassume the grants they had made, since those grants
had been perverted from their original and proper purposes.
Surely the right to resume the powers delegated and to judge of the
propriety and sufficiency of the causes for doing so are alike
inseparable from the possession of sovereignty. Over sovereigns there is
no common judge, and between them can be no umpire, except by their own
agreement and consent. The necessity or propriety of exercising the
right to withdraw from a confederacy or union must be determined by each
member for itself. Once determined in favor of withdrawal, all that
remains for consideration is the obligation to see that no wanton damage
is done to former associates, and to make such fair settlement of common
interests as the equity of the case may require.
[Footnote 105: "Madison Papers," p. 1006.]
[Footnote 106: Ibid., pp. 1057, 1058.]
[Footnote 107: "Congressional Globe," vol. xiv, p. 299.]