SUPREMACY OF CONSTITUTION MAINTAINED.
In less than the brief space of two and a half years after the Kentucky
resolutions were passed 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 Constitution, should have been set free (for the
Kentucky resolutions expressly denounced all the United States laws
punishing 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 constitutional
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
unconstitutional, than these declarations of the preservation of the
government in all its constitutional 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 constitutional 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 Cumberland, 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 constitutionality. Madison, Monroe, and
Jackson afterwards vetoed bills passed 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 Constitution.
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 assist in her navigation. An armed brig of Pennsylvania took
the _Active_ from Olmstead and his associates 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 pass. 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, wishing 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 Constitution itself became a
solemn mockery. “The State of Pennsylvania can possess no constitutional
power to resist the legal process which may be directed in this case.”
The State of Pennsylvania did resist and did pass 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, passed 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
Constitution 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 Constitution, 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 Constitution 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 passed _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.
[84] Webster’s _Speeches_, 8th ed., 1850, vol. i., pp. 427, 428. See
part of report and resolutions of Virginia in Mr. Pinckney’s argument
in Cohens _vs._ Virginia, 6 Wheaton, Rep., 264.
Immediately after the commencement of his administration, Jefferson, and
Madison, the Secretary of State, entered into negotiations with France
for the acquisition of the province of Louisiana and the immense
territory belonging to it. The purchase was completed early in 1803, and
by it and for all time the power of the old States in the Union was
diminished. Even a liberal constructionist might have hesitated as to
its constitutionality. Jefferson himself had his doubts. Neither he,
however, nor any of his party took any measures to have an amendment of
the Constitution to sanction it. It was indeed a measure of vital
necessity, and acquiesced in by the people of all the States as such.
In the national convention Gouverneur Morris said that the fisheries and
the Mississippi were the two great objects of the Union.[85]
Negotiations with Spain with reference to the navigation of the
Mississippi were constantly before the Congress of the Confederacy in
1787, this river being the only outlet for the products of Kentucky,
Tennessee, and of parts of Western Virginia and Pennsylvania, as well as
of the great then unsettled country beyond. There was a fear that the
inhabitants of this western territory might ally themselves with Great
Britain, because of her power to compel Spain to grant the right of way
to the sea; for it was recognized that the inhabitants of that country
would and must be a part of the power that held the mouth of the great
river. More than this, the Constitution itself provides for the
admission of new States, and the annexation of Canada had been
contemplated in the articles of the Confederacy.
[85] 5 Elliot, 526.
Josiah Quincy’s speech, in 1811, when the admission of Louisiana as a
State came up, is often quoted by Southern writers as justifying
secession. He said: “If this bill passes, it is my deliberate opinion
that it is virtually a dissolution of this Union; that it will free the
States from their moral obligation; and as it will be the right of all,
so it will be the duty of some, definitely to prepare for a
separation,--amicably if they can, violently if they must.”
This declaration does not contain any claimed right of a State as a
party to a compact to judge whether it has been broken, or of a
sovereign State to secede. It is an assertion that the government or
nation was so changed by the annexation of Louisiana as a State, from
territory formerly no part of the Union, that the other States had a
right to break it up. This opinion was not concurred in by the Governor
or Legislature or State of Massachusetts, which assented to the
admission of Louisiana.[86] Quincy’s declaration contains no assertion
of the sovereignty of a State, or right to secede at will. It admits
that separation, unless assented to, must be by force.
[86] H. Adams’ _History_, vol. v., p. 326.
It is impossible to reconcile the doctrine of the Kentucky resolutions
with those of Jefferson in his inaugural and with his whole policy
during his term as President. They are fundamentally different. It must
be remembered that his authorship of the Kentucky resolutions was not
then known.
There are many followers and admirers of Jefferson who maintain that he
did not take the same view of the Kentucky resolves as the nullifiers of
South Carolina. Robert J. Walker, the distinguished financier and
Secretary of the Treasury in Polk’s time, in an article on nullification
and secession, in the February number of the _Continental Monthly_,
published at Philadelphia in 1863, gives what he alleges are Jefferson’s
views, and says that they were opposed to nullification and secession.
Indeed, the Kentucky resolves do not claim the right of secession; they
do not follow out their premises to its logical conclusion. They do not
declare or recommend that the State should treat the Alien and Sedition
laws as null and void, though in their reply to the other States they
say a nullification is “the rightful remedy.” They carefully let it be
known they only protest. That Jefferson did not carry this theory of the
Kentucky resolutions to the right of secession, is perhaps shown by his
correspondence when the acceptance of the Constitution was pending in
Virginia. Even at the time of the Kentucky resolutions he speaks of the
“scission” of the States, and about 1820, during the period of the
Missouri dispute, he again alludes to the “scission,” if it should come,
as geographical. He would hardly have used this word, implying a cutting
or tearing asunder, if he had believed in a right of secession.
Jefferson had not the cool, dispassionate judgment of Washington. He was
a violent partisan. He believed the federalists were striving for a
monarchy; he spoke of the great Chief-Justice Marshall, when he
disagreed with a decision made by him, as a sly old fox. Both Jefferson
and Madison were displeased with the rulings of Marshall on the trial
of Burr for treason. The reason of their displeasure was the strict
construction the Chief Justice gave to the law punishing that offence,
not the too liberal wielding of the judicial powers. The enactment of
the Alien and Sedition laws and their enforcement were to Jefferson
outrageous violations of liberty, and of the very amendments to the
Constitution for which Virginia and Massachusetts and New York had been
so persistent. He believed that the federal party was determined to
keep possession of the government by crushing out the freedom of the
press and the people. To oppose this, to prevent what he thought was a
tyrannical abuse of authority with the intent of perpetuating itself,
he was willing to put to question the fundamental authority of the
government to pull down the whole structure. He found that his own
State, Virginia, did not acquiesce in the doctrines of Kentucky. By a
letter of his of the date of November 17, 1798, it appears he sent a
draft of the Kentucky resolutions to Madison, saying that we should
distinctly affirm all these important principles, not however stating
that he was the author. When he came into power, if he thought of the
matter at all, he must have seen that the practice of nullification
would be the end of all United States government. What these resolutions
actually were had apparently not been understood by the other States.
Madison, his Secretary of State, who always maintained the supremacy of
the General Government, was his dear friend and undoubtedly then, as in
after years, his adviser. Nor was his change of principles, if there
were any change, more strange than his change of dress. Mr. Adams tells
us he began his administration by receiving the gorgeously dressed
foreign ministers in his threadbare coat, old much soiled corduroy small
clothes, faded by many washings, and slippers without heels; for these
clothes he afterwards substituted a dress of black, clean linen, and
powdered hair. Is it Carlyle that says that clothes and principles are
the same--that they make the man?
That Jefferson ever afterwards believed in the nationality of the Union,
is shown by his administration and correspondence, and made evident by
his acts in the crowning work of his life, the establishing of the
University of Virginia. That he was the founder, he directed should be
inscribed on the monument over his grave. In Charlottesville, where the
mountains of the Blue Ridge come down to the plains that stretch many
miles to the sea, was Monticello, Jefferson’s charming home, the seat
of his unbounded hospitality, and close to that of Madison. Near by
amongst the rolling hills, most picturesquely placed by the direction
of Jefferson, are the pleasing colonnaded buildings of the University,
planned by his own hand. It is the University’s boast, but questioned by
Harvard College, that Jefferson introduced there the system of elective
studies, that is now spreading so widely. There were but four things
that Jefferson declared should be obligatory to the University: one was
the study of the _Federalist_,--the work of Hamilton, Madison, and Jay,
expounding the national doctrines of the founders of the Republic, with
no countenance of those of the Kentucky resolutions. To-day Jefferson’s
directions are observed, and the _Federalist_ remains the text-book.[87]
[87] See No. LXXX. of the _Federalist_ for Hamilton’s clear and able
statement of the powers of the judicial department. He says it is a
political axiom, that the judicial power of a government should be
co-extensive with its legislative, and that the government should and
did have the power over States and their judiciary in all cases
arising under the Constitution and United States laws.
No President until Lincoln, save perhaps Madison in his first
administration, had so troublesome a time as Jefferson in his second
term of office. The rights of the United States, a small, weak power,
were not only disregarded by England and France in their deadly
struggle, but decrees were issued confiscating property and vessels
engaged in what by the laws of nations is now universally held to be a
lawful trade. Great Britain impressed sailors from American vessels, and
one of her men-of-war arrogantly fought and captured a smaller United
States frigate, killing and wounding many of her crew, and taking from
the disabled ship her claimed subjects.
Jefferson’s great panacea to cure these evils and to bring England
and France to respect and grant our rights was the forcing of
non-intercourse on the high seas between the United States and all
foreign countries--an embargo on all shipping. By virtue of the power
in the Constitution to regulate commerce, Jefferson and his party
destroyed it. The vessels were left rotting at the wharves, and
ship-building and the many industries depending upon it and the sale of
the products of the country abroad were stopped. The New England States
suffered particularly by this arbitrary decree; they had an extensive
and flourishing neutral commerce; their merchants had amassed great
wealth. They, as Mr. Webster said, brought the matter to trial before
the United States Court; the case was decided against them, and they
submitted. No Northern State passed any resolutions affirming the
doctrine of its sovereignty and its right to judge of what seemed to
many “a deliberate, palpable, and dangerous exercise of powers not
granted” by the Constitution. Instead of asserting sovereignty to judge,
the Massachusetts Legislature passed in 1809 a resolve proposing an
amendment of the Constitution prohibiting the laying of an embargo
beyond a limited period. The measure failed because of not obtaining the
consent of the other States.
It is always to be carefully borne in mind that the declarations of
Quincy, Pickering, and Griswold, brought forward by Southern writers,
favoring or threatening a separation, were never made on the ground of
the sovereignty of a State and its right to secede. The doctrine of
those who held the most extreme opinions was that the policy and acts of
the general government were so tyrannical and oppressive that the
eastern commercial States were justified in rebellion and in separating
themselves from the more southern States, where the political party was
dominant, that had most grievously oppressed and impoverished them and
annihilated their commerce in a futile attempt to injure Great Britain.
This was not a claim of right to leave the Union and dissolve it at
pleasure. Indeed, when the leaders went too far in their discontent, the
people of the Eastern States would sometimes elect governors and
representatives of the Republican party. The spirit of loyalty to the
Union and the love of a common country would always spring up and assert
itself when it came to the question of disunion and treason.
Towards the close of the war of 1812 there was great discontent at the
failure of the government to repel the English forces from Maine, then a
portion of Massachusetts. Troops raised in that State were sent to the
defence of our more western Canadian boundary. Beyond the discontent,
there was some disloyalty. At this time the Hartford convention was
called by Massachusetts. That convention did not even pass resolutions
of hostility to the Union. The convention was called to devise means of
security and defence “not repugnant to their obligations as members of
the Union,” and, according to Mr. Lodge, Josiah Quincy was not made a
delegate by reason of his extreme views.[88] The convention neither
asserted nor suggested nullification or secession, but _proposed
amendments to the Constitution_. Its recommendations were of no
particular importance.[89] The only persons who were affected by its
doings were the members, who ever afterwards suffered politically from a
taint of disloyalty. Peace soon came and terminated the oppressive
grievances and removed the discontent.
[88] Lodge’s _Life of George Cabot_, p. 518.
[89] _History of Hartford Convention_, by Theo. Dwight.
Not only as stated in the beginning of this article is the Hartford
convention with the Kentucky and Virginia resolutions brought forward by
Mr. Lodge in proof of the weakness of the Union, but Southern orators
and writers delight in referring to that convention in justification of
nullification and secession. We have the journal of the proceedings, of
the motions made and votes passed. Is it not the strongest proof
possible of the universal belief in the nationality of our government
that nobody, in that body of malcontents, suggested that any right
existed to refuse an obedience to the laws and policy of the
administration they deemed so oppressive?
After the purchase of Louisiana came that of Florida, also enlarging the
territory of the Union and curtailing the relative power in it of each
of the old States. The charter of a second United States Bank was
granted by the party that in the first Congress had opposed it and
claimed to be strict constructionists of the Constitution. Madison
justified his assent on the ground of the general approval and the
opinion of the Supreme Court establishing its constitutionality.[90]
Historically there is no attempt to maintain, no assertion of, the
doctrine of the Kentucky resolutions from the time they were passed
until the debate in the Congress of 1830. The only trace of them is in
the resolutions frequently passed by the Legislatures of States, which
are mere opinions beyond their legislative powers, that certain laws of
the government were unconstitutional and therefore null and void. If
unconstitutional, they were and are null and void, but no State ever
treated them as null and void. The United States Government, by its
judiciary, however, took cognizance of all State laws in conflict with
its laws and authority, and maintained uniformly its national supremacy.
[90] Madison’s letter, 4 Elliot’s _Debates_, 615.