Volume I Part 16 (1/2)
Not at all incompatible with these views and purposes was the recognition of the right of the States to rea.s.sume, 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 Const.i.tution 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 circ.u.mstances when they should arise, but the principle itself was a.s.sumed and a.s.serted 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 Const.i.tution to suppose [pg 188] 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 a.s.sumed 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 rea.s.sert 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 a.s.sumes 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 Const.i.tution, 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 a.s.sembly 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 const.i.tuting 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 [pg 189] 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 a.s.serted 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 Const.i.tution, 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 s.h.i.+eld 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 unconst.i.tutional, 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 Const.i.tution-to prevent a conflict of arms. The compromise of 1833 was adopted, which South Carolina agreed to accept, [pg 190] the principle for which she contended being virtually conceded.
Meantime there had been no lack, as we have already seen, of a.s.sertions 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 Ma.s.sachusetts Legislature, in relation to the proposed annexation of Texas, adopted in February, 1845, were the following:
”2. Resolved, That there has. .h.i.therto 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 Const.i.tution 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 Ma.s.sachusetts.
”3. Resolved, That the power, never having been granted by the people of Ma.s.sachusetts, to admit into the Union States and Territories not within the same when the Const.i.tution 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 Ma.s.sachusetts, 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 [pg 191] 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 const.i.tuent 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 a.s.sociation 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 friends.h.i.+p 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 Const.i.tution, 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 a.s.sembled 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 ma.s.s 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 [pg 192] then partic.i.p.ating 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 Const.i.tution; 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 a.s.sert the sovereign right to rea.s.sume 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 a.s.sociates, and to make such fair settlement of common interests as the equity of the case may require.
Footnote 105: (return) ”Madison Papers,” p. 1006.
Footnote 106: (return) Ibid., pp. 1057, 1058.
Footnote 107: (return) ”Congressional Globe,” vol. xiv, p. 299.
[pg 193]
CHAPTER XV.
A Bond of Union necessary after the Declaration of Independence.-Articles of Confederation.-The Const.i.tution of the United States.-The Same Principle for obtaining Grants of Power in both.-The Const.i.tution an Instrument enumerating the Powers delegated.-The Power of Amendment merely a Power to amend the Delegated Grants.-A Smaller Power was required for Amendment than for a Grant.-The Power of Amendment is confined to Grants of the Const.i.tution.-Limitations on the Power of Amendment.
In July, 1776, the Congress of the thirteen united colonies declared that ”these united colonies are, and of right ought to be, free and independent States.” The denial of this a.s.serted right and the attempted coercion made it manifest that a bond of union was necessary, for the common defense.
In November of the next year, viz., 1777, articles of confederation and perpetual union were entered into by the thirteen States under the style of ”The United States of America.” The government inst.i.tuted was to be administered by a congress of delegates from the several States, and each State to have an equal voice in legislation. The Government so formed was to act through and by the States, and, having no power to enforce its requisitions upon the States, embarra.s.sment was early realized in its efforts to provide for the exigencies of war. After the treaty of peace and recognition of the independence of the States, the difficulty of raising revenue and regulating commerce was so great as to lead to repeated efforts to obtain from the States additional grants of power. Under the Articles of Confederation no amendment of them could be made except by the unanimous consent of the States, and this it had not been found possible to obtain for the powers requisite to the efficient discharge of the functions intrusted to the Congress. Hence arose the proceedings for a convention to amend the articles of confederation. The result was the formation of a new plan of government, ent.i.tled ”The Const.i.tution of the United States of America.”
This was submitted to the Congress, in order that, if approved by them, it might be referred to the States for adoption [pg 194] or rejection by the several conventions thereof, and, if adopted by nine of the States, it was to be the compact of union between the States so ratifying the same.
The new form of government differed in many essential particulars from the old one. The delegates, intent on the purpose to give greater efficiency to the government of the Union, proposed greatly to enlarge its powers, so much so that it was not deemed safe to confide them to a single body, and they were consequently distributed between three independent departments of government, which might be a check upon one another. The Const.i.tution did not, like the Articles of Confederation, declare that the States had agreed to a perpetual union, but distinctly indicated the hope of its perpetuity by the expression in the preamble of the purpose to ”secure the blessings of liberty to ourselves and our posterity.” The circ.u.mstances under which the Union of the Const.i.tution was formed justified the hope of its perpetuity, but the brief existence of the Confederation may have been a warning against the renewal of the a.s.sertion that the compact should be perpetual.
A remedy for the embarra.s.sment which had been realized, under the Articles of Confederation, in obtaining amendments to correct any defects in grants of power, so as to render them effective for the purpose for which they were given, was provided by its fifth article. It is here to be specially noted that new grants of power, as asked for by the Convention, were under the Articles of Confederation only to be obtained from the unanimous a.s.sent of the States. Therefore it followed that two of the States which did not ratify the Const.i.tution were, so long as they retained that att.i.tude, free from its obligations. Thus it is seen that the same principle in regard to obtaining grants of additional power for the Federal Government formed the rule for the Union as it had done for the Confederation; that is, that the consent of each and every State was a prerequisite. The apprehension which justly existed that several of the States might reject the Const.i.tution, and under the rule of unanimity defeat it, led to the seventh article of the Const.i.tution, which, provided that the ratification by the conventions of nine States should be sufficient for the establishment of the Const.i.tution [pg 195] between the States ratifying it, which of course contemplated leaving the others, more or less in number, separate and distinct from the nine States forming a new government. Thus was the Union to be a voluntary compact, and all the powers of its government to be derived from the a.s.sent of each of its members.