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delegated to that Government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and 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 as an integral party, its co-States forming, as to itself, the other party; that the 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 powers

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."

The resolves proceed, at great length, to condemn not only the Alien and Sedition laws, as utterly unconstitutional and void, but even the act, recently passed, to punish frauds committed on the Bank of the United States, as well as other acts and parts of acts; and conclude with a call on the other States to unite with Kentucky in condemning and opposing all such usurpations of power by the Federal Government, and by expressing her undoubting confidence

"That they will concur with this commonwealth in considering the said acts as so palpably against the Constitution as to amount to an undisguised declaration that that compact is not meant to be the measure of the powers of the General Government, but that it will proceed in the exercise, over these States, of all powers whatsoever that they will view this as seizing the rights of the States, and consolidating them in the hands of the General Government, with the power assumed to bind the States (not merely as to the cases made federal (casus fœderis), but) in all cases whatsoever, by laws made, not with their consent, but by others against their consent: that this would be to surrender the form of government we have chosen, and live under one deriving its powers from its own will, and not from our

authority; and that the co-States, returning to their natural right in cases not made federal, will concur in declaring these acts void and of no force, and will each take measures of its own in providing that neither these

'Eighth Kentucky Resolve.

acts, nor any others of the General Government, not plainly and intentionally authorized by the Constitution, shall be exercised within their respective territories.

"9th. Resolved, That the said Committee be authorized to communicate, by writing or personal conferences, at any times or places whatever, with any person or persons who may be appointed by any one or more coStates to correspond or confer with them, and that they lay their proceedings before the next session of Assembly."

The Virginia resolves on the same subject, passed by her Legislature in 1799, were drafted by Mr. Madison— doubtless after consultation with his chief, Mr. Jefferson-and did not differ materially in spirit or expression from those of Kentucky.

Mr. Jefferson became President on the 4th of March, 1801. Up to this hour, he had been an extreme and relentless stickler for the most rigid

and literal construction of the Federal pact, and for denying to the Government all authority for which express warrant could not be found in the provisions of that instrument. Said he: "In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution."

His fidelity to his declared principle was soon subjected to a searching ordeal. Louisiana fell into the hands of Bonaparte, who, it was not improbable, might be induced to sell it. It was for us a desirable acquisition; but where was the authority for buying it? In the Constitution, there clearly was none, unless under that very power to provide for the general welfare, which, as he had expressly declared, was meant by the instrument "to be subsidiary only to the execution of limited powers.' He

8 Seventh Kentucky Resolve.

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STRICT AND LOOSE CONSTRUCTION.

was quite too large and frank a man to pretend that his action in this case was justified by the Constitution, as he understood and had always interpreted it. He said :'

"This treaty must of course be laid before both Houses, because both have important functions to exercise respecting it. They, I presume, will see their duty to their country in ratifying and paying for it, so as to secure a good which would otherwise be probably never again in their power. But I suppose they must then appeal to the nation for an additional article to the Constitution, ap

85

ted States, I cannot help believing the intention was not to permit Congress to admit into the Union new States, which should be formed outside of the territory for which, and under whose authority alone, they were then acting. I do not believe it was meant that they might receive England, Ireland, Holland, etc., into it, which would be the case on your construction." After disposing in like manner of "the opinion of those who consider the grant of the treaty-making power as boundless," and completing his demonstration that there was no

proving and confirming an act which the nation had not previously authorized. The Constitution has made no provision for our holding foreign territory, still less for incorporating foreign nations into our Union. The Executive, in seizing the fugitive occur-power whatever in the Constitution, rence which so much advances the good of their country, have done an act beyond the Constitution. The Legislature, in casting behind them metaphysical subtleties, and risking themselves like faithful servants, must ratify and pay for it, and throw themselves on their country for doing for them unauthorized what we know they would

have done for themselves had they been in a

situation to do it. It is the case of a guardian, investing the money of his ward in purchasing an important adjacent territory; and saying to him, when of age, I did this for your good; I pretend to no right to bind you: you may disavow me, and I must get out of the scrape as I can. I thought it my duty to risk myself for you.' But we shall not be disavowed by the nation, and their act of indemnity will confirm, and not weaken, the Constitution, by more strongly marking out its lines."

In a letter to Wilson C. Nicholas,10 he examines and thoroughly refutes the assumption, suggested by Mr. N., that the power to purchase Louisiana "might possibly be distilled from the authority given to Congress to admit new States into the Union." says: "But when I consider that the limits of the United States are precisely fixed by the treaty of 1783, and that the Constitution expressly declares itself to be made for the Uni

He

Letter to Senator Breckinridge, August 12, 1803. 10 September 7, 1803.

as he construed it, to make this purchase, he, with more good sense than consistency, concludes: "I confess, then, I think it important, in the present case, to set an example against broad construction, by appealing for new power to the people. If, however, our friends shall think differently, certainly I shall acquiesce with satisfaction; confiding, that the good sense of our country will correct the evil of construction when it shall produce ill effects."

When, in 1811, the Territory of Orleans was moulded into the State of Louisiana, Mr. Josiah Quincy, a young and very ardent Federalist who then represented the city of Boston in the House, indulged in what resembled very closely a menace of contingent secession; and similar fulminations were uttered by sundry New England Federalists under the pressure of Mr. Jefferson's Embargo and of the War of 1812. The famous but unsavory Hartford Convention," held near the close of that war, and

11 For proceedings of this Convention, see Niles's Register, January 14, 1815.

by which the ruin of the Federal party was completed, evinced its discontent with matters in general, but especially with Democracy and the War, by a resort to rhetoric which was denounced as tending to disunion, but which does not seem to warrant the imputation. And whenever the right of secession or of nullification has been asserted, whether directly or by clear implication, in any part of the country, or by any party out of power, such assertion has called forth expressions of emphatic rebuke and dissent from other sections" and antagonistic parties. Mr. Webster, in replying to Mr. Hayne of South Carolina on this subject, forcibly said:

13

"I understood the gentleman to maintain, that, without revolution, without civil commotion, without rebellion, a remedy for supposed abuse and transgression of the powers of the General Government lies in a direct appeal to the interference of the State Governments."

Mr. Hayne here rose and said: "He did not contend for the mere right of revolution, but for the right of constitutional resistance. What he maintained was that, in case of a plain, palpable violation of the Constitution by the General Government, a State may interpose; and that this interposition is constitutional."

Mr. Webster resumed:-"So, Sir, I understood the gentleman, and am happy to find that I did not misunderstand him. What he contends for is, that it is constitutional to interrupt the administration of the Constitution itself, in the hands of those who are chosen and sworn to administer it, by the direct interference, in form of law, of the States, in virtue of their sovereign capacity. The inherent right of the people to reform their government, I do not deny; and they have another right, and that is, to resist un

12 The following extract is a fair specimen of the prevailing sentiment, at the time of the assembling of the "" Hartford Convention," of the South-including South Carolina-on the subject of Secession:

"No man, no association of men, no State or set of States, has a right to withdraw itself from this Union, of its own account. The same power that knit us together can unknit. The same

| constitutional laws, without overturning the government. that unconstitutional laws bind the people. The great question is, 'Whose prerogative is it to decide on the constitutionality or unconstitutionality of the laws?' On that, the main debate hinges. The proposition that, in case of a supposed violation of the Constitution by Congress, the States have a constitutional right to interfere and annul the law of Congress, is the proposition of the gentleI do not admit it. If the gentleman had intended no more than to assert the

It is no doctrine of mine

man.

right of revolution for justifiable cause, he would have said only what all agree to. But dle course between submission to the laws, when regularly pronounced constitutional, on the one hand, and open resistance, which is revolution or rebellion, on the other. I say, the right of a State to annul a law of Congress cannot be maintained, but on the ground of the inalienable right of man to resist oppression; that is to say, upon the ground of revolution. I admit that there is an ultimate violent remedy, above the Constitution and in defiance of the Constitution, which may be resorted to when a revolution is to be justified. But I do not admit that, under the Constitution, and in conformity with it, there is any mode in which a State Government, as a member of the Union, can interfere and stop the progress of the general movement, by force of her own laws, under any circumstances what***Sir, the human mind is so constituted that the merits of both sides of a controversy appear very clear, and very palpable, to those who respectively espouse them; and both sides usually grow clearer as the controversy advances. South Carolina sees unconstitutionality in the tariff; she sees oppression there also; and she sees danger. Pennsylvania, with a vision not less sharp, looks at the same tariff, and sees no such thing in it; she sees it all constitutional, all useful, all safe. The faith of South Carolina is strengthened by opposition, and she now not only sees, but resolves, that the tariff is palpably unconstitutional, oppressive, and dangerous; but Pennsylvania, not to be behind her neighbors, and equally willing to strengthen her own faith by a confident asseveration, resolves also, and gives to every

I cannot conceive that there can be a mid

ever.

formality which formed the links of the Union is necessary to dissolve it. The majority of the States which formed the Union must consent to the withdrawal of any branch of it. Until that consent has been obtained, any attempt to dissolve the Union, or distract the efficacy of its laws, is TREASON-treason to all intents and purposes."-Richmond Enquirer, November 1, 1814.

13 Debate on Foot's resolutions, January 26, 1830.

MR. WEBSTER ON NULLIFICATION.

87

warm affirmative of South Carolina a plain, downright, Pennsylvania negative. South Carolina, to show the strength and unity of her opinion, brings her assembly to a unanimity, within seven voices; Pennsylvania, not to be outdone in this respect any more than in others, reduces her dissentient fraction to a single vote. Now, Sir, again I asking under the laws of Congress. This needs the gentleman, What is to be done? Are these States both right? If not, which is in the wrong? or, rather, which has the best right to decide? And if he, and if I, are not to know what the Constitution means, and what it is, till those two State Legislatures, and the twenty-two others, shall agree in its construction, what have we sworn to when we have sworn to maintain it? I was forcibly struck, Sir, with one reflection, as the gentleman went on in his speech. He quoted Mr. Madison's resolutions to prove that a State may interfere, in a case of deliberate, palpable, and dangerous exercise of a power not granted. The honorable member supposes the tariff law to be such an exercise of power; and that, consequently, a case has arisen in which the State may, if it see fit, interfere by its own law. Now it so happens, nevertheless, that Mr. Madison deems this same tariff law quite constitutional! Instead of a clear and palpable violation, it is, in his judgment, no violation at all. So that, while they use his authority for a hypothetical case, they reject it in the very case before them. All this, Sir, shows the inherent futility-I had almost used a stronger word-of conceding this power of interference to the States, and then attempting to secure it from abuse by imposing qualifications of which the States themselves are to judge. One of two things is true: either the laws of the Union are beyond the discretion and beyond the control of the States; or else we have no constitution of General Government, and are thrust back again to the days of the Confederation."

| struction. The Constitution declares that, the laws of Congress passed in pursuance of the Constitution shall be the supreme law of the land. No construction is necessary here. It declares also, with equal plainness and precision, that the judicial power of the United States shall extend to every case aris

In his brief speech, which closed that debate, and finished the doctrine of Nullification, Mr. Webster said:

"Sir, if I were to concede to the gentleman his principal proposition, namely, that the Constitution is a compact between States, the question would still be, What provision is made in this compact to settle points of disputed construction, or contested power, that shall come into controversy? And this question would still be answered, and conclusively answered, by the Constitution itself. While the gentleman is contending against construction, he himself is setting up the most dangerous and loose con

no construction. Here is a law, then, which is declared to be supreme; and here is a power established, which is to interpret that law. Now, Sir, how has the gentleman met this? Suppose the Constitution to be a compact, yet here are its terms; and how does the gentleman get rid of them? He cannot argue the seal off the bond, nor the words out of the instrument. Here they are; what answer does he give to them? None in the world, Sir, except, that the effect of this would be to place the States in a condition of inferiority; and that it results from the very nature of things, there being no superior, that the parties must be their own judges! Thus closely and cogently does the honorable gentleman reason on the words of the Constitution! The gentleman says, if there be such a power of final decision in the General Government, he asks for the grant of that power. Well, Sir, I show him the grant. I turn him to the very words. I show him that the laws of Congress are made supreme; and that the judicial power extends, by express words, to the interpretation of these laws. Instead of answering this, he retreats into the general reflection, that it must result from the nature of things, that the States, being parties, must judge for themselves.

"I have admitted, that, if the Constitution were to be considered as the creature of the State governments, it might be modified, interpreted, or construed according to their pleasure. But, even in that case, it would be necessary that they should agree. One alone could not interpret it conclusively; one alone could not construe it; one alone could not modify it. Yet the gentleman's doctrine is, that Carolina alone may construe and interpret that compact, which equally binds all, and gives equal rights to all.

"So, then, Sir, even supposing the Constitution to be a compact between the States, the gentleman's doctrine, nevertheless, is not maintainable; because first, the General Government is not a party to the compact, but a government established by it, and vested by it with the powers of trying and deciding doubtful questions; and, secondly, because, if the Constitution be regarded as a compact, not one State only, but all the States, are parties to that compact, and one

14 The Virginia Resolves of 1799,

can have no right to fix upon it her own peculiar construction.”

ANDREW JACKSON and JOHN C. CALHOUN-two of the most remarkable men ever produced in this or any other country—were destined to lead the rival forces by which the Nullification issue was finally brought to a practical conclusion. Though they became and died fierce antagonists, and even bitter personal enemies, their respective characters and careers exhibited many points of resemblance. Each was of that "Scotch-Irish" Presbyterian stock with which Cromwell repeopled the north of Ireland from Scotland, after having all but exterminated its original Celtic and Catholic inhabitants, who resisted and defied his authority.

That Scotch-Irish blood to this day evinces something of the Cromwellian energy, courage, and sturdiness. Each was of Revolutionary Whig antecedents Jackson, though but thirteen years of age, having been in arms for the patriotic cause in 1780; his brother Hugh having died in the service the preceding year. Andrew (then but fourteen), with his brother Robert, was taken prisoner by the British in 1781, and wounded in the head and arm while a captive, for refusing to clean his captor's boots. His brother was, for a like offense, knocked down and disabled. John C. Calhoun was only born in the last year of the Revolutionary War; but his father, Patrick Calhoun, was an ardent and active Whig throughout the struggle. Each was early left fatherless-Andrew Jackson's father having died before his illustrious son

15" Fellow-citizens of my native State !"appealing to South Carolinians in his Proclama

was born; while the father of John C. Calhoun died when his son was still in his early teens. Each was by birth a South Carolinian; for, though General Jackson's birth-place is claimed by his biographers for North Carolina, he expressly asserted South Carolina" to be his native State, in the most important and memorable document to which his name is appended, and which flowed not merely from his pen, but from his heart. Each was of the original Anti-Federal, strict-construction school in our politics-Calhoun's father having vehemently opposed the adoption of the Federal Constitution; while Jackson, entering Congress as the sole representative of the newly admitted State of Tennessee (December 5, 1796), voted in a minority of twelve against the address tendering to General Washington, on his retirement from the Presidency, a respectful expression of the profound admiration and gratitude wherewith his whole public career was regarded by Congress and the country. General Jackson was not merely an extreme Republican of the Jeffersonian StateRights School; he was understood to side with Colonel Hayne at the time of his great debate on Nullification with Mr. Webster. Each entered Congress before attaining his thirtieth year, having already taken a conspicuous part in public affairs. Each was first chosen to the House, but served later and longer in the Senate. Each was a slaveholder through most of his career, always found on the side of Slavery in any controversy affecting its claims or interests during his public life; and neither emanci

tion against the Nullifiers, Dec. 11, 1832. can hardly have been mistaken on this head.

He

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