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?

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]

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.

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.

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.

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]

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.

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.