American History Studies
- V, - No. 5. - JANUARY, 1898. º
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INTERPREMION OF THE CONSTITUTION:
NATIONALITY,
SELECTIONS MADE FROM THE SOURCES
BY
H. W. CALDWELL,
UNIVERSITY OF N EBRASKA.
J. H. MILLER, Publisher,
LINCOLN, NEBRASKA.
Yearly Subscription, 40 cents. Single Copy, 5 cents.
PUBLISHED MONTHLY, EXCEPT JULY AND AUGUST.
Entered as second-class matter at the Post Office, Lincoln, Nebraska,
U. S. A.
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AMERICAN HISTORY STUDIES.
INTERPRETATION OF THE CONSTITU-
- TION; NATIONALITY.
YEIE Constitution formed in 1787 has been
in process of growth ever since through in-
terpretation and construction. Of course,
it has also grown by the addition of fifteen
amendments. In time these have been con-
tracted or expanded by the meanings which have
been attached to them by the various depart-
ments of the government. Perhaps the courts,
and especially the Supreme Court of the United
States, have been the most potent factors in this
development, yet it must ever be kept in mind
that the political departments of the govern-
ment, namely, the legislative and the executive,
have also to give final decisions in all political
questions; and the first interpretation of the Con-
stitution, in law making, in all questions which
may become judicial as well.
There is scarcely a clause of the Constitution
which has not been subjected to this process.
It may, perhaps, be stated without exaggeration
that there is not a clause in the Constitution so
clear that varying ideas in regard to its meaning
have not been set forth at some time by someone.
It is also true that the Constitution as a whole
had to have an interpretation placed upon it.
Before a final decision was given, the court of
armies was called in. The most desperate civil
war of all history was needed to decide upon the
location of sovereignty. Had it not been for the
existence of sectional slavery, it is probable that
there would never have arisen the necessity for

EXCHANGE
NORTHWESTERN UNIVERSITY
Ll BRARY §§wth OR NATIONALITY. 101
MAY 1 7 1939 -
making the decision. Yet we must notice that
When an attempt was made in our Constitution
to place some powers in the central government,
and to leave others in the states, the line of divis.
ion drawn was an indefinite one, hence the
chance came for such a struggle. We have
already noticed the many factors which were
tending to localism, and the counter ones which
were developing a feeling of nationality as well
as the fact. In this paper the larger part of the
extracts are to show the varying interpretations
Of the Constitution connected with this idea of
nationality. This discussion played in the main
around the question of implied powers, the loca-
tion of sovereignty, the slavery issue, and the
right of determining the institutions of the terri-
tories. It would be claiming too much to say
that in treating these topics one had exhausted
the subject. In the brief space allotted me I
can do no more than give a fair insight into the
first two, and touch the others.
IMPLIED POWERS.
The doctrine of “implied powers” first arose
in connection with the establishment of the
national bank in 1791. On this subject I have
let Jefferson, Hamilton, and Madison speak.
Mr. Jefferson in his letter to President Washing-
ton uses the following arguments:
It is an established rule of construction when a
phrase will bear either of two meanings to give it
that which will allow some meaning to the other
parts of the instrument, and not that which would
render all the others useless. Certainly nO Such
universal power was meant to be given them. It
was intended to lace them up straightly within the
enumerated powers, and those Without which, as
means, these powers could not be carried into effect.
It is known that the Very power now proposed as a
means, was rejected as an end, by the convention
which formed the Constitution. . . .
102 AMERICAN HISTORY STUDIES.
The second general phrase is, “to make all laws
necessary and proper for carrying into execution the
enumerated powers.” But they can all be carried
into execution without a bank. *
The constitution allows only the means
which are “necessary,” not those which are merely
“convenient” for effecting the enumerated powers.
If such a latitude of Construction be allowed to this
phrase as to give any non-ent:merated power, it will
go to every one, for there is not one which ingenuity
may not torture into a convenience in some instance
or other, . . . It Would SWallow up all the dele-
gated powers, and reduce the Whole to one power as
before observed. Therefore it was that the constitu-
tion restrained them to the necessary means. Can it
be thought that the Constitution intended that for a
shade or two of convenience, more or less, congress
should be authorized to break down the most ancient
and fundamental laws?—Writings of Thomas Jeffer-
son, vol. V (1895 ed.), pp. 286-289. -
Hamilton argues for the constitutionality of
the bank, and in doing this struck a great blow
for nationality. Some of the most telling points
of his argument are these:
Now it appears to the Secretary of the Treasury that
this general principle is inherent in the very definition of
government, and essential to every step of the progress
to be made by that of the United States, namely, that
every power vested in a government is in its nature
Soviſºr EIGN, and includes, by force of the term, a right to
employ all the means requisite, and fairly applicable,
to the attainment of the ends of Such power, and which
are not precluded by restrictions and exceptions Speci-
fied in the constitution; or not immoral; or not con-
trary to the essential ends of political Society.
It is not denied that there are implied as Well as 63-
press powers, and that the former are as effectually
delegated as the latter; and . . . there is another
class of powers, which may be properly denominated
resulting powers. It will not be doubted that if the
United States should make a conquest of any of the ter-
ritories of its neighbors they would possess Sovereign -
jurisdiction over the conquered territory. This would
GROWTH OF NATIONALITY. 103
rather be the result from the whole mass Of the powers
of the government, and from the nature of political
society, than a consequence of either of the powers
Specially enumerated.
Then . . . as a power of erecting a corporation
may as well be implied as any other thing; it may as
well be employed as an instrument or means of carry-
ing into execution any of the specified powers, as any
Other instrument Or means Whatever.
Necessary Often mealas no more than meedful,
requisite, incidental, useful, or conducive to, . . . and
it is the true One in Which it is to be understood
as used in the constitution. The whole turn of the
clause containing it indicates that it was the intent of
the convention, by that clause, to give a liberal latitude
to the exercise of the Specified powers. The expres-
sions have a peculiar comprehensiveness. They are:
“To make all laws necessary and proper for carrying
into execution the foregoing powers, and all other
powers vested by the constitution in the government of
the United States, or in any department or office
thereof.” To understand the word as the Secretary of
State does WOuld be to depart from its obvious and
popular sense and to give it a restrictive operation, an
idea, never before entertained. It would be to give it
the same force as if the Word absolutely or indispensa-
bly had been prefixed to it.
[It is] no valid objection to the doctrine to say that
it is calculated to extend the powers of the government
throughout the entire sphere of state legislation. The
same thing has been said, and may be said with regard
to every exercise of power, by implication or construc-
tion. The moment the literal meaning is departed from
there is a chance of error and abuse; and yet an adher-
ence to the letter of its powers would at Once arrest the
motion of government. It is not only agreed on all
hands that the exercise of constructive powers is indis-
pensable, but every act which has been passed is more
or less an exemplification of it.
That which declares the power of the President to
remove Officers at pleasure acknowledges the same
truth.
It leaves, therefore, a criterion of what is constitu-
104 AMERICAN EIISTORY STUDIES.
s
tional and of what is not so. This criterion is the end
to which the measure relates as a mean. If the end be
clearly comprehended within any of the specified
powers, and if the measure have an obvious relation to
that end and is not forbidden by any particular pro-
vision of the constitution, it may safely be deemed to
come within the compass of the national authority.
There is also this further criterion, which may ma-
terially assist the decision. Does the proposed meas-
ure abridge a pre-existing right of any state or of any
individual? If it does not, there is a strong presump-
tion in favour of its constitutionality; and slighter
relations to any declared Object of the constitution may
be permitted to turn the scale.—Works of Aleaxander
Hamilton, vol. I, pp. 112-123.
Madison was in the House at this time, and
had at first been the spokesman of the adminis-
tration. On this question of the bank he sepa-
rated himself entirely from Hamilton, with
whom he had so long worked, and became the
leader, with Jefferson, of the newly forming
Republican party. In Congress he said:
After some general remarks On the limitations of all
political power, he took notice of the peculiar manner
in which the Federal Government is limited. It is not
a general grant, Out of Which particular powers are
excepted; it is a grant of particular powers only, leav-
ing the general mass in other hands. So it had been
understood by its friends and its foes, and so it was
to be interpreted.
The essential characteristic of the Government, as
composed of limited and enumerated powers, would be
destroyed if, instead of direct and incidental means
any means could be used, which, in the language of
the preamble to the bill, “might be conceived to be con-
ducive to the successful conducting of the finances,
or might be conceived to tend to give facility to the
obtaining of loans. -
The Doctrine of implication is always a tender one.
The danger of it has been felt in other Govern-
UmentS.
The delicacy was felt in the adoption of our own;
GROWTH OF NATIONALITY. 105
the danger may also be felt if we do not keep close to
Our chartered authorities. *
Mark the reasoning on which the validity of the bill
depends! To borrow money is made the end, and the
accumulation of capital implied as the means. The
accumulation of capital is then the end, and a bank
implied as the means. The bank is then the end, and
a charter of incorporation, a monopoly, capital punish-
ments, etc., implied as the means.
If implications thus remote and multiplied can be
linked together, a chain may be formed that Will reach
every object of legislation, every object within the
Whole compass of political economy.
The latitude of interpretation required by the bill is
condemned by the rule furnished by the constitution
itself.
The danger of implied power does not arise from its
assuming a new principle; we have not only practiced
it often, but we can scarcely proceed without it; nor
does the danger proceed so much from the extent Of
power as from its uncertainty,–Bemtom, Debates, vol. I,
pp. 275, 276.
Fisher AmeS.
The doctrine that powers may be implied Which are
not expressly vested in Congress has long been a bug-
bear to a great many Worthy persons. They appre-
hend that Congress, by putting constructions upon the
constitution, will govern by its own arbitrary discre-
tion; and therefore that it Ought to be bound to
exercise the powers expressly given, and those only.
If Congress may not make laws conformably to the
powers plainly implied, though not expressed in the
frame of Government, it is rather late in the day to
adopt it as a principle of conduct. A great part of our
two years’ labor is lost, and Worse than lost to the
public, for we have scarcely made a law in which we
have not exercised our discretion with regard to the
true intent of the constitution.—Ib., p. 279.
The question of the constitutionality of the
bank came before the Supreme Court in 1819,
in McCulloch vs. Maryland. Chief Justice Mar-
shall wrote the opinion in the case, and held to
the doctrine of implied powers. In this case
106 AMERICAN EIISTORY STUDIES.
again the idea of nationality was affirmed. In
part he said: -
From these COnventions the Constitution derives its
whole authority. The government proceeds directly
from the people; is “Ordained and established” in the
name of the people; and is declared to be ordained “in
Order to form a more perfect union, establish justice,
insure domestic tranquility, and Secure the blessings of
liberty to themselves and to their posterity.” The
assent of the States, in their sovereign capacity, is im-
plied in calling a convention, and thus submitting that
instrument to the people. But the people Were at per-
fect liberty to accept or reject it; and their act was
final. It required not the affirmance, and could not be
negatived by the State governments. The Constitu-
tion, when thus adopted, was of complete obligation,
and bound the State SOVereignties.
This government is acknowledged by all to be one of
enumerated powers. The principle, that it can exercise
Only the powers granted to it, WOuld Seem too apparent
to have required to be enforced by all those arguments
which its enlightened friends, while it was depending
before the people, found it necessary to urge. That
principle is now universally admitted. But the question
respecting the extent of the powers actually granted is
perpetually arising, and will probably continue to arise
as long as Our System shall exist.
Among the enumerated powers we do not find that
of establishing a bank Or creating a COrporation. But
there is no phrase in the instrument which, like the
Articles of Confederation, excludes incidental or im-
plied powers; and which requires that everything
granted shall be expressly and minutely described.
Although, among the enumerated powers of govern-
ment, we do not find the Word “bank” or “incorpora-
tion,” We find the great powers to lay and collect
taxes; to borrow money; to regulate commerce; to
declare and conduct a War; and to raise and support
armies and navies.
But it may, with great reason, be contended that a
government intrusted with such ample powers, on the
GROWTH OF NATIONALITY. 107
due execution of which the happiness and prosperity of
the nation so vitally depends, must also be intrusted
with ample means for their execution.
Is that construction of the Constitution to be pre-
ferred which would render these Operations difficult,
hazardous, and expensive? Can we adopt that con-
struction . . . which Would impute to the framers
of that instrument, when granting these powers for the
public good, the intention of impeding their exercise by
withholding a choice of means? If, indeed, such be
the mandate of the Constitution, we have Only to obey;
but that instrument does not profess to enumerate the
means by which the powers it Confers may be exe-
cuted; nor does it prohibit the creation of a corpora-
tion if the existence of such a being be essential to the
beneficial exercise of those powers. It is, then, the
subject of fair inquiry how far such means may be em-
ployed.
But the Constitution. Of the United States has not
left the right of congress to employ the necessary
means for the execution Of the powers COnferred On
the government to general reasoning. To its enumera-
tion of powers is added that of making “all laws which
shall be necessary and proper for carrying into execu-
tion the foregoing powers, and all other powers Vested
by this constitution, in the government of the United
States, or in any department thereof.”
Congress is not empowered by it to make all laws
which may have relation to the powers Conferred on
the government, but such only as may be “necessary
and proper” for carrying them into execution. The
word “necessary” is considered as controlling the
whole sentence, and as limiting the right to pass laws
for the execution of the granted powers to such as are
indispensable, and without which the power would be
Inugatory. . . .
Is it trile that this is the Sense in Which the WOrd
“necessary” is always used ?
To employ the means necessary to an end is gen-
erally understood as employing any means calculated
to produce the end, and not as being confined to those
108 AMERICAN EIISTORY STUDIES.
single means without which the end would be entirely
unattainable. ,
A thing may be necessary, very necessary, absolutely
Or indispensably necessary. ...”
If the word “necessary” means “needful,” “requisite,”
“essential,” “conducive to” in order to let in the power
of punishment for the infraction of law, why is it not
equally comprehensive when required to authorize the
use of means which facilitate the execution of the
powers of government without the infliction of punish-
ment? . . . That any means adapted to the end; any
means which tended directly to the execution of the
Constitutional powers of the government, Were in them-
Selves constitutional.
Let the end be legitimate, let it be within the scope
of the Constitution, and all means which are appro-
priate, which are plainly adapted to that end, which
are not prohibited, but consist With the letter and
Spirit of the constitution, are constitutional.—Thayer,
Cases in ComStitutional Law, vol. I, pp. 274–285.
QUESTIONS.
1. When was the present constitution formed? 2. Is
it expressed in general or specific terms? 3. Who in-
terprets the constitution? 4. Who interprets it finally?
5. What do you understand by “implied powers”? 6.
Could there be any implied powers under the Articles
of Confederation? 7. Over what question did the dis-
cussion of the “implied powers” first arise? 8. Sum-
marize Jefferson’s argument. 9. Can you give any
example to illustrate his first sentence? 10. What did
he believe “necessary” meant? 11. What principle
does Hamilton start Out With ? 12. What three kinds
of powers does he name? 13. What meanings does he
give to “necessary”? 14. What means does he claim
may be used when the right to the end is admitted?
15. Summarize Madison’s arguments. 16. Compare
arguments of the three men. 17. Give Fisher Ames’
argument. 18. Make an outline of the arguments of
John Marshall. 19. Of all their arguments, which do
you consider the greatest? Why? 20. Was it impor-
tant to have the doctrine of implied powers prevail?
Why?
SOVEREIGNTY. IN NATION OR STATE 2
Perhaps the first formal statement of that
GROWTH OF NATIONALITY. 109
interpretation of the Constitution which af.
firmed the right of the state to be the final judge
of its powers was given in the Kentucky Reso-
lutions of 1798. Indirectly out of these resolu-
tions came nullification and secession. Whether
this succession was legitimate or not is an open
question, but the parentage, as far as use is
concerned, is undoubted. The important re-
Solve read as follows: -
1. Resolved, That the several states composing the
United States of America are not united on the princi-
ple of unlimited submission to their general govern-
ment, but th&lt by Compact under the style and title of
a Constitution of the United States, and of amendments
thereto, they constituted a general government for
Special purposes, delegated to that government certain
definite powers, reserving, each state to itself, the re-
Siduary mass of right to their own self-government;
and that WhenSOever the general government assumes
undelegate powers its acts are unauthoritative, void,
and Of no force. .
To this resolution several states answered
that the final judge of the powers of the federal
government rested in the Supreme Court. The
legislature of Kentucky replied in 1799 in these
words, in part: -
Resolved, That this commonwealth consider the Fed-
eral Union, upon the terms and for the purposes speci-
fied in the late compact, as conducive to the liberty and
happiness of the several states; That it does now un-
equivocally declare its attachment to the Union, and
to that compact, agreeably to its obvious and real in-
tention, and will be among the last to seek its dissolu-
tion; That if those who administer the general gov-
ernment be permitted to transgress the limits fixed by
that compact, by a total disregard to the special delega-
tions of power therein contained, an annihilation of
ther state governments and the Creation upon their
ruins of a general consolidated government will be the
inevitahle consequence; That the principle and con-
struction contended for by Sundry of -the state legisla-
tures, that the general government is the exclusive
110 AMERICAN HISTORY STUDIES.
-
judge of the extent of the powers delegated to it, stop
nothing short of despotism, since the discretion of
those who administer the government, and not the
constitution, would be the measure of their powers.
That this commonwealth does, under the most
deliberate reconsideration, declare the said alien and
sedition laws are, in their opinion, palpable Violations
of the said Constitution. . . . That, although this
commonwealth, as a party to the federal Compact, Will
bow to the laws of the Union, yet it does at the same
time declare that it will not now, or ever hereafter,
cease to oppose in a constitutional manner every at-
tempt, at what quarter soever offered, to violate that
compact. . . .—Cited in Cluskey, Political Teat-Book.
James Wilson, in the Pennsylvania ratifying
convention, in 1787, outlined his opinion in re-
gard to the nature of the Constitution in these
words. This description may be contrasted
with the preceding:
The very manner of introducing this Constitution, by
the recognition of the authority of the people, is said
to change the principle of the present Confederation
and to introduce a ComSolidating and absorbing govern-
Iment. º
In this confederated republic, the sovereignty of the
states, it is said, is not preserved. We are told that
there cannot be two sovereign powers, and that a sub-
Ordinate Sovereignty is no sovereignty.
It has not been, nor, I presume, will it be, denied
that somewhere there is, and of necessity must be, a
Supreme, absolute, and uncontrollable authority.
His [Mr. Findley's] position is that the supreme
power resides in the States, as governments; and mine
is that it resides in the people, as the foundation of gov-
ernment; that the people have not—that the people
meant not—and that the people Ought not, to part with
it, to any government whatsoever.—Cited in IFoster on
the Constitution, pp. 10/-106.
I consider the people of the United States as form-
ing One great community; and I consider the people of
the different States as forming communities, again,
GfèOWTH OF NATIONALITY, 111
On a lesser scale. From this great division of the
people into distinct Communities, it will be found neces-
sary that different proportions of legislative power
Should be given to the government, according to the
nature, number; and magnitude of their objects.
Whosoever considers, in a combined and comprehen-
sive view, the general texture of the Constitution, will
be satisfied that the people of the United States in-
tended to form themselves into a nation for mational
- purposes. They instituted for such purposes a national
government, complete in all its parts, with powers
legislative, executive, and judiciary, and in all those
powers extending over the whole nation.—Ib., 107-109.
Rawle, in his introduction to Blackstone, uses
the following phrase. He wrote in 1825:
“The secession of a State from the Union depends on
the will of the people of such a State. The people
alone, as we have already seen, hold the power to alter
their constitution.”—Cited im, FOSler, p. 113.
The Massachusetts legislature (Federal), in
discussing the annexation of Louisiana, 1803,
indicated very clearly its views of the nature of
the Constitution.
That the annexation of Louisiana to the Union
transcends the constitutional power of the govern-
ment of the United States. It forms a new Confeder-
acy, to which the States united by the former Compact
are not bound to adhere.—Ib., p. 116.
A most elaborate discussion of the nature of
the Constitution took place over the admission
of Louisiana. Josiah Quincy, the leader of the
Federalists, discussed the subject fully. Ex-
tensive extracts are given from his speech, as it
sets forth the views of his party at that time
most ably and completely.
But, sir, the principle of this bill materially affects
the liberties and rights of the whole people of the
United States. To me it appears that it would justify
a revolution in this country, and that, in no great
length of time, it may produce it. When I see the
112 AMERICAN EIISTORY STUDIES.
zeal and perseverance with which this bill has been
urged along its parliamentary path, when I know the
local interests and associated projects Which combine
to promote its success, all opposition to it seems mani-
festly unavailing. I am almost tempted to leave, With-
out a struggle, my country to its fate.
If there be a man in this House, or nation, Who
cherishes the Constitution, . . . . I fall not behind
him in such sentiments. I will yield to no man in
attachment to this Constitution, in Veneration for the
Sages Who laid its foundations, in devotion for those
principles which form its cement and constitute its
proportions. What, then, must be my feelings; what
Ought to be the feelings of a man, Cherishing Such sen-
timents, when he sees an act contemplated Which lays
ruin at the foot of all these hopes. &
Mr. Speaker, there is a great rule of human conduct
which he who honestly observes can not err widely
from the path of his sought duty. It is, to be very
scrupulous concerning the principles you select as the
test of your rights and Obligations; to be Very faith-
ful in noticing the result Of their application; and to
be very fearless in tracing and exposing their immedi-
ate effects and distant consequences. Under the sanc-
tion of this rule of conduct, I am compelled to declare
it as my deliberate Opinion that, if this bill passes, the
bomds of this union are, virtually, dissolved; that the
States which compose it are free from their moral obliga-
tions, and that, as it will be the right of all, So it will be
the duty of Some, to prepaire, definitely, for a separation:
amicably, if they can ; violently, if they must.
The bill Which is now proposed to be passed has
this assumed principle for its basis: that the three
branches of this national government, without recur-
rence to conventions of the people in the States, or to
the Legislatures Of the States, are authorized to admit
new partners to a share of the political power, in
countries Out of the Original limits of the United
States. NOW, this assumed principle, I maintain to
be altogether without any sanction in the Constitution.
I declare it to be a manifest and atrocious usurpation
of power; of a nature dissolving, according to undemi-
able principles of moral law, the obligations of our
GROWTH OF NATIONALITY, 113
national compact, and leading to the awful conse-
quences which flow from such a state of things.
Touching the general nature of the instrument called
the Constitution of the United States there is no ob-
scurity; . . . There can be no doubt about its
nature. It is a political compact. . . .
It is, we the people of the United States, for our-
selves and Our posterity; not for the people Of Louis-
iana; nor for the people of New Orleans, Or of Canada.
None of these enter into the scope of the instrument;
it embraces only “the United States of America.”
Sir, what is this power We propose now to usurp?
Nothing less than a power changing all the propor-
tions of the Weight and influence possessed by the
potent sovereignties Composing this Union. A stranger
is to be introduced to an equal share Without their
consent. Upon a principle pretended to be deduced
from the Constitution, this government, after this bill
passes, may and Will multiply foreign partners, in
power at its own mere notion; at its irresponsible
pleasure; in other Words, as local interests, party pas-
sions, or ambitious views may suggest.
“But,” the gentleman adds, “what shall we do if we
do not admit the people of Louisiana, into Our Union ?
Our children are settling that country.” Sir, it is no
concern of mine What he does.
This Constitution never was, and never can be,
strained to lap over all the wilderness of the West
without essentially affecting both the rights and con-
venience of its real proprietors. -
Suppose, then, that it had been distinctly foreseen
that, in addition to the effect of this Weight, the whole
population of a world beyond the Mississippi was to
be brought into this and the other branch of the
Legislature, to form our laws, control our rights, and
decide Our destiny, Sir, can it be pretended that the
patriots of that day would for one moment have
listened to it? They were not madmen. They had not
taken degrees at the hospital of idiocy.
It was not for these men [people Of Louisiana] that
our fathers fought. It was not for them that this
Constitution was adopted. You have no authority to
throw the rights and liberties and properties of this
people into the “hotch-pot” with the Wild men of the
Missouri, nor with the mixed, though more respecta-
114 AMERICAN HISTORY STUDIES.
ble race of Anglo-Hispano-Gallo-Americans who bask
On the Sands in the mouth of the Mississippi. I will
add Only a few words, in relation to the moral and
political Consequences of usurping this power. I have
said that it would be a virtual dissolution of the
Union; and gentlemen express great sensibility at the
eXpression. But the true Source of terror is not the
declaration I have made, but the deed you propose.
New States are intended to be formed beyond the
Mississippi. There is no limit to men's imaginations
On this subject, short of California and the Columbia.
River.
The extension of this principle to the States con-
templated beyond the Mississippi cannot, will not, and
Ought not to be borne.—American Orations, vol. I, pp.
180–202.
The New England states spoke in these words
in the Hartford convention of 1814:
In cases of deliberate, dangerous, and palpable in-
fractions of the Constitution, affecting the sovereignty
of a State and liberties of the people, it is not only the
right, but the duty, of such a State to interpose its
authority for their protection, in the manner best cal-
Culated to Secure that end. When emergencies occur
Which are either beyond the reach of the judicial
tribunals, Or too pressing to admit of the delay inci-
dent to their forms, States which have no common
umpire must be their own judges, and execute their
OWn decisions. It will thus be proper for the several
States to await the ultimate disposal of the obnoxious
measures recommended by the Secretary of War, or
pending before Congress, and so to use their power
according to the character these measures shall finally
assume, as effectually to protect their own SOVereignty
and the rights and liberties of their citizens.—Cited im,
Foster on the Comstitution, vol. I, pp. 117, 118.
As late as 1844 and 1845 we find the legis
lature of Massachusetts using these phrases:
That the project of annexation of Texas, unless ar-
rested on the threshold, may drive these States into a
dissolution of the Union.—Foster, p. 118.
As the powers of legislation granted in the Constitu-
tion of the United States to Congress do not embrace
GROWTH OF NATIONALITY. 115
the 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.—Ib., p. 118.
The legislature of Wisconsin (Republican).
passed the following in 1859:
Whereas, The Supreme Court of the United States has
assumed appellate jurisdiction in the petition of Sher-
man M. Booth for a writ of habeas corpus presented and
prosecuted to a final judgment in the Supreme Court of
this State, and . . . assumed the power to reverse
that judgment in a matter involving the personal liberty
Of the citizen. º
Resolved, That this assumption . . . is an act of
undelegated power, and therefore Without authority,
void, and of no force.
Resolved, That the [national] Government
was not made exclusive or final judge of the extent of
the powers delegated to itself, but that . . . each
[state] has an equal right to judge for itself, as well
of infractions as the mode and measure of redress.
Resolved, That the principle . . . that the gen-
eral Government is the exclusive judge of the extent of
the powers delegated to it, stop nothing short of des-
potism; since the discretion of those who administer
the Government, and not the Constitution, Would be the
measure of their powers; that the Several States which
formed that instrument, being sovereign and independ-
ent, have the unquestionable right to judge of its infrac-
tions; and that a positive defiance Of those SOvereign-
ties of all unauthorized acts done under Color of that
instrument is the rightful remedy.—Cited in Tyler's Life
of Tailey, p. 307. -
But let us listen to Lincoln to hear what he
has to say on this interesting subject. These
extracts are from his inaugural, and from his
first annual message:
I hold that in contemplation of universal law and of
the Constitution the union of these States is perpefual.
Perpetuity is implied, if not expressed, in the funda-
mental law of all national Governments.
Again, if the United States be not a government
proper, but an association of States in the nature of
116 AMERICAN HISTORY STUDIES.
zº
CCUltract merely, can it, as a COntract, be peaceably
unnuade by less than all parties who make it? One
party to a contract may violate it, break it, sº) to
Speak; but does it not require all to lawfully re-
Scind it?
. no State upon its own mere motion can law.
fully get out of the Union; that resolves and ordi-
nances to that effect are legally void; and that acts of
violence within any State or States, against the author-
ity of the United States, are insurrectionary or revolu
tionary, a CCOrding to circumstances.
I therefore consider that in view of the Constitution
and the laws, the Union is unbroken; and to the ex-
tent of my ability I shall take care, as the Constitu-
tion itself expressly enjoins upon me, that the laws of
the Union be faithfully executed in all the States.
And this issue embraces more than the fate of the
United States. It represents to the whole family of man
the question whether a Constitutional republic or democ-
racy—a government of the people by the Same people—
can or cannot maintain its territorial integrity against
its own domestic foes.
“Is there in all republics this inherent and fatal
weakness?” Must a government Of necessity be too
strong for the liberties of its Own people, or too weak
to maintain its Own existence?
It might seem, at first thought, to be of little differ-
ence whether the present movement at the South be
called “secession” or “rebellion.” The movers, how-
ever, well understand the difference. At the beginning
they knew they could never raise their treason to any
respectable magnitude by any name which implies
violation Of law.
They invented an ingenious Sophism which, if con-
ceded, was followed by perfectly logical steps, through
all the incidents, to the COmplete destruction. Of the
Union. The sophism itself is that any State of the
Union may, consistently with the national constitution,
and therefore lawfully and peacefully, withdraw from
the Union without the consent of the Union or of any
other state. The little disguise that the Supposed right
is to be exercised only for just cause, themseives to be
the sole judges of its justice, is too thin to merit any
notice.
Having never been States either in Substance or in
GROWTH OF NATIONALITY. 117
name Outside of the Union. Whence this magical Om-
nipotence of “State Rights,” asserting a claim of power
to lawfully destroy the Union itself? Much is said
about the “sovereignty” of the States; but the Word,
even, is not in the National Constitution, nor, as is
believed, in any of the State constitutions. What is
“sovereignty” in the political sense of the term 2
Would it be far wrong to define it “a political com-
munity without a political superior?” Tested by this,
no One of Our States, except Texas, ever was a “SOV-
ereignty.” -
By conquest Or purchase the Union gave each of
them whatever of independence or liberty it has. The
Union is older than any of the States, and, in fact, it
Created them as States. Originally Some dependent
colonies made the Union, and in turn, the Union threw
off their old independence for them, and made them
States, such as they are.
What is now COmbated is the position that Secession
is consistent with the Constitution,--is lawful and
peaceful. It is not contended that there is any express
law for it; and nothing should ever be implied as law
which leads to unjust Or absurd Consequences.
The seceders insist that Our Constitution admits of
secession.
The principle itself is one of disintegration, and
upon which no government can possibly endure.—
Abraham Lincoln, Works, vol. II, pp. 3-63.
In 1867, Chief Justice Chase, speaking for the
Supreme Court in the case of Texas vs. White,
formulated this famous description of the Con-
Stitution of the United States:
The Constitution, in all its provisions, looks to an
indestructible Union, composed of indestructible States.
QUESTIONS.
1. What two views have been held in regard to the
location of sovereignty 2 2. What do you understand
by sovereignty 2 3. What doctrine set forth in the
Rentucky resolutions? 4. What law did Kentucky
hold unconstitutional 2 5. How did they regard (such
a law 2 6. Find Out who drafted these resolutions.
7. Could the author of the PCentucky resolutions have
cited James Wilson to support his views? 8. HOW
did Mr. Rawle regard the Constitution? 9. Was Mas-
118 AMERICAN HISTORY STUDIES.
sacrl usetts, from 1803 to 1814, national or States
Rights? 10. Find Out the reason for its position. 11.
Make an analysis of the arguments Of Mr. Quincy.
12. Find out why he was so opposed "to the West. 13.
HOW would his views and those Of Jefferson DaViS in
1861 agree? 14. What did he mean by a “political com-
pact” 2 15. Was he narrow or broad minded ? 16.
Was he a good Speaker? 17. Point Out Strong pas-
sages. 18. What view did the Hartford convention
take? 19. Learn all you can Of this convention. 20.
Point Out all the passages you can find that show a
states right doctrine. 21. Gather all the passages
which prove the national idea. 22. HOW do you ex-
plain the fact that men could differ so greatly 2 23.
Could both have been honest in their beliefs? 24. The
position of what party surprises you most? 25. Out-
line Lincoln's arguments. 26. Does he agree With the
Wisconsin republicans of 1859? 27. Can you find out
the reason for the change? 28. Commit to memory
Chase's definition of the Union. 29. Has this study
made you any more tolerant than you were before?
30. Write an essay on the doctrine of “implied powers.”
31. Write one on the contest between “states rights”
and “nationality.”
ACQUISITION OF TERRITORY.
Some additional light is thrown on the nature
of the Constitution by adding the opinions of a
few other men in regard to the right to acquire
territory. Jefferson, in 1803, said, in speaking
of the Louisiana purchase:
This treaty must, of course, be laid before both
Houses, because both have important functions to ex-
ercise 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 probably
be never again in their power. But I suppose they
must then appeal to the nation for an additional arti-
cle to the Constitution, approving and confirming an
act which the nation had not previously authorized.
The Constitution has made no provision for Our hold-
ing foreign territory, still less for incorporating foreign
nations into our Union. The executive, in seizing the
fugitive occurrence, which so much advances the good
Of Our country, has done an act beyond the Constitu-
tion. The legislature, in casting behind them meta-
physical Subtleties and risking themselves like faith-
ful servants, must ratify and pay for it, and throw
GIROWTH OF NATIONALITY. 119
themselves On their COuntry for doing for them unau-
thorized what we know they would have done for them-
Selves 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 if 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 Constitu-
tion, by more strongly marked lines.
Our confederation is certainly confined to the limits
established by the revolution. The general govern-
ment has no powers but Such as the Constitution has
given it; and it has not given it a power of holding
foreign territory, and still less of incorporating it into
the Union. An amendment of the Constitution Seems
necessary for this. In the meantime we must ratify
and pay our money, as we have treated, for a thing
beyond the Constitution, and rely On the nation to
Sanction an act done for its great good, without its
previous authority.—Thomas Jefferson, Writings (ed.
1895), vol. VIII, pp. 262, 512.
Webster, about 1830, speaks in these words:
It was consistent with the Constitution of the United
States, or thought to be so in Mr. Jefferson’s time, to
attach Louisiana to the United States. A treaty with
France was made for that purpose. Mr. Jefferson’s
Opinion at that moment was, that an alteration of the
Constitution was necessary to enable it to be done. In
Consequence of considerations to which I need not now
refer, that opinion was abandoned, and Louisiana was
admitted by law, without any provision in, or altera-
tion of, the Constitution. My opinion remains un-
changed, that it was not within the original scope or
design of the Constitution to admit new States out of
foreign country.—Webster, Works, vol. II, p. 551.
QUESTIONS.
1. How did Jefferson feel in regard to right to buy
Louisiana. ? 2. Why, then, did he make the purchase?
3. Would you expect Webster to take the same view 2
4. How do we regard the right now 2 5. How explain
the change?
120 AMERICAN HISTORY STUDIES.
ARISTOCRACY vs. DEMOCRACY.
The aristocratic tendencies of a part of the
American people at the close of the last century
is well illustrated by the following extracts from
Fisher Ames, the most eloquent of the Federal-
ists. A few quotations from Jefferson to show
the opposite belief must close this paper.
All such men are, or Ought to be, agreed, that simple
governments are despotisms, and of all despotisms a
democracy, though the least durable, is the most ViO-
lent.
The known propensity of a democracy is to licen-
tiousness, which the ambitious call, and the ignorant
believe, to be liberty.
The great object, then, of political wisdom in fram-
ing Our Constitution was to guard against licentious-
ness, that inbred malady of democracies, that deforms
their infancy with gray hairs and decrepitude.
The Press, however, has left the understanding of
the mass of men just Where it found it; but, by Sup-
plying an endless Stimulus to their imagination and
passions, it has rendered their temper and habits in-
finitely worse, it has inspired ignorance With presump-
tion, so that those who cannot be governed by reason
are no longer awed by authority.
While it has impaired the force that eyery just gov-
ernment can employ in self-defence, it has imparted
to its enemies the result of that Wildfire, that blazes
with the most consuming fierceness on attempting to
quench it. -
It is undoubtedly a salutary labour to diffuse among .
the citizens of a free state, as far as the thing is pos-
sible, a just knowledge Of their publick affairs. But
the difficulty of this task is augmented exactly in pro-
portion to the freedom of the state; for the more the
citizens, the bolder and more profligate will be their
demagogues, the more numerous and eccentrick the
popular errours, and the more vehement and pertina-
cious the passions that defend them.
Yet, as if there Were neither Vice nor passion in the
world, one of the loudest of our boasts, one of the dear-
est of all the tenets Of Our Creed is, that we are a sov-
ereign people—Self-govermed,—it Would be nearer the
GROWTH OF NATIONALITY. 121
truth to say, self-conceited. For in what sense is it
true, that any people, however free, are self-governed?
If they have in fact no government, but such as com-
ports with their ever varying and often inordinate de-
sires, then it is anarchy; if it counteracts those desires,
it is compulsory. The individual who is left to act
according to his own humour is not governed at all;
and if any considerable number, and especially any
combination of individuals, find or can place them-
selves in this situation, then the Society is no longer
free. For liberty obviously consists in the salutary
restraint, and not in the uncontrolled indulgence of
such humours.
The republick is a creature of fiction; it is every-
body in fancy, but nobody in heart. Love, to be any-
thing, must be select and exclusive.
A state consisting of a million citizens has a million
sovereigns, each of whom detests all other sovereigns
but his Own. * -
Are not the wandering Tartars or Indian hunters at
least as Susceptible Of patriotism as these stragglers
in our Western forests, and infinitely fonder of glory?
It is difficult to conceive of a country which, from the
manner Of its settlement Or the manifest tendencies of
its politicks, is more destitute or more incapable of
being inspired with political virtue.
Its nature ordains that its next change shall be into
a military despotism, of all known governments, per-
haps, the most prone to shift its head, and the slowest
to mend its vices. The reason is that the tyranny of
what is called the people, and that by the sword, both
Operate alike to debase and corrupt, till there are
neither men left with, the spirit to desire liberty, nor
morals with the power to Sustain justice. Like the
burning pestilence that destroys the human body,
nothing can Subsist by its dissolution but vermine.—
Fisher Ames, Works, pp. 382–419.
Jefferson speaks as follows:
“The basis of our governments being the opinion of
the people, the very first object should be to keep that
right; and were it left to me to decide whether we
Should have a government without newspapers, or
newspapers without a government, I should not hesi-
tate a moment to prefer the latter. But I should mean
122 AMERICAN HISTORY STUDIES.
that every man Should receive those papers and be
capable of reading them. . . . Among [such socie-
ties] public opinion is in the place of law, and restrains
morals as powerfully as law ever did anywhere.
Cherish, therefore, the spirit of our people and keep
alive their attention. Do not be too severe upon their
errors, but restrain them by enlightening them. If
once they become inattentive to the public affairs, you
and I, and CongreSS and ASSemblies, Judges, and Gov-
ernors, shall all become wolves.”—To Edw. Carrington,
Jan. 17, 1787. Works, vol. IV (1853 ed.).
“I hold it that a little rebellion now and then is a
good thing, and as necessary in the political world as
Storms in the physical. Unsuccessful rebellions, in-
deed, generally establish the encroachments on the
rights of the people which have produced them. An
observation of this truth should render honest repub-
lican governors SO mild in their punishment of rebel-
lions as not to discourage them too much. It is a
medicine necessary for the Sound health of govern-
ment.”—To Madison, Jam. 30, 1787. Works, vol. IV (185.3
ed.). -
QUESTIONS.
1. How does Ames regard the people? 2. What does
he expect to become of democracies? 3. How would
you explain his feeling? 4. Compare his ideas with
those of Jefferson. 5. Did Jefferson fear little insur-
rections? 6. Why not? 7. Which expressed the best
doctrines?
AMERICAN HISTORY STUDIES.
Volume II. will include the following numbers:
(1) Gallatin, 2) Adalms, J. Q., (3) Clay, (4) Webster,
(5) Calhoun, (6) Sumner, (7) Douglas, (8, Seward, (9)
Chase, (10) Blaine. . .
Monthly. Price, single copy, 5 cents. Ten or more
copies of one number, 4 cents each, Yearly Subscrip-
tion, 40 cents. Ten or more subscriptions to one ad-
dress, 30 cents each.