njONTSov^^ "^aaAiNii-aiv^ Ay^E-UNIVERJ/Zi ^10S-ANCEI% O fOJllVJJO^ ^(tfOJIlVJ-jO"^ ^'ilJDNVSOl^ "^/^a3AINn]WV' FCAIIFO/?,)^ ^OFCAIIFO;?^ Aavaan-^^ "^^Auvaaiii^^ ,^WEUNIVER% ^vlOSANCElf/^ o 13DNV-S01 •SOl^"^ %a3AINn-3UV^ ^OFCAl|F0% ae. _ _ ,^OFCAIIFO% $* ^ — V ^ '^om'm^ ■lIBRARYOc. ^^^IIIBRARYQ^ AWEI)NIVER% v^lOSANCElfj}> (OJiTvojo'^ ^ O "^/^aMiNH 3WV ^(?AiivJianiv> >&Aav{ianiv> \oi\m-^^'^ i^m\ms/A ^ ^^AavaaiHS^ ^WE■DNIVERS/A o %]3DNVS01^ Al^lOSANCElfx^ "^/^aaAiNfl^v vt> ^VlOSANCElfj}^ %a]AINfl-3WV ^lOSANCElfjy. ^>^lUBRARYac. ^lUBRARYQr ^OFCAIIFO/?^ %a3AlNa-3WV ^OAUVJiaiH^ ^cwaaiH^^ ^ <^>NUIBRARYQ/r aWEUNIVERJ'/a ^jnVD-JO't^ ^TiiJONVSOV^ ^lOSANCElfj> >• %li3AINn-3WV** ^OFCAIIFO% .^WE■UNIVER5■//) ^10SANCEI% o ^ L STUDY IN STATE RIGHTS o TO THE MEMORY OF HON. JOHN W. DANIEL "WHOSE SPLENDID SERVICES FOR CONSTITUTIONAL LIBERTY ON THE BATTLEFIELD AND IN THE HALLS OF CONGRESS MAKE HIM EMINENT AMONG VIRGINIANS PATRIOTIC SONS. 428030 CONTENTS CHAPTER PAGE I. The Rights of the States Undeb the Constitu- tion 11 II. The Convention of 1787 20 III. The Purpose of the Convention of 1787 ... 41 IV. Distortions of the History of the Acts of the Convention 135 V. Fede:rals vs. Republicans 158 VI. The Hartford Convention 170 VII. Conclusion 214 PREFACE I was not a soldier in the war between the States, nor have I any desire to keep alive any spirit of ani- mosity between the northern and southern sections of the United States. I have so constantly heard my peo- y)le denonnced as "rebels" and "traitors" — as "those who conspired to break up the Union," that I gave my- self to an earnest stndy of the question : Is this charge true — were our fathers and brothers and kinsmen snch as lias been written in the so-called histories of the day ? As a result of that study, my conviction is clonr and strong that the accusation of treason is vol tr\ie: on the contrary, the men who fought under the banner and leadership of Mr. Jefferson Davis were the men who fonirht for the constitutional prin- ciples given us by the founders of the federal govem- me^^\. of the United States. I have "written what T linve with the earnest hope that our young men of Yivfriiiin and of the South, aye, that all the young men throuirhout all the States, will study the ques- tion with more carefulness, and more thoroughly than present knowledge of the facts seems to indi- cate they have done, and come to know the reasons why our fathers fousrht so obstinately and suffered the loss of all but honor. T have written 10 PREFACE to help our young men to know the truth. If what I have written is not true, do not accept it. If it is true, you can only honor the memory of your fathers by yourselves standing for the truth in the same spirit in which they stood. If by this effort I can help in the least to make plain to the men of this generation the truth about the causes of that awful conflict of the sixties, I shall be satisfied. J. H. M. Brookneal, Va., October 11, 1911. A Study in State Rights CHAPTEK I THE EIGHTS OF THE STATES UNDER THE CONSTITUTION In the early part of the summer of 1904 I at- tended the Memorial Day exercises at WinchesSter, Virginia, where was present a large gathering of '•'the old soldiers" who had fought under the banner of "the Southern Confederacy." After the strewing of the flowers and the delivering of the oration, by invitation I went to dine with a company of gentle- men who had served through the whole war in the Army of Northern Virginia. Their conversation was given up almost entirely to incidents and experi- ences of their campaigns. After indulging for a long time in talk reminiscent, they drifted into an argumentative strain to show that the South was right in the stand she had taken in the war of the States. I was greatly surprised to find that so many of them had studied the subject with the great care- fulness their conversation disclosed, and was more surprised to discover that any who had worn the gray never doubted the righteousness of his cause. Their feelings w^ere in strong contrast to that type of man who all his life lives under the delusive idea that "nothing succeeda like success," and 11 12 A.STIIDT l^ believes that . that, . .w-hich . does , not succeed can- not be rigii't, becalisie men"' -fail- • somehow, for some reason he tacitly accepts the conclusion that these men are wrong. A great many years ago, perhaps as many as forty, an eminent scholar said that when the question of the issues that divided the States is considered and studied as it should be, in the light of the facts of history, the righteousness of the Southern cause will be accepted. The facts of history must be brought out. Did the States have any rights ? Did they merge them- selves into national government and relinquish all rights ? Did they retain any rights under the gov- ernment organized ? Did they organize a gov^ ern- ment over the States or between the States ? The The answer to these questions is found in the facts of the history of the beginning of our government, and nowhere else. If the government was over the States the facts in the history of the making of the Government ought to show it. If it was a govern- ment between the States, the facts of the history of the beginning of the Government ought to be plain and conclusive. It is to study such questions as these that we invite all fair-minded men to consider what we put in this treatise, viz., the facts of the history of the beginning of this government, and then decide who was right — the men who contended for the rights of the States, or the men who contended that the States had no such rights, and that all the rights were merged into what is to-day called the STATE RIGHTS 13 N'ational Government, but was historically called the Federal Government. "We cannot agree with the eminent gentleman from. Massachusetts (Mr. Charles Francis Adams) "that both parties were right in this controversy." If the gentleman means both parties thought they were right, we can appreciate his declaration ; bnt to say both parties in a contest which involved snch con- tradictions as did "the late unpleasantness," result- ing in a war between the States, were right, involves too much confusion in morals. We can understand how men honest in their convictions can differ: but that difference shows one must be wrong, or both may be wrong, when they do not agree with that which they consider to be the standard of right. What is the meaning of men claiming to be honest when they do things on convictions, as they say, when such acts are contrary to the standard of right they acknowledge? For instance, two men accept the golden rule as the standard of their conduct: "Do unto others as you would have others do to you." One man in all his conduct and through all his relations of life lives as directed by the lit- eral and simple statement of the rule. The other one lives and acts just the opposite to the literal and simple statement of the rule, and says that his understanding of the rule that he must do every- body for his own upbuilding, and contends for this interpretation of the rule because A and B, who make the same profession, act this way. 14 A STUDY IN" Shall we say both of these men are right? It is not answering the question to say that they both act on their own convictions of what the rule means ; but are they both acting on the simple statement of the rule? The rule is the standard, not what they think the rule means. Wrong is the opposite of right. And the dictum, the saying, of no man can ever make that which is wrong to be right. This government has a standard called a Constitution. What do you mean by that? Why, that there is a written document prepared by a convention of men chosen for the purpose, and that this document is the standard, the rule, the fundamental law of gov- ernment. An account of how these"~men became members of this convention; upon whose authority they acted, and how what they did, as they sat in the convention, became the supreme law for the States, are questions which must be answered from the facts of the origin of that convention, of the working of that convention, and how the results of the doing of that convention became law. It is a fact known from the history of each State that the men who composed the convention which met in Philadelphia in May, 1Y87, and adjourned in September of the same year, were sent to Philadel- phia by the action and authority of each of the States sending them. They were enrolled as members from their respective States, and as members of their States proposed, discussed, and adopted what are known as seven articles of the Constitution. Through STATE RIGHTS 15 the Congress of the United States sitting and act- ing under "the Articles of Confederation" they sent the Constitution to the legislatures of the thirteen States, by them (i. e., the legislatures of the States) to be submitted to a convention of oommissioners elected by the people in each State, for approval or rejection. The language in which these men record the conclusion of their, vs^ork shows us on whose authority they acted and for whose benefit what they did was done: "Done in convention by the unani- mous consent of the States present" (not done by the people, nor for the people, but by the unanimous consent of the States present), "the seventeenth day of September, in the year of our Lord one thousand, seventeen hundred and eighty-seven." Article VII of the Constitution settles beyond all question the kind of government proposed by this instrument when it says: "The ratification of the conventions of nine States shall be sufficient for the establishment of this Constitution between the States so ratifying the same." (See Constitution, Art. VII.) It does not say over the States, it does not say in place of the States, but between the States. Article X, which was one of the amendments adopted according to the provisions made for amending the Constitution, plainly recognizes the existence of the States and recognizes all their original rights. It reads: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, 16 A STUDY IN or to the people." If the States were merged into a national government, why reserve any rights to that which no longer exists ? If they, the States, no longer have any separate existence, why reserved for them any such rights as prescribed in this article ? If the States are merged into that which is to be known as the ^National Government, which super- sedes the States in all things, and is over all things concerning the States, so that the only rights left to the States is unquestioned obedience to the National Government, why should the government be designated as that between States, when States, as individual commonwealths, no longer exist? It is to any candid and earnest student the marvel of his- tory that any man who is in the least familiar with the facts of the calling of the convention of 1787, who had ever read the record of the results of the action of that convention, should ever question the fact of the rights of the States in the government of the United States. Yet the student will find, written as history, such statements as this: "It has some- times been said that the Union was in its origin a league of sovereign States, each of which surrendered a specific portion of its sovereignty to the Federal Government for the sake of the common welfare. Grave political arguments have been based upon this alleged fact; but such account of the matter is not historically true. There never was a time when Massachussetts or Virginia was an absolutely sovereign State like Holland or France." (Critical STATE RIGHTS 17 Period of American History, John Fiske, p. 90.) The same author in the same treatise says (p. 344) : "Could a State once adopt the Constitution and then withdraw from the Union if not satisfied? Madison's reply was prompt and decisive. No such a thing could ever be done. A State which had once ratified was in the Federal bond forever. The Con- stitution could not provide for nor contemplate its owTi overthrow. There could be no such thing as a constitutional right of secession." Mr. John Fiske is regarded as authority on mat- ters of history. We will have to examine this in the light of the record given us by those who tell us of the beginning of the Government and see how far this declaration conforms to the facts of true history. Just here we want to call your attention to some other things written as history, or as ex- plaining history. Mr. Motley, a man distinguished among his countrymen for learning, has written in Rebellion Record, vol. i, p. 211: "It [the Con- stitution] was not a compact. Whoever heard of a compact to which there are no parties? The Con- stitution was not drawn up by the States; it was not promulgated in the name of the States ; it was not ratified by the States. The States never acceded to it and possess no power to secede from it. It was ordained and established over the States by a power superior to the States, — ^by the people of the whole land in their aggregate capacity acting through conventions of delegates, expressly chosen for the 18 A STUDY IN purpose witHin each State, independently of the State government after the project had been framed." If this is a statement of a fact of history, then there exists no such thing as States having any rights. But we shall test this contention by the facts of the history of the convention which gave us the Constitu- tion and by the statements of prominent individual members of that body known as the convention of 1787. The greatest marvel of all things written as the historical facts about the Constitution of the United States is that written by Mr. Justice Story. Mr. Story was a lawyer, a judge. We have therefore nothing to expect from him but that which is abso- lute truth. Why he should write as history that which he must have known was not history we are not called upon to explain. But that he did write as history that which the record in the case shows is not history we must and will show. Mr, Webster studied with great zeal and diligence Mr. Story's theory of the Constitution, and so enlarged upon it with that splendid eloquence for which he was justly famed, that people all over this country, if not in other countries, accepted Webster's interpreta- tion as the true meaning of the form of government inaugurated by the convention of 1787. We do not feel called upon here to explain why Mr. Webster acted and spoke as he did in this matter. This much we can say, if he did not know what he said could not be reconciled with the record in the case, he sinned in what he said. If he did know that what STATE EIGHTS 19 he declared to be the meaning of the Constitution could not be verified by the facts of the history of the making of the Constitution, it is putting it mildly to say he the more cgregiously sinned ; that it was unworthy of one who enjoyed the reputation for statesmanship that the distinguished Senator from Massachiisetts did, to ignore the facts in the case and resort to the chicanery of the politician to gain his end. We shall show from the facts of bis life that "Webster renounced the position he assumed in this matter, and left his testimony, at the cost of his popularity and his position, to the true nature of the government of the United States. It was said by an English critic that "Milton is more praised than read." We submit the same criti- cism applies to the Constitution of the United States when men like Fiske, Motley, Story, and Webster wrote and spoke of the meaning of the Constitution of this government as they did. Too many have adopted the habit of praising; too few have gone to the thing itself. The only way to show the errors in a case is to produce the records of the facts in the case. The first record in the case in hand is the history of the assembly knoAvn as the convention of 1787. Who constituted this convention ? What constituted mem- bership in this body ? How did the results of the work of the convention become law? In the next chapter we purpose to set forth the record of this historical meeting, and its record. A STUDY IN CHAPTEE II THE CONVENTION OF 1787 How was the convention of 1787 originated? Upon whose authority did it meet, and by whose authority did the plan of government proj^osed by it become operative? Did the simple setting fort£ of a form of government by that convention make that form of government the law of the land, irre- spective of any action on the part of the States? On the fifteenth day of November, 1777, "Arti- cles of Confederation and Perpetual Union" were adopted by the delegates, in congress aissembled, of New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia. Under the plan of government therein provided for, known as the Government of "The United States," the War of the Eevolution was con- ducted, and finished, when five commissioners from the British Government and five from the Govern- ment of the United States met at Paris, November 30, 1782, and signed a provisional treaty of peace. A final treaty was sisrned at the same place Septem- Her 3, 1783. This treaty begins with these worfls: 20 STATE RIGHTS 21 "His Britannic Majesty acknowledges the said United States [naming each StateJ, viz., New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia, to be free, sovereign, and independent States ; that he treats them as such, and for himself, his heirs, and successors, relinquishes all claim to the government, proprietary and territorial rights of the same, and every part thereof." In this his Britannic Majesty means to say that he grants to the States herein mentioned that for which they were con- federated to accomplish — ^their separate and distinct independence. If this was not the case, why were the States mentioned by name, and why was it stipu- lated in the terms of the treaty that each one by name should be considered free, sovereign, and inde- pendent States ? Several years after peace was estab- lished it was discovered that the United States Gov- ernment did not have the authority to raise revenue and meet all the exigencies of the cases that came up for the consideration of CongTess. Repeated efforts were put forth to get the States in their sovereign capacity act upon these considerations. They all failed. The Virginia legislature, January 21, 1786, resolved "that Edmund Randolph, James Madison, Jun., Walter Jones, St. George Tucker, Meriwether Smith, David Ross, William Ronald and George !^Iason, Esquires, be appointed commissioners, who, 22 A STUDY IN or any five of whom, shall meet such commissioners as may be appointed by other States in the Union, at a time and place to be agreed on, to take into con- sideration the trade of the United States ; to examine the relative situation and trade of the said States; to consider how far a uniform system in their com- mercial regulations may be necessary to their com- mon interest and their permanent harmony ; and to report to the several States such an act relative to this great object, as, when unanimously ratified by them, will enable the United States in Congress as- sembled, to provide for the same; that the said com- missioners shall immediately transmit to the several States copies of the preceding resolution with a circu- lar letter requesting their concurrence therein, and proposing a time and place for the meeting afore- said." (Elliott's Debates, vol. i, p. 115.) Four States responded to this invitation of Vir- ginia, namely, ISTew York, J^ew Jersey, Pennsyl- vania, and Delaware. The commissioners of these States met at Annapolis, Md., September 11, 1786. They did nothing but make a report to the legisla- tures appointing them, and recommend the calling of a general convention of the States tO' meet at Philadelphia on the second Monday in May, 1787, "to take into consideration the situation of the United States ; to devise such further provisions as shall ap- pear to them necessary to render the constitution of the federal government adequate to the exigencies of the Union; and to report such an act for that pur- STATE RIGHTS 23 pose to the United States, in Congress assembled, as, when agreed to by them, and afterwards confirmed by the legislatures of every State, will effectually pro- vide for the same." (Elliott's Debates, vol. i, p. 118.) This was sent to the States which had appointed the commissioners to Congress, and the executives of all the States. On Febniary 21, 1787, Congress took the matter into consideration and passed this resolu- tion: "Resolved, that in the opinion of Congress it is expedient that, on the second Monday in May next, a convention of delegates, who shall have been ap- pointed by the several States, be held at Philadel- phia for the sole and express purpose of revising the Articles of Confederation and reporting to Congress and the several legislatures such alterations and pro- visions therein as shall, when agreed to in Congress, and confirmed by the States, render the federal Con- stitution adequate to the exigencies of government and the preservation of the Union." On this action of Congress the convention met at Philadelphia, May 14, 1787. But how did it convene? Where did those who were members of this assembly (this convention) get their authority? The records show (Elliott's Debates, vol. i, p. 126) that twelve of the thirteen States, i. e., all except Rhode Island, sent men commissioned by the State authorities to act for the States, as their deputies, in the business for which they were called to meet, viz., "to revise the federal Constitution and adapt it to the exigen- cies of government, and to preserve the Union," "one 24 A STUDY IN State at least asserting her sovereign act in so doing (Georgia) — "the State of Georgia bj the grace of God free, sovereign, and independent." (See Ordi- nance in office of Secretary of State, Augusta, Ga., April 24, 178 Y.) When the convention met George Washington, one of the commissioners from. Virginia, was unani- mously chosen president of the body, and William Jackson, secretary. All the meetings were held be- hind closed doors, and the sharp contentions of their debates were only known to the public after the pub- lication, in 1842, of what are known as the Madison Papers. One of the rules adopted to control the con- duct of the conventions was "that no copy be taken of any entry upon the journal during the sitting of the house without leave of the house; that members only be permitted to inspect the journal; that noth- ing spoken in the house be printed or otherwise pub- lished, or communicated, without leave." It was very soon discovered that those who had come as the commissioners of the States could not do anythine; with the Articles of Confederation by way of revi- sion, so they resolved upon working out a new plan of Government. Then came the question, what plan ? Four general propositions were submitted, two on the basis of a national government; two on that of a federal government. It will thus be seen there were in the convention two parties which may be designated as the Ifationals and Federals. Those of the iPTational party contending for doing away STATE RIGHTS 25 with every feature of federalism and providing "for the establishment of a single representative republic, with the division of the powers of Government into three departments." This was known as the Vir- ginia plan, and advocated by Mr. Randolph. The other plan, of a national form of government, was submitted by Colonel Hamilton, of i^ew York. It differed from the Virginia plan only in some de- tails. On the part of those who contended for a federal system two propositions w'ere submitted — one by Mr. Patterson, of !New Jersey, "which proposed to dele- gate only a few additional powers to Congress with- out any other change ; the other was proposed by Mr. Charles Pinckney, of South Carolina. The plan of the latter provided not only for the delegation of additional powers, such as to levy duties on foreign imports, to regiilate commerce with foreign nations, and for a division of the powers delegated into three departments named, but it also provided a complete machinery for the execution of all the federal powers conferred by a federal organization, similar to that of the States, and by which the fede7-al character of government would be retained." This idea or plan was suggested by Mr. Jefferson in a letter written to Mr. Madison from Paris, December 16, 1786. In this letter (See Jefferson's Complete WorJcs, vol. xl, p. 66) Jefferson's plan is set forth in these words, viz., "To make us one nation as to foreign concerns and keep us distinct in domestic ones gives the outline 26 A STUDY IIT of the proper division of powers between tlie general and particular governments." The convention first took up and discussed the plan introduced by Mr. Randolph, of Virginia. They considered it in "committee of the whole." On May 30 in committee of the whole they adopted this reso- lution : "Resolved, that it is the opinion of this com- mittee that a national government ought to be estab- lished, consisting of a supreme legislative, judiciary, and executive." The votes were taken by States. There were eight States out of the twelve present. Six voted in the affirmative, one (Connecticut) in the negative, one divided (l^ew York). After per- fecting this plan, i. e., the plan for a national govern- ment, on June 20, when the report of the committee was considered by the house, eleven States being present by their commissioners, this resolution was not agreed to. On motion of Mr. Ellsworth the word "national" was stricken out and "The Government of the United States" was substituted for it. (See journal, Elliott's Debates, vol. i, p. 151.) There was evidently a majority in the body op- posed to setting aside the federal system. Mr. Ran- dolph's plan was gone over very carefully then, and where "national" was written, the words "The Government of the United States" was written in- stead. It was after further discussion discovered that Mr. Pinckney's plan was the only one that could be adopted. I quote now from A. H. Stevens' Pictorial History of the United States, p. 295: "By STATE RIGHTS 27 his [Pinckney's] plan all federal legislative power delegated was still to be vested in the Congress of the United States, but this Congress it&elf was to be divided into two branches, an upper and lower house, the concurrence of both of which was to be necessary to the passage of any law or public measure." The great contest between the Nationals and Federals was now on the question of suffrage of the States in the two proposed houses of Congress. By many of the Federalist it was insisted that the vote of each should be as it was in the old Constitution ; that is, that the vote in each house on all questions should be by States and without regard to the num- ber of their representatives in either. On the [National side it was most persistently maintained that in view of the great disparity in population and wealth between the smaller and larger States, this equality of political power should not be retained in either house. A majority of the Federals finally yielded the point as to the house, but would not yield an equal voice on part of the several States in the Senate. They were determined to maintain an equality of political power in the States severally in whatever form the Constitution might be amended. On the first test vote to allow each State an equal vote in the Senate, the States stood five for it and five against it, with one divided. (Journal, Elliott's Debates vol. i, p. 193.) The yeas were Connecticut, JSTew York, New Jersey, Delaware, Maryland, five; the nays, Massachusetts, Pennsylvania, Virginia, 28 A STUDY 11^ North Carolina, South Carolina, five ; divided, Geor- gia, one. Eleven States only, then as before, were present. New Hampshire was still absent. This was on July 2, and it was at this stage of the pro- ceedings that Mr. Bedford, of Delaware, announced the position of the Federals in these words: "That all the States at present are equally sovereign and indepedent has been asserted from every quarter in this house. The small States never can agree to the Virginia plan [i. e., the National plan], and why then is it still urged ? Let us then do what is in our power — amend and enlarge the confederation, but not alter the federal system." (Madison Papers, p. 193.) It was here the convention came to a halt. To make progress in the work assigned them they at this juncture raised a committee consisting of a member from each State. Mr. Yates from New York was a member of this committee, and has given an account of its work. It is found in Elliott's Debates, vol. i, p. 477. We here quote it as an important document in this study. "The grand committee met [July 3]. Mr. Gerry was chosen chairman. The committee proceeded to consider in what manner they should discharge the business with which they were intrusted. By the proceedings in the convention, they were so equally divided on the important question of representation in the two branches, that the idea of a conciliatory adjustment must have been in contemplation of the STATE RIGHTS 20 house in the appointraent of this committee. But still how to effect this salutary purpose was the ques- tion. Many of the members, impressed with the utility of the general government, connected with it the indispensable necessity of a representation from the States according to their numbers and wealth ; while others equally tenacious of the rights of the States, would admit of no other representation brt such as was strictly federal, or, in other words, equality of suffrage. This brought on a discussion of the principles on which the house [i. e., the con- vention] had divided, and a lengthy recapitulation of the arguments advanced in the house in support of these opposite propositions. "As I had not openly explained my sentiments on any former occasion on this question, but constantly, in giving my vote, showed my attachment to the national government on federal principles, I took this occasion to explain my motives. These remarks gave rise to a motion of Mr. Franklin, which, after some modification, was agreed to and made the basis of the following report of the committee: " 'The committee to whom was referred the eighth resolution reported from the committee of the whole house, and so much of the seventh as had not been decided on, submit the following report: " 'That the subsequent propositions be recom- mended to the Convention, on condition that both shall be generally adopted. 'That in the first branch of the legislature i< c 30 A STUDY IN^ [House of Representatives], eacli of the States now in the Union be allowed one member for every forty thousand inhabitants of the description reported in the seventh resolution of the committee of the whole house. [The seventh resolution of the committee of the whole house had fixed "three-fifths" on federal ratio of representation (Stephenson).] That each State, not containing that number, shall be allowed one member. " 'That bills for raising or apportioning money, and for fixing salaries for the officers of the govern- ment of the United States, shall originate in the first branch of the legislature, and shall not be altered or amended by the second branch ; and that no money shall be drawn from the public treasury but in pur- suance of appropriations to be originated in the first branch. " 'That in the second branch of the legislature each State shall have an equal vote.' " This report was not adopted. The right of the States to hold a negative in their own hands, in all cases that the States should have nothing to say as States through their Senators about revenue and ap- propriation bills, the majority would not yield. The report was recommitted to a committee of five, ap- pointed by ballot. The report of this committee failed to receive adoption by the house. The sub- ject was given to another committee composed of a member from each State. This committee was chosen by ballot. The report of this committee was STATE RIGHTS 31 finally adopted. This report fixed the number of members which each State should have in the House of Representatives and provided for future appor- tionments according to the population, etc., as it stands in the Constitution. Nine States voted for it. Two against it {Elliott's Debates^ vol. i, p. 195). That clause which gave the House of Representa- tives absolute power over money bills was voted down. That part of the first report which gave to the States severally an equal vote was agreed to. Mr. Madison tells us in his account of the discussion just here that "Mr. Sherman, of Connecticut, urged the equality of votes not so much as a security for the small States as for the State government, which could not be pre- served unless they were represented. Mr. Dayton declared that the smaller States could never give up their equality ; that for himself he would in no event yield that security for their rights . . . Dr. Johnson, of Connecticut, would consent for numbers to be repre- sented in one branch, but the States must be in the other." {Madison's Papers, vol. ii, p. 1098.) Mr. A. H. Stevens says {Pictorial History of the United States, p. 299) : "Most of the Nationals after their defeat on the main point of their struggle, with a patriotism seldom exhibited, gracefully yielded their opposition and afterwards devoted all their powers to revising the Articles of Confederation and in per- fecting the plan submitted by Mr. Pinckney. This was especially the case with Mr. Madison, Mr. Wil- son, and Colonel Hamilton. All the essential feat- 32 A STUDY IN ures of the old Constitution were preserved. Some very important changes in the detail were made. These consisted chiefly in the new organization and new machinery introduced for the execution of the federal powers within the sphere of their limitations. The new delegations of power were also of an impor- tant character, but few in number. The following are the principle ones of these: "1st. The power of the States, in Congress as- sembled, to raise revenues by duties upon imports, etc., and to lay taxes directly upon the people of the several States, to be apportioned on the three- fifths basis of population. "2d. The power to make uniform rules to be ob- served in all the States for the admission of aliens to citizenship in the several States, and like uniform rules regulating bankruptcy. "3d. The power to regulate commerce with for- eign nations and among the several States. "4th. The power to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their writings and discoveries." We must not overlook in this record of the doings of this convention that there was an obligation as- sumed by the States, and put in the Constitution — the bond of the Union — without which obligation the Constitution would never have been accepted, viz., the rendition of fugitives from service to one State from another. STATE RIGHTS 33 Ou September 17, 1787, the Constitution was signed and sent to the Congress of the United States, sitting under the authority of the Articles of Con- federation. It v/as sent with these words : "Done in Convention by the unanimous consent of the States present the seventeenth day of September, in the year of our Lord 1787, and of the independence of the United States of America the twelfth. In wit- ness whereof we have hereunto subscribed our names. "George Washington, ^^ President and Deputy from Virginia/' This shows by whose authority the Constitution was prepared and submitted, viz., by the States. The ratification of nine States was required to make the law between the States ratifying it. (See Constitu- tion of the United States, Article VII.) Congress having received the new Constitution, that body ordered the insti*ument sent to the legislature of each one of the thirteen States. The legislatures of the several States called for the election of com- missioners to sit in convention of each one of these States and take the matter into consideration. These commissioners were elected by the people of eacfi State, and under the authority of each State the commissioners convened, and debated, amended, and acceded to this new Constitution. It was in this way, according to the record in the case, that the Constitu- tion became law between — not over, nor in the place of, but between — ^the States "so ratifying the same." 34 A STUDY IN A If nine out of thirteen States ratified the new Con- f stitution, it should be law to the nine. It was espe- t cially written in the Constitution that the govern- ment herein provided for should guarantee to every State a republican form of government. (See Article IV, Section 4, of the Constitution.) Now if the States were absorbed into a national government, why make recognition of them, or why provide for that which no longer exists ? This provision is certainly made in this article, yea, it is imposed upon the Federal Government to see to it that the States, as such, are protected, upheld, maintained, in that form of gov- ernment in which as States they had existed. But how did the States proceed to make the Con- stitution the bond of union between themselves ? In the way specified therein. Each State, by the order of the State authorities, held elections for commis- sioners; these commissioners assembled in conven- tions, and, after considering the document submitted to them, approved, ratified, the Constitution. This part of the record of the case is of great importance and should be considered with great care. The con- sideration of the adoption of the Constitution in these State conventions in four instances at least caused keen and prolonged debate. I have reference, of course, to Massachusetts, New York, Pennsylvania, and Virginia. It is in these discussions we discover the meaning of the men who aided in writing the Constitution, and who of course ought to have known the meaning of what they did as well at least as those STATE EIGHTS 35 who have since attempted to explain the meaning of what was done. Let "US consider first the convention held in Massa- chusetts. It was composed of 355 members, and sat three weeks. It "ratified" the Constitution by a majority of nineteen votes. The question which stirred the members of the convention to the most acute point of debate was : Were the sovereignty and rights of the States sufiiciently conserved ? The dread that they might not be, the fear that the exist- ence and the rights of the States might be in the least threatened, moved the gentlemen of the convention to discuss freely, move cautiously, and record their action with great precision of words. (See Massa- chusetts Debates, published by order of the State.) It was from this convention that the amendment was proposed out of which Article X of the amended Constitution was adopted as one of the fundamental principles of our federal government. The amend- ment proposed was in these words: "That it [the Constitution] explicitly declares that all powers not expressly delegated by the aforesaid Constitution are reserved to the several States, to be by them exer- cised." Article X reads: "The powers not delegated to the United States by the Constitution, nor pro- hibited by it to the States, are reserved to the States respectively, or to the people." It is recorded that on the floor of the convention President Hancock said, "I give my assent to the Constitution in full confidence that the amendments 36 A STUDY IN ' proposed will soon become a part of the system. These amendments being no wise local, but calculated to give security and ease alike to all the States, I think that all will agree to them." In transmitting the action of the State convention to the legislature, it is written that Mr. Hancock further said : "The objects of the proposed Constitution are defence against external enemies and promotion of tran- quillity and happiness amongst the States." The of- ficial utterance wherein the action of this convention is set forth is in part in these words: "The conven- tion having impartially discussed and fully considered the Constitution for the United States of America, and, acknowledging with grateful hearts the good- ness of the Supreme Ruler of the universe in af- fording the people of the United States in the course of his pro^adenee an opportunity deliberately and peaceably, without fraud or surprise, of entering into an explicit and solemn compact with each other by assenting to and ratifying a new Constitution in order, etc., etc., do, in the name and behalf of the people of the Commonwealth of Massachusetts, assent to and ratify the said Constitution for the United State of America." From language such as this we are not left in doubt as to the meaning of this State's action with reference to the rights of the States under the Constitution, and if Massachusetts ever used authority or force to destroy any of those rights reserved to the other States, or her own written agreement, she never got STATE RIGHTS 37 that power out of what she oflSciallj terms a "soleuiu compact" between the United States. Consider next the action of New York. In this State's convention wei-e some of the ablest men. The debates were keen, long, and acrimonious. The whole contest was waged here, too, around the question of the existence and rights of the States. There seems to have been greater opposition here to the Constitu- tion for fear that the powers delegated to the federal government might be exercised over the State gov- ernment. The adopting act is a lengthy one (see Elliott's Debates, vol. i, pp. 327-329), and written with that precision which shows how jealous were the commissioners to maintain the rights of the com- monwealth of their State. Alexander Hamilton said, among other things, when advocating the adoption of the Constitution: "Sir, the most powerful obstacle to the members of Congress betraying the interest of their constituents is the State legislature themselves, who will be standing bodies of observation, possess- ing the confidence of the people, jealous of federal encroachments, and armed with every power to check the first essays of treachery." (See Elliott's Debates, vol. ii, p. 266.) In every speech made in favor of adopting the Constitution the rights of the States were conceded, and in the final action of the convention it was espe- cially stipulated "that the powers of government may be reassumed by the people whensoever it shall be- come necessary to their happiness; that every power. A oun«?n 38 A STUDY IN jurisdiction, and right, which is not by the said Con- stitution clearly delegated to the Congress of the United States or other departments of the govern- ment thereof, remains to the people of the several States, or to their respective State governments, to whom they may have granted the same," etc. (See Elliott's Debates, vol. i, p. 327.) When we come to consider the action of Pennsyl- vania, we find that she adopted the Constitution by assenting to and ratifying the foregoing Constitution for the United States of America. Mr. James Wil- son, who was a member of the State convention, was also in the convention that prepared the Constitution for the States, and in that convention he made speeches which clearly reveal what the convention of 1787 thought on the rights of the States. He was in line with the national party in the convention, but when their plan was defeated, he, with Morris, Ham- ilton, King, and Madison, advocated the federal system. The chief ground of Wilson's advocacy was that the rights of the States were recognized and secured. In speaking of the system of this government he says: "This, instead of placing the State governments in jeopardy, is founded on their existence. On this principle its organizations depends; it must stand or fall as the State governments are secured or ruined." (See Elliott's Debates, vol. ii, p. 503.) When we consider the action of the convention of Virginia, June 26, 1788, we find that the question of STATE RIGHTS 39 ratifying tlie Constitution was vigorously and keenly debated concerning what it meant concerning the rights of the States. In her adopting act it is ex- pressly recorded "that the powers granted under the Constitution, being derived from the people of the United States, may be resumed by them whensoever the same shall be perverted to their injury or oppres- sion; and that every power not granted thereby re- mains with them and at their will, and that therefore no right of any denomination can be cancelled, abridged, restrained, or modified, by the Congress, by the Senate or House of Representatives, acting in any capacity, by the President, or any department or officers of the United States except in those instances in which power is given by the Constitution for those purposes," etc., etc. So we see by the record of the case: First, that the convention which formulated the Constitution was composed of deputies of the States. In all their voting they voted as States. When their work was completed it was submitted to the States for their approval or disapproval. ' Second. We see from further examination of the record that each one of the States, in its sovereign capacity in convention of delegates chosen by the people of each State, took into consideration the Con- stitution sent them by the Congress of the United States, and after days of discussion — some proposing amendments — all "asented to and ratified" the docu- ment as a bond of union known as the federal govern- 40 A STUDY IN ment of the Union. It was the action of the States that made it the bond of the Union. Third. We have seen by the study of the record of the case that in the convention there were two parties, one wanting a consolidated government (a national nuion), the other contending for a federal republic in which ths existence and rights of the States should be recognized and preserved. The party known as the federal party won in their contention, and the word "National" was by act of the convention stricken out of the proposed Constitution. No official act of the convention in any way favored the idea of a nation. Mr. Oliver Wolcott, of Connecticut, ex- presses the idea when he says, "The Constitution effectually secures the States in their several rights. It must secure them for its own sake, for they are the pillars which uphold the general system. The Senate, a constituent branch of the general legisla- ture, without whose assent no public act can be made, are appointed by the States, and will secure the rights of the States ... So well guarded is this Con- stitution throughout, that it seems impossible that the rights either of the States or the people should be destroyed." (^Elliott's Debates, vol. ii, p. 201.) STATE RIGHTS CHAPTER III THE PURPOSE OF THE CONVENTION OF 1787. From a careful study of the records of the case herein set forth, and the Constitution, we may safely conclude that the following are facts indisputable and as such cannot truthfully be denied: 1. It was not the intention or purpose of the convention of 1787 to make a consolidated govern- ment of the United States. That there were men in the convention who desired that such should be the case we admit; but the final decision of the conven- tion is seen in their action, when by their unanimous vote they eliminated the word "national" and sub- stituted therefor^.the phrase "Government of the United States." (See Elliott's Debates, vol. i, p. 183.) The Government of the United States is a federal Government, and not a national one. By the bond of union, i. e., the Constitution, it is one Government as to "foreign concerns and kept dis- tinct in domestic ones." There is no act of the con- vention that justifies the writing of the nature of this Government as "national." On the contrary, (the distinctive act of that body requires, when its, nature is to be spoken of or written about, that it shall be t-ermed "federal." Federal means a govem- 41 42 A STUDY IK ment by representatives and a government by agree- ment or covenant. (See derivation of word from foedus.) The man who speaks of the United States as a national government speaks of that which has no existence. The legislature, judicial, and execu- tive functions of the federal government have no authority apart from that granted in the Constitution. All power or authority by these functions of govern- ment is delegated by the States. To exercise any other is usurpation ; to do otherwise than to use the authority delegated in the bond of union is 'per- jury. The President, members of Congress, and judges are required to swear or affirm that they will "protect, preserve, and defend the Constitution." Now suppose the President, to carry out the pur- poses of his administration, used the army and navy in a way not prescribed in the Constitution. Is he not violating his oath ? If the dogmas of the party which put him in the position of Chief Executive demand that he shall use his authority to do things that the delegated power of the Constitution does not say he may do, or does say he shall not do, what course must he pursue ? The answer cannot be other- wise than he must have regard to his oath, for the federal government is to be administered accord- ing to the Constitution, not the dogmas of political parties. It is true that to administer the govern- ment a majoriy is to rule, but how ? Only as the Constitution marks out. If this is not the case, the matter of administering the oath of office is sacrilege. STATE EIGHTS 43 If the oath is not binding, it is nonsense to exact it. 'No honest or honorable man who takes that oath would consider himself obligated to do things which the Constitution he had sworn to "protect, preserve and defend" did not give him authority to do. And though every man in the human family approved his conduct if he did violate his oatJi by so doing, that man is guilty of perjury as defined in the law. The oath of office did not require the President to protect and enforce the idea of a nation; but the oath of office did require that the rights of the States not surrendered to the federal government should be preserved and protected. 2. It is evident from a careful study of the records of the case that the federal government is a compact hetiueen the States, and it is in no sense a government over the States. If this is questioned, Article VII of the Constitution settles it beyond all cavil. This section reads: "The ratification of the conventions of nine States shall be sufficient for the establishment of this Constitution between the States so ratifying the same." In this statement the exist- ence of the States as such is recognized and their continued existence is clearly set forth in the manner of organization of the Senate and their method of voting. The States were not bound to the federal government except in the stipulations of the Con- stitution ; and the federal government had no power but that which was delegated to it by the consent of the acceding States. According to Article IV, 44 A STUDY lis Sectiuii 4: ■'The United States governmeiiL shall guarantee to every State iu this Union a republican form of government, and shall protect each of them against invasion, and on application of tlie legisla- ture or of the executive (when the legislature can- not be convened) against dumestic violence." Now if the States ceased to exist, why this provision for their protection I That the government was between and not over the States was a fact accepted by all until the teaching of Story, Webster, and Kent was received [^nd promulgated by their followers. In 1T9S the Virginia resolutions, setting forth the doctrine that the federal government Avas a compact between the States, was responded to with an emphatic appro^'al by all the States taking notice of it. Another fact: The method of electing the President declares that this federal government is a government between the States. The President holds his oflBce through the majority of the States voting for him, and not the majority of people in the States. Xow if the govern- ment was one nation, the majority of all the people ought to elect the President, But from the method of choosing the President, we see the rights of the States preserved. 3. When the federal government begins to use its power to the injury of any State, or in a manner inimical to that State's interests, that State can withdraw from the compact or union. This is a well known provision of the Constitution, (See Article X.) Massachusetts was the first State to STATE RIGHTS 45 threaten to resort to this privilege — to avail herself of it when the federal government was involved in what appeared to be a disastrous war. To secede from the Union was first thought of and first threat- ened bv the State of Massachusetts. The Hartford convention met in the city of Hartford December 15, 1814. It was composed of delegates from Massa- chusetts, Rhode Island, Xew Hampshire, Vermont, and Connecticut. "Events may prove [see Journal of Hartford Convenfion, January 4, 1815, p. 5] that the causes of our calamities [in the war of 1812] are deep and permanent. They may be found to proceed not merely from blindness of prejudice, pride of opinion, violence of party spirit, or the confusion of the times, but they may be traced to implacable combination of individuals or States to monopolize power and office and to trample without remorse upon the rights and interests of the commercial sections of the Union. Whenever it shall appear that these causes are radical and permanent, a separation by equitable arrangement will be preferable to an alli- ance by constraint among nominal friends, but real enemies, inflamed by mutual hatred and jealousies and inviting by intestine divisions contempt and ag- gressions from abroad." This convention further records its States' rights doctrine in language such as this: "It is as much the duty of the State to watch over the rights reserved as of the United States to exercise the powers which are delegated." (Journal of Hartford Convention, p. 7.) It makes further 46 A STUDY IN this record: "But in case of deliberate, dangerous, and palpable infractions of the Constitution affecting the sovereignty of the States and liberties of the people, it is not only the right, but the duty of such State to interpose its authority for their protection in the manner best calculated to secure that end. States which have no common umpire must be their own judges and execute their own decisions." (See Journal Hartford Convention, pp. 10, 11.) The convention appointed commissioners to lay their complaints before the federal government. Messrs. Harrison Gray Otis, T. H, Perkins, and W. Sullivan were the gentlemen appointed on this com- mission, who were to make a report, "if they fail," to another convention to be held in Boston the third Thursday in June. This convention never convened for the reason that — as the commissioners reported — when they arrived at Washington they found that peace had been concluded. (Proceedings of the Hartford Convention, p. 33.) Mr. Daniel Webster says Massachusetts "gave up all opposition" when the Supreme Court of the United States decided that the laws of which she complained were constitutional. The gentlemen who were commissioners say it was because peace was con- cluded. Whom shall we accept as authority in this matter ? Both cannot be right and truthful in theiV statements. The records of that convention of course must be accepted as final. They flatly contradict Mr. Webster. They show that the States represented in STATE EIGHTS 47 that convention declared "in cases of deliberate, dan- gerous, and palpable infractions of the Constitution affecting the sovereignty of the States and the liber- ties of the people it is not only the right, but the duty^ of such States to interpose its authority for their protection in the manner best calculated to secure that end, and States which have no common umpire must be their own judges and execute their own de- cisions." (See Journal of Hartford Convention, pp. 10, 11.) If Massachusetts protested against this the record does not show it. If Mr. Webster had any better authority he never gave it. From the records of the Hartford convention it will be seen that the New England States represented therein held as a fact that the federal government is the creature of the States. It will be further seen that the nature of this federal government is a compact between the States, and in no sense is it a government over the States except in those powers delegated by the States. It will be seen that whenever the federal government attempted to use powers not granted, it was not only the right, but the duty, of the States to interpose its authority for their protection. If, when the com- mercial States feel aggrieved and judge that the com- mercial interest are in jeopardy by the conduct of the federal government, they unite to protect, aye, resist, the federal government there is no treason, no rebel- lion, why should it be called treason, rebellion, when the agricultural States to protect agricultural inter- 48 A STUDY IN est do the same thing? This question demands an answer of every earnest student of history. New England was plainly within her rights, and only receded from her position of threatening to secede from the Union when her end was gained by the treaty of peace with Great Britain ; not because her conduct was treasonable or rebellious. If it was right for the States of New England to take such a stand in 1815, what made it wrong, what made it treasonable, for the Southern States to take the same position in 1861 ? If the States of New England were clearly in the right, — and they were, in their own judgment, — how can the Southern States for the same reason, doing the same thing, be adjudged rebellious and treasonable ? History presents this question for solution and answer. Just here we desire to call attention to the advice of the old prophet of the Jewish nation, Jeremiah G : 16 : ''Stand ye in the ways, and see, and ask for the old paths, where is the good way, and walk therein, and ye shall find rest for your souls." The federal government is a government of law and not of men. The teaching of the press, the dogmas of political parties, the usurpation of the executive, the partisan judgments of the judiciary, and the unconstitutional acts of the legislative depart- ment of government for more than forty years, make the exhortation of the prophet very practical. Giv- ing heed to the advice, we here republish Madison's Report, which eminent men have pronounced the STATE RIGHTS 49 clearest and most statesmanlike exposition of the Constitution ever published. We reprint it in the midst of these studies with the hope that young men of this generation will read it carefully, with the faint hope that some of our Senators and Congress- men will refresh their memory on some things they seem to have forgotten. We trust we will not be presumptuous if we suggest among the things they seem to have forgotten is the Constitution and their official oaths, for they contend seemingly more for the dogmas and dictates of political parties than for the constitutional principles of the federal govern- ment. Mr. Madision^s Report on the Virginia Resolutions Virginia. — House of Delegates, Session of 1799- 1800. / Report of the Committee to whom were referred the \ communication of various States, relative to the resolutions of the last General Assembly of this State, concerning the Alien and Sedition Laws. Whatever room might be found in the proceedings of some of the States, who have disapproved of the resolutions of the General Assembly of this Common- wealth, passed on the 21st day of December, 1798, for painful remarks on the spirit and manner of those proceedings, it appears to the Committee most con- sistent with the duty as well as dignity of the Gen- eral Assembly, to hasten an oblivion of every circum- 50 A STUDY IN stance which might be construed into a diminution of mutual respect, confidence and affection, among the members of the Union. The committee have deemed it a more useful task to revise, with a critical eye, the resolutions which have met with their disapprobation ; to examine fully the several objections and arguments which have ap- peared against them; and to inquire whether there can be any errors of fact, of principle, or of reason- ing, which the candor of the General Assembly ought to acknowledge and correct. The first of the resolutions is in the words follow- ing: "Resolved, That the General Assembly of Virginia doth unequivocally express a firm resolution to main- tain and defend the Constitution of the United States, and the Constitution of this State, against every ag- gression, either foreign or domestic, and that they will support the Government of the United States in all measures warranted by the former." No unfavorable comment can have been made on the sentiments here expressed. To maintain and defend the Constitution of the United States, and of their own State, against every aggression, both for- eign and domestic, and to support the Government of the United States in all measures warranted by their Constitution, are duties which the General Assembly ought always to feel, and to which, on such an occa- sion, it was evidently proper to express their sincere and firm adherence. STATE RIGHTS 51 In their next resolution — "The General Assembly most solemnly declares a warm attachment to the Union of the States, to maintain which, it pledges all its powers ; and that, for this end, it is their duty to watch over and oppose every infraction of those prin- ciples, which constitute the only basis of that Union, because a faithful observance of them can alone secure its existence and the public happiness." The observation just made is equally applicable to this solemn declaration of warm, attachment to the Union, and this solemn pledge to maintain it; nor can any questions arise among enlightened friends of the Union, as to the duty of watching over and oppos- ing every infraction of those principles which consti- tute its basis, and a faithful observance of which can alone secure its existence, and the public happiness! thereon depending. The third resolution is in the words following : "That this Assembly doth explicitly and peremp- torily declare, that it views the powers of the Federal Government as resulting from the compact, to which the States are parties, as limited by the plain sense and intention of the instrument constituting that com- pact — as no further valid than they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable and dangerous exercise of other powers, not granted by the said compact, the States who are parties thereto have the right, and are in duty bound, to interpose, for arresting the progress of the evil, and for maintaining within their respec- 52 A STUDY IN tive limits the authorities, rights and liberties apper- j taining to them," On this resolution the committee have bestowed all the attention which its importance merits; they have scanned it not merely with a strict, but with a severe eve; and they feel confidence in pronouncing that, in its just and fair construction, it is unexcep- tionally true in its several positions, as well as con- stitutionally and conclusive in its inferences. The resolution declares; first, that "it views the powers of the Federal Government as resulting from the compact to which the States are parties" ; in other words, that the Federal powers are derived from the Constitution, and that the Constitution is a compact to which the States are parties. Clear as the position must seem, that the Federal powers are derived from the Constitution, and from that alone, the committee are not unapprised of a late doctrine, which opens another source of Federal powers not less extensive and important than it is new and unexpected. The examination of this doc- trine will be most conveniently connected with a re- view of a succeeding resolution. The committee satisfy themselves here with briefly remarking that, in all the contemporary discussions and comments which the Constitution underwent, it was constantly justi- fied and recommended on the ground that the powers not given to the government were withheld from it; and, that if any doubt could have existed on this sub- ject under the origrinal text of the Constitution, it is STATE RIGHTS 53 removed, as far as words could remove it, by the Twelfth amendment, now a part of the Constitution, which expressly declares, "that the powers not dele- gated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." The other position involved in this branch of the resolution, namely, that "the States are parties to the Constitution or compact," is, in the judgment of the committee, equally free from objection. It is indeed true, that the term "States" is sometimes used in a vague sense, and sometimes in different senses, ac^ cording to the subject to which it is applied. Thus, it sometimes means the separate sections of territory occupied by the political societies within each ; some- times the particular governments established by those societies; sometimes those societies as organized into those particular governments ; and lastly, it means the people composing those political societies, in their highest sovereign capacity. Although it might be wished that the perfection of language admitted less diversity in the signification of the same words, yet little inconvenience is produced by it where the true sense can be collected with certainty from the differ- ent applications. In the present instance, whatever different construction of the term "States" in the resolution may have been entertained, all will at least concur in that last mentioned ; because in that sense the Constitution was submitted to the "States"; in that sense the "States" ratified it ; and in that sense 64 A STUDY IN of the term "States," they are consequently parties to the compact from which the powers of the Federal Government result. The next position is, that the General Assembly views the powers of the Federal Government, "as limited by the plain sense and intention of the instru- ment constituting that compact," and "as no farther valid than they are authorized by the grants therein enumerated." It does not seem possible that any just objection can lie against either of these clauses. The first amounts merely to a declaration that tho compact ought to have the interpretation plainly intended by the parties to it; the other to a declara- tion that it ought to have the execution and effect intended by them. If the powers granted be valid, it is solely because they are granted ; and if the granted powers are valid because gTanted, all other powers not granted must not be valid. The resolution having taken this view of the Fed- eral compact, proceeds to infer, "That in case of a deliberate, palpable, and dangerous exercise of other powers not granted by the said compact, the States, who are parties thereto, have the right and are in duty bound to interpose for arresting the progress of the evil, and for maintaining within their respective limits the authorities, rights, and liberties appertain- ing to them." It appears to your committee to be a plain prin- ciple founded in common sense, illustrated by common practice, and essential to the nature of compacts — STATE EIGHTS 55 that, where resort can he had to no tribunal superior to the authority of the parties, the parties themselves must be the rightful judges in the last resort, whether the bargain made has been pursued or violated. The Constitution of the United States was framed by the sanction of the States, given by each in its sovereign capacity. It adds to the stability and dignity, as well as to the authority of the Constitution, that it rests on this legitimate and solid foundation. The States, then, being the parties to the constitutional compact, and in their sovereign capacity, it follows of neces- sity, that there can be no tribunal above their au- thority to decide in the last resort whether the com- pact made by them be violated; and, consequently, that, as the parties to it, they must themselves decide in the last resort such questions as may be of sufficient magnitude to require their interposition. It does not follow, however, that because the States, as sovereign parties to their constitutional compact, must ultimately decide whether it has been violated, that such a decision ought to be interposed, either in a hasty manner, or on doubtful and inferior occasions. Even in the case of ordinary conventions between different nations, where, by the strict rule of inter- pretation, a breach of a part may be deemed a breach of the whole ; every part being deemed a condition of every other part, and of the whole, it is always laid down that the breach must be both wilful and material to justify an application of the rule. But in the case of an intimate and constitutional union, like that of 56 A STUDY IN the United States, it is evident that the interposition of the parties, in their sovereign capacity, can be called for bj occasions only, deeply and essentially affecting the vital principles of their political system. The resolution has, accordingly, guarded against any misapprehension of its object, by expressly re- quiring for such an interposition, "the case of a deliberate, palpable, and dangerous breach of the Constitution, by the exercise of powers not granted by it," It must be a case not of a light and transient nature, but of a nature dangerous to the great pur- poses for which the Constitution was established. It must be a case, moreover, not obscure or doubtful in its construction, but plain and palpable. Lastily, it must be a case not resulting from a partial considera- tion or hasty determination ; but a case stamped with a final consideration and deliberate adherence. It is not necessary, because the resolution does not require, that the question should be discussed, how far the exercise of any particular power, ungranted by the Constitution, would justify the interposition of the parties to it. As cases might easily be stated, which none would contend ought to fall within that descrip- tion — cases, on the other hand, might with equal ease be stated so flagrant and so fatal as to unite every opinion in placing them within the description. But the resolution has done more than guard against misconstruction, by expressly referring to cases of a deliberate, palpable and dangerous nature. It specifies the object of the interposition which it STATE EIGHTS 57 contemplates, to be solely that of arresting the prog- ress of the evil of usurpation, and of maintaining the authorities, rights and liberties appertaining to the States, as parties to the Constitution. From this view of the resolution, it would seem inconceivable that it can incur any just disapproba- tion from those who, laying aside all momentary impressions, and recollecting the genuine source and objects of the Federal Constitution, shall candidly and accurately interpret the meaning of the General Assembly. If the deliberate exercise of dangerous' powers, palpably withheld by the Constitution, could not justify the parties to it, in interposing even so far as to arrest the progress of the evil, and thereby to preserve the Constitution itself, as well as to provide for the safety of the parties to it, there would be an end to all relief from usurped power, and a direct subversion of the rights specified or recognized under all the State Constitutions, as well as a plain denial of the fundamental principle on which our inde- pendence itself was declared. But it is objected, that the judicial authority is to be regarded as the sole expositor of the Constitution in the last resort ; and it may be asked for what rea- son, the declaration by the General Assembly, suppos- ing it to be theoretically true, could be required at the present day, and in so solemn a manner. On this objection it might be observed: first, that there may be instances of usurped power, which the forms of the Constitution would never draw within 58 A STUDY IN the control of the judicial department; secondly, that if the decision of the judiciary be raised above the authority of the sovereign parties to the Constitution, the decisions of the other departments, not carried by the forms of the Constitution before the judiciary, must be equally authoritative and final with the deci- sions of that department. But the proper answer to the objection is, that the resolution of the General Assembly relates to those great and extraordinary cases, in which all the forms of the Constitution may prove ineffectual against infractions dangerous to the essential rights of the parties to it. The resolution supposes that dangerous powers not delegated, may not only be usurped and executed by the other depart- ments, but that the judicial department, also, may exercise or sanction dangerous powers beyond the grant of the Constitution ; and, consequently, that the ultimate right of the parties to the Constitution, to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority, as well as by another ; by the judiciary, as well as by the executive or the legislative. However true, therefore, it may be that the judicial department is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the government ; not in relation to the rights of the parties to the constitutional compact, from which the judicial as well as the other departments hold their STATE EIGHTS 59 delegated trusts. On any other hypothesis, the dele- gation of judicial power would annul the authority delegating it ; and the concurrence of this department with the others in usurped powers, might subvert for- ever, and beyond the possible reach of any rightful remedy, the very Constitution, which all were insti- tuted to preserve. The truth declared in the resolution being estab- lished, the expediency of making the declaration at the present day, may safely be left to the temperate consideration and candid judgment of the American public. It will be remembered that a frequent recur- rence to fundamental principles is solemnly enjoined by most of the State Constitutions, and particularly by our own, as a necessary safeguard against the danger of degeneracy to which republics are liable, as well as other governments, though in a less degree than others. And a fair comparison of the political doctrines not unfrequent at the present day, with those which characterized the epoch of our Revolu- tion, and which form the basis of our republican Constitutions, will best determine whether the declar- atory recurrence here made to those principles, ought to be viewed as unseasonable and improper, or as a vigilant discharge of an important duty. The au- thority of Constitutions over governments, and of the sovereignty of the people over Constitutions, are truths which are at all times necessary to be kept in mind ; and at no time, perhaps, more necessary than at present. 60 A STUDY IN The fourth resolution stands as follows : "That the General Assembly doth also express ita deep regret that a spirit has in sundry instances been manifested by the Federal Government to enlarge its powers by forced constructions of the constitutional charter which defines them; and that indications have appeared of a design to expound certain general phrases (which, having been copied from the very limited grant of powers in the former Articles of Confederation, were the less liable to be miscon- strued), so as to destroy the meaning and effect of the particular enumeration which necessarily explains, and limits the general phrase; and so as to consoli- date the States by degrees into one sovereignty, the obvious tendency and inevitable result of which would be to transform the present republican system of the United States into an absolute or at least a mixed monarchy." The first question here to be considered is, whether a spirit has in sundry instances been manifested by the Federal Government to enlarge its powers by forced constructions of the constitutional charter. The General Assembly having declared their opinion, merely, by regretting in general terms, that forced constructions for enlarging the Federal powers have taken place, it does not appear to the committee necessary to go into a specification of every instance to which the resolution may allude. The Alien and Sedition acts being particularly named in a succeed- ing resolution are of course to be understood as STATE EIGHTS 61 included in the allusion. Omitting others which have less occupied public attention, or been less exten- sively regarded as unconstitutional, the resolution may be presumed to refer particularly to the Bank Law, which from the circumstances of its passage, as well as the latitude of construction on which it is founded, strikes the attention with singular force, and the carriage tax, distinguished also by circum- stances in its history having a similar tendency. Those instances alone, if resulting from forced con- struction, and calculated to enlarge the powers of the Federal Government, as the committee cannot but conceive to be the case, sujfficiently warrant this part of the resolution. The committee have not thought it incumbent on them to extend their atten- tion to laws which have been objected to, rather as varying the constitutional distribution of powers in the Federal Government, than as an absolute enlarge- ment of them; because instances of this sort, how- ever important in their principles and tendencies, do not appear to fall strictly within the text under review. The other questions presenting themselves are — 1. Whether indications have appeared of a design to expound certain general phrases copied from thq "Articles of Confederation." so as to destroy the effect of the particular enumeration explaining and limiting their meanins:. 2. Whether this exDOsition would by degrees consolidate the States into one sovereignty. 3. Whether the tendency and result of 62 A STUDY IN this consolidation would be to transfonn the repub- lican system of the United States into a monarchy. 1. The general phrases here meant must be those "of providing for the common defence and general welfare." In the "Articles of Confederation" the phrases are used as follows, in Art. VIII : "All charges of war, and all other expenses that shall be incurred for the common defence and general welfare, and allowed by the United States in Congress assembled, shall be defrayed out of a common treasury, which shall be supplied by the several States, in proportion to the value of all land within each State, granted to, or sur- veyed for any person, as such land and the buildings and improvements thereon shall be estimated, accord- ing to such mode as the United States in Congress assembled, shall from time to time direct and appoint." In the existing Constitution they make the follow- ing part of Sec. 8 : "The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts, and provide for the common defence and general welfare of the United States." This similarity in the use of these phrases in the two great Federal charters, might well be considered as rendering their meaning less liable to be miscon- strued in the latter: because it will scarcely be said, that in the former they were ever understood to be either a general grant of the power, or to authorize the requisition or application of money by the old STATE EIGHTS 63 Congress to the common defence and general wel- fare, except in cases afterwards enumerated, which explained and limited their meaning ; and if such was the limited meaning attached to these phrases in the very instrument revised and remodelled by the pres- ent Constitution, it can never be supposed that when copied into this Constitution, a different meaning ought to be attached to them. That, notwithstanding this remarkable security against misconstruction, a design has been indicated to expound these phrases in the Constitution, so as to destroy the effect of the particular enumeration of powers by which it explains and limits them, must have fallen under the observation of those who have attended to the course of public transactions. Not to multiply proofs on this subject, it will suffice to refer to the debates of the Federal legislature, in which arguments have on different occasions been drawn, with apparent effect, from these phrases, in their indefinite meaning. To these indications might be added, without look- ing farther, the official report on manufactures by the late Secretary of the Treasury, made on the 5th of December, 1791 ; and the report of a Committee of Congress, in January, 1797, on the promotion of agriculture. In the first of these it is expressly con- tended to belong "to the discretion of the National Legislature to pronounce upon the objects which con- cern the general welfare, and for which, under that description, an appropriation of money is requisite 64 A STUDY IN and proper. And there seems to be no room for a doubt, that whatever concerns the general interests of learning, of agriculture, of manufactures, and of commerce, is within the sphere of National Councils, as far as regards an application of money." The lat- ter report assumes the same latitude of power in the National Councils, and applies it to the encourage- ment of agriculture, by means of a society to be estab- lished at the seat of government. Although neither of these reports may have received the sanction of a law carrying it into effect; yet, on the other hand, the extraordinary doctrine contained in both has passed without the slightest positive mark of disap- probation from the authority to which it was ad- dressed. Now, whether the phrases in question be construed to authorize every measure relating to the common defence and general welfare, as contended by some; or every measure only in which there might be an application of money, as suggested by the caution of others; the effect must substantially be the same, in destroying the import and force of the particular enumeration of powers which follow these general phrases in the Constitution. For, it is evident, that there is not a single power whatever which may not have some reference to the common defence or the gen- eral welfare ; nor a power, of any magnitude, which, in its exercise, does not involve or admit an applica- tion of money. The government, therefore, which possesses power in either one or other of these extents STATE EIGHTS 65 is a government without the limitations formed by a particular enumeration of powers ; and consequently, the meaning and effect of this particular enumeration is destroyed by the exposition given to these general phrases. This conclusion will not be affected by an attempt to qualify the power over the "general welfare," by referring it to cases where the general welfare is beyond the reach of the separate provisions by the individual States; and leaving to these their juris- dictions in cases, to which their separate provisions may be competent. For, as the authority of the indi- vidual States must in all cases be incompetent to general regulations operating through the whole, the authority of the United States would be extended to every object relating to the general welfare, which might, by any possibility, be provided for by the gen- eral authority. This qualifying construction, there- fore, would have little, if any, tendency to circum- scribe the power claimed under the latitude of the term "general welfare." The true and fair construction of this expression, both in the original and existing Federal compacts, appears to the committee too obvious to be mistaken. In both, the Congress is authorized to provide money for the common defence and general welfare. In both, is subjoined to this authority an enumeration of the cases to which their powers shall extend. Money cannot be applied to the general welfare other- wise than by an application of it to some particular 66 A STUDY IN measure conducive to the general welfare. When- ever, therefore, money has been raised by the general authority, and is to be applied to a particular measure, a question arises whether the particular measure be within the enumerated authorities vested in Congi-ess. If it be, the money requisite for it may be applied to it; if it be not, no such application can be made. This fair and obvious interpretation coincides with, and is enforced by, the clause in the Constitution, which declares, that "no money shall be drawn from the treasury but in consequence of appropriations made by law." An appropriation of money to the general welfare would be deemed rather a mockery than an observance of this constitutional injunction. 2. Whether the exposition of the general phrases here combated would not, by degrees, consolidate the States into one sovereignty is a question, concern- ing which the committee can perceive little room for difference of opinion. To consolidate the States into one sovereignty, nothing more can be wanted than to supersede their respective sovereignties in the cases reserved to them, by extending the sovereignty of the United States, to all cases of the "general welfare," that is to say, to all cases whatever. 3. That the obvious tendency and inevitable result of a consolidation of the States into one sovereignty, would be to transform the republican system of the United States into a monarchy, is a point which seems to have been sufficiently decided by the general sentiment of America. In almost every instance of STATE EIGHTS 67 discussion relating to the consolidation in question, its certain tendency to pave the way to monarchy seems not to have heen contested. The prospect of such a consolidation has formed the only topic of controversy. It would be unnecessary, therefore, for the committee to dwell long on the reasons which sup- port the position of the General Assembly. It may not be improper, however, to remark two conse- quences, evidently flowing from an extension of the Federal power to every subject falling within the idea of the "general welfare." One consequence must be to enlarge the sphere of discretion allotted to the Executive Magistrate. Even within the legislative limits properly defined by the Constitution, the difficulty of accommodating legal regulations to a country so great in extent, and so various in its circumstances, has been much felt ; and has led to occasional investments of power in the Executive, which involve perhaps as large a portion of discretion as can be deemed consistent with the nature of the Executive trust. In proportion as the objects of legislative care might be multiplied, would the time allowed for each be diminished, and the difficulty of providing uniform and particular regula- tions for all be increased. Erom these sources would necessarily ensue a greater latitude to the agency of that department which is always in existence, and which could best mould regulations of a general nature, so as to suit them to the diversity of particu- lar situations. And it is in this latitude, as a supple- 68 A STUDY IN ment to the deficiency of the laws, that the degree of executive prerogative materially consists. The other consequence would be that of an exces- sive augmentation of the officers, honors, and emolu- ments depending on the Executive will. Add to the present legitimate stock all those of every description which a consolidation of the States would take from them and turn over to the Federal Government, and the patronage of the Executive would necessarily be as much swelled in this case as its prerogative would be in the other. This disproportionate increase of prerogative and patronages must evidently either enable the Chief Magistrate of the Union, by quiet means, to secure his re-election from time to time, and finally, to regulate the succession as he might please ; or, by giving so transcendent an importance to the office, would render the elections to it so violent and corrupt that the public voice itself might call for an hereditary, in place of an elective succession. Which- ever of these events might follow, the transforma- tion of the republican system of the United States into a monarchy, anticipated by the General Assem- bly from a consolidation of the States into one sovereignty, would be equally accomplished ; and whether it w^ould be only a mixed or an absolute mon- archy might depend on too many contingencies to admit of any certain foresight. The resolution next in order is contained in the following terms : . "That the General Assembly doth particularly STATE RIGHTS 69 protest against the palpable and alarming infractions of the Constitution, in the two late cases of the 'Alien and Sedition Acts/ passed at the last session of Congi-ess ; the first of which exercises a power no- where delegated to the Federal Government; and which, by uniting legislative and judicial powers to those of executive, subverts the general principles of free govermnent, as well as the particular organiza- tion and positive provisions of the Federal Constitu- tion; and the other of which acts exercises, in like manner, a power not delegated by the Constitution, but, on the contrary, expressly and positively for- bidden by one of the amendments thereto — a power which, more than any other, ought to produce uni- versal alarm, because it is levelled against the right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed the only effectual guardian of every other right," The subject of this resolution having, it is pre- sumed, more particularly led the General Assembly into the proceedings which they communicated to the other States, and being in itself of peculiar im- portance, it deserves the most critical and faithful investigation ; for the length of which no apology will be necessary. The subject divides itself into, — First, the "Alien Act." Secondly, the "Sedition Act." Of the "Alien Act," it is affirmed by the resolu- 70 A STUDY m tion — 1. That it exercises a power nowhere delegated to the Federal Government; 2. That it unites legis- lative and judicial powers to those of the executive; 3. That this union of powers subverts the general principles of free government; 4. That it subverts the particular organization and positive provisions of the Federal Constitution. In order to clear tlie way for a correct view of the first position, several observations will be premised. In the first place, it is to be borne in mind that, it being a characteristic feature of the Federal Consti- tution, as it was originally ratified, and an amend- ment thereto having precisely declared, "that the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people/ it is incumbent in this, as in every other exercise of power by the Federal Government, to prove from the Constitution that it grants the particular power exercised. The next observation to be made is, that much confusion and fallacy have been thrown in to the question by blending the two cases of aliens, mem- bers of a hostile nation; and aliens, members of friendly nations. These two cases are so obviously and so essentially distinct, that it occasions no little surprise that the distinction should have been dis- regarded ; and the surprise is so much the greater, as it appears that the two cases are actually distin- guished by two separate acts of Congress, passed at STATE EIGHTS Yl the same session, and comprised in tlie same publica- tion; the one providing for the case of "alien ene- mies"; and the other "concerning aliens" indis- criminately, and consequently extending to aliens of every nation in peace and amity with the United States. With respect to alien enemies no doubt has been intimated as to the Federal authority over them ; the Constitution having expressly delegated to Con- gress the power to declare war against any nation, and of course to treat it and all its members as enemies. With respect to aliens who are not enemies, but members of nations in peace and amity with the United States, the power assumed by the Act of Con- gress is denied to be constitutional ; and it is accord- ingly against this act that the protest of the General Assembly is expressly and exclusively directed. A third observation is that were it admitted, as is contended, that the "act concerning aliens" has for its object not a penal, but a preventive justice, it would still remain to be proved that it comes within the constitutional power of the Federal Legislature ; and, if within its power, that the Legislature has exercised it in a constitutional manner. In the administration of preventive justice, the following principles have been held sacred ; that some probable ground of suspicion be exhibited before some judicial authority ; that it be supported by oath or affirmation ; that the party may avoid being thrown into confine- ment, by finding pledges or sureties for his legal con- duct sufficient in the judgment of some judical 12 A STUDY m authority; that he may have the benefit of a writ of habeas corpus, and thus obtain his release if wrong- fully confined ; and that he may at any time be dis- charged from his recognizance, or his confinement, and restored to his former liberty and rights, on the order of the proper judicial authority, if it shall see sufficient cause. All these principles of the only preventive justice known to American jurisprudence are violated by the Alien Act. The ground of suspicion is to be judged of, not by any judicial authority, but by the Executive Magistrate alone. No oath or affirmation is required. If the suspicion be held reasonable by the President, he may order the suspected alien to depart from the territory of the United States, with- out the opportunity of avoiding the sentence by find- ing pledges for his future good conduct. As the Presi- dent may limit the time of departure as he pleases, the benefit of the writ of habeas corpus may be sus- pended with respect to the party, although the Con- stitution ordains that it shall not be suspended unless when the public safety may require it, in case of Rebellion or invasion, — neither of which existed at the passage of the act; and the party being, under the sentence of the President, either removed from the United States, or being punished by imprison- ment, or disqualification ever to become a citizen, on conviction of not obeying the order of removal, he cannot be discharged from the proceedings against him, and restored to the benefits of his former situa- STATE EIGHTS Y3 tion, although the highest judicial authority should see the most sufficient cause for it. But, in the last place, it can never be admitted that the removal of aliens, authorized by the act, is to be considered, not as punishment for an offence, but as a measure of precaution and prevention. If the ban- ishment of an alien from a country into which he has been invited as the asylum most auspicious to his happiness, — a country where he may have formed the most tender connections; where he may have invested his entire property, and acquired property of real and permanent, as well as the movable and temporary kind ; where he enjoys, under the laws, a greater share of the blessings of personal security, and personal liberty, than he can elsewhere hope for ; and where he may have nearly completed his proba- tionary title to citizenship; if, moreover, in the exe- cution of the sentence against him, he is to be exposed, not only to the ordinary dangers of the sea, but to the peculiar casualties incident to a crisis of war and of unusual licentiousness on that element, and possibly to vindictive purposes, which his emigration itself may have provoked ; — if a banishment of this sort be not a punishment, and among the severest of punish- ments, it will be difficult to imagine a doom to which the name can be applied. And if it be punishment, it will remain to be inquired, whether it can be con- stitutionally inflicted, on mere suspicion, by the single will of the Executive magistrate, on persons convicted of no personal offence against the laws of U A STUDY IN the land, nor involved in any offence against the law of nations, charged on the foreign State of which they are members. One argument offered in justification of this power exercised over aliens is, that, the admission of them into the country being of favor, not of right, the favor is at all times revocable. To this argument it might be answered, that, allowing the truth of the inference, it would be no proof of what is required. A ques- tion would still occur whether the Constitution had vested the discretionary power of admitting aliens in the Federal government or in the State governments. But it cannot be a true inference, that, because the admission of an alien is a favor, the favor may be revoked at pleasure. A grant of land to an indi- vidual may be of favor, not of right ; but the moment the grant is made, the favor becomes a right, and must be forfeited before it can be taken away. To pardon a malefactor may be a favor, but the pardon is not, on that account, the less irrevocable. To admit an alien to naturalization is as much a favor as to admit him to reside in the country ; yet it cannot be pretended that a person naturalized can be deprived of the benefits any more than a native citizen can be disfranchised. Again, it is said that, aliens not being parties to the Constitution, the rights and privileges which it secures cannot be at all claimed by them. To this reasoning, also, it might be answered that, although aliens are not parties to the Constitution, it STATE EIGHTS 15 does not follow that the Constitution has vested in Congress an absolute power over them. The parties to the Constitution may have granted, or retained, or modified, the power over aliens, without regard to that particular consideration. But a more direct reply is, that it does not follow, because aliens are not parties to the Constitution, as citizens are parties to it, that, whilst they actually conform to it, they have no right to its protection. Aliens are not more parties to the laws than they are parties to the Constitution ; yet it will not be disputed that, as they owe, on one hand, a temporary obedi- ence, they are entitled, in return, to their protection and advantage. If aliens had no rights imder the Constitution, they might not only be banished, but even capitally pun- ished, without a jury or the other incidents to a fair trial. But so far has a contrary principle been car- ried, in every part of the United States, that, except on charges of treason, an alien has, besides all the common privileges, the special one of being tried by a jury, of which one-half may be also aliens. It is said, further, that, by the law and practice of nations, aliens may be removed, at discretion, for offences against the law of nations ; that Congress are authorized to define and punish such offences ; and that to be dangerous to the peace of society is, in aliens, one of those offences. The distinction between alien enemies and alien friends is a clear and conclusive answer to this argu- 76 A STUDY IN ment. Alien enemies are under the law of nations, and liable to be punished for offences against it- Alien friends, except in the single case of public min- isters, are under the municipal law, and must be tried and punished according to that law only. This argument, also, by referring the alien act to the power of Congress to define and punish offences against the law of nations, yields the point that the act is of a 'penal, not merely of a preventive operation. It must, in truth, be so considered. And if it be a penal act, the punishment it inflicts must be justified by some offence that deserves it. Offences for which aliens, within the jurisdiction of a country, are punishable, are — first, offences com- mitted by the nation of which they make a part, and in whose offences they are involved; secondly, offences committed by themselves alone, without any charge against the nation to which they belong. The first is the case of alien enemies ; the second, the case of alien friends. In the first case, the offending nation can- not otherwise be punished than by war, one of the laws of which authorizes the expulsion of such of its members as may be found within the country against which the offence has been committed. In the second case — the offence being committed by the individual, not by his nation, and against the municipal law, not against the law of nations — the individual only, and not the nation, is punishable; and the punishment must be conducted according to the municipal law, not according to the law of nations. Under this view STATE EIGHTS YY of the subject, the act of Congress for the removal of alien enemies, being comformable to the law of nations, is justified by the Constitution; and the "act" fcr the removal of alien friends, being repug- nant to the constitutional principles of municipal law, is unjustifiable. Nor is the act of Congress for the removal of alien friends more agreeable to the general practice of nations than it is within the purview of the law of nations. The general practice of nations distin- guishes between alien friends and alien enemies. The latter it has proceeded against, according to the law of nations, by expelling them as enemies. The former it has considered as under a local and tem- porary allegiance, and entitled to a correspondent protection. If contrary instances are to be found in barbarous countries, under undefined prerogatives, or amid revolutionary dangers, they will not be deemed fit precedents for the Government of the United States, even if not beyond its constitutional authority. It is said that Congress may grant letter's of marque and reprisal ; that reprisals may be made on persons as well as property ; and that the removal of aliens may be considered as the exercise, in an in- ferior degree, of the general power of reprisal on persons. Without entering minutely into a question that does not seem to require it, it may be remarked that reprisal is a seizure of foreign persons or property, with a view to obtain that justice for injuries done 78 A STUDY IN by one State, or its members, to another State, or its members, for which a refusal of the aggressors re- quires such a resort to force, under the law of nations. I ^Ok\ UNIVERSITY OF CALIFORNIA LIBRARY Los Angeles This book is DUE on the last date stamped below. *^ 1^ \s\ iQpf^ iRV 30 ^986 4^Hi[ REC'OYRt. APR03TK' %#^- " c^r^ .QQ^-^ *_ -^^AliVJiaiH^^ ^yommw^ ^rjnnwv.cm:# -///o,.. . ... ..a--?* 'oaj/\mii3i»' ^ ^^ILIBRARYQ^ ?/C y'^ ^,!/0JllVJjO^ ^ ^0FCA1IF0%. /^ ^lOSANCElfj^ JK311 .M78s ame-unive .^ ^ L 009 568 755 4 ^ J ft U o5 ■<^ %a3AiNn-3ftv^ ^^^AHvaaiH^ ^OFCAIIFO/?^ ^OFCAIIFO/?,^ '^. ^ ^ 0/:. <^Hmmo/:. 1^ '^' ,\WEUNIVER% v^lOSANGElf/^