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A Constitutional History of the United States
Chapter XXV - Federal and State Differences. Federalist Opposition. The Embargo. The Olmstead Case.
by McLaughlin, Andrew C.

Why did the Federalist leaders object to the terms of the Louisiana treaty? Partly because they would have objected to the annexation of paradise, if the arrangements had been made by Thomas Jefferson; partly because they were growing bitter at the sight of Virginia's domination; partly because they were afraid of the south and were perhaps more afraid of the west where new states were growing up and would ere long rob New England of her powers and influence. To some of the New Englanders, and doubtless to others as well, the specter of democracy appeared menacing and frightful. Government was intended for the wise, the good, and the rich, and the future held nothing but desolation for a country ruled by Jacobins and an ignorant populace.[1]

Then began deliberate but secret whisperings of secession.[2] We shall probably never know just how definite the conspiracy was and just who were implicated. The irascible Pickering, "honest Tim", was foremost and the most confident. "I do not know one reflecting Nov-Anglian", he wrote to Rufus King in 1804, "who is not anxious for the GREAT EVENT at which I have glanced." [3] The difficulty in appraising this declaration as evidence arises from a suspicion of Pickering's judgment, about which no words of praise would be justified. Furthermore, no one would be capable of reflection except a person viewing the world in general and the vices of democracy as Pickering did. George Cabot kept his head, though he was also depressed by the awful spectacle of democracy: "We are democratic altogether", he told Pickering, "and I hold democracy, in its natural operation, to be the government of the worst." [4] But nothing, he believed, could be done until the people felt something real and serious, such as a war with Great Britain, "manifestly provoked by our rulers." [5] The people were not in a state of distress; they were not greatly disturbed or anxious; and yet some of these wise, good, and rich leaders actually seemed to think New England could be led by her fears and forebodings to dissolve the union, although the strongest ground for taking the step must be the democratic theories of the Virginians. It was much like saying to the people, "The Virginians, under the tutelage of Jefferson, trust the people; we do not; therefore all of you should co÷perate with us in destroying the union." The truth appears to be that the conspiracy, despite Pickering's words, was confined to a few; but outside of this rather narrow circle a considerable number were restless and grumbling. When serious hardship arose, many were ready to join in denunciation of the government (1808-1814); then the wise and the good had more material to work with.

In 1804, the plan of the conspiracy leaders included the enticing of New York into the camp of the malcontents; they hoped to do this by bringing Aaron Burr into the fold. In its most positive form this scheme appears to have consisted of making Burr the leader in a secession movement; New York and the New England states were to form a new confederacy. There is really not much evidence of the sober intent to carry this plan to its final consummation. Perhaps the purpose — at all events as a beginning — was to consolidate the northern interests for effective resistance to the Jeffersonian party. The plan, whatever it was, failed. Burr was defeated in the campaign for the governorship of New York, though supported by no small number of Federalists; and when he shot Alexander Hamilton his career and even his capacity for mischief were badly shattered. That the conspirators would have been willing to separate the northern states is fairly certain; but it appears likely that success in building up a northern party by the capture of New York and perhaps other middle states would have satisfied or dulled their ambition for secession until an extreme emergency arose.[6]

There is something peculiarly unattractive in the conduct of these conspiring New Englanders; they were victims of bigoted partisanship. Some of them were attached to the cause of England without sufficient respect for America's own dignity and rights. They were planting their feet to resist movements that were to sweep all obstacles aside from the pathway of democracy, expansion, union, and nationalism. It is not our business, as mere historians, to pronounce democracy, expansion, and nationalism essentially wise and noble; but those opposing these movements were placing themselves outside the currents of the nineteenth century. We must remind ourselves, however, that patriotism was necessarily of slow growth; democratic ideals and the early and emphatic rejection of the doctrines of the wise, the good, and the rich are altogether too much to expect from any set or group who were themselves comfortably established in social position.

At a later day (1828-1829) the career of the Federalist party in the early years of the century was strongly, perhaps one should say stridently, described by John Quincy Adams. The description was the result of a dispute with certain gentlemen of New England who resented his charging Federalist leaders with entertaining plans for dissolving the union:

"This coalition of Hamiltonian Federalism with the Yankee spirit had produced as incongruous and absurd a system of politics as ever was exhibited in the vagaries of the human mind. It was compounded of the following prejudices:

"1. An utter detestation of the French Revolution and of France, and a corresponding excess of attachment to Great Britain, as the only barrier against the universal, dreaded empire of France.

"2. A strong aversion to republics and republican government, with a profound impression that our experiment of a confederated republic had failed for want of virtue in the people.

"3. A deep jealousy of the Southern and Western States, and a strong disgust at the effect of the slave representation in the Constitution of the United States.

"4. A belief that Mr. Jefferson and Mr. Madison were servilely devoted to France, and under French influence." [7]

The relations of America with the warring powers of Europe, especially after 1805, were replete with difficulty. There is no need of our trying to estimate the comparative weight of insults and injuries which the United States suffered on the one side from Britain's ruthless disregard of neutral rights and, on the other, from the sly and insidious attacks of Napoleon. But after the Chesapeake affair (1807) conditions were almost intolerable, though Jefferson continued to bear them — not with light heart and a sunny smile, but to bear them none the less. It is easy enough for us to criticize and to lament the weakness of the administration and the frailty of a divided country; but it is not so easy to say what ought to have been done to preserve the semblance of national self-respect and to preserve it in the presence of virulent partisanship and sectional bitterness. Of course, the elementary difficulty was the absence of thoroughgoing national consciousness, the impelling sense of common interest. Before the trouble was over, the continuity of the union was seriously threatened. And still, as we shall see, when after years of tribulation war actually came, the union did hold together; there was still enough nationalism and patriotism to assure its survival.

In the latter part of 1807 Jefferson saw that something must be done. He decided upon an embargo. When, as a result of French decrees and Britain's orders in council, American ships were in danger of either being quietly confiscated or blown out of the water, was it not wise to hold them safe in their own harbors and allow the shipmasters to fret their souls away in idleness and discontent? [8] He therefore entered upon a terrapin policy; America should withdraw within her shell and look forth from this calm security upon the tribulations of the world.[9] The rapidity with which Congress responded illustrates the authority which Jefferson still wielded, an authority to be rather severely crippled after the embargo had been tried and found wanting. The Senate agreed to the proposal after a few hours of debate. John Quincy Adams exclaimed, "The President has recommended the measure on his high responsibility. I would not consider, I would not deliberate; I would act!" [10] The House took time for consideration but acted promptly. The final vote in the Senate was twenty-two to six; in the House, eighty-two to forty-four.

The act was passed and was signed by the President on December 22, 1807. Early in the next year two supplementary acts were passed to make the measure more sweeping and effective. In the succeeding months preparations were made for armed defense of the country. Money was appropriated for Jefferson's toy gunboats and for fortifications, and provisions were made for building up a small army and for equipping the militia. But it can hardly be said that the days of the embargo were energetically used to prepare for inevitable war. The President hoped that under the peaceful policy of restriction the warring nations of Europe would be brought to their senses, learn to leave American commerce alone, permit the merchantmen to traverse the ocean with their cargoes unmolested, and allow them to reap the fruits which the old world's war provided for an energetic neutral.

All through the weary months of 1808 opposition to the embargo increased; there was occasional violence; the heart of New England gradually hardened. The shipmasters and traders were not prepared placidly to endure the sight of their vessels tied up at the wharves or anchored in the harbors; and the wrath of the men of the northern region, when the embargo interfered with trade across the Canadian border, was not less ominous. The opposition became each day more serious. Jefferson's efforts at enforcement led him on to a position which in some respects resembled that of a dictator in war rather than that of a peaceful leader whose main desire was to allow and secure the placid development of his country. The following is an illustration: "Yours of July 27th", Jefferson wrote to General Dearborn, "is received. It confirms the accounts we received from others that the infractions of the embargo in Maine & Massachusetts are open.... The tories of Boston openly threaten insurrection if their importation of flour is stopped. The next post will stop it. I fear your Governor [Sullivan, himself a Jeffersonian Republican!] is not up to the tone of these parricides, and I hope, on the first symptom of an open opposition to the laws by force, you will fly to the scene and aid in suppressing any commotion." [11]

But perhaps the most significant indication of how nearly the embargo resembled war itself, with many of war's privations and dislocations, or how its enforcement necessitated such orders as might have been endured with courage had a foreign enemy blockaded the coast, is shown by a statement of the harried President when it must have seemed to him that peaceful coercion of the foreigner was proving a failure and was repelling even his own former followers in New England. Writing of conditions at Buckstown, he said to Gallatin: "This is the first time the character of the place had been brought under consideration as an objection. Yet a general disobedience to the laws in any place must have weight towards refusing to give them any facilities to evade. In such a case we may fairly require positive proof that the individual of a town tainted with a general spirit of disobedience, has never said or done anything himself to countenance that spirit." [12]

Gallatin had already written to the President his opinion that if the embargo was to be persisted in, two determinations must be adopted: one, no vessel should be allowed to move without the special permission of the Executive; and, two, the collectors should be given "the general power of seizing property anywhere, and taking the rudders or otherwise effectually preventing the departure of any vessel in harbor, though ostensibly intended to remain there; and that without being liable to personal suits." In other words, customary and essential safeguards for personal property and liberty and the right of individual redress in courts of law must be abandoned.

Such conditions could not continue. The presidential election resulted in the choice of Madison as Jefferson's successor. Jefferson's last annual message (November, 1808) indicates how great a change had, in at least one respect, come over his dream. He actually pointed with a measure of pride and gratification to the fact that the situation "into which we have thus been forced has impelled us to apply a portion of our industry and capital to internal manufactures and improvements." The embargo, as if it were a prohibitory tariff, had in fact driven the Americans, and especially the New Englanders, to enter upon manufacturing; and Jefferson, whose ideal had been a country flourishing in simple productive labor of the farm and plantation, free from the debasing influence of the factory and the scarcely less degrading effect of the countingroom, now looked with satisfaction upon the consoling prospect of an industrial and self-sustaining nation. But once more, flinging stones at Jefferson's inconsistencies serves no purpose. His readiness, however, to see the possibility of a self-sufficient country, with "home manufactures" and internal improvements, is noteworthy because it foreshadowed the efforts and the controversies which arose after the war of 1812 and became the center of heated controversy and constitutional dispute.

Jefferson knew the embargo to be a failure, thanks to the implacable hostility of New England — a hostility which appears not to have been modified by the fact that restriction was laying foundations for new industries. The winter months (1808-1809) were filled with debate and with attack and counterattack; but after more than a year of anxiety and hatred the embargo policy was doomed. In the last trying months Jefferson made little effort to exercise leadership; Madison had been elected to take office in March and Gallatin's skillful hand was still at the helm of the treasury. Josiah Quincy, as if to exemplify the sweetness of Federalist temper, spoke of the retiring President still in office as "a dish of skim-milk curdling at the head of our nation". Some portions of the embargo were temporarily retained, but it was in effect succeeded by nonintercourse with Britain and France. More trouble lay ahead of a country distracted by sectional and factious opposition. War appeared scarcely less perilous than peace.

The constitutional questions which arose during the embargo days now demand brief attention. One objection to the measure was the absence of a time limit. Could prohibition of commercial intercourse be enacted without any provision for termination? The dispute does not merit any agonizing examination. Congress which passed the measure could repeal it. The failure to fix the life of an act does not make it unconstitutional. Of more significance was the denial of congressional power to prohibit commerce under pretense of regulating it. The conclusion laid down by Judge John Davis of the federal district court of Massachusetts appears irrefutable: "Power to 'regulate,' it is said, cannot be understood to give a power to annihilate.... It will be admitted that partial prohibitions are authorized by the expression; and how shall the degree or extent of the prohibition be adjusted but by the discretion of the national government, to whom the subject appears to be committed.... Further, the power to regulate commerce is not to be confined to the adoption of measures exclusively beneficial to commerce itself, or tending to its advancement; but in our national system, as in all modern sovereignties, it is also to be considered as an instrument for other purposes of general policy and interest." [13] Nothing can better illustrate the contradictions of politics than the contention of Federalists that a court should take a stand contrary to their own traditions.

The opposition to the embargo, wherever and however that opposition displayed itself, is important in constitutional history because it brings to our attention the frailty of the union and the danger lest the constitutional system be overthrown. But we are now called upon to consider the nature of the arguments and the declarations put forth in Congress and by state officials; we must endeavor to discover what theory of the union and of the constitutional order was commonly presented by those who attacked the constitutionality of the measure. Before entering upon a brief presentation of a few important documents in this embargo controversy, it may be well to put forth this general thesis: during the years from the adoption of the Constitution, and notably from the Virginia and Kentucky resolutions, until the close of the war of 1812, and indeed for some time later, the central constitutional controversy was not concerning state sovereignty but states' rights; and it was particularly concerned with the question whether the states as individual bodies had the right to judge of their own authority and its extent, or, on the other hand, whether the central government was the judge of its' own powers and the states must quietly accept the conclusions of that government. We can, in the writer's opinion, scarcely overemphasize the weight of the fact that the dissatisfied legislatures, under Federalist control, insisted upon the right of the states to judge; their position is associated closely with the philosophy of the Revolution, with the idea of divided sovereignty, and with the principle of legally limited government. The statement of Jefferson in the Kentucky resolutions was bearing fruit — now, in practice, not quite to his own taste — that the parties to the compact were the ultimate judges of the extent of delegated authority. The Constitution did not in so many words declare where the right to judge rested; controversy and dispute were inevitable; because of the self-consciousness of the individual states, the adherents of the old compact philosophy, as well as the more thoughtless and acrimonious partisans, were intent upon the right of the parties to the compact to decide.

It appears a wrong interpretation, though it is the common one, to find in these protests and denunciations the full embodiment of the doctrine of state sovereignty. Only a careful examination of the doctrines, elaborately outlined by John Taylor and Calhoun at a later day, can bring to light the difference between them and the prevailing political thinking of the earlier decades under the Constitution. Certainly such an examination will disclose how far were the men of the first four decades from fully envisaging the doctrines of state sovereignty as later exposed to view. If there is this essential difference, then we are led astray or are wandering from the path, if we find in every announcement of opposition to national authority a threat of secession as the natural consequence of sovereignty, which remained without modification in the separate states. Any resolution by a state legislature impugning national authority is now looked upon as a piece of presumption; and if we so look upon it, we lose sight of the signal importance of the discussions in our history bearing on the question of the right to judge.[14]

If, when a legislative resolution calls a state a "sovereign" state, we must conclude that it means to assert the state's full and unqualified authority in every particular, then we must believe that in some instances the states did look upon the union as a league and not as a body politic. Much depends upon what was meant by "sovereignty"; and anyone who is to-day at all conversant with the word and its history will not be dogmatic and impose a definition upon the consciousness of state legislators of a century and more ago. We must bear in mind the easy fluency with which at the present time a state is spoken of as "sovereign"; and we must also remember that the doctrine of divided sovereignty was, and probably is, orthodox in the legal creed of constitutionalists.[15] One of the results of loose speech, the prerogative of practical politics, is a confusion of the terms state sovereignty and states' rights.

There can be no question that there were threats of rebellion as well as whisperings about the desirability of breaking away from the contaminating influence of Virginia and Jeffersonism. But the main thought seems to have been that if rebellion should come, it would be a rebellion justified by the national government's violation of legal authority; it would be based in part on the right of individuals to life, liberty, and the pursuit of happiness, and in part on the right of the states to protect their liberty which in certain essentials had not been surrendered by the establishment of a national government with limited powers. We must recognize a clear distinction between opposition to illegal acts and secession from the union on the ground that secession is based upon unalloyed sovereignty. The impressive fact is the absence of a distinct and frank assertion of the legal right to break the union at any time and without demonstration of illegality by the central government. Still it may be that at this time there was coming into the mind of the discontented New Englanders the conception of the Constitution as a treaty, rather than as a compact analogous to the social compact. But during the embargo period the writer has found only slight evidence of that fact.

It is impossible to present here in any detail illustrations of the sort of assertions which were made by the querulous New Englanders during the months that sorely tried their patience. Demonstration by ample quotation, if demonstration be possible, would require not only plenteous quotations, but studious examination of words and phrases within their context. We must be content with only a few brief examples. In Congress, Josiah Quincy, who cannot be looked upon as a timid soul shrinking from announcement of convictions, admitted that the embargo laws were the laws of the land, but he asked, "... who shall deny to a representative of the people the right, in their own favorite tribunal, of bringing your laws to the test of the principles of the Constitution?" Asking what should be the remedy for unconstitutional legislation, "so oppressive upon the mass of the people that it is impossible to wait upon the slow processes of the Judiciary", he answered by saying that the people and the state legislatures were in duty bound not to rebel or to break the union, "but to take the Constitution, that great charter of their liberties, into their consideration, and to strengthen and support its principles by vindicating them from violation."

In January, 1809, in reference to a speech from the Governor of Massachusetts in which he condemned lawless disregard of the embargo, the state senate declared the union "is a confederation of equal and independent states with limited powers...." "We beg leave to observe," the response also said, "that those rights, which the people have not chosen to part with, should be exercised by them with delicacy — only in times of great danger — not with 'distraction and confusion' — not to oppose the laws, but to prevent acts being respected as laws, which are unwarranted by the commission given to their rulers." [16] The house gave similar opinions: "We are unwilling to believe that any division of sentiment can exist among the New England States or their inhabitants as to the obvious infringement of rights secured to them by the Constitution of the United States;.and still more so that any man can be weak or wicked enough to construe a disposition to support that Constitution and preserve the union by a temperate and firm opposition to acts which are repugnant to the first principles and purposes of both, into a wish to recede from the other states.... If ever such suspicions existed they can have arisen only in the minds of those who must be sensible that they had adopted and were persisting in, measures which had driven the people to desperation, by infringing rights which the citizens of Massachusetts conceive to be unalienable, and which they fondly hoped had been inviolably secured to them by the federal compact.... Nothing but madness or imbecility could put at hazard the existence of a 'balanced government, capable of operating and providing for the public good,' unless the administration of that Government, by its arbitrary impositions had endangered or destroyed the very objects for the protection of whch [sic] it had been instituted," [17]

A report and resolutions drawn up by the Massachusetts legislature the next month are somewhat more extreme. The most advanced and threatening assertions are as follows — though only a reading of the whole document can bring out its full meaning: "While the laws continue to have their free course, the judicial courts are competent to decide this question, and to them every citizen, when aggrieved, ought to apply for redress. It would be derogatory to the honour of the commonwealth to presume that it is unable to protect its subjects against all violations of their rights, by peaceable and legal remedies. While this state maintains its sovereignty and independence, all the citizens can find protection against outrage and injustice in the strong arm of the state government." The resolutions declare the embargo and supplementary acts unjust and unconstitutional and not legally binding on the citizens of the state, and announce the willingness of the legislature to co÷perate with any of the other states "in all legal and constitutional measures" for procuring such amendments to the Constitution as would protect commerce and afford permanent security.[18] The resolutions conclude with a reference to the necessity of rescuing "our common country" from impending ruin and of preserving inviolate the union of the states.[19]

No attempt has been made in this chapter to do more than sketch the outlines of a dangerous situation — dangerous to the continuity of the union and to the effective authority of the government. So much depends on the connotation of words that opportunities are offered for differences of opinion concerning the extent to which the theory of unalloyed state sovereignty was held or proclaimed. But one thing is probably evident: the center of the controversy was the question of the state's right to preserve its reserved authority and to resist intrusions upon its field of sovereign power.[20] In the writer's opinion, the fully-equipped doctrine of state sovereignty or the belief in it was, to say the least, not prominent; and we in some respects lose sight of the nature of the controversies during the first forty years of our history under the Constitution unless we appreciate, as already said, the continuity and the persistence of this question as to who had the right to pass final judgment on the extent of a governmental power.

During the years in which there was much dangerous discontent among the New England Federalists, an old controversy broke out anew in Pennsylvania. The dispute began during the Revolution when the committee of appeals of the old Congress, reviewing the decision of a Pennsylvania court, decided that prize money arising from the sale of the sloop Active and her cargo belonged to Gideon Olmstead and other claimants. Pennsylvania refused to abide by the decision. A portion of the proceeds of the sale, in the form of loan-office certificates, subsequently passed into the hands of David Rittenhouse,[21] the state Treasurer, who, however, did not formally commit them to the treasury, and they later passed into the possession of the executrixes of the Rittenhouse estate. In 1803, the federal district court gave personal judgment against the executrixes; but the state was still obdurate; the legislature ordered the Governor to protect the "rights of the state" and the "persons and properties" of the executrixes. The executrixes finally turned the disputed sum into the state, which promised them protection from liability by giving "a sufficient instrument of indemnification...." Olmstead was as persistent as a Connecticut Yankee is entitled to be, and he and his fellows secured in 1809 a mandamus from the federal Supreme Court directing Judge Peters to issue process for carrying out the judgment previously awarded.

In giving the opinion [22] Chief Justice Marshall used the following forceful and characteristic words: "If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery, and the nation is deprived of the means of enforcing its laws by the instrumentality of its own tribunals." The state was not compliant; the militia was called out to prevent service and execution. Armed conflict between federal officers and state troops appeared inevitable; but the federal marshal by a clever ruse succeeded in serving his writ. By this time the state was ready to retreat. The federal authority was amply sustained, for General Bright, who had commanded the militia, and others with him were haled before the federal court, convicted, and sentenced to pay fines and suffer imprisonment for obstructing the court. Madison, who had upheld the national authority, pardoned the condemned men, probably wisely, because they had acted under a mistaken sense of duty.[23]

Resolutions which were passed by the Pennsylvania legislature (April 3, 1809) are especially illuminating.[24] They express a desire that the other states, "who are equally interested in the preservation of the state rights", should understand the position taken by Pennsylvania, and also that the government of the United States should see "that the Legislature, in resisting encroachments on their rights, are not acting in a spirit of hostility to the legitimate powers of the United States' courts; but are actuated by a disposition to compromise, and to guard against future collisions of power, by an amendment to the constitution...." They declare "That, as a member of the Federal Union, the Legislature of Pennsylvania acknowledges the supremacy, and will cheerfully submit to the authority of the general government, as far as that authority is delegated by the constitution of the United States." The senate and house trust "they will not be considered as acting hostile to the General Government, when, as guardians of the State rights, they can not permit an infringement of those rights, by an unconstitutional exercise of power in the United States' courts." Powers are granted to the general government and rights are reserved to the states, but "it is impossible, from the imperfections of language, so to define the limits of each, that difficulties should not some times arise from a collision of powers...." What is needed, therefore, is an amendment to the Constitution establishing a tribunal for the purpose of settling disputed jurisdiction of state and national governments: "To suffer the United States' courts to decide on STATE RIGHTS will, from a bias in favor of power, necessarily destroy the FEDERAL PART of our Government: And whenever the government of the United States becomes consolidated, we may learn from the history of nations what will be the event."

How was this proposal received by the other states? There were then seventeen states in the union, and at least eleven of them disapproved.[25] Virginia's answer is worth noting: a tribunal was already provided for — "the Supreme Court, more eminently qualified ... to decide the disputes aforesaid in an enlightened and impartial manner, than any other tribunal which could be erected." This reply was drawn up twelve years after the famous resolutions of 1798; but Virginians were now in the saddle; a Virginian was President, a Virginian was the Chief Justice, and though Jefferson and other sturdy citizens of the Old Dominion fretted under Marshall's hand, and, before another decade passed, were pouring out vials of their wrath upon him, still it must have been some consolation to Virginians to think that, when all was said, he was one of their own blood. So much depended on local pride, on partisan prejudice, on personal passion, that varieties of constitutional interpretation, instead of a single simple one, came continually to the fore. But the contest in this particular was obviously over the power to judge.

The following year, the Pennsylvania legislature, adopting resolutions in opposition to the renewal of the United States Bank charter, made certain pronouncements more nearly in accord with the idea of complete state sovereignty than did any other state during this period: "The act of union thus entered into being to all intents and purposes a treaty between sovereign states, the general government by this treaty was not constituted the exclusive or final judge of the powers it was to exercise; for if it were so to judge then its judgment and not the constitution would be the measure of its authority." These phrases, though more extreme in their connotations than those of the Kentucky resolutions of an earlier day, are plainly sippings from that perennial fountain. Here, the reader may say, we find the complete and authoritative doctrine of state sovereignty in native nudity. But a careful examination of even this document awakens doubt of that interpretation, if it does not actually strengthen the belief that the critical matter was the right to judge. The resolutions speak of the federal Constitution's adoption by the "people of the United States", [26] of the establishment of a general government for special purposes, of the reservation of rights riot delegated, and of the anxiety "to secure an administration of the federal and state governments, conformably to the true spirit of their respective constitutions...." [27] One is left, therefore, with at least a vague impression that these legislators looked upon the Constitution of the United States as a constitution.

The admission of Louisiana into the union (1812) called forth bitter opposition from the New Englanders who feared the growing ascendancy of the south and the increase of western power. The easterners saw their own section submerged by the rising tide of other sections; they saw their influence and authority flouted and their interests subjected to slave-owners and intellectual incompetents. The speech of Josiah Quincy, delivered while admission was under discussion, is well-known: "... if this bill passes," he exclaimed, "the bonds of this Union are virtually dissolved; that the States which compose it are free from their moral obligations, and that, as it will be the right of all, so it will be the duty of some, to prepare definitely for a separation — amicably if they can, violently if they must." [28] He spoke of the analogy between a political partnership and an ordinary business partnership; he did not desire to see a new partner admitted; he did not believe the people adopting the Constitution intended to grant political power to the people of Louisiana. It appears rather unwise to take too seriously the exclamations of excited forensic oratory, though on this occasion the arguments against the right of Congress to admit states from territory, which was not held by the union when the Constitution was adopted, are not totally absurd and unreasonable. At a later date (June 16, 1813), a committee of the Massachusetts senate drew up a report [29] which strongly set forth objections to the admission of states "created in territories, beyond the limits of the old United States.... It is, in truth, nothing less than the power to create in foreign countries, new political sovereignties, and to divest the old United States of a proportion of their political sovereignty, in favor of such foreigner." [30]

[1] "Like death it [a democracy] is only the dismal passport to a more dismal hereafter", wrote Fisher Ames, who was probably the most doleful of all the malcontents. Letter from Ames to Christopher Gore, October 3, 1803, in Fisher Ames, Works (Seth Ames, ed.), I, p. 324. "Our country is too big for union, too sordid for patriotism, too democratic for liberty.... Its vice will govern it, by practising upon its folly." Letter from Ames to Thomas Dwight, October 26, 1803, in Ibid., I, p. 328. "The federalists must entrench themselves in the State governments, and endeavor to make State justice and State power a shelter of the wise, and good, and rich, from the wild destroying rage of the southern Jacobins." Letter from Ames to Christopher Gore, December 13, 1802, in Ibid., I, p. 310.

[2] The chief sources are Henry Adams, Documents Relating to New-England Federalism. 1800-1815; H. C. Lodge, Life and Letters of George Cabot; Works of Fisher Ames (Seth Ames, ed.), I; J. C. Hamilton, History of the Republic of the United States, VII; W. P. and J. P. Cutler, Life, Journals and Correspondence of Rev. Manasseh Cutler, especially II, pp. 86-87, 140.

[3] Adams, New-England Federalism, p. 352.

[4] Ibid., p. 346.

[5] Ibid., p. 347.

[6] For a succinct statement, see S. E. Morison, The Life and Letters of Harrison Gray Otis, I, pp. 264-267. Hamilton's opinion was as follows: the election of Burr would reunite the scattered fragments of the Democratic party and reŰnforce it by a detachment of Federalists under his leadership; in New England the ill opinion of Jefferson and jealousy of the ambition of Virginia were leading men to think of dismembering the union. "It would probably suit Mr. Burr's views to promote this result, to be the chief of the Northern portion...." Hamilton, Works (H. C. Lodge, ed.), VIII, pp. 374-375. Cabot believed in 1804 that a war with Britain might be a signal for the break-up of the union. See ante, note 5. "... but, if they had involved us by their folly and baseness in a war with Great Britain, I believe New England might be roused to do any thing which her leading men should recommend." Letter from Cabot to King, March 17, 1804, in Adams, New-England Federalism, p. 363. But see a letter from Cabot to Pickering, October 5, 1808, in Ibid., p. 373.

[7] Adams, New-England Federalism., p. 284. Pickering, who was ready to believe anything sufficiently damaging to his opponents, said in 1812 that he had no doubt that French money had been distributed to bring on the war against Britain. Letter from Pickering to Edward Pennington, July 12, 1812, in Ibid., p. 388. On the secession movements, 1804-1814, Morison makes the following comments: "The secession movement of 1804 was a select conspiracy, confined to a handful of extremist leaders; the movements of 1808 and 1814 were entered into by the entire Federal party in New England, and their object was not disunion, but, in the one case, relief from the embargo, and in the other, peace and protection to New England interests. Pickering, indeed, attempted to steer the Hartford Convention into a disunion course, but failed. The conspiracy of 1804 was an isolated affair, the real significance of which is personal — the example it offers of the manner in which political Jesuits throw aside every scruple to attain their ends." Morison, op. cit., I, pp. 269-270.

[8] Jefferson's special message (December 18, 1807) indicates at least this main purpose. Jefferson, Works (federal ed.), X, pp. 530-531.

[9] "When the great American tortoise", declared John Randolph, with characteristic venom in a speech, at a later date, "draws in his head, as this nation laying an embargo has been compared to this animal, you do not see him trotting along; he lies motionless on the ground; it is when the fire is put on his back, that he makes the best of his way, and not till then." April 5, 1808. Annals of Congress, 10 Cong., 1 sess., col. 1963.

[10] So Timothy Pickering reported, at a somewhat later time. "The words were spoken in secret session, but Senator Pickering noted them for future use. Among the antipathies and humors of New-England politics none was more characteristic than this personal antagonism, beginning a new conspiracy which was to shake the Union to its foundations." Henry Adams, History of the United States, IV, p. 173. Adams's treatment of the mission of George Rose is especially entertaining, and the presentation of Pickering's subterraneous operations is illuminating. Ibid., IV, p. 178 ff.

[11] August 9, 1808. Jefferson, Works (federal ed.), XI, pp. 40-41.

[12] November 13, 1808. Jefferson, Writings (H. A. Washington, ed.), V, pp. 386-387.

[13] See Adams, History of the United States, IV, pp. 268-269.

[14] See the chapter on the Virginia and Kentucky resolutions, ante.

[15] "To deny, therefore, a limited sovereignty to a State of the Union, under the Constitution, is, forensically and historically, as incorrect and mischievous as to assert more than a limited sovereignty for the United States under the Constitution. Each is sovereign; but each is sovereign only within the limits traced by the Constitution." D. H. Chamberlain, "The State Judiciary," Constitutional History of the United States as Seen in ... American Law, p. 247. This book is a series of addresses by T. M. Cooley and other eminent jurists. Just how this able lawyer would define "sovereignty" may awaken our curiosity; but he could not — if he thought a moment — define it as complete political authority. Cooley, referring with approval to Jay's opinion in Chisholm v. Georgia, says, "And the deduction was irresistible: the sovereignty of the nation was in the people of the nation, and the residuary sovereignty of each State in the people of each State." Ibid., p. 48.

[16] State Documents on Federal Relations (H. V. Ames, ed.; hereafter referred to as Ames, State Documents), no. 1, p. 28.

[17] Ibid., no. 1, pp. 29-31. Notice also an additional statement to the effect that when a man's liberty is infringed, "if not absolved from his allegiance, he may demand redress, and take all lawful measures to obtain it." p. 32.

[18] February 15, 1809. Ibid., no. 1, pp. 34-35.

[19] The report and resolutions were to be transmitted "to the legislatures of such of our sister states, as manifest a disposition to concur with us in measures to rescue our common country from impending ruin, and to preserve inviolate the union of the states." Ibid., no. 1, p. 36.

[20] Notice even Timothy Pickering writing, "Pray look into the Constitution, and particularly to the10th article of the amendments. How are the powers reserved to the States respectively, or to the people, to be maintained, but by the respective States judging for themselves and putting their negative on the usurpations of the general government?" Letter from Pickering to Christopher Gore, January 8, 1809, in Adams, New-England Federalism, p. 378. Italics of the original omitted. When the Constitution was before the people for adoption, Pickering (December 24, 1787) made assertions concerning the nature of the Constitution which were orthodox at that time, i.e., that there was "partial consolidation": "The 'Federal Farmer' admits the necessity of the 'partial consolidation,' as the only plan of government which can secure the freedom and happiness of this people; and yet, when the Convention have proposed a partial consolidation, he says they evidently designed thereby to effect ultimately an entire consolidation!" Quoted in C. W. Upham, The Life of Timothy Pickering, II, p. 355.

[21] The certificates were afterwards "funded by him, in his own name, under the act of Congress making provision for the debt of the United States.... These certificates remained in the private possession of David Rittenhouse ... and after his death they remained in possession of his representatives...." United States v. Judge Peters, 5 Cranch 115, 138 (1809).

[22] Ibid., 136.

[23] The historical incidents are discussed by J. F. Jameson, "The Predecessor of the Supreme Court," Essays in the Constitutional History of the United States (J. F. Jameson, ed.), p. 17 ff.; by J. C. B. Davis, in an appendix to 131 U. S., p. XXIX ff.; Richard Hildreth, The History of the United States of America (revised ed.), VI, pp. 155-164. Of interest in this connection is a similar incident, which called forth protest from New Hampshire against the findings of the federal judiciary. Penhallow et al. v. Doane's Administrators, 3 Dallas 54 (1795). New Hampshire's protests are in Ames, State Documents, no. 1, pp. 11-15. The contention plainly was that by the adoption of the Constitution the state did not then intend to admit that the "confederation was in force prior to March, 1781, or that the federal constitution existed with respect to New Hampshire before June, 1788."

[24] Ames, State Documents, no. 2, pp. 2-4.

[25] New Hampshire, Massachusetts, Vermont, New Jersey, Maryland, Virginia, North Carolina, Georgia, Ohio, Kentucky, Tennessee. Ibid., no. 2, p. 5. See Pennsylvania's further declaration in behalf of an impartial tribunal, 1810. Ibid., no. 2, pp. 7-8. Various resolutions are in the journals of the Pennsylvania senate and house, 1809-1810. Of special interest are the resolutions in the Journal of the Senate, XX, p. 376 ff., and in the Journal of the House, XX, pp. 250-254, 403-424. We should notice, however, that a minority of the legislature strongly attacked the doctrine of the right to resist the federal courts. But the minority likewise accepted the principle of divided authority.

[26] The one expression which Calhoun abhorred was this. The acknowledgment that there was a people of the United States violated his principles.

[27] Ames, State Documents, no. 2, pp. 8-10; American State Papers, Finance, II, p. 467. Virginia was opposed to the Bank. The stand taken by W. B. Giles in Congress deserves attention. His natural inclination was not toward nationalism. His stand was distinctly upon the idea of divided sovereignty. See Annals of Congress, 11 Cong., 3 sess., col. 181 ff.

[28] January 14, 1811. Annals of Congress, 11 Cong., 3 sess., col. 525. Edmund Quincy, writing his father's biography in 1867, says of this speech "that the secessionism it contains is a very different doctrine from that preached in later times." This may appear a pious example of wishful thinking; but an examination of the whole speech will lead the reader to think that there was some ground for the statements of the biographer. See Life of Josiah Quincy, p. 213.

[29] Ames, State Documents, no. 2, pp. 21-24.

[30] Though the writer has been over the main documents time and time again and examined them critically, he should acknowledge the aid of a thesis by M. C. Kennedy, States Rights, 1807-1815 (MS. in the library of the University of Chicago), an able and careful examination of the available material.


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