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A Constitutional History of the United States
Chapter XXVI - The War of 1812
by McLaughlin, Andrew C.

After long years of vexation and dispute, after attempts at peaceful coercion of the warring nations of Europe, after diplomatic controversy and failure of formal protest, war finally came. It was brought on partly by the "war hawks" of the south and west under the leadership of Henry Clay. It found its main support in the western regions from New Hampshire to Georgia; it was supported by an enthusiastic group in the farther south;[1] and it made its special appeal to the younger men of a new generation who were less timid than their elders, more appreciative of national dignity, and less influenced by a pet prejudice against one or the other of the European belligerents. The congressional vote disclosed a dangerous absence of unanimity. In the House, seventy-nine voted for war; forty-nine for peace. In the Senate, nineteen voted for war, thirteen for peace. Furthermore, the voting disclosed sectional diversity; representatives of the states north and east of New Jersey opposed the war; the far south and the west were solidly for war.[2] In other words, the sections suffering the least from the British navy and having little commerce to be protected were ready for a conflict to avenge attacks upon American rights on the seas. Some of the more sanguine spirits were out for conquest and expansion.

In a war thus begun there was bound to be trouble. Sectionalism and partisan suspicion were prevalent and were soon made perilously evident.[3] New England provincialism was prepared to display itself [] the privations of the struggle added to the discontent which soon became clamorous and denunciatory. Complaints were directed against a war which the New Englanders believed was actuated by an unreasonable hatred of Britain and a detestable devotion to France. In the minds of the angry malcontents there lurked the suspicions and forebodings which have already been mentioned: dislike of Jeffersonian democracy and all its progeny; distrust of the south and the west; objection to restrictions which appeared to be totally devastating to commerce; and in addition, the rank injustice of enumerating three-fifths of the slaves as the basis of representation, for that gave the southerners power in the government to be used in combating the interests of the free states.

We shall have to confine ourselves to a study of the few leading protests of the New England states during the war with the purpose of considering their constitutional theory. A critical question arose almost as soon as war was declared. Did the President of the United States, or anyone by his order, have the legal authority to summon the state militia and place it under national military officers? Who was to judge when the emergency had arisen justifying the summons? In Massachusetts the problem was turned over to the supreme judicial court for an opinion (August 5, 1812).[4] The judges, in reply, referred to the constitutional right of the federal government to use the state militia for three specific purposes — executing the laws of the union, suppressing insurrections, and repelling invasions; "but no power is given," they said, "either to the President or to Congress, to determine that either of the said exigencies do in fact exist." As this power was not delegated to the federal government and not prohibited to the states, it was reserved to the states. The President, the justices concluded, may exercise the command of the militia, when properly and lawfully acting in the service of the United States, but they knew "of no constitutional provision authorizing any officer of the army of the United States to command the militia, or authorizing any officer of the militia to command the army of the United States."[5] A similar position was taken by other New England states. Connecticut [6] declared that that state was a free, sovereign, and independent state, that the United States were a confederacy of states, and that "we are a confederated and not a consolidated republic. The governor of this state is under a high and solemn obligation, 'to maintain the lawful rights and privileges thereof, as a sovereign, free and independent state,' as he is 'to support the constitution of the United States'.... The same constitution, which delegates powers to the general government, inhibits the exercise of powers, not delegated, and reserves those powers to the states respectively." The reader may know exactly what all this implies; the writer cannot be sure. What is meant, for example, by "a confederated ... republic"? He can but suggest that possibly the free, sovereign state had surrendered a portion, but only a portion, of her sovereignty. Rhode Island followed; the Governor, having summoned a council of war — at least he so named it — asked who was to be the judge, and the council, without a dissenting voice, decided that the power belonged to the Executive of the state.[7] The Governor of Vermont, the next year (1813), emphatically denied that the "whole body of the militia" could "by any kind of magic" at once be transformed "into a regular army for the purpose of foreign conquest...." But there were some persons who disapproved of these doctrines, peculiarly dangerous in the winter of 1813-1814; the Governor's position was supported by only a narrow majority in the Vermont assembly (96 to 89), and when he attempted to recall the militia which had been ordered from "our frontiers", the troops refused to obey his orders and sent back a defiant reply: "We will not obey, but will continue in the service of our country till discharged." [8] Commenting upon this state of affairs, the legislature of New Jersey viewed with contempt and abhorrence the "ravings of an infuriated faction," whether they came from a "maniac governor" or from "discontented or ambitious demagogues...." [9]

In opposition to the new embargo (1813) the Massachusetts General Court adopted a report of a committee, known as "Lloyd's Report", and a series of resolutions.[10] Here we find assertions similar to those already quoted. The whole document deserves more careful study than can be presented here. "The sovereignty reserved to the States," the report declares, "was reserved to protect the Citizens from acts of violence by the United States, as well as for purposes of domestic regulation. We spurn the idea that the free, sovereign and independent State of Massachusetts is reduced to a mere municipal corporation, without power to protect its people, and to defend them from oppression, from whatever quarter it comes." Reference is made to the remedy proposed by Madison, when he led the "Legislature of Virginia into an opposition, without any justifiable cause;" he was supposed to "understand the principles of our concurrent Sovereignty...." What was meant by "sovereignty reserved to the States"? What was meant by "concurrent Sovereignty"? Did it mean sovereignty held concurrently by state and national governments, or held concurrently by the several states?

The proposed conscription bill brought forth denunciation from Connecticut; the measure was attacked as "subversive of the rights and liberties of the people of this state, and the freedom, sovereignty, and independence of the same, and inconsistent with the principles of the constitution of the United States."[11] An act was passed by the state (January, 1815) authorizing and directing judges to discharge on habeas corpus all minors enlisted without the consent of their parents or guardians under the terms of the Enlistment of Minors Act.[12] We may notice here that at a much later date (1827) the question of the right to call forth the militia was passed on by the Supreme Court of the United States, and, as far as judicial decision can give sanction, established the president's right to judge. The constitutionality of conscription was formally announced in 1918.[13]

Conditions were distressing in the year 1814; so incapable was the government to wage war effectively when it had to meet distrust and state jealousy at every turn, that some of the states took measures for building up state armies for their own defense against British forces.[14] The end of the incoherence and vociferous complaint came only with the end of the war; but before it closed, discontent had reached such a state in New England that Massachusetts asked for a convention of the New England states at Hartford to consider methods of defense and to discuss the advisability of proposing amendments to the Constitution. "This Legislature", said the Massachusetts legislature's circular letter of October 17, 1814, "is content, for its justification to repose upon the purity of its own motives, and upon the known attachment of its constituents to the national union, and to the rights and independence of their country." [15] When the convention met (December 15, 1814), twenty-five delegates were in attendance. Massachusetts, Connecticut, and Rhode Island were officially represented, and two counties in New Hampshire sent delegates. One delegate from a Vermont county was later admitted.

The result of the convention was a series of resolutions. They began by recommending to the legislatures of the states represented in the convention to pass measures to protect their citizens from the operation of unconstitutional acts subjecting the militia or other citizens to forcible drafts or impressments. They recommended that the legislatures request the government of the United States to consent to some arrangement whereby the said states could separately or in concert be empowered to defend themselves against the enemy, and a reasonable portion of the taxes collected within the states be paid into their treasuries. The states represented in the convention were advised to prepare their militia for effective service and to employ them, upon the request of the governor "of either of the other States", in assisting "the State ... making such request to repel any invasion thereof which shall be made or attempted by the publick enemy."

Seven amendments to the federal Constitution were proposed. All of these proposals were mild and gentle rather than imperious demands from self-sufficient, totally sovereign states. Some of them were the expression of New England's distrust of Virginia and the west; but there was no flat assertion of the right to break up the union, no threat of such intention, no direct declaration of a state's right to judge of constitutional power, no announcement of sovereignty or even qualified sovereignty, but rather an appeal for modification of those constitutional provisions which, just then, seemed to bear with peculiar severity upon the New England states.[16] When the messengers bearing these plaintive resolutions reached Washington, the crisis had passed; peace was at hand; amid the general hysterical rejoicing the proposals of the Hartford envoys appeared already antiquated; no one was in a mood for lamentation or desired to be reminded of the part played by the discontented and the mutinous. The very name of Hartford convention came ere long to be a term of reproach.

The resolutions of the convention, because of what they did not say, are a strong argument for the assertion that the states did not consider themselves sovereign, legally free from all restraint. It is quite impossible to conceive of sovereign members of the family of nations presenting their complaints and proposals in any such manner and in any such terms. But be this as it may, the whole course of .New England opposition during the war and the ten years preceding disclosed how feeble were the sentimental bonds holding the sections together. Patriotism is a sentiment, not a legal contrivance; and the simple fact is that America had not as yet developed a degree or quantity of sentimental devotion fitting it to meet great crises with calm assurance and bravery. The days of deeper and more resolute patriotism were ahead; but, strangely — though no more strangely than other paradoxes in history — , the war had the effect of nationalizing the people. The anxieties and the bickerings of the war were soon forgotten; at least they were not remembered as reflections on the loyalty of the people-at-large and the effectiveness of the nation; the reproach and the stigma attaching to opposition indicated a newly-awakened zeal and a new appreciation of obligation to country.

The position taken by the New England states during the war appears to be more advanced than the stand taken against the embargo. Suffering and irritation brought forth stronger assertions concerning the rights of the states and the restrictions upon the federal government. It may be that various pronouncements were meant literally to assert complete and unmodified sovereignty. Perhaps the excerpts appearing in the preceding pages may convince the reader of such intention. Though only a few excerpts from resolutions have been given, they probably present the most extreme and downright statements concerning the character of the union and the limits of federal authority. No attempt is here made to enter into the question of how far the more radical malcontents, whispering their grievances one to another, were actually wishing or plotting for secession. It has seemed wise to take formal resolutions and public pronouncements as indicative of a more or less common opinion. But would the men of New England, even during the war, have asserted that they were not bound by acts of Congress which were plainly within its constitutional authority? Did they mean by their strident phrases more than the right to judge of the extent of federal authority and the duty to protect that portion of sovereignty which had not been surrendered? Is there much evidence of a theory essentially different from the old Revolutionary doctrine — the right to refuse obedience to illegal acts?[17]

The technical constitutional questions discussed in this chapter may well be considered as of slight importance in comparison with the actual danger of a destruction of the union. That danger is of course a salient constitutional fact; but of even more consequence is the actual continuity of the union; there was enough strength in the structure, shaken though it was to its foundation, to enable it to endure the blasts.

[1] J. W. Pratt, Expansionists of 1812, pp. 10-11, 48-49.

[2] In the House, Massachusetts voted six for and eight against; Connecticut and Rhode Island voted unanimously against, and New York voted three for and eleven against.

[3] Attention is called to "An Address ... to their Constituents, on the subject of the war with Great Britain", which was drawn up by thirty-four members of Congress after the declaration of war. Niles, Weekly Register, July 11, 1812. It appears to have been written by Josiah Quincy. See Edmund Quincy, Life of Josiah Quincy, p. 260. Of interest also are addresses to the people by the houses of the Massachusetts legislature, which, taken on the whole, may perhaps be considered indicative of a fairly conservative temper. The senate said the union was threatened, and asked each person to fulfill his duty as a member of the social compact by "support of the government of his choice." Niles, Weekly Register, July 11, 1812. The house declared the people of Massachusetts were citizens of one common country and were bound to support all constitutional laws until the obnoxious ones were repealed by a change of men. Ibid., August 29, 1812.

[4] " '1st. Whether the commanders in chief of the militia of the several states have a right to determine, whether any of the exigencies contemplated by the constitution of the United States exist; so as to require them to place the militia, or any part of it, in the service of the United States, at the request of the President, to be commanded by him pursuant to acts of Congress?'

" '2nd. Whether, when either of the exigencies exist, authorizing the employing the militia in the service of the United States, the militia thus employed, can be lawfully commanded by any officer, but of the militia, except by the President of the United States?'" Ames, State Documents, no. 2, p. 13.

[5] Ibid., no. 2, pp. 13-15.

[6] August 25, 1812, Ibid., no. 2, pp. 15-18. Italics of the original omitted.

[7] Ibid., no. 2, pp. 18-19.

[8] Ibid., no. 2, pp. 19-21; see J. B. McMaster, A History of the People of the United States, IV, p. 226.

[9] February 12, 1814. Ames, State Documents, no. 2, p. 20.

[10] February 22, 1814. Ibid., no. 2, pp. 25-31.

[11] October, 1814. Ibid., no. 2, p. 32.

[12] Ibid., no. 2, p. 32. The Enlistment of Minors Act was passed December 10, 1814. Ibid.

[13] Martin v. Mott, 12 Wheaton 19 (1827); Selective Draft Law Cases, 245 U. S. 366 (1918).

[14] McMaster, op. cit., IV, pp. 243-245, refers to steps taken by New York, Connecticut, Massachusetts, Maryland, Virginia, South Carolina, Kentucky, and Pennsylvania.

[15] Ames, State Documents, no. 2, pp. 35-36. John Lowell wrote Timothy Pickering, December 3, 1814: "I would have it a treaty, not a constitution. The latter is mere paper, violated at pleasure by interested or ambitious men. But, when a treaty is broken, you know your remedy." Adams, New-England Federalism, p. 414. This is only an interesting piece of evidence that Lowell considered the Constitution to be a constitution and not a treaty.

[16] 1. Representatives and direct taxes to be apportioned according to free population.

2. A two-thirds vote of Congress to be required for the admission of new states.

3. Embargoes to be limited to sixty days.

4. A two-thirds vote of Congress to be required to interdict the commercial intercourse between the United States and any foreign nation.

5. A two-thirds vote of Congress to be required to declare war or authorize hostilities, except in case of invasion.

6. The exclusion of persons "hereafter" naturalized from Congress and any civil office of the United States.

7. Provision against the election of the same person a second time to the presidency and against electing the president from the same state for two successive terms.

Nine states passed resolutions of nonconcurrence. Ames, State Documents, no. 2, pp. 40-42.

[17] For interesting excerpts from newspapers during the war, see F. M. Anderson, "A Forgotten Phase of the New England Opposition to the War of 1812," Mississippi Valley Historical Association Proceedings, VI, pp. 176-188. In some of these excerpts we find declarations concerning state sovereignty which are unusually explicit. A notable statement is an article entitled "A State cannot Rebel," which was presented in the Connecticut Spectator, August 3, 1814. It goes to the limit in proclaiming state sovereignty: "... the state is sovereign, and any attempt to control that sovereignty, is a usurpation." "State sovereignty excludes the possibility of State rebellion: a sovereign state may infract its treaties, but can never rebel...." Ibid., pp. 180-181. Such words are practically in accord with the definition and the conception of sovereignty as later expounded. It may be that even when a writer speaks of the division of sovereignty he believes that the portion surrendered may be recalled. See for example articles in the Columbian Centinel (Boston), November 21, 24, 28, 1814. Ibid., pp. 186-187. Asserting that the states are "'free, sovereign and independent' nations", the writer declares "each State has entered into a solemn compact with all the other States, by which, to a certain extent, and for certain purposes, a portion of State sovereignty is ceded to a general government formed by this union. To that extent, and for those purposes, we owe obedience to the general government; to them our allegiance is secondary, qualified and conditional; to our State sovereignties it is primary, universal and absolute." It is difficult to agree with Professor Anderson in all respects. If, as it appears, he believes the doctrines of Calhoun and Jefferson Davis are to be found in the articles of 1814, he can hardly consistently say (Ibid., p. 188) that the writers of the radical articles "applied without qualification and in a very rigid way the doctrines and conceptions of the social compact political philosophy." The social compact philosophy conceives of divided sovereignty, of the binding effect of compact, and of the founding of a body politic by compact and consent. One of the highly significant facts of Calhoun's philosophy was his total abandonment of the social compact doctrines.


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