A Constitutional History of the United States Chapter XXVI - The War of 1812 byMcLaughlin, 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.
