Part 42

Now, gentlemen, it is quite true that the local legislatures were subject to the revision, as to their statutes, to a certain extent, of the sovereign power of England. The king had the veto power--as he had the veto power over Acts of Parliament--the power of revision--and other powers, as may have been the casual outgrowth of the forms of different charters. In an evil hour--as these Colonies, from being poor, despised, and feeble communities, gained a strength and numbers that attracted the attention of the Crown of England, as important and productive communities, capable of being taxed--the Government undertook to assert, as the principle of the Constitution of England, that the king and Parliament, sitting in London, could tax as they pleased, when they pleased, and in the form, and on the subjects, and to the amount, they pleased, the free people of these Colonies. Now, you will understand, there was not an incidental, a casual, a limited subject of controversy, of right, of danger, but there was an attack upon the first principles of English liberty, which prevented the English people from being the subjects of a despot, and an attempt to make us subject to a despotic Government, in which we took no share, and in which we had no control of the power of the purse. What matter did it make to us that, instead of there being a despotic authority, in which we had no share or representation of vote or voice, exercised by the king alone, it was exercised by the king and Parliament? They were both of them powers of Government that were away from us, and in which we had no share; and we, then, forewarned by the voices of the great statesmen whose sentiments have been read to you, saw in time that, whatever might be said or thought of the particular exercise of authority, the proposition was that we were not entitled to the privilege and freedom of Englishmen, but that the power was confined to those who resided within the four seas--within the islands that made up that Kingdom--and that we were provinces which their King and their Parliament governed. Therefore, you may call it a question of taxation, and my friend may call it "a question of three pence a pound on tea;" but it was the proposition that the power of the purse, in this country, resided in England. We had not been accustomed to it. We did not believe in it. And our first revolutionary act was to fight for our rights as Englishmen (subject to the King, whose power we admitted), and to assert the rights of our local legislature in the overthrow of this usurpation of Parliament. Now, of the course which we took before we resorted to the violence and vehemence of war, I shall have hereafter occasion to present you, very briefly and conclusively, a condensed recital; but this notion, that we here claimed any right to rise up against a Government that was in accordance with our rights, and was such as we had made it, and as we enjoyed it, equally with all others over whom it was exercised--which lies at the bottom of the revolt in this country--had not the least place, or the opportunity of a place, in our relations with England. We expected and desired, as the correspondence of Washington shows--as some of the observations of Hamilton, I think, read in your presence by the learned counsel, show--as the records of history show--we expected to establish security for ourselves under the British Crown, and as a part of the British Empire, and to maintain the right of Englishmen, to wit, the right of legislation and taxation where we were represented. But the parent Government, against the voice and counsels of such statesmen as Burke, and the warnings of such powerful champions of liberty as Chatham, undertook to insist, upon the extreme logic of their Constitution, that we were British subjects, and that the king and Parliament governed all British subjects; and they had a theory, I believe, that we were represented in Parliament, as one English jurist put it, in the fact that all the grants in all the Colonies were, under the force of English law, "to have and to hold, as the Manor of East Greenwich," and that, as the Manor of East Greenwich was represented in Parliament, all this people were represented. But this did not suit our notions. The lawyers of this country, the Judges of this country, and many of the lawyers of England, as mere matter of strict legal right, held that the American view of the Constitution of England, and of the rights of Englishmen who enjoy it, was the true one. But, at any rate, it was not upon an irritation about public sentiment; nor was it upon the pressure of public taxes; nor because we did not constitute a majority of Parliament; nor anything of that kind; but it was on clear criteria of whether we were slaves, as Hamilton presents it, or part of the free people of a Government. We, therefore, by degrees, and somewhat unconscious, perhaps, of our own enlightened progress, but yet wisely, fortunately, prosperously, determined upon our independence, as the necessary means of securing those rights which were denied to us under the Constitution of our country.

Now, there was not the least pretence of the right of a people to overthrow a Government because they so desire--which seems to be the proposition here--because they think they do not like it--and because there are some points or difficulties in its working they would like to have adjusted. No; it was on the mere proposition that the working of the administration in England was converting us into subjects, not of the Crown, with the rights of Englishmen, but subjects of the despotic power of Parliament and the king of England. Now, how did we go to work, and what was the result of that Revolution? In the first place, did we ever become _thirteen_ nations? Was Massachusetts a nation? Was South Carolina a nation? Did either of them ever declare its independence, or ever engage in a war, by itself and of itself, against England, to accomplish its independence? No, never; the first and preliminary step before independence was union. The circumstances of the Colonies, we may well believe, made it absolutely necessary that they should settle beforehand the question of whether they could combine themselves into one effectual, national force, to contend with England, before they undertook to fight her. It was pretty plain that Massachusetts could not conquer England, or its own independence, and that Virginia could not do so, and that the New England States alone could not do it, and that the Southern States alone could not do it. It was quite plain that New York, Pennsylvania and New Jersey, alone, could not do it; and, therefore, in the very womb, as it were, and preceding our birth as a nation, we were articulated together into the frame of one people, one community, one nationality. Now, however imperfectly, and however clumsily, and however unsuitably we were first connected, and however necessary and serious the changes which substituted for that inchoate shape of nationality the complete, firm, noble and perfect structure which made us one people as the United States of America, yet you will find, in all the documents, and in all the history, that there was a United States of America, in some form represented, before there was anything like a separation, on the part of any of the Colonies, from the parent country, except in these discontents, and these efforts at an assertion of our liberties, which had a local origin.

The great part of the argument of my learned friend rests upon the fact that these States were nations, each one of them, once upon a time; and that, having made themselves this Government, they have remained nations, in it and under it, ever since, subject only to the Confederate authority, in the terms of a certain instrument called a compact, and with the reserved right of nationality ready, at all times, to spring forth and manifest itself in complete separation of any one of the States from the rest. And I find, strangely enough, in the argument as well of the promoters of these political movements at the South as in the voice of my learned friends who have commented on this subject, a reference to the early diplomacy of the United States, as indicative of the fact that they were separate and independent communities--regarded as such by the contracting Powers into connection with whom they were brought by their treaties and conventions, and, more particularly, in the definitive treaty whereby their independence was recognized by Great Britain. Now, if the Court please, both upon the point (if it can be called a point, connected with your judicial inquiry) that these Colonies were formed into a Union before they secured their national independence, and that there was no moment of time wherein they were not included, either as united Colonies, under the parental protection of Great Britain, or as united in a struggling Provisional Government, or in the perfect Government of the Confederation, and, finally, under the present Constitution--I apprehend there can be no doubt that our diplomacy, commencing, in 1778, with the Treaty of Alliance with France, contains the same enumeration of States that is so much relied upon by the reasoners for independent nationality on the part of all the States. In the preamble to that Treaty, found at page 6 of the 8th volume of the Statutes at Large, the language was: "The Most Christian King and the United States of North America, to wit, New Hampshire, &c., having this day concluded," &c. The United States are here treated as a strictly single power, with whom his Most Christian Majesty comes into league; and the credentials or ratifications pursued the same form. The Treaty of Commerce with the same nation, made at the same time, follows the same idea; and the Treaty with the Netherlands, made in 1782, contains the same enumeration of the States, and speaks of each of the contracting parties as being "countries." The Convention with the Netherlands, on page 50 of the same volume, and which was a part of the same diplomatic arrangement, and made at the same time, speaks, in Article 1, of the vessels of the "two nations." Now, the only argument of my learned friends, on the two treaties with Great Britain, of November, 1782, and September, 1783, is, that they are an agreement between England and the thirteen nations; and it is founded upon the fact, that the United States of America, after being described as such, are enumerated under a "viz." as being so many provinces. Now, the 5th and 6th articles of that Convention of 1782 with the Netherlands speak of "the vessels of war and privateers of one and of the other of the two nations." So that, pending the Revolution, we certainly, in the only acts of nationality that were possible for a contending power, set ourselves forth as only one nation, and were so recognized. And the same views are derivable from the language of the Provisional Treaty with Great Britain of November, 1782, and of the Definitive Treaty of Peace with Great Britain of September, 1783, which Treaties are to be found at pages 54 and 80 of the same 8th volume. The Preamble to the latter Treaty recites:

"It having pleased the Divine Providence to dispose the hearts of the most serene and most potent Prince George the Third, &c., and of the United States of America to forget all past misunderstandings and differences that have unhappily interrupted the good correspondence and friendship, which they mutually wish to restore; and to establish such a beneficial and satisfactory intercourse '_between the two countries_, &c.'"

And then comes the 1st article, which is identical in language with the Treaty with the Netherlands, of 1782:

"His Britannic Majesty acknowledges the said United States, viz., New Hampshire, &c., to be free, sovereign and independent States."

The United States had previously, in the Treaty, been spoken of as one country, and the language I have just quoted is only a statement of the provinces of which they were composed; for, we all know, as matter of history, that there were other British provinces that might have joined in this Revolution, and might, perhaps, have been included in the settlement of peace; and this rendered it suitable and necessary that the provinces whose independence was acknowledged should be specifically described. But, in the 2d article, so far from the separateness of the nationalities with which the convention was made being at all recognized, that important article, which is the one of boundaries, goes on to bound the entire nation as one undivided and integral territory, without the least attention to the divisions between them. It may be very well to say that England was only concerned to have one continuous boundary, coterminous to her own possessions, described, and that that was the object of the geographical bounding; but the entire Western, Eastern, and Southern boundaries are gone through as those of one integral nation. The 3d article speaks, again, of securing certain rights to the citizens or inhabitants of "both countries." Now, that "country" and "nation," in the language of diplomacy, are descriptive, not of territory, in either case, but of the nationality, admits of no discussion; and yet, I believe that the most substantial of all the citations and of all the propositions from the documentary evidence of the Revolution, which seeks to make out the fact that we came into being as thirteen nations, grows out of this British Treaty, which, in its preamble, takes notice of but one country, called the United States of America, and, then, in recognition of the United States of America, names the States under a "viz."--they being included in the single collective nation before mentioned as the United States.

Now, gentlemen, after the Revolution had completed our independence, how were we left as respects our rights, our interests, our hopes, and our prospects on this very subject of nationality? Why, we were left in this condition--that we always had been accustomed to a parent or general Government, and to a local subordinate administration of our domestic affairs within the limits of our particular provinces. Under the good fortune, as well as the great wisdom which saw that this arrangement--a new one--quite a new one in the affairs of men--now that we were completely independent, and capable of being masters of our whole Government, both local and general, admitted of none of those discontents and dangers which belonged to our being subject collectively to the dominion of a remote power beyond the seas--under the good fortune and great wisdom of that opportunity, we undertook and determined to establish, and had already established provisionally, a complete Government, which we supposed would answer the purpose of having a general representation and protection of ourselves toward the world at large, and yet would limit the local power and authority, consistently with good and free Government, as respected populations homeogeneous, and acquainted with each other, and with their own wants and the methods of supplying them.

The Articles of Confederation, framed during the Revolution, ratified at different times during its progress, and at its close, was a Government under which we subsisted--for how long? Until 1787--but four years from the time that we had an independent nationality--we were satisfied with the imperfect Union that our provisional Government had originated, and that we had shaped into somewhat more consistency under the Articles of Confederation. Why did we not stay under that? We were a feeble community. We had but little population, but little wealth. We had but few of the occasions of discontent that belong to great, and wealthy, and populous States. But the fault, the difficulty, was, that there were, in that Confederation, too many features which our learned friends, their clients here, and theoretical teachers of theirs elsewhere, contend, make the distinctive character of the American Constitution, as finally developed and established. The difficulty was that, although we were apparently and intentionally a nation, as respected the rest of the world, and for all the purposes of common interest and common protection and common development, yet this element of separate independency, and these views that the Government thus framed operated, not as a Government over individuals, but as a Government over local communities in an organized form, made its working imperfect, impossible, and the necessary occasion of dissension, and weakness, and hostility, and left it without the least power, except by continued force and war, to maintain nationality.

Now, it was not because we were sovereigns, all of us, because we had departed from sovereignty. There was not the least right in any State to send an ambassador, or make a treaty, or have anything signed; but the vice was, that the General Government had no power or authority, directly, on the citizens of the States, but had to send its mandates for contributions to the common treasury, and its requirements for quotas for the common army and the common navy, directly to the States. Now, I tarry no longer on this than to say, that the brief experience of four years showed that it was an impossible proposition for a Government, that there should be in it even these imperfect, clipped and crippled independencies, that were made out of the original provinces and called States. In 1787, the great Convention had its origin, and in 1789 the adoption of the Constitution made something that was supposed to be, and entitled to be, and our citizens required to be, as completely different, on this question of double sovereignty, and divided allegiance, and equal right of the nation to require and of a State to refuse, as was possible. If, indeed, instead of the Confederation having changed itself from an imperfect connection of States limited and reduced in sovereignty, into a Government where the nation is the coequal and co-ordinate power (as our friends express it) of every State in it, why surely our brief experience of weakness and disorder, and of contempt, such as was visited upon us by the various nations with whom we had made treaties, that we could not fulfil them, found, in the practical wisdom of the intelligent American people, but a very imperfect and unsatisfactory solution, if the theories of the learned counsel are correct, that these United States are, on the one part, a power, and on the other part, thirty-four different powers, all sovereign, and the two having complete rights of sovereignty, and dividing the allegiance of our citizens in every part of our territory.

Now, the language of the Constitution is familiar to all of you. That it embodies the principle of a General Government acting upon all the States, and upon you, and upon me, and upon every one in the United States; that it has its own established Courts--its own mandate by which jurors are brought together--its own laws upon all the subjects that are attributed to its authority; that there is an establishment known as the Supreme Court, which, with the appropriate inferior establishments, controls and finally disposes of every question of law, and right, and political power, and political duty; and that this adjusted system of one nation with distributed local power, is, in its working, adequate to all the varied occasions which human life develops--we all know. We have lived under it, we have prospered under it, we have been made a great nation, an united people, free, happy, and powerful.

Now, gentlemen, it is said--and several points in our history have been appealed to, as well as the disturbances that have torn our country for the last year--that this complete and independent sovereignty of the States has been recognized. Now, there have been several occasions on which this subject has come up. The first was under the administration of the first successor of General Washington--John Adams,--when the famous Virginia and Kentucky resolutions had their origin. About these one of my learned friends gave you a very extensive discussion, and another frankly admitted that he could not understand the doctrine of the co-ordinate, equal sovereignty of two powers within the same State. On the subject of these Virginia resolutions, and on the question of whether they were the recognized doctrines of this Government, I ask your attention to but one consideration of the most conclusive character, and to be disposed of in the briefest possible space. The proposition of the Virginia resolutions was, that the States who are parties to the compact have the right and are in duty bound to interpose to arrest the progress of the evil (that is, when unconstitutional laws are passed), and to maintain, within their respective limits, the authority, rights, and liberties pertaining to them. That is to say, that where any law is passed by the Congress of the United States, which the State of Virginia, in its wise and independent judgment, pronounces to be in excess of the constitutional power, it is its right and duty to interpose. How? By secession? No. By rebellion? No. But by protecting and maintaining, within its territory, the authority, rights, and liberties pertaining to it. Now, these resolutions grew out of what? Certain laws, one called the "Alien" and the other the "Sedition" law, rendered necessary by the disturbances communicated by the French revolution to this country, and which necessarily came within the doctrine of my friend, Mr. Larocque, that there is not the least right of secession when the laws are capable of being the subject of judicial investigation. Well, those laws were capable of being the subject of judicial investigation, and the resolutions did not claim the right of secession, but of nullification. My learned friend says that the doctrine of "secession" has no ground.

But what was the fate of the "Virginia resolutions"? For Virginia did not pretend that she had all the wisdom, and virtue, and patriotism of the country within her borders. She sent these resolutions to every State in the Union, and desired the opinion of their legislatures and their governors on the subject. Kentucky passed similar resolutions; and Kentucky, you will notice, had just been made a State, in 1793--an off-shoot from Virginia; and, as the gentleman has told you, Mr. Madison wrote the resolutions of Virginia, and Mr. Jefferson those of Kentucky. So that there was not any great independent support, in either State, for the views, thus identical, and thus promulgated by these two Virginians. Their great patriotism, and wisdom, and intelligence, are a part of the inheritance we are all proud of. But, when the appeal was sent for concurrence to New York, South Carolina, Georgia, Massachusetts, and the New England States, what was the result? Why, Kentucky, in 1799, regrets that, of all the States, none, except Virginia, acquiesced in the doctrines; and the answers of every one of the States that made response are contained in the record which also contains the Virginia and Kentucky resolutions. And that doctrine there exploded, and exploded forever, until its recurrence in the shape of nullification, in South Carolina, as part of the doctrines of this Constitution.