16

THE CONSTITUTION NOT MADE BY THE STATES.

agent appointed by themselves." Says Dr. Cooper, "The Government of the United States was created by the existing separate States, etc." Says Mr. Potter, "What it (the Government) can do, it does in the name and by the authority of the States that called it into existence." By States, is here meant the State Governments, not the people of the States respectively. The theory of these writers is, that the people. made the States-the States as Governments-and then the States made the National Constitution and the National Government. Of course, this would make a mere confederation of States, and there would be no nation. And this is their doctrine. Rev. Dr. Palmer speaks somewhere of "the exploded idea of an American Nation."

I can not stay to state the common arguments by which this theory, that the Constitution was formed by the States, is refuted; they are abundantly conclusive. I will merely apply to the theory their own principles as to delegated powers. These men are all strict constructionists; a government of delegated powers must abide by the very letter of its constitution. The State governments are such governments; their powers are delegated powers. The Constitution of Ohio says, "all powers, not herein delegated, remain with the people." Now, if the States, as such, framed the Constitution, where did they get the power to do it? Have the people of the several States conferred it upon their State governments? Is it a delegated power, to be found in all the State constitutions? Does the Constitution of the State of Ohio authorize its State government even to amend the United States Constitution? There is scarcely an illusion to the United States in our State Constitution, except an occasional clause, to show that the sovereignty is not with the State, as, for example, "He (the Governor) shall be Commander-inchief of the military and naval forces of the State, except when they shall be called into the service of the United States."

This power to form a General Government, or even a confederation of States, has never been delegated by the people; it is one which they choose to exercise for themselves. The language of Jefferson Davis, styling the General Government the "creature," and the States the "creator," is a gross insult to the people of the nation. The people have framed both Constitutions, the one broader, the other narrower; they have instituted both Governments, the one higher, the other lower. In all this, there is no ground for jealousy or fear on the part of the States. They have "a full superintendence and control over the immense mass of local interests, which connect themselves with the feelings, the affections, the municipal institutions, and the internal arrangements of the whole population. They possess, too, the immediate administration of justice in all cases, civil and criminal, which concern the property, personal rights, and peaceful pursuits of their own citizens." In saying

THE OHIO LEGISLATURE AND THE SUPREME COURT.

17

that the Constitution was framed by the people, I do not mean that the States were ignored. While it is distinctly declared to have been ordained by "the people of the United States," the States are everywhere recognized in it. It was ratified by the people, but not without reference to their organization into States. "The vote of the people," says Judge McLean, "was limited to the respective States in which they resided. So that it appears there was an expression of popular suffrage and State sanction, most happily united, in the adoption of the Constitution of the Union."

An examination of our National and State Constitutions, then, reveals no State Sovereignty. The doctrine is not found in them. These instruments are the expressed will of the people, and their testimony ought to be sufficient.

Let us now look at the history of the Government since 1789, when the Constitution went into operation, that we may ascertain whether any cases have arisen, and how they have been decided.

More than forty years ago a branch of the United States Bank was established at Chillicothe, in this State. The Ohio Legislature proposed to levy a tax upon it. The proposition was submitted to a joint. committee of both houses, who reported against it, as being both illegal and impolitic. Subsequently, a substitute for that report was adopted in the House of Representatives, who resolved that such a tax was constitutional and legal. They resolved, also, to levy it, and appointed a committee to prepare a bill accordingly. A few days afterward, when the bill was on its third reading, a motion was made and carried, to postpone the further consideration of the bill till the next winter.

Without giving the details of the case, it is enough to say that the Legislature finally determined, not only to levy the tax, but to remove the bank. To accomplish this they levied upon it a tax of fifty thousand dollars. Of course, there was refusal to pay, and the amount was taken from the vaults by force. The State claimed that, in its sovereign capacity, it had a right to impose what taxes it pleased upon any banking institutions within its limits. The bank claimed that, being a branch of an institution chartered by the United States, the State could not control it. The question went to the Supreme Court, and was argued by some of the ablest lawyers in the country. The decision was against the State. Its claim of sovereignty was not allowed, and the tax of fifty thousand dollars was restored to the vaults of the bank.

Ohio did everything she could do, without resort to force, to carry her point. Her Legislature were nearly unanimous. A resolution, "That this General Assembly do assert, and will maintain by all legal and constitutional means, the right of the State to tax the business and property

18

INDIANA AND THE PUBLIC LANDS.

of any private corporation of trade, incorporated by the Congress of the United States, and located to transact its corporate business within any State," was passed by a vote of thirty-one to two in the Senate, and unanimously in the House.

As the State of Ohio claimed, through her sovereignty, the power of taxing, ad libitum, branches of the United States Bank, so Indiana claimed a right to the public lands within her boundaries. In January, 1829, the Legislature of that State adopted the following resolution: "Resolved by the General Assembly of the State of Indiana, that this State, being a sovereign, free, and independent State, has the exclusive right to the soil and eminent domain of all the unappropriated lands within her acknowledged boundaries, which right was reserved to her by the State of Virginia, in the deed of cession of the South Western Territory to the United States, being confirmed and established by the articles of confederation and the Constitution of the United States." A former governor of Illinois, in a message to the legislature of that State, questioned the title of the United States to the public lands within the limits of the States. Of course, no such claim was allowed; and here, again, State Sovereignty was only a sovereignty on paper.

A reference to the celebrated Virginia Resolutions can hardly be avoided in this connection; and especially as Mr. Davis, in his message, claims that the doctrines of these resolutions are in accordance with the present views of the seceded States, and that they have been the prevailing doctrines of the American people. His language is, "Here it may be proper to observe that, from a period as early as 1798, there had existed in all of the States of the Union, a party, almost uninterruptedly in the majority, based upon the creed that each State was, in the last resort, the sole judge as well of its wrongs as of the mode and measures of redress." There is no reference here to the right of revolution, as he himself expressly says in his inaugural. Others have made the similar assertion, that by the election of Mr. Jefferson in 1800, the people indorsed the doctrines of the Virginia Resolutions, and that they have from that time been the advocates of State Sovereignty, Secession, etc.

The history of these Resolutions is this: In the summer of 1798, Congress enacted the famous Alien and Sedition Laws. They were temporary enactments, each to expire by its own limitation-one in two years, and the other March 3, 1801. The president, John Adams, had not recommended them in any way, though he gave them his official sanction. The Supreme Court pronounced them constitutional. But the laws were unpopular-extremely so; and Messrs. Jefferson and Madison, neither of whom was then connected with the General Government, had sagacity enough to see that political capital could be made of them for the approaching presidential election. Mr. Jefferson drafted a

THE VIRGINIA RESOLUTIONS OF 1798.

19 set of resolutions for the Legislature of Kentucky, and Mr. Madison a set for that of Virginia. These resolutions represented the laws above mentioned, as an infraction of the Constitution, which threatened to destroy the liberties of the people; and they maintained "that in case of a deliberate, palpable, and dangerous exercise of powers not granted by the compact, the States which are parties thereto have a right, and are in duty bound, to interpose for arresting the evil," etc.

The resolutions were well calculated to inflame the people. They had much in them about "liberties," and "rights," and "delegated powers," and "tame submission," and the "absolute dominion of one man," and "the sweeping away of barriers," etc., etc. They answered their immediate purpose. At the next election one of the gentlemen was made President, and the other became his Secretary of State.

Mr. Jefferson Davis and his associates now assert two things respecting these resolutions: first, that they contain the doctrines of sovereignty, secession, etc.; and secondly, that they have been generally approved by the people. Both assertions are without foundation.

The Virginia Resolutions maintained that the Alien and Sedition Laws were unconstitutional, and they called upon the other States to concur with that Commonwealth in so declaring them: "and that the necessary and proper measures will be taken by each for coöperating with this State in maintaining unimpaired the authorities, rights, and liberties reserved to the States respectively and the people." They speak of the right of the States "to interpose to arrest the evil." But as to the manner of interposition they say nothing. These resolutions were communicated to the other States, and some of them passed resolutions expressing their dissent. Upon these, Mr. Madison made an elaborate report to the Virginia Legislature the next year, in which he stated what mode of interposition was intended. This consisted, in declaring the laws to be unconstitutional; in direct representations from the legislatures of the States to Congress, with a view to obtain a rescinding of the two offensive acts; in requesting their Senators in Congress to propose an amendment to the Constitution; and in the application by two-thirds of the States to Congress for a Convention to amend the Constitution. These are the several means intended by the resolutions of '98, as stated by Mr. Madison himself, their author, and which, as he says, "are strictly within the limits of the Constitution."

Thirty years afterward, the leaders of the Nullification School made great efforts to secure the assent of Mr. Madison to their theories. The efforts were wholly unsuccessful. He declared that the Carolina doctrine could not be found in the Virginia Resolutions; and especially in a letter dated August, 1830, addressed to Hon. Edward Everett, does he argue at length against the interpretation put upon them by Mr. Calhoun and

20

MR. MADISON'S EXPOSITION OF THEM.

his followers. To the arguments of this letter, no attempt at refutation was made. "The politicians of the Nullification and Secession School, as far as I am aware," says Mr. Everett, "have from that day to this made no attempt to grapple with Mr. Madison's letter of August, 1830. Mr. Calhoun certainly made no such attempt in the elaborate treatise composed by him, mainly for the purpose of expounding the doctrine of nullification. He claims the support of these resolutions, without adverting to the fact that his interpretation had been repudiated by their illus. trious author. He repeats his exploded paradoxes as confidently as if Mr. Madison himself had expired with the Alien and Sedition Laws, and left no testimony to the meaning of his resolutions; while at the present day, with equal confidence, the same resolutions are appealed to by the disciples of Mr. Calhoun as sustaining the doctrine of secession, in the face of the positive declaration, when that doctrine first began to be broached, that they will bear no such interpretation."

So much as to the meaning of the Virginia Resolutions. It is contended, also, that the American people have indorsed them uniformly. The proof is to be found in the election of Mr. Jefferson to the presidency, and in the occasional passage of similar resolutions by the legislatures of other States; from which Mr. Davis and others draw the inference, that these have been the doctrines of the political party by which the power of the General Government has for the most part been exercised. The proof is insufficient. Whatever may be the true meaning of these resolutions, the people of the United States have not indorsed them.

They were passed in the Virginia Assembly by a vote of one hundred to sixty-three-less than two-thirds. Many of the best men in that State opposed them at the time, among them the illustrious Patrick Henry. Though opposed to some of the provisions of the Constitution, he insisted that we must abide by it, now that the people had adopted it. He said: "The late proceedings of the Virginia Assembly had filled him with apprehensions and alarm; that the State had quitted the sphere in which she had been placed by the Constitution; and, in daring to pronounce upon the validity of Federal laws, had gone out of her jurisdiction in a manner not warranted by any authority, and in the highest degree alarming to every considerate man."

Mr. Jefferson was, indeed, elected to the presidency at the ensuing election, but it was by a very small majority. Perhaps these resolutions had something to do with it, though it is probable he would have been elected had they never been adopted. But there is abundant proof that the resolutions were generally condemned. They were not only transmitted to the other States, but the General Assembly of Virginia did "solemnly appeal" to them to unite with her. Had the greater part of