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THE UNION scarcely had been formed, we have noted, by the ratification of New Hampshire in June of 1788, before conflicts began between State and Federal authority. Such conflicts have continued, from that day to this, as the States have struggled to maintain the role promised them under the Constitution, and the centralists of passing generations have endeavored to wrest it from them.
The titans of American history have participated in this continuing combat. More often than not, it must be confessed, the centralists have won and the States’ righters have lost. Over the whole span, the record unquestionably has been one of expanding power for the Federal authority and declining influence for the States.
Yet there is much to be learned, even in mid-twentieth century, from the conflict between State and Federal power over the years. Many of the questions propounded by a Spencer Roane, a John C. Calhoun, a Thomas McKean, cannot be answered satisfactorily by Federalist sympathisers to this day. These great conservatives of the American Constitutional union captured the essence of our fundamental law; they saw, with great prescience, the absolute necessity of preserving strong State and local governments if a despotism from Washington were not to replace the despotism of George III. They recognized, in a way that has escaped us now, that government is most responsive to the people when it is closest to the people; as government becomes more remote from the sovereign power, it becomes less responsible, less susceptible to check and control.
In the brief accounts that follow, it is proposed to review several of the more notable acts in this drama. The characters have all the color one could wish: An aging seafarer, Gideon Olmstead; an Indian murderer, Corn Tassels; a pair of New England missionaries, Samuel Worcester and Elizur Butler; an impulsive State auditor in Ohio, Ralph Osborn; and of course, a host of Governors, Senators, Judges, statesmen: Troup and Lumpkin in Georgia; Desha in Kentucky; in the Congress, Webster, Hayne, Calhoun, Randolph; and on the Court, Marshall, Taney, Chase, Fuller, Holmes, Brandeis, Stone. A more brilliant cast could not be assembled.
As the story unfolds this fact will become evident: At one time or another, every major section of the Republic has asserted the sovereignty of States, and has resisted Federal encroachment upon State prerogatives. “States’ rights” is not a doctrine peculiar to the South. The essential rightness of the States’ position has been acknowledged no less by New England than by Georgia; and the “Doctrine of ’98” has been asserted as vigorously in Wisconsin as in Virginia and Kentucky.
Let us begin on a late summer night in 1778. It is September 6, and the war for American independence continues: Yorktown is still three years away, but the tide is turning—in June, the British have evacuated Philadelphia; the Battle of Monmouth is behind us. General Benedict Arnold, two years later a traitor, is now military governor of Philadelphia. But New York remains in British hands, and some miles off the coast of Pennsylvania a British sloop, Active, out of Jamaica, is pressing steadily toward her destination in Manhattan.
Aboard the Active on the night of September 6, 1778, were Gideon Olmstead, a middle-aged Connecticut sailor, and three other countrymen who earlier had been captured by the British and taken to Jamaica. They were being returned to New York to be put in a military prison there. But late at night, the four Americans fell upon Captain Underwood of the Active. “In pursuance of this bold and hazardous design,” it was to be chronicled later, “they secured the captain and crew under deck, and contemplated running the sloop into Egg Harbor,” but “a considerable contest then arose between those under, and those on deck, for the command of the vessel.”(1) This contest continued throughout the day on September 7. On September 8, with the sloop only a few miles out of Egg Harbor, the brigantine Convention, Captain Thomas Houston, hove in sight and opened fire on the Active. Minutes later, Houston boarded the Active and took control. Meanwhile, the Convention’s consort, the privateer sloop Le Gerard, Captain James Josiah, had come in sight and joined the engagement.
Houston sent the captured sloop on to Philadelphia, where the vessel was libelled as a prize of war on September 14. The proceeding marked the beginning of thirty years of litigation and bitter conflict between Pennsylvania and the Federal government. To understand the position of the adversaries, it is necessary to look back briefly to November, 1775, when the Continental Congress, at the request of Washington, had recommended to the member States that they establish admiralty courts for handling prize cases. The act thus passed provided for appeal to the Congress from such State proceedings, but also requested the States “to provide that all trials in such case be had by a jury, under such qualifications as to the respective legislatures shall seem expedient.”
Pursuant to this request, the Pennsylvania Legislature set about establishing a Court of Admiralty at Philadelphia; and on the very day after the Convention had seized the Active, before the sloop had reached port, the Legislature adopted an act providing for jury trials in prize cases, with this qualification—that from a jury’s finding of fact, no appeal could be taken. It was most unusual for juries to be provided in prize proceedings; indeed, Pennsylvania’s law, in this regard, was repealed in 1780. But it happened to be the fate of Gideon Olmstead that the Active was libelled before a new judge, in a new court, under a new and brief-lived system of jury trial; and that the jury, on November 5, rejected his claim for the whole of the prize. It was Olmstead’s contention that he and his mates had wholly subdued Captain Underwood at the time the Convention came alongside; it was the position of the libellants that the struggle for command of the Active had not ceased when Convention and Le Gerard hove in view. On this issue, the case went to the jury; and the jury, after hearing the witnesses, gave one-fourth of the prize to Olmstead and his fellows, one-fourth to Le Gerard, and one-half to Houston and the Convention. A half of Houston’s portion was to go to the Commonwealth of Pennsylvania, which had fitted and commissioned the brig for action.
Olmstead, disappointed, appealed to Congress. In December of 1778, a four-man committee of the Congress heard his petition and proceeded to reverse Judge Ross; the committee awarded the entire prize to Olmstead. Pennsylvania was outraged by the decision. Had not Pennsylvania done what the Congress had asked? Had not a State Court of Admirality been created? Had not juries been provided for? Did not Pennsylvania have the right to provide that from her juries’ findings of fact, no appeal could be taken? With the warm support of State authorities, Judge Ross indignantly refused to respect the committee’s decree. On December 28, he announced that the jury’s verdict, so far as he was concerned, remained in full force. The following week, General Arnold, equally indignant, advised Congress that Judge Ross was “standing out obstinately against any orders that may be given.”(2) Arnold predicted, with much truth, that before Olmstead were through with the case, “he will have the whole State to contend with,” Judge Ross continued to hold firm; and when the Congressional committee, on January 4, issued an injunction to the marshal to detain the prize money, Judge Ross defied the committee, requisitioned the proceeds of the auction, and distributed the award.
That was how it began. Off and on through the rest of 1779, the Congressional commissioners negotiated with Pennsylvania, but got nowhere. In January of 1780, the Pennsylvania Legislature adopted a resolution declaring that further efforts by Congress to obtain “the money of this State” would be considered “as a high infringement on the honor and rights of the Commonwealth.”(3) For quite some time, the case languished. Olmstead, growing older, continued to press his claim upon the Pennsylvania Legislature, and Pennsylvania continued to refuse him. Meanwhile, the Articles of Confederation gave way to the new Constitution; Judge Ross died; several hundred miles away, in New Hampshire, a wholly separate prize case, ultimately to be controlling, moved to a head(4); in Georgia, the Chisholm case arose, and led to the Eleventh Amendment.
Fourteen years after the capture of the Active, in 1792, the persistent Olmstead filed suit in the Court of Common Pleas of Lancaster County against Judge Ross’s executors, still seeking his prize money. By this time, the sum had been deposited with David Rittenhouse, State Treasurer; and though Olmstead won by default in the trial court, he lost again on subsequent appeal: Chief Justice McKean, a jurist of towering reputation whose views of State and Federal relationships will be reviewed somewhat later in these notes, held that “the decree of the Committee of Appeals was contrary to the provisions of the act of Congress and of the General Assembly, extra judicial, erroneous and void.”(5)
Three more years passed; but if the sequence of events in the Olmstead case is to be understood, it is desirable now to look briefly toward New Hampshire and the closely parallel case which arose there.
In October of 1777, a controversy developed out of the capture of the brig Susannah by the privateer McClary. A prize suit followed, in which a New Hampshire State Court of Admiralty awarded the proceeds to one Penhallow, owner of the McClary, against the counter-claim of a group of Massachusetts seamen led by Elisha Doane. This judgment was sustained on appeal to the State Supreme Court, but just as Olmstead was to do, Doane appealed to Congress; and in September of 1783, the newly erected Court of Appeals in Cases of Capture undertook to reverse the New Hampshire court and restore the prize to Doane. Again, State authorities resentfully spurned the decision, and for ten years the case languished. But with a new Constitution, and new Federal courts, Doane revived his action before the United States Circuit Court for New Hampshire. He won an order in October, 1793 directing payment of the original proceeds with interest for sixteen years.
New Hampshire, even as Pennsylvania, was outraged. In February, 1794, the New Hampshire Legislature adopted a resolution denying emphatically that a Federal court created under the Constitution of 1788 could reverse the decree of a New Hampshire State court in 1777. During the Revolutionary period, it was insisted, “New Hampshire had a right to pass a law final in every way concerning the capture of vessels by this State, or citizens thereof, from the British.”(6) After all, said the resolution, the States are forbidden by the new Constitution to make retrospective laws: “The Legislature conceived that Congress was under the same obligations; and that their courts could not re judge cases that were finally adjudged by courts existing prior to its adoption.” In New Hampshire’s view, the Congress that existed under the Articles of Confederation “was merely an advisory body.” The States were separate and autonomous; and an effort to unsettle the proceedings of the States prior to the ratification of the Constitution “will inevitably involve the States . . . in confusion, and will weaken, if not perhaps destroy, the National Government.” Terming the Federal Court’s decree an “illegal act of power,” New Hampshire protested strongly against it.
The protest was unavailing. In February, 1795, the United States Supreme Court held that Federal courts created under the new Constitution could, indeed, review decisions of the old Court of Appeals in Cases of Capture. The decision is an important one. Speaking for the Court, Justice Paterson rejected the position urged by New Hampshire: “The truth is, that the States, individually, were not known nor recognized as sovereign, by foreign nations, nor are they now; the States collectively, under Congress, as the connecting point, or head, were acknowledged by foreign powers as sovereign.” Somewhat vaguely, he continued: “Before Articles of Confederation were ratified, or even formed, a league of some kind subsisted among the States; and whether that league originated in compact, or a sort of tacit consent, resulting from the situation, the exigencies of the times, and the nature of the warfare, or from a combination, is utterly immaterial.”(7)
It is difficult to follow Paterson in his reasoning. The States were, in fact, “recognized as sovereign” by the highest possible authority—the authority of Great Britain, in the treaty ending the war. They were recognized, individually, not as one nation, but rather as entities. They had declared themselves, in 1776, to be “Free and Independent States.” Mr. Justice Iredell, dissenting, emphasized some of these points: Each of the States, or provinces, he said, was a separate body politic, “and the several provinces were not otherwise connected with each other than as being subject to the same common sovereign.”(8)
Citizens of the different States were as foreigners to one another. They had formed themselves into different States, and as States had conveyed “by each body politic separately, and not by all the people in the several provinces, or States, jointly.”(9) Thus, in Iredell’s view, what New Hampshire had done in 1777 was peculiarly the business of New Hampshire, and no longer subject to review.
But the majority of the Court prevailed. New Hampshire again protested strongly, and her second remonstrance, of January 16, 1795, merits quotation for twentieth century readers. Do these views sound familiar? The New Hampshire legislators, again remonstrating against “a violation of State independence and an unwarrantable encroachment in the courts of the United States,” declared that the attempts “repeatedly made to render the laws of this State . . . null and void [are] a flagrant insult to the principle of the Revolution. . . .” Then the resolution asked:
Can the rage for annihilating all the power of the States, and reducing this extensive and flourishing country to one domination make the administrators blind to the danger of violating all the principles of our former government, to the hazard of convulsions, in endeavoring to eradicate every trace of State power, except in the resentment of the people. . . .
Forced by events, the Legislature of New Hampshire have made the foregoing statements; and while they cheerfully acknowledge the power of Congress in cases arising under the Constitution, they equally resolve not to submit the laws made before the existence of the present government by this (then independent State) to the adjudication of any power on earth, while the freedom of the Federal Government shall afford any constitutional means of redress. Impressed with the singular merits of the present case, and deprecating the many and complicated evils which must be the necessary consequence of establishing the power claimed by the courts of the United States, and its tendency to produce disaffection to our government, the Legislature of New Hampshire rest assured that a speedy and just decision will be had, and that the rights of State Governments and the interests of their citizens will be secured against the exercise of a power of a court, or any body of men under Congress, of carrying into effect an unconstitutional decree of a court instituted by a former Congress, and which, in its effects, would unsettle property and tear up the laws of the several States.
Thus spoke New Hampshire, but Congress and the Court were deaf. Back in Connecticut, however, Olmstead took heart. Hoping to emulate Doane’s success, he dug out of his sea chest the records of his suit in 1792, and in 1802 filed a new proceeding in the United States District Court at Philadelphia, this time against Elizabeth Sergeant and Esther Waters, daughters and executrices of the late State Treasurer, David Rittenhouse. In January, 1803, Judge Peters ruled in Olmstead’s favor, but prudently declined to issue process until the matter could be reviewed once more by the Supreme Court of the United States.
This time it was the Pennsylvania Legislature’s turn to take action. In the summer of 1803, it pronounced this Federal opinion “null and void,” but prudently arranged for Mrs. Sergeant and Mrs. Waters to pay into the State Treasury the contested sum. Five more years elapsed before Olmstead, by now an old man, set in motion the final chain of events: Through the United States Attorney General, he applied for a mandamus against Judge Peters, compelling issuance of process for a judgment he had won almost thirty years earlier; to this, the judge replied that Pennsylvania had passed an act to protect the Rittenhouse executrices against the process of any Federal court in the Olmstead case; that he was unwilling to embroil the United States with Pennsylvania; and that he wished the Supreme Court itself to take the responsibility.
Chief Justice John Marshall took it: “If the legislatures of the several States,” he said “may at will annul the judgments of the courts of the United States, and destroy the right acquired under these judgments, the Constitution becomes a solemn mockery, and the nation is deprived of the means of enforcing its laws by the instrumentality of its own tribunals.”(10) The act passed by Pennyslvania, he noted, did not assert “the universal right of the State to interpose in every case whatever.” What Pennsylvania had done was to question the Federal court’s jurisdiction on two grounds: First, that the old Congress, under the Articles of Confederation, had no authority to reverse the original finding of fact by a jury in Judge Ross’ Admiralty Court in 1778, with the result that the case had been finally settled many years before; and secondly, that Olmstead, as a citizen of Connecticut, could not, under the new Eleventh Amendment, bring suit against Pennsylvania. Marshall brushed off the first objection by saying that the Penhallow case had settled that issue; of the second, he insisted that Pennsylvania was not actually a party to the suit—the defendants were Mrs. Sergeant and Mrs. Waters: “It is deemed perfectly clear that no title whatever to the certificates in question was vested in the State of Pennsylvania.”
Marshall’s opinion aroused an astonishingly bitter reaction in Pennsylvania. It is a little difficult, looking back, to understand why this should have been true. The amount in controversy was not large; the right of a State jury to hear prize cases had been abandoned in 1780, two years after it had been created; by 1809, of course, all questions of Revolutionary prizes were moot; the main point in Marshall’s opinion—that Federal courts under the new Constitution could dispose of cases heard by the Prize Court many years earlier—established no dangerous precedent for the future. Nevertheless, Pennsylvania reacted strongly.
On February 27, 1809, Governor Simon Snyder advised the Legislature that he intended to call out the State militia to protect Mrs. Sergeant and Mrs. Waters against the service of process. His firmness was warmly approved, and when late in March the writ finally was issued, and Marshal John Smith went to the Rittenhouse mansion at Seventh and Arch streets to serve the papers, a delegation of the Pennsylvania militia awaited him. They had been called out on orders of Governor Snyder addressed to General Michael Bright, commander of the First Brigade, First Division. “It is my express orders,” Governor Snyder had said, “not to injure any person attempting to serve such process as aforesaid, unless imperious necessity compels you to do it in execution of the orders it has become my duty to issue.” Nevertheless, General Bright was to see to it that the ladies were protected.
Let Marshal Smith tell the story: On March 25, he went to Mrs. Sergeant’s house, but “Upon my approach a sentinel who was placed at the door presented his bayonet at my breast.” When he attempted to get past Sergeant Cole and his detachment, “I was driven from the pavement . . . and was repelled by the whole guard with charged bayonets.”(11) Marshal Smith then called for a chair, and when this was provided, hoisted himself upon it to read a proclamation to the assembled crowd. He lectured them on the subject of Federal authority, promised to summon a posse of two thousand men if need be, and then retired.
For three weeks, General Bright’s detachment held “Fort Rittenhouse,” but at last Marshal Smith eluded the guard. “I got into the house,” he was to testify, “went into the back parlour, where I saw two young ladies and young gentlemen, who were exceedingly alarmed.” But doing his duty as he saw it, the marshal served his papers and departed.
Scarcely had this obligation been fulfilled before United States District Attorney Alexander J. Dallas swore out a warrant against General Bright and his troops, charging them with obstructing justice. On April 28, they came on for trial in Philadelphia before Supreme Court Justice Bushrod Washington and District Judge Richard Peters. Meanwhile, on April 3, the Pennsylvania Legislature had adopted certain resolutions that will be noted hereafter, and had appropriated $18,000 to Governor Snyder’s discretion as a fund for settling the case.
It was a curiously Wonderland trial that unfolded in Philadelphia that spring. Reading the record, one is reminded of Alice’s hedgehog, that kept unrolling itself and wandering away. General Bright, for one thing, did not bother to show up to hear the indictment read. When Dallas asked the court to be patient, waiting on him, Judge Peters put in a wary remark: “The defendants are bound in a recognizance to appear and not depart the court without license; but I do not want to hurry on the trial. I am content for my own part to wait still longer on this business, though God knows it has been so long before me I am tired of it.” Eventually General Bright showed up—a bailiff had been sent to the docks to find him, where the general was engaged as inspector of flour for the port of Philadelphia—and all hands pleaded not guilty. A jury then was sworn, and counsel for the government and the defense launched into long and absorbing reviews of the powers of Federal and State authorities.
It was the government’s position that Pennsylvania’s interposition should be ignored altogether: If Judge Peters’ original order were void, the action of the Pennsylvania Legislature was needless; if his order were valid, Pennsylvania’s action could not make it less so. It was the position of the defense that Pennsylvania had acted throughout in defense of her sovereign rights, and that General Bright was wholly within the State’s authority in interceding against an arbitrary and unconstitutional action by the marshal. On this division, the case went to trial.
Mr. Justice Washington had a difficult jury to contend with. Never a specially shrewd or knowledgeable man, he delivered a charge in which he argued obtusely with himself. He noted that the Eleventh Amendment prohibited suits “in law and equity” by citizens of one State against another State. Could he, as a member of the Supreme Court, interpret this prohibition also to apply to cases in admiralty? “I think not. In our various struggles to get at the spirit and intention of the framers of the Constitution, I fear that this invaluable charter of our rights would, in a very little time, be entirely construed away, and become at length so disfigured that its founders would recollect very few of its original features.” It was a comment of singular prophecy. But Mr. Justice Washington wondered also about the right of Pennsylvania to pass upon judgments of a Federal court and declare them null and void: “Could such a power be granted to them, without sapping the foundations of the government, and extinguishing the last sparks of American liberty?” Mr. Justice Washington thought not, but his confusion was evident to the jury. He had asked them, sarcastically, if “they have the vanity to think themselves wiser than all those who have passed opinions upon this important question of the law?” and finally he had suggested to the jury that “If there is any misapprehension, or difficulty about the law, the court are ready now, or will be at any time hereafter, to give any further information, or elucidation, you may require.” To this offer, the record shows this response:
One of the jurors: We seem to want no information on this head, for there are three or four jurors who think they understand the law as well as the judges themselves.
The jury went out between five and six o’clock on the evening of Saturday, April 30. After supper, the clerk summoned them back to the court to inquire if they had reached a verdict. “One of the jurors said they had not, and he saw no prospect that they ever would, and therefore hoped they might be discharged.” Instead, Washington ordered them back to the jury room. At ten-thirty they came back in, but mainly to report that “one of the jurors has had a strong convulsion fit, and another was very much indisposed.” Washington ordered them locked up over the weekend. On Sunday afternoon, it was to develop later, one of the jurors, Mathias Corless, slipped out the back door of the court house at Sixth and Chestnut streets, and merrily made his way across to the Shakespeare Hotel, a tavern, intent on a cooling drink.
On Monday morning, the jury reluctantly brought in a verdict finding General Bright and his soldiers guilty, but with so many mitigating circumstances that no decree could be readily reduced to writing. It was the jury’s view that the defendants had not opposed “Any law of the United States acknowledged to be so by the military authority of Pennsylvania.” After considerable argument, a decree was agreed upon, and Justice Washington sentenced General Bright to three months in jail and a fine of $200, and each of his eight soldiers to one month in jail and a fine of $50. That was on May 2, 1809. Four days later, President Madison, commenting upon the court’s finding that the defendants had acted under “a mistaken sense of duty,” pardoned all of them. So ended the trial of General Bright.
But if the trial proved a short-lived fiasco, some of the things said by the Pennsylvania Assembly in its April resolution merit a more permanent place. This is Pennsylvania speaking, let it be noted—Pennsylvania, no part of the South, in a time when Pennsylvania felt keenly about her own State rights:
And whereas the causes and reasons which have produced this conflict between the general and State government should be made known, not only that the State may be justified to her sister States, who are equally interested in the preservation of the State rights; but to evince to the Government of the United States 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; and that, whilst they are contending for the rights of the State, that it will be attributed to a desire for preserving the Federal government itself, the best features of which must depend upon keeping up a just balance between the general and State governments, as guaranteed by the Constitution,
Be it therefore known, that the present unhappy dispute has arisen out of the following circumstances. . . .(12)
And Pennsylvania thereupon proceeded to spell out her case. In one aspect, it was a good and sound case. “It is clear,” said the resolution, “that David Rittenhouse could not have received a farthing of the money as David Rittenhouse, but as Treasurer of the State only, and by order of the State.” Hence it was, in actual fact, the State itself that was being sued, in violation of the Eleventh Amendment. “If this can be done, the amendment . . . is a dead letter. The State can act under its laws only by its agents. Its moneys remain in the hands of its Treasurers. If the officers can be converted by the decree of a judge, into mere stakeholders, there can, perhaps, be no possible case in which the Constitution may not be invaded.”(13)
Then Pennsylvania had this to say, and let it be read in the context of the mid-twentieth century:
Although the Legislature reverence the Constitution of the United States and its lawful authorities, yet there is a respect due to the solemn and public acts, and to the honor and dignity of our own State, and the unvarying assertion of her right, for a period of thirty years, which right ought not to be relinquished. . . .
An assertion of right for a period of thirty years. May a question be interpolated? What do the good people of Pennsylvania say today of a State right asserted unvaryingly for a period of nearly ninety years? Is this not entitled to respect? Pennsylvania once thought so.
And the resolution of April 3, 1809, went on to say other things worth repeating today. The Legislature of Pennsylvania acknowledged the supremacy of the general government, and cheerfully submitted to its authority “so far as that authority is delegated by the Constitution of the United States.” But beyond that point?
Whilst they yield to this authority, when exercised within Constitutional limits, they 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. [Emphasis in the original.]
Again let it be noted: Here was the old and rightly respected State of Pennsylvania, declaring in the most solemn fashion, that the “United States’ courts” themselves violate the Constitution. Is it so unthinkable that Pennsylvania could have been right then, and that Southern and Southwestern States are equally right in making identical assertions in our own time?
The April resolution went on to recognize that “it is impossible” for a boundary to be marked precisely between “the powers granted to the general government, and rights reserved to the States.” Difficulties were bound to arise “from a collision of powers.” And because the Constitution had made no provision for determining such disputes, the Pennsylvania Legislature proposed that a new tribunal be created by constitutional amendment. Otherwise, “the harmony of the States, if they resist encroachments on their rights, will frequently be interrupted.” And if the States, to prevent the evil, “should on all occasions yield to stretches of power, the reserved rights of the States will depend on the arbitrary power of the courts.” Therefore, it was
Resolved, that should the independence of the States, as secured by the Constitution, be destroyed, the liberties of the people in so extensive a country cannot long survive. 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.(14) [Emphasis in the original.]
Pause for a moment. Let us note the language. Pennsylvania, in April of 1809, was speaking: Should the States keep yielding to usurpations of power by the Federal courts, the rights of the States would be swept away. Is that not precisely what has happened in our own time? By failing to resist judicial encroachments, the States have indeed seen their rights one by one swept away, as the United States have become more consolidated and the liberties of the people more inexorably infringed.
That is about all that remains to be said of the Olmstead case. On April 17, 1809, some ten days before General Bright went on trial, counsel for Mrs. Sergeant had applied for a writ of habeas corpus to free her from the marshal’s custody. Chief Justice Tilghman, of the Pennsylvania court, concluded that he had power to free her from Federal custody, if the evidence justified him in doing so: His right to issue a writ “flows from the nature of our Federal Constitution, which leaves to the several States absolute supremacy in all cases in which it is not yielded to the United States.”(15) “The United States have no power, legislative or judicial, except what is derived from the Constitution,” Chief Justice Tilghman said.
When these powers are clearly exceeded, the independence of the States, and the peace of the Union, demand that the State courts should, in cases brought properly before them, give redress. There is no law which forbids it; their oath of office exacts it, and, if they do not, what course is to be taken? We must be reduced to the miserable extremity of opposing force to force, and arraying citizen against citizen; for it is vain to expect that the States will submit to manifest and flagrant usurpations of power by the United States, if (which God forbid) they should attempt them.
Nevertheless, Judge Tilghman regretfully held that Federal authority had been exercised properly, and refused to release Mrs. Sergeant. At long last, on April 26, Governor Snyder released the contested sum to Olmstead.
The following January of 1810, it must be confessed to Virginia’s shame, the General Assembly at Richmond adopted resolutions that were far removed from her resolutions of 1798 and 1799. This time, replying to Pennsylvania’s resolution of 1809, the Virginia Assembly declared that the Supreme Court of the United States had been provided “to decide disputes between the State and Federal judiciary,” and Virginia praised the Supreme Court judges as men “selected from those in the United States who are most celebrated for virtue and legal learning.”(16) The duties they have to perform, said Virginia then, “lead them necessarily to the most enlarged and accurate acquaintance with the jurisdiction of the Federal and several State courts together, and with the admirable symmetry of our government.” Further, “the tenure of their offices enables them to pronounce the sound and correct opinions they may have formed, without fear, favor, or partiality.” In time, it may be interpolated, Virginia’s view on this score was to change radically.
To this resolution from Virginia, Pennsylvania put in the last word on February 3, 1810. A committee report was brought forward in the State Senate declaring flatly that
the committee are of opinion, that the Constitution of the United States has been violated by the decision of the judge, and the constitutional rights of the State invaded. The question then occurs, in what manner is a State to defend her rights against such invasion? It has already been observed, that the Constitution of the United States guarantees to each State a republican form of government; that the powers not delegated to the United States are reserved to the States respectively. Without entering into a detail of the rights reserved or not delegated, suffice it to say that “the right of acquiring, possessing and protecting property” is one. If this be not one of the powers not delegated, then indeed a State is in a worse and more degraded situation than the most obscure individual, whose property cannot be taken from him when fairly acquired, without his consent, even for publick use, without compensation. . . .
It may be asked, who is to decide the question? If it be alleged that the State has not the right, it may justly be replied, the power invading it, has not. It is a case unprovided for in the Constitution, and there is no common umpire. . . . [Emphasis supplied.]
There remains “no common umpire.” By every rule of sound common sense and rightful Constitutional construction, it is the States themselves, parties to the compact, who should decide, in the last resort, if their compact has been violated. To leave such arbitraments to an agency of the Federal government, even as Jefferson and Madison made clear, is to substitute the discretion of the agent for the will of the principals; and it is to make the decision of a court, rather than the Constitution as agreed upon by the States, the supreme law of the land.
IN CHRONICLING some of the more spirited conflicts between State and Federal authority, necessarily one must place first emphasis upon the resistance by State legislatures and State governors. To this day lawmakers and chief executives speak in less inhibited fashion than judges, in protesting usurpation of power by the Supreme Court of the United States.
Yet it is important to note that the States frequently have interposed their sovereign powers through their own judiciary. As early as 1791, it was noted earlier, North Carolina’s Supreme Court bluntly refused to comply with a Federal court order attempting to transfer a case from State to Federal jurisdiction.(17)
But it was in Pennsylvania, in 1798, that the position of the State judiciary was expounded at length for the first time. The expounder was one of the most remarkable jurists of the early years of our country, the redoubtable Judge Thomas McKean.
He was born in 1734; he rose to manhood in the turbulent decades of revolution against Great Britain; he was a signer of the Declaration of Independence. For several years, he held the remarkable distinction of occupying public office simultaneously in two States—as Assemblyman and later Congressman from Delaware, and as Chief Justice of Pennsylvania. Toward the middle of the 1780’s, however, he settled permanently in Philadelphia, and took an active part in the Pennsylvania Convention of 1787, by urging adoption of the new Constitution. Never at a loss for a well-turned phrase, he there compared the arguments of those who opposed the Constitution to “the feeble noise occasioned by the working of small beer.”(18) An active and partisan Federalist, he nevertheless reserved strong apprehensions against excessive power in the Federal government. These apprehensions burst forth in 1798, when he wrote the unanimous opinion of his court denying a petition filed by one William Cobbet in a certain libel proceeding.(19)
This was a criminal case, in which the defendant Cobbet had been placed under bond as a common libeller. When he continued his libelous publications, an action was instituted against him. Cobbet pleaded that he was an alien, a subject of Great Britain, and demanded that his case be removed for trial into the United States Circuit Court. Counsel for the Commonwealth argued that to grant such a motion “would prostrate the authority of the individual States.” The mischief that had been apprehended prior to the Eleventh Amendment, in allowing States to be sued in the Supreme Court, would be recreated by allowing them to be forced into the Circuit courts.
Chief Justice McKean and his associates unanimously rejected Cobbet’s petition; and what McKean had to say(20) merits quotation at some length.
“Our system of government,” said Chief Justice McKean, “seems to me to differ, in form and spirit, from all other governments that have heretofore existed in the world.” Following the reasoning of Madison in the Federalist(21) and in the Virginia Convention of 1788,(22) McKean found the Union “as to some particulars national, in others Federal, and in all the residue territorial, or in districts called States.” Continuing, he said:
The division of power between the national, Federal, and State governments (all derived from the same source, the authority of the people) must be collected from the Constitution of the United States. Before it was adopted, the several States had absolute and unlimited sovereignty within their respective boundaries; all the powers, legislative, executive and judicial, excepting those granted to Congress under the old Constitution. They now enjoy them all, excepting such as are granted to the government of the United States by the present instrument and the adopted amendments, which are for particular purposes only.
The government of the United States forms a part of the government of each State; its jurisdiction extends to the providing for the common defense against exterior injuries and violence, the regulation of commerce, and other matters specially enumerated in the Constitution; all other powers remain in the individual States, comprehending the interior and other concerns. These combined, form one complete government.
Should there be any defect in this form of government, or any collision occur, it cannot be remedied by the sole act of the Congress or the State; the people must be resorted to, for enlargement or modification. If a State should differ with the United States about the construction of them, there is no common umpire but the people, who should adjust the affair by making amendments in the constitutional way, or suffer from the defect. . . .
There is no provision in the Constitution, that in such a case the judges of the Supreme Court of the United States shall control and be conclusive; neither can the Congress by a law confer that power. There appears to be a defect in this matter. . . .
As events proved, of course, the remedy—if it was a remedy—was found in John Marshall’s bold assertions of power. It is here contended that the defect described by McKean more than one hundred fifty years ago remains a major defect to this day.
The Cobbet case is important in part because it was cited at length in the next major contest that arose between State and Federal judiciaries—the prolonged litigation in Virginia over the lands of Lord Fairfax. The case began in 1796, and did not end until 1816. Things moved at a far more leisurely pace in those days. The suit was enormously complicated. It will suffice for our purposes to note that a contest arose involving the validity of a grant made by the General Assembly of Virginia in 1789 to one David Hunter. The land conveyed was a part of the vast holding that earlier (in 1736) had been granted by the English crown to Thomas Lord Fairfax. It was contended by the heirs of Lord Fairfax that Virginia’s grant to Hunter was prohibited by the terms of the treaty of 1783 which ended the Revolutionary war. It was contended by Hunter, as plaintiff, that the State grant was wholly valid. On the question, so drawn, the trial court at Winchester ruled in favor of the Fairfax heirs, but on appeal, the Virginia Supreme Court of Appeals reversed the trial court and found for Hunter.(23) It was a split decision. Judge Fleming felt the treaty of 1783 had some effect, but on balance he felt title should go to Hunter. Judge Roane felt the treaty had nothing to do with the case, and he too felt title should go to Hunter.
But the heirs appealed, and in 1813 the Supreme Court of the United States reversed the Virginia Supreme Court and ordered the judgment of the Winchester court affirmed.(24) Now, that was not the first time the Supreme Court of the United States had reversed a State court, and it is not clear why this case, above all cases, should have “excited all that attention from the bench and bar which its great importance truly merited.”(25) The fact is that the Supreme Court’s action did stir great resentment; and matters were not helped by a tactlessly worded mandate which “hereby commanded” that further proceedings be had agreeable to the judgment and instructions of the Supreme Court.
Six days were consumed in argument before the Virginia Supreme Court on the disposition of this mandate. What the Virginia court had to say is set forth fully in the old reports. It still has meaning today. Judge Cabell led off: “My investigations,” he said, “have terminated in the conviction that the Constitution of the United States does not warrant the power which the act of Congress”—that was the Judiciary Act of 1789”—purports to confer on the Federal judiciary.” He went on to lay down, precisely and cogently, the essential separation of powers for which Virginians are contending to this very day. He said:
To the Federal government are confided certain powers, specially enumerated, and principally affecting our foreign relations and the general interest of the nation. These powers are limited, not only by their special enumeration, but by the positive declaration that all powers not enumerated or not prohibited to the States, are reserved to the States, or to the people.
The Tenth Amendment, it will be seen, still had some meaning then.
Cabell continued:
This demarcation of power is not vain and ineffectual. The free exercise by the States of the powers reserved to them is as much sanctioned and guarded by the Constitution of the United States as is the free exercise, by the Federal government, of the powers delegated to that government. If either be impaired, the system is deranged. The two governments, therefore, possessing each its portion of the divided sovereignty, although embracing the same territory, and operating on the same persons, and frequently on the same subjects, are nevertheless separate from, and independent of, each other . . . The Constitution of the United States contemplates the independence of both governments, and regards the residuary sovereignty of the States as not less inviolable than the delegated sovereignty of the United States.
Then Cabell went on to echo what McKean had said in the Cobbet case, what Jefferson and Calhoun were to say later:
It must have been foreseen that controversies would sometimes arise as to the boundaries of the two jurisdictions. Yet the Constitution has provided no umpire., has erected no tribunal by which they shall be settled. [Emphasis supplied.]
Why was no such tribunal provided to settle disputes between the States and the Federal government the States mutually had created? Cabell thought that probably the omission proceeded from the belief “that such a tribunal would produce evils greater than those of the occasional collisions which it would be designed to remedy.” But in any event, he observed, “to give to the general government, or any of its departments, a direct and controlling operation upon the State departments, as such, would be to change at once the whole character of our system.” The result, he said, would be this: “The independence of the State authorities would be extinguished, and a superiority, unknown to the Constitution, would be created, which would sooner or later terminate in an entire consolidation of the States into one complete national sovereignty.” It was a prophetic remark.
Judge Cabell turned to the nature of the State and Federal judiciaries. Suppose the Virginia Supreme Court should comply with this “command” from the Supreme Court of the United States? The Virginia judges, in doing so, “must act either as Federal or as State judges.” But they could not be made Federal judges without their consent, or without commissions. So they were not Federal judges. Thus they remained State judges. But how could they, as State judges, be required “to enter up a judgment, not our own, but dictated and prescribed to us by another court”? Obviously, they must act either ministerially or judicially—but no one contended that the Supreme Court of the United States had any authority to convert State judges into mere ministerial agents. Could the Virginia court, then, act judicially? Cabell thought not.
Before one court can dictate to another the judgment it shall pronounce, it must bear to that other the relation of an appellate court. The term appellate, however, necessarily includes the idea of superiority. But one court cannot be correctly said to be superior to another, unless both of them belong to the same sovereignty. It would be a misapplication of terms to say that a court of Virginia is superior to a court of Maryland, or vice versa. The courts of the United States, therefore, belonging to one sovereignty, cannot be appellate courts in relation to the State courts, which belong to a different sovereignty—and of course, their commands or instructions impose no obligation. [Emphasis in the original.]
Cabell argued that to admit this appellate jurisdiction would be to place the State courts “at the feet of the Federal courts, and make them the unwilling instruments of their usurpation of State rights.” He would have no part of it.
Justice Brooke then took up the argument. He harked back to the Virginia Resolution of 1798, in commenting that “the right to resist infractions of the Federal Constitution, proceeding from the general government, or any department thereof, has been solemnly asserted in Virginia.” The twenty-fifth section of the Judiciary Act, he declared flatly, was unconstitutional; the Virginia court should refuse obedience to the mandate.
Next, Judge Spencer Roane leaped into the fray. He had been sitting back too long, fidgeting, waiting upon his colleagues. He denounced the idea that State courts could be made arms of the Federal judiciary simply because “in the course of their ordinary jurisdiction, [they] incidentally acted upon the Constitution, laws or treaties of the United States.” He found this “a circumstance which would equally make the Supreme Court of Calcutta a part of the judicial system of the United States, when enforcing the laws of this country and that.” Striking at John Marshall, he declared that the Supreme Court had “gained ground by piece-meal,” that its assertions of power were “at war with the idea of limited and specified powers in the general government.” Then he quoted at some length from the Cobbet case, and wound up in this fashion:
Upon the whole, I am of the opinion that the Constitution confers no power upon the Supreme Court of the United States to meddle with the judgments of this court in the case before us . . . and that this court is both at liberty and is bound, to follow its own convictions on the subject, anything in the decisions, or supposed decisions, of any other court, to the contrary notwithstanding.
It remained only for Judge Fleming to concur with his brothers. Together, they joined in a unanimous opinion “that the appellate power of the Supreme Court of the United States does not extend to this court, under a sound construction of the Constitution of the United States . . . and that obedience to its mandate be declined by this court.”
Happily or unhappily—men will disagree on the point—the case then went back to Story and Marshall, and in 1816 Mr. Justice Story made the Supreme Court’s opinion stick.(26) It had been a wonderful fight, as they say, while it lasted. There are many Americans, not thought of as devout men, who pray earnestly that one day the fight may be resumed.
THE INTERPOSITION of Pennsylvania in the Olmstead case, and Virginia’s spirited resistance in the Fairfax suit, coincided with massive resistance by other States to Federal authority on a matter of far greater importance. In a brief chronicle of the Embargo Crisis, and the measures of the New England States against the embargo laws, may be found some notable precedents for the resistance of Southern States to unconstitutional decrees in our own time. It will be seen that Massachusetts, Connecticut, and Rhode Island once equally cherished their State powers as they conceived them; they, too, interposed to arrest the progress of what seemed to them a deliberate, palpable, and dangerous evil. It will be recalled that the war between France and England, which erupted with such fury following the Reign of Terror in the spring and summer of 1793, subsided for a time in the closing years of the century. But in 1803, when sale of the Louisiana Territory enriched Napoleon’s treasury, the conflict broke out anew. Before the end of 1804, Napoleon had crowned himself emperor at Notre Dame; in May of 1805, at Milan, he placed upon his head the iron crown of the old Lombard kings. Great Britain, Russia and Austria, breathing new life into their Triple Alliance of 1795, arrayed themselves against him, but the conquering Napoleon swept onward: Nelson’s victory at Trafalgar in October of 1805 was more than offset by Austria’s defeat at Ulm that same month, and by Napoleon’s triumph at Austerlitz in December. By mid-summer of 1806, German opposition to Napoleon had all but collapsed; in the fall, the victorious French dealt the Prussians a cruel blow at Jena.
Napoleon accompanied these conquests by land with harsh measures at sea, and it is with these that the young United States were most deeply concerned. By his “decrees” at Paris and Berlin, and late in 1807 at Milan, Napoleon undertook to impose a strong blockade against Britain. To these impositions, Britain responded with equally stringent decrees of her own. The effect of the British pronouncements, backed by the Royal Navy in its greatest hour, was virtually to deny the seas to neutral nations.
The United States, under Jefferson, at first responded feebly to the insults of the belligerent powers. In view of the sharp division of political sentiment, perhaps no more could have been expected: The Federalists, loving Britain and hating France, were in many quarters almost equally arrayed against the Republicans, loving France and hating Britain. To the Federalists, Napoleon embodied worldwide French imperialism in a way that Stalin, nearly one hundred fifty years later, was to embody the menace of Soviet conquest. Yet to the Republicans, the hypothetical threat of French domination was subordinate to the reality of British humiliations. These sentiments of high politics on the part of the Federalists, as is so often the case, reflected less lofty considerations of commerce: Trade with Britain was the lifeblood of New England. That blood was being drained away.
In the summer of 1807, the balance of national sentiment tipped against Britain in the outrageous affair of the Chesapeake, an American vessel halted by the British Leopard and contemptuously boarded by British sailors. For the first time, Republican measures against Britain began to gain widespread support; and on December 18, 1807, a month after new British decrees were imposed against neutral trade, Jefferson asked Congress for an embargo against all shipping. Four days later, the Embargo Act was law.
For the space of a month or so, even parts of New England went along. The Massachusetts General Court, which soon was to level against Jefferson the spirit of States’ rights he himself had advanced in the Kentucky Resolutions just ten years earlier, at first praised the embargo as “a wise and highly expedient measure, . . . calculated to secure to us the blessings of peace.”(27) In Southern States, though the embargo would hurt them gravely also, hostility to the British gave support to Jefferson’s plan.
But the first Embargo Act of December, 1807, was followed by supplementary laws in January and March of 1808, and finally by the severe law of April 25, which authorized the President to detain all coasting vessels upon suspicion of intent to evade the embargo. With this last enactment, New England revived her bitter resentment. Two years earlier, when Congress had adopted a non-importation act to prohibit the admission of British products, the people of New England had rendered it ineffective by widespread smuggling. Now this smuggling trade was defiantly expanded, especially in Vermont and New Hampshire. On Lake Champlain and in Passamaquoddy Bay, all along the St. Lawrence, and from Newport, Portland, Nantucket, and Martha’s Vineyard, smugglers actively plied their trade.(28) To these measures of the resentful people, the State governments added official harass-ments of their own. During the summer of 1808, Rhode Island actively interposed through her judiciary, when State courts at Newport effectively prevented detention of vessels under the April enactment. In August, New York’s Governor Tompkins coldly refused to assist a Federal collector at Oswego who sought help in enforcing the embargo regulations.
Throughout the autumn, members of Congress from New England States continued strenuously to assert the unconstitutionality of the Embargo Acts. Across the seas, the hated Napoleon, his tide of empire not yet turned, swept triumphantly into Madrid and turned his eyes toward Rome. And as American vessels swung idly at anchor in New England harbors, a spirit of secession began to kindle among a rebellious people.(29)
In the light of that brief and oversimplified chronology, it is useful now to turn to the resolutions of the various State legislatures in the early months of 1809. The Southern States of today, interposing their sovereign powers in another cause, may perhaps be forgiven a gentle reminder to old friends north of the Potomac: This, gentlemen, is what you said then.
Delaware came first, on January 30, 1809. The Embargo Acts (and especially the new “Force Act” just signed by Jefferson on January 9) were “an invasion of the liberty of the people and [of] the constitutional sovereignty of the State governments.” And while Delaware would submit to “unwise and arbitrary laws, rather than resort to violence,” Delaware would seek every constitutional remedy that could be found for the evils under which her people suffered.(30)
Then Massachusetts. The Lieutenant Governor, Levi Lincoln, an ardent follower of Jefferson, having succeeded to the chief magistracy on the Governor’s death, sent to the Legislature a message deprecating Federalist agitation against the laws of the land and asking an end to opposition. To this address, both Senate and House responded with ringing statements. These merit attention in our own not less turbulent time.
The government of the Union, said the Massachusetts Senate then, “is a confederation of equal and independent States with limited powers.” The Senate agreed, of course, with a comment by Governor Lincoln that while measures “are pending and ripening” in Congress, the States have every right to question the justness or policy of any proposal.” But do State rights end there? Governor Lincoln thought so. The Senate did not. Its resolution observed:
. . . we learn with concern from your Honour, that there are stages when questions involving unalienable rights—“can be no longer open to controversy and opposition”—“stages when an end must be put to debate and a decision then resulting be respected by its prompt and faithful execution, or government loses its existence and the people are ruined.” . . . We owe it to ourselves and to the people distinctly to deny this doctrine, at once novel and pernicious.(31)
A distinction must be drawn, said the Senate, between the respect that is owed to valid laws, and the respect that cannot be required of the people for laws “unwarranted by the commission given to their rulers.” In this case, the people manifestly regarded the Embargo Acts as a usurpation of their most cherished liberties. What, then, was the duty of the General Court? “The people have not sent us here to surrender their rights, but to maintain and defend them.”
The Massachusetts House also responded warmly to Governor Lincoln’s assertion that a time had come to end objection and opposition to a distasteful law:
We cannot agree with your Honour that in a free country there is any stage at which the constitutionality of an act may no longer be open to discussion and debate; at least it is only upon the high road to despotism that such stages can be found.
At such a point the Government, undertaking to extend its powers beyond the limits of the Constitution, degenerates into tyranny.(32)
It may be inquired, perhaps, by this citizen of Virginia who offers these notes for public review, if there be any essential difference between an unconstitutional decree by a court, and an unconstitutional enactment by its separate but equal branch of the Federal government? The paragraph that follows from the resolution of the Massachusetts House, it may be urged, applies no less to the judgment of a court than to an act of the Congress.
Were it true, that the measures of government once passed into an act, the constitutionality of that act is stamped with the seal of infallibility, and is no longer a subject for the deliberation or remonstrance of the citizen, to what monstrous lengths might not an arbitrary and tyrannical administration carry its power. . . . Were such doctrine sound, what species of oppression might not be inflicted on the prostrate liberties of our country? If such a doctrine were true, our Constitution would be nothing but a name—nay, worse, a fatal instrument to sanctify oppression, and legalize the tyranny which inflicts it.(33)
On February 15, 1809, both houses of the Massachusetts General Court concurred in a resolution declaring their solemn conviction that the Embargo Acts are “in many particulars, unjust, oppressive, and unconstitutional.” To be sure, mere expression of opinion could not in itself be “decisive of the question.” But through the interposition of “peaceful and legal remedies,” Massachusetts proposed to protect her citizens against violations of their rights. “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.”(34)
Massachusetts then solemnly declared that in the view of its Legislature, the embargo was “not legally binding on the citizens of this State.” (Emphasis supplied.) Yet until the embargo were repealed, it was urged not that the law be obeyed, but only that “all parties aggrieved by the operation of this act . . . abstain from forcible resistance.”
We may look also to Connecticut. Do her press, and her professors, and her legislators now frown upon the South? This was what Connecticut said then:
The General Assembly are decided in the opinion, and do Resolve, that the acts aforesaid are . . . grievous to the good people of this State, dangerous to their common liberties, incompatible with the Constitution of the United States, and encroaching upon the immunities of this State.(35)
But Connecticut did not stop with mere expression of opinion. Her resolution directed all persons holding executive office in the State not to afford “any official aid or co-operation in the execution of the act aforesaid.” And more ominously still, Connecticut’s Legislature directed that the Governor be requested, “as commander in chief of the military force of this State,” to cause the resolution to be published in general orders. Let us note also this paragraph:
Resolved, that to preserve the Union, and support the Constitution of the United States, it becomes the duty of the Legislatures of the States, in such a crisis of affairs, vigilantly to watch over, and vigorously to maintain, the powers not delegated to the United States, but reserved to the States respectively, or to the people; and that a due regard to this duty, will not permit this Assembly to assist, or concur in giving effect to the aforesaid unconstitutional act, passed, to enforce the embargo.(36)
(Are the legislatures of the Southern States, today, it may be asked, fairly to be condemned by their New England brethren for viewing their responsibilities exactly as Connecticut and Massachusetts viewed their own responsibilities a century and a half ago? Is it to be urged that both were wrong, Connecticut then, Virginia now? Or is it not equally possible that New England legislatures were right then, in protecting the most intimate concerns of their people, and Southern legislatures are equally right today?)
Finally, brief note may be made of a concluding resolution on the embargo, adopted by the General Assembly of Rhode Island on March 4, 1809, the very day that the hated laws expired at the direction of Congress. The embargo, said Rhode Island flatly, had been an “unconstitutional” proscription on the people. In resisting it, the people of Rhode Island as one of the parties to the Federal compact, had a right to express their opposition; and the General Assembly, for its part, had a duty as the organ of their sentiments and the depositary of their authority,
to interpose for the purpose of protecting them from the ruinous inflictions of usurped and unconstitutional power.(37)
The duty of the States to interpose, thus expressed by Rhode Island at the time of the Embargo Crisis, remains in the view of this citizen of Virginia a high and undiminished duty of the States in our own generation.
LET US remain in New England for a while. It is a strong land, strong peopled, strong principled; and for all the blood they have shed against each other, the South and New England hold much in common. The row houses of Beacon Street are brothers to those of King Street, and the many-steepled valleys of Vermont have their clean and quiet counterparts in the Great Smokies and the Shenandoah Valley. The Southerner, traveling in New England, often finds a spiritual kinship in the courtesy and reserve of the people he meets; and no less certainly does the advocate of States’ rights, searching the history of Massachusetts, Connecticut, Rhode Island, and Vermont, find in their high-spirited past repeated expressions of New England’s devotion to the responsible role assigned to the States.
The detested embargo was abandoned, we have noted, in March of 1809, only to give way to a non-intercourse act almost equally resented. In April of 1810, John Randolph of Roanoke described this proscription in characteristic language: “It has been reprobated and reviled by every man, of every political description, in this House and out of it, from one end of the country to another.” Why, then was it kept on the books? “Is it a sort of scarecrow, set up to frighten the great belligerents of Europe? Or is it a toy, a rattle, a bare plaything, to amuse the great children of our political world?”(38)
Certainly New England was not amused. Her commerce still suffered, her ships still were idled. Worse yet, blundering British diplomacy (by which Madison first was encouraged to believe that Britain would suspend her restrictions on trade, only to be abruptly disabused of the thought) added to national feeling against the government of George III. Bitterly, the Federalists saw Republicans make large gains in Congress and in State legislatures; and to the insult of affairs abroad was added fresh injury at home, in the furious controversy of 1811 over the admission of Louisiana. To an angered New England, this was fresh evidence of the declining influence of the East. Secession was talked openly on the village greens, and in Congress a melancholy Josiah Quincy commented sadly that it soon would be the duty of some of the States “to prepare definitely for a separation.”(39)
It was in this spirit of total discontent that the Federalists voted solidly against Madison’s request in June 1812 for a declaration of war against Great Britain. The resolution carried by the feeble vote of 19-13 in the Senate and 79-49 in the House. To the Federalists, it was Madison’s war—and Clay’s and young Calhoun’s; it was “a party and not a national war,” entered into by a “divided people.” In Massachusetts, the Legislature rebelliously adopted resolutions urging her male citizens not to volunteer except for defense operations; the Governor proclaimed a public fast to atone for the wickedness of the administration’s action.(40)
Nevertheless, as Southern States are so often reminded in another context these days, the declaration of war was the supreme law of the land. There was no question of the constitutional power of Congress to declare war. But we may well inquire: Where was the “spirit of willing compliance,” to which Southern States are abjured so strenuously just now, in the New England of 1812?
War was declared on June 18. On the 22nd, General Dearborn, by authority of the President, called upon both Massachusetts and Connecticut to supply detachments of their militia for coastal defense. Governor Caleb Strong of Massachusetts flatly refused to comply. Under the Constitution, he said, Congress could provide for calling forth the militia on three grounds only: To execute the laws of the Union, to suppress insurrection, or to repel invasion. For his own part, he could not perceive that any of these exigencies was present. The Supreme Judicial Court of Massachusetts agreed with him: Judges Parson, Sewall, and Parker, asked for an advisory opinion, agreed that the right to decide when the militia would be ordered to duty was a right “not delegated to the United States by the Constitution, nor prohibited by it to the States; it is reserved to the States respectively, and from the nature of the power, it must be exercised by those with whom the States have respectively entrusted the chief command of the militia.”(41)
Governor Griswold of Connecticut took precisely the same view. On June 29, he convened his executive council, which advised him to reject General Dearborn’s requisition. In August, the General Assembly of Connecticut warmly concurred in the Governor’s course of resistance. If the State militia could be called out upon the sole decision of Federal authority, said the Assembly’s resolution of August 25, it would have the effect of converting the militia into standing troops of the United States. The Assembly was “not able to discover that the Constitution of the United States justifies this claim.”
Let us note carefully what the Assembly next declared—this is Connecticut speaking:
The people of this State were among the first to adopt that Constitution. . . . They have a deep interest in its preservation, and are still disposed to yield a willing and prompt obedience to all the legitimate requirements of the Constitution of the United States.
But it must not be forgotten, that the State of Connecticut is a FREE SOVEREIGN and INDEPENDENT State; that the United States are a confederacy of States; 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,” and the obligation to support the latter imposes an additional obligation to support the former. The building cannot stand, if the pillars upon which it rests, are impaired or destroyed.(42) [Emphasis in the original.]
And because Connecticut, as a State, did not agree that Madison had authority to requisition her militia “to assist in carrying on an offensive war,” Connecticut refused to participate until New England should in fact be threatened “by an actual invasion of any portion of our territory.”
So, too, with Rhode Island. On October 6, Governor William Jones, on the advice of his Council and with the approval of the General Assembly, advised Federal authorities that he alone, as Governor of the State, would judge “whether those exigencies provided for by the Constitution exist or not.”
So, also, with Vermont. On October 23, 1813, Governor Chittenden declared in a message to the Assembly that he always had regarded the militia as a force “peculiarly adapted and exclusively assigned for the service and protection of the respective States.” It never could have been contemplated by the framers of the Constitution, “who, it appears, in the most cautious manner guarded the sovereignty of the States, or by the States who adopted it, that the whole body of the militia were, by any kind of magic, at once to be transformed into a regular army for the purpose of foreign conquest.”
In the case of Vermont, there is a sequel to the story that may be briefly noted. By a proclamation of November 10, Governor Chittenden commanded the recall of a part of the Vermont militia that was then serving under Federal command “for the defense of a neighboring State.” Vermont’s troops refused to obey this command and arrested the Governor’s agent. A resolution then was offered in Congress instructing the prosecution of the Governor for treason. A counter resolution was offered in Massachusetts, “pledging the support of the State to the Governor and people of Vermont in their efforts to maintain their constitutional rights.”(43) Quite a rash of other resolutions then broke out. New Jersey, in February of 1814, regarded “with contempt and abhorrence, the ravings of an infuriated faction, either as issuing from a legislative body, a maniac Governor, or discontented and ambitious demagogues.” In March, Pennsylvania also denounced Governor Chittenden, and viewed “with utmost concern and disapprobation every attempt to screen from just punishment any individual or individuals, however exalted by station, who may violate the Con-stitution or laws of the United States.”
What may we learn from this today? This citizen of Virginia, taking note of these events, does not profess to say who was right and who was wrong on the matter of the militia. Certainly it would appear that the question of contested power, having been raised by responsible States in mid-summer of 1812, could have been settled promptly had it been submitted to the arbitrament of all the States. The one point that may be emphasized, for the purposes of this essay, is that for two solid years—from the summer of 1812 until New England actually was invaded in the summer of 1814—Massachusetts, Connecticut, Rhode Island, and Vermont interposed their sovereign powers against what they regarded as an encroachment by Federal authority upon their rights. They stood granite-like upon what was to them a question of high constitutional principle.
NEW ENGLAND'S contribution in this period to the story of State and Federal relations is by no means ended. Even as the bitter controversy continued over the control of State militia, Congress in December, 1813, added a fresh grievance to the Federalists’ overflowing cup: A new embargo law was adopted, more stringent than all the embargoes of the preceding five years. Even shore fisheries and coastal trade were proscribed. In Massachusetts, a flood of memorials and remonstrances poured in from town meetings. These petitions were assembled and referred to a committee of the State Legislature headed by William Lloyd; and on February 18, 1814, the General Court of Massachusetts overwhelmingly approved what still is remembered as “Lloyd’s Report.” It merits respectful attention.
The report first reviewed the protests of the town meetings against the December embargo:
This act is denounced by all the memorialists in the warmest and most energetic language as a gross and palpable violation of the principles of the Constitution; and they express decidedly their opinion, that it cannot be submitted to without a pusillanimous surrender of . . . rights and liberties. . . .
The Massachusetts legislators were wholly prepared to accept this view of the law, and to interpose their powers against it. The people, they said, had given Congress no right to enact the law. And now let us read closely—this is Massachusetts speaking:
A power to regulate commerce is abused, when employed to destroy it; and a manifest and voluntary abuse of power sanctions the right of resistance, as much as a direct and palpable usurpation. The sovereignty reserved to the States, 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. Whenever the national compact is violated, and the citizens of this State are oppressed by cruel and unauthorized laws, this Legislature is bound to interpose its power, and wrest from the oppressor his victim. [Emphasis supplied.]
This is the spirit of our Union, and thus has it been explained by the very man [Madison], who now sets at defiance all the principles of his early political life.(44)
What course could the Legislature pursue? Three avenues had been suggested. One was a memorial to Congress, but that would be useless: “It has been again, and again resorted to, and with no other effect than to increase the evils complained of.” Secondly, laws might be adopted to punish violations of the security of the people of Massachusetts in their property; but sufficient State laws already existed: “No act of this Legislature can afford any additional security.” Thirdly, following the proposal of Madison himself in the Virginia Resolution, a convention of States could be urged, “for the purpose of devising proper measures to procure the united efforts of the commercial States, to obtain such amendments or explanations of the Constitution, as will secure them from future evils.”
It was this course that ultimately was to be sought, but Massachusetts, in February, thought the time not yet right to take it. Some negotiations had begun toward ending the war, and if these were successful the burdens would be removed. For a second reason, it was thought better to let the people themselves pass on the question of summoning a convention among the offended States, by making it a campaign issue in the next election to the General Court. Meanwhile, the people were urged patiently to wait “for the effectual interposition of the State Government for their relief.” The embargo, in the State’s official view, was “unconstitutional and void.”
It is difficult, considering the many forces and counter-forces leveled against each other in that tempestuous year, to appraise the weight that should be accorded the resolute posture taken by the Massachusetts Legislature. But the fact is that the embargo act of December, 1813, was not effectively enforced and soon was repealed, largely because of the interposition of the New England States. The effect of their resistance was to nullify the law.
Similarly, it is impossible to say whether, in the late fall of 1814, the oratory of Daniel Webster or the militant opposition of Massachusetts and Connecticut was the more responsible for defeat of a conscription bill proposed by Madison’s desperate administration. At its October session, the Connecticut Legislature condemned the conscription plan as “not only intolerably burdensome and oppressive, but utterly subversive of the rights and liberties of the people of this State.” Should the bill actually be passed, “it will become the imperious duty of the Legislature of this State to exert themselves to ward off a blow so fatal to the liberties of a free people.” Hence the Governor was instructed to summon an immediate session of the Assembly if the bill became law.
As events worked out, the conscription bill was defeated. Webster, tossing his massive head in a roaring denunciation of the conduct of the war, condemned the bill as “this horrible lottery”—not only unconstitutional, but worse than unconstitutional: “’tis murder.”(45) But Congress did pass, however, a “Bill in regard to the Enlistment of Minors”; and Connecticut, in January, 1815, promptly undertook to nullify its provisions by adopting her own “Act to Secure the Rights of Parents, Masters and Guardians.” The act required judges to release on habeas corpus all minors enlisted without the consent of their parents or guardians, and provided for fines and imprisonment against any person concerned in such enlistment who should remove any such minor out of the State.(46) Massachusetts, the following month, enacted a similar law.
WE MAY now profitably turn back to the strongly-worded resolution that Massachusetts had adopted in February of 1814. Should all else fail, the Legislators had said, and negotiations with Britain prove fruitless, a convention of the aggrieved New England States should be summoned.
All else did fail. The peace commission, in the spring, had nothing of a favorable nature to report. Meanwhile, the British, who earlier had capitalized upon Federalist sentiment in New England by leaving her ports relatively free of blockade, now began turning on pressure. During the summer, the blockade was extended, and coastal raids became a matter of increasing concern. In August came the capture of Washington, and near collapse of the national government. New England Federalists were not greatly concerned.(47) But when British troops began to occupy parts of Maine and Massachusetts, New England States, which earlier had been so indifferent to needs of the United States Army, now cried out for Federal forces. When these were not promptly provided, the Legislatures turned to their own militia. Early in September, Governor Strong of Massachusetts called out 5,000 militiamen, and summoned a special session of the General Court for October 5. A committee of the Legislature brought in a report accusing the national administration of deliberately neglecting the defense of Massachusetts. The day of salvation had passed, said the committee, unless Massachusetts discarded an administration “which made war for party purposes.”(48)
It was evident, said the committee, that the present Constitution did not give the Eastern States their proper rights; the usual means of amending the Constitution were inadequate to the emergency. It was recommended, therefore, that a convention be called to undertake the task.
The resolution thereupon adopted, in addition to providing for the raising of a State army of ten thousand men, called for the appointment of twelve delegates to confer with delegates from other New England States. They were to discuss measures of common defense, and also, “should they deem it expedient,” were “to lay the foundation for a radical reform in the national compact, by inviting to a further convention, a deputation from all the States in the Union.”
Rhode Island accepted warmly on November 5. “The Legislature and the whole people of this State already but too well know how frequently and fruitlessly they have petitioned the Federal government for some portion of those means of defense for which we have paid so dearly, and to which, by the Constitution, we are so fully entitled.” But these petitions had gone unheeded, or been answered only by “unmeaning professions and promises never performed, but generally by telling us to protect ourselves.” Rhode Island and her sister States were not compelled to continue to accept such mistreatment “by a government we have ourselves created.”
Connecticut also accepted the invitation of Massachusetts, and though neither Vermont nor New Hampshire officially accepted, both were represented when the convention began at Hartford on December 15.
Now, the Hartford Convention of 1814 has often been ridiculed. It has been described as a “purely party assemblage, lacking the united support of New England.”(49) Its proposals for constitutional amendment later were to be “unqualifiedly rejected” by New Jersey, denounced severely by New York, condemned in a long report from Pennsylvania, and rejected without comment by Vermont, Virginia, North Carolina, Ohio, Tennessee, and Louisiana.
Yet this assemblage ought not to be so cavalierly disdained. The twenty-six delegates who met in the counsel chamber of the State House at Hartford included some outstanding men—the Chief Justice and an associate justice of the Supreme Court of Connecticut, the Chief Justice of Rhode Island, former United States Senator George Cabot of Massachusetts, and Harrison Grey Otis, an outstanding Federalist who had represented Massachusetts in Congress. Among others present were Nathan Dane, author of the Ordinance of 1798; Stephen Longfellow, father of the poet; Timothy Bigelow, Speaker of the Massachusetts House of Representatives; Chauncey Goodrich, Lieutenant Governor of Connecticut; Senator James Hillhouse of New Haven, Treasurer of Yale College, and several leading members of the State legislatures.
The convention met in closed session from December 15 until January 4, when its report was formally adopted. It is true, as William Edward Buckley said of it, that much of the report “took the tone of a party platform.”(50) It opened with an account of the virtues of Federalist administrations and the general incompetence and corruption of the Republican administrations. Among the amendments proposed to the Constitution was a patently political proposal, aimed at ending the Virginia dynasty, by which no President could be eligible for reelection, nor could Presidents be elected from the same State for successive terms. Another proposed amendment, recalling Jefferson’s Secretary of the Treasury, Albert Gallatin, would have barred naturalized citizens from serving in Congress or holding any civil office under the national government. Other proposed changes in the Constitution would have based representation in Congress (and votes in the electoral college) solely upon the number of free inhabitants of the States; required a two-thirds vote of both Houses of Congress to admit new States or to declare war; limited any embargoes laid by Congress to sixty days; and required that any act shutting off commercial relations with a foreign nation must pass Congress by a two-thirds vote. The last group of proposals, it will be seen, were concerned not with partisan politics as such, but with the concerns that had dominated New England since the first embargo six years earlier.
These resolutions became public on January 6. But unknown to the delegates at Hartford, while they met, a peace treaty ending the war had been signed at Ghent on December 24; even then the treaty was on its way to Washington for ratification. Then, on January 8, Jackson defeated the British at New Orleans. As soon as these events became known, the whole purpose of the Hartford Convention vanished, and jubilant Republicans leaped upon the resolutions with vengeful cries of “treason!” and “disunion!” and “folly!”
But was the Hartford Convention so futile? Was it, in retrospect, as great a blunder as some historians have termed it?
There is some reason to believe that this drastic interposition by the New England States achieved at least some of the objects which were sought, and that the convention itself was not nearly so repudiated by the people at the time as it has been denounced by historians of a much later era.
Harrison Gray Otis, who was to spend much of the remainder of his life defending the Hartford Convention,(51) made some of these points in A Short Account of the Hartford Convention, which he published at Boston in 1823. Here he notes, for example, that the Massachusetts House of Representatives, which had approved the call of the convention in October of 1814 by a vote of 260 to 90, the following year adopted a new report, defending and approving the Hartford resolutions, by an equally impressive vote of 159 to 48. Also, the year after the “blundering” Hartford Convention, Massachusetts voters returned Caleb Strong to the Governorship by the same “relative majority as he had received the year before.” Evidently the delegates were not repudiated by their own people.
More important, however, is this: The Hartford Report concluded with a resolution urging adoption of a law by which State troops would be used in State defense. This was exactly the substance of a law, Otis notes, “incredible and unlooked for as it certainly was, which was enacted by the national government on the 27th day of January, 1815.” The law authorized and required the President to receive into the service of the United States any troops which might have been raised and organized under the authority of a State, whose term of service was not less than twelve months, subject to the rules and articles of war, with the provision that such troops could be employed “in the State raising the same, or in an adjoining State, and not elsewhere, except with the assent of the Executive of the State so raising the same.”
“Now, we declare,” said Otis, “and we appeal most solemnly to every honest man who lived in those disastrous days, if the whole bone and muscle, and marrow of the controversy was not touching the exact and precise point which this law absolutely and entirely settled.”
Another major grievance of the New England States, repeatedly emphasized by their members in Congress, was the refusal of the United States to pay members of the State militia who had served in defending any part of the United States. The Hartford Convention also had asked for redress on this score, and a bill carrying out the proposal had passed the United States Senate and was on its way to the House when news of peace arrived. “What is this,” asked Otis, “but acknowledging in plain and direct terms the justice and propriety of all the proceedings of New England during the war?” Up until the very moment that news of the peace arrived, he insists, “the government was not only disposed but prepared to comply with every proposition contained in the commission.”(52)
It is not the purpose of the author of these notes either to applaud or to condemn the conduct of the New England States in this period of 1808-15; the purpose is simply to recount what happened. The States interposed, and to a very large extent, they succeeded in obtaining the ends which they, as States, deemed so vitally important to their own interests: They undertook to nullify the whole series of acts relating to non-intercourse, non-importation, and embargo. Taking a strict construction of the constitutional provision relating to calling forth the militia, they succeeded in challenging national authority throughout the whole of the war. Their interposition was influential in defeating a conscription bill they regarded as unconstitutional; and when a corollary bill actually was approved, relating to the enlistment of minors, they effectively nullified it with State laws of their own. Until the day that news was received in Washington of Jackson’s victory and the Treaty of Ghent, they were well on their way to achieving two of the most important objects sought by the Hartford Convention. Throughout this period, the interposing States repeatedly asserted, in the strongest and most unequivocal terms, their view of the Union as a confederacy in which the sovereignty and the broad reserved rights of the States must be respected. They did not hesitate to term actions of the Federal government “unconstitutional and void,” and they laid down, as a deliberate, and considered public policy, a program of steadfast resistance to what they deemed encroachments upon their powers.
SOME of the greatest embarrassments of the Madison administration during the War of 1812 stemmed from the inability of the government efficiently to finance its operations. The charter of the first Bank of the United States expired in 1811, and a hostile Congress, divided by factionalism and genuinely concerned at the constitutional issues of a national bank, stubbornly refused to renew it. By 1813, the Treasury was desperate. Efforts to float war loans met with the resentful disdain of State banks. Legitimate revenues of the government could not be transferred for lack of a national common medium of exchange. By 1814, the Treasury itself could no longer pay interest on the national debt. In Boston, Philadelphia, and New York, the Federal government found itself unable to redeem treasury notes. The War Department could not pay a bill for $3,500. The State Department could not even pay for its stationery.(53)
In this chaotic state of affairs, many Republicans deserted their principles of strict construction: Even Calhoun came to support the second Bank of the United States, and took a decisive part in the leadership that led finally to the act of April 10, 1816, recreating the bank under a twenty-year charter.
Scarcely had the bank been revived, however, before it ran into grave difficulties through mismanagement, speculation, and fraud.(54) Stock-jobbers and gamblers manipulated its securities shamefully. In Baltimore, some especially fraudulent transactions ironically centered around Cashier James W. McCulloch, whose name soon was to be identified with the bank’s preservation.(55)
In a desperate effort to retrieve itself from difficulties, the Bank of the United States began calling upon State banks for repayment of loans. But the State banks themselves were far overextended, and often unable to pay. In the resulting constriction of credit, hundreds of merchants, farmers, and storekeepers found themselves in bondage to “the monster.” At one point, the bank owned “a large part of Cincinnati” through such foreclosures,(56) but communities in North Carolina, Kentucky, and Indiana were scarcely less afflicted. As trade began to dry up and merchants dunned their impoverished creditors, a wave of hostility toward the Bank of the United States swept the country.
The animosity of the people was soon reflected in acts of their State governments. Indiana in 1816 and Illinois in 1818 inserted provisions in their Constitutions prohibiting the Bank of the United States from establishing branches within their jurisdictions. North Carolina imposed a tax of $5,000 on the Fayetteville branch. Georgia ordered a tax of 31¼¢ on every $100 of the bank’s stock. Maryland in 1817 undertook to impose a tax of $15,000 a year on the bank’s Baltimore branch. Tennessee levied a tax of $50,000 per year, and Kentucky exceeded this with a tax of $60,000 per year.(57)
Believing that these State taxes would bring destruction of the bank, Federal authorities hastily drummed up a contest in Maryland, in the certain conviction that John Marshall would bring home a decision in their favor. He did not disappoint them. In February of 1819, Marshall handed down one of his half-dozen most important decisions, in the renowned case of McCulloch vs. Maryland.(58) This decision is so well known, and so widely quoted, that no good purpose would be served by reviewing it at any length. Here Marshall gave the broadest possible construction to that clause of the Constitution which authorizes the Congress to pass whatever laws may be “necessary or proper” to carry out functions of the Federal government. On this point, Marshall held that “necessary” should be understood to mean no more than “convenient,” or “useful,” or “conducive to.” “Let the end be legitimate,” he said, “let it be within the scope of the Constitution, and all means, which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional.”(59)
On the second point, he explored at great length Maryland’s contention—an entirely sound and proper contention, in the view of the author of these notes—that the Constitution did not emanate from the broad mass of the people, but “as the act of sovereign and independent States.” But Marshall, of course, found it “difficult to sustain” this self-evident proposition that the powers of the General government had been delegated by the States. It was true, he had to admit, that the Constitution had been ratified by the people in their respective States, but what of this? “Where else should they have assembled?” No political dreamer was ever wild enough, Marshall asserted, “to think of breaking down the lines which separate the States, and of compounding the American people into one common mass. Of consequence, when they act, they act as States.” But Marshall, dogmatically refusing to distinguish between a “State” and a “State government,” thoroughly confused the essential point here at issue. He threw a sop in the direction of strict construction: “The principle that [the Federal government] can exercise only the powers granted to it, would seem too apparent to have required to be enforced by all those arguments which its enlightened friends . . . found it necessary to urge.” But prophetically, he remarked that “the question respecting the extent of the powers actually granted, is perpetually, arising, and will probably continue to arise, as long as our system shall exist.” Then, agreeing that the States have an undoubted power to tax within their jurisdictions, he denied that the bank was within their reach; it was a creature of the Federal government, of all the people, beyond the power of any State or group of States. “That the power to tax involves the power to destroy,” he observed, in the most famous line from this decision, is a proposition not to be denied.
“The court has bestowed on this subject its most deliberate consideration,” said Marshall, “The result is a conviction that the States have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by Congress to carry into execution the powers vested in the general government. This is, we think, the unavoidable consequence of that supremacy which the Constitution had declared.”
And who would declare and define that supremacy of the Federal government? Why, John Marshall, to be sure, Chief Justice of the Federal government’s Supreme Court. The States that had created the Constitution, and bound themselves by their mutual compact, were to have no effective voice in saying what the compact meant. Presumably all the people, through the Congress, had approved the bank; therefore none of the people, through their States, could disapprove it. When the people acted nationally, as Marshall thought, to aggrandize the powers of the Federal government, the people were right; when the identical people acted as States, to restrict the Federal agency, they were wrong.
His opinion, to be sure, did not go unchallenged. One of the most lucid, and indeed overwhelming criticisms of Marshall’s doctrines, came in Virginia from Spencer Roane, chief judge of the State’s Supreme Court. It was an accident of fortune, and a most unlucky one, that saw Roane writing letters to the Richmond Enquirer while Marshall wrote law on the Court. Their positions could easily have been reversed. Historians are agreed that had Ellsworth not retired from the Court in time for Adams to name Marshall Chief Justice, the incoming Jefferson would have appointed Roane to the place Marshall was to occupy.(60) In that event, we might have enjoyed a government as our government constitutionally was intended to be, by a federation of sovereign States jointly controlling their mutual agent, the Federal government. Roane ranks among the greatest “might have beens” of our history. He was a man of towering integrity, great eloquence, and profound convictions on the nature of the Union. He was a States’ Righter in a way that his high-tempered father-in-law, Patrick Henry, could never have been, for Roane’s views were grounded in a depth of penetrating thought that the more colorful Henry rarely brought to his public statements.
The Supreme Court’s decision in the McCulloch case, Roane was to write, served to expunge the words “necessary and proper” from the Constitution. And “great as is the confidence of the nation in all its tribunals, they are not at liberty to change the meaning of our language” or effectively “to change the Constitution.”(61) More than this, in Roane’s view, the court “had no power to adjudicate away the reserved rights of a sovereign member of the confederacy, and vest them in the general government.”
With great insight, Roane observed that it is ever the tendency of man to submit, little by little, to infractions of the fundamental law; the American people had not rebelled against George III until a general declaration had come along, asserting for the British Parliament a right to legislate for the American colonies “in all cases whatsoever.” In the McCulloch case, Roane perceived the same sort of general declaration: “If the limits imposed on the general government, by the Constitution, are stricken off, they have literally, the power to legislate for us ‘in all cases whatsoever’: and then we may bid a last adieu to the State governments.”
Roane went on to examine, with great care, the basic nature of the Union. The Federal government, it was intended, should have no powers beyond those specifically delegated by the States; all other powers were reserved then, in 1788, and must always remain reserved to the States or to the people, until delegated by Constitutional amendment. Was it not apparent, he asked, that Congress was to have, under the Constitution, only the powers “herein granted”? And was it not a reasonable construction, that the power of Congress to adopt laws “necessary and proper” for carrying out its enumerated powers, related only to those laws fairly incident to such powers? The phrase, said Roane, “created no extension of the powers previously granted.” Neither could the Supreme Court, by fiat, extend or stretch the language; if Federal powers were to be extended, or State powers further limited, let it be done “by amendment to the Constitution.” Let it be an “act of the people, and not that of subordinate agents.”
By its opinion in the McCulloch case, said Roane, the Court had laid down principles that “tend directly to consolidation of the States, and to strip them of some of the most important attributes of their sovereignty.” Yet the truth was, that the respective States never had consented to a consolidated government. As sovereign States, true, they jointly had delegated some of their powers, but they did not become less sovereign thereafter. They remained separate, respective States. He asked incredulously how Marshall could hold otherwise: “The States . . . gave birth to the Constitution; they support its existence, and they alone are capable of reforming or changing its form and substance, and yet we are informed by a solemn adjudication that its powers are not derived from that source, and consequently, that they are not parties to it!”
To be sure, Roane conceded, Marshall’s nationalist doctrine was not new. It had been advanced by Chase and Washington and Paterson, among others, at the time of the Alien and Sedition Acts. But the doctrine had then been “exposed and refuted, and I did not expect that it would be brought forward at this day under the proposed sanction of the highest judicial authority.”
One more paragraph from Roane’s exposition, and reluctantly this citizen of Virginia will resume his own narrative notes. But let this be attended carefully:
The doctrine [which denies that the States are parties to the Federal compact], if admitted to be true, would be of fatal consequence to the rights and freedom of the people of the States. If the States are not parties to the compact, the legislatures of the several States, who annually bring together the feelings, the wishes, and the opinions of the people within their respective limits, would not have a right to canvass the public measures of the Congress, or of the President, nor to remonstrate against the encroachments of power, nor to resist the advances of usurpation, tyranny and oppression. They would no longer be hailed as the sentinels of the public liberty, nor as the protectors of their own rights. Every government, which has ever yet been established, feels a disposition to increase its own powers. Without the restraints which are imposed by an enlightened public opinion, this tendency will inevitably conduct the freest government to the exercise of tyrannized power. If the right of resistance be denied, or taken away, despotism inevitably follows.
It has, however, been supposed by some that the Constitution has provided a remedy for every evil: That the right of the State governments to protest against, or to resist encroachments on their authority is taken away, and transferred to the Federal judiciary, whose power extends to all cases arising under the Constitution; that the Supreme Court is the umpire to decide between the States on the one side, and the United States on the other, in all questions touching the constitutionality of laws, or acts of the Executive. There are many cases which can never be brought before that tribunal, and I do humbly conceive that the States never could have committed an act of such egregious folly as to agree that their umpire should be altogether appointed and paid by the other party. The Supreme Court may be a perfectly impartial tribunal to decide between two States, but cannot be considered in that point of view when the contest lies between the United States and one of its members.(62) [Emphasis supplied.]
Thus, in Roane’s view, the States not only had a right to tax the Bank of the United States; they also had a right to resist the Supreme Court’s pronouncement until the States themselves had settled the question of contested power by their own arbitrament. It is evident that his views were widely shared. Despite the McCulloch opinion, many of the States continued to resist the bank. Georgia in 1819, and again in 1821, adopted particularly harassing enactments, designed to bar the bank from suing in Federal Courts.(63)
It was in Ohio, however, that events came to a climax. No State had suffered more grievously than Ohio from the disastrous inflation brought about by the bank’s first years of blundering mismanagement.(64) This hatred of the bank was manifested by an act of the Ohio Legislature in 1819—enacted in the teeth of the McCulloch decision—levying a tax of $50,000 per year on each of the bank’s two branches in the State. This tax was to become due on September 15, 1820, but the bank, having protested vainly against the levy, refused to pay and instead obtained an injunction from a Federal judge against its collection.
Before the injunction could be served, however, State Auditor Osborn ordered one of his deputies, John L. Harper, to collect the tax by persuasion if he could, but by violence if he must. Entering the bank’s branch office at Chillicothe, on the morning of September 17, Harper made one last request for voluntary payment. When this was denied, he leaped over the counter, strode into the bank vaults, and helped himself to $100,000 in paper and specie.(65) He then turned this over to a deputy, one H. M. Currie; and Mr. Currie, stuffing this considerable hoard into a small trunk, with which the party thoughtfully had come equipped, loaded the trunk into his wagon and set off down the road to Columbus.
The bank furiously brought suit against Osborn and Harper for recovery of the money, relying, of course, upon Marshall’s opinion in the McCulloch case. But Ohio was in no mood to regard the Supreme Court’s pronouncements as the supreme law of the land. In December of 1820, Ohio’s House of Representatives brought in a blistering report, substantially concurred in by the Senate on January 3, 1821, condemning the bank’s suit as a suit against the State itself. “To acquiesce in such an encroachment upon the privileges and authority of the States, without an effort to defend them, would be an act of treachery to the State itself, and to all the States that compose the American Union.”
Particular attention may be directed to the statement that next follows. Gentlemen, this is Ohio speaking:
The committee are aware of the doctrine, that the Federal courts are exclusively vested with jurisdiction to declare, in the last resort, the true interpretation of the Constitution of the United States. To this doctrine, in the latitude contended for, they never can give their assent.(66)
An express provision of the Constitution, said Ohio, places the States, in suits brought against them by individuals, beyond the jurisdiction of the Federal courts. Citing the Kentucky and Virginia Res |