Page images

privilege without hurt. It is unchangeable in its appeal and is heard with rapture by millions once a year in every city and hamlet in the land. It challenges refutation and where proscribed is not answered. It is feared by those whose power rests upon fraud or force. It conquers, but does not wound; it leaves no sting after the mind has been subdued; it wins its way through a spirit of amity and reason. Such is the declaration of independence, defeated on many battlefields since it was promulgated. But it has never been overthrown in the forum, in the realm of reason. All victories of force are barren which are not crowned by truth and justice. It were better that they were never won.

The civil war brought to the front a form of man not intended to flourish in this country. He is that banal demagogue who wishes to clothe in the sacredness of government whatever a paramount political party chooses to do. He takes occasion to denounce protest against usurpation as rebellion and treason. He conjures with the words “sovereignty” and “the flag." At the banquet board, where his resounding hypocrisies are launched, he starts with Thomas Jefferson as the author of secession and the proximate cause of the civil war. His peroration invests with the halo of divine dispensation the Philippine despotism. The critics of that despotism are branded as traitors. They are held responsible for the death of our boys in the islands. The honor of the army engages his swelling wrath and he sits down amidst the applause of those who have more respect for the rules of golf than they have for the constitution of

the United States. These are the scenes now enacted in a republic where, properly speaking, there is no such thing as the honor of the army or the act of any administration, even if crystallized into law, which forbids condemnation, oral and written, and proper effort to restore the government to liberty and law. There are many millions of men in this country who care nothing about the army and who are perfectly sure that it can have no honor while it is engaged in subjugation. They will not defer in their opinions to those who profit by that subjugation, and who would wreck the country before they would part with their anticonstitutional protective tariff. If what they say of Jefferson is true, how shall these self-appointed patriots complain? Who will explain the difference between breaking up the union by secession and destroying the union by annihilating the organic law which created the union and holds it together?

Jefferson in the Kentucky resolutions, in which the seeds of secession were said to be, attacked the palpable infractions of the constitution made by the tariff laws, the United States bank act and the alien and sedition acts. The resolutions were particularly called out by the alien and sedition acts. And a question as old as government and not yet settled arose by their passage, namely, Must people submit to tyranny to escape the charge of treason preferred by the temporary administers of the government? Human nature will take care of this problem. Men are not so cowardly or so weak that they will part with their liberties in order to earn the commendation of being loyal. The Kentucky resolutions were the prompt reaction against

the studied attempts of the anticonstitutionalists to destroy the republic, but they do not advocate secession. They do not go as far as the enemies of Jefferson wish they did. Jefferson was not a secessionist. His letters to John Taylor, Richard Rush and Elbridge Gary belie the charge that he advocated secession. The argument which Lincoln used with great effect, that secession would haunt secession and ultimately break up any group of seceded states, was Jefferson's. He applied it to the case of New England, which contemplated secession on account of the war of 1812.

It was at a dinner given in honor of Jefferson's birthday, April 13, 1830, that his name was first coupled with secession and that in a vague and somewhat subtle form. For President Jackson on that occasion responded to the toast "Our Federal Union: It Must Be Preserved.” This would have settled the character of the dinner except for the toast of Mr. Calhoun, who said: "The union, next to our liberty the most dear; may we all remember that it can only be preserved by respecting the rights of the states and distributing equally the benefits and burthens of the union.” These remarks were coupled with the circumstances of the day in the south looking toward disunion which served to identify Jefferson's name with the doctrine of the right of a state to withdraw from the union.

But the Kentucky resolutions advocated nullification, not secession. They assert the right of a state to stay in the union and nullify a law of the general government. “Where powers are assumed which have not been delegated a nullification is the rightful rem

edy." This is the language of the resolutions. The word secession nowhere appears in them. The right to nullify is based upon the assumption that an unconstitutional law is null and void and no law. That an unconstitutional law is no law is the judgment of the supreme court to this day. That court holds now that such a law may be disregarded by everyone. If so, a state could disregard it. But the resolutions go beyond this doctrine in declaring "that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated, since that would have made its discretion and not the constitution the measure of its powers.”

Now it may well be said that for the general government to legislate and the states to nullify the legislation a hazardous conflict might be produced, and therefore the power to decide ought to be somewhere. But in fact, as a theoretical question of constitutional law, where is the power? The necessity and the fact are different things. And if the general government may legislate as it thinks proper and also decide upon the validity of the legislation on the ground that the power must be somewhere and that it cannot be intrusted to the states, the states may likewise, theoretically, reply that the power must be somewhere, but cannot be with the general government because they thereby become subject to its discretion. This problem is not yet settled. It will never take the form of nullification again, and it should not. But we may be led to modify our constitution according to the Swiss constitution under which the court cannot invalidate legislation. We may even revert to the prin

ciple of the English constitution under which any law is constitutional that parliament enacts. Late republican tendencies which make our constitution a limitation upon power instead of a grant of power lead inevitably to this end. When congress becomes the judge of its constitutional energy an enlightened people will hold the balance of power at the polls.

But the condemnation of Jefferson for his theories of the nature of the republic is too particular. The charge that he caused the civil war is a gross absurdity traceable to the fumes of wine. That the states are sovereign, that the constitution is a compact, that the states may hold unconstitutional legislation to be void and may adopt such measures as they think best to protect themselves against it are propositions which Jefferson held in common with the most eminent men of his time and they were shared in by many distinguished statesmen since his day.

Hamilton himself, by fair inference, subscribed to the right of secession as early as 1790, eight years before the Kentucky resolutions were published. Madison, the father of the constitution, was at one with Jefferson on the resolutions. As early as 1803 the state of Massachusetts protested against the annexation of Louisiana and declared that "it formed a new confederacy, to which the states united by the former compact are not bound to adhere;" and as late as 1844 the same state resolved that the acquisition of Texas "would have no binding force on the people of Massachusetts.” In 1814 the New England states in the well-known Hartford convention declared that infractions of the constitution "affecting the sovereignty of

« PreviousContinue »