Caleb William Loring

“ Is it not doing strange violence to language to call a league or compact between sovereign powers a government?”
The United States Government thus originated from the people, as did the State governments. It is created for one purpose, the State governments for another; it has its own powers, they have theirs. There is no more authority with them to arrest the operation of a law of Congress, than with Congress to arrest the operation of their laws. ”

“ A sovereign government seldom, if ever, allows itself to be sued, and never gives the decision of a suit against itself or between itself and other governments to another jurisdiction. That is a direct surrender of sovereignty. The Constitution as originally adopted, gave to the United States judicial power in controversies to which the United States shall be a party, in controversies between two or more States, between a State and citizens of another State and between a State and foreign states, citizens, or subjects. ”

“ The only limit in the Constitution to the extension of the government’s power by amendments is that no State without its consent could be deprived of its equal suffrage in the Senate, and the importation of slaves until 1808 should not be prohibited. Under this provision the General Government, with the concurrence of three fourths of the Legislatures of the States, has an authority that no State government has. None of the State constitutions grant its Legislature the right to extend its powers over counties, cities, and towns; it must go to the people for that. ”

“ We must bear in mind that our Constitution and Government would have been an absurdity and a failure, if every State, as an independent authority, could question the validity of a United States law or the act of any of its legal or administrative officers; four and forty different State judiciaries to decide on what law was valid in each independent sovereign State or Nation. As Webster and Chief-Justice Marshall said, and Calhoun admitted, on every constitutional question this theory of nullification gave as many vetoes as there are States. ”

“ Thus the adoption of the Constitution was not only sanctioned by the Congress of the Confederacy, by the separate State governments, but finally by the people themselves of every State acting by virtue of their fundamental, sovereign power, they appointing the delegates who met in convention, and who in each State decided for the people, whether they would or would not enter into this new form of government. A sanction more binding on every one could not have been made. ”

“ We do not concede that nullification and secession have been barred because the course of events has been such that independent [7] sovereign States have grown into a nation; nor do we admit that the Union and its indissolubility depend only on the result of an appeal to arms. We claim with Webster that nullification and secession were entirely indefensible constitutionally, and also in the light of history at the time of the foundation of our Constitution, and ever since. ”

“ Every State constitution is a compact between the citizens to govern themselves in a certain manner, and the Constitution of the United States is likewise a compact made by the people of the United States to govern themselves as to general objects in a certain manner. ”

“ Is it not absurd to talk in this way, when no secessionist has been hung for treason, and a silver crown a short time since, at a public meeting, was prepared by some admirer for the dethroned autocrat of our Poland? At any rate we have no sedition law now, and freedom of speech against the government passes without comment. An unsuccessful revolution is rebellion, generally punished in other countries by death. It has not been so in our Russia. Jefferson Davis was indicted for treason; his trial never took place, as President Johnson issued a general amnesty proclamation. ”

“ So carefully, however, did Virginia assert this right that the explanatory report itself calls attention to “guard against misconstruction.” The interposition is not only to be in cases of deliberate, dangerous, and palpable breaches of the Constitution, but “to be solely that of arresting the progress of the evil of usurpation.” The resolutions do not even claim that in case of usurpation the binding compact of the government is broken up, but that the parties to it, which it has stated to be the people, should solely interfere to arrest the evil. ”

“ The claim of South Carolina is that instead of one tribunal we are to have four and twenty, as many tribunals as States; that each State is at liberty to decide as to the constitutionality of an act for itself and none bound to respect the decision of others. ”

“ I was much shocked a few years ago, in reading a Life of Webster, by the statement of its able and distinguished author that really Hayne had the right of the argument in the renowned debate on nullification. In reply I prepared a statement of Webster’s argument. Besides what Webster had so ably said, I found in the Constitution itself other proofs of the nationality of our government, of the intent of those who made it to establish a nation, of their full belief that they had done so, and that, historically, there was no contention as to this. ”

“ When the Constitution was adopted, it is safe to say that there was not a man in the country, from Washington and Hamilton on the one side, to George Clinton and George Mason on the other, who regarded the new system as anything but an experiment entered upon by the States, and from which each and every State had the right peaceably to withdraw, a right which was very likely to be exercised. ”

“ Even Jefferson Davis, in the conclusion of his history, concedes that the result of the war has shown that secession is impracticable. It is difficult, however, to understand how might has made right, and the conquest of the richer and more populous North over the weaker South has settled forever the right or wrong of the matter. The North does not believe in the sneering maxim of Frederick the Great, that the Almighty is on the side of the heavier battalions. ”

“ Apparently he did not know that January 23, 1861, Lee wrote to his son: “Secession is nothing but revolution.” “It” (the Constitution) “is intended for perpetual union, so expressed in the preamble, and for the establishment of a government not a compact, and which can only be dissolved by revolution or the assent of all the people in convention assembled. It is idle to talk of secession.” ”

“ There apparently is an almost insurmountable difficulty in the writers of other countries, only knowing unlimited, imperial supreme governments, to comprehend that a government of limited powers can be supreme in the powers granted to it. Knowing that the powers of our General Government are limited, they are apt to draw the conclusion that the fundamental unlimited power must be in the subordinate component parts, the States. ”

“ Webster perhaps unfortunately used the word compact in his argument when he said the Constitution was not a compact, meaning it was not a mere agreement amongst the States, a league, or confederacy, but that it was the fundamental declaration of a nation. ”

“ Our first chief-justice, John Jay, a most eminent jurist, a member of the New York convention, and one of the writers of the Federalist, in his decision in the case of Chisholm against the State of Georgia, where Georgia denied that a State could be sued, very clearly states how our government was formed and where the sovereignty is. He said: All the people of our country were subjects, every acre of land was held by grants from the Crown of Great Britain; the sovereignty passed from the Crown to the people, and a confederation of States was established as the basis of a general government. ”

“ The same objection in South Carolina as in other States to the Constitution as destructive of liberty was made. James Lincoln, a delegate from Ninety-six, said: “From a democratic you are rushing into an aristocratic government. Liberty! what is liberty? The power of governing yourselves. ”

“ They, however, declared in the most emphatic terms that there could be no secession, that the Union was an indissoluble one of indestructible States by the very provisions of the Constitution itself.
If we examine the provisions of the Constitution, we find in the first clause is declared the perpetuity of the Union; in the last clause, excepting that setting forth it shall be established on the ratification by nine States, is stated in language that cannot be mistaken, its supremacy over States and State constitutions. ”

“ Kentucky resolves do not claim the right of secession; they do not follow out their premises to its logical conclusion. They do not declare or recommend that the State should treat the Alien and Sedition laws as null and void, though in their reply to the other States they say a nullification is “the rightful remedy.” They carefully let it be known they only protest. That Jefferson did not carry this theory of the Kentucky resolutions to the right of secession, is perhaps shown by his correspondence when the acceptance of the Constitution was pending in Virginia. ”

“ It is urged that originally we were one people of different colonies, subjects of the British Kingdom; our independence of that kingdom and existence as a power came from the declaration of the Congress of our combined [80] government, in which we are called one people. No State ever acted separately in any sovereign capacity; we carried on the war, made peace, and treated with foreign countries as one nation. Even territory had been ceded to the Confederacy by the several States; and it was the Confederacy that passed the ordinance of 1787 abolishing slavery in the Northwest. ”

“ Though the United States alone have those supreme powers, which by political writers are generally called sovereign, the word sovereign has been also used by American writers and politicians in reference to the powers of a State. The people of every State have supreme powers over their own local affairs, their own territory and citizens where the power has not been given to the United States ”

“ A singular claim that a State could enjoy the benefits of the Union and at the same time disobey its laws; this is nullification which Mr. Webster had to combat. His argument, however, applies [21] equally strongly to the claim of the right of secession. Indeed he says in his speech in reply to Calhoun:
“Therefore, since any State before she can prove her right to dissolve the Union, must show her authority to undo what has been done, no State is at liberty to secede on the ground that the other States have done nothing but accede. ”

“ The proclamation, whoever wrote it, is a clear, strong statement of the nature of our Union and its nationality; an abler production than Edward Livingston’s speech, when as Senator he spoke on this matter in 1830. If Jackson did not write a line of it he was not totally wanting in knowledge and comprehension, and must have understood the most important question that had arisen in his administration or in any administration since the inception of the government. ”

“ Bryce’s whole work is in accordance with the theory he asserts at the beginning of chapter iv., vol. i., page 29: “The acceptance of the Constitution of 1789 made the American people a nation. It turned what had been a league of States into a Federal State by giving it a National Government with a direct authority over all citizens.” ”

“ Indeed, we find that from necessity Great Britain is on the path of giving to her three kingdoms greater powers of local government. If one examines the bill for home rule for Ireland, proposed in 1886 by the Gladstone administration, he will find that the powers it proposed to give to Ireland are far beyond those our separate States have. Ireland, besides the right of taxing, was empowered to levy duties of customs and excise—that is, the right of protecting her own manufactures to the injury of England’s. ”

“ The Government was brought into existence for the very purpose of imposing certain salutary restraints on the State governments: it gave the United States sovereign powers over the States; it could make war, it could coin money, it could make treaties; it prohibited a State from making war, coining money, or making treaties; it gave the United States the exclusive power to make citizens. The people erected this Government; they gave it a Constitution, and in that Constitution they enumerated the powers they bestowed ”

“ It is a large, local, internal government that each State has over its territory, and the property and the acts of its citizens in that territory. The General Government in our extensive domain, having in addition to the powers it now has those of the States, would from the overwhelming mass of its duties be a failure. ”