LECTURE V.

The Nature of the United States Government (continued): Its indefeasibility. Secession, according to the State-Rights Opponents of the Constitution, equivalent to Treason. — The Doctrine of Calhoun. Contemporanea expositio est optima et fortissima in lege. — The Supremacy of the National Government urged in the State Conventions as an Objection to the Constitution. Henry and Mason in the Virginia Convention; Findlay in the Pennsylvania Convention; Martin's Address to the Maryland House of Delegates; Discussion and Denial of the Right of Secession in the Conventions of New York and Virginia.

IT results from what has been said that the advocates of State-rights in the Convention agreed with the national party in conceding many of the attributes of sovereignty to the General Government, including that of employing force to compel obedience, which necessarily implied that the Union was, as the Articles of Confederation had declared, perpetual, and one which its subjects, whether States or citizens, could not rightfully dissolve. Obviously a right on the part of the Union to coerce a State is practically, if not logically, incompatible with a right on the part of the State to withdraw from the Union; because the advance of the federal troops would otherwise be a signal for the passage of an ordinance of secession that would put an end to the jurisdiction which the Government was seeking to enforce.

The difference between the two methods was not as to the right of the General Government to compel obedience, — which was universally regarded as indispensable, but whether the inhabitants of the State might repel force by force, or would be bound to submit and liable to be treated as rebels if they took up arms. The latter alternative was adopted, notwithstanding the dissent of some of the members of the Conven

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tion, and a desire on their part to establish the principle that a citizen cannot be guilty of treason by obeying his State, although her command is to levy war against the country as a whole.

The third section of the third article accordingly provides that "Treason against the United States shall consist in levying war against them or in adhering to their enemies, giving them aid or comfort." An attempt to subvert the government of the United States by force of arms is obviously treason under this article, though made in pursuance of an ordinance of secession or other law enacted by a State.1 Such was the view taken by one of the most strenuous advocates of State-rights, Luther Martin, and urged by him as a conclusive argument against the adoption of the Constitution. "If," said he, "a State has recourse to the sword in order to preserve itself from the oppression of the General Government, the proposed form of government declares that the State and every one of its citizens who acts under its authority are guilty of a direct act of treason. The States are therefore reduced to this alternative, they must tamely and passively yield to despotism, or their citizens must oppose it at the hazard of the halter. If they obey the authority of their State Government, they are guilty of treason against the United States; if they join the General Government, they are guilty of treason against their own State." He had, therefore, suggested as an amendment: "That no act or acts done by one or more of the States against the United States, or by any citizen of any one of the United States under the authority of one or more of the said States, shall be deemed treason or punished as such; but in case of war being levied by one or more of the States against the United States, the conduct of each party towards the other, and their adherents respectively, shall be regulated by the laws of war and of nations." But this provision was rejected, as being too much opposed to the main object of many of the leading members of the Con

1 See Jackson's Proclamation, 4 Elliott's Debates (2d ed., Phila., 1876), 59; 4 Madison's Writings, 421.

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vention, which was, in Mr. Martin's opinion, to leave the States at the mercy of the General Government.1

Luther Martin's argument would be a convincing proof, though there were no other, that, agreeably to the true intent and meaning of the Constitution, the Government of the United States is indefeasible as well as paramount, and war against it not less an act of treason because sanctioned by a State or levied at her command.

It is equally true and entirely consistent with the proposition that an illegal actas, for instance, quartering soldiers on the citizen in time of peace, or subjecting him to fine or imprisonment without due process of law-may be resisted without incurring the penalties of treason, although the wrong is done in pursuance of a law made by Congress or the President's command, and cannot be effectually repelled without a conflict with the forces of the General Government. Such resistance is not levying war against the United States within the meaning of the Constitution. For as the Government of the United States is confined to certain limits, a man who goes beyond them is not less a trespasser because he holds an official position or relies on an invalid order or enactment. Such is the well-established rule of the common law, and one without which liberty cannot well be secure in any land. But the legal standard in such cases is the Constitution as interpreted by the Supreme Court, and a State law or ordinance cannot vary the question or authorize resistance where the right would not otherwise exist.2

1 Luther Martin's address to the Maryland House of Delegates, 2 Elliott's Debates (2d ed., Phila., 1876), 586.

2 Force used, not to overthrow the government, but to keep its servants within proper limits and oppose the execution of an illegal order, is not treason at common law or under the statute of Edward I., even when it results in an armed conflict with the officers of the law or with the troops called out for their support. So the service of an informal writ, or one issued in a matter where the court has no jurisdiction, may be forcibly resisted; and if the constable is slain in the affray, it is not murder. 1 Smith's L. C. (8th Am. ed.), 1111, 1140, 1146; Howard v. Gosset, 10 Q. B. 359, 387, 437, 452; The Case of the Marshalsea, 10 Coke, 68, 76. It was on this ground that Lord Chatham vindicated the resistance

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It is singular, but can hardly be deemed surprising, that the political descendants of the men who in 1787 could see nothing federal in the Constitution, and based their objection to it on the ground that it merged the States in a consolidated government, should be convinced that this view was erroneous, and that the Government of the United States is a mere compact or alliance that may be dissolved at pleasure. The Constitution as delineated by Luther Martin, Patrick Henry, Lansing, and the other opponents of the measure in the last century, stands in such marked contrast to the doctrine of Calhoun and his disciples in this, that it would be. inconceivable that men so much alike, and having the same political views, could put such different interpretations on the same instrument, were it not obvious that the sentiment of uncompromising hostility, which prompted the allegation that the new government would be absolute, in the hope of preventing its adoption, led to the denial of its sovereignty after it had been established, with a view to effect its overthrow. These extreme views refute each other; and need only be thrown into the same crucible to evolve the truth that within the scope of their powers the United States are as sovereign as Parliament, although a wide field of usefulness lies open beyond these limits to the States.

We have the authority of Lord Coke for saying, Contemporanea expositio est optima et fortissima in lege; and although the of America, as dictated by the spirit which had from of old opposed forced loans, benevolences, and ship-money.

"If the king's servants will not present a constitutional question to be decided according to the principles and forms of the Constitution, then it must be decided in some other manner; and rather than it should be given up, rather than the nation should surrender their birthright to a despotic minister, I hope, my lords, old as I am, I shall see the question brought to issue fairly between the people and the Government. I have been bred up in these principles, and know that when the liberty of the subject is invaded, and all redress is denied him, resistance is justified. My lords, this is not the language of faction; let it be tried by that criterion by which alone we now distinguish faction and what is not, by the principles of the English Constitution. . . . Were I an American, as I am an Englishman, while a foreign troop was landed in my country I would never lay down my arms, never, never, never!"

language held in debate cannot vary the effect of a statute, still, when a measure is political and admits of two interpretations, that view should be preferred which was taken at the time, and on the faith of which it was adopted. Applying this test to the Constitution, we shall find that its opponents went farther than its advocates in contending that the Union would, if established, be sovereign and indefeasible, and form a bond from which there would be no escape. It was on this basis that the government was presented to the people, accepted by them, put in operation by its founders, and has worked successfully for well-nigh a hundred years; and it should be regarded as indisputable even by those who believe that it was originally incorrect.

The proceedings of the State Conventions are more significant in this regard than those of the assembly which devised the Constitution, because they were the enacting power, while it was merely advisory. Moreover, the State Conventions sat with open doors, and were better guides and exponents of public opinion than was the Federal Convention, which set the seal of secrecy on its debates by a resolution that "nothing spoken in this house shall be printed, published, or otherwise communicated." Among these assemblies none is more deserving of attention than the Virginia Convention, which from the reputation and ability of the delegates and the extent and population of the State, had a decisive influence on the course of events. When that body assembled, Patrick Henry, who was the acknowledged leader of the opposition, called for the "Act of Assembly appointing deputies to meet at Philadelphia to revise the Articles of Confederation, and other public papers relative thereto." Mr. Pendleton, who had been placed in the chair, said that they were not there to inquire whether the Federal Convention had exceeded its powers. Although the delegates to that body were only directed to consider the defects of the old system, and not to devise a new one, still, if they found it so thoroughly defective as not to admit of revision, and submitted a new system which the people had deputed them to investigate, he could not see any degree of propriety in reading the papers in