Documents of American history, Vol. 3 hq37vp159

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CROFTS AMERICAN HISTORY SERIES Dixon. Ryan Fox, General Editor

DOCUMENTS

oof AMERICAN HISTORY Edited by

HENRY STEELE COMMAGER Columbia University

THIRD EDITION

1946

FS. CROFTS & CO. NEW YORK

COPYRIGHT, 1934, 1940, 1943, BY F. S. CROFTS & CO., INC. , First printing, September, 1934 Second printing, September, 1935 Third printing, February, 1938 SECOND EDITION

Fourth printing, September, 1940 Fifth printing, December, 1941 Sixth printing, October, 1942 THIRD EDITION

Seventh printing, April, 1943 Eighth printing, June, 1943 — Ninth printing, January, 1944 Tenth printeng, June, 1945 Fleventh printing, July, 1946 Twelfth printing, October, 19-16

ALL RIGHTS RESERVED

NO PART OF THE MATERIAL COVERED BY THIS COPYRIGHT MAY BE REPRODUCED IN ANY FORM WITHOUT PERMISSION

IN WRITING FROM THE PUBLISHER

MANUFACTURED IN THE UNITED STATES OF AMERICA

To

EVAN WHO LIKED TIIEM

FOREWORD BY THE GENERAL EDITOR Here are the fundamental sources of American history which all students of the subject read about, but for the most part, have not read; in this they share embarrassment with many of their teachers, well-read scholars though they be. It is reassuring, nevertheless, that such confessions are now made with shame, whereas our grandfathers, unless they were lawyers, would have quoted fifth-hand testimony with as clear a conscience as documents themselves. The literary historians in the mid-years of the nineteenth century cared little

where they found material, so long as it molded well into a moving narrative. Joel T. Headley, one of the most popular American historical writers of his time, while secretary of state in Albany thought New York was wasting money in the elaborate publication of its colonial documents; and at the end of the century John Fiske could make a great reputation as an historian without much concern for original sources. But appreciation of their high importance and zeal to gather and present them in convenient form had appeared long before, even in young America. Hezekiah Niles had compiled his Principles and Acts of the Revolution in 1822 and between 1837 and 1853 Peter Force produced nine massive folios of American Archives, which, unfortunately, a stupid federal government refused to continue. The credit for establishing contemporary sources as materials for teaching must go chiefly to Albert Bushnell Hart, who nearly forty years ago began to publish, for classes from elementary school to college, books of source-extracts illustrating the history of the United States,—flavorous samples from diaries and pamphlets, satires and sermons, prose and poetry. Others in their compilations held more strictly to archival records. The present generation knows it does not know a fact until it has checked with the primary source. But inconvenience mocks at duty, and few there are who form the habit of consulting documents before they speak.

Effective educational use of documents is practically impossible without a compilation. It is not likely, for example, that a college library could afford space for more than one set of the United States Statutes at Large. Suppose a conscientious class of forty were told to examine the Civil Rights Act of April 9, 1866, before tomorrow morning; it is easy to imagine what would happen to Volume XIV, and, since a book can be read by but one at a time, the disappointment of the thirty, at the least, who had to appear next day unprepared. Probably the library would contain no set of the Laws of Mississippi or of Louisiana and even the five or ten fortunate enough to have read the Act in question could have no first-hand knowledge of the state policies that brought it forth. With the present volume on his own table the student has not only the Act immediately before him in Document 252 but also six statutes of the Black Codes, in Documents 246 and 247, from which he can better understand it; he has in the brief editorial comment a clear idea of the setting of each and, all told, fourteen authors cited, from which, if time and disposition will permit, he may get the general background and detail. By such procedure he will acquire the habit of historical investigation, an objective more important than the amassing of information to be poured back on examination day. The novelty in the present work is in its successful essay toward practical completeness. Naturally, the compiler would make no claim that he has included here every document of significance in the development of the United States, but he has certainly brought together a larger and perhaps a better balanced collection than any predecessor. Difficult it is to annotate such documents without erring on the side of spare obviousness or on that of wearisome pedantry. In his introductory notes Professor Commager has nicely stopped at the point where essential helpfulness is completed and has referred to special works for Vii

4

viii FOREWORD BY THE GENERAL EDITOR extended comment. The volume becomes, therefore, a bibliographical guide in addition to its other usefulness.

These documents distil the spirit of the American people as understood by organized groups, parties, governmental bodies and responsib!e officials: in general they represent concerted and matured opinion or binding public action. These are not personal vagaries, interesting as those might be, but statements which have mirrored and directed the trend of our national growth. Without disparaging the infinitely various and voluminous testimony on which what is called social history must be predicated, the touchstone here has generally been the bearing of a document upon the transactions of politics. But the compiler knows full well that political forces do not rise alone in halls of legislation or of justice or in party conclaves; hence he properly includes such documents as Garrison’s manifesto in the Liberator and that of Tillman in the Charleston Courier, the Declaration of Purpose of the National Grange and the solemn pledge of the W. C. T. U. No one can foresee the ways in which these documents can be used, nor bracket them in lozical relation so as to suit all users; Professor Commager has wisely chosen strict chronology as his principle of arrangement. ‘his in itself is logical and exhibits the manysidedness of public life in any decade.

Commager’s Documents, we dare to prophesy, will be cited everywhere as a convenient form in which most basic sources of our political history may be consu'ted. In the college classroom, either as the foundation of a course or as supplementary reading, they will perform but one of many services. Everywhere that swift convenience is essential in historical inquiry this volume, we like to think, will many times repay its cost. Its wide-spread use, in its provision of the basic texts, will go far to dissolve the reputation of glib and careless volubiity sometimes fixed upon our countrymen and supp!ant it with that of accuracy and security in historical statement. Nearly five hundred messages from the past, serious and well-considered, are here open to instruct us.

Drxon Ryan Fox Union College

PREFACE These documents are designed to illustrate the course of American history from the Age of Discovery to the present. Exigencies of space and of circumstance have required that the term document be interpreted in a very narrow sense. Properly speaking, almost everything of an orig.nal character is a document: letters, memoirs, baliads, folk-lore, poetry, fiction, newspaper reports and editorials, sermons and speeches, to say nothing of inscriptions, stamps, coins, buildings, painting and sculpture, and all the innumerable memorials which man has left in his effort to understand and organize h.s world. I have tried to limit my selection to documents of an official and quasi-official character, though I have been no more consistent in this than in other things. I have not included selections often, and mistakenly, referred to as “readings”; even partially to illuminate American history from letters, memoirs, travelers’ descriptions, etc. would require many volumes; this material, too, should be read in its entirety rather than in excerpt, and is readily available to students. What is presented here, then, is part of the official record, and students know that the official record is neither the whole record nor in every case the real record. I cannot say that 1 have been guided in my choice of material by any rigid principles of selection. ‘lhe choice has been determined by the experience of the class-room, by personal interest, and by availability. I have attempted to include those documents with which students should be familiar,

such as the Northwest Ordinance or Marbury v. Madison; those which are illustrative or typical, such as colonial charters or land laws; those which focussed upon themselves the attention of the country, such as the Missouri Compromise or the Lincoln-Douglas Debates; those which serve as a convenient point of departure for the study of some economic or political development, such as labor cases or party p.atforms; those which illuminate some phase of our social life, such as the constitution of the Brook Farm Association or the

Mooney-Billings Report; those which have certain qualities of interest, eloquence or

beauty, such as Lee’s Farewell to his Army or Holmes’ dissent in the Abrams Case.

No one can be more acutely conscious of the inadequacies of such a collection than 1s the editor. Students familiar with the sources of American history will find many omissions and will discover many episodes unilluminated. To most of these charges I can plead only the exigencies of space; to some I must confess personal idiosyncrasy and fallibility. Students will look in vain for Webster’s Rep'y to Hayne or Stephen’s Cornerstone speech, for Hamilton’s Report on Manufactures or the Federal Reserve Act, for the diplomatic correspondence on the X.Y.Z. affair or the Trent episode. These, and scores of similar selections, were omitted because I was not able to achieve a satisfactory condensation and did not feel that they could be included zm extenso. While I have made efforts to find documents which would illustrate phases of our social and economic history, there are fewer of these

than is desirable. Such documents are hard to come by: spiritual forces do not readily

translate themselves into documents. I would have liked to have included Emerson’s Divinity School Address, Fitzhugh’s Pro-Slavery Argument, the platform of the American Economic Association; to have yielded to this temptation would have opened the flood-gates of miscellaneous source material. It cannot be pretended that presidential messages, supreme court decisions, or statutes, reveal much of the undercurrents of our social life. To discover these it would be necessary to go to church records, school reports, the minutes of fraternal orders, the records of labor organizations and agricultural societies, the records of probate courts, etc. American historians have been distressingly backward in the appreciation and publication of such material. These records therefore are not readily available, nor would a lifetime be sufficient to canvass them and take from them that which is typical. Neither the notes nor the bib‘iographies which accompany these documents pretend to be extensive. In the notes I have attempted to state only what js essential for an understand-

ing of the background of the document; the bibliographies are designed to indicate additional reading for the orientation of the document and additional bibliographical references. I have only occasionally included references to the rich deposits of material in

x PREFACE periodicals and the publications of learned societies: for these the student will have to go to specialized bibliographical guides and to the invaluable Writings on American History which Miss Griffin has compiled. The documents themselves have been taken from and collated with the sources indicated. No effort has been made to standardize spelling, capitalization or punctuation, or even to correct obvious errors in the originals: to have undertaken this, even granting its propriety, would have produced confusion. I have taken very few liberties with these documents. Omissions have been indicated by the customary ellipsis

sign, but I have omitted such phrases as “be it also enacted” and “done at the city of

Washington, etc.” without any indication. I have in most instances abbreviated Article to Art. and Section to Sec., and I have frequently substituted numbered dates for the lengthier form. Because of the possibility that a two-volume edition of the collection may be issued, it was thought best to begin a new pagination with the period since 1865: the Documents, however, have been numbered consecutively. I have no doubt that in the many processes of copying, collating, and printing, numerous errors have crept in; for these I beg the indulgence of the reader. I am under obligation to many people for cooperation in the compilation of this volume. The officials of the libraries of New York University bore patiently with my demands. To

my colleagues in the Department of History, Mr. Cochran, Mr. Craven, Mr. Hoffman, Mr. Musser, and Mr. Wettereau, to Mr. Stein of the Department of Economics, Mr. Thach of the Department of Government, and Dean Sommer of the Law School of New York University, I am grateful for suggestions. Without the faithful and intelligent assistance of Miss Margaret Carroll this volume could never have been prepared. HENRY STEELE COMMAGER

PREFACE TO THE 1940 EDITION This edition constitutes not a revision but an extension of the original edition of Documents of American History. Some errors which found their way into the original edition have been detected and corrected, the conclusions in some of the introductory notes modified in the light of new evidence, and the Dred Scott decision overhauled. The bibliographies are substantially the same: any general revision would have required resetting the entire volume. The new material now included covers substantially the first two administrations of President F. D. Roosevelt. The sum total of this new material may seem, at first glance, out of proportion to the total representation from earlier periods of our history. But two considerations may be submitted in explanation of this. First, more and more important legislation was enacted during the years 1933-1940 than in any comparable period of our history. Second, the tendency of legislators, and even of judges, to verbosity and elaborateness has degenerated. in recent years, into a positive vice. The problem of getting into a few pages the essentials of laws running to twenty-five or thirty thousand words has been one of utmost difficulty and one which should excite the attention of legislators and the sympathy of students. Perhaps a further word on the principle of selection is appropriate. I have sought to include most of the important legislation covering this opening phase of the New Deal, and to couple with legislative acts appropriate judicial interpretation. In some instances where judicial opinions embraced convenient summaries of the laws challenged, I have thought it justifiable to omit the laws and rely upon the judicial summaries. There are, in addition, some treaties, party platforms, committee reports, and Presidential addresses. The inadequacy of documentary material interpreting our social and economic institutions remains deplorable. The best of such material is to be found in judicial opinions, and for the extensive space allotted these I have no apologies to make. Sooner or later almost every issue of American life comes before the courts for review. HENRY STEELE COMMAGER

TABLE OF CONTENTS

| VoLUME I DOC. NO.

PAGE

1. PRIVILEGES AND PREROGATIVES GRANTED TO COLUMBUS. April 30,1492 . . . . |

2. PAPAL BULL INTER CAKIERA, May 4, 1493 . .« «© «© © © © © «© © « 2 3, TREATY OF TORDESILLAS. June.7, 1494 . . . «© «© © 6 we ew ew ee el 4 4. LETTERS PATENT TO JOHN CABOT. March 5,1496 . . 2. «© «© 2© «© «© «© «© 5

5 CHARTER TO SIR WALTER RALEGH. March 25,1584 . . . «© «© «© «© « «= 6

6. FIRST CHARTER OF VIRGINIA. April 10, 1606 . . . .« 2. « »© «© «© « « 8

7. SECOND CHARTER OF VIRGINIA. May 23,1609 . . . « « © «© «© «© «+ « 10 8. THIRD CHARTER OF VIRGINIA. March 12, 1612 . . . «© «© «© «© «© © «= 12

Q. ORDINANCE FOR VIRGINIA. July 24, 1621 . . 2. «© 2 6 © ew we we ee 4S

10. LEYDEN AGREEMENT. 1618 . . . . . 0). 6 © @ © ee we ew wl le 14

11. MAYFLOWER compact. November 11, 1620 . . . . «6 © «© «© «© «© « 215

12. FIRST CHARTER OF MASSACHUSETTS. March 4,1629 . . . «© . ©» « « © 16

13. CAMBRIDGE AGREEMENT. August 26,1629 . . . . 2. «© se @ 6 ew ew (18 14. CHARTER OF FREEDOMS AND EXEMPTIONS TO PATROONS. June 7, 1629 . . . . 19

15. CHARTER OF MARYLAND. June 20, 1632 . . . . 2. 2 ew ew ee ee CO

16. FUNDAMENTAL ORDERS OF CONNECTICUT. January 14,1639 . . . . . . . 22 17. PLANTATION AGREEMENT AT PROVIDENCE. August 27, 1640 . . . . .« « « 24 18. NEW ENGLAND CONFEDERATION. May 19, 1643 . . . 2. « «© «© «© « « 26

19. MASSACHUSETTS SCHOOL LAW OF 1642. . . « © «© «© «© «© © «© « «© 28 20. MASSACHUSETTS SCHOOL LAW OF 1647. . . «© 6 «© © «© © © «© © « 29

21. CAMBRIDGE PLATFORM. 1648 . . . . 2. 6 © «© © © © © © 6 © 29 22. MARYLAND TOLERATION ACT. April 21, 1649 . . . 2. . . . .« . © - 3!

23. NAVIGATION ACT OF 1660 . . . 2. 2. 6 ee ee wee ee 8D 24. INDEPENDENCY IN COLONIAL MASSACHUSETTS

1. DECLARATION OF LIBERTIES. June 10, 1661 . . . . . 2. «2. «© « « 34

2. ANSWER TO MR. SOLICITOR’S OBJECTIONS. October 2, 1678. . . . . . 34 25. CONCESSIONS TO THE PROVINCE OF PENNSYLVANIA. July 11, 1681 . . . . . 35

26. EARLIEST PROTEST AGAINST SLAVERY. February 18,1688 . . . . . . . . 37

27. NAVIGATION ACT OF 1696 . . . . 1. wee ee ee lle lee 8B 28. PENN’S PLAN OF UNION. 1697 . . 2. . . wee wee we 8 29. PENNSYLVANIA CHARTER OF PRIVILEGES. October 28, 1701 . . . . . «. « 40

30. MOLASSES ACT. May 17, 1733. . ww wee 4D 31. ALBANY PLAN OF UNION. 1754 . . . 2. 2. wee ee ee 48

32. OTIS’ SPEECH AGAINST WRITS OF ASSISTANCE. February 24,1761 . . . . . 45

33. PROCLAMATION OF 1763. October 7, 1763 . . . . . . 2. 0. hehe OAT 34. FRONTIER GRIEVANCES FROM PENNSYLVANIA. February 13, 1764 . . . . . 50

35. sTamMp AcT. March 22, 1765 . . . . . ee ee ee ee 5B 36. VIRGINIA STAMP ACT RESOLUTIONS. May 30, 1765 . . . . . . . . . 55

37. INSTRUCTIONS OF TOWN OF BRAINTREE, MASSACHUSETTS. October 14, 1765 . . 56

38. RESOLUTIONS OF THE STAMP ACT CONGRESS. October 19, 1765 . . . . . 57 39. NORTHAMPTON COUNTY RESOLUTIONS ON STAMP ACT. February 11, 1766 . . 59

40. PETITION OF LONDON MERCHANTS. January 17, 1766 . . . . . . . . 59

41, DECLARATORY ACT. March 18, 1766 . . . . 2. 2 6© w© «© © sw se) ~~ 60

42. QUARTERING ACT. March 24, 1765 . . . . . 2. 2. © «© © «© .. 61

43. TOWNSHEND REVENUE ACT. June 29, 1767 . . . . 1. ew we ww le «63 44. FUNDAMENTAL LAW AND THE BRITISH CONSTITUTION

1. MASSACHUSETTS HOUSE TO EARL OF SHELBURNE. January 15,1768 . . . 65 2. MASSACHUSETTS HOUSE TO MARQUIS OF ROCKINGHAM. January 22,1768. . 65

3. MASSACHUSETTS HOUSE TO LORD CAMDEN. January 29, 1748 . . . . 65 Xi

DOC. NO, PAGE

xil TABLE OF CONTENTS

45. MASSACHUSETTS CIRCULAR LETTER. February 11.1763 . . . . 3. . ep 66 46, BOSTON NON-IMPORTATION AGREEMENT. August 1,1763 . . . . «2. . « « 67 47, PETITION FROM REGULATORS OF NORTH CAROLINA. October 9, 1769 . . . . 68 48. NEW YORK SONS OF LIBERTY RESOLUTIONS ON TEA. November 29, 1773 . . . 70 49. INTOLERABLE ACTS

1, BOSTON PorT ACT. March 31,1774 . . . . . 1... et eti‘. 397. or a Old cases in which the original states shall be so South Leaflets, Vol. VI. The Report of 1784 subject and to all the acts and ordinances of never went into effect. See references in Doc. the United States in Congress assembled, con-

No. 79. formable thereto. Third. That they shall in no case interfere with the primary disposal of

The Committee to whom was recommitted the soil by the United States . . . nor with the report of a plan for a temporary govern- the ordinances and regulations which Conment of the western territory have agreed to gress may find necessary for securing the

the following resolutions. title to such soil to the bona fide purchasers.

Resolved, that so much of the territory Fourth. That they shall be subject to pay a ceded or to be ceded by individual states to part of the federal debts contracted or to be the United States as is already purchased or contracted, to be apportioned on them by shall be purchased of the Indian inhabitants Congress, according to the same common & offered for sale by Congress, shall be rule & measure, by which apportionments divided into distinct states, in the following thereof shall be made on the other states, manner, as nearly as such cessions will ad- Fifth. That no tax shall be imposed on lands, mit; that is to say, by parallels of latitude, the property of the United States. Sixth. That so that each state shall comprehend from their respective governments shall be repubnorth to south two degrees of latitude begin- _lican. Seventh. That the lands of non-resident ning to count from the completion of forty- proprietors shall in no case, be taxed higher

five degrees north of the equator; and by than those of residents ... before the admeridians of longitude, one of which shall mission thereof to a vote by its delegates in pass thro’ the lowest point of the rapids of | Congress. Ohio, and the other through the Western That whensoever any of the sd states shall

Cape of the mouth of the Great Kanha- have, of free inhabitants, as many as shall

way,... then be in any one the least numerous of the

That the settlers on any territory so pur- thirteen Original states, such State shall be chased, and offered for sale, shall, either on admitted by it’s delegates into the Congress their own petition, or on the order of Con- of the United States on an equal footing with gress, receive authority from them with ap-_ the said original states: provided the consent pointments of time and place for their free of so many states in Congress is first obtained males of full age, within the limits of their as may at the time be competent to such ad-

state to meet together for the purpose of es- mission. And in order to adopt the said tablishing a temporary government, to adopt Articles of Confederation to the state of Con-

the constitution and laws of any one of the gress when it’s numbers shall be thus inoriginal states, so that such laws nevertheless creased, it shall be proposed to the legislatures shall be subject to alteration by their ordinary of the states originally parties thereto, to relegislature; & to erect, subject to a like altera- quire the assent of two thirds of the United tion, counties or townships for the election of States in Congress assembled in all those

members for their legislature. cases wherein by the said articles the assent

That when any such State shall have ac- of nine states is now required; which being quired twenty thousand inhabitants, on giv- agreed to by them shall be binding on the new

LAND ORDINANCE OF 1785 123 states. Until such admission by their dele- That the preceding articles shall be formed gates into Congress, any of the said states into a charter of compact, shall be duly exeafter the establishment of their temporary cuted by the President of the United States government shall have authority to keep a in Congress assembled, under his hand & sitting member in Congress, with a right of the seal of the United States, shall be promul-

debating, but not of voting. gated and shall stand as fundamental con-

That measures not inconsistent with the stitutions between the thirteen original states principles of the Confedn. & necessary for and each of the several states now newly

the preservation of peace & good order among —_ described, unalterable ... but by the joint

the settlers in any of the said new states consent of the United States in Congress asuntil they shall assume a temporary Govern- sembled, and of the particular state within

ment as aforesaid, may from time to time which such alteration is proposed to be be taken by the United States in Congress made. assembled.

78. LAND ORDINANCE OF 1785 | May 20, 1785 (Journals of the Continental Congress, ed. by J. C. Fitzpatrick, Vol. XXVIII, p. 375 ff.) This land ordinance laid the foundations for the at a point that shall be found to be due public land system, followed in most essentials north from the western termination of a until 1862. Of particular importance were the line, which has been run as the southern provisions reserving certain lands for educa- boundary of the State of Pennsylvania; and tional purposes. See, P. J. Treat, The National the first Jj . t d Land System, 1785-1820; A. C. Ford, Colonial ESE ine, FUDAINE Cast an west, shall Precedents of our National Land System;.G. W. begin at the same point, and shall extend Knight, “History of National Land Grants for throughout the whole territory. Provided, Education in the Northwest Territory,” Am. that nothing herein shall be construed, as

Hist. Assoc. Papers, Vol. I. fixing the western boundary of the State An Ordinance for ascertaining the mode Olu syivama, hee geographer sna Cesig-

. ds in the Western nate the townships, or fractional parts of

of disposing nis townships, by numbers progressively from erritory. south to north; always beginning each range BE it ordained by the United States in with No. 1; and the ranges shall be disCongress assembled, that the territory ceded tinguished by their progressive numbers to

by individual States to the United States, the westward. The first range, extending which has been purchased of the Indian in- from the Ohio to the lake Erie, being habitants, shall be disposed of in the follow- marked No. 1. The Geographer shall per-

ing manner: sonally attend to the running of the first A surveyor from each state shall be ap- east and west line; and shall take the latipointed by Congress or a Committee of the tude of the extremes of the first north and States, who shall take an oath for the faith- south line, and of the mouths of the princiful discharge of his duty, before the Geogra- pal rivers.

pher of the United States. ... The lines shall be measured with a chain;

The Surveyors, as they are respectively shall be plainly marked by chaps on the qualified, shall proceed to divide the said trees, and exactly described on a_ plat;

territory into townships of six miles square, whereon shall be noted by the surveyor, at by lines running due north and south, and their proper distances, all mines, salt-springs, others crossing these at right angles, as near salt-licks and mill-seats, that shall come to as may be, unless where the boundaries of his knowledge, and all water-courses, mounthe late Indian purchases may render the’ tains and other remarkable and permanent

same impracticable, ... things, over and near which such lines shall The first line, running due north and south | pass, and also the quality of the lands.

as aforesaid, shall begin on the river Ohio, The plats of the townships respectively,

124 DOCUMENTS OF AMERICAN History shall be marked by subdivisions into lots te be paid in specie, or loan-office certificates, of one mile square, or 640 acres, in the same reduced to specie value, by the scale of direction as the external lines, and numbered depreciation, or certificates of liquidated from 1 to 36; always beginning the succeed- debts of the United States, including interest, ing range of the lots with the number next besides the expense of the survey and other to that with which the preceding one con- charges thereon, which are hereby rated at

cluded... . thirty six dollars the township, .. . on fail-

... And the geographer shall make... ure of which payment, the said lands shall returns, from time to time, of every seven again be olfered for sale. ranges as they may be surveyed. The Secre- There shall be reserved for the United tary of War shall have recourse thereto, and States out of every township the four lots,

shall take by lot therefrom, a number of being numbered 8,11,26,29, and out of townships ...as will be equal to one every fractional part of a township, so many seventh part of the whole of such seven lots of the same numbers as shall be found ranges, ... for the use of the late Con- thereon, for future sale. There shall be re-

tinental army... . served the lot No. 16, of every township,

The board of treasury shall transmit a for the maintenance of public schools within copy of the original plats, previously noting the said township; also one-third part of all thereon the townships and fractional parts gold, silver, lead and copper mines, to be of townships, which shall have fallen to the sold, or otherwise disposed of as Congress several states, by the distribution aforesaid, shall hereafter direct. . . .

to the commissioners of the loan-office of And Whereas Congress .. . stipulated

the several states, who, after giving notice grants of land to certain officers and soldiers

. . . shall proceed to sell the townships or of the late Continental army ... for comfractional parts of townships, at public plying with such engagements, Be it orvendue, in the following manner, viz.: The dained, That the secretary of war... detownship or fractional part of a township termine who are the objects of the above No. 1, in the first range, shall be sold entire; resolutions and engagements . . . and cause and No. 2. in the same range, by lots; and the townships, or fractional parts of townthus in alternate order through the whole ships, hereinbefore reserved for the use of of the first range... provided, that none the late Continental army, to be drawn for of the lands, within the said territory, be in such manner as he shall deem expedi-

sold under the price of one dollar the acre, ent... .

79. RELIGIOUS LIBERTY IN VIRGINIA Memorial of the Presbytery of Hanover October 24, 1776 (W. H. Foote, Sketches of Virginia, Historical and Biographical, p. 323 ff.) Parallel with the movement for political liberty To the Honorable the General Assembly of went a clemand for religious liberty. This move- Virginia:

ment was strongest in the South, where the The Memorial of the Presbytery of HanAnglican Church had long been established by — gyer humbly represents:

law. Ever since the days of the Great Awaken- . . . It is well known, that in the frontier ing, the dissenting churches had llourished in counties, which are justly supposed to conthe up-country of Virginia. The Presbyterian tain a fifth part of the inhabitants of VirChurch was particularly strong in the Valley, ginia, the dissenters have borne the heavy

where Scotch-Irish were found in large numbers burd f has; leb build;

Numerous petitions protesting against religious urcens Or pur¢ 1asing Brees, un ing discrimination had been presented to the Vir- churches, and supporting the established ginia House of Burgesses in the fifties and six- clergy, where there are very few Episcoties; with the coming of the Revolution these Palians, either to assist in bearing the exmemorials became even more numerous and pense, or to reap the advantage; and that more emphatic. See. Doc. No. 80 and references. throughout the other parts of the country,

VIRGINIA STATUTE OF RELIGIOUS LIBERTY 125 there are also many thousands of zealous species of religiovs, as well as civil bondfriends and defenders of our State, who, be- age. Certain it is, that every argument sides the invidious, and disadvantageous re- for civil liberty, gains additional strength strictions to which they have been subjected, when applied to liberty in the concerns of annually pay large taxes to support an es-_ religion; and there is no argument in favour tablishment, from which their consciences of establishing the Christian religion, but and principles oblige them to dissent: all what may be pleaded, with equal propriety, which are confessedly so many violations of for establishing the tenets of Mahomed by

their natural rights; and in their conse- those who believe the Alcoran: or if this quences, a restraint upon freedom of inquiry, be not true, it is at least impossible for the

and private judgment. magistrate to adjudge the right of preferIn this enlightened age, and in a land ence among the various sects that profess

where all, of every denomination are united the Christian faith, without erecting a chair in the most strenuous efforts to be free, we of infallibility, which would lead us back

hope and expect that our representatives to the church of Rome. . will cheerfully concur in removing every

80. VIRGINIA STATUTE OF RELIGIOUS LIBERTY January 16, 1786 (W. W. Hening, ed. Statutes at Large of Virginia, Vol. XII, p. 84 ff.) The Declaration of Rights of 1776 had an- Madison; A. C. McLaughlin, et.al, Source nounced the principle of religious liberty, but Problems in United States History, No. iv. the Anglican Church was still the established church. In 1777 the liberals succeeded in re- 41, acy for establishing Religious Freedom. pealing the statutes requiring church attendance

and universal support of the established church, I. Wuereas Almighty God hath created but it was not until 1779 that the church was the mind free; that all attempts to influence disestablished. Even this was not satisfactory, it by temporal punishments or burthens, Or and Jefferson prepared a bill for absolute re- by civil incapacitations, tend only to beget ligious lreedom and equality. This complete habits of hypocrisy and meanness, and are a divorcement ofthe church and bitterly f t]©, the f the Hol h opposed not only by Episcopal butstate by thewas eparture Fom taedpian Holy author Presbyterian and other dissenting churches as of our religion, who being Lord both of body

well. The proposal to make all Christian and mind, yet chose not to propagate it by

churches state religions on equal standing and coercions on either, as was in his Almighty support them by taxation found favor with such power to do; that the impious presumption men as Patrick Henry, Washington, and other of legislators and rulers, civil as well as ecconservatives. Jefferson characterized the long ¢lesiastical, who being themselves but falstruggle for religious freedom as “the severest lible and uninspired men, have assumed docontest in which I have ever been engaged,” ninion over the faith of others, setting up and it was not until 1785 that his Lill, sponsored the; - q d € think; in his absence by Mason, Madison, Taylor, Cir Own Opimlons and Modes oO thinking George and W. C. Nicholas, passed the House: 2% the only true and infallible, and as such in January 1786 it was accepted by the Senate €ndeavouring to impose them on others, hath and became law. “Thus,” wrote Madison, “in established and maintained false religions Virginia was extinguished forever the ambitious over the greatest part of the world, and

hope of making laws for the human mind”, through all time; that to compel a man to while Jefferson regarded it as one of his three furnish contributions of money for the memorable contributions to history. The Bill propagation of opinions which he disbelieves,

was translated into French and Italian, and js sinful and tyrannical; that even the forcaroused world-wide remark. Sce, H. J. Ecken- . . rode, Separation of Church and State in Vir- Ing him to support this or that teacher of

ginia; C. F. James, Documentary History of the his own religious persuasion, 1S depriving Struggle for Religious Liberty in Virginia; R. B. him of the comfortable liberty of giving his Semple, Rzse and Progress of Baptists in Vir- contributions to the particular pastor whose ginia; F. W. Hirst, Jefferson, p. 130 ff.; G. Hunt, morals he would make his pattern, and

126 DocUMENTS OF AMERICAN HIsToRY whose powers he feels most persuasive to civil government, for its officers to interfere righteousness, and is withdrawing from the when principles break out into overt acts ministry those temporary rewards, which against peace and good order; and finally,

proceeding from an approbation of their that truth is great and will prevail if left to personal conduct, are an additional incite- herself, that she is the proper and sufficient ment to earnest and unremitting labours for antagonist to error, and has nothing to fear the instruction of mankind; that our civil from the conflict, unless by human interposirights have no dependence on our religious tion disarmed of her natural weapons, free

Opinions, any more than our opinions in argument and debate, errors ceasing to be physics or geometry; that therefore the pro- dangerous when it is permitted freely to conscribing any citizen as unworthy the public tradict them. confidence by laying upon him an incapacity II. Be zt enacted by the General Assemof being called to offices of trust and emolu- Oly, that no man shall be compelled to frement, unless he profess or renounce this or quent or support any religious worship, place

that religious opinion, is depriving him in- or ministry whatsoever, nor shall be enjuriously of those privileges and advantages forced, restrained, molested, or burthened in to which in common with his fellow-citizens his body or goods, nor shall otherwise suffer he has a natural right; that it tends only to on account of his religious opinions or becorrupt the principles of that religion it is hef; but that all men shall be free to profess, meant to encourage, by bribing with a mo- and by argument to maintain, their opinion nopoly of worldly honours and emoluments, in matters of religion, and that the same those who will cxternally profess and con- shall in no wise diminish, enlarge or affect

form to it; that though indeed these are their civil capacities. criminal who do not withstand such tempta- III. And though we well know that this tion, yet neither are those innocent who assembly, elected by the people for the lay the bail in their way; that to suffer the ordinary purposes of legislation only, have civil magistrate to intrude his powers into no power to restrain the acts of succeeding the field of opinion, and to restrain the pro- assemblies, constituted with powers equal to fession or propagation of principles on sup- our own, and that therefore to declare this posilion of their ill tendency, is a dangerous act to be irrevocable would be of no effect fallacy, which at once destroys all religious in law; yet as we are free to declare, and liberty, because he being of course judge do declare, that the rights hereby asserted of that tendency will make his opinions the are of the natural rights of mankind, and rule of judgment, and approve or condemn — that if any act shall hereafter be passed to the sentiments of others only as they shall repeal the present, or to narrow its operasquare with or differ from his own; that itis tion, such act will be an infringement of

time enough for the rightful purposes of natural right.

81. SHAYS’S REBELLION 1786

(G. R. Minot, History of the Insurrection in Massachusetts, p. 82 ff.) The commercial depression of 1785-86 hit Mas- in central and western Massachusetts. Under sachusetts with particular severity. The West the leadership of Captain Daniel Shays, infuriIndia trade was stopped, farm prices fell sharply, ated mobs broke up the mectings of courts, and and taxation, unfairly apportioned, was in- threatened the armory at Springfeld. The outtolerably heavy: the poll tax, for example, ac- break excited fear and despair in the hearts of counted for forty per cent of the entire taxes. many observers, and was not without influence Foreclosures on lands led to a widespread hos- in persuading Americans of the desirability of tility against lawyers and courts, and all through a stronger central government. After the upthe summer of 1786, town mectings demanded _ rising had becn suppressed, the legislature enreforms or direct action. The legislature, how- acted many of the reforms advocated by the ever, was deaf to the appeals for reform, and Shaysites. Minot’s History of the Insurrection in the fall of 1786 a minor rebellion broke out gives many of the petitions and resolutions of

SuHays’s REBELLION 127 the town meetings. On the Rebellion sce also, 2. To the Printer of the Hampshire Herald. A. C. McLaughlin, Confederation and Con- Sir,

stitution, ch. x; J. T. Adams, New England in It has some how or other fallen to my ae Republic, midRebellion,’ .P Renin American te Con- lot to be employed in a more conspicuous ederation an e ch Shays

Hist. Review, Vol. XJ ”W.V. Wells Life and ™anner than some oun ied ar Public Services of Samuel Adams, Vol. III, ch. citizens, i) stepping orth on acience 0 © lix.; A. E. Morse, The Federalist Party in Mas- rights and privileges of the people, more

sachusetts, ch. tii. especially of the county of Hampshire.

Therefore, upon the desire of the people now at arms, I take this method to publish 1. An Appress to the People of the sev- to the world of mankind in general, particueral towns in the county of Hampshire, now larly the people of this Commonwealth,

at arms. some of the principal grievances we com-

GENTLEMEN, plain of,...

We have thought proper to inform you In the first place, I must refer you to a of some of the principal causes of the late draught of grievances drawn up by a com-

risings of the people, and also of their mittee of the people, now at arms, under

present movement, viz. the signature of Daniel Gray, chairman, ist. The present expensive mode of col- which is heartily approved of; some others lecting debts, which by reason of the great also are here added, viz.

scarcity of cash, will of necessity fill our lst. The General Court, for certain obvigaols with unhappy debtors; and thereby a ous reasons, must be removed out of the reputable body of people rendered incapable town of Boston.

, of being serviceable either to themselves or 2d. A revision of the constitution is abso-

the community. lutely necessary. 2d. The monies raised by impost and 3d. All kinds of governmental securities, excise being appropriated to discharge the now on interest, that have been bought of interest of governmental securities, and not the original owners for two shillings, and the foreign debt, when these securities are the highest for six shillings and eight pence

not subject to taxation. on the pound, and have received more inter-

3d. A suspension of the writ of Habeas est than the principal cost the speculator

Corpus, by which those persons who have who purchased them—that if Justice was done,

stepped forth to assert and maintain the we verily believe, nay positively know, it rights of the people, are liable to be taken would save this Commonwealth thousands of and conveyed even to the most distant part pounds. of the Commonwealth, and thereby subjected 4th. Let the lands belonging to this Com-

to an unjust punishment. monwealth, at the eastward, be sold at the 4th, The unlimited power granted to Jus- best advantage to pay the remainder of our

tices of the Peace and Sheriffs, Deputy domestick debt. Sheriffs, and Constables, by the Riot Act, Sth. Let the monies arising from impost indemnifying them to the prosecution and excise be appropriated to discharge the thereof; when perhaps, wholly actuated from _ foreign debt.

a principle of revenge, hatred, and envy. 6th. Let that act, passed by the General Furthermore, Be assured, that this body, Court last June by a small majority of only now at arms, despise the idea of being insti- seven, called the Supplementary Act, for gated by British emissaries, which is so twenty-five years to come, be repealed. strenuously propagated by the enemies of our 7th. The total abolition of the Inferiour liberties: And also wish the most proper and Court of Common Pleas and General Sesspeedy measures may be taken, to discharge sions of the Peace.

both our foreign and domestick debt. 8th. Deputy Sheriffs totally set aside, as

Per Order, a useless set of officers in the community; DANIEL GRAY, Chairman and Constables who are really necessary, of the Committee. be empowered to do the duty, by which

128 DOCUMENTS oF AMERICAN HIsToRyY means a large swarm of lawyers will be To this I boldly sign my proper name, as banished from their wonted haunts, who a hearty wellwisher to the real rights of the have been more damage to the people at people.

large, especially the common farmers, than THOMAS GROVER

the savage beasts of prey. Worcester, December 7, 1786. | 82. THE NORTHWEST ORDINANCE July 13, 1787 (F. N. Thorpe, ed. Federal and State Constitutions, Vol. II, p. 957 ff.)

The Ordinance of April 23, 1784, Doc. No. 77, vided into two districts, as future circum laid down the general principles of the American stances may, in the opinion of Congress, colonial system, but it did not provide in detail make it expedient.

for the establishment of an . administrative Be it ordained by the authority aforesaid structure, and it was never put into effect. The That the estates. both of resident and non. immediate impulse for the Ordinance of 1787 . sane . came from a group of land speculators, mem- resident proprietors in the said territory, dybers of the Ohio Company of Associates and ing intestate, shall descend to, and be disof the Society of the Cincinnati, who wished tributed among _ their children, and the to establish colonies in the Ohio country. The descendants of a deceased child, in equal spokesmen of these groups were the Rev. parts; the descendants of a deceased child Manasseh Cutler, Samuel Parsons, and General or grandchild to take the share of. their Rufus Putnam. These men succeeded in lobby- deceased parent in equal parts among them: ing through a moribund Congress the amous And where there shall be no children or deNorthwest tersitory. ‘The “authorship of the scendants, then in equal parts to the nex!

Ordinance is a matter of controversy, but it of kin in equal degree; and amon g colseems probable that Nathan Dane and Rufus laterals, the children of a deceased brother King were the principal authors; fundamentally, or sister of the intestate shall have, in equal of course, the Ordinance followed Jefferson’s parts among them, their deceased parents’ Ordinance of 1784. See B. A. Hinsdale, The share; and there shall in no case be a disOld Northwest; J. A. Barrett, Evolution of the tinction between kindred of the whole and Ordinance of 1787; W. P. and J. P. Cutler, half-blood; saving, in all cases, to the widow Lije, Journals, and Correspondence of Man- of the intestate her third part of the real

asseh Cutler, 2 Vols.; R. Buell, Memoirs of cate for life, and one-third part of the Rujus Putnam ; A. B. Hulbert, ed. Kecords oj personal estate; and this law relative to theofOhio Company; C. S. Lifeescents and Letq 4sha F hall a In infufull ters Samuel Holden Parsons; R. Hall, King, Ohio; an ower, remain J. P. Dunn, Indiana; B. W. Bond, Civilization force until altered by the legislature of the of the Old Northwest; J. M. Merriam, ‘“Legisla- district. And until the governor and Judges tive History of the Ordinance of 1787”, Am. shall adopt laws as hereinafter mentioned, Antiquarian Soc. Proceedings, N.S. Vol. V; estates in the said territory may be devised C. R. King, Rufus King. Vol. 1; A. C. Mc- or bequeathed by wills in writing, signed and Laughlin, Confederation and Constitution, ch. cealed by him or her in whom the estate

vii; F. L. Paxson, History of the American may be (being of full age), and attested Frontier, chs. vii-viil; J. B. McMaster, History by three witnesses; and real estates may be

of the People of the United States, Vol. I, conveyed by lease and release, or bargain

ch. v. and sale, signed sealed and delivered by the person, being of full age, in whom the estate

An Ordinance for the government of the may be, and attested by two witnesses, proTerritory of the United States north- vided such wills be duly proved, and such

west of the River Ohio. conveyances be acknowledged, or the execu-

Be it ordained by the United States in tion thereof duly proved, and be recorded Congress assembled, That the said territory, within one year after proper magistrates,

for the purposes of temporary government, courts, and registers shall be appointed for be one district, subject, however, to be di- that purpose; and personal property may be

Tur NORTHWEST ORDINANCE 129 transferred by delivery; saving, however to officers shall be appointed and commissioned

the French and Canadian inhabitants, and by Congress. other settlers of the Kaskaskies, St. Vincents Previous to the organization of the general and the neighboring villages who have here- assembly, the governor shall appoint such tofore professed themselves citizens of Vir- magistrates and other civil officers in each ginia, their laws and customs now in force county or township, as he shall find necesamong them, relative to the descent and sary for the preservation of the peace and

conveyance, of property. good order in the same: After the general

Be it ordained by the authority aforesaid, assembly shall be organized, the powers and

That there shall be appointed from time to duties of the magistrates and other civil time by Congress, a governor, whose com-_ officers shall be regulated and defined by mission shall continue in force for the term the said assembly; but all magistrates and of three years, unless sooner revoked by other civil officers not herein otherwise diCongress; he shall reside in the district, and _ rected, shall, during the continuance of this have a freehold estate therein in 1,000 acres temporary government, be appointed by the of land, while in the exercise of his office. governor.

There shall be appointed from time to For the prevention of crimes and injuries,

time by Congress, a secretary, whose com-_ the laws to be adopted or made shall have

mission shall continue in force for four force in all parts of the district, and for

years unless sooner revoked; he shall reside the execution of process, criminal and civil,

in the district, and have a freehold estate the governor shall make proper divisions therein in 500 acres of land, while in the thereof; and he shall proceed from time exercise of his office. It shall be his duty to to time as circumstances may require, to keep and preserve the acts and laws passed lay out the parts of the district in which by the legislature, and the public records of _ the Indian titles shall have been extinthe district, and the proceedings of the guished, into counties and townships, subject governor in his executive department, and however to such alterations as may theretransmit authentic copies of such acts and after be made by the legislature. proceedings, every six months, to the Secre- So soon as there shall be five thousand

tary of Congress: There shall also be ap- free male inhabitants of full age in the pointed a court to consist of three judges, district, upon giving proof thereof to the

any two of whom to form a court, who shall governor, they shall receive authority, with have a common law jurisdiction, and reside time and place, to elect representatives from

in the district, and have each therein a free- their counties or townships to represent hold estate in 500 acres of land while in them in the general assembly: Provided, the exercise of their offices; and their com- That, for every five hundred free male inmissions shall continue in force during good habitants, there shall be one representative,

behavior. and so on progressively with the number of The governor and judges, or a majority of free male inhabitants shall the right of reprethem, shall adopt and publish in the district sentation increase, until the number of represuch laws of the original States, criminal and sentatives shall amount to twenty-five; after civil, as may be necessary and best suited which, the number and proportion of repre-

to the circumstances of the district, and sentatives shall be regulated by the legislareport them to Congress from time to time: ture: Provided, That no person be eligible which laws shall be in force in the district or qualified to act as a representative unless until the organization of the General As- he shall have been a citizen of one of the sembly therein, unless disapproved of by United States three years, and be a resident Congress; but afterwards the Legislature in the district, or unless he shall have reshall have authority to alter them as they sided in the district three years; and, in

shall think fit. either case, shall likewise hold in his own The governor, for the time being, shall be right, in fee simple, two hundred acres of commander-in-chief of the militia, appoint land within the same: Provided, also, That and commission all officers in the same be- a freehold in fifty acres of land in the dislow the rank of general officers; all general trict, having been a citizen of one of the

130 DOCUMENTS OF AMERICAN HIstToRY states, and being resident in the district, or sent. The governor shall have power to conthe like freehold and two years residence ene, prorogue, and dissolve the general asin the district, shall be necessary to qualify sembly, when, in his opinion, it shall be

a man as an elector of a representative. expedient. The representatives thus elected, shall The governor, judges, legislative council, serve for the term of two years; and, in case secretary, and such other officers as Congress

of the death of a representative, or removal shall appoint in the district, shall take an from office, the governor shall issue a writ oath or affirmation of fidelity and of office; to the county or township for which he was the governor before the president of cona member, to elect another in his stead, to gress, and all other officers before the Gov-

serve for the residue of the term. ernor. As soon as a legislature shall be

The general assembly or legislature shall formed in the district, the council and house consist of the governor, legislative council, assembled in one room, shall have authority, and a house of representatives. The Legisla- by joint ballot, to elect a delegate to Contive Council shall consist of five members, gress, who shall have a seat in Congress, to continue in office five years, unless sooner with a right of debating but not of voting removed by Congress; any three of whom to during this temporary government.

be a quorum: and the members of the And, for extending the fundamental princiCouncil shall be nominated and appointed in ples of civil and religious liberty, which form the following manner, to wit: As soon as_ the basis whereon these republics, their laws

representatives shall be elected, the Governor and constitutions are erected; to fix and shall appoint a time and place for them to establish those principles as the basis of all meet together; and, when met, they shall laws, constitutions, and governments, which nominate ten persons, residents in the dis- forever hereafter shall be formed in the trict, and each possessed of a freehold in _ said territory: to provide also for the esfive hundred acres of land, and return their tablishment of States, and permanent governnames to Congress; five of whom Congress ment therein, and for their admission to a shall appoint and commission to serve as share in the federal councils on an equal aforesaid; and, whenever a vacancy shall footing with the original States, at as early happen in the council, by death or removal periods as may be consistent with the genfrom office, the house of representatives eral interest:

shall nominate two persons, qualified as It is hereby ordained and declared by aforesaid, for each vacancy, and return their the authority aforesaid, That the following names to Congress; one of whom Congress articles shall be considered as articles of shall appoint and commission for the residue compact between the original States and the

of the term. And every five years, four people and States in the said territory and months at least before the expiration of the forever remain unalterable, unless by comtime of service of the members of council, mon consent, to wit: the said house shall nominate ten persons, Art. 1. No person, demeaning himself in qualified as aforesaid, and return their names a peaceable and orderly manner, shall ever to Congress; five of whom Congress shall be molested on account of his mode of worappoint and commission to serve as mem- _ ship or religious sentiments, in the said terbers of the council five years, unless sooner _ritory. removed. And the governor, legislative coun- Art. 2. The inhabitants of the said tercil, and house of representatives, shall have _ ritory shall always be entitled to the benefits authority to make laws in all cases, for the of the writ of habeas corpus, and of the trial good government of the district, not re- by jury; of a proportionate representation of pugnant to the principles and articles in this the people in the legislature; and of judicial ordinance established and declared. And all proceedings according to the course of the bills, having passed by a majority in the common law. All persons shall be bailable, house, and by a majority in the council, unless for capital offences, where the proof

shall be referred to the governor for his shall be evident or the presumption great. assent; but no bill, or legislative act what- All fines shall be moderate; and no cruel or unever, shall be of any force without his as- usual punishments shall be inflicted. No man

THe NoRTHWEST ORDINANCE 131 shall be deprived of his liberty or property, United States in Congress assembled, nor but by the judgment of his peers or the law of with any regulations Congress may find the land; and, should the public exigencies necessary for securing the title in such soil make it necessary, for the common preserva- to the bona fide purchasers. No tax shall be tion, to take any person’s property, or to de- imposed on lands the property of the United mand his particular services, fullcompensation States; and, in no case, shall non-resident

shall be made for the same. And, in the proprietors be taxed higher than residents. just preservation of rights and property, it The navigable waters leading into the Misis understood and declared, that no law sissippi and St. Lawrence, and the carrying ought ever to be made, or have force in the places between the same, shall be common

said territory, that shall, in any manner highways and forever free, as well to the whatever, interfere with or affect private inhabitants of the said territory as to the contracts or engagements, bona fide, and citizens of the United States, and those of

without fraud, previously formed. any other States that may be admitted into Art. 3. Religion, morality, and knowledge, the confederacy, without any tax, impost, or being necessary to good government and the duty therefor. happiness of mankind, schools and the means Art. 5. There shall be formed in the said of education shall forever be encouraged. territory, not less than three nor more than The utmost good faith shall always be ob- five States; and the boundaries of the States,

served towards the Indians: their lands and as soon as Virginia shall alter her act ot property shall never be taken from them cession, and consent to the same, shall bewithout their consent; and, in their property, come fixed and established as follows, to rights, and liberty, they shall never be in- wit: The western State in the said territory, vaded or disturbed, unless in just and lawful shall be bounded by the Mississippi, the

wars authorized by Congress; but laws Ohio, and Wabash Rivers; a direct line

founded in justice and humanity, shall from drawn from the Wabash and Post Vincents, time to time be made for preventing wrongs due North, to the territorial line between being done to them, and for preserving peace the United States and Canada; and, by the

and friendship with them. said territorial line, to the Lake of the Woods

Art. 4. The said territory, and the ‘States and Mississippi. The middle State shall be which may be formed therein, shall forever bounded by the said direct line, the Wabash remain a part of this Confederacy of the from Post Vincents to the Ohio, by the Ohio,

United States of America, subject to the by a direct line, drawn due north from the Articles of Confederation, and to such alter- mouth of the Great Miami, to the said terations therein as shall be constitutionally ritorial line, and by the said territorial line. made; and to all the acts and ordinances of The eastern State shall be bounded by the the United States in Congress assembled, last mentioned direct line, the Ohio, Pennsylconformable thereto. The inhabitants and vania, and the said territorial line: Provided,

settlers in the said territory shall be subject owever, and it is further understood and to pay a part of the federal debts contracted declared, that the boundaries of these three or to be contracted, and a proportional part States shall be subject so far to be altered, of the expenses of government, to be ap- that, if Congress shall hereafter find it portioned on them by Congress according to expedient, they shall have authority to form the same common rule and measure by which one or two States in that part of the said

apportionments thereof shall be made on_ territory which lies north of an east and the other States; and the taxes for paying west line drawn through the southerly bend their proportion shall be laid and levied by or extreme of lake Michigan. And, whenever the authority and direction of the legislatures any of the said States shaH have sixty thou-

of the district or districts, or new States, sand free inhabitants therein, such State as in the original States, within the time — shall be admitted, by its delegates, into the agreed upon by the United States in Con- Congress of the United States, on an equal gress assembled. The legislatures of those footing with the original States in all redistricts or new States, shall never interfere spects whatevey, and shall be at liberty to with the primary disposal of the soil by the form a permanent constitution and State

132 DocUMENTS OF AMERICAN HISTORY government: Provided, the constitution and victed: Provided, always, That any person government so to be formed, shall be republi- escaping into the same, from whom labor can, and in conformity to the principles or service is lawfully claimed in any one of contained in these articles; and, so far as it the original States, such fugitive may be can be consistent with the general interest lawfully reclaimed and conveyed to the of the confederacy, such admission shall be person claiming his or her labor or service allowed at an earlier period, and when there as aforesaid. may be a less number of free inhabitants in Be it ordained by the authority aforesaid,

the State than sixty thousand. That the resolutions of the 23rd of April

Art. 6. There shall be neither slavery nor 1784, relative to the subject of this orinvoluntary servitude in the said territory, dinance, be, and the same are hereby reotherwise than in the punishment of crimes pealed and declared null and void. whereof the party shall have been duly con-

83. THE ANNAPOLIS CONVENTION Proceedings of the Commissioners To Remedy Defects of the Federal Government, Annapolis in the State of Maryland. Sept. 14, 1786 (Documents Illustrative of the Formation of the Union of the American States, p. 39 ff.) Dissatisfaction with the Articles of Confedera- of Maryland, on the eleventh day of Septemtion had been growing ever since their ratifica- ber Instant, and having proceeded to a Comtion. The inability of the government of the munication of their Powers; they found that Confederation to conclude commercial treaties the States of New York, Pennsylvania, and with foreign nations, the mounting financial and Virginia, had, in substance, and nearly in currency difficulties, and the apparent 1mpos- the same terms, authorized their respective

sibility of amending the Articles by ordinary a

processes, all led to a demand for a drastic Commissioners to meet such other Comrevision of the Articles of Confederation. The ™ussloners as were, OF might be, appointed

immediate impulse for the Annapolis Conven- by the other States in the Union, at such tion came from a group of men who wished to time and place as should be agreed upon by open up navigation on the Potomac. In 1785 the said Commissioners to take into conWashington invited the commissioners of Vir- sideration the trade and commerce of the ginia and Maryland to meet at Mount Vernon [United States, to consider how far an uniand discuss the problem of communication be- foi system in their commercial intercourse

tween the East and the West. These commis- lat; ‘cht be necessarv to their sioners drew up resolutions asking the co- and regu ations mug C ary

operation of Pennsylvania in the project. Acting Common interest and permanent harmony,

upon this suggestion Madison pushed through and to report to the several States such the legislature of Virginia a resolution ap- an Act, relative to this great object, as when pointing a commission to meet with other com- unanimously ratified by them would enable missioners to take into consideration the state the United States in Congress assembled ef-

of the union. These commissioners met at An- fectually to provide for the same.” ...

napolis the first Monday in September 1786. That the State of New Jersey had enSee, A. C. McLa ughlin, Confederation ane larged the object of their appointment, emConstitution, ch. xi; G. Hunt, James Madison, powering their Commissioners, “to consider

W. C. Rives, Madison. how far an uniform system in their comTo the Honorable, the Legislatures of Vir- mercial regulations and other important ginia, Delaware, Pennsylvania, New Jersey, matters, might be necessary to the common

and New York— interest and permanent harmony of the sevThe Commissioners from the said States, eral States,” and to report such an Act on

respectively assembled at Annapolis, humbly _ the subject, as when ratified by them, “would

beg leave to report. enable the United States in Congress asThat, pursuant to their several appoint- sembled, effectually to provide for the exigenments, they met, at Annapolis in the State cies of the Union.”

THoete ANNAPOLIS CONVENTION 133 That appointments of Commissioners have That there are important defects in the also been made by the States of New Hamp- system of the Foederal Government 1s shire, Massachusetts, Rhode Island, and acknowledged by the Acts of all those States, North Carolina, none of whom however have which have concurred in the present Meet-

attended; but that no information has been ing; That the defects, upon a closer exreceived by your Commissioners, of any ap- amination, may be found greater and more pointment having been made by the States numerous, than even these acts imply, is at of Connecticut, Maryland, South Carolina or least so far probable, from the embarrass-

Georgia. ments which characterise the present State

That the express terms of the powers of of our national affairs, foreign and domestic, your Commissioners supposing a deputation as may reasonably be supposed to merit a

' from all the States, and having for object deliberate and candid discussion, in some the Trade and Commerce of the United mode, which will unite the Sentiments and States, Your Commissioners did not con- Councils of all the States. In the choice of ceive it advisable to proceed on the business the mode, your Commissioners are of opinof their mission, under the Circumstance of ion, that a Convention of Deputies from the

so partial and defective a representation. different States, for the special and sole Deeply impressed however with the magni- purpose of entering into this investigation, tude and importance of the object confided and digesting a plan for supplying such deto them on this occasion, your Commissioners fects as may be discovered to exist, will be cannot forbear to indulge an expression of entitled to a preference from considerations, their earnest and unanimous wish, that speedy which will occur without being particularised. measures be taken, to effect a general meet- Your Commissioners decline an enumera-

ing, of the States, in a future Convention, tion of those national circumstances on for the same, and such other purposes, as which their opinion respecting the propriety the situation of public affairs may be found of a future Convention, with more enlarged

to require. powers, is founded; as it would be an use-

If in expressing this wish, or in intimat- less intrusion of facts and observations, most ing any other sentiment, your Commissioners of which have been frequently the subject should seem to exceed the strict bounds of of public discussion, and none of which can their appointment, they entertain a full con- have escaped the penetration of those to

fidence, that a conduct, dictated by an whom they would in this instance be ad-

anxiety for the welfare of the United States, dressed. They are however of a nature so will not fail to receive an indulgent con- serious, as, in the view of your Commis-

struction. sioners, to render the situation of the United

In this persuasion, your Commissioners States delicate and critical, calling for an submit an opinion, that the Idea of extend- exertion of the united virtue and wisdom of ing the powers of their Deputies, to other all the members of the Confederacy. objects, than those of Commerce, which has Under this impression, Your Commissionbeen adopted by the State of New Jersey, ers, with the most respectful deference, beg was an improvement on the original plan, leave to suggest their unanimous conviction and will deserve to be incorporated into that that it may essentially tend to advance the of a future Convention; they are the more interests of the union if the States, by whom naturally led to this conclusion, as in the they have been respectively delegated, would course of their reflections on the subject, themselves concur, and use their endeavours

they have been induced to think, that the to procure the concurrence of the other

power of regulating trade is of such com- States, in the appointment of Commissioners, prehensive extent, and will enter so far into to meet at Philadelphia on the second Monthe general System of the foederal govern- day in May next, to take into consideration ment, that to give it efficacy, and to obviate the situation of the United States, to devise questions and doubts concerning its precise such further provisions as shall appear to nature and limits, may require a correspond- them necessary to render the constitution ent adjustment of other parts of the Foed- of the Foederal Government adequate to the

eral System. exigencies of the Union; and to report such

134 DOCUMENTS OF AMERICAN History an Act for that purpose to the United States sentiments to any but the States they have in Congress assembled, as when agreed to, the honor to represent, they have nevertheby them, and afterwards confirmed by the less concluded from motives of respect, to” Legislatures of every State, will effectually transmit copies of this Report to the United

provide for the same. States in Congress assembled, and to the Though your Commissioners could not with executives of the other States.

propriety address these observations and

84. THE VIRGINIA or RANDOLPH PLAN Presented to the Federal Convention May 29, 1787 (Hunt, G., and Scott, J. B., eds. Debates in the Federal Convention of 1787 Reported by James Madison, p. 23 ff. For variant texts see, Documents Illustrative of the Formation of the Union of the American States, p. 953 ff.) The Randolph or Large State Plan looked to office established by a particular State, or the creation of a new national government under the authority of the United States, exrather than a mcre revision of the Articles of cept those peculiarly belonging to the funcConfederation. Of the various plans presented tions of the first branch, during the term of

to the Convention, it was not only the first, service, and for the space of after its

but the one which most closely approximates . the finished Constitution. Note however, that expiration; to be incapable of reclection tor the “Supreme law of the land” clause—the the space of _aiter the expiration of

central clause of the Constitution—was taken their term of service, and to be subject to not from the Randolph but from the New Jersey _ recall.

plan. All of the histories of the Federal Con- 5. Resolved that the members of the second vention deal at length with the Randolph Plan. branch of the National Legislature ought to See, C. Warren, The Muking of Lhe Constitu- be elected by those of the first, out of a tion, esp. p. 1391f.; A. C. McLaughlin, Com Loner number of persons nominated by the

federation and wc onstition on. ™ Bs y me individual Legislatures, to be of the age

Slates, Voll. > “8 ff conte of the Om of years at least; to hold their offices

, ao for a term sufficient to ensure their in-

1. Resolved that the Articles of Confedera- dependency; to receive liberal stipends, by tion ought to be so corrected and enlarged which they may be compensated for the as to accomplish the objects proposed by devotion of their time to public service; and their institution; namely “common defence, to be ineligible to any office established by

security of liberty and general welfare.” a particular State, or under the authority 2. Resolved therefore that the rights of suf- of the United States, except those peculiarly frage in the National Legislature ought to be belonging to the functions of the second proportioned to the Quotas of contribution, branch, during the term of service, and for

or to the number of free inhabitants, as the the space _ of after the expiration

one or the other rule may seem best in dif- thereof.

fent cases. 6. Resolved that each branch ought to pos-

3. Resolved that the National Legislature sess the right of originating Acts; that the

ought to consist of two branches. National Legislature ought to be impowered

4. Resolved that the members of the first to enjoy the Legislative Rights vested in branch of the National Legislature ought to Congress by the Confederation and morebe elected by the people of the several over to legislate in all cases to which the

States every for the terms of ; to separate States are incompetent, or in which be of the age of years at least, to re- the harmony of the United States may be

ceive liberal stipends by which they may interrupted by the exercise of individual be compensated for the devotion of their Legislation; to negative all laws passed by

time to public service, to be ineligible to any the several States, contravening in the opin-

THe VIRGINIA OR RANDOLPH PLAN 135 ion of the National Legislature the articles piracies and felonies on the high seas, cap-

of Union; and to call forth the force of tures from an enemy; cases in which forthe Union against any member of the Union — eigners or citizens of other States applying

failing in its duty under the articles to such jurisdictions may be interested, or

thereof. which respect the collection of the National 7. Resolved that a National Executive be revenue; impeachments of any National ofinstituted; to be chosen by the National ficers, and questions which may involve the

Legislature for the term of years; to national peace and harmony. receive punctually, at stated times, a fixed 10. Resolved that provision ought to be made compensation for the services rendered, in for the admission of States lawfully arising

which no increase or diminution shall be within the limits of the United States, made so as to affect the Magistracy, exist- whether from a voluntary junction of Governing at the time of the increase or diminution, ment and Territory or otherwise, with the

and to be ineligible a second time; and that consent of a number of voices in the Nabesides a general authority to execute the tional legislature less than the whole. National laws, it ought to enjoy the Execu- 11. Resolved that a Republican Government tive rights vested in Congress by the Con- and the territory of each State, except in

federation. the instance of a voluntary junction of 8. Resolved that the Executive and a con- Government and territory, ought to be venient number of the National Judiciary, guaranteed by the United States to each ought to compose a Council or revision with State. authority to examine every act of the Na- 12. Resolved that provision ought to be made tional Legislature before it shall operate, and for the continuance of Congress and their every act of a particular Legislature before authorities and privileges, until a given day

a Negative thereon shall be final; and that after the reform of the articles of Union the dissent of the said Council shall amount shall be adopted, and for the completion of to a rejection, unless the Act of the National all their engagements. Legislature be passed again, or that of a 13. Resolved that provision ought to be made particular Legislature be again negatived by for the amendment of the Articles of Union

of the members of each branch. whensoever it shall seem necessary, and

9. Resolved that a National Judiciary be that the assent of the National Legislature established to consist of one or more supreme ought not to be required thereto.

tribunals, and of inferior tribunals to be 14. Resolved that the Legislative Executive chosen by the National Legislature, to hold and Judiciary powers within the several their offices during good behaviour; and to States ought to be bound by oath to supreceive punctually at stated times fixed com- port the articles of Union.

pensation for their services, in which no 15. Resolved that the amendments which increase or diminution shall be made so as _ shall be offered to the Confederation, by the to affect the persons actually in office at Convention ought at a proper time, or times,

the time of such increase or diminution. after the approbation of Congress to be That the jurisdiction of the inferior tribunals submitted to an assembly or assemblies of shall be to hear and determine in the first Representatives, recommended by the sev-

instance, and of the supreme tribunal to eral Legislatures to be expressly chosen by hear and determine in the dernier resort, all the people, to consider and decide thereon.

136 DOCUMENTS OF AMERICAN HIsTORY 85. THE PATERSON or NEW JERSEY PLAN Presented to the Federal Convention June 15, 1787 (Hunt, G., and Scott, J. B., eds. Debates in the Federal Convention of 1787 Reported by James Madison, p. 102-4. For variant texts see Documents Illustrative of the Formation of the Union of the American States, p. 967-8) On the Paterson plan, see McLaughlin, Con- Confederation, the United States in Congress federation and Constitution, p. 212{f. Note be authorized to make such requisitions in particularly Section 6, which contains the germ proportion to the whole number of white

of the central clause of the Constitution. and other free citizens and inhabitants of

1. Resolved that the Articles of Confedera- eVery age sex and condition including those tion ought to be so revised, corrected, and bound to servitude for a term of years and

enlarged as to render the federal Constitu- three fifths of all other persons not comtion adequate to the exigencies of Govern- Prehended in the foregoing description, exment, and the preservation of the Union. cept Indians not paying taxes; that if such 2. Resolved that in addition to the powers requisitions be not complied with, in the vested in the United States in Congress, by time specified therein, to direct the collecthe present existing articles of Confedera- tion thereof in the non-complying States and tion, they be authorized to pass acts for rais- for that purpose to devise and pass acts ing a revenue, by levying a duty or duties on ‘directing and authorizing the same; provided

all goods or merchandizes of foreign growth that none of the powers hereby vested in or manufacture, imported into any part of the United States in Congress shall be exthe United States, by Stamps on paper, vel- ercised without the consent of at least lum or parchment, and by a postage on all States, and in that proportion if the number letters or packages passing through the gen- of Confederated States should hereafter be

eral post-office, to be applied to such federal increased or diminished. — purposes as they shall deem proper and ex- 4- Resolved that the United States in Conpedient; to make rules and regulations for tess be authorized to elect a federal Execu-

the collection thereof; and the same from live to consist of persons, to continue

time to time, to alter and amend in such 1 Office for the term of years, to re-

manner as they shall think proper: to pass celve punctually at stated times a fixed Acts for the regulation of trade and com- Compensation for their services, in which no merce as well with foreign nations as with Imcrease or diminution shall be made so as each other; provided that all punishments, © affect the persons composing the Execufines, forfeitures and penalties to be incurred tive at the time of such increase or diminufor contravening such acts rules and regula- tion, to be paid out of the federal treasury; tions shall be adjudged by the Common law to be incapable ot holding any other office Judiciaries of the State in which any offence OF appointment during their time of service

contrary to the true intent and meaning of and for years thereafter; to be ineligible

such Acts rules and regulations shall have 4 second time, and removeable by Congress been committed or perpetrated, with liberty on application by a majority of the Execuof commencing in the first instance all suits tives of the several States; that the Execuand prosecutions for that purpose, in the _ tives besides their general authority to exsuperior common law Judiciary in such state, ecute the federal acts ought to appoint all subject nevertheless, for the correction of federal officers not otherwise provided for,

errors, both in law and fact in rendering and to direct all military operations; proJudgement, to an appeal to the Judiciary of vided that none of the persons composing

the United States. the federal Executive shall on any occasion 3. Resolved that whenever requisitions shall take command of any troops so as personally

be necessary, instead of the rule for mak- to conduct any enterprise as General or in ing requisitions mentioned in the articles of | other capacity.

HAMILTON’S PLAN OF UNION 137 5. Resolved that a federal Judiciary be es- Confederation vested in them, and all Treatablished to consist of a supreme tribunal ties made and ratified under the authority of the Judges of which to be appointed by the the United States, shall be the supreme law Executive, and to hold their offices during of the respective States so far forth as those good behaviour, to receive punctually at Acts or Treaties shall relate to the said States stated times a fixed compensation for their or their Citizens, and that the Judiciary of services in which no increase or diminution the several States shall be bound thereby in shall be made so as to affect persons actually their decisions, any thing in the respective

in office at the time of such increase or laws of the Individual States to the con-

diminution; that the Judiciary so established trary notwithstanding; and that if any State, shall have authority to hear and determine or any body of men in any State shall oppose in the first instance on all impeachments of or prevent carrying into execution such acts

federal officers, and by way of appeal in or treaties, the federal Executive shall be the dernier resort in all cases touching the authorized to call forth the power of the rights of Ambassadors, in all cases of cap- Confederated States, or so much thereof as tures from an enemy, in all cases of piracies may be necessary to enforce and compel an and felonies on the high Seas, in all cases in obedience to such Acts or an observance of which foreigners may be interested, in the such Treaties.

construction of any treaty or treaties, or 7. Resolved that provision be made for the which may arise on any of the Acts for admission of new States into the Union. regulation of trade, or the collection of the 8. Resolved the rule for naturalization ought federal Revenue: that none of the Judiciary to be the same in every State. shall during the time they remain in office 9. Resolved that a Citizen of one State combe capable of receiving or holding any other mitting an offence in another State of the office or appointment during the time of Union, shall be deemed guilty of the same

service, or for thereafter. offence as if it had been committed by a

6. Resolved that all Acts of the United States Citizen of the State in which the offence in Congress made by virtue and in pursuance was committed. of the powers hereby and by the articles of

86. HAMILTON’S PLAN OF UNION Presented to the Federal Convention

June 18, 1787 |

(The Works of Alexander Hamilton, ed. by H. C. Lodge, Vol. I, p. 331 ff. For variant

texts, see Documents Illustrative of the Formation of the Union of the American States, p. 979 ff.) Hamilton, who had long been active in the two distinct bodies of men: the one to be movement for strengthening the central govern- called the Assembly, the other the Senate

ment, and who had attended the Annapolis who together shall form the Legislature of Convention, was a delegate to the Federal Con- the United States with power to pass all vention from New York. He was distinctly out 1 h . P . of sympathy with the work of the Federal Con- aws W atsoever subject to the Negative vention, as he was with the final Constitution. hereafter mentioned. On June 18 he presented his own plan of 2. Lhe Assembly to consist of persons elected Union, and explained it in an elaborate speech. by the people to serve for three years. The speech can be found in Madison’s Notes, 3. The Senate to consist of persons elected Documents Illustrative, etc., p. 215 H., and see to serve during good behaviour; their elecne p. 225; a somewhat different version 18 mM tion to be made by electors chosen for that e notes of Yates, Documents Illustrative, etc., purpose by the people. In order to this. the

p. 776 ff. Hamilton’s plan had no Constitution. perceptible - States to be divided i lect; er influence on the character of the e arvided into e ection districts. On the death, removal or resignation of any 1. The Supreme Legislative power of the Senator his place to be filled out of the United States of America to be vested in district from which he came.

138 DOCUMENTS OF AMERICAN HISTORY 4. The supreme Executive authority of the to hold their offices during good behavior, United States to be vested in a Governor, with adequate and permanent salaries. This to be elected to serve during good behaviour court to have original jurisdiction in all —His election to be made by Electors chosen causes of capture, and an appellate jurisdicby electors chosen by the people in the Elec- tion (from the courts of the several States) tion Districts aforesaid; or by electors chosen in all causes in which the revenues of the

for that purpose by the respective Legisla- General Government or the citizens of fortures—provided that if an clection be not eign nations are concerned. made within a limited time, the President 8. The Legislature of the United States to of the Senate shall be the Governor. The have power to institute courts in each State Governor to have a negative upon all laws for the determination of all causes of cap-

about to be passed—and the execution of ture and of all matters relating to their all laws passed—to be the Commander-in- revenues, or in which the citizens of foreign Chief of the land and naval forces and of nations are concerned. the militia of the United States—to have the 9. The Governor, Senators, and all officers entire direction of war when authorized or of the United States to be liable to impeachbegun—to have, with the advice and ap- ment for mal and corrupt conduct, and upon probation of the Senate, the power of making conviction to be removed from office, and all treaties—to have the appointment of the disqualified for holding any place of trust heads or chief officers of the departments of | or profit. All impeachments to be tried by a finance, war, and foreign affairs—to have the court, to consist of the judges of the Supreme nomination of all other officers (ambassadors Court, chicf or senior judge of the Superior

to foreign nations included) subject to the Court of law of each State—provided that approbation or rejection of the Senate— such judge hold his place during good beto have the power of pardoning all offences havior and have a permanent salary. but treason, which he shall not pardon with- 10. All laws of the particular States con-

out the approbation of the Senate. trary to the Constitution or laws of the 5. On the death, resignation, or removal of | United States to be utterly void. And the the Governor, his authorities to be exercised better to prevent such laws being passed the by the President of the Senate (until a suc- Governor or President of each State shall

cessor be appointed). be appointed by the General Government, 6. The Senate to have the sole power of and shall have a negative upon the laws about

declaring war—the power, of advising and to be passed in the State of which he is approving all treaties—the power of approv- Governor or President.

ing or rejecting all appointments of officers 11. No State to have any forces, land or except the heads or chicfs of the departments naval—and the militia of all the States to of finance, war, and foreign affairs. be under the sole and exclusive direction of 7. The supreme judicial authority of the the United States, the officers of which to United States to be vested in twelve judges, be appointed and commissioned by them.

87. THE CONSTITUTION OF THE UNITED STATES (Richardson, ed. Messages and Papers, Vol. I, p. 21 ff.) Following the recommendation of the Annapolis the summer of 1787 and on September 15 Convention, Congress adopted, February 21, agreed to the Constitution as reported from the 1787, a resolution that “it is expedient that on Committee on Style. On the 17th September the the second Monday in May next a Convention Constitution was signed, and submitted to Conof delegates who shall have been appointed by gress. By resolution of September 28, Congress the several states be held at Philadelphia for submitted the Constitution to the States. By the sole and express purpose of revising the June 21, 1788, nine States had ratified the ConArticles of Confederation.” A quorum, however, _ stitution; Rhode Island, the last of the thirteen did not assemble at Philadelphia until May 25, States to ratify, acted on May 29, 1790. Conwhen the convention proceeded to organize. gress by resolution of September 13, 1788, fixed The convention continued its work throughout the date for the election of a President and the

THe CONSTITUTION OF THE UNITED STATES 139 organization of the new government under the five Years, and been seven Years a Citizen Constitution. The resolutions of Congress, the of the United States, and who shall not, when

Debates and Proceedings of the Convention, elected, be an Inhabitant of that State in the ratifications of the several States, and re- which he shall be chosen. lated material can be found in Documents Il- Representatives and direct Taxes shall be American States, ed. by C. C. Tansill. The apportioned anong the several slates which literature on the Constitution is voluminous. Mey be included within this Union, accordThe classic analysis is the Federalist, written by ing to their respective Numbers, which shall Madison, Hamilton and Jay. Almost equally be determined by adding to the whole Numvaluable is Judge Story’s Commentaries on the ber of free Persons, including those bound Constitution, 2 vols. More recent accounts are: to Service for a Term of Years, and excludC. Warren, The Making of the Constitution; ing Indians not taxed, three fifths of all other A. C. McLaughlin, Confederation and Constitu- persons, The actual Enumeration shall be tion; M. Farrand, Fathers of the Constitution; de within three Years after the first Mcet-

lustrative of the Formation of the Union of the

M. Farrand, Framing of the Constitution; C. A. mace WH eae naa

Beard, Economic Interpretation of the Constitu- Ing of the Congress of the United States, tion. The struggle over ratification can be fol- and within every subsequent Term of ten lowed in J. Elliot’s Debates in the Several State Years, in such Manner as they shall by Law Conventions, etc. 5 Vols.; and O. G. Libby, direct. The Number of Representatives shali Geographical Distribution of the Vote on the not exceed one for every thirty Thousand,

Federal Convention; J. B. McMaster and but each State shall have at Least one F, D. Stone, Pennsylvania and the Federal Con- Representative; and until such enumeration stitution ; S. B. Harding, Contest over Ratifica- shay be made, the State of New Hampshire

tion in Massachusetis; C. E. Miner, Ratification ;

of the Federal Constitution by the State of shall be entitled to chuse three, MassachuNew York; L. I. Trenholme, Ratification of setts eight, Rhode-Island and Providence the Federal Constitution in North Carolina; Plantations one, Connecticut five, New-York B. C. Steiner, Maryland’s Adoption of the six, New Jersey four, Pennsylvania eight, Federal Constitution; F. G. Bates, Rhode Is- Delaware one, Maryland six, Virginia ten, land and the Union; H. G. Grigsby, History North Carolina five, South Carolina five, and of the Virginia Federal Convention of 1788, Georgia three. 2 Vols. On the amendments, sce C. Borgeaud, When vacancies happen in the RepresentaAdoption and Amendment of Constitutions. tion from any State, the Executive Authority We tue PeorpLte of the United States, in thereof shall issue Writs of Election to fill Order to form a more perfect Union, es- such Vacancies. tablish Justice, insure domestic Tranquility, The House of Representatives shall chuse provide for the common defence, promote their Speaker and other Officers; and shall the general Welfare, and secure the Bless- have the sole Power of Impcachment. ings of Liberty to ourselves and our Poster- Sec. 3. The Senate of the United States shall ity, do ordain and establish this Constitu- be composed of two Senators from each tion for the United States of America. State, chosen by the Legislature thereof, for six Years; and each Senator shall have one

Art. I V

ote.

Sec. 1. All legislative Powers herein granted Immediately after they shall be assembled shall be vested in a Congress of the United in Consequence of the first Election, they States, which shall consist of a Senate and — shall be divided as equally as may be into

House of Representatives. three Classes. The Seats of the Senators of

Sec. 2. The House of Representatives shall the first Class shall be vacated at the Expirabe composed of Members chosen every sec- tion of the second Year, of the second Class ond Year by the People of the several States, at the Expiration of the fourth Year, and and the Electors in each State shall have the of the third Class at the Expiration of the Qualifications requisite for Electors of the sixth Year, so that one third may be chosen most numerous Branch of the State Legisla- every second Year; and if Vacancies hap-

ture. pen by Resignation, or otherwise, during the No Person shall be a Representative who Recess of the Legislature of any State, the shall not have attained to the Age of twenty Executive thereof may make temporary Ap-

140 DocUMENTS OF AMERICAN History pointments until the next Meeting of the its Proceedings, punish its Members for disLegislature, which shall then fill such Vacan- orderly Behaviour, and, with the Concurrence

cles. of two thirds, expel a Member. : No Person shall be a Senator who shall Each House shall keep a Journal of its

not have attained to the Age of thirty Years, Proceedings, and from time to time publish and been nine Years a Citizens of the United the same, excepting such Parts as may in States, and who shall not, when elected, be _ their Judgment require Secrecy; and the

an Inhabitant of that State for which he Yeas and Nays of the Members of either

shall be chosen. Flouse on any question shall, at the Desire

The Vice President of the United States of one fifth of those Present, be entered on Shall be President of the Senate, but shall the Journal.

have no Vote, unless they be equally divided. Neither House, during the Session of ConThe Senate shall chuse their other Officers, gress, shall, without the Consent of the other,

and also a President pro tempore, in the adjourn for more than three days, nor to

Absence of the Vice President, or when he any other Place than that in which the two shall exercise the Office of President of the Houses shall be sitting.

United States. sec. 6. The Senators and Representatives

The Senate shall have the sole Power to — shall receive a Compensation for their Servtry all Impeachments. When sitting for that ices, to be ascertained by Law, and paid out Purpose, they shall be on Oath or Affirma- of the Treasury of the United States. They tion. When the President of the United States shall in all Cases, except Treason, Felony and is tried, the Chief Justice shall preside: And Breach of the Peace, be privileged from Arno Person shall be convicted without the rest during their Attendance at the Session Concurrence of two thirds of the Members of _ their respective Houses, and in going to

present. and returning from the same; and for any Judgment in Cases of Impeachment shall Speech or Debate in cither House, they shall

not extend further than to removal from not be questioned in any other Place. Office, and disqualification to hold and enjoy No Senator or Representative shall, durany Office of honor, Trust or Profit under ing the Time for which he was elected, be the United States: but the Party convicted appointed to any civil Office under the Aushall nevertheless be liable and subject to thority of the United States which shall have Indictment, Trial, Judgment and Punishment, been created, or the Emoluments whereof

according to Law. shall have been encreased during such time:

sec. 4. The Times, Places and Manner of and no Person holding any Office under the holding Elections for Senators and Repre- United States, shail be a Member of either sentatives, shall be prescribed in cach State House during his Continuance in Office. by the Legislature thereof; but the Congress Sec. 7. All Bills for raising Revenue shall may at any time by Law make or alter such originate in the House of Representatives: Regulations, except as to the Places of chus- but the Senate may propose or concur with

ing Senators. Amendments as on other Bills.

The Congress shall assemble at least once Every Bill which shall have passed the in every Year, and such Meeting shall be on House of Representatives and the Senate, the first Monday in December, unless they — shall, before it become a Law, be presented

shall by Law appoint a different Day. to the President of the United States; If

Sec. 5. Each House shall be the Judge of the he approve he shall sign it, but if not he Elections, Returns and Qualifications of its shall return it, with his Objections to that own Members, and a Majority of each shall House in which it shall have originated, who

constitute a Quorum to do Business; but a shall enter the Objections at large on their smaller Number may adjourn from day to Journal, and proceed to reconsider it. If after

day, and may be authorized to compel the such Reconsideration two thirds of that Attendance of absent Members, in such . House shall agree to pass the Bill, it shall be Manner, and under such Penalties as each sent, together with the Objections, to the

House may provide. other House, by which it shall likewise be Each House may determine the Rules of reconsidered, and if approved by two thirds

Ture CONSTITUTION OF THE UNITED STATES 141 of that House, it shall become a Law. But committed on the high Seas, and Offences in all such Cases the Votes of both Houses against the Law of Nations; shall be determined by yeas and Nays, and To declare War, grant Letters of Marque the Names of the Persons voting for and and Reprisal, and make Rules concerning against the Bill shall be entered on the Captures on Land and Water; Journal of each House respectively. If any To raise and support Armies, but no ApBil shall not be returned by the President propriation of Moncy to that Use shall be within ten Days (Sundays excepted) after for a longer Term than two Years; it shall have been presented to him, the Same To provide and maintain a Navy; shall be a Law, in like Manner as if he had To make Rules for the Government and signed it, unless the Congress by their Ad- Regulation of the land and naval Forces; journment prevent its Return, in which Case To provide for calling forth the Mhlitia

it shall not be a Law. to execute the Laws of the Union, suppress Every Order, Resolution, or Vote to which Insurrections and repel Invasions;

the Concurrence of the Senate and House To provide for organizing, arming, and of Representatives may be necessary (except disciplining, the Militia, and for governing on a question of Adjournment) shall be pre- such Part of them as may be employed in sented to the President of the United States; the Service of the United States, reserving and before the Same shall take Effect, shall to the States respectively, the Appointment be approved by him, or being disapproved of the Officers, and the Authority of trainby him, shall be repassed by two thirds of ing the Militia according to the discipline the Senate and House of Representatives, prescribed by Congress;

according to the Rules and Limitations pre- To exercise exclusive Legislation in all

scribed in the Case of a Bill. Cases whatsoever, over such District (not

Sec. 8. The Congress shall have Power To exceeding ten Miles square) as may, by Ceslay and collect Taxes, Dutics, Imposts and sion of particular States, and the Acceptance Excises, to pay the Debts and provide for of Congress, become the Seat of the Governthe common Defence and general Welfare ment of the United States, and to exercise of the United States; but all Duties, Im- like Authority over all Places purchased by posts and Excises shall be uniform through- the Consent of the Legislature of the State

out the United States; in which the Same shall be, for the Erection

To borrow Money on the credit of the of Forts, Magazines, Arsenals, dock-Yards,

United States; and other needful Buildings;—And

To regulate Commerce with foreign Na- To make all Laws which shall be necestions, and among the several States, and sary and proper for carrying into Execution

with the Indian Tribes; the foregoing Powers, and all other Powers To establish an uniform Rule of Natur- vested by this Constitution in the Governalization, and uniform Laws on the subject ment of the United States, or in any Depart-

of Bankruptcies throughout the United ment or Officer thereof.

States; Sec. 9. The Migration or Importation of To coin Money, regulate the Value thereof, such Persons as any of the States now existand of foreign Coin, and fix the Standard of ing shall think proper to admit, shall not

Weights and Measures; be prohibited by the Congress prior to the To provide for the Punishment of counter- Year one thousand eight hundred and eight,

feiting the Securities and current Coin of but a Tax or duty may be imposed on such

the United States; Importation, not exceeding ten dollars for To establish Post Offices and post Roads; each Person.

To promote the Progress of Science and The Privilege of the Writ of Habeas useful Arts, by securing for limited Times Corpus shall not be suspended, unless when to Authors and Inventors the exclusive Right in Cases of Rebellion or Invasion the public to their respective Writings and Discoveries; Safety may require it.

To constitute Tribunals inferior to the No Bill of Attainder or ex post facto Law

supreme Court; shall be passed.

To define and punish Piracies and Felonies No Capitation, or other direct, Tax shall

142 DOcUMENTS oF AMERICAN History be laid, unless in Proportion to the Census America. He shall hold his Office during the or Enumeration herein before directed to be Term of four Years, and, together with the

taken. Vice President, chosen for the same Term, No Tax or Duty shall be laid on Articles be elected, as follows

exported from any State. Each State shall appoint, in such Manner No Preference shall be given by any as the Legislature thereof may direct, a

Regulation of Commerce or Revenue to the Number of Electors, equal to the whole Ports of one State over those of another: Number of Senators and Representatives to nor shall Vessels bound to, or from, one which the State may be entitled in the ConState, be obliged to enter, clear, or pay gress: but no Senator or Representative, or

Duties in another. Person holding an Office of Trust or Profit

No Money shall be drawn from the Treas- under the United States, shall be appointed ury, but in Consequence of Appropriations an Elector. made by Law; and a regular Statement and The Electors shall meet in their respective Account of the Receipts and Expenditures states, and vote by Ballot for two Persons, of all public Money shall be published from of whom one at least shall not be an In-

time to time. habitant of the same State with themselves. No Title of Nobility shall be granted by And they shall make a List of all the Perthe United States: And no Person holding sons voted for, and of the Number of Votes

any Office of Profit or Trust under them, for each; which List they shall sign and shall, without the Consent of the Congress, certify, and transmit sealed to the Seat of accept of any present, Emolument, Office, the Government of the United States, dior Title, of any kind whatever, from any rected to the President of the Senate. The

King, Prince or foreign State. President of the Senate shall, in the Presence sec. 10. No State shall enter into any Treaty, of the Senate and House of Representatives, Alliance, or Confederation; grant Letters of open all the Certificates, and the Votes shall

Marque and Reprisal; coin Money; emit then be counted. The Person having the Bills of Credit; make any Thing but gold greatest Number of Votes shall be the Presiand silver Coin a Tender in Payment of dent, if such Number be a Majority of the Debts; pass any Bill of Attainder, ex post whole Number of Electors appointed; and if facto Law, or Law impairing the Obligation there be more than one who have such of Contracts, or grant any Title of Nobility. Majority, and have an equal Number of No State shall, without the Consent of the Votes, then the House of Representatives

Congress, lay any Imposts or Duties on shall immediately chuse by Ballot one of Imports or Exports, except what may be them for President; and if no person have absolutely necessary for executing it’s in- a Majority, then from the five highest on spection Laws: and the net Produce of all the List the said House shall in like Manner Duties and Imposts, laid by any State on chuse the President. But in chusing the Imports or Exports, shall be for the Use President, the Votes shall be taken by States, of the Treasury of the United States; and the Representation from each State having all such Laws shall be subject to the Revision one Vote; A quorum for this Purpose shall

and Controul of the Congress. consist of a Member or Members from two No State shall, without the Consent of thirds of the States, and a Majority of all Congress, lay any Duty of Tonnage, keep the States shall be necessary to a Choice. Troops, or Ships of War in time of Peace, In every Case, after the Choice of the enter into any Agreement or Compact with President, the Person having the greatest another State, or with a foreign Power, or Number of Votes of the Electors shall be the engage in War, unless actually invaded, or Vice President. But if there should remain in such imminent Danger as will not admit two or more who have equal Votes, the

of delay. Senate shall chuse from them by Ballot the Vice President.

Art. IH The Congress may determine the Time of Sec. 1. The executive Power shall be vested chusing the Electors, and the Day on which

in a President of the United States of they shall give their Votes; which Day shall

Tue CONSTITUTION OF THE UNITED STATES 143 be the same throughout the United States. public Ministers and Consuls, Judges of the No Person except a natural born Citizen, supreme Court, and all other Officers of the or a Citizen of the United States, at the United States, whose Appointments are not time of the Adoption of this Constitution, herein otherwise provided for, and which shall shall be eligible to the Office of President; be established by Law: but the Congress may neither shall any Person be eligible to that by Law vest the Appointment of such inferior Office who shall not have attained to the Officers, as they think proper, in the PresiAge of thirty five Years, and been fourteen dent alone, in the Courts of Law, or in the Years a Resident within the United States. Heads of Departments. In Case of the Removal of the President The President shall have Power to fill up from Office, or of his Death, Resignation, all Vacancies that may happen during the or Inability to discharge the Powers and Recess of the Senate, by granting CommisDuties of the said Office, the Same shall sions which shall expire at the End of their devolve on the Vice President, and the Con- next Session. gress may by Law provide for the Case of Sec. 3. He shall from time to time give to Removal, Death, Resignation or Inability, the Congress Information of the State of both of the President and Vice President, the Union, and recommend to their Condeclaring what Officer shall then act as _ sideration such Measures as he shall judge President, and such Officer shall act accord- necessary and expedient; he may, on extraoringly, until the Disability be removed, or a_ dinary Occasions, convene both Houses, or

President shall be elected. elther of them, and in Case of Disagreement The President shall, at stated Times, re- between them, with Respect to the Time of ceive for his Services, a Compensation, which Adjournment, he may adjourn them to such

shall neither be encreased nor diminished Time as he shall think proper; he shall during the Period for which he shall have receive Ambassadors and other public Minisbeen elected, and he shall not receive within ters; he shall take Care that the Laws be that Period any other Emolument from the faithfully executed, and shall Commission

United States, or any of them. all the Officers of the United States.

Before he enter on the Execution of his Sec. 4. The President, Vice President and all Office, he shall take the following Oath or civil Officers of the United States, shall be Affirmation:—“I do solemnly swear (or af- removed from Office on Impeachment for, firm) that I will faithfully execute the Of- and Conviction of, Treason, Bribery, or other fice of President of the United States, and high Crimes and Misdemeanors.

will to the best of my Ability, prcserve,

protect and defend the Constitution of the Art. Il

United States.” Sec. 1. The judicial Power of the United Sec. 2. The President shall be Commander States, shall be vested in one supreme Court,

in Chief of the Army and Navy of the and in such inferior Courts as the Congress United States, and of the Militia of the may from timc to time ordain and establish, several States, when called into the actual The Judges, both of the supreme and inferior Service of the United States; he may require Courts, shall hold their Offices during good the Opinion, in writing, of the principal Of- Behaviour, and shall, at stated Times, reficer in each of the executive Departments, ceive for their Services, a Compensation, upon any Subject relating to the Duties of | which shall not be diminished during their their respective Offices, and he shall have Continuance in Oftice. Power to grant Reprieves and Pardons for Sec. 2. The judicial Power shall extend to Offences against the United States, except all Cases, in Law and Equity, arising under

in Cases of Impeachment. , this Constitution, the Laws of the United He shall have Power, by and with the States, and Treaties made, or which shall

Advice and Consent of the Senate, to make be made, under their Authority :—to all Cases Treaties, provided two thirds of the Senators affecting Ambassadors, other public Ministers present concur; and he shall nominate, and and Consuls;—to all Cases of admiralty and by and with the Advice and Consent of the maritime Jurisdiction;—to Controversies to

Senate, shall appoint Ambassadors, other which the United States shall be a Party;—

144 DOCUMENTS oF AMERICAN HIsToRY to Controversies between two or more States; No Person held to Service or Labour in —between a State and Citizens of another one State, under the Laws thereof, escaping State;—between Citizens of different States, into another, shall, in Consequence of any —between Citizens of the same State claim- Law or Regulation therein, be discharged ing Lands under Grants of different States, from such Service or Labour, but shall be and between a State, or the Citizens thereof, delivered up on Claim of the Party to whom and foreign States, Citizens or Subjects. such Service or Labour may be due. In all Cases affecting Ambassadors, other Sec. 3. New States may be admitted by the public Ministers and Consuls, and those in Congress into this Union; but no new States which a State shall be Party, the supreme shall be formed or erected within the JurisCourt shall have original Jurisdiction. In all diction of any other State; nor any State be

the other Cases before mentioned, the su- formed by the Junction of two or more

preme Court shall have appellate Jurisdic- States, or Parts of States, without the Contion, both as to Law and Fact, with such sent of the Legislatures of the States conExceptions, and under such Regulations as cerned as well as of the Congress.

the Congress shall make. The Congress shall have Power to dispose

The Trial of all Crimes, except in Cases of and make all needful Rules and Regulaof Impeachment, shall be by Jury; and such _ tions respecting the Territory or other Prop-

Trial shall be held in the State where the erty belonging to the United States; and

said Crimes shall have been committed; but nothing in this Constitution shall be so con-

when not committed within any State, the strued as to Prejudice any Claims of the Trial shall be at such Place or Places as the United States, or of any particular State.

Congress may by Law have directed. sec. 4. The United States shall guarantee to Sec, 3. Treason against the United States, every State in this Union a Republican Form

shall consist only in levying War against of Government, and shall protect each of them, or in adhering to their Enemies, giving them against Invasion; and on Application them Aid and Comfort. No Person shall be of the Legislature, or of the Executive (when convicted of Treason unless on the Testimony the Legislature cannot be convened) against of two Witnesses to the same overt Act, or domestic Violence. on Confession in open Court.

The Congress shall have Power to declare Art. V

the Punishment of Treason, but no Attainder The Congress, whenever two thirds of both of Treason shall work Corruption of Blood, Houses shall deem it necessary, shall propose or Forfeiture except during the Life of the Amendments to this Constitution, or, on the

Person attainted. Application of the Legislatures of two thirds of the several States, shall call a Convention

Art. IV for proposing Amendments, which, in either sec. 1. Full Faith and Credit shall be given Case, shall be valid to all Intents and Purin each State to the Public Acts, Records, poses, as Part of this Constitution, when and judicial Proceedings of every other ratified by the Legislatures of three fourths State. And the Congress may by general of the several States, or by Conventions in Laws prescribe the Manner in which such _ three fourths thereof, as the one or the other Acts, Records and Proceedings shall be Mode of Ratification may be proposed by the

proved, and the Effect thereof. Congress; Provided that no Amendment Sec. 2. The Citizens of each State shall be which may be made prior to the Year One entitled to all Privileges and Immunities of thousand eight hundred and eight shall in

Citizens in the several States. any Manner affect the first and fourth

A Person charged in any State with Trea- Clauses in the Ninth Section of the first son, Felony, or other Crime, who shall flee Article; and that no State, without its Confrom Justice, and be found in another State, sent, shall be deprived of it’s equal Suffrage shall on Demand of the executive Authority in the Senate.

of the State fromtowhich he fled, beJurisdelivered Art. VI , up, to be removed the State having

diction of the Crime. All Debts coutracted and Engagements

THE CONSTITUTION OF THE UNITED STATES 145 entered into, before the Adoption of this stitution; but no religious Test shall ever be Constitution, shall be as valid against the required as a Qualification to any Office or United States under this Constitution, as public Trust under the United States. under the Confederation.

This Constitution, and the Laws of the Art. VII

United States which shall be made in Pursu- The Ratification of the Conventions of ance thereof; and all Treaties made, or which nine States, shall be sufficient for the Esshall be made, under the Authority of the tablishment of this Constitution between the United States, shall be the supreme Law of States so ratifying the Same. the Land; and the Judges in every State shall Done in Convention by the Unanimous be bound thereby, any Thing in the Constitu- Consent of the States present the Sevention or Laws of any State to the Contrary teenth Day of September in the Year of our

notwithstanding. Lord one thousand seven hundred and

The Senators and Representatives before Eighty seven and of the Independence of mentioned, and the Members of the several the United States of America the Twelfth. State Legislatures, and all executive and In witness whereof We have hereunto subjudicial Officers, both of the United States scribed our Names,

and of the several States, shall be bound G° WASHINGTON—Presid' by Oath or Affirm:.tion, to support this Con- and deputy from Virginia Gro: READ

NICHOLAS GILMAN f BEDFORD New Hampshire {3 OHN LANGDON | Gomme Delaware Jun JouHN DICKINSON

| Rican BASSETT

Massachusetts {UFUS Ronee Kan GORHAM Jaco: Broom KING

M°HENRY _ W™ Sam" JoHNSON Maryland DAN oF St[Dano THOS JENT-

onnecticut { Rooes SHERMAN | PER DAN" CARROLL

ALEXANDER HAmIL- oo JouHN BLaiR— New York |( TON Virginia { JAMES MapIson Jr.

Wit: Livincston Ree Ne New Jersey | wee CREARLEY North Carolina SPAIGHT

Jona: DaAvTon Hu WILLIAMSON J. RUTLEDGE

| B FRANKLIN CHartes CorTEs_Tsomas MIFFLin South Carolina WORTH PINCKNEY RRS CHARLES ; EO. Ron CLYMER PIERCEPINCKNEY BUTLE

Pensylvania | THos FirzSrmons ones | JARED INGERSOLL

| JAMES WILSON . WILLIAM FEw | Gouv Morris Georgia oe BALDWIN

146 DocUMENTS OF AMERICAN History Articles in addition to, and Amendment of Art. VI the Constitution of the United States of In all criminal prosecutions, the accused America, proposed by Congress, and ratified shal] enjoy the right to a speedy and public by the Legislatures of the several States, pur- trial, by an impartial jury of the State and suant to the fifth Article of the original Con- district wherein the crime shall have been

stitution. committed, which district shall have been [The first ten amendments went into effect Previously ascertained by law, and to be in-

December 15, 1791.] formed of the nature and cause of the ac-

cusation; to be confronted with the witnesses

Art. I against him; to have compulsory process for Congress shall make no law respecting an obtaining witnesses in his favor, and to have establishment of religion, or prohibiting the the Assistance of Counsel for his defence.

free exercise thereof; or abridging the free- Art. VII

dom of speech, or of the press; In orSuits theatright , common law, where the value of the people peaceably to assemble, and to. vps he government for a redress of 1% Controversy shall exceed twenty dollars,

petition the 8 the right of trial by jury shall be preserved,

Bevances. and no fact tried by a jury, shall be other-

Art. IT wise re-examined in any Court of the United

A well regulated Militia, being necessary States, than according to the rules of the to the security of a free State, the right of common law.

the people to keep and bear Arms, shall not Art. VIII

be infringed. Excessive bail shall not be required, nor

Art. ITT excessive fines imposed, nor cruel and un-

No Soldier shall, in time of peace be Usual punishments inflicted.

quartered in any house, without the consent Arr. IX of the Owner, nor in time of war, but in a The enumeration in the Constitution, of

manner to be prescribed by law. certain rights, shall not be construed to deny

Art. IV or disparage others retained by the people. |

The mght of the people to be secure in ArT, X their persons, houses, papers, and effects, The powers not delegated to the United against unreasonable searches and seizures, ctates by the Constitution, nor prohibited shall not be violated, and no Warrants shall by it to the States, are reserved to the States issue, but upon probable cause, supported by respectively, or to the people.

Oath or affirmation, and particularly describ-

ing the place to be searched, and the persons Art. XI]

or things to be seized. Jan. 8, 1798 The Judicial power of the United States

Art. V shall not be construed to extend to any suit

No person shall be held to answer for a in jaw or equity, commenced or prosecuted capital, or otherwise infamous crime, unless against one of the United States by Citizens on a presentment or indictment of a Grand of another State, or by Citizens or Subjects Jury, except in cases arising in the land or of any Foreign State. naval forces, or in the Militia, when in actual

service in time of War or public danger; Art. XII nor shall any person be subject for the same Sept. 25, 1804 .

offence to be twice put in jeopardy of life The Electors shall mect in their respec-

or limb; nor shall be compelled in any crimi- tive states, and vote by ballot for President nal case to be a witness against himself, nor and Vice-President, one of whom, at least, be deprived of life, liberty, or property, with- shall not be an inhabitant of the same state

out due process of law; nor shall private with themselves; they shall name in their property be taken for public use, without ballots the person voted for as President, and

just compensation. in distinct ballots the person voted for as

Tuer CONSTITUTION OF THE UNITED STATES 147 Vice-President, and they shall make distinct Sec. 2. Congress shall have power to enforce lists of all persons voted for as President, this article by appropriate legislation.

and of all persons voted for as Vice-Presi- Arr. XIV

dent, and of the number of votes for each, July 28, 1868

which lists they shall sign and certify, and Sec 1. All perso < bor x naturalized in the

transmit sealed to the seat of the government ee. ht person aa

of the United States, directed to the Presi- United States, and subject to the jurisdiction dent of the Senate:—-The President of the thereof, are citizens of the United States and Senate shall, in the presence of the Senate of the State wherein they reside. No State and House of Representatives, open all the shall make or enforce any law which shall certificates and the votes shall then be abridge the privileges or immunities of citicounted:—The person having the greatest zens of the United States; nor shall any State number of votes for President, shall be the deprive any person of life, liberty, or property, President, if such number be a majority of without due process of law; nor deny to any the whole number of Electors appointed; and person within its jurisdiction the equal pro-

if no person have such majority, then from a ° the Ns hall b soned

the persons having the highest numbers not °C *: *€Presehlouves Suse apporuone: exceeding three on the list of those voted for among the several States according to their as President, the House of Representatives respective numbers, counting the whole numshall choose immediately, by ballot, the Pres- ber of persons in each State, excluding Indians

ident. But in choosing the President, the 7% taxed. But when the right to vote at any votes shall be taken by states, the represen- election for the choice of electors for Presitation from each state having one vote: qa (ent and Vice President of the United States, quorum for this purpose shall consist of a Representatives in Congress, the Executive member or members from two-thirds of the and Judicial officers of a State, or the memstates, and a majority of all the states shall bers of the Legislature thereof, is denied to be necessary to a choice. And if the House of any of the male inhabitants of such State, Representatives shall not choose a President being twenty-one years of age, and citizens whenever the right of choice shall devolve of the United States, or in any way abridged, upon them, before the fourth day of March except for participation in rebellion, or other next following, then the Vice-President shall (17) the basis of representation therein shall act as President, as in the case of the death be reduced in the proportion which the numor other constitutional disability of the Pres- ber of such male citizens shall bear to the ident.—The person having the greatest num- whole number of male citizens twenty-one

ber of votes as Vice-President, shall be the 2°" of age in such State. Vice-President, if such number be a majority Sec. 3. No person shall be a Senator or Repreof the whole number of Electors appointed sentative in Congress, or elector of President and if no person have a majority, then from and Vice President, or hold any office, civil the two highcst numbers on the list, the Sen- or military, under the United States, or under ate shall choose the Vice-President; a quorum any State, who, having previously taken an for the purpose shall consist of two-thirds of oath, as a member of Congress, or as an officer the whole number of Senators, and a majority of the United States, or as a member of any of the whole number shall be necessary to a State legislature, or aS an execulive or Judichoice. But no person constitutionally ineli- “ll officer of any State, to support the Congible to the office of President shall be eligible stitution of the United States, shall have ento that of Vice-President of the United States. gaged in insurrection or rebellion against the

. same, or given aid or comfort to the enemies Art. XII thereof. But Congress may by a vote of two-

Dec. 18, 1865 thirds of each House, remove such disability.

Sec. 1, Neither slavery nor involuntary servi- Sec. 4. The validity of the public debt of the

tude, except as a punishment for crime United States, authorized by law, including whereof the party shall have been duly con- debts incurred for payment of pensions and victed, shall exist within the United States, bounties for services in suppressing insurrecor any place subject to their jurisdiction. tion or rebellion, shall not be questioned. But

148 DOCUMENTS OF AMERICAN History neither the United States nor any State shall tion of intoxicating liquors within, the imporassume Or pay any debt or obligation incurred tation thereof into, or the exportation thereof in aid of insurrection or rebellion against the from the United States and all territory sub-

United States, or any claim for the loss or ject to the jurisdiction thereof for beverage emancipation of any slave; but all such debts, purposes is hereby prohibited. obligations and claims shall be held illegal and The Congress and the several States shall

void. have concurrent power to enforce this article Sec. 5. The Congress shall have power to en- by appropriate legislation.

force, by appropriate legislation, the pro- This article shall be inoperative unless it

visions of this article. shall have been ratified as an amendment to

Arr. XV the Constitution by the legislatures of the

March 30. 1870 several States, as provided in the Constitution, Sec. 1. The right of citizens of the United itm Seven years from the date of the subStates to vote shall not be denied or abridged mission hereof to the States by Congress.

by the United States or by any State on ac- Art. XIX

count of race, color, or previous condition of August 26, 1920

an ( hall b , The right of citizens of the United States to ee & fate Longress shail have power to vote shall not be denied or abridged by the

tion— Sex.

enforce this article by appropriate legisla- United States or by any States on account of

Arr. XVI The Congress shall have power by appro-

February 25, 1913 priate legislation to enforce the provisions of The Congress shall have power to lay and this article.

collect taxes on incomes, from whatever Art. XX source derived, without apportionment among February 6, 1933

the several States and without regard to any sec 4. ‘The terms of the President and Vice-

census or enumeration. President shall end at noon on the twentieth

Art. XVII day of January, and the terms of Sena-

May 31, 1913 tors and Representatives at noon on the third

The Senate of the United Stales shall be ‘ay of January, of the years in which such composed of two senators from each State, ‘rms would have ended if this article had elected by the people thereof, for six years; 20t been ratified; and the terms of their sucand each Senator shall have one vote. The Céssors shall then begin. electors in each State shall have the qualificas Sec. 2. The Congress shall assemble at tions requisite for electors of the most num- east once in every year, and such meeting erous branch of the State legislature. shall begin at noon on the third day of JanuWhen vacancies happen in the representa- 2Y: unless they shall by law appoint a differ-

tion of any State in the Senate, the executive nt day.

authority of such State shall issue writs of ec: 3. If, at the time fixed for the beginelection to fill such vacancies: Provided, That "ng of the term of the President, the the legislature of any State may empower the President-elect shall have died, the Viceexecutive thereof to make temporary appoint- President-elect shall become President. If a ments until the people fill the vacancies by President shall not have been chosen before

election as the legislature may direct. the time fixed for the beginning of his term, This amendment shall not be so construed if the President-elect shall have failed to as to affect the election or term of any senator alify, then the Vice-President-elect shall chosen before it becomes valid as part of the ct as President until a President shall have

Constitution. qualified; and thevideCongress may by law profor the case wherein neither a PresidentArT. XVIII elect nor a Vice-President-elect shall have

January 29, 1919 qualified, declaring who shall then act as PresAfter one year from the ratification of this ident, or the manner in which one who is to article, the manufacture, sale, or transporta- act shall be selected, and such person shall act

OBJECTIONS TO THE FEDERAL CONSTITUTION 149 accordingly until a President or Vice-Presi- to the Constitution of the United States is

dent shall have qualified. hereby repealed. . Sec. 4. The Congress may by law provide Sec. 2. The transportation or importation into

for the case of the death of any of the persons any State, Territory or possession of the from whom the House of Representatives United States for delivery or use therein of may choose a President whenever the right of intoxicating liquors, in violation of the laws choice shall have devolved upon them, and thereof, is hereby prohibited. for the case of the death of any of the per- Sec. 3. This article shall be inoperative unless sons from whom the Senate may choose a __ it shall have been ratified as an amendment to Vice-President whenever the right of choice the Constitution by convention in the several

shall have devolved upon them. Slates, as provided in the Constitution, within Sec. 5. Sections 1 and 2 shall take effect on seven years from the date of the submission the 15th day of October following the ratifica- thereof to the States by the Congress.

tion6.of article. . . Arr. XXII Sec. Thisthis article shall be inoperative un- ,

less it shall have been ratified as an amend- (Pending)

ment to the Constitution by the legislatures Sec. 1, The Congress shall have power to of three-fourths of the several States within sane uiier eighioen wus ot age of perseven years from the date of its submission. Sec. 2. The power of the several States is unimpaired by this article except that the

ArT. XXI operation of State laws shall be suspended to

December 5, 1933 the extent necessary to give effect to legislaSec. 1, The eighteenth article of amendment _ tion enacted by the Congress.

88. OBJECTIONS TO THE FEDERAL CONSTITUTION Letter of Robert Yates and John Lansing to the Governor of New York 1787

(J. Elliot, ed. Debates in the Several State Conventions on the Adoption of the Federal Constitution, 1861 ed., Vol. I, p. 480 ff.) Yates and Lansing, delegates to the Federal Con- 2nd. A conviction of the impracticability vention from New York, refused to sign the of establishing a general government, perConstitution; Alexander Hamilton alone signed vading every part of the United States, and from New York State. Opposition to the new extending essential benefits to all.

Constitution in New York was intense, and 0 licit q fined t

ratification was secured only after nine other ur Powers were explicit, an conned to

States had already ratified. See, E. W. Spauld- the sole and express purpose of revising the ing, New York in the Critical Period, 1783- Articles of Confederation, and reporting such 1789; O. G. Libby, Geographical Distribution of | alterations and provisions therein, as should the Vote of the Thirteen States on the Federal render the Federal Constitution adequate to Constitution; C. E. Miner, Ratification of the the exigencies of government, and the preser-

Federal Constitution by the State of New vation of the Union.

York. F'rom these expressions, we were led to be-

. . . We beg leave, briefly, to state some lieve that a system of consolidated governcogent reasons, which, among others, influ: ment could not, in the remotest degree, have enced us to decide against a consolidation of _ been in contemplation of the legislature of this

the states. These are reducible into two state; for that so important a trust, as the

heads :— adopting measures which tended to deprive Ist. The limited and well-defined powers the state government of its most. essential under which we acted, and which could not. rights of sovereignty, and to place it in a

on any possible construction, embrace an idea dependent situation, could not have been con-

of such magnitude as to assent to a general fided by implication; and the circumstance,

constitution, in subversion of that of the that the acts of the Convention were to

state. receive a state approbation in the last resort.

150 DOCUMENTS OF AMERICAN History forcibly corroborated the opinion that our dispersed situation of its inhabitants, and the powers could not involve the subversion of a insuperable difficulty of controlling or counConstitution which, being immediately de- teracting the views of a set of men (however rived from the people, could only be abolished unconstitutional and oppressive their acts by their express consent, and not by a legisla- might be) possessed of all the powers of govture, possessing authority vested in them for ernment, and who, from their remoteness its preservation. Nor could we suppose that, from their constituents, and necessary perif it had been the intention of the legislature manency of office, could not be supposed to

to abrogate the existing confederation, they be uniformly actuated by an attention to would, in such pointed terms, have directed their welfare and happiness; that, however the attention of their delegates to the revision wise and energetic the principles of the genand amendment of it, in total exclusion of eral government might be, the extremities of

every other idea. the United States could not be kept in due Reasoning in this manner, we were of submission and obedience to its laws, at the opinion that the leading feature of every distance of many hundred miles from the seat amendment ought to be the preservation of of government; that, if the general legislature

the individual states in their uncontrolled con- was composed of so numerous a body of men stitutional rights, and that, in reserving these, as to represent the interests of all the inhabia mode might have been devised of granting to tants of the United States, in the usual and the Confederacy, the moneys arising from a true ideas of representation, the expense of general system of revenue, the power of reg- supporting it would become intolerably burulating commerce and enforcing the observ- densome; and that, if a few only were vested ance of foreign treaties, and other necessary with a power of legislation, the interests of a

matters of less moment. great majority of the inhabitants of the Exclusive of our objections originating United States must necessarily be unknown; from the want of power, we entertained an or, if known, even in the first stages of the opinion that a general government, however operations of the new government, unatguarded by declarations of rights, or caution- _ tended to.

ary provisions, must unavoidably, in a short These reasons were, in our opinion, contime, be productive of the destruction of the clusive against any system of consolidated civil liberty of such citizens who could be government: to that recommended by the effectually coerced by it, by reason of the Convention, we suppose most of them very extensive territory of the United States, the forcibly apply... .

89. BAYARD & WIFE v. SINGLETON North Carolina Reports, 1 Martin, 42 1797

The Assembly of North Carolina, in 1785, passed portant and momentous subject; and that nota law requiring the Court to dismiss on motion withstanding the great reluctance they might

any suit brought by a person whose property feel against involving themselves in a dispute had been confiscated by the State during the With the Legislature of the State, yet no obWar of Independence, against the purchasers, ject of concern or respect could come in on affidavit of the defendants that they were competition or authorize them to dispense

purchasers from the commissioners of confis- ‘th the duty th d th blic. j j cated property. The decision of the Court is one With tne duty they owed the PUupAC, In Conse

of the earliest discussions of the right of a court quence of the trust they were invested with

to declare a legislative act void. under the solemnity of their oaths. .

That they therefore were bound to declare The Court made a few observations on our that they considered, that whatever disabili-

constitution and system of government. ... ties the persons under whom the plaintiffs In the course of which the Judges observed were said to derive their titles, might justly that the obligation of their oaths, and the have incurred, against their maintaining or duty of their office required them in that prosecuting any suits in the Courts of this situation, to give their opinion on that im- State; yet that such disabilities in their nature

WASHINGTON’S First INAUGURAL ADDRESS 15] were merely personal, and not by any means might with equal authority, not only render capable of being transferred to the present themselves the Legislators of the State for plaintiffs, either by descent or purchase; and life, without any further election of the peothat these plaintiffs being citizens of one of ple, but from thence transmit the dignity and the United States, are citizens of this State, authority of legislation down to their heirs by the confederation of all the States; which male forever.

is to be taken as a part of the law of the But that it was clear, that no act they could

land, unrepealable by any act of the General pass, could by any means repeal or alter the

Assembly. constitution, because if they could do this, That by the constitution every citizen had they would at the same instant of time, de-

undoubtedly a right to a decision of his stroy their own existence as a Legislature, property by a trial by jury. For that if the and dissolve the government thereby estabLegislature could take away this right, and lished. Consequently the constitution (which require him to stand condemned in his prop- the judicial was bound to take notice of as erty without a trial, it might with as much much as of any other law whatever) standing authority require his life to be taken away in full force as the fundamental law of the without a trial by jury, and that he should land, notwithstanding the act on which the stand condemned to die, without the formality present motion was grounded, the same act

of any trial at all: that if the members of must of course, in that instance, stand as the General Assembly could do this, they abrogated and without any effect.

90. WASHINGTON’S FIRST INAUGURAL ADDRESS April 30, 1789 (Richardson, ed. Messages and Papers, Vol. I, p. 51) The first Congress was supposed to meet March quent interruptions in my health to the grad4, 1789, but not until April 2 did the House have yal waste committed on it by time. On the a quorum, and the Senate did not organize until they hand, the magnitude and difficulty of April 5. On the 6th of April the electoral votes the trust to which the voice of my country

were counted, and Washington and Adams were , . .

announced as President and Vice-President. called me, being sufficient to awaken jn the Charles Thomson was sent to notify Washington WSest and most experienced of her citizens a

of his election, and on April 16 Washington set distrustful scrutiny into his qualifications, out from Mount Vernon for New York. For a could not but overwhelm with despondence

description of the inauguration, sec, The one who (inheriting inferior endowments Journal of William Maclay, ch. i; C. Bowers, from nature and unpracticed in the duties of Jefferson and Hamilton, ch. i; R. W. Griswold, civil administration) ought to be peculiarly The Republican Court; J. B. McMaster, With conscious of his own deficiencies. In this con-

the Fathers, p. 150 iL. flict of emotions all I dare aver is that it has

Fellow-Cilizens of the Senate and of the been my faithful study to collect my duty

House of Representatives: from a Just appreciation of every circum-

Among the vicissitudes incident to life no — stance by which it might be affected. All I dare

event could have filled me with greater anxie- hope is that if, in executing this task, I have ties than that of which the notification was been too much swayed by a grateful rememtransmitted by your order, and received on brance of former instances, or by an affection-

the 14th day of the present month. On the ate sensibility to this transcendent proof of one hand, I was summoned by my country, the confidence of my fellow-citizens, and have whose voice I can never hear but with venera- thence too little consulted my incapacity as tion and love, from a retreat which I had well as disinclination for the weighty and unchosen with the fondest predilection, and, in tried cares before me, my error will be palmy flattering hopes, with an immutable de- liated by the motives which mislead me, and cision, as the asylum of my declining years— its consequences be judged by my country a retreat which was rendered every day more with some share of the partiality in which necessary as well as more dear to me by the _ they originated.

addition of habit to inclination, and of fre- Such being the impressions under which I

152 DocUMENTS OF AMERICAN HiIsToRY have, in obedience to the public summons, communities and interests, so, on another, repaired to the present station, it would be that the foundation of our national policy will peculiarly improper to omit in this first official be laid in the pure and immutable principles of act my fervent supplications to that Almighty private morality, and the preéminence of free

Being who rules over the universe, who pre- government be exemplified by all the attrisides in the councils of nations, and whose butes which can win the affections of its citiprovidential aids can supply every human de- zens and command the respect of the world. I fect, that His benediction may consecrate to dwell on this prospect with every satisfaction the liberties and happiness of the people of | which an ardent love for my country can inthe United States a Government instituted by spire, since there is no truth more thoroughly themselves for these essential purposes, and established than that there exists in the econ-

may enable every instrument employed in omy and course of nature an indissoluble its administration to execute with success the union between virtue and happiness; between

functions allotted to his charge....No duty and advantage; between the genuine people can be bound to acknowledge and maxims of an honest and magnanimous policy adore the Invisible Hand which conducts the and the solid rewards of public prosperity affairs of men more than those of the United and felicity; since we ought to be no less

States. Every step by which they have ad- persuaded that the propitious smiles of vanced to the character of an independent Heaven can never be expected on a nation nation seems to have been distinguished by that disregards the eternal rules of order and some token of providential agency; and in right which Heaven itself has ordained; and the important revolution just accomplished in since the preservation of the sacred fire of the system of their united government the liberty and the destiny of the republican tranquil deliberations and voluntary consent model of government are justly considered, of so many distinct communities from which perhaps, as deeply, as finally, staked on the the event has resulted can not be compared experiment intrusted to the hands of the with the means by which most governments American people. have been established without some return of Besides the ordinary objects submitted to pious gratitude, along with an humble antici- your care, it will remain with your judgment pation of the future blessings which the past to decide how far an exercise of the occa-

seem to presage... . sional power delegated by the fifth article of By the article establishing the execulive the Constitution is rendered expedient at the department it is made the duty of the Presi- present juncture by the nature of objections dent ‘“‘to recommend to your consideration which have been urged against the system, or

such measures as he shall judge necessary and by the degree of inquietude which has given

expedient.” The circumstances under which I birth to them... . now meet you will acquit me from entering To the foregoing observations I have one into that subject further than to refer to the to add, which will be most properly addressed great constitutional charter under which you — to the House of Representatives. It concerns are assembled, and which, in defining your’ myself, and will therefore be as brief as pospowers, designates the objects to which your — sible. When I was first honored with a call

attention is to be given. It will be more con- into the service of my country, then on the sistent with those circumstances, and far more eve of an arduous struggle for its liberties, congenial with the feelings which actuate me, the light in which I contemplated my duty to substitute, in place of a recommendation of | required that I should renounce every peparticular measures, the tribute that is due to cuniary compensation. From this resolution I the talents, the rectitude, and the patriotism have in no instance departed; and being still which adorn the characters selected to devise under the impressions which produced it, I and adopt them. In these honorable qualifica- must decline as inapplicable to myself any tions I behold the surest pledges that as on one — share in the personal emoluments which may

side no local prejudices or attachments, no be indispensably included in a permanent separate views nor party animosities, will mis- provision for the executive department, and direct the comprehensive and equal eye which must accordingly pray that the pecuniary estiought to watch over this great assemblage of mates sor the station in which I am placed

THE JupicraARY AcT oF 1789 153 may during my continuance in it be limited to with opportunities for deliberating in pertect

such actual expenditures as the public good tranquillity, and dispositions for deciding

may be thought to require. with unparalleled unanimity on a form of

Having thus imparted to youmy sentiments government for the security of their union as they have been awakened by the occasion and the advancement of their happiness, so which brings us together, I shall take my His divine blessing may be equally conspicupresent leave; but not without resorting once ous in the enlarged views, the temperate more to the benign Parent of the Human Race consultations, and the wise measures on in humble supplication that, since He has which the success of this Government must been pleased to favor the American people depend.

91. THE JUDICIARY ACT OF 1789 September 24, 1789

(U. S. Statutes at Large, Vol. I, p. 73 ff.) The Constitution provided only for a Supreme _ tricts, except those of Maine and Kentucky, Court and “such inferior Courts as the Congress shall be divided into three circuits, and be may from time to time establish”, thus leaving called the eastern, the middle, and the souththe whole question of the nature and the or- apn circuit. That the eastern circuit shall con-

ganization of the judiciary to the discrction of ; Le . Congress. The framework of the Amcrican ju- sist of the districts ol New Hampshire, dicial system was created in the Act of 1789. Massachusetts, Connecticut, and New York;

The determination of the first Congress to that the middle circuit shall consist of the create a federal judiciary was of immense im- districts of New Jersey, Pennsylvania, Delaportance in devcloping American nationalism. ware, Maryland, and Virginia; and that the See, C. Warren, Congress, The Constitution, and southern circuit shall consist of the districts

the Supreme Court; | S. E. aoe Supe AneC of SUPLEINLE South Carolina and Georgia; and that can JUuaiciary, . arren, Our ° .. in United States History, 1928 ed. Vol. I, ch. i. OE ed ete ee mo eat An Act to establish the Judicial Courts of — called Circuit Courts, and shall consist of any

the United States. two justices of the Supreme Court and the

Sec. 1. Be it enacted, That the supreme district judge of such districts, any two of court of the United States shall consist whom shall constitute a quorum. Provided, of a chief justice and five associate Justices, That no district judge shall give a vote in any

any four of whom shall be a quorum, and case of appeal or error from his own decishall hold annually at the seat of government sion; but may assign the reasons of such his

two sessions, the one commencing the first decision... . Monday of February, and the other the first SEC. 9. That the district courts shall have, Monday of August. That the associate justices exclusively of the courts of the several States,

shall have precedence according to the date cognizance of all crimes and offences that

of their commissions, or when the commis- — shall be cognizable under the authority of the

sions of two or more of them bear date on United States, committed within their rethe same day, according to their respective spective districts, or upon the high seas; where

ages. no other punishment than whipping, not exSrc. 2. That the United States shall be, and ceeding thirty stripes, a fine not exceeding they hereby are, divided into thirteen districts, one hundred dollars, or a term of imprison-

to be limited and called as follows, .. . ment not exceeding six months, is to be inSec. 3, That there be a court called a flicted; and shall also have exclusive original District Court in each of the aforementioned cognizance of all civil cases of admiralty and districts, to consist of one judge, who shall maritime jurisdiction, including all seizures reside in the district for which he is appointed, under laws of impost, navigation, or trade of and shall be called a District Judge, and shall the United States... . And shall also have

hold annually four sessions, .. . cognizance, concurrent with the courts of the sec. 4, That the beforementioned dis- several States, or the circuit courts, as the

154 DOCUMENTS OF AMERICAN History casc may be, of all causes where an alien sues the United States shall be by jury. The Su

for a tort only in violation of the law of preme Court shall also have appellate juris-

nations or a treaty of the United States. And diction from the circuit courts and courts of shall also have cognizance, concurrent as last the several states in the cases hereinafter mentioned, of all suits at common law where specially provided for; and shall have power the United States sue, and the matter in dis- to issue writs of prohibition to the district pute amounts, exclusive of costs, to the sum courts, when proceeding as courts of admiralty or value of one hundred dollars. And shall also and maritime jurisdiction, and writs of manhave jurisdiction exclusively of the courts of damus, in cases warranted by the principle the several States, of all suits against consuls and usages of law, to any courts appointed, or vice-consuls, except for offences above the or persons holding office under the authority description aforesaid. And the trial of issues of the United States... .

in fact, in the district courts, in all cases Sec. 25. That a final judgment or decree except civil causes of admiralty and maritime in any suit, in the highest court of law or

jurisdiction, shall be by jury... . equity of a State in which a decision in the

sec. 11. That the circuit courts shall have suit could be had, where is drawn in question original cognizance, concurrent with the courts the validity of a treaty or statute of, or an of the several States, of all suits of a civil authority exercised under, the United States, nature at common law or in equity, where and the decision is against their validity; or the matter in dispute exceeds, exclusive of where is drawn in question the validity of a costs, the sum or value of five hundred dollars, statute of, or an authority exercised under, and the United States are plaintiffs or peti- any State, on the ground of their being retioners; or an alien is a party, or the suit is pugnant to the constitution, treaties, or laws between a citizen of the State where the suit of the United States, and the decision is in is brought and a citizen of another State. And favour of such their validity, or where is shall have exclusive cognizance of all crimes drawn in question the construction of any and offences cognizable under the authority of | clause of the constitution, or of a treaty, or the United States, except where this act other- statute of, or commission held under, the wise provides, or the laws of the United States United States, and the decision is against the shall otherwise direct, and concurrent juris- title, right, privilege, or exemption, specially diction with the district courts of the crimes set up or claimed by either party, under such and offences cognizable therein.... And clause of the said Constitution, treaty, statute, the circuit courts shall also have appellate or commission, may be re-examined, and rejurisdiction from the district courts under the versed or affirmed in the Supreme Court of regulations and restrictions hereinafter pro- the United States upon a writ of error, the

vided. ... citation being signed by the chief justice, or

SEC. 13. That the Supreme Court shall have judge or chancellor of the court rendering or exclusive jurisdiction of all controversies of passing the judgment or decree complained a civil nature, where a state is a party, except of, or by a justice of the Supreme Court of between a state and its citizens; and except the United States, in the same manner and also belween a state and citizens of other under the same regulations, and the writ shall states, or alicns, in which latter case it shall have the same effect as if the judgment or have original but not exclusive jurisdiction. decree complained of had been rendered or And shall have exclusively all such jurisdic- passed in a circuit court, and the proceedings tion of suits or proceedings against ambassa- upon the reversal shall also be the same, exdors or other public ministers, or their domes- cept that the Supreme Court, instead of retics, or domestic servants, as a court of law manding the cause for a final decision as can have or exercise consistently with the law before provided, may, at their discretion, if of nations; and original, but not exclusive the cause shall have been once remanded bejurisdiction of all suits brought by ambassa- fore, proceed to a final decision of the same, dors or other public ministers, or in which a and award execution. But no other error shall consul or vice-consul shall be a party. And _ be assigned or regarded as a ground of rethe trial of issues in fact in the Supreme _ versal in any such case as aforesaid, than such Court in all actions at law against citizens of as appears on the face of the record, and im-

VA. RESOLUTIONS ON ASSUMPTION OF STATE DesBrts 155 mediately respects the before-mentioned preme Court in which the United States shall questions of validity or construction of the be concerned, and to give his advice and said constitution, treaties, statutes, commis- opinion upon questions of law when required

sions, or authorities in dispute... . by the President of the United States, or

Sec. 35... . And there shall also be ap- when requested by the heads of any of the pointed a meet person learned in the law to departments, touching any matters that may act as attorney-general for the United States, concern their departments, and shall receive who shall be sworn or affirmed to a faithful such compensation for his services as shall execution of his office; whose duty it shall be by law be provided. to prosecute and conduct all suits in the Su-

92. VIRGINIA RESOLUTIONS ON THE ASSUMPTION OF STATE DEBTS December 16, 1790 (W. W. Hening, ed. Statutes at Large of Virginia, Vol. XIII, p. 237 ff.) The opposition of Virginia to Hamilton’s plan agricultural country like this, therefore te for the assumption of the State dcbts arose erect, and concentrate, and perpetuate a large from the fact that Virginia had already made monied interest, is a measure which your provision for a large part of her Revolutionary — »omorialists apprehend must in the course debt. The Virginia remonstrance was dralted of human events produce one or other of two

by Patrick Henry, and caused Hamilton to , , remark, “This is the first symptom of a spirit evils, the prostration of agriculture at the which must either be killed, or will kill the feet of commerce, or a change in the present

Constitution of the United States.” form of foederal government, fatal to the ex-

In the House of Delegates, Sauce of American liberty. |

Thursday, the 16th of December, 1790. re General ssembly pest by various

other parts of the said act which they appre-

The General Assembly of the Commonwealth —hend will have a dangerous and impolitic tend-

of Virginia to the United States in Con- ency, and proceed to show the injustice of

gress assembled. it as it applics to this Commonwealth. .. .

Represent, Your memorialists turn away from the imThat it is with great concern they find policy and injustice of the said act, and view

themselves compelled, from a sense of duty, it in another light, in which to them it appears to call the attention of Congress to an act © still more odious and deformed. of their last session, intitled “An act making During the whole discussion of the foederal provision for the debt of the United States,” constitution by the convention of Virginia, which the General Assembly conceive ncither your memorialists were taught to believe policy, justice nor the constitution warrants. “That every power not granted was retained;”

Republican policy in the opinion of your under this impression and upon this positive memorialists could scarcely have suggested condition, declared in the instrument of ratithose clauses in the aforesaid act, which limit fication, the said government was adopted by the right of the United States, in their re- the people of this Commonwealth; but your demption of the public debt. On the contrary memorialists can find no clause in the constithey discern a striking resemblance between tution authorizing Congress to assume the this system and that which was introduced debts of the states! As the guardians then of into England, at the revolution; a system the rights and interests of their constituents, which has perpetuated upon that nation an as sentinels placed by them over the ministers enormous debt, and has moreover insinuated of the foederal government, to shicld it from into the hands of the exccutive, an unbounded _ their encroachments, or at least to sound the influence, which pervading every branch of alarm when it is threatened with invasion,

the government, bears down all opposition, they can never reconcile it to their con-

and daily threatens the destruction of every- sciences, silently to acquiesce in a measure, thing that appertains to English liberty. The which violates that hallowed maxim: a maxim same causes produce the same effects! In an on the truth and sacredness of which the

156 DOCUMENTS OF AMERICAN HISTORY foederal government depended for its adop- existed under the confederation, and resorting tion in this Commonwealth. But this injudi- to that standard there can be no doubt that clous act not only deserves the censure of the in the present question the rights of states as General Assembly, because it is not warranted contracting with the United States must be by the constitution of the United States, but considered as sacred. because it is repugnant to an express provision The General Assembly of the Commonof that constitution; this provision is “That wealth of Virginia confide so fully in the all debts contracted and engagements entered justice and wisdom of Congress upon the into, before the adoption of this constitution, present occasion, as to hope that they will shall be as valid against the United States revise and amend the aforesaid act generally, under this constitution as under the confeder- and repeal in particular, so much of it as ation,’ which amounts to a constitutional relates to the assumption of the state debts. ratification of the contracts respecting the December the 23d., 1790. Agreed to by the

state debts in the situation in which they Senate. 93. HAMILTON’S OPINION ON THE CONSTITUTIONALITY OF THE BANK February 23, 1791 (The Works of Alexander Hamilton, ed. by J. C. Hamilton, Vol. IV, p. 104 ff.) December 14, 1790, Hamilton presented to Con- That every power vested in a government is gress his plan for the establishment of a nationa] — in its nature soverezgn, and includes, by force

bank. A bill embodying most of the features of of the term a right to employ all the means Hamilton’s plan passed Congress February 8, requisite and fairly applicable to the attain1791. _ Washington, doubtful of the constitu- ent of the ends of such power, and which Jefferson, and Randolph to submit written are not precluded by restriclions and eXCEPopinions on this question. For Jefferson’s opin- ons specified in the Constitution, or not imion, see Doc. No. 94. Randolph submitted two Moral, or not contrary to the essential ends opinions, one adverse, one ambiguous. Hamil- of political society... . ton’s opinion is one of the ablest of his papers: If it would be necessary to bring proof to it contained the substance of the argument gq proposition so clear, as that which affirms subsequently adopted by Marshall in his deci- that the powers of the federal government,

tionality of the measure, requested Hamilton, a,

asnington acceptc arg ; . ‘ . . : .

ea re case on i 6 eons ve arlene as to its objects, were sovereign, there is a signed the bill, February 25. On the First Bank. «aus of ne Constitution which would be see, M. St. C. Clarke and D. A. Hall, Legislutzve CCISIVE. ( is that which declares that the and Documentary History of the Bank of the Constitution, and the laws ot the United United States; W. G. Sumner, History of | States made in pursuance of it, . . . shall be

Banking in the United States, Vol. I. the supreme law of the land. The power which

can create a supreme law of the land, in any . . . Inentering upon the argument it ought case, is doubtless sovereign as to such case. to be premised that the objections of the Sec- This gencral and indisputable principle puts

retary of State and the Attorney-General are at once an end to the abstract question, founded on a general denial of the authority whether the United States have power to of the United States to erect corporations. erect a corporation, that is to say, to give a The latter, indeed, expressly admits, that if Jegal or artificial capacity to one or more there be anything in the bill which is not persons, distinct from the mazural. For it is warranted by the Constitution, it is the clause unquestionably incident to sovereign power to

of incorporation. erect corporations, and consequently to that Now it appears to the Secretary of the of the United States, in re/atzon to the ob-

Treasury that this general principle is inher- jects intrusted to the management of the govent in the very definition of government, and ernment. The difference is this: where the

essential to every step of the progress to be authority of the government is general, it made by that of the United States, namely: can create corporations in all cases; where it

HAMILTON’S OPINION ON THE BANK 157 is confined to certain branches of legislation, It is essential to the being of the national it can create corporations only in those government, that so erroneous a conception

cases. ... of the meaning of the word necessary should

It is not denied that there are implied as be exploded. well as express powers, and that the former It is certain, that neither the grammatical are as effectually delegated as the Jatter. And nor popular sense of the term requires that

for the sake of accuracy it shall be mentioned, construction. According to both, necessary that there is another class of powers, which often means no more than needful, requisite,

may be properly denominated resulting incidental, useful, or conducive to... . And powers. It will not be doubted, that if the it is the true one in which it is to be understood United States should make a conquest of any as used in the Constitution. The whole turn af the territories of its neighbours, they would of the clause containing it indicates, that it

possess sovereign jurisdiction over the con- was the intent of the Convention, by that quered territory. This would be rather a re- clause, to give a liberal latitude to the exersult, from the whole mass of the powers of cise of the specified powers. The expressions

the government, and from the nature of have peculiar comprehensiveness. They are pohtical society, than a consequence of either ‘“‘to make all Jaws necessary and proper for

of the powers specially enumerated... . carrying into execution the foregoing powers, It is conceded that implied powers are to and all other powers, vested by the Constitube considered as delegated equally with ex- tion in the government of the United States, press ones. Then it follows, that asa power of or in any department or o ficer thereof. erecting a corporation may as well be implied To understand the word as the Secretary of as any other thing, it may as well beemployed State does, would be to depart from its ob-

as an instrument or mean of carrying into vious and popular sense, and to give it a

execution any of the specified powers, as any restrictive operation, an idea never before other instrument or mean whatever. The only entertained. It would be to give it the same question must be, in this, as in every other force as if the word absolutely or indispencase, whether the mean to be employed, or in sably had been prefixed to it... . this instance, the corporation to be erected, The degree in which a measure is necessary, has a natural relation to any of the acknowl- can never be a ¢est of the legal right to adopt edged objects or lawful ends of the govern- it; that must be a matter of opinion, and can ment. Thus a corporation may not be erected only be a test of expediency. The relation by Congress for superintending the police of between the measure and the end; between the city of Philadelphia, because they are not the ature of the mean employed towards the authorized to regulate the police of that city. execution of a power, and the object of that But one may be erected in relation to the power, must be the criterion of constitutioncollection of taxes, or to the trade with for- ality, not the more or less of necessity or

eign countries, or to the trade between the wézlity.... States, or with the Indian tribes; because it is This restrictive interpretation of the word the province of the federal government to necessary is also contrary to this sound maxim regulate those objects and because it is in- of construction; namely, that the powers concident to a general sovereign or legislaitzve tained in a constitution of government, espepower to regilate a thing, to employ all the cially those which concern the general admin-

means which relate to its regulation to the istration of the affairs of a country, its best and greatest advantage... . finances, trade, defence &c., ought to be conThrough this mode of reasoning respecting _strued liberally in advancement of the public

the right of employing all the means requisite good. ... The means by which national to the execution of the specified powers of exigencies are to be provided for, national inthe government, it is objected, that none but conveniences obviated, national prosperity necessary and proper means are to be em-_ promoted, are of such infinite variety, extent, ployed; and the Secretary of State maintains, and complexity, that there must of necessity that no means are to be considered as meces- be great latitude of discretion in the selection sary but those without which the grant of the and application of those means. Hence, con-

power would be nugatory.... sequently, the necessity and propriety of

158 DocUMENTS OF AMERICAN HISTORY exercising the authorities intrusted to a gov- clause, can have no restrictive operation derernment on principles of liberal construc- ogating from the force of this principle; in:

tion... . deed, that the degree in which a measure is or

But the doctrine which is contended for is not necessary, cannot be a test of constituis not chargeable with the consequences im- tional right, but of expediency only.

puted to it. lt does not affirm that the na- 5. That the power to erect corporations is tional government is sovereign in all respects, not to be considered as an mdependent or but that it is sovereign to a certain extent; substantive power, but as an incidental and that is is, to the extent of the objects of its auxiliary one, and was therefore more properly

specified powers. left to implication than expressly granted.

It leaves, therefore, a criterion of what is 6. That the principle in question does not conslitulional and of what is not so. This extend the power of the government beyond Criterion is the end, to which the measure the prescribed limits, because it only affirms relates as a mean. If the end be clearly com- a power to incorporate for purposes within

prehended within any of the specified powers, the Sphere of the specified powers.

and if the measure have an obvious relation And lastly, that the right to exercise such to that end, and is not forbidden by any par- a power in certain cases is unequivocally ticular provision of the Constitution, it may granted in the most positive and compre-

safely be deemed to come within the compass hensive terms... . :

of the national authority. There is also this A hope is entertained that it has, by this further criterion, which may materially assist time, been made to appear, Lo the satisfaction

the decision; Docs the proposed measure of the President, that a bank has a natural abridge a pre-existing right of any State or relation to the power of collecting taxes— of any individual? If it does not, there is a to that of regulating trade—to that of prostrong presumption in favor of its constitu- viding for the common defence—and that, tionality, and slighter relations to any de- as the bill under consideration contemplates clared object of the Constitution may be the government in the light of a joint pro-

permitted to turn the scale. ... prictor of the stock of the bank, it brings

It is presumed to have been satisfactorily the case within the provision of the clause shown in the course of the preceding observa- of the Constitution which immediately re-

tions: spects the property of the United States.

1. That the power of the government, as to Under a conviction that such a relation

the objects intrusted to its management, is, subsists, the Secretary of the Treasury, with

In its nature, sovereign. all deference, conceives, that it will result 2, That the right of erecting corporations is as a necessary consequence from the position,

one inhcrent in, and inseparable from, the that all the specified powers of government

idea of sovereign power. are sovercign, as to the proper objects; that

3. That the position, that the government of the incorporation of a bank is a constituthe United States can exercise no power but tional measure; and that the objections taken

such as is delegated to it by its Constitution, to the bill, in this respect, are illdoes not militate against this principle. founded. ... 4. That the word mecessary, in the general

94. JEFFERSON’S OPINION ON THE CONSTITUTIONALITY OF THE BANK February 15, 1791 (The Writings of Thomas Jefferson, ed. by H. E. Bergh, Vol. III, p. 145 ff.) The bill for establishing a national bank, ties, to receive grants of lands; and, so far, in 1791, undertakes, among other things,— is against the laws of mortmazn.

1. To form the subscribers into a corpora- 3. To make alien subscribers capable of

tion. holding lands; and so far is against the laws

2. To enable them, in their corporate capaci- of alienage.

JEFFERSON’S OPINION ON THE BANK 159 4, To transmit these lands, on the death of late commerce, are very different acts. He a proprietor, to a certain line of successors; who erects a bank creates a subject of comand so far, changes the course of descents. merce in its bills; so does he who makes a 5. To put the lands out of the reach of bushel of wheat, or digs a dollar out of the forfeiture, or escheat; and so far, is against mines; yet neither of these persons regulates

the laws of forfezture and escheat. commerce thereby. To make a thing which 6. To transmit personal chattels to succes- may be bought and sold, is not to prescribe sors, in a certain line; and so far, is against regulations for buying and selling. Besides,

the laws of distribution. if this were an exercise of the power of 7. To give them the sole and exclusive right regulating commerce, it would be void, as of banking, under the national authority; extending as much to the internal commerce and, so far, is against the laws of monopoly. of every state, as it is external. For the 8. To communicate to them a power to make power given to Congress by the Constitution

laws, paramount to the laws of the states; does not extend to the internal regulation for so they must be construed, to protect of the commerce of a state ... which rethe institution from the control of the state mains exclusively with its own legislature; legislatures; and so probably they will be but to its external commerce only, that is

construed. to say, its commerce with another state, or I consider the foundation of the Constitu- with foreign nztions, or with the Indian

tion as laid on this ground—that all powers tribes. Accordingly, the bill does not propose not delegated to the United States, by the the measure as a “regulation of trade’’, but as

Constitution, nor prohibited by it to the “productive of considerable advantage to states, are reserved to the states, or to the trade.” people (12th amend.). To take a single step Still less are these powers covered by any beyond the boundaries thus specially drawn other of the special enumerations. around the powers of Congress, is to take II Nor are they within either of the general possession of a boundless field of power, no phrases, which are the two following:—

longer susceptible of any definition. 1. “To lay taxes to provide for the general The incorporation of a bank, and the weilare of the United States;” that is to powers assumed by this bill, have not, in _ say, “to lay taxes for the purpose of providmy opinion, been delegated to the United ing for the general welfare;” for the laying

States by the Constitution. of taxes is the power, and the general wel-

I. They are not among the powers specially fare the purpose for which the power is to

enumerated. For these are,— ‘be exercised. Congress are not to lay taxes

1. A power to lay taxes for the purpose ad libitum, for any purpose they please; but of paying the debts of the United States. only to pay the debts, or provide for the But no debt is paid by this bill, nor any welfare, of the Union. In like manner, they tax laid. Were it a bill to raise money, its are not to do anything they please, to proorganization in the Senate would condemn vide for the general welfare, but only to

it by the Constitution. lay taxes for that purpose. To consider the 2. To “borrow money”. But this bill neither latter phrase, not as describing the purpose

borrows money nor insures the borrowing of the first, but as giving a distinct and of it. The proprietors of the bank will be independent power to do any act they please just as free as any other money-holders to which might be for the good of the Union,

lend, or not to lend, their money to the would render all the preceding and sub-

public. The operation proposed in the bill, sequent enumerations of power completely first to lend them two millions, and then useless. It would reduce the whole instruborrow them back again, cannot change the ment to a single phrase—that of instituting nature of the latter act, which will still be a Congress with power to do whatever would a payment, and not a loan, call it by what be for the good of the United States; and,

name you please. as they would be the sole judges of the 3. “To regulate commerce with foreign na- good or evil, it would be also a power to do

tions, and among the states, and with the whatever evil they pleased. It is an esIndian tribes.” To erect a bank, and to regu- _ tablished rule of construction, where a phrase

160 | DocUMENTS OF AMERICAN History will bear either of two meanings, to give the grant of the power would be nugait that which will allow some meaning to tory.... the other parts of the instrument, and not Perhaps bank bills may be a more conthat which will render all the others use- venient vehicle than treasury orders. But a less. Certainly no such universal power was little difference in the degree of convenience

meant to be given them. It was intended to cannot constitute the necessity which the lace them up straitly within the enumerated Constitution makes the ground for assumpowers, and those without which, as means, ing any non-enumerated power. . . . these powers could not be carried into effect. Can it be thought that the Constitution It is known that the very power now pro- intended that, for a shade or two of conposed as a means, was rejected as an end venience, more or less, Congress should be by the Convention which formed the Con- authorized to break down the most ancient stitution. A proposition was made to them, to and fundamental laws of the several states authorize Congress to open canals, and an such as those against mortmain, the laws of amendatory one to empower them to in- alienage, the rules of descent, the acts of corporate. But the whole was rejected; and _ distribution, the laws of escheat and forfeione of the reasons of objection urged in ture, and the laws of monopoly. debate was, that they then would have a Nothing but a necessity invincible by other power to erect a bank, which would render means, can justify such a prostration of laws, great cities, where there were prejudices and which constitute the pillars of our whole jealousies on that subject, adverse to the system of jurisprudence. Will Congress be

reception of the Constitution. too strait-laced to carry the Constitution into

2, The second general phrase is, “to make all honest effect, unless they may pass over the laws necessary and proper for carrying into foundation laws of the state governments, for execution the enumerated powers.” But they the slightest convenience to theirs?

can all be carried into execution without a The negative of the President is the shield bank. A bank, therefore, is not necessary, provided by the Constitution to protect, and consequently not authorized by this against the invasions of the legislature,

phrase. 1. The rights of the executive; 2. Of the It has been much urged that a bank will judiciary; 3. Of the states and state legislagive great facility or convenience in the tures. The present is the case of a right recollection of taxes. Suppose this were true; maining exclusively with the states, and is, yet the Constitution allows only the means consequently, one of those intended by the which are “necessary”, not those which are Constitution to be placed under his protecmerely “convenient”, for effecting the enu- _ tion.

merated powers. If such a latitude of con- It must be added, however, that, unless struction be allowed to this phrase as to give the President’s mind, on a view of every-

any non-enumerated power, it will go to thing which is urged for and against this every one; for there is no one which in- bill, is tolerably clear that it is unauthorized genuity may not torture Into a convenience, by the Constitution, if the pro and the con in some way or other, to some one of so_ hang so evenly as to balance his judgment, a long a list of enumerated powers. It would just respect for the wisdom of the legislature swallow up all the delegated powers, and would naturally decide the balance in favor reduce the whole to one phrase, as before of their opinion. It is chiefly for cases where observed. Therefore it was that the Constitu- they are clearly misled by error, ambition, . tion restrained them to the necessary means; or interest, that the Constitution has placed a that is to say, to those means without which check in the negative of the President.

95. CHISHOLM v. GEORGIA 2 Dallas, 419 1793

This is probably the most important of the Court, and in the decision of the Court can be early cases which came before the Supreme found a foreshadowing of the nationalism

CHISHOLM V. GEORGIA 161 enunciated by Marshall a decade later. The been used with propriety. But even in that case of Chisholm v. Georgia arose out of the place it would not, perhaps, have comported effort of Chisholm and others, citizens of South with the delicacy of those who ordained and

Carolina and executors of the estate of an octaniished that Constitution. They might

English creditor, to secure compensation from h d th I ; Georgia for property confiscated during the ave announce emseives sovereign people Revolution. The Constitution of the United Of the United States; but serenely conscious

States provided, Art. III. Sec. 2, that the of the fact, they avoided the ostentatious

judicial power of the United States should ex- declaration. .. . tend to controversies between States and be- III. I am, thirdly, and chiefly, to examine the tween a State and the citizens of another State. important question now before us, by the Under this provision, could a citizen sue 2 (Constitution of the United States, and the State in the Federal Courts? That this clause legitimate result of that valuable instrument. authorized such suits against States was denied Under this view. the question is naturall in the debates in the Virginia ratifying Con- subdivided into two others. 1. Could the

by Hamilton in the Federalist, and by Madison oe . , q y

vention. “It is not,’ said Madison, “in the Constitution of the United States vest a power of individuals to call any state into Jurisdiction over the State of Georgia? 2.

court. The only operation it can have, is that, Has the Constitution vested such jurisdiction if a state should wish to bring a suit against a in this Court? I have already remarked, that citizen, it must be brought before the federal jin the practice, and even in the science of court.” (Elliot's Debates, 1861 ed. Vol. Ill, p. politics, there has been frequently a strong 933.) Yet in this case, the Supreme Court upheld Current against the natural order of things; Supreme Court. Georgia refused to appear be- and an inconsiderate or an interested disfore the Court, denied the validity of the judge- POsition to sacrifice the end to the means. ment, and threatened to punish by death any This remark deserves a more particular ilofficial who should attempt to execute the de- lustration. Even in almost every nation, cree of the court. Other states also protested, which has been denominated free, the state and shortly after the decision an amendment has assumed a_ supercilious preéminence was introduced which deprived the federal above the people, who have formed it: Hence | courts of jurisdiction In cases against one ot the the haughty notions of state independence, States by citizens of another State. This, the . eleventh amendment, was ratified January 8, ‘State Sovereignty, and state supremacy. .. .

the right of Chisholm to sue Georgia in the . . . é

1798. See C. Warren, The Supreme Court in In the United States and in the several

United States History, 1928 ed. Vol. I, ch. ii; States which compose the Union, we go not L. B. Boudin, Government by Judiciary, Vol. 1, so far: but still we go one step farther than ch. vii; H. L. Carson, The Supreme Court; G.J. we ought to go in this unnatural and inMc Ree, James Iredell, Vol. 11; U. B. Phillips, verted order of things. The states rather “Georgia and State Rights,” American Hist. As- than the People for whose sakes the states

soc. Reports, 1901, Vol. I. exist, are frequently the objects which at-

tract and arrest our principal attention. This,

Witson, J. This is a case of uncommon I believe, has produced much of the conmagnitude. One of the parties to it is a fusion and perplexity, which have appeared State, certainly respectable, claiming to be in several proceedings and several publicasovereign. The question to be determined tions on state-politics, and on the politics, is, whether this State, so respectable and too, of the United States. Sentiments and whose claim soars so high, is amenable to’ expressions of this inaccurate kind prevail the jurisdiction of the Supreme Court of the in our common, even in our convivial, lanUnited States? This question, important in guage... .A State, I cheerfully admit, is itself, will depend on others, more important the noblest work of Man: But, Man, himstill; and may perhaps, be ultimately re- self, free and honest, is, I speak as to this solved into one, no less radical than this— world, the noblest work of God... .

“Do the People of the United States form With the strictest propriety, therefore,

a natione”... classical and political, our national scene To the Constitution of the United States opens with the most magnificent object which

the term sovereign is totally unknown. the nation could present: “The People of There is but one place where it could have the United States” are the first personages

162 DOCUMENTS OF AMERICAN HISTORY introduced. Who were these people? They Constitution will be satisfied that the people were the citizens of thirteen States, each of of the United States intended to form themwhich had a separate constitution and govern- selves into a nation for national purposes. ment, and all of which were connected to- They instituted, for such purposes, a national gether by articles of confederation. To the government, complete in all its parts, with purposes of public strength and felicity, that powers legislative, executive and judiciary ; confederacy was totally inadequate. A requi- and in all those powers extending over the

sition on the several States terminated its whole nation. Is it congruous that, with legislative authority; executive or judicial regard to such purposes, any person, natural authority it had none. In order, therefore, to or artificial, should be permitted to claim

form a more perfect union, to establish successfully an entire exemption from the justice, to insure domestic tranquillity, to jurisdiction of the national government? provide for the common defense, and to Would not such claims, crowned with sucsecure the blessings of liberty, those people, cess, be repugnant to our very existence as among whom were the people of Georgia, a nation? When so many trains of deducordained and established the present Con- tion, coming from different quarters, con-

stitution. By that Constitution legislative verge and unite at last in the same point, power is vested, executive power is vested, we may safely conclude, as the legitimate

judicial power is vested. result of this Constitution, that the State of The question now opens fairly to our view, Georgia is amenable to the jurisdiction of could the people of those States, among _ this court. whom were those of Georgia, bind those But, in my opinion, this doctrine rests not States, and Georgia among the others, by upon the legitimate result of fair and con-

the legislative, executive, and judicial power clusive deduction from the Constitution; it so vested? If the principles on which I have is confirmed beyond all doubt by the direct founded myself are just and true, this ques- and explicit declaration of the Constitution tion must unavoidably receive an affirmative itself. “The judicial power of the United answer. If those States were the work of States shall extend to controversies between those people, those people, and, that I may two States.”. . . Can the most consummate apply the case closely, the people of Georgia degree of professional ingenuity devise a in particular, could alter, as they pleased, their mode by which this ‘‘controversy between former work; to any degree, they could di- two States” can be brought before a court

minish as well as enlarge it. Any or all of of law, and yet neither of those States be the former state powers they could extinguish a defendant? “The judicial power of the or transfer. The inference which necessarily United States shall extend to controversies results is that the Constitution ordained and between a State and citizens of another established by those pcople, and, still closely State’. Could the strictest legal language

to apply the case, in particular, by the .. . describe with more precise accuracy the people of Georgia, could vest jurisdiction or cause now depending before the tribu-

judicial power over those States and over nalr... the State of Georgia in particular. From all, the combined inference is, that The next question under this head is— the action lies. Chief Justice Jay and Justices

Has the Constitution done so? ... Blair and Cushing concurred. Justice Iredell Whoever considers in a combined and com-__ dissented.

prehensive view the general texture of the

96. WASHINGTON’S PROCLAMATION OF NEUTRALITY . April 22, 1793 (Richardson, ed. Messages and Papers, Vol. I, p. 156) The proclamation of Neutrality had the sup- used. The proclamation precipitated a pamphlet port of all the members of Washington’s cabinet. controversy between Hamilton, writing as Note that the word “ncutrality” is nowhere ‘“Pacificus” and Madison, writing as “Helvidius”.

PROCLAMATION ON THE WHISKEY REBELLION 163 See, J. S. Bassett, The Federalist System, p. States carefully to avoid all acts and pro86 ff.; R. Hildreth, History of the United States, ceeding whatsoever which may in any manner Vol. IV, p. 411 ff.; C. M. Thomas, American tend to contravene such disposition.

Neutrality in 1793. And I do hereby also make known that whosoever of the citizens of the United

BY THE PRESIDENT OF THE UNITED STATES States shall render himself liable to punish-

OF AMERICA ment or forfeiture under the law of nations

A PROCLAMATION by committing, aiding, or abetting hostilities Whereas it appears that a state of war against any of the said powers, or by carryexists between Austria, Prussia, Sardinia, ing to any of them those articles which are Great Britain, and the United Netherlands deemed contraband by the modern usage of on the one part and France on the other, and __ nations, will not receive the protection of the

the duty and interest of the United States United States against such punishment or require that they should with sincerity and forfeiture; and further, that I have given good faith adopt and pursue a conduct instructions to those officers to whom it befriendly and impartial toward the belligerent longs to cause prosecutions to be instituted

powers: against all persons who shall, within the I have therefore thought fit by these cognizance of the courts of the United States, presents to declare the disposition of the violate the law of nations with respect to United States to observe the conduct afore- the powers at war, or any of them... . said toward those powers respectively, and to Philadelphia, the 22d of April, 1793,

exhort and warn the citizens of the United G°. WASHINGTON. 97, WASHINGTON’S PROCLAMATION ON THE WHISKEY REBELLION August 7, 1794 (Richardson, ed. Messages and Papers, Vol. I, p. 158) The excise tax of March 3, 1791 upon dis- tion of the laws laying duties upon spirits tilled spirits and stills was part of Hamilton’s distilled within the United States and upon financial policy. It bore with peculiar hardship gtills have from the time of the commenceupon the inhabitants of western Pennsylvania ment of those laws existed in some of the and Virginia who were accustomed to turn their ; . corn into whiskey because that was the only way western parts of Pennsylvania ; and in which it could be transported economically , Whereas the said combinations, proceedto the coast. The dissatisfaction of the west was 42g in a manner subversive equally of the so intense that it resulted in a general flouting Just authority of government and of the of the law, accompanicd by some violence, and rights of individuals, have hitherto effected Washington, on Hamilton’s recommendation, their dangerous and criminal purpose by the ordered out the militia in order to suppress the jnfluence of certain irregular mectings whose “rebellion.” See, H. H. Brackenridge, Incidents proceedings have tended to encourage and of the Insurrection in the Western Parts of uphold the spirit of opposition by misreprePennsylvania; H. Adams, Gallatin, p. 86 ff.; W. Findley, History of the Insurrection in the sentations of the laws calculated to render Four Western Counties of Pennsylvania; Pro- them odious; by endeavors to deter those ceedings of the Executive of the United States who might be so disposed from accepting Respecting the Insurgents, 1794, with Hamilton’s offices under them through fear of public Report. Washington reported to Congress on his resentment and of injury to person and prophandling of the situation in his Sixth Annual erty, and to compel those who had accepted Message, Richardson, ed. Messages and Papers, sych offices by actual violence to surrender

Vol. I. p. 162 it. or forbear the execution of them; by circuBY THE PRESIDENT OF THE UNITED STATES ang merce menaces against all those

OF AMERICA who should otherwise, directly or indirectly, A PROCLAMATION aid in the execution of the said laws, or

who, yielding to the dictates of conscience Whereas combinations to defeat the execu- and to a sense of obligation, should them-

164 DOCUMENTS OF AMERICAN HisTorRy selves comply therewith; by actually injur- the United States to call forth the militia of ing and destroying the property of persons such State to suppress such combinations and who were understood to have so complied; to cause the laws to be duly executed. And by inflicting cruel and humiliating punish- if the militia of a State where such comments upon private citizens for no other binations may happen shall refuse or be incause than that of appearing to be the friends sufficient to suppress the same, it shall be of the laws; by intercepting the public of- lawful for the President, if the Legislature ficers on the highways, abusing, assaulting, of the United States shall not be in session,

and otherwise ill treating them; by going to call forth and employ such numbers of to their houses in the night, gaining admit- the militia of any other State or States most tance by force, taking away their papers, and convenient thereto as may be necessary; .. . committing other outrages, employing for Provided always, That whenever it may be these unwarrantable purposes the agency of mecessary in the judgment of the President armed banditti disguised in such manner as to use the military force hereby directed to for the most part to escape discovery; and be called forth, the President shall forthwith, Whereas the endeavors of the Legislature and previous thereto, by proclamation, com-

to obviate objections to the said laws by mand such insurgents to disperse and retire lowering the duties and by other alterations peaceably to their respective abodes within conducive to the convenience of those whom a _ limited time;” and...

they immediately affect ...and the en- Whereas it is In my judgment necessary

deavors of the executive officers to conciliate under the circumstances of the case to take a compliance with the laws by explanations, measures for calling forth the militia in order by forbearance, and even by particular ac- to suppress the combinations aforesaid, and commodations founded on the suggestion of to cause the laws to be duly executed; and local considerations, have been disappointed I have accordingly determined so to do, feelof their effect by the machinations of per- ing the deepest regret for the occasion, but sons whose industry to excite resistance has withal the most solemn conviction that the increased with every appearance of a disposi- essential interests of the Union demand it, tion among the people to relax in their op- that the very existence of Government and position and to acquiesce in the laws, inso- the fundamental principles of social order much that many persons in the said western are materially involved in the issue, and that

parts of Pennsylvania have at length been the patriotism and firmness of all good hardy enough to perpetrate acts which Iam_ citizens are seriously called upon, as ocadvised amount to treason, being overt acts casions may require, to aid in the effectual of levying war against the United States, ... suppression of so fatal a spirit: avowing as the motives of these outrageous Wherefore, and in pursuance of the proproceedings an intention to prevent by force viso above recited, 1, George Washington, of arms the execution of the said laws, ... President of the United States, do hereby to withstand by open violence the lawful command all persons being insurgents as authority of the Government of the United aforesaid, and all others whom it may conStates, and to compel thereby an alteration cern, on or before the Ist day of September in the measures of the Legislature and a re- next to disperse and retire peaceably to their

peal of the laws aforesaid; and respective abodes. And I do moreover warn Whereas by a law of the United States en- all persons whomsoever against aiding, abet-

titled “An act to provide for calling forth ting, or comforting the perpetrators of the the militia to execute the laws of the Union, aforesaid treasonable acts, and do require suppress insurrections, and repel invasions,” ll officers and other citizens, according to it is enacted “that whenever the laws of the their respective duties and the laws of the United States shall be opposed or the execu- land, to exert their utmost endeavors to tion thereof obstructed in any State by com- prevent and suppress such dangerous probinations too, powerful to be suppressed by ceedings. . . . the ordinary course of judicial proceedings Philadelphia, the 7th of August, 1794,

. . it shall be lawful for the President of G°, WASHINGTON.

THe JAy TREATY 165 98. THE JAY TREATY November 19, 1794 (Malloy, ed. Treaties, Conventions, etc., Vol. I, p. 590 ff.) Contrary to the provisions of the Treaty of the mean time at their discretion, extending 1783, Great Britain had retained control of the their settlements to any part within the said Northwest posts and had failed to make any boundary line, except within the precincts or compensation for slaves carried away during jurisdiction of any of the said posts. All the Revolution. In addition to these grievances, settlers and traders, within the precincts or arising from interference with neutral trade. jurisdiction of the said posts, Shall continue War seemed imminent in 1794, when Washing- to enjoy, unmolested, all their property of ton nominated Chief Justice John Jay as envoy CVCIY kind, and shall be protected therein. extraordinary to conclude a treaty of peace and ‘They shall be at full liberty to remain there, commerce. The Jay Treaty solved some of the or to remove with all or any part of their most important matters of dispute between the effects; and it shall also be free to them to two nations, and averted war, but it contained cel] their lands, houses, or effects, or to recertain features profoundly unsatisiactory tO tain the property thereof, at their discretion;

of old standing, there were more recent ones 4. 4...

the majority of Americans. Washington hesi- h of th hall tj t ‘d

tated some time before sending it to the Senate sucn ° eM as sila continue to resiee

for ratification, After a bitter contest in the Within the said boundary lines, shall not be Senate, the Treaty was ratified June 24, 1795, compelled to become citizens of the United with a reservation which suspended the ob- States, or to take any oath of allegiance to noxious Article XII. For the debate on the Jay the government thereof; but they shall be Treaty, see H. Adams, Albert Gallatin; C. Bow- at full liberty so to do if they think proper, ers, Jefferson and Hamilton, chs. xi-xii. A thor- and they shall make and declare their election

ough history of the Treaty is 5S. F. Bemis, within one year after the evacuation aforeJay . Preaty. The full text of the adjudications .aiq. And all persons who shall continue there edited by J. B. Moore, International Adjudica- aiter the expiration of the said year, without tions, Vols. I-IV. The question of appropriations having declared their intention of remaining

provided for by Articles 5, 6, and 7, have been . . .

for carrying out the provisions of the Treaty subjects of his Britannic Majesty, shall be raised a serious constitutional problem in the considered as having elected to become citiHouse. The appropriations were finally made, zens of the United States.

but only after one of the greatest political de- Art. III. It is agreed that it shall at all bates in American history. For the speeches of times be free to his Majesty’s subjects, and Gallatin and Fisher Ames on appropriations for to the citizens of the United States, and

the Treaty, A.84 Johnston, Ora; heIng Indi ‘d tions, Vol.see I, p. ff. alsoed. to American t e indians dwe ondwelli either+}side of the said boundary line, freely to pass and repass by land or inland navigation, into the

respective territories and countries of the Art. I. There shall be a firm, inviolable two parties, on the continent of America and universal peace, and a true and sincere (the country within the limits of the Hudfriendship between his Britannic Majesty, his son’s bay Company only excepted) and to

heirs and successors, and the United States navigate all the lakes, rivers and waters ‘of America; and between their respective thereof, and frecly to carry on trade and countries, territories, cities, towns and people commerce with each other. ... The river of every degree, without exception of per- Mississippi shall, however, according to the

sons or places. treaty of peace, be entirely open to both Art. Il. His Majesty will withdraw all his parties; and it is further agreed, that all the troops and garrisons from all posts and _ ports and places on its eastern side, to whichplaces within the boundary lines assigned soever of the parties belonging, may freely by the treaty of peace to the United States. be resorted to and used by both parties, in This evacuation shall take place on or before as ample a manner as any of the Atlantic [June 1, 1796,] ... ¢ The United States in ports or places of the United States, or any

{66 DOCUMENTS OF AMERICAN HisTory of the ports or places of his Majesty in received by the said creditors in the ordinary

Great-Britain. .. . course of justice, the United States will make Art. IV. Whereas it is uncertain whether full and complete compensation for the same the river Mississippi extends so far to the to the said creditors: But it is distinctly unnorthward, as to be intersected by a line to derstood, that this provision is to extend to be drawn due west from the Lake of the such losses only as have been occasioned by Woods, in the manner mentioned in the — the lawful impediments aforesaid, .. .

treaty of peace ... it is agreed, that meas- Art. VII. Whereas complaints have been ures shall be taken . . . for making a joint made by divers merchants and others, citisurvey of the said river from one degree of zens of the United States, that during the latitude below the falls of St. Anthony, to course of the war in which his Majesty is the principal source or sources of the said now engaged, they have sustained considerariver, and also of the parts adjacent thereto; ble losses and damage, by reason of irregular and that if on the result of such survey, it or illegal captures or condemnations of their should appear that the said river, would not vessels and other property, under colour of be intersected by such a line as is above authority or commissions from his Majesty, mentioned, the two parties will thereupon and that from various circumstances belongy proceed by amicable negociation, to regulate ing to the said cases, adequate compensa-

the boundary line in that quarter, ... tion for the losses and damages so sustained Art. V. Whereas doubts have arisen what cannot now be actually obtained, had and river was truly intended under the name of received by the ordinary course of judicial the river St. Croix, mentioned in the said proceedings; it is agreed, that in all such treaty of peace, and forming a part of the cases, where adequate compensation cannot, boundary therein described; that question for whatever reason, be now actually ob-

shall be referred to the final decision of tained, had and received by the said mercommissioners to be appointed. ... The chants and others, in the ordinary course of

said commissioners shall, by a declaration, justice, full and complete compensation for under their hands and seals, decide what the same will be made by the British govern-

river is the river St. Croix, intended by the ment to the said complainants. But it Is treaty. . .. And both parties agree to con- distinctly understood, that this provision 1s sider such decision as final and conclusive, not to extend to such losses or damages as so as that the same shall never thereafter have been occasioned by the manifest delay be called into question, or made the subject or negligence, or wilful omission of the

of dispute or difference between them. claimant. ... Art. VI. Whereas it is alleged by divers Art. X. Neither the debts due from inBritish merchants and others his Majesty’s dividuals of the one nation to individuals subjects, that debts, to a considerable of the other, nor shares, nor monies which amount, which were bona fide contracted they may have in the public funds, or in before the peace, still remain owing to them the public or private banks, shall ever in by citizens or inhabitants of the United any event of war or national differences be States, and that by the operation of various sequestered or confiscated. . . . lawful impediments since the peace, not only Art. XI. It is agreed between his Majesty the full recovery of the said debts has been and the United States of America, that there

delayed, but also the value and security shall be a reciprocal and entirely perfect thereof have been, in several instances, im- liberty of navigation and commerce between paired and lessened, so that by the ordinary _ their respective people, in the manner, under course of judicial proceedings, the British the limitations and on the condtions specified

creditors cannot now obtain, and actually in the following articles: have and receive full and adequate compensa- [Art. XII. relating to trade with the West tion for the losses and damages which they Indies, was suspended. ]

have thercby sustained. It is agreed, that in Art. XIII. His Majesty consents that the all such cases, where full compensation for vessels belonging to the citizens of the United

such losses and damages cannot, for what- States of America, shall be admitted and ever reason, be actually obtained, had and hospitably received, in all the sea-ports and

THe JAY TREATY 167 harbours of the British territories in the Also to hire and possess houses and ware' Fast-Indies. And that the citizens of the said houses for the purposes of their commerce, United States, may freely carry on a trade and generally the merchants and traders on

between the said territories and the said each side, shall enjoy the most complete

United States, in all articles of which the protection and security for their commerce; importation or exportation respectively, to but subject always as to what respects this or from the said territories, shall not be en- article to the laws and statutes of the two tirely prohibited. ... The citizens of the countries respectively. United States shall pay for their vessels when Art. XV. It is agreed that no other or

admitted into the said ports no other or higher duties shall be paid by the ships or higher tonnage-duty than shall be payable merchandize of the one party in the ports of on British vessels when admitted into the the other, than such as are paid by the like ports of the United States. And they shall vessels or merchandize of all other nations.

pay no other or higher duties or charges, Nor shall any other or higher duty be imon the importation or exportation of the posed in one country on the importation of cargoes of the said vessels, than shall be any articles the growth, produce or manupayable on the same articles when imported facture of the other, than are or shall be or exported in British vessels. But it is ex- payable on the importation of the like articles pressly agreed, that the vessels of the United being of the growth, produce, or manufac-

States shall not carry any of the articles ture of any other foreign country. Nor shall exported by them from the said British ter- any prohibition be imposed on the exportaritories, to any port or place, except to some _ tion or importation of any articles to or from port or place in America, where the same _ the territories of the two parties respectively, shall be unladen, and such regulations shall which shall not equally extend to all other

be adopted by both parties, as shall from nations... . time to time be found necessary to enforce The two parties agree to treat for the the due and faithful observance of this stipu- more exact equalization of the duties on the Jation. It is also understood that the permis- respective navigation of their subjects and sion granted by this article, is not to extend people, in such manner as may be most to allow the vessels of the United States to beneficial to the two countries. . . . In the carry on any part of the coasting-trade of interval it is agreed, that the United States the said British territories; but vessels going will not impose any new or additional tonwith their original cargoes, or part thereof, nage duties on British vessels, nor increase from one port of discharge to another, are the now-subsisting difference between the

not to be considered as carrying on the duties payable on the importation of any coasting-lrade. Neither is this article to be articles in British or in American vesconstrued to allow the citizens of the said sels... . states to settle or reside within the said ArT. XVII. It is agreed, that in all cases territories, or to go into the interior parts where vessels shall be captured or detained thereof, without the permission of the British on just suspicion of having on board enemy’s

government established there... . property, or of carrying to the enemy any Art. XIV. There shall be between all the of the articles which are contraband of war; dominions of his Majesty in Europe and the _ the said vessel shall be brought to the near-

territories of the United States, a reciprocal est or most convenient port: and if any and perfect liberty of commerce and naviga- property of an enemy should be found on tion. The people and inhabitants of the two board such vessel, that part only which becountries respectively, shall have liberty longs to the enemy shall be made prize, and freely and securely, and without hindrance the vessel shall be at hberty to proceed with and molestation, to come with their ships the remainder without any impediment. . . .

and cargoes to the lands, ‘countries, cities, Art. IX. And that more abundant care

ports, places and rivers, within the dominions may be taken for the security of the respec-

and territories aforesaid, to enter into the tive subjects and citizens of the contracting Same, to resort there, and to remain and_ parties, and to prevent thcir suffering inreside there, without any limitation of time. juries by the men of war, or privatecrs of

168 DOCUMENTS OF AMERICAN History either party, all commanders of ships of war should take place, (which God forbid) beand privateers, and all others the said sub- tween his Majesty and the United States, jects and citizens, shall forbear doing any the merchants and others of each of the two damage to those of the other party, or com- nations, residing in the dominions of the mitting any outrage against them, and if other, shall have the privilege of remaining

they act to the contrary, they shall be and continuing their trade, so long as they punished, and shall also be bound in their behave peaceably, and commit no offence persons and estates to make satisfaction and against the laws; and in case their conduct reparation for all damages, and the interest should render them suspected, and the rethereof, of whatever nature the said damages spective governments should think proper to

may be. ... order them to remove, the term of twelve Art. XXII. It is expressly stipulated, that months from the publication of the order neither of the said contracting parties will shall be allowed them for that purpose, to order or authorize any acts of reprisal against remove with their families, effects and prop-

the other, on complaints of injuries or dam- erty; but this favour shall not be extended

ages, until the said party shall first have to those who shall act contrary to the espresented to the other a statement thereof, tablished laws; .. . verified by competent proof and evidence, Art. XXVIII. It is agreed, that the first and demanded justice and satisfaction, and ten articles of this treaty shall be permanent, the same shall either have been refused or and that the subsequent articles, except the

unreasonably delayed. twelfth, shall be limited in their duration Art. XXVI. If at any time a rupture’ to twelve years,... 99. THE PINCKNEY TREATY October 27, 1795 Treaty of Friendship, Boundaries, Commerce and Navigation Between the United States of America, and the King of Spain. (Malloy, ed. Treaties, Conventions, etc. Vol. II, p. 1640 ff.)

On the conclusion of the Revolutionary War sissippi Question, 1795-1803; P. C. Phillips, The Spain, refusing to recognize the right of Great West in the Diplomacy of the American RevoluUritain to give to the United States the right to tion.

yiavigate the Mississippi, closed that river to . Americans. Other matters of dispute between the ART. I. THERE shall be a firm and inUnited States and Spain concerned the bounda- Violable peace and sincere friendship beries of West Florida and the activities of the tween His Catholic Majesty, his successors

Spanish authorities in fomenting discontent and subjects, and the United States, and among the Indians. Efforts of the United States their citizens, without exception of persons to conclude a satisfactory treaty with Spain were = oy places.

unsuccessful in 1781 and again in 1785-6. In the ART. II. To prevent all disputes on the early seventeen-nincties western discontent grew subject of the boundaries which separate

alarmingly and intrigues looking to separation oar . . or to an attack upon Spanish possessions at- the territories of the two high contracting tracted wide attention. The conclusion of Jay’s Parties, it is hereby declared and agreed to Treaty inspired the Spanish Court with the fear as follows, to wit. The southern boundary of that Great Britain and the United States might the United States, which divides their terricombine to attack Spanish possessions in the tory from the Spanish colonies of East and new world, and the Spanish minister, Godoy, West Florida, shall be designated by a line

promptly concluded with Thomas Pinckney a beginning in the River Missisippi, at the treaty whose provisions were highly satisfactory northernmost part of the thirty-first degree to Americans. The terms of the treaty, however, of latitude north of the equator, which from Pinckney’s Treaty see S. F. Bemis, Pinckney’s thence shall be drawn due east to the middle Treaty; A. P. Whitaker, The Spanish-American of the River Apalachicola, or Catahouche, Frontier, 1783-1795; A. P. Whitaker, The Mis- thence along the middle thereof to its jJune-

were not carried out for almost three years. For

WASHINGTON’S FAREWELL ADDRESS 169 tion with the Flint: thence straight to the agreed that in future no treaty of alliance, head of St. Mary’s river, and thence down or other whatever (except treaties of peace,) the middle thereof to the Atlantic ocean. ... shall be made by either party with the In-

ART. IV. It is likewise agreed that the dians living within the boundary of the western boundary of the United States which other, but both parties will endeavour to separates them from the Spanish colony of make the advantages of the Indian trade Louissiana, is in the middle of the channel common and mutually beneficial to their or bed of the River Missisippi, from the respective subjects and citizens, observing in northern boundary of the said states to the ll things the most complete reciprocity. .. . completion of the thirty-first degree of lati- ART. XXII. ... And in consequence of tude north of the equator. And His Catholic the stipulations contained in the IV. article, Majesty has likewise agreed that the naviga- His Catholic Majesty will permit the citizens

tion of the said river, in its whole breadth of the United States, for the space of three from its source to the ocean, shall be free years from this time, to deposit their meronly to his subjects and the citizens of the chandizes and effects in the port of NewUnited States, unless he should extend this Orleans, and to export them from thence privilege to the subject of other Powers by without paying any other duty than a fair

special convention. price for the hire of the stores, and His

ART. V. The two high contracting parties Majesty promises either to continue this pershall, by all the means in their power, main- mission, if he finds during that time that it tain peace and harmony among the several is not prejudicial to the interests of Spain, Indian nations who inhabit the country ad-_ or if he should not agree to continue it there, jacent to the lines and rivers, which, by the he will assign to them, on another part of preceding articles, form the boundaries of the banks of the Missisippi, an equivalent

the two Floridas. ... establishment. . . . And whereas several treaties of friendship

exist between the two contracting parties THOMAS PINCKNEY, and the said nations of Indians, it 1s hereby EL PRINCIPE DE LA PAZ, 100. WASHINGTON’S FAREWELL ADDRESS . September 17, 1796 (Richardson, ed. Messages and Papers, Vol. I, p. 213 ff.) This memorable address was Washington’s suggestions, and Hamilton and John Jay polished valedictory to the American people; its advice up this draft. This second draft, however, did and injunctions have influenced American history not please Washington as much as Hamilton’s far more than Washington himself could have first draft, and he asked Hamilton to polish up anticipated. The immediate occasion for Wash- the first draft for him. This draft was returned ington’s Address was the necessity of eliminating to Washington, who made some slight altera-

himself from the contest for the Presidency. tions and omissions, and sent it to a printer, Washington had seriously considered retiring Claypoole, who published it in the “American from that office at the end of his first term, and Daily Advertiser,’ September 17. Washington’s,

on May 20, 1792, he had written Madison a letter Madison’s and Hamilton’s drafts of the Address

containing many of the points later developed are given in W. C. Ford, ed. The Writings of in the Farewell Address. There has been con- George Washington, Vol. XIII. See, H. Binney, siderable controversy over the question of the An Inquiry into the Formation of Washington’s authorship of the Address, and Hamilton’s ad- Furewell Address; J. C. Fitzpatrick, George mirers claim that he was principally responsi- Washington Himself, ch. xxii. ble for it. In July 1796 Washington sent his earlier draft of a farewell address, together with Madison’s answer, to Hamilton with a . UNITED STATES, se ptember 17, 1796. request for suggestions and literary alterations. Friends and Fellow-Citizens: . Hamilton proceeded to write an address, based The period for a new election of a citizen almost entirely upon Washington’s draft; Wash- to administer the Executive Government of

ington returned it to Hamilton with further the United States being not far distant, and

170 DOCUMENTS OF AMERICAN History the time actually arrived when your thoughts different causes and from different quarters

must be employed in designating the per- much pains will be taken, many artifices son who is to be clothed with that important employed, to weaken in your minds the contrust, it appears to me proper, especially as viction of this truth, as this is the point in it may conduce to a more distinct expression your political fortress against which the bat-

of the public voice, that I should now ap-_ teries of internal and external enemies will prise you of the resolution I have formed to be most constantly and actively (though decline being considered among the number often covertly and insidiously) directed, it of those out of whom a choice is to be is of infinite moment that you should prop-

made. ... erly estimate the immense value of your naThe impressions with which I first under- tional union to your collective and individual

took the arduous trust were explained on happiness; that you should cherish a cordial, the proper occasion. In the discharge of this habitual, and immovable attachment to it; trust I will only say that I have, with good accustoming yourselves to think and speak intentions, contributed toward the organiza- of it as of the palladium of your political tion and administration of the Government safety and prosperity; watching for its presthe best exertions of which a very fallible ervation with jealous anxiety; discountenancjudgment was capable. Not unconscious in ing whatever may suggest even a suspicion the outset of the inferiority of my qualifica- that it can in any event be abandoned, and tions, experience in my own eyes, perhaps’ indignantly frowning upon the first dawning still more in the eyes of others, has strength- of every attempt to alienate any portion of ened the motives to diffidence of myself; and our country from the rest or to enfeeble the every day the increasing weight of years ad- sacred ties which now link together the vari-

monishes me more and more that the shade ous parts.

of retirement is as necessary to me as it For this you have every inducement of will be welcome. Satisfied that if any cir- sympathy and interest. Citizens by birth or cumstances have given peculiar value to my choice of a common country, that country services they were temporary, I have the has a right to concentrate your affections. consolation to believe that, while choice and ‘The name of American, which belongs to prudence invite me to quit the political scene, you in your national capacity, must always

patriotism does not forbid it... . exalt the just pride of patriotism more than

Here, perhaps, I ought to stop. But a any appellation derived from local discrimsolicitude for your welfare which can not inations. With slight shades of difference, end with my life, and the apprehension of you have the same religion, manners, habits, danger natural to that solicitude, urge me and political principles. You have in a comon an occasion like the present to offer to mon cause fought and triumphed together. your solemn contemplation and to recom- The independence and liberty you possess mend to your frequent review some senti- are the work of joint councils and joint efments which are the result of much reflec- forts, of common dangers, sufferings, and tion, of no inconsiderable observation, and — successes.

which appear to me all important to the But these considerations, however powerpermanency of your felicity as a people... . fully they address themselves to your sensiInterwoven as is the love of liberty with bility, are greatly outweighed by those which

every ligament of your hearts, no recom- apply more immediately to your interest. mendation of mine is necessary to fortify Here every portion of our country finds the

or confirm the attachment. most commanding motives for carefully

The unity of government which constitutes guarding and preserving the union of the you one people is also now dear to you. It _ whole.

is justly so, for it is a main pillar in the The North, in an unrestrained intercourse edifice of your real independence, the sup- with the South, protected by the equal laws port of your tranquillity at home, your peace of a common government, finds in the pro-

abroad, of your safety, of your prosperity, ductions of the latter great additional

of that very liberty which you so highly resources of maritime and commercial enterprize. But as it is easy to foresee that from prise and precious materials of manufactur-

WASHINGTON’S FAREWELL ADDRESS 171 ing industry. The South, in the same inter-, as a main prop of your liberty, and that the course, benefiting by the same agency of the love of the one ought to endear to you the North, sees its agriculture grow and its com- preservation of the other... . merce expand. Turning partly into its own i, there a doubt whether a common govchannels the seamen of the North, it finds its ernment can embrace so large a sphere? Let particular navigation invigorated; and while experience solve it. To listen to mere specula-

it contributes in different ways to nourish tion in such a case were criminal. It is well and increase the general mass of the national worth a fair and full experiment. With navigation, it looks forward to the protec- such powerful and obvious motives to union tion of a maritime strength to which itseli affecting all parts of our country, while exis unequally adapted. The Hast, in a like _ perience shall not have demonstrated its imintercourse with the West, already finds, and ___ practicability, there will always be reason

in the progressive improvement of interior to distrust the patriotism of those who in communications by land and water will more any quarter may endeavor to weaken its and more find, a valuable vent for the com- bands. modities which it brings from abroad or In contemplating the causes which may manufactures at home. The West derives. disturb our union it occurs as matter of from the Hast supplies requisite to its growth _ serious concern that any ground should have

and comfort, and what is perhaps of still been furnished for characterizing parties by greater consequence, it must of necessity owe geographical discriminations—Northern and

the secure enjoyment of indispensable out- Southern, Atlantic and JVestern—whence lets for its own productions to the weight, designing men may endeavor to excite a beinfluence, and the future maritime strength lief that there is a real difference of local inof the Atlantic side of the Union, directed terests and views. One of the expedients of by an indissoluble community of interest as party to acquire influence within particular one nation. Any other tenure by which the districts is to misrepresent the opinions and

West can hold this essential advantage, aims of other districts. You can not shield whether derived from its own separate yourselves too much against the jealousies

strength or from an apostate and unnatural and heartburnings which spring from these connection with any foreign power, must be misrepresentations; they tend to render alien

intrinsically precarious. to each other those who ought to be bound

While, then, every part of our country together by fraternal affection. ... thus feels an immediate and particular in- To the ethcacy and permanency of your terest in union, all the parts combined can union a government for the whole is indisnot fail to find in the united mass of means pensable. No alliances, however strict, beand efforts greater strength, greater resource, tween the parts can be an adequate subproportionably greater security from external stitute. They must inevitably experience the danger, a less frequent interruption of their infractions and interruptions which all alli-

peace by foreign nations, and what is of ances in all times have expericnced. Sensible inestimable value, they must derive from of this momentous truth, you have improved union an exemption from those broils and upon your first essay by the adoption of a wars between themselves which so frequently Constitution of Government better calculated afflict neighboring countries not tied together than your former for en intimate union and by the same governments, which their own for the efficacious managenient of your com-

rivalships alone would be sufficient to pro- mon concerns. This Government, the offduce, but which opposite foreign alliances, spring of our own choice, uninfluenced and attachmerits, and intrigues would stimulate unawed, adopted upon full Investigation and and imbitter. Hence, likewise, they will avoid mature deliberation, completely free in its the necessity of those overgrown military principles, in the distribution of its powers, establishments which, under any form of uniting security with energy, and containing government, are inauspicious to liberty, and within itself a provision for its own amend-

which are to be regarded as particularly ment, has a just claim to your confidence hostile to republican liberty. In this sense and your support. Respect for its authority, it is that your union ought to be considered compliance with its laws, acquiescence in its

172 DOCUMENTS OF AMERICAN HISTORY Measures, are duties enjoined by the funda- .most solemn manner against the baneful efmental maxims of true liberty. The basis of fects of the spirit of parly generally. our political systems is the right of the people This spirit, unfortunately, is inseparable

to make and to alter their constitutions of from our nature, having its root in. the government. But the constitution which at strongest passions of the human mind. It any time exists till changed by an explicit exists under different shapes in all governand authentic act of the whole people is ments, more or less stifled, controlled, or sacredly obligatory upon all. The very idea repressed: but in those of the popular form

of the power and the right of the people it is seen in its greatest rankness and is

to establish government presupposes the duty truly their worst enemy... .

of every individual to obey the established It serves always to distract the public

government... . councils and enfeeble the public administra-

Toward the preservation of your Govern- tion. It agitates the community with illment and the permanency of your present founded jealousies and false alarms: kindles

happy state, it is requisite not only that the animosity of one part against another: you steadily discountenance irregular opposi- foments occasionally riot and insurrection. tions to its acknowledged authority, but also It opens the door to foreign influence and that you resist with care the spirit of in- corruption, which find a facilitated access to novation upon its principies, however spe- the government itself through the channels slous the pretexts. One method of assault may of party passion. Thus the policy and the

he to effect in the forms of the Constitu- will of one country are subjected to the

tion alterations which will impair the energy — policy and will of another. , of the system, and thus to undermine what There is an opinion that parties in free can not be directly overthrown. In all the countries are useful checks upon the ad-

changes to which you may be invited re- ministration of Lhe government, and serve to member that time and habit are at least as keep alive the spirit of liberty. This within necessary to fix the true character of govern- certain limits is probably true; and in govern-

ments as of other human institutions; that ments of a monarchical cast patriotism mav expericnce is the surest standard by which to look with indulgence, if not with favor, upon

test the real tendency of the existing con- the spirit of party. But in those of the stilution of a country; that facility in popular character, in governments purely changes upon the credit of mere hypothesis elective, it is a spirit not to be encouraged.

and opinion exposes to perpetual change, From their natural tendency it is certain from the endless variety of hypothesis and there will always be enough of that spirit opinion; and remember especially that for for every salutary purpose; and there being the efficient management of your common constant danger of excess, the effort ought interests in a country so extensive as ours a___to be by force of public opinion to mitigate government of as much vigor as is consistent and assuage it. A fire not to be quenched, it

with the perfect security of liberty 1s in- demands a uniform vigilance to prevent its dispensable. Liberty itself will find in such _ bursting into a flame, lest, instead of warma government, with powers properly distrib- ing, it should consume.

uted and adjusted, its surest guardian. It It is important, likewise, that the habits is, indeed, little else than a name where the of thinking in a free country should inspire government is too feeble to withstand the caution in those intrusted with its administraenterprises of faction, to confine each mem- _ tion to confine themselves within their reber of the society within the limits prescribed spective constitutional spheres, avoiding in by the laws, and to maintain all in the secure _ the exercise of the powers of one department

and tranquil enjoyment of the rights of per- to encroach upon another. The spirit of en-

son and property. croachment tends to consolidate the powers

I have already intimated to you the danger of all the departments in one, and thus to of parties in the State, with particular refer- create, whatever the form of government, a ence to the founding of them on geographical real despotism. . . . If in the opinion of the discriminations. Let me now take a more _ people the distribution or modification of the comprehensive view, and warn you in the constitutional powers be in any particular

WASHINGTON’S FAREWELL ADDRESS 173 wrong, let it be corrected by an amendment likewise the accumulation of debt, not only in the way which the Constitution designates. by shunning occasions of expense, but by But let there be no change by usurpation; for vigorous exertions in time of peace to dis-

though this in one instance may be the in- charge the debts which unavoidable wars strument of good, it is the customary weapon have occasioned, not ungencrously throw-

by which free governments are destroyed. ing upon posterity the burthen which we The precedent must always greatly over- ourselves ought to bear... . balance in permanent evil any partial or Observe good faith and justice toward all transient benefit which the use can at any nations. Cultivate peace and harmony with

time yield. all. Religion and morality enjoin this con-

Of all the dispositions and habits which duct. And can it be that good policy does lead to political prosperity, religion and not equally enjoin it? It will be worthy of morality are indispensable supports. In vain a free, enlightened, and at no distant period

would that man claim the tribute of patriot- a great nation to give to mankind the

ism who should labor to subvert these great magnanimous and too novel example of a pillars of human happiness—these firmest people always guided by an exalted Justice props of the duties of men and citizens. The and benevolence. Who can doubt that in mere politician, equally with the pious man, the course of time and things the fruits of ought to respect and to cherish them. A such a plan would richly repay any tempovolume could not trace all their connections rary advantages which might be lost by a with private and public felicity. Let it simply steady adherence to iter Can it be that be asked, Where is the security for property, Providence has not connected the permanent

for reputation, for life, if the sense of re- felicity of a nation with its virtue? The ligious obligation desert the oaths which are experiment, at least, is recommended by the instruments of investigation in courts of | every sentiment which ennobles human najustice? And let us with caution indulge the ture. Alas! is it rendered impossible by its supposition that morality can be maintained _ vices?

without religion. Whatever may be conceded In the execution of such a plan nothing to the influence of refined education on minds’ is more essential than that permanent, inof peculiar structure, reason and experience veterate antipathies against particular nations both forbid us to expect that national moral- and passionate attachments for others should ity can prevail in exclusion of religious prin- be excluded, and that in place of them just

ciple. and amicable feelings toward all should be

It is substantially true that virtue or cultivated. The nation which indulges toward morality is a necessary spring of popular another an habitual hatred or an_ habitual government. The rule indeed extends with fondness is in some degree a slave. It is a more or less force to every species of free slave to its animosity or to its affection, government. Who that is a sincere friend to either of which is sufficient to lead it astray it can look with indifference upon attempts from its duty and its interest. Antipathy in to shake the foundation of the fabric? Pro- one nation against another disposes each

mote, then, as an object of primary im- more readily to offer insult and injury, to portance, institutions for the general dif- lay hold of slight causes of umbrage, and fusion of knowledge. In proportion as the to be haughty and intractab!e when accidental

structure of a government gives force to or trifling occasions of dispute occur. ... public opinion, it is essential that public So, likewise, a passionate attachment of

opinion should be enlightened. one nation for another produces a variety

As a very important source of strength of evils. Sympathy for the favorite nation, and security, cherish public credit. One facilitating the illusion of an imaginary commethod of preserving it is to use it aS spar- mon interest in cases where no real common ingly as possible, avoiding .occasions of interest exists, and infusing into one the expense by cultivating peace, but remember- enmities of the other, betrays the former ing also that timely disbursements to pre- into a participation in the quarrels and wars pare for danger frequently prevent much of the latter without adequate inducement greater césbursements to repel it; avoiding or justification. It leads also to concessions

. 174 DOCUMENTS OF AMERICAN History to the favorite nation of privileges denied ordinary combinations and collisions of her to others, which is apt doubly to injure the friendships or enmitics. nation making the concessions by unneces- Our detached and distant situation invites sarily parting with what ought to have been and enables us to pursue a different course. retained, and by exciting jealousy, ill will, If we remain one people, under an efficient and a disposition to retaliate in the parties government, the period is not far off when from whom equal privileges are withheld: we may defy material injury from external and it gives to ambitious, corrupted, or annoyance; when we may take such an atdeluded citizens (who devote themselves to titude as will cause the neutrality we may at

the favorite nation) facility to betray or any time resolve upon to be scrupulously sacrifice the interests of their own country respected; when belligerent nations, under without odium, sometimes even with popular- the impossibility of making acquisitions upon

ity, gilding with the appearances of a virtu- us, will not lightly hazard the giving us ous sense of obligation, a commendable defer- provocation; when we may choose peace or

ence for public opinion, or a laudable zeal war, as our interest, guided by justice, shall

for public good the base or foolish com- counsel.

phances of ambition, corruption, or infatua- Why forego the advantages of so peculiar

tion. . .. a situation? Why quit our own to stand upon

Against the insidious wiles of foreign in- forcign ground? Why, by interweaving our fluence (I conjure you to believe me, fellow- destiny with that of any part of Europe, encitizens) the jealousy of a free people ought tangle our peace and prospcrity in the toils

to be constantly awake, since history and of European ambition, rivalship, interest, experience prove that foreign influence is one humor, or caprice?

of the most baneful foes of republican gov- It is our true policy to stecr clear of perernment. But that jealousy, to be useful, manent alliances with any portion of the formust be impartial, else it becomes the in- eign world, so far, I mean, as we are now at strument of the very influence to be avoided, liberty to do it; for let me not be understood

instead of a defense against it. Excessive as capable of patronizing infidelity to existpartiality for one foreign nation and exces- ing engagements. I hold the maxim no less sive dislike of another cause those whom they applicable to public than to private affairs actuate to sce danger only on one side, and that honesty is always the best policy. I reserve to veil and even second the arts of peat, therefore, let those engagements be ob-

influence on the other. Real patriots who served in their genuine sense. But in my may resist the intrigues of the favorite are opinion it is unnecessary and would be unwise liable to become suspected and odious, while to extend them.

its tools and dupes usurp the applause and Taking care always to keep ourselves by confidence of the people to surrender their suitable establishments on a respectable de-

interests. fensive posture, we may safely trust to tem-

The great rule of conduct for us in regard porary alliances for extraordinary emergento foreign nations is, in extending our com- cies. mercial relations to have with them as little Harmony, liberal intercourse with all napolitical connection as possible. So far as we tions are recommended by policy, humanity, have already formed engagements let them and interest. But even our commercial policy

be fulfilled with perféct good faith. Here should hold an equal and impartial hand,

Jet us stop. neither seeking nor granting exclusive favors

Europe has a set of primary interests which or preferences; consulting the natural course to us have none or a very remote relation. of things; diffusing and diversifying by genHence she must be engaged in frequent tle means the streams of commerce, but forccontroversics, the causes of which are es- ing nothing; establishing with powers so dissentially foreign to our concerns. Hence, poscd, in order to give trade a stable course, therefore, it must be unwisc in us to im- to define the rights of our merchants, and to plicate ourselves by artificial ties in the enable the Government to support them, conordinary vicissitudes of her politics or the ventional rules of intercourse, the best that.

Tor ALIEN AND SEDITION AcTS 175 present circumstances and mutual opinion Almighty to avert or mitigate the evils to will permit, but temporary and liable to be which they may tend. I shall also carry with from time to time abandoned or varied as me the hope that my country will never cease experience and circumstances shall dictate; to view them with indulgence, and that, after constantly keeping in view that it is folly in forty-five years of my life dedicated to its one nation to look for disinterested favors service with an upright zeal, the faults of infrom another; that it must pay with a por- compctent abililies will be consigned to obtion of its independence for whatever it may livion, as mysclf must soon be to the manaccept under that character; that by such _ sions of rest. acceptance it may place itself in the condition Relying on its kindness in this as in other of having given equivalents for nominal fa- things, and actuated by that fervent love vors, and yel of being reproached with ingrat- toward it which is so natural to a man who itude for not giving more. There can be no views in it the native soil of himself and his greater crror than to expect or calculate upon progenitors for several generations, I anticireal favors from nation to nation. It is an pate with pleasing expectation that retreat in illusion which experience must cure, which a which I promise mysclf to realize without

Just pride ought to discard... . alloy the sweet enjoyment of partaking in

Though in reviewing the incidents of my the midst of my fellow-citizens the benign Administration I am unconscious of inten- influence of good laws under a free governtional error, I am nevertheless too sensible of | ment—the ever-favorite object of my heart,

my defects not to think it probable that I and the happy reward, as I trust, of our may have committed many errors. What- mutual cares, labors, and dangers.

ever they may be, I fervently beseech the G°. WASHINGTON. 101. THE ALIEN AND SEDITION ACTS 1798

The publication, in the spring of 1798, of the

X Y Z correspondence raised among the Fed- 1. Tue Naturarization Act | eralists a spirit of nationalism that found expres- June 18, 1798

sion in the four acts known collectively as the (U.S. Statutes at Large, Vol. I, p. 566 ff.)

Alien anddirected Sedition Acts. Theagainst animus of these An Act s rs to and to amend the acts was particularly a group supplementary

of anti-Federalist editors and pamphletcers of act, méiuuled “An act to establish an French and English extraction, such as Thomas uniform rule of naturalization,” and to Cooper, Joseph Priestley, James Callender, Ben- repeal the act heretofore passed on that jamin F. Bache, Count de Volney, V. du Pont subject. and others. There was grave doubt as to the SECTION 1. Be it enacted... , That no constitutionality of the Sedition Act, which ex- alien shall be admitted to become a citizen

tended the jurisdiction of thenever federalcame courts,before but f thethe United States. or of ; tat less the question of validity ° any Stabe, UNICSS

; ...in 1812 he shall have declared hisCechare intention to courts, though the supreme court ruled Cs u ave ; s tion Lc that the federal courts do not have common Dccome a citizen of the United States, five

law jurisdiction in criminal cases. Though the Years, at least, before his admission, and shall, Alien Acts were never enforced, a number of at the time of his application to be admitted, French refugees fled the country or went into declare and prove, to the satisfaction of the hiding. Some twenty-five persons were arrested court having jurisdiction in the case, that he under the Sedition Act, and ten convicted. Sec, has resided within the United States fourteen F.M. Anderson, “The Enforcement of the Alien years, at least, and within the state or terriand Sedition Laws,” American Hist. Assoc. Re- - Peer ports, 1912; C. G. Bowers, Jefferson and Ham- tory where, or for which such court is at the ilton, ch. xvi-xvii; J. S. Bassett, The Federalist time held, five years, at least, besides conSystem, ch. xvii; J. F. Mc Laughlin, Matthew forming to the other declarations, renunciaLyon; D. Malone, Thomas Cooper; B. Fay, The tions and proofs, by the said act required,

Two Franklins, any thing therein to the contrary hereof not-

176 DOCUMENTS OF AMERICAN HISTORY withstanding: Provided, that any alien, who fore him, there to give surety of the peace was residing within the limits, and under the and good behaviour during his residence jurisdiction of the United States, before ... within the United States, or for such term [January 29, 1795,] ... may, within one as the justice or other magistrate shall deem year after the passing of this act—and any reasonable, and until a report and registry of alien who shall have made the declaration of | such alien shall be made, and a certificate his intention to become a citizen of the thereof, received as aforesaid: and in failure United States, in conformity to the provisions of such surety, such alien shall and may be of the act [of Jan. 29, 1795], may, within committed to the common gaol, and shall be four years after having made the declaration there held, until the order which the justice aforesaid, be admitted to become a citizen, or magistrate shall and may reasonably make, in the manner prescribed by the said act, in the premises, shall be performed... .

... dud provided also, that no alien, who

shall be a native, citizen, denizen or subject 2. ‘THe Atten Act

of any nation or state with whom the United June 25, 1798 States shall be at war, at the time of his (U.S. Statules at Large, Vol. I, p. 570 ff.) application, shall be then admitted to become An Act concerning Aliens.

a citizen of the United States... . SEC. 1. Be it enacted ... , That it shali

SEC. 4. And be it further enacted, That all be lawful for the President of the United white persons, aliens, ... who, after the States at any time during the continuance of passing of this act, shall continue to reside, this act, to order all such aliens as he shall or who shall arrive, or come to reside in any judge dangerous to the peace and safety of

port or place within the territory of the the United States, or shall have reasonable United States, shall be reported, ... to the grounds to suspect are concerned in any clerk of the district court of the district, if treasonable or secret machinations against living within ten miles of the port or place, the government thereof, to depart out of the in which their residence or arrival shall be, territory of the United States, within such

and otherwise, to the coilector of such port time as shall be expressed in such order, or place, or some officer or other person there, which order shall be served on such alien by or nearest thereto, who shall be authorized delivering him a copy thereof, or leaving the by the President of the United States, to same at his usual abode, and returned to the register aliens: And report, as aforesaid, shall office of the Secretary of State, by the marbe made in all cases of residence, within six shal or other person to whom the same shall months from and after the passing of this _ be directed. And in case any alien, so ordered act, and in all after cases, within forty-eight to depart, shall be found at large within the hours after the first arrival or coming into United States after the time limited in such the territory of the United States, and shall order for his departure, and not having obascertain the sex, place of birth, age, nation, tained a license from the President to reside place of allegiance or citizenship, condition or therein, or having obtained such license shall occupation, and place of actual or intended not have conformed thereto, every such alien residence within the United States. of the shall, on conviction thereof, be imprisoned

alien or aliens reported, and by whom the for a term not exceeding three years, and

report is made... . shall never after be admitted to become a

Sec. 5. And be it further enucted, That citizen of the United States. Provided always, every alien who shall continue to reside, or and be it further enacted, that if any alien who shall arrive, as aforesaid, of whom a _ so ordered to depart shall prove to the satisreport is required as aforesaid, who shall re- faction of the President, by evidence to be fuse or neglect to make such report, and to taken before such person or persons as the receive a certificate thereof, shall forfeit and President shall direct, who are for that purpay the sum of two dollars; and any justice pose hereby authorized to administer oaths, of the peace, or other civil] magistrate, who that no injury or danger to the United States has authority to require surety of the peace, will arise from suffering such alien to reside shall and may, on complaint to him made _ therein, the President may grant a license to thereof, cause such alien to be brought be- such alien to remain within the United States

THE ALIEN AND SEDITION AcTS 177 for such time as he shall judge proper, and at __— strained, secured and removed, as alien ene-

such place as he may designate. And the mies. And the President of the United States President may also require of such alien to shall be, and he is hereby authorized, ... enter into a bond to the United States, in to direct the conduct to be observed, on the | such penal sum as he may direct, with one or part of the United States, towards the aliens i more sufficient sureties to the satisfaction of _ who shall become liable, as aforesaid; the the person authorized by the President to marmner and degree of the restraint to which take the same, conditioned for the good be- they shall be subject, and in what cases, and havior of such alien during his residence in upon what security their residence shall be the United States, and not violating his li- permitted, and to provide for the removal of cense, which license the President may re- those, who, not being permitted to reside

voke, whenever he shall think proper. within the United States, shall refuse or

Sec. 2. And be it further enacted, That it neglect to depart therefrom; and to establish

shall be lawful for the President of the any other regulations which shall be found United States, whenever he may deem it nec- necessary in the premises and for the public

essary for the public safety, to order to be safety: ...

removed out of the territory thereof, any 4. Tue Sepition Act alien who may or shall be in prison in pur- July 14, 1798

suance of this act; and to cause to be ar- yo

rested and sent out of the United States such (U.S. Statutes at Large, Vol. I, p. 596-7) of those aliens as shall have been ordered to An Act in addition to the act, entitled “An depart therefrom and shall not have obtained act for the punishment of certain crimes

a license as aforesaid, in all cases where, in against the United States.” the opinion of the President, the public safety SEC. 1. Be it enacted ..., That if any requires a speedy removal. And if any alien persons shall unlawfully combine or conspire so removed or sent out of the United States together, with intent to oppose any measure by the President shall voluntarily return or measures of the government of the United thereto, unless by permission of the President States, which are or shall be directed by of the United States, such alien on conviction proper authority, or to impede the operation thereof, shall be imprisoned so long as, in the of any law of the United States, or to in-

opinion of the President, the public safety timidate or prevent any person holding a

may require. ... place or office in or under the government of Sec. 6. And be it further enacted, That this the United States, from undertaking, peract shall continue and be in force for and forming or executing his trust or duty; and if during the term of two vears from the passing any person or persons, with intent as afore-

thereof. said, shall counsel, advise or attempt to pro3. Tur Auten ENEMirs Act cure any insurrection, riot, unlawful assem-

July 6, 1798 rs °r combination, whether such consparacy, ireatening, counsel, advice, or attempt sha

(U. S. Statutes at Large, Vol. I, p. 8774.) have the proposed elfect or not. he i. ‘hey

An Act respecting Alien Eneinies. shall be deemed guilty of a high misdeSECTION 1. Be it enacted ..., That meanor, and on conviction, before any court whenever there shall be a declared war be- of the United States having jurisdiction tween the United States and any foreign na- thereof, shall be punished by a fine not extion or government, or any invasion or ceeding five thousand dollars, and by impris-

predatory incursion shall be perpetrated, at- onment during a term not less than six

tempted, or threatened against the territory months nor exceeding five years; and further, of the United States, by any foreign nation at the discretion of the court may be holden

or government, ... all natives, citizens, to find sureties for his good behaviour in denizens, or subjects of the hostile nation or such sum, and for such time, as the said court government, being males of the age of four- may direct.

teen years and upwards, who shall be within Sec. 2. That if any person shall write, the United States, and not actually natural- print, utter, or publish, or shall cause or ized, shall be liable to be apprehended, re- procure to be written, printed, uttered or

178 DOCUMENTS OF AMERICAN HistToRY published, or shall knowingly and willingly aid, encourage or abet any hostile designs of assist or aid in writing, printing, uttering or any foreign nation against the United States, publishing any false, scandalous and mali- their people or government, then such person, clous writing or writings against the govern- being thereof convicted before any court of ment of the United States, or either house of | the United States having jurisdiction thereof, the Congress of the United States, or the shall be punished by a fine not exceeding two President of the United States, with intent to thousand dollars, and by imprisonment not defame the said government, or either house exceeding two years.

of the said Congress, or the said President. Sec. 3. That if any person shall be proseor to bring them, or either of them, into con- cuted under this act, for the writing or pubtempt or disrepute; or to excite against them, lishing any libel aforesaid, it shall be lawful or elther or any of them, the hatred of the for the defendant, upon the trial of the cause, good people of the United States, or to stir to give in evidence in his defence, the truth

up sedition within the United States, or to of the matter contained in the publication excite any unlawful combinations therein, for charged as a libel. And the jury who shall try Opposing or resisting any law of the United the cause, shall have a right to determine the

States, or any act of the President of the law and the fact, under the direction of the United States, done in pursuance of any such court, as in other cases.

law, or of the powers in him vested by the sec. 4. That this act shall continue to be constitution of the United States, or to resist, in force until March 3, 1801, and no oppose, or defeat any such law or act, or to longer... .

102. THE KENTUCKY AND VIRGINIA RESOLUTIONS OF 1798 The Kentucky and Virginia Resolutions of 1798

- were evoked by the Alien and Sedition Acts. The I. eee RESOLUTIONS Kentucky Resolutions were drafted by Jefferson, ovember 16, 1798 and sponsored in the Kentucky legislature by (N.S. Shaler, Kentucky, p. 409 ff.) John Breckenridge. The Virginia Resolutions I. Resolved, that the several States comwere dralted by Madison, and introduced by posing the United States of America, are not John Taylor of Caroline. These resolutions repre- . ee . sented not so much a constitutional as a social united on the principle of unlimited submisphilosophy: they were drawn up with the primary S10 to their general government; but that purpose not of presenting a constitutional theory Dy compact under the style and title of a but of presenting a democratic protest against Constitution for the United States and of what was considered a dangerous usurpation amendments thereto, they constituted a genof power by the central government. The per- eral government for special purposes, deleplexing question of the proper authority to pass gated to that government certain definite

on problems of constitutionality had not yet powers, reserving each State to itself, been resoived in favor of the Courts, and it was the residuary mass of right to their own selfnot unreasonable for those who feared the centralizing tendencies of the federal government to government; and that whensoever the general assert that the States were the proper parties 8OVernment assumes undelegated powers, its to decide this question. The resolutions of 1798 acts are unauthoritative, void, and of no drew forth replics from several states; sce Doc. force: That to this compact each State acNo. 104. On the resolutions, sce E. D. Warfield, ceded as a State, and is an integral party, its The Kentucky Resolutions of 1798; N.S. Shaler, ¢o-States forming, as to itself, the other Kentucky, ch. x; C. W. Loring, Nulhfication, party: That the government created by this

ane has oe ro ae ea. Oe compact was not made the exclusive or final c Hunt, James Af adison; Ir. P. Powell, Nullifi- judge of the extent of the powers delegated to cation and Secession in the United States; A. C. itself; since that would have made its discreMcLaughlin, Courts, Constitution and Parties, tion, and not the Constitution, the measure of

ch. iv. its powers; but that as in all other cases of

KENTUCKY AND VIRGINIA RESOLUTIONS OF 1798 179 compact among parties having no common selves the right of protecting the same, as this Judge, each party has an equal right to judge State, by a law passed on the general demand

for itself, as well of infractions as of the of its citizens, had already protected them

mode and measure of redress. from all human restraint or interference: And

II. Resolved, that the Constitution of the that in addition to this general principle and United States having delegated to Congress a__ express declaration, another and more special power to punish treason, counterfeiting the provision has been made by one of the amend-

securities and current coin of the United ments to the Constitution which expressly deStates, piracies and felonies committed on clares, that “Congress shall make no law rethe high seas, and offenses against the laws specting an establishment of religion, or

of nations, and no other crimes whatever, prohibiting the free exercise thereof, or and it being true as a general principle, and abridging the freedom of speech, or of the one of the amendments to the Constitution press,” thereby guarding in the same sentence, having also declared “that the powers not and under the same words, the freedom of delegated to the United States by the Con- religion, of speech, and of the press, insostitution, nor prohibited by it to the States, much, that whatever violates either, throws are reserved to the States respectively, or to down the sanctuary which covers the others, the people,” therefore also [the Sedition Act and that libels, falsehoods, defamation equally

of July 14, 1798]; as also the act passed by with heresy and false religion, are withheld them on the 27th day of June, 1798, entitled from the cognizance of Federal tribunals. “An act to punish frauds committed on the That therefore [the Sedition Act], which does Bank of the United States” (and all other abridge the freedom of the press, is not law, their acts which assume to create, define, or but is altogether void and of no effect. punish crimes other than those enumerated IV. Resolved, that alien friends are under in the Constitution), are altogether void and the jurisdiction and protection of the laws of

of no force, and that the power to create, the State wherein they are; that no power define, and punish such other crimes is re- over them has been delegated to the United served, and of right appertains solely and States, nor prohibited to the individual States exclusively to the respective States, each distinct from their power over citizens; and

within its own Territory. it being true as a general principle, and one

III. Resolved, that it is true as a general of the amendments to the Constitution having principle, and is also expressly declared by also declared that “the powers not delegated one of the amendments to the Constitution to the United States by the Constitution, nor that “the powers not delegated to the United prohibited by it to the States, are reserved to States by the Constitution, nor prohibited by the States respectively, or to the people,” the it to the States, are reserved to the States [Alien Act of June 22, 1798], which assumes respectively or to the people;” and that no power over alien friends not delegated by the power over the freedom of religion, freedom Constitution, is not law, but is altogether of speech, or freedom of the press being dele- void and of no force.

gated to the United States by the Constitu- V. Resolved, that in addition to the gention, nor prohibited by it to the States, all eral principle as well as the express declaralawful powers respecting the same did of tion, that powers not delcgated are reservea, right remain, and were reserved to the States, another and more special provision inserted

or to the people: That thus was manifested in the Constitution from abundant caution their determination to retain to themselves has declared, “that the migration or importathe right of judging how far the licentiousness __ tion of such persons as any of the States now

of speech and of the press may be abridged existing shall think proper to admit, shall not without lessening their useful freedom, and be prohibited by the Congress prior to the how far those abuses which cannot be sepa- year 1808.” That this Commonwealth does rated from their use should be tolerated admit the migration of alien friends cescriber

rather than the use be destroyed; and thus as the subject of the said act concerning also they guarded against all abridgment by aliens; that a provision against prohibiting the United States of the freedom of religious _ their migration is a provision against all acts opinions and exercises, and retained to them- equivalent thereto, or it would be nugatory;

180 DocUMENTS OF AMERICAN History that to remove them when migrated is equiva- defense, and general welfare of the United lent to a prohibition of their migration, and States, and to make all laws which shall be is therefore contrary to the said provision of necessary and proper for carrying into execu-

the Constitution, and void. tion the powers vested by the Constitution

VI. Resolved, that the imprisonment of a in the government of the United States, or person under the protection of the laws of any department thereof, goes to the destruc-

(his Commonwealth on his failure to obey tion of all the limits prescribed to their the simple order of the President to depart power by the Constitution: That words meant out of the United States, as is undertaken by that instrument to be subsidiary only to by the said act entitled “An act concern- the execution of the limited powers ought not ing aliens,” is contrary to the Constitution, to be so construed as themselves to give unone amendment ‘to which has provided, that limited powers, nor a part so to be taken as “no person shall be deprived of liberty with- to destroy the whole residue of the instru-

out due process of law,” and that another ment: That the proceedings of the general having provided “that in all criminal prosecu- government under color of these articles will

tions, the accused shall enjoy the right to a bea fit and necessary subject for revisal and public trial by an impartial jury, to be in- correction at a time of greater tranquillity, formed of the nature and cause of the accusa- while those specified in the preceding resolu-

tion, to be confronted with the witnesses tions call for immediate redress. against him, to have compulsory process for VIII. Resolved, that the preceding Resoluobtaining witnesses in his favour, and to have tions be transmitted to the Senators and

Lhe assistance of counsel for his defense.” the Representatives in Congress from this Comsame act undertaking to authorize the Presi- monwealth. who are hereby enjoined to predent to remove a person out of the United sent the same to their respective Houses, and

states who is under the protection of the to use their best endeavors to procure, at the law, on his own suspicion, without accusation, next session of Congress, a repeal of the afore-

without jury, without public trial, without said unconstitutional and obnoxious acts. confrontation of the witnesses against hin, IX. Resolved, lastly, that the Governor of without having witnesses in his favour, with- this Commonwealth be, and is hereby auout defense, without counsel, is contrary to thorized and requested to communicate the these provisions also of the Constitution, is preceding Resolutions to the Legislatures of therefore not law, but utterly void and of no the several States, to assure them that this force. That transferring the power of judg- Commonwealth considers Union for specified ing any person who is under the protection National purposes. and particularly for those of the laws, from the courts to the Presi- specified in their late Federal Compact, to be dent of the United States, as is undertaken friendly to the peace, happiness, and prosby the same act concerning aliens, is against perity of all the States: that faithful to that

the article of the Constitution which pro- compact according to the plain intent and vides, that “the judicial power of the United meaning in which it was understood and States shall be vested in courts, the judges acceded to by the several parties, it is sinof which shall hold their offices during good cerely anxious for its preservation: that it behavior,” and that the said act is void for does also believe, that to take from the States that reason also; and it is further to be noted, all the powers of self-government, and transthat this transfer of Judiciary power is to that fer them toa general and consolidated govern-

magistrate of the general government who ment, without regard to the special delegaalready possesses all the executive, and a_ tions and reservations solemnly agreed to in qualified negative in all the legislative powers. that compact, is not for the peace, happiness, VIL. Resolved, that the construction ap- or prosperity of these States: And that, thereplied by the general government (asisevinced fore, this Commonwealth is determined, as by sundry of their proceedings) to those parts it doubts not its co States are, tamely to of the Constitution of the United States which submit to undelegated and consequently undelegate to Congress a power to lay and _ limited powers in no man or body of men on collect taxes, duties, imposts, and excises; to earth: that if the acts before specified should pay the debts, and provide for the common stand, these conclusions would flow from

KENTUCKY AND VIRGINIA RESOLUTIONS OF 1798 _ 181 them: that the general government may place the Constitution has not been wise in fixing any act they think proper on the list of crimes limits to the government it created, and and punish it themselves, whether enumerated whether we should be wise in destroying those

or not enumerated by the Constitution as cog- limits; let him say what the government is nizable by them: that they may transfer its if it be not a tyranny, which the men of our cognizance to the President or any other per- choice have conferred on the President, and son, who may himself be the accuser, counsel, the President of our choice has assented to judge, and jury, whose suspicions may be the and accepted over the friendly strangers, evidence, his order the sentence, his officer the to whom the mild spirit of our country and Its

executioner, and his breast the sole record laws had pledged hospitality and protection: of the transaction: that a very numerous and’ that the men of our choice have more revaluable description of the inhabitants of spected the bare suspicions of the President these States being by this precedent reduced — than the solid rights of innocence, the claims as outlaws to the absolute dominion of one of justification, the sacred force of truth, and man, and the barrier of the Constitution thus the forms and substance of law and justice.

swept away from us all, no rampart now re- In questions of power then let no more be mains against the passions and the powers heard of confidence in man, but bind him of a majority of Congress, to protect from a down from mischief by the claims of the like exportation or other more grievous pun- Constitution. That this Commonwealth does ishment the minority of the same body, the therefore call on its co-States for an expreslegislatures, judges, governors, and counselors sion of their sentiments on the acts concern-

of the States, nor their other peaceable in- ing aliens, and for the punishment of certain habitants who may venture to reclaim the crimes herein before specified, plainly declarconstitutional rights and liberties of the State ing whether these acts are or are not auand people, or who for other causes. good or thorized by the [Federal Compact. And it bad, may be obnoxious to the views or marked doubts not that their sense will be so an-

by the suspicions of the President, or be nounced as to prove their attachment unthought dangerous to his or their elections altered to limited government, whether gen-

or other interests, public or personal: that eral or particular, and that the rights and the friendless alien has indeed been selected liberties of their co-States will be exposed to

as the safest subject of a first experiment, no dangers by remaining embarked on a but the citizen will soon follow, or rather common bottom with their own: That they has already followed: for, already has a sedi-_ will concur with this Commonwealth in con-

tion act marked him as its prey: that these sidering the said acts so palpably against the and successive acts of the same character, Constitution as to amount to an undisguised unless arrested on the threshold, may tend to declaration, that the compact is not meant drive these States into revolution and blood, to be the measure of the powers of the genand will furnish new calumnies against Re- eral government, but that it will proceed ir publican governments, and new pretexts for the exercise over these States of all powers those who wish it to be believed, that man whatsoever: That they will view this as seiz. cannot be governed but by a rod of iron: that ing the rights of the States and consolidatit would be a dangerous delusion were a_ ing them in the hands of the general governconfidence in the men of our choice to silence ment with a power assumed to bind the States

our fears for the safety of our rights: that (not merely in cases made Federal) but in confidence is everywhere the parent of des- all cases whatsoever, by laws made, not with

potism: free government is founded in jeal- their consent, but by others against their ousy and not in confidence; it is jealousy and consent: That this would be to surrender not confidence which prescribes limited Con- the form of government we have chosen, and

stitutions to bind down those whom we are to live under one deriving its powers from obliged to trust with power: that our Con- its own will, and not from our authority; stitution has accordingly fixed the limits to and that the co-States, recurring to their which and no further our confidence may go; __— natural right in cases not made Federal, will

and let the honest advocate of confidence concur in declaring these acts void and of read the alien and sedition acts, and say if no force, and will each unite with this Com-

182 DOCUMENTS OF AMERICAN History monwealth in requesting their repeal at the consolidate the states, by degrees, into one

next session of Congress. sovereignty, the obvious tendency and _in2. Vircinta RESOLUTIONS evitable consequence of which would be to

December 24, 1798 eae present republican system of (Elliot’s Debates, 1861 ed., Vol. IV, p. 528-529) best, eg monarchy. an absolute, or, at Resolved, That the General Assembly of That the General Assembly doth particuVirginia doth unequivocally express a firm larly PROTEST against the palpable and resolution to maintain and defend the Con- alarming infractions of the Constitution in stitution of the United States, and the Con- the two late cases of the “Alien and Sedition stitution of this state, against every aggres- Acts,” passed at the last session of Congress; sion either foreign or domestic; and that they the first of which exercises a power nowhere will support the Government of the United delegated to the Federal Government, and

States in all measures warranted by the which, by uniting legislative and judicial

former. powers to those of [the] executive, subverts

That this Assembly most solemnly declares the general principles of free government, as a warm attachment to the union of the states, well as the particular organization and posito maintain which it pledges all its powers; tive provisions of the Federal Constitution:

and that, for this end, it is their duty to and the other of which acts exercises, in like watch over and oppose every infraction of manner, a power not delegated by the Conthose principles which constitute the only stitution, but, on the contrary, expressly and basis of that Union, because a faithful ob- positively forbidden by one of the amendservance of them can alone secure its ex- ments thereto,—a power which, more than

istence and the public happiness. any other, ought to produce universal alarm, That this Assembly doth explicitly and because it is levelled against the right of peremptorily declare that it views the powers freely examining public characters and meéasof the Federal Government as resulting from ures, and of free communication among the

the compact to which the states are parties, people thereon, which has ever been justly as limited by the plain sense and intention deemed the only effectual guardian of every

of the instrument constituting that compact; other right.

as no further valid than they are authorized That this state having, by its Convention by the grants enumerated in that compact; which ratified the Federal Constitution, exand that, in case of a deliberate, palpable, pressly declared that, among other essential and dangerous exercise of other powers not rights, “the liberty of conscience and of the granted by the said compact, the states, who press cannot be cancelled, abridged, restrained

are parties thereto, have the right and are or modified by any authority of the United in duty bound to interpose for arresting the States,” and from its extreme anxiety to guard

progress of the evil, and for maintaining these rights from every possible attack of within their respective limits the authorities, sophistry or ambition, having, with other rights, and liberties appertaining to them. states, recommended an amendment for that That the General Assembly doth also ex- purpose, which amendment was in due time press its deep regret, that a spirit has in annexed to the Constitution,—it would mark sundry instances been manifested by the a reproachful inconsistency and criminal deFederal Government to enlarge its powers generacy, if an indifference were now shown by forced constructions of the constitutional to the palpable violation of one of the rights charter which defines them; and that indica- thus declared and secured, and to the estions have appeared of a design to expound tablishment of a precedent which may be certain general phrases (which, having been fatal to the other. copied from the very limited grant of powers That the good people of this commonin the former Articles of Confederation, were wealth, having ever felt and continuing to the less liable to be misconstrued) so as to feel the most sincere affection for their destroy the meaning and effect uf the partic- brethren of the other states, the truest anxular enumeration which necessarily explains iety for establishing and perpetuating the and limits the general phrases, and so as to union of all and the most scrupulous fidelity

Toe KENTUCKY RESOLUTIONS OF IL799 183 to that Constitution, which is the pledge of aforesaid are unconstitutional; and that the mutual friendship, and the instrument of necessary and proper measures will be taken mutual happiness, the General Assembly doth by each for co-operating with this state, in solemnly appeal to the like dispositions of maintaining unimpaired the authorities, the other states, in confidence that they will rights, and liberties reserved to the states concur with this Commonwealth in declar- respectively, or to the people.... ing, as it does hereby declare, that the acts

103. THE KENTUCKY RESOLUTIONS OF 1799 February 22, 1799 (Elliot’s Debates, 1861 ed. Vol. IV, p. 544 ff.) he unfavorable character of the replies of cussion and judgment of our fellow-citizens various States to the Resolutions of 1798 led toa throughout the Union. Whether the lke reassertion of the principles expressed in those decency and temper have been observed in resolutions. The Kentucky legislature not only the answers of most of those States, who reaffirmed its attachment to the original resolu- have denied tt ted to obvi

tions, but added a resolution asserting that nulli- © cemled oF atemprec *0 © viate the great fication by the States was the rightful remedy truths contained in those resolutions, we have with which to mect infractions of the Constitu- 20w only to submit to a candid world. [*aithtion. In Virginia, the replies of the States were ful to the true principles of the federal Union, referred to a special committee of which James unconscious of any designs to disturb the Madison was chairman. The report of the com- harmony of that Union, and anxious only to

mittce, drafted by Madison, can be found in escape the fangs of despotism, the good

references, see Doc. No. ee Lest, however, of censure102. or calumniation.

Madison’s Writings, cd. by G. Hunt, Vol. VI. For people of this commonwealth are regardless

The representatives of the good people of the silence of this commonwealth should be this commonwealth, in General Assembly con- construed into an acquiescence in the docvened, having maturely considered the an- _ trines and principles advanced and attempted swers of sundry states in the Union, to their to be maintained by the said answers, or at resolutions passed the last session, respect- least those of our fellow-citizens throughout ing certain unconstitutional laws of Congress, the Union who so widely differ from us on commonly called the Alien and Sedition Laws, those important subjects, should be deluded would be faithless, indeed, to themselves and by the expectation, that we shall be deterred

to those they represent, were they silently from what we conceive our duty, or shrink to acquiesce in the principles and doctrines from the principles contained in those resoluattempted to be maintained in all those an- _tions—therefore, swers, that of Virginia only excepted. To Resolved, That this commonwealth conagain enter the field of argument, and at- siders the federal Union, upon the terms and tempt more fully or forcibly to expose the for the purposes specified in the late comunconstitutionality of those obnoxious laws, pact, conducive to the liberty and happiness would, it is apprehended, be as unnecessary of the several states: That it does now unas unavailing. We cannot, however, but la- equivocally declare its attachment to the ment, that, in the discussion of those interest- Union, and to that compact, agreeably to its ing subjects, by sundry of the legislatures of. obvious and real intention, and will be our sister states, unfounded suggestions, and among the last to seek its dissolution: That uncandid insinuations, derogatory to the true if those who administer the general governcharacter and principles of this common- ment be permitted to transgress the limits wealth have been substituted in place of fair fixed by that compact, by a total disregard to reasoning and sound argument. Our opinions the special delegations of powcr therein con-

of these alarming measures of the general tained, an annihilation of the state governgovernment, together with our reasons for ments, and the creation upon their ruins of a. those opinions, were detailed with decency, general consolidated government, will be the and with temper, and submitted to the dis- inevitable consequence: That the principle

184 DOCUMENTS OF AMERICAN HISTORY and construction contended for by sundry of its sister states, in matters of ordinary of the state legislatures, that the general or doubtful policy, yet, in momentous regulagovernment is the exclusive judge of the tions like the present, which so vitally wound extent of the powers delegated to it, stop not the best rights of the citizen, it would conshort of despotism—since the discretion of — sider a silent acquiescence as highly criminal: those who administer the government, and ‘That although this commonwealth, as a party not the Constitution, would be the measure of _ to the federal compact, will bow to the laws

their powers: That the several states who of the Union, yet, it does, at the same time formed that instrument being sovereign and declare, that it will not now, or ever hereindependent, have the unquestionable right after, cease to oppose in a constitutional to judge of the infraction; and, That a nul- manner, every attempt at what quarter solification of those sovereignties, of all unau- ever offered, tu violate that compact. And, thorized acts done under color of that instru- finally, in order that no pretext or arguments

ment is the rightful remedy: That this may be drawn from a supposed acquiescence, commonwealth does, under the most deliber- on the part of this commonwealth in the ate reconsideration, declare, that the said constitutionality of those laws, and be thereby Alien and Sedition Laws are, in their opin- used az precedents for similar future violeion, palpable violations of the said Constitu- tions of the federal compact—this commontion; and, however cheerfully it may be dis- wealth does now enter against them its solemn posed to surrender its opinion to a majority PROTEST.

104. STATE REPLIES TO THE VIRGINIA AND KENTUCKY RESOLUTIONS 1799

(Elliot’s Debates, 1861 ed., Vol. IV, p. 533, 539) Every State from Maryland north replied to the the authority of deciding on the constituVirginia and Kentucky Resolutions, disavowing, tionality of any act or law of the Congress w.th varying degrees of indignation, the constl- of the United States. tutional principles set forth in these Resolutions. 2. Resolved, That for any state legislature The replies of the States are particularly interest- to assume that authority would be— judiciary rather than the Icgislative is the proper Ist. Blending together legislative and judibody to pass on the const:tutionality of Congres- cial powers;

ing because of the general assertion that the ar sional acts. Many of the replies are given in 2d. Hazarding an interruption of the peace Elliot’s Debates, Vol. IV, p. 532-539. See, F. M. of the states by civil] discord, in case of a Anderson, “Contemporary Opinion of the Vir- diversity of opinions among the state legislaginia and Kentucky Resolutions”, American His- tyres: each state having, in that case, no

torical Review, Vol. V. resort, for vindicating its own opinions, but the strength of its own arm;

1. THE State oF RHOvE ISLAND AND 3d. Submitting most important questions PROVIDENCE PLANTATIONS TO VIRGINIA of law to less competent tribunals; and,

February, 1799 4th. An infraction of the Constitution of

Certain resolutions of the Legislature of the United States, expressed in plain terms. Virginia, passed on the 21st of December 3. Resolved, That, although, for the above last, being communicated to the Assembly,— _ reasons, this legislature, in their public ca-

1. Resolved, That, in the opinion of this pacity, do not feel themselves authorized to legislature, the second section of the third consider and decide on the constitutionality article of the Constitution of the United of the Sedition and Alien laws, (so called,) States, in these words,-to wit,—‘‘The judicial yet they are called upon, by the exigency of power shall extend to all cases arising under this occasion, to declare that, in their private the laws of the United States,’—vests in the opinions, these laws are within the powers Federal Courts, exclusively, and in the Su- delegated to Congress, and promotive of the preme Court of the United States, ultimately, welfare of the United States.

LAND Act oF 1800 185 4. Resolved, That the governor communi- That the state legislatures are not the cate these resolutions to the supreme execu- proper tribunals to determine the constitutive cf the state of Virginia, and at the same tionality of the laws of the general govern-

time express to him that this legislature ment; that the duty of such decision is cannot contemplate, without extreme concern properly and exclusively confided to the and regret, the many evil and fatal conse- judicial department. queacies which may flow from the very un- That, if the legislature of New Hampshire, warrantable resolutions aforesaid, of the for mere speculative purposes, were to exlegislature of Virginia, passed on the twenty- press an opinion on the acts of the general

first day of December last. government, commonly called ‘the Alien and

Sedition Bills”, that opinion would unreserv-

2. New Hampsuire RESOLUTION ON THE edly be, that those acts are constitutional, Vincinia AND KENTUCKY RESOLUTIONS and, in the present critical situation of our

aan country, highly expedient.

June 15, 1799 That the constitutionality and expediency The legislature of New Hampshire, having of the acts aforesaid have been very ably taken into consideration certain resolutions advocated and clearly demonstrated by many of the General Assembly of Virginia, dated citizens of the United States, more especially December 21, 1798; also certain resolutions by the minority of the Genera] Assembly of of the legislature of Kentucky, of the 10th Virginia. The legislature of New Hampshire,

of November 1798:— therefore, deem it unnecessary, by any train Resolved, That the legislature of New of arguments, to attempt further illustration

Hampshire unequivocally express a firm reso- of the propositions, the truth of which, it is lution to maintain and defend the Constitu- confidently believed, at this day, is very gention of the United States, and the Constitu- erally seen and acknowledged.

tion of this State, against every aggression, Which report, ... waS unanimously reeither foreign or domestic, and that they will ceived and adopted, one hundred and thirtysupport the government of the United States seven members being present. in all measures warranted by the former.

105. LAND ACT OF 1800 May 10, 1800 (U.S. Statutes at Large, Vol. II, p. 73 ff.) Sales under the Land Act of 1796 were disap- act providing for the sale of the lands of the pointingly slow; in order to attract settlers and United States, in the territory northwest dispose of the public domain the government of the Ohio. and above the mouth of Kenprovided for land purchases on cred.t. The result tucky river,” there shall be four land offices was somewhat unfortunate: the cred:t system en- , . ; . couraged speculation and made collections diffi- established in the said territory: one at cult. It was discontinued by the land act of 1820, Cincinnati... one at Chilicothe . . . one Doc. No. 122. See, P. J. Treat, The National Land at Marietta... and one at Steubenville. System, 1785-1820; R. T. Hill, The Public Do- ... Each of the said offices shall be under main and Democracy; B. W. Bond, The Civiliza- the direction of an officer, . . . who shall be

tion of the Old Northwest, ch. x. appointed by the President of the United

States, by and with the advice and consent An Act to amend the act intituled “An act of the Senate, ...

for providing for the sale of the lands of Sec. 3. That the surveyor-general shall the United States, in the territory north- cause the townships west of the Muskingum, west of the Ohio, and above the mouth of which by the above-mentioned act are di-

the Kentucky River.” rected to be sold in quarter townships, to be

Sec. 1. Be it enacted, That for the dis- subdivided into half sections of three hunposal of the lands of the United States, dred and twenty acres each. ... directed to be sold by the act, intituled “An Sec. 4. That the lands thus subdivided

186 DOCUMENTS OF AMERICAN HISTORY . . . Shall be offered for sale in sections and fourth part within four years after the day half sections, subdivided as before directed of sale.

at the following places and times, ... All 3. Interest, at the rate of six per cent. a lands, remaining unsold, at the closing of year from the day of sale shall be charged elther of the public sales, may be disposed upon each of the three last payments, ...

of at private sale by the registers of these 4. A discount at the rate of eight per respective land offices, in the manner herein cent., a year, shall be allowed on any of the

after prescribed; ... three last payments, which shall be paid Sec. 5. That no lands shall be sold by before the same shall become due, .. . virtue of this act, at either public or private 5. If the first payment of one fourth part sale, for less than two dollars per acre, and of the purchase money shall not be made payment may be made for the same by all within forty days after the sale, the deposit, purchasers, either in specie, or in evidences payment and fees, paid and made by the of the public debt of the United States, ... purchaser, shall be forfeited, and the lands and shall be made in the following man-_ shall ... be disposed of at private sale, ner, and under the following conditions, to on the same terms and conditions, and in

wit: the same manner as the other lands directed 1. At the time of purchase, every pur- by this act to be disposed of at private

chaser shall, exclusively of the fees here- sale: Provided, that the lands which shall after mentioned, pay six dollars for every have been sold at public sale, and which section, and three dollars for every half shall, on account of such failure of payment, section, he may have purchased, for survey- revert to the United States, shall not be ing expenses, and deposit one twentieth part sold at private sale, for a price Icss than of the amount of purchase money, to be the price that shall have been offered for forfeited, if within forty days one fourth the same at public sale... . part of the purchase money, including the Sec. 16. That each person who, before

said twentieth part, is not paid. the passing of this act, shall have erected

2. One fourth part of the purchase money ... a grist-mill or saw-mill upon any of shall be paid within forty days after the the lands herein directed to be sold, shall day of sale as aforesaid; another fourth part be entitled to the pre-emption of the sec-

shall be paid within two years; another tion... at the rate of two dollars per fourth part within three years; and another acre....

March 4, 1801 |

106. JEFFERSON’S FIRST INAUGURAL ADDRESS (Richardson, ed. Messages and Papers, Vol. I, p. 322)

This address is a classic exposition of democratic toward me, to declare a sincere conscious-

philosophy, memorable alike for its confession ess that the task is above my talents, and of faith and for its literary beauty. For a brilliant that I approach it with those anxious and but critical analysis, see H. Adams, History of awful presentiments which the greatness of the United States During the Administration of the charge and the weakness of my powers Thomas Jefferson, Vol. I, ch. vii. For Jefferson, . of, , see biowraphies by H.S. Randall, J. Parton, A.J. 80 justly inspire. A rising nation, spread Nock, P. L. Ford, D. S. Muzzey, G. Chinard, OVer a wide and fruitful land, traversing

F. W. Hirst, and J. T. Morse. all the seas with the rich productions of their industry, engaged in commerce with Friends and Fellow-Citizens: nations who feel power and forget right,

Called upon to undertake the duties of the advancing rapidly to destinies beyond the first executive office of our country, I avail reach of mortal eye—when I contemplate

myself of the presence of that portion of these transcendent objects, and see the my fellow-citizens which is here assembled honor, the happiness, and the hopes of this to express my grateful thanks for the favor beloved country committed to the issue ana with which they have been pleased to look the auspices of this day, I shrink from the

JEFFERSON’S First INAUGURAL ADDRESS 187 contemplation, and humble myself before brethren of the same principle. We are all the magnitude of the undertaking. Utterly, Republicans, we are all Iederalists. If there indeed, should I despair did not the presence be any among us who would wish to disof many whom I here see remind me that solve this Union or to change its republican in the other high authorities provided by form, let them stand undisturbed as monu-

our Constitution I shall find resources of ments of the safety with which error of

wisdom, of virtue, and of zeal on which to opinion may be tolerated where reason 1s rely under all difficulties. To you, then, left free to combat it. I know, indeed, that gentlemen, who are charged with the sover- some honest men fear that a republican goveign functions of legislation, and to those ernment can not be strong, that this Govassociated with you, I look with encourage- ernment is not strong enough; but would ment for that guidance and support which the honest patriot, in the full tide of sucmay enable us to steer with safety the ves- cessful experiment, abandon a government sel in which we are all embarked amidst the which has so far kept us free and firm on conflicting elements of a troubled world. the theoretic and visionary fear that this During the contest of opinion through Government, the world’s best hope, may which we have passed the animation of dis- by possibility want energy to preserve itself?

cussions and of exertions has sometimes TI trust not. I believe this, on the contrary, worn an aspect which might impose on the strongest Government on earth. I bestrangers unused to think freely and to speak lieve it the only one where every man, at and to write what they think; but this being the call of the law, would fly to the standard now decided by the voice of the nation, an- of the law, and would mect invasions of the nounced according to the rules of the Con- public order as his own personal concern.

stitution, all will, of course, arrange them- Sometimes it is said that man can not be selves under the will of the law, and unite trusted with the government of himself. Can in common efforts for the common good. he, then, be trusted with the government All, too, will bear in mind this sacred princi- of others? Or have we found angels in the ple, that though the will of the majority is forms of kings to govern hime Let history in all cases to prevail, that will to be rightful answer this question. must be reasonable; that the minority pos- Let us, then, with courage and confidence sess their equal rights, which equal law must pursue our own Federal and Republican protect, and to violate would be oppression. principles, our attachment to union and Let us, then, fellow-citizens, unite with one representative government. Kindly separated heart and one mind. Let us restore to social by nature and a wide ocean from the exintercourse that harmony and affection with- terminating havoc of one quarter of the out which liberty and even life itself are but globe; too high-minded to endure the degdreary things. And let us reflect that, having radations of the others; possessing a chosen banished from our land that religious intoler- country, with room enough for our descendance under which mankind so long bled and’ ants to the thousandth and thousandth gen-

suffered, we have yet gained little if we eration; entertaining a due sense of our countenance a political intolerance as des- equal right to the use of our own faculties, potic, as wicked, and capable of as bilter to the acquisitions of our own industry, to and bloody persecutions. During the throes honor and confidence from our fellowand convulsions of the ancient world, during citizens, resulting not from birth, but from

the agonizing spasms of infuriated man, our actions and their sense of them; enseeking through blood and slaughter his lightened by a benign religion, professed, inlong-lost liberty, it was not wonderful that deed, and practiced in various forms, yet the agitation of the billows should reach all of them inculcating honesty, truth, tem-

even this distant and peaceful shore; perance, gratitude, and the love of man;

that this should be more felt and feared by acknowledging and adoring an _ overruling some and less by others, and should divide Providence, which by all its dispensations opinions as to measures of safety. But every proves that it delights in the happiness of difference of opinion is not a difference of man here and his greater happiness hereprinciple. We have called by different names after—with all these blessings, what more is

188 DOCUMENTS OF AMERICAN History necessary to make us a happy and a prosper- of person under the protection of the habeas

ous people? Still one thing more, fellow- corpus, and trial by juries impartially secitizens—a wise and frugal Government, lected. These principles form the bright conwhich shall restrain men from injuring one © stellation which has gone before us and another, shall leave them otherwise free to guided our steps through an age of revoluregulate their own pursuits of industry and tion and reformation. The wisdom of our improvement, and shall not take from the sages and blood of our heroes have been mouth of labor the bread it has earned. devoted to their attainment. They should be This is the sum of good government, and the creed of our political faith, the text of this is necessary to close the circle of our civic instruction, the touchstone by which

felicities. to try the services of those we trust; and

About to enter, fellow-citizens, on the should we wander from them in moments exercise of duties which comprehend every- of error or of alarm, let us hasten to rething dear and valuable to you, it is proper trace our steps and to regain the road which you should understand what I deem the es- alone leads to peace, liberty, and safety. sential principles of our Government, and I repair, then, fellow-citizens, to the post _ consequently those which ought to shape its you have assigned me. With experience Administration. | will compress them within enough in subordinate offices to have seen the narrowest compass they will bear, stating the difficulties of this the greatest of all, the general principle, but not all its limita- I have learnt to expect that it will rarely tions. Equal and exact justice to all men, of — fall to the lot of imperfect man to retire

whatever state or persuasion, religious or from this station with the reputation and political; peace, commerce, and honest the favor which bring him into it. Without friendship with all nations, entangling al- pretensions to that high confidence you reliances with none; the support of the State posed in our first and greatest revolutionary governments in all their rights, as the most character, whose preéminent services had competent administrations for our domestic entitled him to the first place in his counconcerns and the surest bulwarks against try’s love and destined for him the fairest antirepublican tendencies; the preservation page in the volume of faithful history, I of the General Government in its whole ask so much confidence only as may give constitutional vigor, as the sheet anchor of firmness and effect to the legal administraour peace at home and safety abroad; a tion of your affairs. I shall often go wrong jealous care of the right of election by the through defect of judgment. When right, people—a mild and safe corrective of abuses I shall often be thought wrong by those which are lopped by the sword of revolu- whose positions will not command a view of tion where peaceable remedies are unpro- the whole ground. I ask your indulgence for vided: absolute acquiescence in the decisions my own errors, which will never be intenof the majority, the vital principle of re- tional, and your support against the errors

publics, from which is no appeal but to of others, who may condemn what they force, the vital principle and immediate would not if seen in all its parts. The apparent of despotism; a _ well-disciplined probation implied by your suffrage is a militia, our best reliance in peace and for great consolation to me for the past, and the first moments of war, till regulars may my future solicitude will be to retain the relieve them; the supremacy of the civil good opinion of those who have bestowed over the military authority; economy in the it in advance, to conciliate that of others public expense, that labor may be lightly by doing them all the good in my power, burthencd; the honest payment of our and to be instrumental to the happiness and debts and sacred preservation of the public freedom of all. faith; encouragement of agriculture, and of Relying, then, on the patronage of your commerce as its handmaid; the diffusion of | good will, I advance with obedience to the information and arraignment of all abuses work, ready to retire from it whenever you at the bar of the public reason; freedom of become sensible how mucn better choice it religion; freedom of the press, and freedom is in your power to make. And may that

JEFFERSON ON THE IMPORTANCE OF NEW ORLEANS 189 Infinite Power which rules the destinies of best, and give them a favorable issue for the universe lead our councils to what is your peace and prosperity.

107. JEFFERSON ON THE IMPORTANCE OF NEW ORLEANS Letter to Robert R. Livingston April 18, 1802 (The Writings of Thomas Jefferson, ed. by H. E. Bergh, Vol. X, p. 311 ff.) This famous letter to the American minister to not, perhaps, be very long before some cirFrance anticipated the formal instructions of cumstance might arise, which might make

May 1 requesting Livingston to ascertain the the cession of it to us the price of someterms upon which | France would sell New Or- thing of more worth to her. Not so can it the same time Jefferson was writing to our min- ever be in the hands of France: the imister in England, Rufus King, that we would petuosity of her temper, the Chery and rest“marry ourselves to the British Acet and nation” lessness of her character, placed in a point rather than see France control the Mississippiand Of eternal friction with us, and our charthe Gulf. For reference see Doc. No. 108. acter, which, though quiet and loving peace

leans and the Floridas to the United States. At . .

, , and the pursuit of wealth, is high-minded

Washington, April 18, 1802. despising wealth in competition with insult

... The cession of Louisiana and the or injury, enterprising and energetic as any

Floridas by Spain to France, works most nation on earth; these circumstances render sorely on the United States. On this subject it impossible that France and the United the Secretary of State has written to you States can continue long friends, when they

fully, yet I cannot forbear recurring to it meet in so irritable a position. They, as personally, so deep is the impression it well as we, must be blind if they do not see makes on my mind. It completely reverses this; and we must be very improvident if all the political relations of the United we do not begin to make arrangements on States, and wil] form a new epoch in our that hypothesis. The day that France takes political course. Of all nations of any con- possession of New Orleans, fixes the sensideration, France is the one which, hitherto, tence which is to restrain her forever within

has offered the fewest points on which we her low-water mark. It seals the union of could have any conflict of right, and the two nations, who, in conjunction, can mainmost points of a communion of interests. tain exclusive possession of the ocean. From From these causes, we have ever looked to that moment, we must marry ourselves to her as our natural friend, as one with which the British fleet and nation. We must turn

we could never have an occasion of dif- all our attention to a maritine force, for ference. Her growth, therefore, we viewed as which our resources place us on very high our own, her misfortunes ours. There is on ground; and having formed and connected

the globe one single spot, the possessor of together a power which may render reénwhich is our natural and habitual enemy. It forcement of her settlements here impossible is New Orleans, through which the produce to France, make the first cannon which shall of three-eighths of our territory must pass be fired in Europe the signal for the tearing

to market, and from its fertility it will ere up of any settlement she may have made, long yield more than half of our whole prod- and for holding the two continents of Ameruce, and contain more than half of our inhabi- — ica in sequestration for the common purposes

tants. France, placing herself in that door, of the United British and American nations. assumes to us the attitude of defiance. Spain This is not a state of th:ngs we seek or

might have retained it quietly for years. desire... .

Her pacific dispositions. her feeble state, If France considers Louisiana, however, as would induce her to increase our facilities indispensable for her views, she might perthere, so that her possession of the place haps be willing to look about for arrangewould hardly be felt by us, and it would ments which might reconcile it to our inter-

190 DocUMENTS OF AMERICAN HisToRY ests. If anything could do this, it would _ siderations, on every proper occasion, with

be the ceding to us the island of New the government where you are. They are Orleans and the Floridas. This would cer- such as must have effect, if you can find tainly, in a great degree, remove the causes means of producing thorough reflection on

of jarring and irritation between us, and them by that government. ... Every eye

perhaps for such a length of time, as might in the United States is now fixed on the afproduce other means of making the measure {airs of Louisiana. Perhaps nothing since the permanently conciliatory to our interests revolutionary war, has produced more unand friendships. It would, at any rate, relieve easy sensations through the body of the naus from the necessity of taking immediate _ tion. Notwithstanding temporary bickerings measures for countervailing such an opera- have taken place with France, she has still tioa by arrangements in another quarter. But a strong hold on the affections of our citizens still we should consider New Orleans and the — generally. I have thought it not amiss, by way

Floridas as no equivalent for the risk of a of supplement to the letters of the Secretary

quarrel with France, produced by her of State, to write you this private one, to

vicinage. impress you with the importance we affix to I have no doubt you have urged these con- this transaction. . . .

108. THE CESSION OF LOUISIANA April 30, 1803 (Malloy, ed. Treaties, Conventions, etc., Vol. I, p. 508 ff.) By the Treaty of Fontainebleau of 1762, France 1st October, 1800 between the First Consul ceded Louisiana west of the Mississippi to Spain. of the French Republic and his Catholic See Shepherd, “Cession of Louisiana to Spain”, Majesty, it was agreed as follows: “His

. - oo ee ‘ee x eS 439. " ae oot Catholic Majesty promises and engages on

ey OF Obsback Maeronso, Spain ceded tals terhis part, to cede to the French Republic, six ritory to France. This substitution of a . . powerful for a weak neighbour along the Mis- months al ter the full and entire execution of

sissippi and at New Orleans caused consterna- the conditions and stipulations herein relation in the West and to Jefferson and his ad- tive to his royal highness the duke of Parma, visers. Congress appropriated $2,000,000 for the the colony or province of Louisiana, with the purchase of New Orleans, and Jefferson dis- same extent that it now has in the hands of patched Monroe to co-operate with Livingston Spain, and that it had when France possessed to negotiate the purchase. For reasons primarily jt; and such as it should be after the treaties concerned with the critical military situation on subsequently entered into between Spain and the Continent, Napoleon decided to sell to the other states.” And whereas, in pursuance of cession was accordingly made. By a convention the ‘Treaty, and particularly of the third arti-

United States the whole of Louisiana, and the . . . of April 30, 1803, the United States agreed to pay cle, the French Republic has an incontestible

sixty million francs for Louisiana. The most title to the domain and to the possession of

thorough history of the negotiations is, H. Adams, the said territory:—The First Consul of the

History of the United States, Vol. I, chs. xiv-xvii, French Republic desiring to give to the Vol. II, chs. i-vi. See also, E. W. Lyon, Louisiana United States a strong proof of his friendin French Diplomacy, 1759-1804; A.P. Whitaker, ship, doth hereby cede to the said United The M ississip pi Question, 1795-1803; J. K. Hos- States, in the name of the French Republic,

mer, The Lousiana Purchase; S. F. Bemis, - forever and in full sovereignty, the said terAmerican Secretaries of Boundary, State, Vol. II, P. Ht. ritory with all its rights and appurtenances, For the Louisiana T.9M. Marshall, History of the Western Boundary of the Louisi- 8 fully and in the same manner as they have ana Purchase. For the constitutional questions, been acquired by the French Republic, in see American Insurance Co. v. Canter, Doc. No. virtue of the above-mentioned Treaty, con134; and E. S. Brown, Constitutional History of — cluded with his Catholic Majesty.

the wouisiana Purchase. Art. II. In the cession made by the pre-

ceding article are included the adjacent isArt. I. Whereas, by the article the third lands belonging to Louisiana, all public lots of the treaty concluded at St. Idelfonso, the and squares, vacant lands, and all public

MaRBURY V. MADISON 191 buildings, fortifications, barracks, and other erty, and the Religion which they pro-

edifices which are not private property— fess....

The Archives, papers, and documents, rela- Art. VII. It has been agreed between the tive to the domain and sovereignty of Louisi- contracting parties, that the French ships ana, and its dependencies, will be left in the coming directly from France or any of her possession of the Commissaries of the United colonies, loaded only with the produce and States, and copies will be afterwards given manufactures of France or her said Colonies; in due form to the Magistrates and Muni- and the ships of Spain coming directly irom cipal officers, of such of the said papers Spain or any of her colonies, loaded only with

and documents as may be necessary to the produce or manufactures of Spain or her

them. Colonies, shall be admitted during the space

Arr. ILL. The inhabitants of the ceded ter- of twelve years in the ports of New Orleans, ritory shall be incorporated in the Union of and in all other legal ports of entry within the United States, and admitted as soon as_ the ceded territory, in the same manner as possible, according to the principles of the the ships of the United States coming dlFederal Constitution, to the enjoyment of all rectly from France or Spain, or any of their the rights, advantages and immunities of colonies, without being subject to any other citizens of the United States; and in the mean or greater duty on merchandize, or other or time they shall be maintained and protected greater tonnage than that paid by the citizens in the free enjoyment of their liberty, prop- of the United States....

109. MARBURY v. MADISON 1 Cranch, 137 1803

Original proceeding for mandamus. Under the MarsHati, C. J... . The peculiar deliauthority of the Judiciary Act of February 27, cacy of this case, the novelty of some of its 1801, the President appointed one William circumstances, and the real difficulty attendMarbury justice of the peace; because of the ing the points which occur in it, require a negligence of Secretary of State Marshall the complete exposition of the principles on commission was not delivered, and President Jef- hich th be 3 by th . ferson instructed his Secretary of State Madison WC the opinion to be given by the court 1s

not to deliver the commission. Marbury sued for founded. . . . .

a writ of mandamus requiring Madison to de- In the order in which the court has viewed liver his commission. Marshall’s opinion embraced this subject, the following questions have two questions: the ethics of withholding the com- been considered and decided:

mission, and the right of the Supreme Court to Ist. Has the applicant a right to the com-

issue a writ of mandamus. On the first question mission he demands? Marshall declared, in what is generally considered 2dly. If he has a right, and that right has obiter dicta, that the President had no right to been violated, do the laws of his country afwithhold Marbury’s commission. On the second, ford him a remedv?

Marshall decided that the provision of the Judi- y ciary Act of 1789 authorizing the Supreme Court 3dly. If they do afford him a remedy, is it to issue a writ of mandamus, was contrary to the 4 mandamus issuing from this court? . . . Constitution and therefore void. This is the first The first object of enquiry is,

case in which the Supreme Court held a law of Has the applicant a right to the commisCongress void: not until the Dred Scott decision sion he demands? .. . did the Court hold another act of Congress void. It is therefore decidedly the opinion of the On this famous case see, A. Beveridge, Life of court, that when a commission has been John M arsh all, Vol. II, ch. My E. 5. Corwin, signed by the President, the appointment is

The Doctrine of Judicial Review; A. C. Mc- ar

Laughlin. The Courts, The Constitution and made; and that the COMMISSION 1S complete,

Parties, ch. i; L. B. Boudin, Government by when the seal of the United States has been Judiciary, Vol. I, ch. x; C. Warren, The Supreme affixed to it by the secretary of state... . Court in United States History, (1928 ed.) Vol. Mr. Marbury, then, since his commission

I, ch. v. was signed by the President, and sealed by

192 DOCUMENTS OF AMERICAN HtisToRy the secretary of state, was appointed; and as It is, then, the opinion of the Court, the law creating the office, gave the officer a Ist. That by signing the commission of right to hold for five years, independent of Mr. Marbury, the president of the United the executive, the appointment was not rev- States appointed him a justice of peace for ocable; but vested in the officer legal rights, the county of Washington in the district of which are protected by the laws of his coun- Columbia: and that the seal of the United

try. States, affixed thereto by the secretary of To withhold his commission, therefore, is state, is conclusive testimony of the verity of an act deemed by the court not warranted by _ the signature, and of the completion of the

‘law, but violative of a vested legal right. appo:ntment; and that the appointment con2. This brings us to the second enquiry: ferred on him a legal right to the office for

which is, the space of five years. If he has a right, and that right has been 2dly. That, having this legal title to the violated, do the laws of his country afford office. he has a consequent right to the com-

him a remedy? ... mission; a refusal to deliver which, is a p!ain The government of the United States has violation of that right, for which the laws of been emphatically termed a government of his country afford him a remedy. laws, and not of men. It will certainly cease It remains to be enquired whether,

to deserve this high appellation, if the laws 3dly. He is entitled to the remedy for furnish no remedy for the violation of a which he applies. This depends on

vested legal right. ist. The nature of the writ applied for, and If this obloquy is to be cast on the juris- 2dly. The power of this court. ...

prudence of our country, it must arise from This, then, is a plain case for a mandamus.

the peculiar character of the case. ... either to deliver the commission, or a copy

By the constitution of the United States, of it from the record; and it only remains tu the President is invested with certain impor- be enquired, tant political powers, in the exercise of which Whether it can issue from this court.

he is to use his own discretion, and is ac- The act to establish the judicial courts of countable only to his country in his political the United States authorizes the supreme character, and to his own conscience. To aid court “‘to issue writs of mandamus, in cases him in the performance of these duties, he is warranted by the principles and usages of authorized to appoint certain officers, who law, to any courts appointed, or persons h)ldact by his authority and in conformity with ing office, under the authority of the Umted

his orders. States.”

In such cases, their acts are his acts; and The secretary of state, being a person holdwhatever opinion may be entertained of the ing an office under the authority of the

manner in which executive discretion may be United States is precisely within the letter used, still there exists, and can exist, no of the description; and if this court is not aupower to control that discretion. The sub- thorized to issue a writ of mandamus to such

jects are political... . an officer, it must be because the law is un-

The conclusion from this reasoning is. that constitutional, and therefore absolutely inwhere the heads of departments are the po- capable of conferring the authority and as-: litical or confidential agents of the executive, signing the duties which its words purport to merely to execute the will of the President, confer and assign. or rather to act in cases in which the execu- The constitution vests the whole judicial tive possesses a constitutional or legal discre- power of the United States in one supreme tion, nothing can be morc perfectly clear court, and such inferior courts as congress than that their acts are only politically ex- shall, from time to time, ordain and estabaminable. But where a specific duty is as- lish. This power is expressly extended to all signed by law, and individual rights depend cases arising under the laws of the United upon the performance of that duty, it seems States; and consequently, in some form, may equally clear that the individual who con- be exercised over the present case; because siders himself injured, has a right to resort to the right claimed is given by a law of the

the laws of his country for a remedy.... United States.

MARBURY V. MADISON 193 In the distribution of this power it is de- erected. The exercise of this original right is clared, that “the supreme court shall have a very great exertion, nor can it nor ought it original jurisdiction in all cases affecting am- to be frequently repeated. The princip‘es bassadors, other public ministers and consuls, therefore so established are deemed fundaand those in which a state shall be a party. mental. And as the authority from which In all other cases, the supreme court shall they proceed is supreme and can seldom act,

have appellate jurisdiction.” ... they are designed to be permanent.

If it had been intended to leave it in the This original and supreme will organizes

discretion of the legislature to apportion the the government, and assigns to different dejudicial power between the supreme and in- partments their respective powers. It may ferior courts according to the will of that either stop here or establish certain limits not body, it would certainly have been useless to tc be transcended by those departments. have proceeded further than to have defined The government of the United States 1s the judicial power, and the tribunals in which of the latter description. The powers of the it should be vested. The subsequent part of legislature are defined and limited; and that the section is mere surplusage, is entirely those limits may not be mistaken or forgolwithout meaning, if such is to be the con- _ ten, the constitution is written. To what purstruction. If congress remains at liberty to pose are powers lim:ted, and to what purpose give this court appellate jurisdiction, where is that limitation committed to writing, i the constitution has declared their jurisdic- these limits may, at any tume, be passed by tion shall be original; and original jurisdic- those intended to be restrained? The listion where the constitution has declared it tinction between a government with limited shall be appellate; the distribution of jurisdic- and unlimited powers is abolished if those tion, made in the constitution, is form with- limits do not confine the persons on whom

out substance. they are imposed and if acts prohibited and Affirmative words are often, in their op- acts allowed are of equal obligation. It is a eration, negative of other objects than those proposition too plain to be contcsted, that affirmed: and in this case, a negative or ex- the constitution controls any legislative act clusive sense must be given to them or they repugnant to it; or, that the legislature may

have no operation at all. alter the constitution by an ordinary act.

It cannot be presumed, that any clause in Between these alternatives there is no midthe constitution is intended to be without dle ground. The constitution is either a sueffect: and therefore such a construction is perior paramount law, unchangeable by inadmissible. unless the words require it. ... ordinary means, or it is on a level with ordiThe authority, therefore, given to the su- nary legislative acts, and, like other acts, 1s preme court, by the act establishing the ju- alterable when the legislature shall please to dicial courts of the United States, to issue alter it. writs of mandamus to public officers, appears If the former part of the alternative be not to be warranted by the constitution; and true, then a legislative act contrary to the it becomes necessary to inquire whether a constitution is not law; if the latter part be jurisdiction so conferred can be exercised. true, then written constitutions are absurd The question whether an act repugnant to attempts, on the part of the people, to limit the constitution can become the law of the a power in its own nature illimitable. land, is a question deeply interesting to the Certainly all those who have framed writ: United States; but, happily not of an in- ten constitutions contemplate them as formtricacy proportioned to its interest. IL seems ing the fundamental and paramount law of only necessary to recognize certain principles the nation, and consequently the theory of supposed to have been long and well estab- every such government must be that an act

lished, to decide it. of the legislature repugnant to the ConstituThat the peop!e have an original right to _ tion is void.

establish for their future government such This theory is essentially attached to a principles as, in their opinion, shall most con- written constitution, and is consequently to.

duce to their own happiness, is the basis on be considered, by this court as one of the which the whole American fabric has been fundamental principles of our society. It is

194 DocuMENTS oF AMERICAN History not, therefore, to be lost sight of in the fur- and declaring that those limits may be passed

ther consideration of this subject. at pleasure.

If an act of the legislature repugnant to That it thus reduces to nothing what we the constitution is void, does it, notwith- have deemed the greatest Improvement on standing its invalidity, bind the courts and political institutions, a written constitution, oblige them to give it effect? Or, in other would of itself be sufficient, in America, words, though it be not law, does it consti- where written constitutions have been viewed

tute a rule as operative as if it was a law? with so much reverence, for rejecting the This would be to overthrow in fact what was construction. But the peculiar expressions of

established in theory, and would seem, at the constitution of the United States furnish first view, an absurdity too gross to be in- additional arguments in favor of its rejection. sisted on. It shall, however, receive a more The judicial power of the United States is

attentive consideration. extended to all cases arising under the con-

It is emphatically the province and duty © stitution. of the judicial department to say what the Could it be the intention of those who gave law is. Those who apply the rule to particu- this power to say that in using it the constilar cases must of necessity expound and in- tution should not be looked into? That a terpret that rule. If two laws conflict with case arising under the constitution should be each other, the courts must decide on the op-_ decided _ without examining the instrument

eration of each. under which it arises?

So if a law be in opposition to the consti- This is too extravagant to be maintained. tution; if both the law and the constitution In some cases, then, the constitution must apply to a particular case, so that the court be looked into by the judges. And if they can must either decide that case conformably to open it at all, what part of it are they forthe law, disregarding the constitution, or con- _bidden to read or to obey?

tormably to the constitution, disregarding the There are many other parts of the constilaw, the court must determine which of these tution which serve to illustrate this subject.

conflicting rules governs the case. This is of It is declared that ‘‘no tax or duty shall be |

the very essence of judicial duty. laid on articles exported from any state.”

If, then, the courts are to regard the con- Suppose a duty on the export of cotton, of stitution, and the constitution is superior to tobacco, or of flour, and a suit instituted to any ordinary act of the legislature, the con- recover it, ought judgment to be rendered in stitution, and not such ordinary act, must such a case? Ought the judges to close their

ply. law

govern the case to which they both ap- eyes on the constitution, and only see the Those, then, who controvert the principle The constitution declares ‘that no bill of

that the constitution is to be considered in attainder or ex post facto law shall be court as a paraniount law, are reduced to the __ passed.”’ If, however, such a bill should be

necessity of maintaining that courts must passed, and a person should be prosecuted close their eyes on the constitution and see under it, must the court condemn to death

only the law. those victims whom the constitution en-

This doctrine would subvert the very deavors to preserve? foundation of all written constitutions. It ‘No person,” says the constitution, “shall

would declare that an act which, according be convicted of treason unless on the testito the principles and theory of our govern- mony of two witnesses to the same overt act, ment, is entirely void, is yet, in practice, or on confession in open court.” completely obligatory. It would declare that Here the language of the constitution is if the legislature shall do what is expressly addressed especially to the courts. It preforbidden, such act, notwithstanding the ex- scribes, directly for them, a rule of evidence press prohibition, is in reality effectual. It not to be departed from. If the legislature would be giving to the legislature a practical should change that rule, and declare one and real omnipotence with the same breath witness, or a confession out of court, suffiwhich professes to restrict their powers cient for conviction, must the constitutional within narrow limits. It is prescribing limits principle yield to the legislative act?

JEFFERSON’S MESSAGE ON THE BURR CONSPIRACY 195 From these, and many other selections States.” Why does a judge swear to discharge which might be made, it is apparent that the his duties agrecably to the constitution of framers of the constitution contemplated the United States, if that constitution forms that instrument as a rule for the government no rule for his government?—if it is closed of courts, as well as of the Icgislature. Why upon him, and cannot be inspected by

otherwise does it direct the judges to take an hime | oath to support it? This oath certainly ap- If such be the real state of things, this 1S

plies in an especial manner to their conduct worse than solemn mockery. To prescribe, or in their official character. How immoral to to take this oath, becomes equally a crime. impose it on them if they were to be used as It is also not entirely unworthy of observa-

the instruments, and the knowing instru- tion, that in declaring what shall be the suments, for violating what they swear to sup- preme law of the land, the constitution itself

port! | is first mentioned, and not the laws of the The oath of office, too, imposed by the United States generally, but those only which legislature, is completely demonstrative of shall be made in pursuance of the constituthe legislative opinion on this subject. It isin tion, have that rank. these words: ‘“‘I do solemnly swear that I will Thus, the particular phraseology of the

administer justice without respect to per- constitution of the United States confirms sons, and do equal right to the poor and to and strengthens the principle, supposed to the rich; and that I will faithfully and im- be essential to all written constitutions, that partially discharge all the duties incumbent a law repugnant to the constitution is void, on me as ————, according to the best of and that courts, as well as other departments, my abilities and understanding, agreeably to are bound by that instrument.

the constitulion and laws of the United [Mandamus denied. |

110. JEFFERSON’S MESSAGE ON THE BURR CONSPIRACY January 22, 1807 (Richardson, ed. Messages and Papers, Vol. I, p. 412 ff.) On November 27, 1806, Jefferson had issued a and safety of the Union, and a military exproclamation warning citizens of the Burr con- pedition planned by them against the terrispiracy. The message below contains a more tories of a power in amity with the United detailed account of the information upon which States, with the measures I have pursued for this proclamation was issued. Burr had sur- suppressing the same... . rendered to the acting Governor of Louisiana C bi vn the lat rs b Territory January 17, 1807, but subsequently at- ome time in the latter part ol september tempted to escape, only to be apprchended and I received intimations that designs were in sent on to Richmond for trial on the charge of agitation in the Western country unlawful treason. Two different interpretations of the Burr and unfriendly to the peace of the Union, conspiracy are in H. Adams, History of the and that the prime mover in these was Aaron United States, Vol. III, chs. x—xiv, xix, and W. F. Burr, heretofore distinguished by the favor McCaleb, Aaron Burr Conspiracy. An account of his country. The grounds of these intima-

of the trial is in A. Beveridge, Lije of John tions being inconclusive, the objects uncery Penton Vian ne chs. virix, For Burr, see tain, and the fidelity of that country known

» Parton, “anon OU to be firm, the only measure taken was to JANUARY 22, 1807. urge the informants to use their best en-

To the Senate and House of Representatives deavors to get further insight into the designs

of the United States: and proceedings of the suspected persons and

Agreeably to the request of the House of | to communicate them to me. Representatives communicated in their reso- It was not till the latter part of October lution of the 16th instant, I proceed to state, that the objects of the conspiracy began to under the reserve therein expressed, informa- be perceived, but still so blended and intion received touching an illegal combina- volved in mystery that nothing distinct could tion of private individuals against the peace be singled out for pursuit. In this state of

196 DocUMENTS oF AMERICAN History uncertainty .. . I thought it best to send to Mountains; the other an attack on Mexico. the scene where these things were principally A third object was provided, merely ostensiin transaction a person in whose integrity, bie, to wit, the settlement of a pretended purunderstanding, and discretion entire confi- chase of a tract of country on the Washita dence could be reposed, with instructions to claimed by a Baron Bastrop. This was to

investigate the plots going on,...and... serve as the pretext for all his preparations, to do on the spot whatever should be necessary an allurement for such followers as really to discover the designs of the conspirators, ar- wished to acquire settlements in that country rest their means, bring their persons to punish- and a cover under which to retreat in the ment, and to call out the force of the country event of a final discomfiture of both branches Lo suppress any unlawful enterprise in which of his real design.

it should be found they were engaged. By He found at once that the attachment of this time it was known that many boats were the Western country to the present Union under preparation, stores of provisions col- was not to be shaken; that its dissolution lecting, and an unusual number of suspicious could not be effected with the consent of its characters in motion on the Ohio and its inhabitants, and that his resources were inwaters. Besides dispatching the confidential adequate as yet to effect it by force. He took agent to that quarter, orders were at the his course then at once, determined to seize same time sent to the governors of the Or- on New Orleans, plunder the bank there, posleans and Mississippi Territories and to the sess himself of the military and naval stores, commanders of the land and naval forces and proceed on his expedition to Mexico, there to be on their guard against surprise and to this object all his means and preparaand in constant readiness to resist any enter- tions were now directed. He collected from prise which might be attempted on the ves- all the quarters where himself or his agents sels, posts, or other objects under their care; possessed influence all the ardent, restless, and on the 8th of November instructions desperate, and disaffected persons who were were forwarded to General Wilkinson to ready for any enterprise analogous to their hasten an accommodation with the Spanish characters. He seduced good and well-meancommandant on the Sabine, and as soon as __ ing citizens, some by assurances that he posthat was effected to fall back with his prin- sessed the confidence of the Government and cipal force to the hither bank of the Missis- was acting under its secret patronage, a presippi for the defense of the interesting points tense which procured some credit from the on that river. By a letter received from that state of our differences with Spain, and others

officer on the 25th of November, we learnt by offers of land in Bastrop’s claim on the

that a confidential agent of Aaron Burr had Washita.... been deputed to him with communications, . .. surmises have been hazarded that partly written in cipher and partly oral, ex- this enterprise is to receive aid from certain plaining his designs, exaggerating his re- foreign powers; but these surmises are withsources, and making such offers of cmolument out proof or probability. .. . and command to engage him and the army By letters from General Wilkinson of the in his unlawful enterprise as he had flattered 14th and 18th of December, which came te himself would be successful. The General, hand two days after the date of the resolu.. . Immediately dispatched a trusty officer tion of the House of Representatives— . . ,

to me with information of what had _ I received the important affidavit a copy of

passed, .. . which I now communicate, with extracts of

The General’s Ictter, .. . and some other so much of the letters as comes within the information received a few days earlier, when scope of the resolution. By these it will be brought together developed Burr’s general de- seen that of three of the principal emissaries signs, . . . It appeared that he contemplated of Mr. Burr whom the General had caused to two distinct objects, which might be carried be apprehended, one had been liberated by on either jointly or separately, and either the habeas corpus, and two others, being those one or the other first, as circumstances should particularly employed in the endeavor to direct. One of these was the severance of the corrupt the general and army of the United

Union of these States by the Alleghany States, have been embarked by him for ports

Act to PRoHIBIT THE IMPORTATION OF SLAVES 197 in the Atlantic States, probably on the con- days, the means of pursuing a sounder course sideration that an impartial trial could not of proceedings here than clsewhere, and the

be expected during the present agitations of aid of the Executive means, should the New Orleans, and that that city was not as judges have occasion to use them, render it yet a safe place for confinement. As soon as equally desirable for the criminals as for the these persons shall arrive they will be de- public that, being already removed from the livered to the custody of the law and left to place where they were first apprehended, the

such course of trial, both as to place and _ first regular arrest should take place here, process, as its functionaries may direct. The and the course of proccedings receive here presence of the highest judicial authorities, its proper direction.

to be assembled at this place within a few TH: JEFFERSON. 111. ACT TO PROHIBIT THE IMPORTATION OF SLAVES March 2, 1807 (U.S. Statutes at Large, Vol. II, p. 426 ff.)

Article I, section 9 of the Constitution provided prepare any ship or vessel, in any port or that “the importation of such persons as any of place within the jurisdiction of the United

Soe ttt ced by the Conmvoss prior & een States, nor shall cause any ship or vessel to 1808. . . .” In his Sixth Annual Message, Decem- sau rom any port or place within the same, ber 2, 1806 (Richardson, Vol. I, p. 405 ff.) Jef- °° the purpose of procuring any negro, mu-

ferson wrote, “I congratulate you, {ellow- latto, or person of colour, from any foreign

citizens, on the approach of the period at which kingdom, place, or country, to be transported you may interpose your aulhority constitutionally tO any port or place whatsoever within the to withdraw the citizens of the United States from jurisdiction of the United States, to be held, all further participation in those violations of sold, or disposed of as slaves, or to be held human rights which have been so long continued to service or labour: and if any ship or ves-

on the unoffending inhabitants of Africa.” Bills go) shall be so fitted out for the purpose

to prohibit the importation of slaves were J¢ pecaid or shall be caused to sail so as

promptly introduced into the House and the y “ » Senate. See W. E. B. Du Bois, Suppression of the aforesaid, every such ship or vessel, her African Slave Trade; M.S. Locke, Anti-Slavery tackle, apparel, and furniture, shall be forin America, 1619-1808; H. Wilson, Rise and Fall feited to the United States, and shall be lia-

of the Slave Power in America, Vol. I. ble to be seized, prosecuted, and condemned

in any of the circuit courts or district courts,

An Act to prohibit the importation of for the district where the said ship or vessel Slaves into any port or place within the juris- may be found or seized... . diction of the United States, from and after Sec. 4. If any citizen or citizens of the the first day of January, in the year of our United States, or any person resident within Lord one thousand eight hundred and eight. the jurisdiction of the same, shall, from and

Be it enacted, That from and after the after the first day of January, one thousand first day of January, one thousand eight hun- eight hundred and eight, take on board, redred and eight, it shall not be lawful to im- ceive or transport from any of the coasts or port or bring into the United States or the kingdoms of Africa, or from any other forterritories thereof from any foreign kingdom, eign kingdom, place, or country, any negro, place, or country, any negro, mulatto, or per- mulatto, or person of colour in any ship or son of colour, as a slave, or to be held to vessel, for the purpose of selling them in any

service or labour. port or place within the jurisdiction of the Sec. 2. That no citizen of the United United States as slaves, or to be held to servStates, or any other person, shall, from and ice or labour, or shall be in any ways aiding after the first day of January, in the year or abetting therein, such citizen or citizens,

of our Lord one thousand eight hundred and __ or person, shall severally forfeit and pay five eight, for himself, or themselves, or any other thousand dollars, one moiety thereof to the

person whatsoever, either as master, factor, use of any person or persons who shall sue or owner, build, fit, equip, load or to otherwise for and prosecute the same to effect... .

198 DocUMENTS OF AMERICAN History Sec. 6. That if any person or persons what- same, in any port or place within the jurisdic-

soever, shall, from and after the first day of tion of the United States, contrary to the January, one thousand eight hundred and _ prohibition of the act, every such ship or eight, purchase or sell any negro, mulatto, or vessel, together with her tackle, apparel, and person, of colour, for a slave, or to be held furniture, and the goods or effects which shall to service or labour, who shall have been im- be found on board the same, shall be forported, or brought from any foreign kingdom, feited to the use of the United States, and place, or country, or from the dominions of may be seized, prosecuted, and condemned,

any foreign state, immediately adjoining to in any court of the United States, having the United States, after the last day of De- jurisdiction thereof. And it shall be lawful cember, one thousand eight hundred and for the President of the United States, and seven, knowing at the time of such purchase he is hereby authorized, should he deem it or sale, such negro, mulatto, or person of expedient, to cause any of the armed vessels colour, was so brought within the jurisdiction of the United States to be manned and emof the United States, as aforesaid, such pur- ployed to cruise on any part of the coast of chaser and seller shall severally forfeit and the United States, or territories thereof, pay for every negro, mulatto, or person of | where he may judge attempts will be made colour, so purchased or sold as aforesaid, to violate the provisions of this act, and to

eight hundred dollars... . instruct and direct the commanders of armed

sec. 7. That if any ship or vessel shall be vessels of the United States, to scize, take, found, from and after the first day of Janu- and bring into any port of the United States ary, one thousand cight hundred and eight, in all such ships or vessels, and moreover to any river, port, bay, or harbor, or on the — seize, take, or bring into any port of the high seas, within the jurisdictional limits of U.S. all ships or vessel of the U. S. wheresothe United States, or hovering on the coast ever found on the high seas, contravening the thereof, having on board any negro, mulatto, provisions of this act, to be proceeded against

or person of colour, for the purpose of selling according to law.... them as slaves, or with intent to land the

112. COMMERCIAL WARFARE 1806--1810 The Peace of Amiens was of short duration, and _ taliated with the Milan Decree of December 17 in 1803 came a renewal of the European wars’ declaring the British Isles in a state of blockade which soon involved the commerce of the United and that every ship searched by the British was States. In 1805 Great Britain seized and con- to be regarded as enemy property. These decrees demned the vessel Essex, engaged in trade with and counter-decrees not only bore severely upon the French West Indices: a year later Monroe re- American commerce, they also touched American ported that over 120 American vessels had been _ pride and honor. The effort of William Pinkney seized by the British. These depredations on neu- to conclude a satisfactory treaty with Great {ral commerce were aggravated by the British Britain having failed, the Unitcd States estabpractice of impressment. Protests proving vain, lished, December 22, 1807, an embargo. The EmCongress on April 18, 1806, passed a non- bargo Act of December 22 was supplemented by

importation act excluding many articles from acts of January 9, 1808 and March 12, 1808. importation from Great Britain. April 8, the so- The Embargo, which Jefferson fondly believed called Fox’s Blockade was established around the would bring the warring Powers to terms, proved mouths of the Elbe, Weser, Trave, etc..and May unenforceable, and it was withdrawn, March 1], 16 this blockade was extended to include all the 1809, in favor of another non-intercourse law. coast from the Elbe to Brest. Napoleon retaliated Section 11 of this act permitted the President, by with the Berlin Decree of November 21, 1806. proclamation, to re-open trade with Great Britain Great Britain replied with the Order in Council or France if either of these nations ceased to of January 7, 1807 prohibiting any vessel from violate American rights. The British Minister trading with any port of France or her Allies and Eryskine having given assurances that the odious the additional Order in Council of November Orders in Council would be withdrawn, President 11 blockading all ports in Europe from which Madison, by Proclamation of April 19, 1809, the British flag was excluded. Napoleon re- permitted trade with Great Britain. The action of

COMMERCIAL WARFARE 199 Erskine was disavowed by the British Govern- IJ. All commerce and correspondence with ment, however, and President Madison was the British islands are prohibited. In conseforced, August 9, to revoke his earlier proclama- quence, letters or packets, addressed either tion and declare the non-intercourse Act in tg England, to an Englishman, or in the Engforce. This Act, however, expired in 1810, and ji 9, language, shall not pass through the postNathaniel Macon, Chairman of the Foreign Af- 66 d shall b zed fairs Committee, introduced the bill known as onice and sna C selzed.

Macon’s Bill Number 2 which provided that in III. Every subject of England, of whatcase either France or England should cease their ever rank and condition soever, who shall be

violations of American commerce the non- found in the countries occupied by our intercourse act should be revived against the troops, or by those of our allies, shall be other. Meantime, by the Rambouillet Decree of made a prisoner of war. March 23, 1810 Napoleon had ordered the seizure IV. All magazines, merchandise, or propof all vessels in French ports flying the flag of erty whatsoever, belonging to a subject of the United States. Despite this chicanery Na- England, shall be declared lawful prize.

poleon's assurances of August 5, 1810 that in V. The trade in English merchandise is

response to the proffer of the Macon Bill he forbi .

would revoke all obnoxious Decrees, was accepted [orbidden; all merchandise belonging to Eng-

in good faith. By Proclamation of November 2, and, or coming from its manufactories and the President therefore withdrew restrictions on colonies, is declared lawful prize.

commerce with France, and on March 2, 1811 VI. One half of the proceeds of the conCongress passed a new non-intercourse Act di- fiscation of the merchandise and property, derected against Great Britain. Under the circum- cared good prize by the preceding articles, stances English opinion demanded a revocation chal be applied to indemnify the merchants of the Orders in Council: at the critical moment, for the losses which they have suffered by in May, 1812,and Prime Perceval the capture of merchant vessels by English assassinated, the Minister revocation did notwe actually

take place until June 23—too late to avoid war. CTUISETS.

The literature on commercial warfare of these Vil. No vessel coming directly from Eng-

years is extensive. Most of the documents of the land, or from the English colonies, or having

controversy can be found in American State been there since the publication of the Papers, Foreign Relations, Vol. Ill; the Con- present decree, shall be received into any gressional Debates can be found in T. H. Benton, port.

Abridgement of the Debates of Congress, 1789- VIII. Every vessel contravening the above 1856, Vols. II, IV. Numerous documents are clase by means of a false declaration, shall

given in M. Carey, The Olive Branch, 10th ed.sce be seized. andCATBO the vesselCOnNSand > f, For political and diplomatic background H. - ane’ Adams, History of the United States, Vols. IV-VI. cated, as if they were English property.

See also, L. Sears, Jefferson and the Embargo; IX. Our tribunal of prizes at Paris is

E. Channing, The Jeffersonian System; chs. xvi- charged with the definitive adjudication of xx; E. Channing, History of the United States, all the controversies, which by the French Vol. IV, chs. xiv-xvi; A. T. Mahan, Sea Power army, relative to the execution of the presand the War of 1812; K. C. Babcock, Rise of ent decree. Our tribunal of prizes at Milan American Nationality, chs. i-iil; J. Shouler, shall be charged with the definitive adjudicaHistory of the United States, Vol. II; i. Adams, tion of the said controversies, which may Albert Gallatin; W. E. Dodd, Nathaniel Macon; arise within the extent of our kingdom of

biographies and On the Ital B constitutionality ofof theJefferson Embargo see U. S. v.Madison. y:

Brigantine William, Hall’s American Law Journal X. The present decree shall be communi(1808) II, Federal Cases No. 16700, and C. War- cated by our minister of exterior relations, to ren, The Supreme Court, (1928 ed.) Vol. I, the kings of Spain, of Naples, of Holland, and

p. 341 ff, of Etruria, and to our allies, whose subjects, like ours, are the victims of the injustice and

1, THe BERLIN DECREE the barbarism of the English maritime laws. November 21, 1806 Our finances, our police, and our post masters (State Papers and Publick Documents of the general, are charged each, in what concerns

United States, Vol. V, p. 478) him, with the execution of the present de-

Art. I. The British islands are declared in cree. a state of blockade.

200 DOCUMENTS OF AMERICAN History 2. Britis Orper in Councit neutral vessel coming from any such port, January 7, 1807 and destined to another such port, to discon-

a . tinue her voyage, and not to proceed to any

(American State Papers, Foreign Relations, such port; and any vessel, after being so

Vol, IIT, p. 267) : warned, or any vessel coming from any such

Whereas the French Government has is- port, after a reasonable time shall have been sued certain orders, which, in violation of the afforded for receiving information of this His

usages of war, purport to prohibit the com- Majesty’s order, which shall be found promerce of all neutral nations with His Maj- ceeding to another such port, shall be capesty’s dominions, and also to prevent such tured and brought in, and together with her nations from trading with any other country cargo shall be condemned as lawful prize ; in any articles, the growth, produce, or and His Majesty’s principal Secretaries of manufacture of His Majesty’s dominions; State, the Lords Commissioners of the Adand whereas the said Government has also miralty, and the Judges of the High Court of taken upon itself to declare all His Majesty’s Admiralty, and the Courts of Vice-admiralty, dominions to be in a state of blockade, at the are to take the necessary measures herein as time when the fleets of France and her allies to them shall respectively appertain.

are themselves confined within their own ports by the superior valor and discipline of 3, BRITISH ORDER IN COUNCIL

the British navy; and whereas such attempts, November 11, 1807

on the part of the enemy, would give to His (Annals of the Congress of the United States, Majesty an unquestionable right of retalia- 10th Congress, 2d. session, 1808-1809, p. 1698 ff.) tion, and would warrant His Majesty in en- Whereas certain orders, establishing an unforcing the same prohibition of all commerce _ precedented system of warfare against this

with France, which that power vainly hopes kingdom, and aimed especially at the deto effect against the commerce of His Maj- struction of its commerce and _ resources, esty’s subjects, a prohibition which the su- were, sometime since, issued by the governperiority of His Majesty’s naval forces might ment of France, by which “the British isenable him to support by actually investing lands were declared to be in a state of block-

the ports and coasts of the enemy with nu- ade,” thereby subjecting to capture and merous squadrons and cruisers, so as tomake condemnation all vessels, with their cargoes,

the entrance or approach thereto manifestly which should continue to trade with his dangerous; and whereas His Majesty, though majesty’s dominions: unwilling to follow the example of his en- And whereas, by the same order, “‘all trademies by procecding to an extremity so dis- ing in English merchandise is prohibited, and tressing to all nations not engaged in the war, every article of merchandise belonging to and carrying on their accustomed trade, yet England, or coming from her colonies, or of feels himself bound, by due regard to the her manufacture, is declared lawful prize:”

just defense of the rights and interests of his And whereas the nations in alliance with people not to suffer such measures to be France, and under her control, were required taken by the enemy, without taking some _ to give, and have given, and do give, effect to steps on his part to restrain this violence, and _ such orders:

to retort upon them the evils of their own And whereas his majesty’s order of the injustice; His Majesty is thereupon pleased, 7th of January last has not answered the deby and with the advice of his privy council, sired purpose, either of compelling the enemy

to order, and it is hereby ordered, that no to recall those orders, or of inducing neutral vessel shall be permitted to trade from one nations to interpose, with effect, to obtain port to another, both which ports shall belong their revocation, but, on the contrary, the to or be in the possession of France or her same have been recently enforced with inallies, or shall be so far under their contro] creased rigor: as that British vessels may not trade freely And, whereas, his majesty, under these thereat: and the commanders of His Maj- circumstances, finds himself compelled to esty’s ships of war and privateers shall be, take further measures for asserting and vin-

and are hereby, instructed to warn every dicating his just rights....

COMMERCIAL WARFARE 201 His majesty is therefore pleased, by and France, prohibiting all trade in any articles with the advice of his privy council, to order, the produce or manufacture of his majesty’s

and it is hereby ordered, that all the ports dominions; and the merchants of those and places of France and her allies, or of any countries have given countenance and effect

country) at war with his majesty, and all to those prohibitions by accepting from perother ports or places in Europe, from which, sons, styling themselves commercial agents although not at war with his majesty, the of the enemy, resident at neutral ports, cer-

British flag is excluded, and all ports or tain documents, termed “certificates of

places in the colonies belonging to his maj- origin,” being certificates obtained at the esty’s enemies, shall, from henceforth, be ports of shipment, declaring that the articles subject to the same restrictions in point of of the cargo are not of the produce or manutrade and navigation, with the exceptions facture of his majesty’s dominions, or to that hereinafter mentioned, as if the same were _ effect: uctualiy blockaded by his majesty’s naval And whereas this expedient has been diforces, in the most strict and rigorous man- rected by France, and submitted to by such ner: And it is hereby further ordered and merchants, as part of the new system of wardeclared, that all trade in articles which are fare directed against the trade of this kingof the produce or manufacture of the said dom, and as the most effectual instrument of countries or colonies, shall be deemed and accomplishing the same, and it is therefore considered to be unlawful; and that every — essentially necessary to resist it: vessel trading from or to the said countries His majesty is therefore pleased, by and or colonics, together with all goods and mcr- with the advice of his privy council, to order,

chandise on board, and all articles of the and it is hereby ordered, that if any vessel, produce or manufacture of the said countries after reasonable time shall have been afforded or colonies, shall be captured and condemned for receiving notice of this his majesty’s or-

as prize to the captors. ... der, at the port or place from which such And the commanders of his majesty’s ships vessel shall have cleared out, shall be found of war and privateers, and other vessels act- carrying any such certificate or document as ing under his majesty’s commission, shall be, aforesaid, or any document referring to or and are hereby, instructed to warn every authenticating the same, such vessel shall be vessel which shall have commenced her voy- adjudged lawful prize to the captor, together age prior to any notice of this order, and with the goods laden thercin, belonging to the

shall be destined to any port of France, or person or persons by whom, or on whose of her allies, or of any other country at war behalf, any such document was put on board.

with his majesty, or to any port or place And the right honorable the lords commisfrom which the British flag, as aforesaid, is sioners of his majesty’s treasury, his majexcluded, or to any colony belonging to his esty’s principal secretaries of state, the lords majesty’s encmics, and which shall not have commissioners of the admiralty, and the cleared out as is hereinbefore allowed, to dis- judges of the high court of admiralty and continue her voyage, and to proceed to some courts of vice admiralty, are to take the necport or place in this kingdom, or to Gibraltar essary measures herein as to them shall reor Malta; and any vessel which, after having spectively appertain.

been so warned, or after a reasonable time W. FAWKENER. shall have been aftorded for the arrival of

information of this his majesty’s order at any 4, Tue Miran Decree

port or place from which she sailed, or December 17, 1807

which, after having notice of this order, shall (State Papers and Publick Documents of the

be found in the prosecution of any voyage United States, Vol. VI, p. 74) contrary to the restrictions contained in this NAPOLEON, emperor of the French, king order, shall be captured, and, together with of Italy, and protector of the Rhenish conher cargo, condemned as lawful prize to the _ federation.

captors. Observing the measures adopted by the And whereas countries not engaged in the British government, on the 11th November

war have acquiesced in these orders of last, by which vessels belonging to neutral,

202 DOCUMENTS OF AMERICAN HISTORY friendly, or even powers the allies of Eng- Art. IV. These measures, which are reland, are made liable, not only to be searched sorted to only in just retaliation of the barby English cruisers, but to be compulsorily barous system adopted by England, which asdetained in England, and to have a tax laid similates its legislation to that of Algiers, on them of so much per cent on the cargo, — shall cease to have any effect with respect to

to be regulated by the British legislature. all nations who shall have the firmness to Observing that by these acts the British compel the English government to respect government denationalizes ships of every na- _ their flag. They shall continue to be rigorously

tion in Europe, that it is not competent for in force as long as that government does not any government to detract from its own in- return to the principle of the law of nations, dependence and rights, all the sovereigns of which regulates the relations of civilized Europe having in trust the sovereignties and _ states in a state of war. The provisions of the

independence of the flag; that if by an un-_ present decree shall be abrogated and null, pardonable weakness, and which in the eyes in fact, as soon as the English abide again by of posterity would be an indelible stain, if the principles of the law of nations, which such a tyranny was allowed to be established are also the principles of justice and of honinto principles, and consecrated by useage, the __ our.

English would avail themselves of it to as- All our ministers are charged with the exesert it as a right, as they have availed them- cution of the present decree, which shall be selves of the tolerance of government to inserted in the bulletin of the laws.

establish the infamous principle, that the NAPOLEON.

flag of a nation does not cover goods, and

to have to their right of blockade an arbitrary 5. THE Emparco ACT

extension, and which infringes on the sov- December 22, 1807

ereignty of every state; we have decreed and (U.S. Statutes at Large, Vol. I, p. 451 ff.)

do decree as follows: An Act laying an Embargo on all ships and

Art. I. Every ship, to whatever nation it vessels in the ports and harbors of the may belong, that shall have submitted to be United States. searched by an English ship, or to a voyage Be it enacted, That an embargo be, and

to England, or shall have paid any tax what- hereby is laid on all ships and vessels in the soever to the English government, is thereby ports and places within the limits or jurisand for that alone, declared to be denational- diction of the United States, cleared or not ized, to have forfeited the protection of ils cleared, bound to any foreign port or place; king, and to have become English property. and that no clearance be furnished to any

Art. IJ. Whether the ships thus dewa- ship or vessel bound to such foreign port or

tionalized by the arbitrary measures of the place, except vessels under the immediate diEnglish government, enter into our ports, or rection of the President of the United States. those of our allies, or whether they fall into and that the President be authorized to give

the hands of our ships of war, or of our such instructions to the officers of the rev~ privateers, they are declared to be good and enue, and of the navy and revenue cutters of

lawful prize. the United States, as shall appear best Art. III. The British islands are declared adapted for carrying the same into full effect: to be in a state of blockade, both by land and Provided, that nothing herein contained shall sea. Every ship, of whatever nation, or what- be construed to prevent the departure of any

soever the nature of its cargo may be, that foreign ship or vessel, either in ballast, or sails from the ports of England, or those of with the goods, wares and merchandise on the English colonies, and of the countries oc- board of such foreign ship or vessel, when

cupied by English troops, and procecding to notified of this act. | | ,

England or to the English colonies, or to Sec. 2. That during the continuance ot

countries occupied by English troops, is good this act, no registered, or sea letter vessel, and lawful prize, as contrary to the present having on board goods, wares and merchandecree, and may be captured by our ships of dise, shall be allowed to depart from one port war, or our privateers, and adjudged to the of the United States to any other within the

captor. same, unless the master, owner, consignee or

COMMERCIAL WARFARE 203 factor of such vessel shall first give bond, either in repairing the said vessel or in furwith one or more sureties to the collector of nishing her, her officers and crew with supthe district from which she is bound to de- plies of any kind or in any manner whatever, part, in a sum of double the value of the ves- .. . every person so offending, shall forfeit

sel and cargo, that the said goods, wares, or and pay a sum not less than one hundred merchandise shall be relanded in some port dollars, nor exceeding ten thousand dollars; of the United States, dangers of the seas ex- and shall also be imprisoned for a term not cepted, which bond, and also a certificate less than one month, nor more than one year.

from the collector where the same may be Sec. 3. That from and after the twentieth

relanded, shall by the collector respectively day of May next, the entrance of the harbors be transmitted to the Secretary of the Treas- and waters of the United States and the terury. All armed vessels possessing public com- __ritories thereof be, and the same is hereby

missions from any foreign power, are not to interdicted to all ships or vessels sailing be considered as liable to the embargo laid by under the flag of Great Britain or France, or

this act. owned in whole or in part by any citizen or subject of either... . And if any ship or

6. THe Non-INTERCOURSE ACT vessel sailing under the flag of Great Britain

March 1, 1809 or France, . . . shall after the said twentieth

(U.S. Statutes at Large, Vol. II, p. 528 ff.) day of May next, arrive either with or withAn Act to interdict the commercial mter- out a cargo, within the limits of the United course between the United States and States or of the territories thereof, such ship

Great Britain and France, and their or vessel, together with the cargo, if any, dependencies; and for other purposes. which may be found on board, shall be forBe it enacted, That from and after the feited, and may be seized and condemned in passing of this act, the entrance of the har- any court of the United States or the terribors and waters of the United States and of tories thereof, having competent jurisdicthe territories thereof, be, and the same Is_ tion,... hereby interdicted to all public ships and ves- Sec. 4. That from and after the twentieth sels belonging to Great Britain or France. day of May next, it shall not be lawful to . . . And if any public ship or vessel as afore- import into the United States or the terrisaid, not being included in the exception tories thereof, any goods, wares or merchanabove mentioned, shall enter any harbor or dise whatever, from any port or place situwaters within the jurisdiction of the United ated in Great Britain or Ireland, or in any States, or of the territories thereof, it shall of the colonies or dependencies of Great be lawful for the President of the United Britain, nor from any port or place situated States, or such other person as he shall have in France, or in any of her colonies or deempowered for that purpose, to employ such _ pendencies, nor from any port or place in the

part of the land and naval forces, or of the actual possession of either Great Britain or militia of the United States, or the terri- France. Nor shall it be lawful to import into tories thereof, as he shall deem necessary, to the United States, or the territories thereof, compel such ship or vessel to depart. from any foreign port or place whatever, any Sec. 2. That it shall not be lawful for any goods, wares or merchandise whatever, being citizen or citizens of the United States or the of the growth, produce or manufacture of territories thereof, nor for any person or per- France, or of any of her colonies or .dependsons residing or being in the same, to have’ encies, or being of the growth, produce or any intercourse with, or to afford any aid or manufacture of Great Britain or Ireland, or supplies to any public ship or vessel as afore- of any of the colonies or dependencies of said, which shall, contrary to the provisions Great Britain, or being of the growth, prodof this act, have entered any harbor or waters uce or manufacture olf any place or country within the jurisdiction of the United States in the actual possession of either France or or the territories thereof; and if any person Great Britain... . shall, contrary to the provisions of this act, sec. 11. That the President of the United have any intercourse with such ship or vessel, States be, and he hereby is authorized, in or shall afford any aid to such ship or vessel, case either France or Great Britain shall so

204 DocUMENTS OF AMERICAN HISTORY revoke or modify her edicts, as that they the President of the United States shall deshall cease to violate the neutral commerce clare by proclamation, and if the other naof the United States, to declare the same by _ tion shall not within three months thereafter proclamation; after which the trade of the so revoke or modify her edicts in like manUnited States, suspended by this act, and by ner, then the third, fourth, fifth, sixth, sevthe [Embargo Act] and the several acts sup- _ enth, eighth, ninth, tenth, and eighteenth plementary thereto, may be renewed with the _ sections of the act, entituled “An act to inter-

nation so doing... . dict the commercial intercourse between the Sec. 12. That so much of the... [Em- United States and Great Britain and

bargo Act] and of the several acts supple- France...” shall, from and after the exmentary thereto, as forbids the departure of _ piration of three months from the date of the

vessels owned by citizens of the United proclamation aforesaid, be revived and have States, and the exportation of domestic and full force and effect, so far as relates to the foreign merchandise to any foreign port or dominions, colonies, and dependencies, and place, be and the same is hereby repealed, to the articles the growth, produce or manuafter March 15, 1809, except so far as they facture of the dominions, colonies and derelate to Great Britain or France, or their pendencies of the nation thus refusing or colonies or dependencies, or places in the neglecting to revoke or modify her edicts in

actual possession of either. ... the manner aforesaid. And the restrictions

Sec. 19. That this act shall continue and imposed by this act shall, from the date of be in force until the end of the next session such proclamation, cease and be discontinof Congress, and no longer; and that the act ued in relation to the nation revoking or laying an embargo on all ships and vessels in modifying her decrees in the manner aforethe ports and harbors of the United States, said. and the several acts supplementary thereto,

shall be, and the same are hereby repealed 8. THe Ramsouitter DECREE

from and after the end of the next session of March 23, 1810

Congress. (State Papers and Publick Documents of the United States, Vol. VII, p. 467-8)

7. Macon’s Bitz, No. 2 NAPOLEON, &c.

May 1, 1810 Considering that the government of the

(U.S. Statutes at Large, Vol. II, p. 605-6) United States, by an act dated Ist March, An Act concerning the commercial inter- 1809, which forbids the entrance of the ports, course between the United States and Great harbours, and rivers of the said States, to all

Britain and France and their dependencies, French vessels, orders, 1st. That after the

and for other purposes. 20th of May following, vessels under the

BE tw enacted. That from and after the French flag, which shall arrive in the United passage of this act, no British or French States, shall be seized and confiscated, as well armed vessel shall be permitted to enter the as their cargoes; 2d. That after the same harbor or waters under the jurisdiction of epoch, no merchandise or produce, the growth the United States; ... except when they or manufacture of France or her colonies, can shall be forced in by distress ... or when _ be imported into the said United States from charged with despatches or business from any port or place whatsoever, under the pen-

their government, or coming as a public alty of seizure, confiscation, and a fine of packet for the conveyance of letters; ... three times the value of the merchandise;

Sec. 2, That all pacific intercourse with 3d. That American vessels cannot go to any any interdicted foreign armed vessels, the port of France, of her colonies, or depend-

den, ... follows:

officers or crew thereof, is hereby forbid- encies: We have decreed, and do decree, what

Sec. 4. That in case either Great Britain ART. 1. All vessels navigating under the or France shall, before the third day of flag of the United States, or possessed, in March next, so revoke or modify her edicts whole or in part, by any citizen or subject of as that they shall cease to violate the neutral that power, which, counting from the 20th commerce of the United States, which fact of May, 1809, have entered or shall enter

FLETCHER V. PECK 205 into the ports of our empire, of our colonies, tion the vessels which shall be charged with or of the countries occupied by our arms, despatches, or with commissions of the govshall be seized, and the product of the sales ernment of the said States, and who shall not

shall be deposited in the surplus fund (caisse have either cargoes or merchandise on

d’amoriissement. ) board... . There shall be excepted from this regula- NAPOLEON. 113. FLETCHER v. PECK 6 Cranch, 87 1810

Error to the U. S. circuit court of the district deeply to be deplored. How far a court of of Massachusetts. In 1795 the legislature of justice would, in any case, be competent, on Georgia passed an act for the sale of enormous proceedings instituted by the state itself, to areas of her western lands. The following year \-a-ate a contract thus formed, and to annul a new legislature annulled the act of 1795 on the rights acauired der that t by third ground that it was passed fraudulently. The cele- 5 quired, uncer mat coh ract, y thir brated case of Fletcher v. Peck involved two persons having no notice of the Improper major constitutional questions: the interpreta- Means by which it was obtained, is a ques-

tion of the contract clause of the Federal tion which the court would approach with

Constitution, and the power of the court to in- | much circumspection. It may well be doubted, quire into the motives and circumstances attend- how far the validity of a law depends upon ing the passage of a legislative act. This was the motives of its framers, and how far the

he Anke hich te Supreme, Court HG patiuar inducements, operating on men Beveridge, Marshall, Vol. III ch. x; C. H. Has. P&S rae aooe een ee swe eootac of a state,

kins, The Yazoo Land Companies. topower, the ormation ° a contract by that are examinable in a court of justice. MarsHaLt, C. J... . That the legisla- If the principle be conceded, that an act of ture of Georgia, unless restrained by its own the supreme sovereign power might be deconstitution, possesses the power of dispos- clared null by a court, in consequence of the ing of the unappropriated lands within its means which procured it, still would there own limits, in such manner as its own judg- be much difficulty in saying to what extent ment shall dictate, is a proposition not to be those means must be applied to produce this controverted. The only question, then, pre- effect. Must it be direct corruption? or would sented by this demurrer, for the consideration interest or undue influence of any kind be of the court, is this, did the then constitution sufficient? Must the vitiating cause operate of the state of Georgia prohibit the legisla- on a majority? or on what number of the ture to dispose of the lands, which were the members? Would the act be null, whatever

subject of this contract, in the manner might be the wish of the nation? or would

stipulated by the contract? ... its obligation or nullity depend upon the pubIn the constitution of Georgia, adopted in lic sentiment? If the majority of the legisthe year 1789, the court can perceive no re- lature be corrupted, it may well be doubted, striction on the legislative power, which in- whether it be within the province of the hibits the passage of the act of 1795. The judiciary to control their conduct, and, if less

court cannot say that, in passing that act, than a majority act from impure motives, the legislature has transcended its powers, the principle by which judicial interference and violated the constitution. In overruling would be regulated, is not clearly discerned. the demurrer, therefore, to the first plea, the Whatever difficulties this subject might pre-

circuit court committed no error... . sent, when viewed under aspects of which it That corruption should find its way into may be susceptible, this court can perceive the governments of our infant republics, and none in the particular pleadings now under contaminate the very source of legislation, consideration. .. . or that impure motives should contribute to The case, as made out in the pleadings, is the passage of a law, or the formation of a simply this: One individual who holds lands legislative contract, are circumstances most in the state of Georgia, under a deed cov-

206 DocuMENTS OF AMERICAN History enanting that the title of Georgia was in the competent to repeal any act which a former grantor, brings an action of covenant upon legislature was competent to pass; and that this deed and assigns as a breach that some one legislature cannot abridge the powers of of the members of the legislature were in- a succeeding legislature. The correctness of duced to vote in favor of the law which con- _ this principle, so far as respects general legis-

stituted the contract by being promised an lation, can never be controverted. But if an interest in it, and that therefore the act isa act be done under a law, a succeeding legis-

mere nullity. lature cannot undo it. The past cannot be re-

This solemn question cannot be brought called by the most absolute power. Conveythus collaterally and incidentally before the ances have been made, those conveyances court. It would be indecent in the extreme, have vested legal estates, and, if those estates upon a private contract between two individ- may be seized by the sovercign authority, uals, to enter into an inquiry respecting the _ still, that they originally vested is a fact, and corruption of the sovereign power of a state. cannot cease to be a fact. When, then, a law If the title be plainly deduced from a Jegis- is in its nature a contract, when absolute lative act which the legislature might con- rights have vested under that contract, a restitutionally pass, if the act be clothed with peal of the law cannot divest those rights; all the requisite forms of a law, a court, and the act of annulling them, 1f legitimate, sitting as a court of law, cannot sustain a is rendered so by a power applicable to the suit brought by one individual against an- case of every individual in the community. other founded on the allegation that the act It may well be doubted whether the nature is a nullity in consequence of the impure mo- of society and of the government does not tives which influenced certain members of the _ prescribe some limits to the legislative power;

legislature which passed the law. .. . and if any be prescribed, where are they to

It is not intended to speak with disrespect be found, if the property of an individual, of the legislature of Georgia, or of its acts. fairly and honestly acquired, may be seized lar from it. The question is a general ques- without compensation? To the legislature all tion, and is treated as one. For although such legislative power is granted; but the question powerful objections to a legislative grant, as whether the act of transferring the property are alleged against this, may not again exist, of an individual to the public be in the nature yet the principle, on which alone this rescind- _ of legislative power, is well worthy of serious ing act is to be supported, may be applied to reflection. . . .

every case to which it shall be the will of any The validity of this rescinding act, then, legislature to apply it. The principle is this: | might well be doubted, were Georgia a single

that a legislature may, by its own act, divest sovereign power. But Georgia cannot be the vested estate of any man whatever, for viewed as a single, unconnected, sovereign reasons which shall, by itself, be deemed suf- power, on whose legislature no other restric-

ficient... . tions are imposed than may be found in its

In this case the legislature may have had own constitution. She is a part of a large ample proof that the original grant was ob- empire; she is a member of the American tained by practices which can never be too union; and that union has a constitution, the much reprobated, and which would have jus- supremacy of which all acknowledge, and tified its abrogation so far as respected those which imposes limits to the legislatures of to whom crime was imputable. But the grant, the several states, which none claim a right to

when issued, conveyed an estate in fee- pass. The constitution of the United States simple to the grantees, clothed with all the declares that no state shall pass any bill of solemnities which law can bestow. This estate attainder, ex post facto law, or law impairing was transferable; and those who purchased _ the obligation of contracts.

parts of it were not stained by that guilt Does the case now under consideration which infected the original transaction. ... come within this prohibitory section of the Is the power of the legislature competent Constitution? In considering this very into the annihilation of such title, and to a _ teresting question, we immediately ask ourresumption of the property thus held? The selves what is a contract? Is a grant a conprinciple asserted is, that one legislature is tract? A contract is a compact between two

MapiIson’s WAR MESSAGE 207 or more parties, and is either executory or secured by the constitution, while an absolute executed. An executory contract is one in conveyance remained unprotected.

which a party binds himself to do, or not to If, under a fair construction of the condo, a particular thing; such was the law under _ stitution, grants are comprehended under the which the conveyance was made by the gover- term “contracts,” is a grant from the state nor. A contract executed is one in which the excluded from the operation of the provision?

object of contract is performed; and this, Is the clause to be considered as inhibiting says Blackstone, differs in nothing from a the State from impairing the obligation of grant. The contract between Georgia and the contracts between two individuals, but as expurchasers was executcd by the grant. A con- cluding from that inhibition contracts made tract executed, as well as one which is exec- with itself? The words themselves contain no

utory, contains obligations binding on the such distinction. They are general, and are parties. A grant, in its own nature, amounts applicable to contracts of every description.

to an extinguishment of the right of the If contracts made with the state are to be grantor, and implies a contract not to reas- exempted from their opcration, the exception sert that right. A party is, thercfore, always must arise from the character of the con-

estopped by his own grant. tracting party, not from the words which are

Since, then, in fact, a grant is a contract employed... . executed, the obligation of which still con- It is, then, the unanimous opinion of the tinues, and since the constitution uses the gen- court, that, in this case, the estate having eral term “contracts,” without distinguishing passed into the hands of a purchaser for a between those which are executory and those valuable consideration, without notice, the which are executed, it must be construed to stale of Georgia was restrained, either by comprehend the latter as well as the former. gencral principles which are common to our A law annulling conveyances between individ- free institutions, or by the particular prouals, and declaring that the grantors should visions of the Constitution of the United stand seized of their former estates, notwith- States, from passing a law whereby the esstanding those grants, would be as repugnant tate of the plaintiff in the premises so purto the constitution as a law discharging the chased could be constitutionally and legally vendors of property from the obligation of impaired and rendered null and void... . executing their contracts by conveyances. It Judgment affirmed. would be strange if a contract to convey was

114. MADISON’S WAR MESSAGE June 1, 1812 (Richardson, ed. Messages and Papers, Vol. I, p. 499 ff.) Congress declared war on Great Britain July Without going back beyond the renewal in

18, 812.see an ioe he nite er the of theates, war in ETT which Great war, fF.ciplomatic ams, f1zslory o e1803 Unite 14 Britain is

Vols. V-VI; on the political background, J. Pratt, engaged a nd foie ae unrepaives wrongs of

Expansionists of 1812. It was long charged that agnitude, t © con uct of her Govthe War Hawks forced Madison to recommend a ernment presents a SCTICS of acts hostile to

declaration of war as the price for re-election; the United States as an independent and

for a careful analysis of this charge, see T. C. neutral nation.

Smith, “War Guilt in 1812”, Massachusetts Hist. British cruisers have been in the continued

Soc. Proceedings, Vol. LXIV, p. 319 ff. practice of violating the American flag on the great highway of nations, and of seizing and WASHINGTON, June 1, 1812. carrying off persons sailing under it, not in the To the Senate and House of Representatives exercise of a belligerent right founded on the

of the United States: . law of nations against an enemy, but of a

I communicate to Congress certain docu- municipal prerogative over British subjects. ments, being a continuation of those hereto- British jurisdiction is thus extended to neufore laid before them on the subject of our tral vessels in a situation where no laws can

affairs with Great Britain. operate but the law of nations and the laws

208 DOCUMENTS OF AMERICAN HIsToRY of the country to which the vessels belong, other important cases, to the unlawfulness of and a self-redress is assumed which, if British the course pursued. And to render the outsubjects were wrongfully detained and alone rage the more signal these mock blockades concerned, is that substitution of force for a have been reiterated and enforced in the face resort to the responsible sovereign which falls of official communications from the British

within the definition of war... . Government declaring as the true definition The practice, hence, is so far from affect- of a legal blockade “that particular ports ing British subjects alone that, under the pre- must be actually invested and previous warn-

text of searching for these, thousands of ing given to vessels bound to them not to

American citizens, under the safeguard of _ enter.”

public law and of their national flag, have Not content with these occasional expebeen torn from their country and from every- _ dients for laying waste our neutral trade, the

thing dear to them; have been dragged on cabinet of Britain resorted at length to the board ships of war of a foreign nation and Sweeping system of blockades, under the exposed, under the severities of their disci- name of orders in council, which has been pline, to be exiled to the most distant and molded and managed as might best suit its deadly climes, to risk their lives in the battles _ political views, its commercial jealousies, or

of their oppressors, and to be the melancholy the avidity of British cruisers. ...

instruments of taking away those of their Abandoning still more all respect for the

own brethren. neutral rights of the United States and for

Against this crying enormity, which Great its own consistency, the British Government Britain would be so prompt to avenge if com- now demands as prerequisites to a repeal of mitted against herself, the United States have its orders as they relate to the United States in vain exhausted remonstrances and expos- that a formality should be observed in the tulations, and that no proof might be wanting repeal of the French decrees nowise necessary

of their conciliatory dispositions, and no to their termination nor exemplified by Britpretext left for a continuance of the practice, ish usage, and that the French repeal, besides the British Government was formally assured including that portion of the decrees which of the readiness of the United States to en- ' operates within a territorial jurisdiction, as ter into arrangements such as could not be well as that which operates on the high seas,

rejected if the recovery of British subjects against the commerce of the United States were the real and the sole object. The com- should not be a single and special repea! in

munication passed without effect. relation to the United States, but should be

British cruisers have been in the practice extended to whatever other neutral nations also of violating the rights and the peace of unconnected with them may be affected by our coasts. They hover over and harass our those decrees. . . . entering and departing commerce. To the It has become, indeed, sufficiently certain most insulting pretensions they have added that the commerce of the United States is to the most lawless proceedings in our very har- be sacrificed, not as interfering with the bors, and have wantonly spilt American blood _ belligerent rights of Great Britain: not as _ within the sanctuary of our territorial juris- supplying the wants of her enemies, which she

diction. ... herself supplies; but as interfering with the

Under pretended blockades, without the monopoly which she covets for her own compresence of an adequate force and some- merce and navigation. She carries on a war times without the practicability of applying against the lawful commerce of a friend that one, our commerce has been plundered in | she may the better carry on a commerce with every sea, the great staples of our country an enemy—a commerce polluted by the forhave been cut off from their legitimate mar- geries and perjuries which are for the most kets, and a destructive blow aimed at our part the only passports by which it can suc-

agricultural and maritime interests. In ag- ceed. . ce _

gravation of these predatory measures they In reviewing the conduct of Great Britain have been considered as in force from the toward the United States our attention is dates of their notification, a retrospective ef- necessarily drawn to the warfare just renewed fect being thus added, as has been done in _ by the savages on one of our extensive fron-

REPORT OF HARTFORD CONVENTION 209 tiers—a warfare which is known to spare arbitrary edicts, and their unfortunate crews neither age nor sex and to be distinguished dispersed and lost, or forced or inveigled in by features peculiarly shocking to humanity. British ports into British fleets, whilst arguIt is difficult to account for the activity and ments are employed in support of these agcombinations which have for some time been gressions which have no foundation but in a developing themselves among tribes in con- principle equally supporting a claim to reg-

stant intercourse with British traders and ulate our external commerce in all cases

garrisons without connecting their hostility whatsoever.

with that influence and without recollecting We behold, in fine, on the side of Great the authenticated examples of such inter- Britain a state of war against the United positions heretofore furnished by the officers States, and on the side of the United States

and agents of that Government. a state of peace toward Great Britain.

Such is the spectacle of injuries and indig- Whether the United States shall continue nities which have been heaped on our coun- passive under these progressive usurpations try, and such the crisis which its unexampled and these accumulating wrongs, or, opposing forbearance and conciliatory efforts have not force to force in defense of their national

been able to avert. ... rights, shall commit a just cause into the

Our moderation and conciliation have had hands of the Almighty Disposer of Events, no other effect than to encourage perseverance avoiding all connections which might en-

and to enlarge pretensions. We behold our tangle it in the contest or views of other seafaring citizens still the daily victims of | powers, and preserving a constant readiness

lawless violence, committed on the great to concur in an honorable reéstablishment common and highway of nations, even within of peace and friendship, is a solemn question sight of the country which owes them pro- which the Constitution wisely confides to the tection. We behold our vessels, freighted legislative department of the Government. In with the products of our soil and industry, recommending it to their early deliberations

‘or returning with the honest proceeds of I am happy in the assurance that the decithem, wrested from their lawful destinations, sion will be worthy the enlightened and paconfiscated by prize courts no longer the or- _triotic councils of a virtuous, a free, and a

gans of public law but the instruments of powerful nation. ... 115. REPORT AND RESOLUTIONS OF THE HARTFORD CONVENTION January 4, 1815 (T. Dwight, History of the Hartford Convention, p. 368 ff.) The dissatisfaction of New England Federalists Cabot; H. Adams, History of the United States, with the Republican administration, with the ac- Vol VIII, ch. xi. cession of western territory, and with the War

of 1812, culminated in the Hartford Conven- . .. To investigate and explain the means tion of December 1814. The convention was at- whereby this fatal reverse has been effected tended by delegates from Massachusetts, Con- guid require a voluminous discussion NothHampshire. George Cabot of Massachusetts was Ing more can be attempted in this report than President of the Convention; among its mem- 2 general allusion to the principal outlines of bers were H. G. Otis, N. Dane, C. Goodrich, and the policy which has produced this vicissiSamuel Ward. Cabot exercised a moderating in- tude. Among these may be enumerated— fluence on the Convention, and the report and First—A deliberate and extensive system

necticut, Rhode Island, Vermont and New . ; , :

resolutions adopted were far from radical or for effecting a combination among certain treasonable. Commissioners went to Washington states, by exciting local jealousies and ambi-

with the Resolutions of the Convention, but tion so as to secure to popular leaders in one arriving just afler the news of Jackson’s victory at New Orleans and the Treaty of Ghent, section of the Union, the controul of public abandoned their mission. On the Convention see #airs in perpetual succession. ‘To which pri- Theodore Dwight, History of the Hartford Con- ™ary object most other characteristics of the vention; S. E. Morison, Harrison Gray Otis, System may be reconciled.

Vol. II, chs. xxii-xxviii; H. C. Lodge, George Secondly.—The political intolerance dis-

210 DOCUMENTS OF AMERICAN History played and avowed in excluding from office which that instrument is susceptible, and to men of unexceptionable merit, for want of propose such amendments as might render it

adherence to the executive creed. in all respects perfect, would be a task which Thirdly.—The infraction of the judiciary this convention has not thought proper to authority and rights, by depriving judges of assume. They have confined their attention their offices in violation of the constitution. to such as experience has demonstrated to be Fourthly.—The abolition of existing taxes, essential, and even among these, some are requisite to prepare the country for those considered entitled to a more serious attenchanges to which nations are always exposed, tion than others. They are suggested without with a view to the acquisition of popular any intentional disrespect to other states, and

favour. are meant to be such as all shall find an inFifthly.—The influence of patronage in the terest in promoting. Their object is to

distribution of offices, which in these states strengthen, and if possible to perpetuate, the has been almost invariably made among men _ union of the states, by removing the grounds the least entitled to such distinction, and who of existing jealousies, and providing for a have sold themselves as ready instruments for fair and equal representation, and a limita-

distracting public opinion, and encouraging tion of powers, which have been misadministration to hold in contempt the used.... [There follows an analysis of the wishes and remonstrances of a people thus proposed amendments. |

apparently divided. THEREFORE RESOLVED,

Sixthly.—The admission of new states into That it be and hereby is recommended to the Union formed at pleasure in the western the legislatures of the several states repreregion, has destroyed the balance of power sented in this Convention, to adopt all such which existed among the original States, and measures as may be necessary effectually to

deeply affected their interest. protect the citizens of said states from the

Seventhly—The easy admission of nat- operation and effects of all acts which have uralized foreigners, to places of trust, honour been or may be passed by the Congress of

or profit, operating as an inducement to the the United States, which shall contain

malcontent subjects of the old world to come _ provisions, subjecting the militia or other citto these States, in quest of executive patron- izens to forcible drafts, conscriptions, or im-

age, and to repay it by an abject devotion to pressments, not authorised by the constitu-

executive measures. tion of the United States.

Eighthly.—Hostility to Great Britain, and Resolved, That it be and hereby is recompartiality to the late government of France, mended to the said Legislatures, to authorize adopted as coincident with popular preju- an immediate and earnest application to be

dice, and subservient to the main object, made to the government of the United party power. Connected with these must be States, requesting their consent to some ranked erroneous and distorted estimates of arrangement, whereby the said states may, the power and resources of those nations, of | separately or in concert, be empowered to the probable results of their controversies, assume upon themselves the defence of their and of our political relations to them respec- territory against the enemy; and a reasonable

tively. portion of the taxes, collected within said

Lastly and principally——A visionary and States, may be paid into the respective superficial theory in regard to commerce, ac- treasuries thereof, and appropriated to the companied by a real hatred but a feigned re- payment of the balance due said states, and

gard to its interests, and a ruinous persever- to the future defence of the same. The ance in efforts to render it an instrument of amount so paid into the said treasuries to be

coercion and war. credited, and the disbursements made as But it is not conceivable that the obliquity aforesaid to be charged to the United States.

of any administration could, in so short a Resolved, That it be, and hereby is, recomperiod, have so nearly consummated the mended to the legislatures of the aforesaid work of national ruin, unless favoured by de- _ states, to pass laws (where it has not already

fects in the constitution. been done) authorizing the governors or To enumerate all the improvements of commanders-in-chief of their militia to make

MADISON’S VETO OF BONUS BILL 211 detachments from the same, or to form any embargo on the ships or vessels of the voluntary corps, as shall be most convenient citizens of the United States, in the ports or and conformable to their constitutions, and harbours thereof, for more than sixty days. to cause the same to be well armed, equipped, Fourth. Congress shall not have power,

and disciplined, and held in readiness for without the concurrence of two thirds of service; and upon the request of the gover- both houses, to interdict the commercial innor of either of the other states to employ tercourse between the United States and any the whole of such detachment or corps, as foreign nation, or the dependencies thereof.

well as the regular forces of the state, or Fifth. Congress shall not make or declare such part thereof as may be required and war, or authorize acts of hostility against can be spared consistently with the safety of any foreign nation, without the concurrence the state, in assisting the state, making such of two thirds of both houses, except such acts request to repel any invasion thereof which of hostility be in defence of the territories of shall be made or attempted by the public the United States when actually invaded.

enemy. Sixth. No person who shall herea{ter be

Resolved, That the following amendments naturalized, shall be eligible as a member of of the constitution of the United States be the senate or house of representatives of the recommended to the states represented as United States, nor capable of holding any aforesaid, to be proposed by them for adop- civil office under the authority of the United

tion by the state legislatures, and in such States. cases as may be deemed expedient by a con- Seventh. The same person shall not be vention chosen by the people of each state. elected president of the United States a secAnd it is further recommended, that the ond time; nor shall the president be elected

said states shall persevere in their efforts from the same state two terms in succesto obtain such amendments, until the same _ sion.

shall be effected. Resolved, That if the application of these First. Representatives and direct taxes states to the government of the United

shall be apportioned among the several states States, recommended in a foregoing resoluwhich may be included within this Union, ac- tion, should be unsuccessful and peace should cording to their respective numbers of free not be concluded, and the defence of these persons, including those bound to serve for states should be neglected, as it has since the

a term of years, and excluding Indians not commencement of the war, it will, in the

taxed, and all other persons. Opinion of this convention} be expedient for Second. No new state shall be admitted the legislatures of the several states to apinto the Union by Congress, in virtue of the point delegates to another convention, to power granted by the constitution, without meet at Boston ... with such powers and the concurrence of two thirds of both houses. instructions as the exigency of a crisis so Third, Congress shall not have power to lay momentous may require.

116. MADISON’S VETO OF BONUS BILL March 3, 1817 (Richardson, ed. Messages and Papers, Vol. I, p. 584-5) In December 1816 Calhoun introduced a bill to Having considered the bill this day pre-

Oe G00 setting aside the Bank bonus of sented to me entitled “An act to set apart

$1,500,000 as a permanent lund for internal im- and pledge certain funds for internal improvements. The bill passed Congress February, 9 1817; Madison’s veto was his last official act. provements, and which set Ss apart and See, H. Adams, History of the United States, pledges funds for constructing roads and Vol. IX, p. 148 ff.; P. J. Treat, The Nationa! Canals, and improving the navigation of

Land System. water courses, in order to facilitate, promote, and give security to internal commerce among

Marcu 3, 1817. the several States, and to render more casy Lo the House of Representatives of the and less expensive the means and provisions

United States: for the common defense,” I am constrained

212 DocUMENTS OF AMERICAN History by the insuperable difficulty I feel in recon- of the United States from its participation ciling the bill with the Constitution of the in guarding the boundary between the legisUnited States to return it with that objection lative powers of the General and the State to the House of Representatives, in which Governments, inasmuch as questions relat-

it originated. ing to the general welfare, being questions of The legislative powers vested in Congress policy and expediency, are unsusceptible of are specified and enumerated in the eighth judicial cognizance and decision. section of the first article of the Constitution, A restriction of the power “Lo provide for and it does not appear that the power pro- the common defense and general welfare’ to posed to be exercised by the bill is amiong cases which are to be provided for by the

the enumerated powers, or that it falls by expenditure of money would still leave

any just interpretation within the power to within the legislative power of Congress all make laws necessary and proper for carry- the great and most important measures of ing into execution those or other powers Government, money being the ordinary and vested by the Constitution in the Govern- necessary means of carrying them into exe-

ment of the United States. cution.

“The power to regulate commerce among If a general power to construct roads and the several States” can not include a power canals, and to improve the navigation of to construct roads and canals, and to improve water courscs, with the train of powers incithe navigation of water courses in order to dent thereto, be not possessed by Congress, facilitate, promote, and secure such a com- the assent of the States in the mode promerce without a latitude of construction de- vided in the bill can not confer the power. parting from the ordinary import of the terms The only cases in which the consent and ces-

strengthened by the known inconveniences sion of particular States can extend the which doubtless led to the grant of this re- power of Congress are those specified and

medial power to Congress. provided for in the Constitution.

To refer the power in question to the I am not unaware of the great importance clause “to provide for the common defense of roads and canals and the improved naviand general welfare” would be contrary to gation of water courses, and that a power in the established and consistent rules cf inter- the National Legislature to provide for them pretation, as rendering the special and care- might be exercised with signal advantage to ful enumeration of powers which follow the the general prosperity. But secing that such clause nugatory and improper. Such a view a power is not expressly given by the Conof the Constitution would have the effect of | stitution, and believing that it can not be giving to Congress a general power of legis- deduced from any part of it without an inlation instead of the defined and limited one admissible latitude of construction and a hitherto understood to belong to them, the reliance on insufficient precedents: believing terms “common defense and general wel- also that the permanent success of the Confare” embracing every object and act within stitution depends on a definite partition of the purview of a legislative trust. It would powers betwcen the General and the State have the effect of subjecting both the Con- Governments, and that no adequate lundstitution and laws of the several States in all marks would be left by the constructive excases not specifically exempted to be super- tension of the powers of Congress as proposed seded by laws of Congress, it being expressly in the bill, I have no option but to withhold declared “‘that the Constitution of the United my signature from it, and to cherishing the

States and laws made in pursuance thereof hope that its beneficial objects may be atshall be the supreme law of the land, and the tained by a resort for the necessary powers judges of every State shall be bound thereby, . tv the same wisdom and virtue in the nation anything in the constitution or laws of any which established the Constitution in its acState to the contrary notwithstanding.” Such tual form and providently marked out in the @, view of the Constitution, finally, would have instrument itself a safe and practicable mode the effect of excluding the Judicial authority of improving it as experience might suggest.

M’CuttocH Vv. MARYLAND © 213 117. THE RUSH-BAGOT AGREEMENT April 28, 1818 (Malloy, ed. Treaties, Conventions, etc., Vol. I, p. 628 ff.) This famous agreement neutralized the waters On the upper lakes, to two vessels, not exof the Great Lakes and provided for an unforti- ceeding like burden each, and armed with like fied frontier between the United States and force, Canada. See, J. M. Callahan, “Neutrality of the On the waters of lake Champlain, to one American lakes and the Anglo-American Rela- vessel not exceeding like burden, and armed tions” Johns Hopkins U. Studies, Ser. XVI. , force. with like

ARRANGEMENT All other armed vessels on these lakes shall BETWEEN, the United States and Great Brit- be forthwith dismantled, and no other vesain, between Richard Rush, Esq., acting sels of war shall be there built or armed.

as Secretary of the Department of State, If either party should hereafter be desirous and Charles Bagot, His Britannic Majesty’s of annulling this stipulation, and should give

Envoy Extraordinary, &C. notice to that effect to the other party, it

The naval force to be maintained upon the shall cease to be binding after the expiraAmerican lakes, by his majesty and the gov- tion of six months from the date of such no-

ernment of the United States, shall hence- tice. forth be confined to the following vessels on The naval force so to be limited shall be

each side; that is— restricted to such services as will, in no reOn lake Ontario, to one vessel not exceed- spect, interfere with the proper duties of the ing one hundred tons burden, and armed with armed vessels of the other party. one eighteen pound cannon.

118. M’CULLOCH v. MARYLAND

, 4 Wheaton, 316 1819

Error to the Court of Appeals of Maryland. In It has been truly said, that this can scarcely 1818 Maryland passed an act imposing atax upon be considered as an open question, entirely the notes of all banks not chartered by the State. ynprejudiced by the former proceedings of M'Culloch, cashier of the branch Bank of the the nation respecting it. The principle now United States at Baltimore, refused to pay the d ; duced at ; tax, and action was brought against him by the conteste was Intro uced at a very car y pe state of Maryland. Two questions were involved riod of our history, has been recognized by in this case: did Congress have the right to in- ™any successive legislatures, and has been corporate a bank, and was a state tax upon the acted upon by the judicial department, in bank constitutional. In his consideration of the cases of peculiar delicacy, as a law of unfirst of these questions, Marshall relied to a large doubted obligation. ... extent upon Hamilton’s argument on the con- In discussing this question, the counsel for stitutionality of the bank, see Doc. No. 93, This the State of Maryland have deemed it of was one of the most notable of Marshall's opin- some importance, in the construction of the ions, and one of the most important in con- ous , struing the powers of the National Government. constiMution, to consider that instrument not See, A. Beveridge, Marshall, Vol. IV, p. 282 ff.; as emanating from the people, but as the act C. Warren, The Supreme Court, (1928 ed.) Vol. I, of sovereign and independent States. The ch. xii. This decision evoked a thorough and powers of the general government, it has been powerful criticism from Judge Spencer Roane said, are delegated by the States, who alone of Virginia: the articles have been reprinted in are truly sovereign; and must be exercised

the John P. Branch Historical Papers, 1905. in subordination to the States, who alone possess supreme dominion.

MarsHALL, C. J... . The first question It would be difficult to sustain this propmade in this cause is, has Congress power to osition. The convention which framed the

incorporate a bank? constitution was, indeed, elected by the State

214 DocUMENTS oF AMERICAN History legislatures. But the instrument, when it that it can exercise only the powers granted came from their hands, was a mere proposal, to it, would seem too apparent to have rewithout obligation, or pretensions to it. It was quired to be enforced by all those arguments reported to the then existing Congress of the which its enlightened friends, while it was United States, with a request that it might depending before the people, found it neces. “be submitted to a convention of Delegates, sary to urge. That principle is now univerchosen in each State, by the people thereof, sally admitted. But the question respecting under the recommendation of its legislature, the extent of the powers actually granted, is for their assent and ratification.” This mode perpetually arising, and will probably conof proceeding was adopted; and by the Con- tinue to arise, as long as our system shall vention, by Congress, and by the State Legis- exist. In discussing these questions, the conlatures, the instrument was submitted to the flicting powers of the State and general gOVpeople. They acted upon it, in the only man- ernments must be brought into view, and the ner in which they can act safely, effectively, supremacy of their respective laws, when they and wisely, on such a subject, by assembling are in opposition, must be settled. in Convention. It is true, they assembled in If any one proposition could command the their several States; and where else should universal assent of mankind, we might expect they have assembled? No political dreamer it would be this: that the government of the

was ever wild enough to think of breaking Union, though limited in its powers, is sudown the lines which separate the States, and preme within its sphere of action. This of compounding the American people into would seem to result necessarily from its naone common mass. Of consequence, when ture. It is the government of all; its powers they act, they act in their States. But the are delegated by all; it represents all, and measures they adopt do not, on that account acts for ali. Though any one State may be cease to be the measures of the people them- willing to control its operations, no State is selves, or become the measures of the state willing to allow others to control them. The

governments. nation, on those subjects on which it can act,

From these Conventions the constitution must necessarily bind its component parts. derives its whole authority. The government But this question is not left to mere’ reason: proceeds directly from the people; is “or- the people have, in express terms, decided it, dained and established” in the name of the by saying, “this constitution, and the laws of

people; and is declared to be ordained, ‘in the United States, which shall be made in order to form a more perfect union, establish pursuance thereof,” “shall be the supreme justice, insure domestic tranquillity, and se- law of the land,” and by requiring that the cure the blessings of liberty to themselves members of the State legislatures, and the and to their posterity.” The assent of the officers of the executive and judicial departStates, in their sovereign capacity, is implied ments of the States, shall take the oath of in calling a Convention, and thus submitting fidelity to it. that instrument to the people. But the people The government of the United States, then, were at perfect liberty to accept or reject it; though limited in its powers, is supreme; and

and their act was final. It required not the its laws, when made in pursuance of the affirmance, and could not be negatived, by constitution, form the supreme law of the the State governments. The constitution, land, “anything in the constitution or laws when thus adopted, was of complete obliga~ of any State, to the contrary, notwithstand-

tion, and bound the State sovereignties.... ing.” ... Lhe government of the Union, then Among the enumerated powers, we do not

(whatever may be the influence of this fact find that of establishing a bank or creating a on the case), is emphatically and truly a gov- _ corporation. But there is no phrase in the in-

ernment of the people. In form and in sub- strument which, like the articles of confedstance it emanates from them, its powers are eration, excludes incidental or implied pow-

granted by them, and are to be exercised di- ers; and which requires that everything rectly on them, and for their benefit. granted shall be expressly and minutely deThis government is acknowledged by all to scribed. Even the 10th amendment, which be one of enumerated powers. The principle, was framed for the purpose of quieting the

M’CuttocnH v. MARYLAND 215 excessive jealousies which had been excited, reason, be contended, that a government, omits the word “expressly,” and declares intrusted with such ample powers, on the due only that the powers “not delegated to the execution of which the happiness and prosUnited States, nor prohibited to the States, perity of the nation so vitally depends, must are reserved to the States or to the people;” also be intrusted with ample means for their thus leaving the question, whether the par- execution. The power being given, it is the ticular power which may become the subject interest of the nation to facilitate its execuof contest, has been delegated to the one tion. It can never be their interest, and cangovernment, or prohibited to the other, to not be presumed to have been their intention, depend on a fair construction of the whole to clog and embarrass its execution by with-

instrument. The men who drew and adopted holding the most appropriate means. this amendment, had experienced the em- Throughout this vast republic, from the St. barrassments resulting from the insertion of Croix to the Gulph of Mexico, from the this word in the articles of confederation, Atlantic to the Pacific, revenue is to be coland probably omitted it to avoid those em- Iected and expended, armics are to be barrassments. A constitution, to contain an marched and supported. The exigencies of

accurate detail of all the subdivisions of the nation may require, that the treasure

which its great powers will admit, and of all raised in the north should be transported to the means by which they may be carried into — the south, ¢/at raised in the east conveyed to

execution, would partake of the prolixity of the west, or that this order should be rea legal code, and could scarcely be embraced versed. Is that construction of the constituby the human mind, It would probably never _ tion to be preferred which would render these

be understood by the public. Its nature, operations difficult, hazardous, and expentherefore, requires that only its great out- sive? Can we adopt that construction (unless lines should be marked, its important objects the words imperiously require it) which designated, and the minor ingredients which would impute to the framers of that instrucompose those objects be deduced from the ment, when granting these powers for the nature of the objects themselves. That this public good, the intention of impeding their idea was entertained by the framers of the exercise by withholding a choice of means? American constitution, is not only to be in- If, indeed, such be the mandate of the conferred from the nature of the instrument, but stitution, we have only to obey; but that from the language. Why else were some of instrument does not profess to enumerate the the limitations, found in the 9th section of | means by which the powers it confers may the first article, introduced? It is also, in be executed; nor does it prohibit the creation

some degree, warranted by their having of a corporation, if the existence of such a omitted to use any restrictive term which being be essential to the beneficial exercise might prevent its receiving a fair and just of those powers. It is, then, the subject of interpretation. In considering this question, fair inquiry, how far such means may be emthen, we must never forget, that it is a con- ployed.

stitution we are expounding. It is not denied that the powers given to

Although, among the enumerated powers of the government imply the ordinary means government, we do not find the word “bank,” of execution. That, for example, of raising er “incorporation,” we find the great powers revenue and applying it to national purposes, to lay and collect taxes; to borrow money; to is admitted to imply the power of conveying regulate commerce; to declare and conduct money from place to place, as the exigencies a war; and to raise and support armies and of the nation may require, and of employing navies. The sword and the purse, all the ex- the usual means of conveyance. But it is deternal relations, and no inconsiderable por- nied that the government has its choice of tion of the industry of the nation, are in- means, or that it may employ the most contrusted to its government. It can never be venient means, if to employ them it be necespretended that these vast powers draw after sary to erect a corporation. .. .

them others of inferior importance, merely The government which has a right to do because they are inferior. Such an idea can an act, and has imposed on it the duty of never be advanced. But it may, with great performing that act, must, according to the

216 DOCUMENTS OF AMERICAN History dictates of reason, be allowed to select the of an incorporation, but a corporation is means; and those who contend that it may created to administer the charity; no seminot select any appropriate means, that one nary of learning is instituted in order to be particular mode of effecting the object is ex- incorporated, but the corporate character is cepted, take upon themselves the burden of conferred to subserve the purposes of educa-

establishing that exception. tion. No city was ever built with the sole The creation of a corporation, it is said, object of being incorporated, but is incorappertains to sovereignty. This is admitted. porated as affording the best means of being But to what portion of sovereignty does it well governed. The power of creating a corappertain? Does it belong to one more than poration is never used for its own sake, but to another? In America, the powers of sov- for the purpose of effecting something else. ereignty are divided between the government No sufficient reason is, therefore, perceived, of the Union, and those of the States. They why it may not pass as incidental to those are each sovereign, with respect to the objects powers which are expressly given, if it be a committed to it, and neither sovereign with direct mode of executing them. respect to the objects committed to the other. But the constitution of the United States We cannot comprehend that train of reason- has not left the right of Congress to emp!oy ing which would maintain, that the extent of — the necessary means, for the execution of power granted by the people is to be ascer- the powers conferred on the government, to tained, not by the nature and terms of the — general reasoning. To its enumeration of powgrant, but by its date. Some State constitu- ers is added that of making “all laws which tions were formed before, some since that of _ shall be necessary and proper, for carrying the United States. We cannot believe that into execution the foregoing powers, and all their relation to each other is in any degree other powers vested by this constitution, in dependent upon this circumstance. Their re- the government of the United States, or in spective powers must, we think, be precisely any department thereof.”

the same, as if they had been formed at the The counsel for the State of Maryland same time. Had they been formed at the have urged various arguments, to prove that same time, and had the people conferred on _ this clause, though in terms a grant of power, the general government the power contained is not so in effect; but is really restrictive of

in the constitution, and on the States the the general right, which might otherwise be whole residuum of power, would it have been implied, of selecting means of executing the

asserted that the government of the Union enumerated powers... . was not sovereign, with respect to those ob- But the argument on which most reliance jects which were entrusted to it, in relation is placed, is drawn from the peculiar language to which its laws were declared to be su- of this clause. Congress is not empowered by preme? If this could not have been asserted, it to make all laws, which may have relation we cannot well comprehend the process of to the powers conferred on the government, reasoning which maintains, that a power ap- but such only as may be “wecessary and

pertaining to sovereignty cannot be con- proper” for carrying them into execution. nected with that vast portion of it which is The word “necessary” is considered as congranted to the general government, so far as trolling the whole sentence, and as limiting it is calculated to subserve the legitimate ob- the right to pass laws for the execution of the jects of that government. The power of cre- granted powers, to such as are indispensable, ating a corporation, though appertaining to and without which the power would be nugasovereignty, is not, like the power of making tory. That it excludes the choice of means,

war, or levying taxes, or of regulating com- and leaves to Congress, in each case, that merce, a great substantive and independent only which is most direct and simple.

power, which cannot be implied as incidental Is it true, that this is the sense in which to other powers, or used as a means of exe- the word ‘‘necessary” is always used? Does cuting them. It is never the end for which it always import an absolute physical necesother powers are exercised, but a means by _ sity, so strong, that one thing, to which anwhich other objects are accomplished. No other may be termed necessary cannot exist contributions are made to charity for the sake without that other? We think it does not

M’CuLLocH v. MARYLAND 217 If reference be had to its use, in the common _ the properties of a legal code. It would have affairs of the world, or in approved authors, been an unwise attempt to provide, by imwe find that it frequently imports no more mutable rules, for exigencies which, if forethan that one thing is convenient, or useful, seen at all, must have been seen dimly, and or essential to another. To employ the means which can be best provided for as they occur. necessary to an end, is generally understood To have declared that the best means shall as employing any means calculated to pro- not be used, but those alone without which duce the end, and not as heing confined to the power given would be nugatory, would those single means, without which the end have been to deprive the legislature of the would be entirely unattainable. Such is the capacity to avail itself of experience, to excharacter of human language, that no word ercise its reason, and to accommodate its conveys to the mind, in all situations one legislation to circumstances. .. . single definite idea; and nothing is more com- This clause, as construed by the State of mon than to use words in a figurative sense. Maryland, would abridge and almost an-

Almost all compositions contain words, nihilate this useful and necessary right of which, taken in their rigorous sense, would _ the legislature to select its means. That this convey a meaning different from that which could not be intended is, we should think, is obviously intended. It is essential to just had it not been already controverted, too apconstruction, that many words which import parent for controversy. ... something excessive, should be understood in The result of the most careful and atten. more mitigated sense—in that sense which _ tive consideration bestowed upon this clause cémmon usage justifies. The word ‘“neces- is, that if it does not enlarge, it cannot be sary” is of this description. It has not a fixed construed to restrain the powers of Congress,

character peculiar to itself. It admits of all or to impair the right of the legislature to degrees of comparison; and is often con- exercise its best judgment in the section of nected with other words, which increase or measures to carry into execution the constidiminish the impression the mind receives of _ tutional powers of the government. If no the urgency it imports. A thing may be neces-_ other motive for its insertion can be sugsary, very necessary, absolutely or indispensa- _ gested, a sufficient one is found in the desire bly necessary. To no mind would the same idea to remove all doubts respecting the right to

be conveyed, by these several phrases. ... legislate on that vast mass of incidental This word, then, like others, is used in various powers which must be involved in the consti-

senses; and, in its construction, the subject, tution, if that instrument be not a splendid the context, the intention of the person using bauble.

them, are all to be taken into view. We admit, as all must admit, that the Let this be done in the casc under con- powers of the government are limited, and sideration. The subject is the execution of that its limits are not to be transcended. But those great powers on which the welfare of a we think the sound construction of the connation essentially depends. It must have _ stitution must allow to the national legisla-

been the intention of those who gave these ture that discretion, with respect to the powers, to insure, as far as human prudence means by which the powers it confers are to could insure, their beneficial execution. This be carried into execution, which will enable could not be done by confiding the choice of _ that body to perform the high duties assigned means to such narrow limits as not to leave’ to it, in the manner most beneficial to the

it in the power of Congress to adopt any people. Let the end be legitimate, let it be which might be appropriate, and which were’ within the scope of the constitution, and all

conducive to the end. This provision is made means which are appropriate, which are in a constitution intended to endure for ages plainly adapted to that end, which are not to come, and, consequently, to be adapted prohibited, but consist with the letter and

to the various crises of human affairs. To spirit of the constitution, are constituhave prescribed the means by which govern- tional... . ment should, in all future time, execute its If a corporation may be employed indis-

powers, would have, been to change, entirely, criminately with other means to carry into the character of the instrument, and give it execution the powers of the government, no

218 DOCUMENTS OF AMERICAN HiIsToRy particular reason can be assigned for exclud- that. its capacity to withdraw any subiect ing the use of a bank, if required for its fiscal from the action of even this power, is adoperations. To use one, must be within the mitted. The States are expressly forbidden to discretion of Congress, if it be an appropriate lay any duties on imports or exports, except mode of executing the powers of government. what may be absolutely necessary for exeThat it is a convenient, a useful, and essen- cuting their inspection laws. If the obligation tial instrument in the prosecution of its fiscal of this prohibition must be conceded—if it operations, is not now a subject of con- may restrain a state from the exercise of its

troversy. ... | taxing power on imports and exports, the

But were its necessity less apparent, none same paramount character would seem to can deny its being an appropriate measure; restrain, as it certainly may restrain, a state and if it is, the degree of its necessity as has from such other exercise of this power, as is - been very justly observed, is to be discussed in its nature incompatible with, and repugin another place. Should Congress, in the exe- nant to, the constitutional laws of the Union.

cution of its powers, adopt measures which A law, absolutely repugnant to another, as are prohibited by the constitution; or should _ entirely repeals that other as if express terms Congress, under the pretext of exccuting its of repeal were used.

powers, pass laws for the accomplishment of On this ground the counsel for the bank objects not intrusted to the government, it place its claim to be exempted from the power

would become the painful duty of this of a State to tax its operations. There is no tribunal, should a case requiring such a de- express provision for the case, but the claim cision come before it, to say that such an act has been sustained on a principle which so was not the law of the land. But where the entirely pervades the constitution, is so inlaw is not prohibited, and is really calculated termixed with the materials which compose to effect any of the objects intrusted to the it, so interwoven with its web, so blended government, to undertake here to inquire with its texture, as to be incapable of being into the degree of its necessity, would be to separated from it, without rending it into pass the line which circumscribes the ju- — shreds. dicial department, and to tread on legislative This great principle is, that the constituground. This court disclaims all pretensions tion and the laws made in pursuance thereof

to such a power. ... are supreme; that they control the constitu-

After the most deliberate consideration, it tion and laws of the respective States, and is the unanimous and decided opinion of this cannot be controlled by them. From this, court, that the act to incorporate the Bank which may be almost termed an axiom, other of the United States is a law made in pursu- propositions are deduced as corollaries, on ance of the constitution, and is a part of the the truth or error of which, and on their ap-

supreme law of the land... . plication to this case, the cause has been sup-

It being the opinion of the Court, that the posed to depend. These are, 1. That a power act incorporating the bank is constitutional; to create implies a power to preserve. 2. That and that the power of establishing a branch a power to destroy, if wielded by a different

in the State of Maryland might be properly hand, is hostile to, and incompatible with, exercised by the bank itself, we proceed to these powers to create and preserve. 3. That

inquire— where this repugnancy exists, that authority

2. Whether the State of Maryland may, which is supreme must control, not yield to without violating the constitution, tax that that over which it is supreme... .

branch? The power of Congress to create, and of

That the power of taxation is one of vital course to continue, the bank, was the subimportance; that it is retained by the States; ject of the preceding part of this opinion;

that it is not abridged by the grant of a and is no longer to be considered as quessimilar power to the government of the _ tionable. Union; that it is to be concurrently exer- That the power of taxing it by the States cised by the two governments: are truths may be exercised so as to destroy it, is too which have never been denied. But, such is obvious to be denied. But taxation is said to the paramount character of the constitution, be an absolute power, which acknowledges

M’CurttocH Vv. MARYLAND 219 no other limits than those expressly pre- tution, and the laws made in pursuance scribed in the constitution, and like sovereign thereof, to be supreme; but this principle power of every other description, is trusted would transfer the supremacy, in fact, to the

to the discretion of those who use it.... States.

The argument on the part of the State of If the States may tax one instrument, emMaryland, is, not that the states may di- ployed by the government in the execution of rectly resist a law of Congress, but that they its powers, they may tax any and every other

may exercise their acknowledged powers instrument. They may tax the mail; they upon it, and that the Constitution leaves may tax the mint; they may tax patent them this right in the confidence that they rights: they may tax the papers of the cus-

will not abuse it... . tom-house; they may tax Judicial process; ... That the power to tax involves the they may tax all the means employed by the

power to destroy; that the power to destroy government, to an excess which would defeat may defeat and render useless the power to all the ends of government. This was not in-

create: that there is a plain repugnance, in tended by the American people. They did conferring on one government a power to not design to make their government decontrol the constitutional measures of an- pendent on the States. ... other, which other, with respect to those very The question is, in truth, a question of sumeasures, is declared to be supreme over premacy; and if the right of the States to that which exerts the control, are propositions tax the means employed by the general gov-

not to be denied. But all inconsistencies are ernment be conceded, the declaration that

) to be reconciled by the magic of the word the constitution, and the laws made in pur-

CONFIDENCE. Taxation, it is said, does not suance thereof, shall be the supreme law of necessarily and unavoidably destroy. To carry the land, is empty and unmeaning declama-

it to the excess of destruction would be an tion....

abuse, to presume which, would banish that It has also been insisted, that, as the power confidence which is essential to all govern- of taxation in the general and State govern-

ment. ments is acknowledged to be concurrent, But is this a case of confidence? Would every argument which would sustain the the people of any one State trust those of right of the general government to tax banks another with a power to control the most chartered by the States, will equally sustain insignificant operations of their State govern- the right of the States to tax banks chartered ment? We know they would not. Why, then, by the general government. should we suppose that the people of any one But the two cases are not on the same State should be willing to trust those of an- reason. The people of all the States have other with a power to control the operations created the general government, and have of a government to which they have con- conferred upon it the general power of taxafided their most important and most valuable tion. The people of all the States, and the interests? In the legislature of the Union States themselves, are represented in Conalone, are all represented. The legislature of gress, and, by their representatives, exercise the Union alone, therefore. can be trusted by this power. When they tax the chartered inthe people with the power of controlling stitutions of the States, they tax their conmeasures which concern all, in the confidence _ stitutents; and these taxes must be uniform. that it will not be abused. This, then, is not But when a State taxes the operations of the a case of confidence, and we must consider it government of the United States, it acts upon

as it really is. institutions created, not by their own conIf we apply the principle for which the stituents, but by people over whom they

State of Maryland contends, to the constitu- claim no control. It acts upon the measures tion generally, we shall find it capable of of a government created by others as well as changing totally the character of that instru- themselves, for the benefit of others in comment. We shall find it capable of arresting mon with themselves. The difference is that all the measures of the government, and of which always exists, and always must exist,

prostrating it at the foot of the states. The between the action of the whole on a part, American people have declared their consti- and the action of a part on the whole—be-

220 DOCUMENTS OF AMERICAN History tween the laws of a government declared to Congress to carry into execution the powers be supreme, and those of a government vested in the general government. This is, we which, when in opposition to those laws, think, the unavoidable consequence of that

is not supreme... . supremacy which the constitution has de-

The Court has bestowed on this subject its clared. We are unanimously of opinion, that most deliberate consideration. The result isa the law passed by the legislature of Maryconviction that the States have no power, by land, imposing a tax on the Bank of the

taxation or otherwise, to retard, impede, United States, is unconstitutional and

burden, or in any manner control, the opera- void... . tions of the constitutional laws enacted by Judgment Reversed.

4 Wheaton, 518 |

119, TRUSTEES OF DARTMOUTH COLLEGE v. WOODWARD 1819

Error to the supreme court of New Hampshire. made for the object, which will be conferred Dartmouth College had been established in 1769 on the corporation as soon as it shall be

by a charter granted by King George IH]. In cyeated. The charter is granted, and on its 1816 the State of New Hampshire altered this faith the property is conveyed. Surely in this charter, and organized, under theThe new old charter, @ transaction every ingredient new board of trustees. board of trustees vo . of a complete refused to accept this change, and argued that and legitimate contract is to be found. The the act of New Hampshire was unconstitutional, Points for consideration are, 1. Is this con-

because an impairment of contract contrary to tract protected by the constitution of the the Federal Constitution. The opinion of the United States? 2. Is it impaired by the acts Court that a corporation charter was a contract under which the defendant holds? was of considerable importance in the subsequent 1. On the first point it has been argued pusiness history °" mw the den . Its Significance, that the word “contract,” in its broadest

harl iver Bridge v. Warren Bridge . , . ese

joweve#s was immed bY tae decision O1 the court conse, would comprehend the political rela-

Me Doc No. 15s. There is a voluminous liters. tions between the government and Its cititure on the Dartmouth College case. See, 2€NS, would extend to offices held within a

J. M. Shirley, Dartmouth College Causes; State for state purposes, and to many of

A. Beveridge, Marshall, Vol. IV, ch. v.; E. S. those laws concerning civil institutions, which Corwin, John Marshall and the Constitution, must change with circumstances, and be modp. 155 ff; C. Warren, Supreme Court (1928 ed.), ified by ordinary legislation; which deeply Vol. I, p. 475 ff.; G. T. Curtis, Daniel Webster, concern the public, and which, to preserve Vol. I; C. Fuess, Daniel Webster, Vol. I; and the good government, the public judgment must il uminating note in J. R. Long, Cases on Con- control. That even marriage is a contract, and

stitutional Law, p. 240. its obligations are affected by the laws re-

specting divorces. That the clause in the con-

MarsHALt, C. J.: stitution, if construed in its greatest latitude,

. .. This court can be insensible neither would prohibit these laws. Taken in its broad, to the magnitude nor delicacy of this ques- unlimited sense, the clause would be an untion. The validity of a legislative act is to be profitable and vexatious interference with the examined; and the opinion of the highest internal concerns of a state, would unneceslaw tribunal of a state is to be revised: an sarily and unwisely embarrass its legislation, opinion which carries with it intrinsic evi- and render immutable those civil institutions dence of the diligence, of the ability, and the | which are established for purposes of internal

integrity with which it was formed... . government, and which, to subserve those It can require no argument to prove that purposes, ought to vary with varying circumthe circumstances of this case constitute a stances. That as the framers of the constitucontract. An application is made to the crown — tion could never have intended to insert in

for a charter to incorporate a religious and that instrument a provision so unnecessary, literary institution. In the application it is so mischievous, and so repugnant to its genstated that large contributions have been eral spirit, the term “contract” must be un-

TRUSTEES OF DARTMOUTH COLLEGE v. WOODWARD 221 derstood in a more limited sense. That it ture of the state may act according to its own must be understood as intended to guard judgment, unrestrained by any limitation of against a power of at least doubtful utility, its power imposed by the constitution of the the abuse of which had been extensively felt, United States. and to restrain the legislature in future from But if this be a private eleemosynary insti-

violating the right to property. That anterior fuéion, endowed with a capacity to take to the formation of the constitution, a course property for objects unconnected with govof legislation had prevailed in many, if not in ernment, whose funds are bestowed by indiall. of the states, which weakened the con- viduals on the faith of the charter; if the donfidence of man in man, and embarrassed all ors have stipulated for the future disposition transactions between individuals, by dis- and management of those funds in the manner

pensing with a faithful performance of en- prescribed by themselves; there may be gagements. To correct this mischief, by re- more difficulty in the case, although neither straining the power which produced it, the the persons who have made these stipulations, state legislatures were forbidden “to pass any _ nor those for whose benefit they were made, law impairing the obligation of contracts,’ should be parties to the cause. Those who that is, of contracts respecting property, are no longer interested in the property may

under which some... individual could yet retain such an interest in the preservation claim a right to something beneficial to him- of their own arrangements as to have a right

self; and that, since the clause in the consti- to insist that those arrangements shall be tution must in construction receive some held sacred. Or, if they have themselves dlislimitation, it may be confined, and ought to appeared. it becomes a subject of serious and be confined, to cases of this description, anxious inquiry whether those whom they to cases within the mischief it was intended to have legally empowered to represent them

remedy. forever may not assert all the rights which The general correctness of these observa- they possessed while in being; whether, if tions cannot be controverted. That the fram- they be without personal representatives who ers of the constitution did not intend to re- may feel injured by a violation of the com-

strain the states in the regulation of their pact, the trustees be not so completely their civil institutions, adopted for internal gov- representatives in the eye of the law as to ernment, and that the instrument they have _ stand in their place, not only as respects the given us is not to be so construed, may be government of the college, but also as readmitted. The provision of the constitution spects the maintenance of the college charter. never has been understood to embrace other It becomes then the duty of the court most contracts than those which respect property seriously to examine this charter, and to as-

or some object of value, and confer rights certain its true character. ... which may be asserted in a court of justice. Whence, then, can be derived the idea that It has never been understood to restrict the Dartmouth College has become a public ingeneral right of the legislature to legislate on stitution, and its trustees public officers. . . .

the subject of divorces... . Not from the source whence its funds were

The parties in this case differ less on gen- drawn; for its foundation is purely private eral principles, less on the true construction and eleemosynary—not from the application of the constitution in the abstract, than on of those funds, for money may be given for the application of those principles to this education and the persons receiving it do not, case, and on the true construction of the by being employed in the education of youth, charter of 1769. This is the point on which become members of the civil government. Is

the cause essentially depends. If the act of it from the act of incorporation? Let this incorporation be a grant of political power, subject be considered. if it create a civil institution vo be employed A corporation is an artificial being, invisiin the administration of the government, or bie, intangible, and existing only in contemif the funds of the college be public property, plation of law. Being the mere creature of or if the state of New Hampshire, as a gov- __ law, it possesses only those properties which

ernment, be alone interested in its transac- the charter of its creation confers upon it, tions, the subject is one in which the legisla- either expressly or as incidental to its very

222 DocUMENTS OF AMERICAN HIsTORY existence. These are such as are supposed terest in the property confided to their probest calculated to effect the object for which tection. Vet the contract would at that time it was created. Among the most important have been deemed sacred by all. What has are immortality, and, if the expression may since occurred to strip it of its inviolability? be allowed. individuality; properties, by Circumstances have not changed it. In reawhich a perpetual succession of many per- son, in justice, and in law, it is now what it sons are considered as the same, and may act was in 1769. as a single individual. They enable a corpora- This is plainly a contract to which the dontion to manage its own affairs, and to hold ors, the trustees, and the crown (to whose Property without the perplexing intricacies, rights and obligations New Hampshire sucthe hazardous and endless necessity, of per- ceeds) were the original parties. It is a conpetual conveyances for the purpose of trans- tract made on a valuable consideration. It is mitting it from hand to hand. It is chiefly for a contract for the security and disposition of the purpose of clothing bodies of men in suc- property. It is a contract on the faith of cession with these qualities and capacities which real and personal estate has been conthat corporations were invented and are in veyed to the corporation. It is then a conuse. By these means, a perpetual succession tract within the letter of the constitution, of individuals are capable of acting for the and within its spirit also, unless the fact that Promotion of the particular object, like one the property is invested by the donors in

immortal being... . trustees for the promotion of religion and From this review of the charter, it appears education, for the benefit of persons who are that Dartmouth College is an eleemosynary perpetually changing, though the objects reinstitution, incorporated for the purpose of main the same, shall create a particular ex-

perpetuating the application of the bounty ception, taking this case out of the prohiof the donors to the specified objects of that bition contained in the constitution.

bounty; that its trustees or governors were It is more than possible that the preservaoriginally named by the founder, and invested _ tion of rights of this description was not par-

with the power of perpetuating themselves; ticularly in the view of the framers of the that they are not public officers, nor is it a constitution when the clause under considercivil institution, participating in the adminis- ation was introduced into that instrument. tration of government; but a charity school, It is probable that interferences of more freor a seminary of education, incorporated for quent recurrence, to which the temptation the preservation of its property, and the per- was stronger and of which the mischief was petual application of that property to the ob- more extensive, constituted the great motive

jects of its creation. ... for imposing this restriction on the state legis-

According to the theory of the British con- _latures. But although a particular and a rare stitution, their Parliament is omnipotent. To case may not in itself be of sufficient magniannul corporate rights might give a shock to tude to induce a rule, yet it must be govpublic opinion, which that government has erned by the rule, when established, unless chosen to avoid; but its power is not ques- some plain and strong reason for excluding it tioned. Had Parliament, immediately after can be given. It is not enough to say that this the emanation of this charter and the execu- particular case was not in the mind of the tion of those conveyances which followed it, convention when the article was framed, nor annulled the instrument, so that the living of the American people when it was adopted. donors would have witnessed the disappoint- It is necessary to go farther, and to say that, ment of their hopes, the perfidy of the trans- had this particular case been suggested, the action would have been universally acknowl- language would have been so varied as to exedged. Yet then, as now, the donors would clude it, or it would have been made a spe-

have had no interest in the property; then, cial exception. The case, being within the \ as now, those who might be students would words of the rule, must be within its operahave had no rights to be violated; then, as tion likewise, unless there be something in now, it might be said that the trustees, in the literal construction so obviously absurd, whom the rights of all were combined, ‘pos- or mischievous, or repugnant to the general] sessed no private, individual, beneficial mm- spirit of the instrument as to justify those

FLORIDA TREATY 223 who expound the constitution in making it an are also appointed by the executive of New

exception. ; Hampshire, who have power to inspect and On what safe and intelligible ground can contro! the most important acts of the trus-

this exception stand? There is no expression _ tees. in the constitution, no sentiment delivered by On the effect of this law two opinions canits contemporaneous expounders, which would not be entertained. Between acting directly

justify us in making it... . and acting through the agency of trustees

Almost all eleemosynary corporations, and overseers no essential difference is perthose which are created for the promotion of ceived. The whole power of governing the

religion, of charity, or of education, are of college is transformed from trustees apthe same character. The law of this case is pointed according to the will of the founder,

the law of all. ... expressed in the charter, to the executive of The opinion of the court, after mature de- New Hampshire. The management and apliberation, is, that this is a contract, the ob- plication of the funds of this eleemosynary ligation of which cannot be impaired without institution, which are placed by the donors violating the constitution of the United in the hands of trustees named in the charter, States. This opinion appears to us to be and empowered to perpetuate themselves, are equally supported by reason and by the for- placed by this act under the control of the

mer decisions of this court. government of the state. The will of the 2. We next proceed to the inquiry whether _ state is substituted for the will of the donors

its obligation has been impaired by those’ in every essential operation of the college. acts of the legislature of New Hampshire to This is not an immaterial change. . . . This

which the special verdict refers. ... system is totally changed. The charter of

The obligations, then, which were created 1769 exists no longer. It is reorganized; and by the charter to Dartmouth College were reorganized in such a manner as to convert the same in the new that they had been in a literary institution, molded according to the the old government. The power of the gov- will of its founders and placed under the conernment was also the same. A repeal of this trol of private literary men, into a machine charter at any time prior to the adoption of entirely subservient to the will of governthe present constitution of the United States ment. This may be for the advantage of this would have been an extraordinary and un-_ college in particular, and may be for the adprecedented act of power, but one which vantage of literature in general; but it is not could have been contested only by the re- according to the will of the donors, and is strictions upon the legislature to be found in subversive of that contract on the faith of the constitution of the state. But the consti- which their property was given... . tution of the United Sates has imposed this It results from this opinion, that the acts additional limitation, that the legislature of a of the legislature of New Hampshire, which state shall pass no act “impairing the obliga- are stated in the special verdict found in this

tion of contracts.” cause, are repugnant to the constitution of It has been already stated that the act “to the United States; and that the judgment on amend the charter and enlarge and improve _ this special verdict ought to have been for

the corporation of Dartmouth College” in- the plaintiffs. The judgment of the state creases the number of trustees to twenty-one, court must, therefore, be reversed.

gives the appointment of the additional Mr. Justice Washington and Mr. Justice members to the executive of the state, and Story rendered separate concurring cpinions. creates a board of overseers, to consist of Mr. Justice Duvall dissented. twenty-five persons, of whom twenty-one

120. FLORIDA TREATY February 22, 1819 (Malloy, ed. Treaties, Conventions, etc. Vol. II, p. 1651 ff.) This treaty concluded long-drawn out negotia- the western boundaries of the United States. It. tions for the cession of Florida, and marked out was later charged that Sec. J. Q. Adams had

224 DOCUMENTS OF AMERICAN History surrendered our title to Texas by this treaty. thence, along the said parallel, to the South Fone the eps iatification man chon to secure Sea: All the islands in the Sabine, and the the revolting Spanish Colonies On the Treaty, said Red and Arkansas Rivers, throughout see H. B. Fuller, Purchase of Florida: T M lhe course thus described, to belong to the Marshall, Western Boundary of the Louisiana United States ; but the use of the waters, and

1,‘.t.

Purchase; S. F. Bemis, ed. American Secretaries the navigation of the Sabine to the sea, and

of State, Vol. IV, p. 7 if. of the said rivers Roxo and Arkansas, throughout the extent of the said boundary, on their respective banks, shall be common to

. - . Art. IT. His Catholic Majesty cedes the respective inhabitants of both nato the United States, in full property and tions... . sovereignty, all the territories which belonged ArT. V. The inhabitants of the ceded terto him, situated to the eastward of the Mis- _ ritories shall be secured in the free exercise sissippi. known by the name of East and of their religion, without any restriction. .. . West Florida. The adjacent islands dependent Art. VI. The inhabitants of the territories on said provinces, all public lots and squares, which His Catholic Majesty cedes to the vacant lands, public edifices, fortifications, United States, by this treaty, shall be inbarracks, and other buildings, which are not corporated in the Union of the United States, private property, archives and documents, as soon as may be consistent with the prinwhich relate directly to the property and sov- ciples of the Federal Constitution, and adereignty of said provinces, are included in mitted to the en joyment of all the privileges,

this article. ... rights, and immunities of the citizens of the

Art. 111. The boundary line between the United States... . two countries, west of the Mississippi. shail ArT. Xl. The United States, exonerating begin on the Gulph of Mexico, at the mouth Spain from all demands in future, on account

of the river Sabine, in the sea, continuing of the claims of their citizens to which the north, along the western bank of that river, renunciations herein contained extend, and to the 32d degree of latitude; thence, by a line considering them entirely cancelled, underdue north, to the degree of latitude where it take to make satisfaction for the same, to an strikes the Rio Roxo of Natchitoches, or Red amount not exceeding five millions of dollars. River; thence following the course of the Rio To ascertain the full amount and validity of Roxo westward, to the degree of longitude 100 those claims, a commission, to consist of west from London and 23 from Washington; three Commissioners, citizens of the United then, crossing the said Red River, and running States, shall be appointed by the President,

thence, by a line due north, to the river Ar- by and with the advice and consent of the kansas, thence, following the course of the Senate. ... southern bank of the Arkansas, to its source, Art. XV. Spanish vessels, laden only in latitude 42 north; and thence, by that with productions of Spanish growth or manuparallel of latitude, to the South Sea. The facture, coming directly from Spain, or her whole being as laid down in Melish’s map of _ colonies, ‘‘shall be admitted, for the term of

the United States, published at Philadelphia, twelve years, to the ports of Pensacola and improved to the first of January, 1818. But St. Augustine, without paying other or higher if the source of the Arkansas River shall be duties on their cargoes, or of tonnage, than

found to fall north or south of latitude 42, will be paid by the vessels of the United

then the line shall run from the said source States. During the said term no other nation due north ur south, as the case may be, till shall enjoy the same privileges within the it meets the said parallel of latitude 42, and ceded territories. . . .

121. THE MISSOURI COMPROMISE 1819-1821

The Territory of Missouri was part of the guaranteed in their liberty, property, and reLouisiana Purchase; by the terms of this pur- _ ligion. When in 1818 Missouri petitioned for ad-

chase the inhabitants of the Territory were mission to the Union as a State, the question

Tue MissourRt COMPROMISE 225 arose whether this guaranty covered property thereof into the Union, shall be free but may in slaves of whom there were some two or three he held to service until the age of twentythousand in the Territory. In the course of the five years, discussion of the enabling act, Representative Tallmadge of New York offered an amendment

excluding slavery from the State. This amendment 2. Tur Tavtor AMENDMENT

passed theand House in the Senate. That January summer fallbut thefailed Missouri question was the y26, 49,1820

chief political issue before the country; Congress (Annals of the Congress of the United States, was bombarded with pctitions from State leg'sla- 16th Cong. Ist. Sess. Vol. I, p. 947) tures and other bodies on the slavery issue. In The reading of the bill proceeded as far as the new Congress the positions of the House and {he fourth section: when

the Senate are indicated by the passage in the Mr. Taytor, of New York, proposed to House of the Taylor Amendment, in the senate amend the bill by incorporating in that sec-

of the Thomas Amendment. application . het follow; ae provision. Maine for admission as a StateThe offered Congressoftion e 0 Ow1ng

a way out of the difficulty. A conference com- Section 4, line 25, insert the following mittee reported bills to admit Maine to State- after the word “States”; ‘And shall ordain hood, and to admit Missouri with the Thomas and establish, that there shall be neither Amendment. An act authorizing Missouri to form slavery nor involuntary servitude in the said

a state government was approved March 6, but State, otherwise than in the punishment of the constitution which the Missouri Convention crimes, whereof the party shall have been drew up contained a clause obnoxious to the duly convicted: Provided, always, That any anti-slavery element, and probably unconstitu- person escaping into the same, from whom tional, and Congress refused to admit the State lab ‘ce is lawfully claimed j under this constitution. A conference committee aDOr OF Service Is awl y Claimed In any worked out a solution to the problem which was other State, such fugitive may be lawfully provided in the Resolutions for the admission of reclaimed, and conveyed to the person claimMissouri of March 2. The conditions laid down ing his or her labor or service as aforesaid: were accepted by the legislature of Missouri in And provided, also, That the said provision June, and Missouri was admitted to Statehood shall not be construed to alter the condition

by proclamation of August 10. On the Missouri or civil rights of any person now held to Compromise see F. J. Turner, Rise of the New service or labor in the said Territory,”

West, ch. x; H. Von Holst, Constitutional and Political History of the United States, Vol. I, . 324 ff.; J. B. Mc Master, History of the People

of the iinsted States, Vol. IV, ch. vin: FC. 3. THE THomas AMENDMENT

Shoemaker, Missouri’s Struggle for Statehood, February 17, 1820 1804-1821; J. A. Woodburn, “Historical Sig- (Annals of the Congress of the United States, nificance of the Missouri Compromise,” Amer. 16th Cong. Ist Sess. Vol. I, p. 427) Hist. Assoc. Report, 1893; F. R. Hodder, “Side And be it further enacted, That, in all that Lights on the Missouri Compromises” Amer. Hist. territory ceded by France to the United nec, Ror, 12: free, Soe #8 Suates, under the name of Louisiana, which ments on Federal Relations, p. 193 ff.; C. R. lies north of thirty-six degrees and thirty King, Life and Correspondence of Rufus King, nutes north latitude, excepting only such

Vol. VI. part thereof as is included within the limits ' of the State contemplated by this act, slavery and involuntary servitude, otherwise than

1 Tue TarpMApGE AMENDMENT in the punishment of crimes whereof the

February 13, 1819 party shall have been duly convicted, shall be

(Journal of the House of Representatives, 15th and is hereby forever prohibited: Provided

Congress, 2nd. Sess. p. 272) always, That any person escaping into the And provided also, That the further intro- same, from whom labor or service is lawduction of slavery or involuntary servitude fully claimed in any State or Territory of be prohibited, except for the punishment of the United States, such fugitive may be lawcrimes, whereof the party shall be duly con- fully reclaimed, and conveyed to the person victed; and that all children of slaves, born claiming his or her labor or service, as aforewithin the said state, after the admission _ said.

226 DOCUMENTS OF AMERICAN HISTORY 4. Missourr Enaptine Act of the United States, who shall have arrived

at the age of twenty-one years, and have re-

March 6, 1820 sided in said territory three months previous (U. S. Statutes at Large, Vol. III, p. 545 ff.) to the day of election, and all other persons An Act to authorize the people of the Mis- qualified to vote for representatives to the sourt territory to form a constitution and general assembly of the said territory, shall state government, and for the admission be qualified to be elected, and they are hereby of such state into the Union on an equal qualified and authorized to vote, and choose footing with the original states, and to representatives to form a convention... .

prohibit slavery in certain territories. SEc. 8. That in all that territory ceded by Be it enacted That the inhabitants of that France to the United States, under the name portion of the Missouri territory included of Louisiana, which lies north of thirty-six dewithin the boundaries hereinafter designated, grees and thirty minutes north latitude, not be, and they are hereby, authorized to form included within the limits of the state, confor themselves a constitution and state gov- templated by this act, slavery and involuntary ernment, and to assume such name as they — servitude, otherwise than in the punishment shall deem proper; and the said state, when of crimes. whereof the parties shall have been formed, shall be admitted into the Union, duly convicted, shall be, and is hereby, forupon an equal footing with the original states, ever prohibited: Provided always, That any

in all respects whatsoever. person escaping into the same, from whom

Sec. 2. That the said state shall consist labour or service is lawfully claimed, in any of all the territory included within the fol- state or territory of the United States, such lowing boundaries, to wit: Beginning in the fugitive may be lawfully reclaimed and conmiddle of the Mississippi river, on the paral- veyed to the person claiming his or her la-

lel of thirty-six degrees of north latitude; bour or service as aforesaid. thence west, along that parallel of latitude, to the St. Francois river; thence up. and following the course of that river, in the middle 5. THE CoNSsTITUTION oF MissouRI

of the main channel thereof, to the parallel July 19, 1820

of latitude of thirty-six degrees and thirty (Poore, ed., Federal and State Constitutions,

minutes; thence west, along the same, to a Vol. II, p. 1107-8)

point where the said parallel is intersected by Src. 26. The general assembly shall not a meridian line passing through the middle have power to pass laws— of the mouth of the Kansas river, where the 1. For the emancipation of slaves without same empties into the Missouri river, thence, the consent of their owners; or without from the point aforesaid north, along the said paying them. before such emancipation, a full meridian line, to the intersection of the paral- equivalent for such slaves so emancipated; lel of latitude which passes through the rap- and, ids of the river Des Moines, making the said 2. To prevent bona-fide immigrants to this line to correspond with the Indian boundary State, or actual settlers therein, from bringline: thence east, from the point of intersec- ing from any of the United States, or from tion last aforesaid, along the said parallel of any of their Territories, such persons as may latitude, to the middle of the channel of the there be deemed to be slaves, so long as any

main fork of the said river Des Moines; persons of the same description are allowed thence down and along the middle of the _ to be held as slaves by the laws of this State. main channel of the said river Des Moines, They shall have power to pass laws— to the mouth of the same, where it empties 1. To prevent bona-fide immigrants to this into the Mississippi river; thence, due east, State of any slaves who may have committed to the middle of the main channel of the Mis- any high crime in any other State or Terrisissippi river; thence down, and following — tory;

the course of the Mississippi river, in the 2. To prohibit the introduction of any slave middle of the main channel thereof, to the for the purpose of speculation, or as an ar-

place of beginning: ... ticle of trade or merchandise;

Sec. 3. That all free white male citizens 3. To prohibit the introduction of any

LAND LAw OF 1820 227 slave, or the offspring of any slave, who here- Resolved, That Missouri shall be admitted tofore may have been, or who hereafter may into this union on an equal footing with the be, imported from any foreign country into original states, in all respects whatever, upon the United States, or any Territory thereof, the fundamental condition, that the fourth in contravention of any existing statute of clause of the twenty-sixth section of the third

the United States; and, article of the constitution submitted on the 4. To permit the owners of slavesto eman- part of said state to Congress, shall never be

cipate them, saving the right of creditors, construed to authorize the passage of any where the person so emancipating will give law, and that no law shall be passed in consecurity that the slave so emancipated shall formity thereto, by which any citizen, of

not become a public charge. either of the states in this Union, shall be It shall be their duty, as soon as may be, excluded from the enjoyment of any of the to pass such laws as may be necessary— privileges and immunities to which such citi1. To prevent free negroes end [and] mu- zen is entitled under the constitution of the lattoes from coming to and settling in this United States: Provided, That the legislature State, under any pretext whatsoever; and, of the said state, by a solemn public act, shall 2. To oblige the owners of slaves to treat declare the assent of the said state to the them with humanity, and to abstain from all said fundamental condition, and shall transinjuries to them extending to life or limb. mit to the President of the United States, on or before the fourth Monday in November 6. RESOLUTION FOR THE ADMISSION OF next, an authentic copy of the said act;

Missouri upon the receipt whereof, the President, by

March 2, 1821 proclamation, shall announce the fact; where-

(U.S. Statutes at Large, Vol. III, p. 645) upon, and without any further proceeding on Resolution providing for the admission of the the part of Congress, the admission of the State of Missourt into the Union, on a _ said state into this Union shall be considered

certain condition. as complete.

122. LAND LAW OF 1820 April 24, 1820 (U.S. Statuies at Large, Vol. III, p. 566~7) This law reduced the price of public land and the day of purchase, make complete payment

put an end to the credit system established by therefor: . . , the Act of 1800. See, P. J. Treat, National Land

System, 1785-1820; T. Donaldson, The Public ey 1 ’. at irom and after the first day

Domain: its History with Statistics. or July next, the price at which the public

Jands shall be offered for sale, shall be one An act making further provision for the sale dollar and twenty-five cents an acre; and at

of the public lands. every public sale, the highest bidder, who

Be it enacted, That from and after the first shall make payment as aforesaid, shall be the day of July next, all the public lands of the purchaser; but no land shall be sold, either United States, the sale of which is, or may be at public or private sale, for a less price than authorized by law, shall, when offered at pub- _ one dollar and twenty-five cents an acre; and

lic sale, to the highest bidder, be offered in all the public lands which shall have been half quarter sections; and when offered at offered at public sale before the first day of private sale, may be purchased, at the option July next, and which shall then remain unof the purchaser, either in entire sections, sold, as well as the lands that shall thereafter half sections, quarter sections, or half quarter be offered at public sale, according to law,

sections; ... and remain unsold at the close of such public Sec. 2. That credit shall not be allowed sales, shall be subject to be sold at private

for the purchase money on the sale of any of _ sale, by entry at the land office, at one dollar the public lands which shall be sold after the and twenty-five cents an acre, to be paid at

first day of July next, but every purchaser of the time of making such entry as aforeland sold at public sale thereafter, shall, on said; ...

228 DOCUMENTS OF AMERICAN HISTORY 123. COHENS v. VIRGINIA 6 Wheaton, 264 1821

Error to the Quarterly Session Court of Norfolk, lution depends on the construction of

Virginia. P. J. and M. J. Cohen were prosecuted’ either... . tor selling lottery tickets in violation of a Vir- The jurisdiction of the Court, then, being ginia statute. The defendants claimed the Pro- extended by the letter of the constitution to

tection of an act of Congress of 1802 establishing all _ der j F he | a lottery, but they were convicted and fined in the un CASES arising UNCeT i or under tne ‘aws

Virginia Court. The defendants sued out a writ of the United States, it follows that those of error to the Supreme Court under Sec. 25 Who would withdraw any case of this deof the Judiciary Act of 1789. This case involved scription from that jurisdiction must sustain the constitutionality of that Section, and the in- the exemption they claim on the spirit and terpretation of the 11th Amendment to the Con- true meaning of the constitution, which spirit

stitution. See, Beveridge, Marshall, Vol. 1V, and true meaning must be so apparent as to p. 344 ff.; Warren, Supreme Court, ch. xiii. overrule the words which its framers have employed.

MARSHALL, C. J... . Ist. The first ques- The counsel for the defendant In error tion to be considered is, whether the jurisdic- have undertaken to do this; and have laid tion of this Court is excluded by the charac- down the general proposition, that a sovter of the parties, one of them being a State, ereign independent State is not suable, except

and the other a citizen of that State. by its own consent.

The second section of the third article This general proposition will not be con-

of the constitution defines the extent of the troverted. But its consent is not requisite in judicial power of the United States. Jurisdic- each particular case. It may be given in a (ion is given to the Courts of the Union, general law. And if a State has surrendered in two classes of cases. In the first, their any portion of its sovereignty, the question, jurisdiction depends on the character of the whether a liability to suit be a part of this cause, whoever may be the parties. This class | portion, depends on the instrument by which comprehends “all cases in law and equity aris- the surrender is made. If, upon a just con-

ing under this constitution, the laws of the struction of that instrument it shall appear United States, and treaties made, or which that the State has submitted to be sued, then shall be made, under their authority.” This it has parted with this sovereign right of clause extends the jurisdiction of the Court judging in every case on the justice of its to all the cases described, without making in own pretensions, and has intrusted that its terms any exception whatever, and with- power to a tribunal in whose impartiality it out any regard to the condition of the party. confides. If there be any exception, it is to be implied The American States, as well as the Ameriagainst the express words of the article. can people, have believed a close and firm In the second class, the jurisdiction de- union to be essential to their liberty and to pends entirely on the character of the parties. their happiness. They have been taught by In this are comprehended “controversies be- experience that this union cannot exist with-

tween two or more States, between a State out a government for the whole; and they and citizens of another State,’ and “between have been taught by the same experience that

a State and foreign States, citizens or sub- this government would be a mere shadow, jects.” If these be the parties, it is entirely that must disappoint all their hopes, unless unimportant what may be the subject of con- invested with large portions of that SOVtroversy. Be it what it may, these parties ereignty which belongs to independent States. have a constitutional right to come into the Under the influence of this opinion, and thus

courts of the Union... . instructed by experience, the American peo-

A case in law or equity . . . may truly be ple, in the conventions of their respective said to arise under the constitution or a law States, adopted the present constitution. of the United States whenever its correct so- If it could be doubted, whether, from its

CoHENS Vv. VIRGINIA 229 nature, it were not supreme in all cases where tion or laws of the United States. From this it is empowered to act, that doubt would be general grant of jurisdiclion no exception is removed by the declaration. that “this con- made of those cases in which a State may be stitution, and the laws of the United States a party. When we consider the situation of which shall be made in pursuance thereof, the government of the Union and of a State and all treaties made, or which shall be made, in relation to each other, the nature of our

under the authority of the United States, constitution, the subordination of the state shall be the supreme law of the land; and the governments to that constitution, the great judges in every State shall be bound thereby, purpose for which jurisdiction over all cases anything in the constitution or laws of any arising under the constitution and laws of State to the contrary notwithstanding.” This the United States is confided to the judicial is the authoritative language of the American department, are we at liberty to insert in this people; and, if gentlemen please, of the gencral grant, an exception of those cases in American States. It marks, with lines too which a State may be a party? Will the spirit strong to be mistaken, the characteristic dis- of the constitution justify this attempt to tinction between the government of the control its words? We think it will not. We Union, and those of the States. The general think a case arising under the constitution or government, though limited as to its objects, laws of the United States is cognizable in

is supreme with respect to those objects. the Courts of the Union, whoever may be This principle is a part of the constitution; the parties to that case. and if there be any who deny its necessity, Had any doubt existed with respect to the

none can deny its authority. just construction of this part of the section,

To this supreme government ample powers that doubt would have been removed by the are confided; and if it were possible to doubt enumcration of those cases to which the juris-

the great purposes for which they were so diction of the federal Courts is extended, in conlided, the people of the United States consequence of the character of the parties. have declared, that they are given “in order In that enumeration, we find “controversies to form a more perfect union, establish jus- between two or more States, between a State tice, insure domestic tranquillity, provide for and citizens of another State, and between the common defense, promote the general a State and foreign States, citizens or subwelfare, and secure the blessings of liberty jects.” to themselves and their posterity.” With the One of the express objects, then, for which ample powers confided to this supreme gov- the judicial department was established, is ernment for these interesting purposes are the decision of controversies between States, connected many express and important lim- and between a State and individuals. The itations on the sovereignty of the States, mere circumstance, that a State is a party, which are made for the same purposes. The — gives jurisdiction to the Court. How, then, powers of the Union, on the great subjects of | can it be contended, that the very same inwar, peace and commerce, and on many _ strument, in the very same section, should others, are in themselves limitations of the be so construed, as that this same circumsovereignty of the States; but in addition to stance should withdraw a case from the juristhese, the sovereignty of the States is sur- diction of the court, where the constitution rendered in many instances where the sur- or laws of the United States are supposed to render can only operate to the benefit of the have been violated? ... The mischievous people, and where, perhaps, no other power consequences of the construction contended is conferred on Congress than a conservative for on the part of Virginia, are also entitled to power lo maintain the principles established great consideration. It would prostrate, it in the constitution. The maintenance of these has been said, the government and its laws principles in their purity is certainly among at the feet of every State in the Union. And the great duties of the government. One of would not this be its effect? What power of the instruments by which th:s duty may be the government could be executed by its own

peaceably performed is the judicial depart- means, in any State disposed to resist. its ment. It is authorized to decide all cases, of execution by a course of legislation? The laws

every description, arising under the constitu- must be executed by individuals acting

230 DocUMENTS oF AMERICAN History within the several States. If these individuals part of the clause was inserted. It may be

may be exposed to penalties, and if the true, that the partiality of the State tribu-

Courts of the Union cannot correct the nals, in ordinary controversies between a State judgments by which these penalties may be and its citizens, was not apprehended, and enforced, the course of the government may therefore the judicial power of the Union be, at any time, arrested by the will of one was not extended to such cases; but this was of its members. Each member will possess a not the sole nor the greatest object for which

veto on the will of the whole. ... this department was created. A more im-

Different States may entertain different portant, a much more interesting object, was opinions on the true construction of the con- the preservation of the constitution and laws

stitutional powers of Congress... . of the United States, so far as they can be But a constitution is framed for ages to preserved by judicial authority; and therecome, and is designed to approach immortal- fore the jurisdiction of the Courts of the ity as nearly as human institutions can ap- Union was expressly extended to all cases proach it. Its course cannot always be tran- arising under that constitution and those quil. It is exposed to storms and tempests, Jaws. If the constitution or laws may be vioand its framers must be unwise statesmen lated by proceedings instituted by a State indeed, if they have not provided it, so far against its own citizens, and if that violation as its nature will permit, with the means of — may be such as essentially to affect the conself-preservation from the perils it may be © stitution and the laws, such as to arrest the destined to encounter. No government ought progress of government in its constitutional to be so defective in its organization as not course, why should these cases be excepted to contain within itself the means of securing from that provision which expressly extends the execution of its own laws against other the judicial power of the Union to all cases dangers than those which occur every day. arising under the constitution and laws? Courts of justice are the means most usually After bestowing on this subject the most employed; and it is reasonable to expect that attentive consideration, the Court can per-

a government should repose on its own ceive no reason founded on the character of Courts, rather than on others. There is cer- the parties for introducing an exception tainly nothing in the circumstances under which the constitution has not made; and we which our constitution was formed, nothing think that the judicial power, as originally in the history of the times, which would jus- given, extends to all cases arising under the tify the opinion that the confidence reposed constitution or a law of the United States, in the States was so implicit as to leave in whoever may be the parties. . . . them and their tribunals the power of resist- This leads to the consideration of the 11th Ing or defeating, in the form of law, the legiti- Amendment... .

mate measures of the Union. ... It is, then, the opinion of the Court, that It has been also urged, as an additional ob- the defendant who removes a judgment renjection to the jurisdiction of the Court, that dered against him by a State Court into this cases between a State and one of its own Court, for the purpose of re-examining the citizens, do not come within the general question, whether that judgment be in vioscope of the constitution; and were obviously lation of the constitution or laws of the never intended to be made cognizable in the United States, does not commence or prose-

federal Courts. ... cute a suit against the State, whatever may

If jurisdiction depended entirely on the be its opinion where the effect of the writ character of the parties, and was not given may be to restore the party to the possession where the parties have not an original right of a thing which he demands. to come into Court, that part of the 2d sec- But should we in this be mistaken the error tion of the 3d article, which extends the ju- does not affect the case now before the Court. dicial power to all cases arising under the’ If this writ of error be a suit in the sense of constitution and laws of the United States, the 11th amendment, it is not a suit comwould be mere surplusage. It is to give juris- menced or prosecuted “by a citizen of an- | diction where the character of the parties other State or by a citizen or subject of any

would not give it, that this very important foreign State.” It is not then within the

CoHENS V. VIRGINIA 231 amendment, but is governed by the consti- dividuals or governments within the Ameritution as originally framed, and we have al- can territory. The constitution and laws of a

ready seen, that in its origin, the judicial State, so far as they are repugnant to the power was extended to all cases arising under constitution and laws of the United States, the constitution or laws of the United States, are absolutely void. These States are con-

without respect to parties. stituent parts of the United States. They are 2d. The second objection to the jurisdic- members of one great empire—for some purtion of the Court is that its appellate power poses sovereign, for some purposes subordicannot be exercised, in any case, over the nate. judgment of a State Court. This objection is In a government so constituted is it unsustained chiefly by arguments drawn from reasonable that the judicial power should the supposed total separation of the judiciary be competent to give efficacy to the constituof a State from that of the Union, and theiren- tional laws of the legislaturer That departtire independence of each other. The argument ment can decide on the validity of the conconsiders the federal judiciary as completely stitution or law of a State, if it be repugnant foreign to that of a State; and as being no to the constitution or to a law of the United more connected with it, in any respect what- States. Is it unreasonable that it should also ever, than the Court of a foreign State. If be empowered to decide on the judgment of this hypothesis be just, the argument founded 4 State tribunal enforcing such unconstituon it is equally so; but if the hypothesis be tional law? Is it so very unreasonable as to not supported by the constitution, the argu- furnish a justification for controlling the

ment fails with it. words of the constitution? We think it is not. This hypothesis is not founded on any We think that, in a government acknowl-

words in the constitution which might seem edgedly supreme with respect to objects of to countenance it, but on the unreasonable- vital interest to the nation, there is nothing ness of giving a contrary construction to inconsistent with sound reason, nothing inwords which seem to require it, and on the compatible with the nature of government, incompatibility of the application of the ap- in making all its departments supreme, so far pellate jurisdiction to the judgments of state as respects those objects, and so far as is

courts with that constitutional relation necessary to their attainment. The exercise

which subsists between the government of of the appellate power over those judgments the Union and the governments of those of the state tribunals which may contravene

States which compose 1t. the constitution or laws of the United States, Let this unreasonableness, this total in- is, we believe, essential to the attainment of

compatibility, be examined. those objects.

That the United States form, for many and The propriety of intrusting the construcfor most important purposes, a single nation, tion of the constitution, and laws made in has not yet been denied. In war we are one pursuance thereof, to the judiciary of the people. In making peace we are one people. Union, has not, we believe, as yet been drawn In all commercial regulations we are one and__in question. It seems to be a corollary from the same people. In many other respects the this political axiom that the federal Courts American people are one, and the govern- should either possess exclusive jurisdiction in ment which is alone capable of controlling such cases, or a power to revise the judgment and managing their interests in all these re- rendered in them by State tribunals... .

spects, is the government of the Union. It is We are not restrained, then, by the potheir government, and in that character they _ litical relations between the general and State have no other. America has chosen to be, in governments from construing the words of many respects, and to many purposes, a na- the constitution defining the judicial power in tion; and for all these purposes her govern- their true sense. We are not bound to conment is complete; to all these objects it is strue them more restrictively than they natcompetent. The people have declared that in urally import. the exercise of all the powers given for these They give to the Supreme Court appellate objects it is supreme. It can, then, in effect- jurisdiction in all cases arising under the coning these objects, legitimately control all in- stitution, laws, and treaties of the United

232 DOCUMENTS OF AMERICAN HIstTorRy States, The words are broad enough to com- established the case was then heard and deprehend all cases of this description, in what- cided on its merits. The court held that the

ever court they may be decided. ... act of Congress authorizing the lottery was After having bestowed upon this question confined in its operation to the city of Washthe most deliberate consideration of which ington and gave the defendants no right to we are capable, the Court is unanimously of _ sell lottery tickets in Virginia, and that the opinion that the objections to its jurisdiction Norfolk court therefore had the right to conare not sustained, and that the motion ought vict the defendants for violating a law of

to be overruled. Virginia, agd its judgment was_ therefore

Motion denied. affirmed. | | After the jurisdiction of the court was thus

124. CHANCELLOR KENT ON UNIVERSAL SUFFRAGE Remarks of Chancellor Kent to the New York Constitutional Convention of 1821 (Keports of the Proceedings and Debates of the Convention of 1821, ed. by H. N. Carter, W. L. Stone, and M. T. C. Gould, sec. 219 ff.) The second decade of the nineteenth century $250 in freehold estate, over and above all witnessed a liberal-zing of the constitutions of the debts charged thereon. The governor has seaboard states, resulting in part from the demo- —_ peen chosen by the same electors, and we

cratic influence of the new western states. The pave hitherto elected citizens of elevated proposal to abolish the property qualification rank and character. Our assembly has been

for suffrage in New York State aroused intense 14.

opposition from the conservatives, which was chosen by freeholders, POSSESSING a freehold

eloquently voiced by Chief Justice Ambrose Of the value of $50, or by persons renting a

Spencer and Chanccllor James Kent. Despite this tenement of the yearly value of $5, and who opposition the liberals carried the day. See, D.S. have been rated and actually paid taxes to Alexander, Political History of the State of New the state. By the report before us, we propose York, Vol. II, ch. xxvii; J. B. Mc Master, Acquisi- to annihilate, at one stroke, all those prop-

aon of P ontical, oe id Rigs iw erty distinctions and to bow before the idol OMI MINUS 1a, Re Nowen's, Avew Fork, of universal suffrage. That extreme demo-

Sluie of on Yok Vel On kata, Wey cratic principle, when applied to the legislaCurtis, James Kent; W. Kent, Memoirs and Let- tive and executive departments of the gov-

ters of James Kent; J. Horton, James Kent. ernment, has been regarded with terror, by the wise men of every age, because in every

Chancellor Kent. . . . These are some of European republic, ancient and modern, in the fruits of our present government; and which it has been tried, it has terminated disyet we seem to be dissatisfied with our pres- _astrously, and been productive of corruption, ent condition, and we are engaged in the bold _ injustice, violence, and tyranny. And dare we and hazardous experiment of remodelling flatter ourselves that we are a peculiar people,

the constitution. Is 1t not fit and discreet: I who can run the carcer of history, exempted speak as to wise men; is it not fit and proper from the passions which have disturbed and thal we should pause in our career, and re- corrupted the rest of mankind? If we are like flect well on the immensity of the innovation other races of men, with similar follies and in contemplation? Discontent in the midst of — vices, then I greatly fear that our posterity so much prosperity, and with such abundant _ will have reason to deplore in sackcloth and means of happiness, looks like ingratitude, ashes, the delusion of the day. .. .

and as if we were disposed to arraign the Now, sir, I wish to preserve our senate as goodness of Providence. Do we not expose’ the representative of the landed interest. I ourselves to the danger of being deprived of | wish those who have an interest in the soil, to

the blessings we have enjoyed? ... retain the exclusive possession of a branch The senate has hitherto been elected by in the legislature, as a strong hold in whicn the farmers of the state—by the free and they may find safety through all the vicissiindependent lords of the soil, worth at least tudes which the state may be destined, in the

MonROE’sS VETO OF CUMBERLAND ROAD BILL 233 course of Providence, to experience. I wish tendency. Thou shalt not covet; thou shalt them to be always enabled to say that their not steal; are divine injunctions induced by freeholds cannot be taxed without their con- this miserable depravity of our nature. Who sent. The men of no property, together with can undertake to calculate with any prethe crowds of dependents connected with cision, how many millions of people, this great manufacturing and commercial estab- great state will contain in the course of this lishments, and the motley and undefinable and the next century, and who can estimaic population of crowded ports, may, perhaps, the future extent and magnitude of our comat some future day, under skilful manage- mercial ports? The disproportion between ment predominate in the assembly, and yet the men of property, and the men of no we should be perfectly safe if no laws could property, will be in every society in a ratio pass without the free consent of the owners’ to its commerce, wealth, and population. of the soil. That security we at present en- We are no longer to remain plain and simple joy; and it is that security which 1 wish to republics of farmers, like the New-England

retain. colonists, or the Dutch settlements on the The apprehended danger from the ex- Hudson. We are fast becoming a great naperiment of universal suffrage applied to tion, with great commerce, manulactures,

the whole legislative department, is no dream population, wealth, luxuries, and with the of the imagination. It is too mighty an ex- vices and miseries that they engender. One citement for the moral constitution of men to seventh of the population of the city of Paris endure. The tendency of universal suffrage, at this day subsists on charity, and one third

is to jeopardize the rights of property, and of the inhabitants of that city dic in the the principles of liberty. There is a constant hospitals; what would become of such a city tendency in human society, and the history with universal suffrage? France has upwards of every age proves it; there is a tendency in of four, and England upwards of five millions the poor to covet a share in the plunder of manufacturing and commercial labourers of the rich; in the debtor to relax or avoid without property. Could these Kingdoms susthe obligation of contracts; in the majority tain the weight of universal sulfrager The to tyrannize over the minority, and trample radicals in England, with the force of that down iheir rights; in the indolent and profli- mighty engine, would al once sweep away the gate, to cast the whole burthens of society property, the laws, and the liberties of that upon the industrious and the virtuous; and island like a deluge.

there is a tendency in ambitious and wicked The growth of the city of New-York is men, to inflame these combustible materials. cnough to startle and awaken those who are It requires a vigilant government, and a firm pursuing the JGNJS FATUUS of universal

administration of justice, to counteract that suffrage... .

125. MONROE’S VETO OF CUMBERLAND ROAD BILL May 4, 1822 (Richardson, ed. dlessages and Papers, Vol. Il, p. 142 ff.) A detailed and comprchensive exposition of Presi- approving as I do the policy, that I am com-

dent Monroe's constitutional objections to the pelled to object to.its passage and to return Cumberland Read Bil canbe found in the Pave" the bill to the House of Representatives, in p. 144-183. See, J. S. Young, Cumberland Road: wee it originated, under a conviction that P. J. Treat, The National Land System; F. J. ongress do not possess the power under the

Turner, Rise of the New West, p. 230 ff. Constitution to pass such a law.

A power to establish turnpikes with gates WASHINGTON, May 4, 1822. and tolls, and to enforce the collection of

To the House of Representatives: tolls by penalties, implies a power to adopt

Having duly considered the bill entitled and execute a complete system of internal “An act for the preservation and repair of improvement. A right to impose duties to be the Cumberland road,” it is with deep regret, paid by all persons passing a certain road,

234 DocuMENTS or AMERICAN History and on horses and carriages, as is done by power which has been specifically granted. this bill, involves the right to take the land If we examine the specific grants of power from the proprietor on a valuation and to we do not find it among them, nor is it incipass laws for the protection of the road from denta] to any power which has been specifinjuries, and if it exist as to one road it ex- ically granted.

ists as to any other, and to as many roads as It has never been contended that the Congress may think proper to establish. A power was specifically granted. It is claimed right to legislate for one of these purposes is only as being incidental to. some one or more a right to legislate for the others. It isa com- of the powers which are specifically granted. plete right of jurisdiction and sovereignty for The following are the powers from which it

all the purposes of internal improvement, is said to be derived: and not merely the right of applying money First, from the right to establish post-

under the power vested in Congress to make offices and post-roads; second, from the right appropriations, under which power, with the to declare war; third, to regulate commerce;

consent of the States through which this fourth, to pay the debts and provide for the road passes, the work was originally com- common defense and general welfare; fifth, menced, and has been so far executed. Iam from the power to make all laws necessary of opinion that Congress do not possess this and proper for carrying into execution all the power; that the States individually can not powers vested by the Constitution in the grant it, for although they may assent to the Government of the United States or in any

appropriation of money within their limits department or officer thereof; sixth and for such purposes, they can grant no power lastly, from the power to dispose of and make of jurisdiction or sovereignty by special com- all needful rules and regulations respecting

pacts with the United States. This power can the territory and other property of the be granted only by an amendment to the United States. Constitution and in the mode prescribed by it. According to my judgment it can not be If the power exist, it must be either be- derived from either of those powers, nor cause it has been specifically granted to the from all of them uniled, and in consequence United States or that it is incidental to some it does not exist. . . .

126. THE ENGLISH BACKGROUND OF THE MONROE DOCTRINE Letter from George Canning to Richard Rush August 20, 1823 (R. Rush, Memoranda of a Residence at the Court of London, p. 412) George Canning, who was contemptuous of the the United States did not respond to Canning’s Holy Alliance and its activities, became prime proposals. Meantime Canning had secured from minister of Great Britain in September 1822. Prince Polignac assurance that France would not The following month the powers of Europe met — under any circumstances act against the former at the Congress of Verona to consider the feasi- Spanish colonies by force of arms. Canning was bility of the restoration of the Spanish monarchy satisfied with this understanding, and did not in the countries of South America. Great Britain press his original idea of a joint declaration with withdrew from this Congress and in March 1823 _ the United States. See references to Doc. No. 127 Canning instructed the English minister to Paris and H. W. V. Temperley, The Life of Canning; that England could not permit France to acquire A. G. Stapleton, Political Life of George Canning, any of the former Spanish colonies in America. 3 Vols; H. W. V. Temperley, The Foreign Policy August 16 Canning made informal] overtures to of Canning. the American minister, Rush, looking to joint ac-

tion on Latin-American affairs. The letter of Foreign Office, Aug. 20, 1823 August contains a sucanct Can- embrace private and Confidential ing’s20 position, butstatement it didofnot recogni- . tion of the Latin American Republics. For this My dear sir:— Before leaving Town Tam reason, and because Secretary Adams felt that desirous of bringing before y Ou in a more it would be better not “to come in as a cock- distinct, but still in an unofficial and confiboat in the wake of the British man-of-war’ dential shape, the question which we shortly

THE MonNRoE DOCTRINE 235 discussed the last time that I had the pleas- by conquest; such a declaration on the part

ure of sceing you. of your government and ours would be at Is not the moment come when our Gov- once the most effectual and the least offenernments might understand each other as to sive mode of intimating our joint misapprothe Spanish American Colonies? And if we bation of such projects.

can arrive at such an understanding, would It would at the same time put an end to it not be expedient for ourselves, and bene- all the jealousies of Spain with respect to ficial for all the world, that the principles of her remaining Colonies, and to agitation it should be clearly settled and plainly which prevails in those Colonies, an agita-

avowed? tion which it would be but humane to allay; For ourselves we have no disguise. being determined (as we are) not to profit by 1. We conceive the recovery of the Col- encouraging it.

onies by Spain to be hopeless. Do you conceive that under the power

2. We conceive the question of the recog- which you have recently received, you are aition of them, as Independent States, to be authorized to enter into negotiation and to

one of time and circumstances. sign any Convention upon this subject? Do

3, We are, however, by no means disposed you conceive, if that be not within your to throw any impediment in the way of an competence, you could exchange with me arrangement between them and the mother ministerial notes upon it?

country by amicable negotiations. Nothing could be more gratifying to me 4. We aim not at the possession of any than to join with you in such a work, and,

portion of them ourselves. I am persuaded, there has seldom, in the his-

5. We could not see any portion of them tory of the world, occurred an opportunity transferred to any other Power, with indif- when so small an effort of two friendly Gov-

ference. ernments might produce so unequivocal a

If these opinions and feelings are, as J good and prevent such extensive calamities. firmly believe them to be, common to your I shall be absent from London but three Government with ours, why should we hesi- weeks at the utmost; but never so far distate mutually to confide them to each other; tant but that I can receive and reply to and to declare them in the face of the world? any communication within three or four If there be any European Power which days. cherishes other projects, which looks to a I have the honor to be forcible enterprise for reducing the colonies My Dear Sir, with great respect and esteem

to subjugation, on the behalf or in the name Your obedient and faithful servant

of Spain; or which meditates the acquisition George Canning of any part of them to itself, by cession or R. Rush, Esar.

127. THE MONROE DOCTRINE Extracts from President Monroe’s Seventh Annual Message to Congress December 2, 1823 (Richardson, ed. Messages and Papers, Vol. II, p. 207 ff.) The literature on the Monroe Doctrine is too Monroe Doctrine, especially the annexes. On the voluminous to detail here. See the bibliographies authorship of the Doctrine, W. C. Ford, “John in F. J. Turner, Rise of the New West, p. 351; Quincy Adams: His Connection with the Monror Channing, Hart and Turner, Guide to the Study Doctrine” in Massachusetts Hist. Soc. Proceed- ° and Reading of American History, Sec. 198; ings, 2d Ser. Vol. XV, p. 373 ff. has not yet been H. B. Meyer, List of References on the Mon- superseded. On recognition of the Latin-American voe Doctrine. For more recent literature, see, Republics, F. L. Paxson, The Independence of D. Perkins, The Monroe Doctrine, 1823-1826; the South American Republics is still the standard S. Bemis, ed. American Secretaries of State and treatise. The diplomatic correspondence has been Their Diplomacy, Vol. IV, p. 36 ff. and bibli- collected in three volumes, W. R. Manning, ed. ography, p. 347 ff.; H. W. V. Temperley, The Diplomatic Correspondence of the United States Foreign Policy of Canning; A. Alvarez, The Concerning the Independence of the Latin Amer-

236 DocuUMENTS oF AMERICAN History | ican Nations. A quasi-official statement of the cessity more immediately connected, and by doctrine is J. R. Clark, Memorandum on the causes which must be obvious to all enlight-

Monroe Doctrine. ened and impartial observers. The political

. .. At the proposal of the Russian Im- system of the allied powers is essentially difperial Government, made through the minis- ferent in this respect from that of America. ter of the Emperor resid’ng here, a full This difference proceeds from that which expower and instructions have been transmitted ists in their respective Governments: and to

to the minister of the United States at St. the defense of our own, which has been

Petersburg to arrange by amicable negotia- achieved by the loss of so much blood and tion the respective rights and interests of the treasure, and matured by the wisdom of their two nations on the northwest coast of this most enlightened citizens, and under which continent. A similar proposal had been made we have enjoyed unexampled felicity, this by His Imperial Majesty to the Government whole nation is devoted. We owe it, thereof Great Britain, which has likewise been ac- fore, to candor and to the amicable relations ceded to. The Government of the United existing between the United States and those States has been desirous by this friendly pro- powers to declare that we should consider ceeding of manifesting the great value which any attempt on their part to extend their they have invariably attached to the friend- system to any portion of this hemisphere as ship of the Emperor and their solicitude to dangerous to our peace and safety. With the cultivate the best understanding with his Gov- existing colonies or dependencies of any ernment. In the discussions to which this in- European power we have not interfered and terest has given rise and in-the arrangements shall not interfere. But with the Governby which they may terminate the occasion ments who have declared their independence has been judged proper for asserting, as a and maintained it, and whose independence principle in which the rights and interests of | we have, on great consideration and on Just the United States are involved, that the principles, acknowledged, we could not view American continents, by the free and inde- any interposition for the purpose of oppresspendent condition which they have assumed ing them, or controlling in any other manner and maintain, are henceforth not to be con- their destiny, by any European power in any sidered as subjects for future colonization by other light than as the manifestation of an

any European powers. .. . unfriendly disposition toward the United

It was stated at the commencement of the States. In the war between those new Govlast session that a great effort was then mak- ernments and Spain we declared our neutral-

ing in Spain and Portugal to improve the ily at the time of their recognition, and to cond-tion of the people of those countries, this we have adhered, and shall continue to and that it appeared to be conducted with adhere, provided no change shall occur which, extraord-nary moderation. It need scarcely in the judgment of the competent authorities be remarked that the result has been so far of this Government, shall make a correspondvery different from what was then anticipated. ing change on the part of the United States Of events in that quarter of the globe, with indispensable to their security. which we have so much intercourse and The late events in Spain and Portugal shew from which we derive our origin, we have that Europe is still unsettled. Of this imporalways been anxious and interested specta- tant fact no stronger proof can be adduced

tors. The citizens of the United States cher- than that the allied powers should have ish sentiments the most friendly in favor of | thought it proper, on any principle satisfac-

- the liberty and happiness of their fellow-men tory to themselves, to have interposed by on that side of the Atlantic. In the wars of force in the internal concerns of Spain. To the European powers in matters relating to what extent such interposition may be carthemselves we have never taken any ‘part, ried, on the same principle, is a question in nor does it comport with our policy so to do. which all independent powers whose govern-

It is only when our rights are invaded or ments differ from theirs are interested, even seriously menaced that we resent injuries or those most remote, and surely none more so make preparation for our defense. With the than the United States. Our policy in regard movements in this hemisphere we are of ne- to Europe, which was adopted at an early

Protest AGAINST Caucus By TENNESSEE 237 stage of the wars which have so long agitated any portion of cither continent without enthat quarter of the globe, nevertheless re- dangering our peace and happiness; nor can mains the same, which is, not to interfere anyone believe that our southern brethren, if in the internal concerns of any of its powers; left to themselves, would adopt it of their to consider the government de facto as the own accord. It is equaily impossible, therelegitimate government for us; to cultivate fore, that we should behold such interposition friendly relations with it, and to preserve in any form with indifference. If we look to

those relations by a frank, firm, and manly the comparative strength and resources of policy, meeting in all instances the just claims Spain and those new Governments, and their of every power, submitting to injuries from distance from each other, it must be obvious none, But in regard to those continents cir- that she can never subdue them. It is still the cumstances are eminently and conspicuously true policy of the United States to leave the different. It is impossible that the allied pow- parties to themselves, in the hope that other

ers should extend their political system to powers will pursue the same course. ...

128. PROTEST AGAINST THE CAUCUS BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE 1823

(Niles Register, Vol. XXV, p. 137-138) - With the breakdown of the machinery provided over another; and such solicitude was felt on by the Constitution for the election of the Presi- this subject, that, in the second section of the dent, there arose the practice of nominations by second article, it is expressly declared, “That party caucus. The growth of the caucus sysem no senator or representative, or person hold-

aroused widespread discontent, and the defeat of _ . cA f trust fit q h Crawford, the choice of the rump caucus of the ne an othce OF trust Or pro under t

; United States, shall be appointed lector

Republican Party in 1824, marked the death of tates, shal de app ed an Cieclor.

“King Caucus”. The caucus system of nomina- From this provision, it is apparent that the tions was supplanted by nominations by State Comvention intended that the members of legislatures and eventually by national conven- Congress should not be the principal and tions. For the origin of the caucus, see A.C. Mc- primary agents or actors in electing the presiLaughlin and A. B. Hart, Cyclopaedia of Ameri- dent and vice-president of the United States can Government, “caucus”; F. W. Dallinger, —so far from it, they are expressly disqual-

vl Waele for Elective Office in the United ified from being placed in a stuation to vote

wes. ’ for these high officers. Is there not more .

The general assembly of the State of Ten- danger of undue influence to be apprehended, nessee has taken into consideration the prac- when the members of Congress meet in caucus tice which, on former occasions, has prevailed and mutually and solemnly piedge themselves at the City of Washington, of members of the to support the individuals who may have the

Congress of the United States meeting in highest number of votes in such meeting, caucus, and nominating persons to be voted than there would be in permitting them to be

for as president and vice-president of the eligible to the appointment of electors? In United States: and, upon the best view of the the latter case, a few characters, rendered insubject which this general assembly has been eligible by the Constitution, might succeed; able to take, it is believed that the practice of but in the former, a powerful combination of congressional nominations is a violation of influential men is formed, who may fix upon

the spirit of the Constitution of the United the American people their highest officers

States. against the consent of a clear majority of the That instrument provides that there shall people themselves; and this may be done by

be three separate and distinct departments the very men whom the Constitution inof the government, and great care and cau-_ tended to prohibit from acting on the subtion seems to have been exercised by its ject. Upon an examination of the Constituframers to prevent any one department from tion of the United States, there is but one exercising the smallest degree of influence case in which the members of Congress are

238 DOCUMENTS OF AMERICAN HisToRy permitted to act, which is in the event of a clusively relied on, to prove the impolicy and failure to make an election by the electoral unconstitutionality of the Congressional college; and then the members of the House nominations of candidates for the presidency of Representatives vote by States. With what and vice-presidency of the United States: propriety the same men, who, in the year Ist. A caucus nomination is against the spirit 1825, may be called on to discharge a con- of the Constitution. 2nd. It is both inexpestitutional duty, can, in the year 1824, gointe dient and impolitic. 3rd. Members of Cona caucus and pledge themselves to support gress may become the final electors, and

the men then nominated, cannot be dis- therefore ought not to prejudge the case by cerned, especially when it might so happen pledging themselves previously to support that the persons thus nominated, could [not] particular candidates. 4th. It violates the under any circumstances, obtain a single vote equality intended to be secured by the Confrom the State whose members stand pledged _ stitution to the weaker States. 5th. Caucus

to support them... . nominations may, in time (by the interfer-

Upon a review of the whole question, the ence of the States), acquire the force of following reasons which admit of much am-_ precedents and become authoritative, and plification and enlargement, more than has thereby endanger the liberties of the Amerbeen urged in the foregoing, might be con- ican people. 129. GIBBONS v. OGDEN 9 Wheaton, 1 1824

Error to the New York Court for the Trial of sovereigns converted their league into a govImpeachments and Correction of Errors. The ernment, when they converted their congress

legislature of New York granted to Robert of ambassadors, deputed to deliberate on

Livingston and Robert Fulton the exclusive right their common concerns, and to recommend to navigate the waters of New York State by measures of general utility, into a legislature, sued to restrain Gibbons from operating steam- empowered to enact laws on the most Inter boats on the Hudson River between New Jersey Sting subjects, the whole character in which and New York. This is the most notable of all the states appear underwent a change, the

steamboats. This right passed to one Ogden, who h ater.

cases involving the interpretation of the com- extent of which must be determined by a merce clause of the Constitution. See Beveridge, fair consideration of the instrument by which Marshall, Vol. IV, ch. viii; Warren, Supreme that change was effected.

Court, ch. xv. ‘ This instrument contains an enumeration MarsHaL1, C. J. The appellant contends of powers expressly granted by the people to that this decree is erroneous because the laws _ their government. It has been said that these

which purport to give the exclusive privilege powers ought to be construed strictly. But it sustains are repugnant to the constitution why ought they to be so construed? Is there and laws of the United States. They are said one sentence in the constitution which gives to be repugnant—lst. To that clause in the countenance to this rule? In the last of the constitution which authorizes congress to enumerated powers, that which grants, exregulate commerce. 2d. To that which au- _ pressly, the means for carrying all others into thorizes congress to promote the progress of _execttion, congress is authorized “‘to make all

science and useful arts. ... laws which shall be necessary and proper”

As preliminary to the very able discussions for the purpose. But this limitation on the of the constitution which we have heard from means which may be used, is not extended to the bar, and as having some influence on its the powers which are conferred ; nor is there construction, reference has been made to the one sentence in the constitution, which has

political situation of these states, anterior to been pointed out by the gentlemen of the its formation. It has been said that they were _ bar, or which we have been able to discern, sovereign, were completely independent, and that prescribes this rule. We do not, there-

were connected with each other only by a fore, think ourselves justified in adopting it, league. This is true. But, when these allied What do gentlemen mean by a strict con-

GIBBONS V. OGDEN 239 struction? If they contend only against that into the ports of the other, and be confined enlarged construction which would extend to prescribing rules for the conduct of indiwords beyond their natural and obvious im- viduals, in the actual employment of buying port, we might question the application of and selling, or of barter. If commerce does the term, but should not. controvert the prin- not include navigation, the government of ciple. If they contend for that narrow con- the Union has no direct power over that substruction which, in support of some theory ject, and can make no law prescribing what not to be found in the constitution, would shall constitute American vessels, or requirdeny to the government those powers which ing that they shall be navigated by American the words of the grant, as usually under- seamen. Yet this power has been exercised stood, import, and which are consistent with from the commencement of the government, the general views and objects of the instru- has been exercised with the consent of all, ment; for that narrow construction, which and has been understood by all to be a comwould cripple the government, and render it mercial regulation. All America understands, unequal to the objects for which it is declared and has uniformly understood, the word to be instituted, and to which the powers ‘‘commerce” to comprehend navigation. It given, as fairly understood, render it com- was so understood, and must have been

petent; then we cannot perceive the pro- so understood, when the constitution was priety of this strict contruction, nor adopt it framed. The power over commerce, including as the rule by which the constitution is to be navigation, was one of the primary objects expounded. As men whose intentions require for which the people of America adopted no concealment, generally employ the words their government, and must have been conwhich most directly and aptly express the templated in forming it. The convention must ideas they intend to convey, the enlightened have used the word in that sense, because all

patriots who framed our constitution, and have understood it in that sense; and the the people who adopted it, must be under- attempt to restrict it comes too late. stood to have employed words in their nat- If the opinion that “commerce,” as the ural sense, and to have intended what they word is used in the constitution, compre-

have said. hends navigation also, requires any additional The words are: “congress shall have power confirmation, that additional confirmation 1s,

to regulate commerce with foreign nations, we think, furnished by the words of the inand among the several States, and with the strument itself... . Indian tribes.” The subject to be regulated The word used in the constitution, then, is commerce; and our constitution being, as comprehends, and has been always understood

was aptly said at the bar, one of enumera- to comprehend, navigation within its meantion, and not of definition, to ascertain the ing; and a power to regulate navigation is as extent of the power, it becomes necessary to expressly granted as if that term had been settle the meaning of the word. The counsel added to the word “commerce.” To what for the appellee would limit it to traffic, to commerce does this power extend? The conbuying and selling, or the interchange of com- stitution informs us, to commerce “with modities, and do not admit that it compre- foreign nations, and among the _ several hends navigation. This would restrict a gen- states, and with the Indian tribes.” It has, we eral term, applicable to many objects, to one _ believe, been universally admitted that these of its significations. Commerce, undoubtedly, words comprehend every species of commer-

is traffic, but it is something more,—it is cial intercourse between the United States intercourse. It describes the commercial in- and foreign nations. No sort of trade can be

tercourse between nations, and parts of na- carried on between this country and any tions, in all its branches, and is regulated by other to which this power does not extend. It

prescribing rules for carrying on that inter- has been truly said that commerce, as the course. The mind can scarcely conceive a word is used in the constitution, is a unit, system for regulating commerce between every part of which is indicated by the term. nations which shall exclude all laws concern- If this be the admitted meaning of the ing navigation, which shall be silent on the word, in its application to foreign nations, it admission of the vessels of the one nation must carry the same meaning throughout the

240 DocUMENTS OF AMERICAN IIIstTory sentence, and remain a unit, unless there be _ tion pass through the interior of almost every some plain intelligible cause which alters it. state in the Union, and furnish the means of

The subject to which the power is next ap- exercising this right. If congress has the plied is to commerce ‘among the several power to regulate it, that power must be exerstates.” The word “among” means inter- cised whenever the subject exists. If it exists mingled with. A thing which is among others within the states, if a forelgn voyage may is intermingled with them. Commerce among commence or terminate at a port within a

the states cannot stop at the external state, then the power of congress may be

boundary-line of each state, but may be in- exercised within a state... . troduced into the interior. It is not intended The power of congress, then, whatever it to say that these words comprehend that may be, must be exercised within the terricommerce which is completely internal, which — torial jurisdiction of the several States. The

1s carried on between man and man ina state, sense of the nation on this subject 1s un: or between different parts of the same state, equivocally manifested by the provisions and which does not extend to or affect other made in the laws for transporting goods by States. Such a power would be inconvenient land between Baltimore and Providence, beand is certainly unnecessary. Comprehensive tween New York and Philadelphia, and beas the word “among” is, it may very properly tween Philadelphia and Ba!timore. be restricted to that commerce which con- We are now arrived at the inquiry, What cerns more States than one. The phrase is is this power? It is the power to regulate; not one which would probably have been se- that is, to prescribe the rule by which comlected to indicate the completely interior merce is to be governed. This power, like all traffic of a state, because it is not an apt others vested in congress, is complete in itphrase for that purpose; and the enumera-_ self, may be exercised to its utmost extent, tion of the particular classes of commerce to and acknowledges no limitations other than which the power was to be extended would are prescribed in the constitution, These are not have been made had the intention been to expressed in plain terms, and do not affect extend the power to every description. The the questions which arise in this case, or enumeration presupposes something not enu- which have been discussed at the bar. If, as merated; and that something, if we regard has always been understood, the sovereignty the language or the subject of the sentence, of congress, though limited to specified obmust be the exclusively internal commerce jects, is plenary as to those objects, the power of a state. The genius and character of the over commerce with foreign nations, and whole government scem to be, that its action among the several states, is vested in conis to be applied to all the external concerns — gress as absolutely as it would be in a single of the nation, and to those internal concerns, government, having in its constitution the which affect the states generally; but not to same restrictions on the exercise of the those which are completely within a partic- power as are found in the constitution of the ular state, which do not affect other states, United States. ... The power of congress, and with which itis not necessary to interfere then, comprehends navigation within the lim-

for the purpose of executing some of the its of every state in the Union, so far as that general powers of the government. The com- navigation may be, in any manner, connected

pletely internal commerce of a state then, with “commerce with foreign nations, or may be considered as reserved for the state among the several States, or with the Indian

itself. tribes.” It may, of consequence, pass the But, in regulating commerce with foreign jurisdiction line of New York, and act upon

nations, the power of congress does not stop __ the very waters to which the prohibition now at the jurisdictional lines of the several states. under consideration applies.

It would be a very use:ess power if it could But it has been urged with great earnestnot pass those lines. The commerce of the ness that, although the power of congress to United States with foreign nations is that of regulate commerce with foreign nations, and the whole United States. Every district has a among the several states, be coextensive with right to participate in it. The deep streams the subject itself, and have no other limits which penetrate our country in every direc- than are prescribed in the constitution, yet

GIBBONS Vv. OGDEN 241 the states may severally exercise the same the action of all others that would perform power within their respective jurisdictions. the same operation on the same thing. That In support of this argument, it is said that regulation is designed for the entire result, they possessed it as an inseparable attribute applying to those parts which remain as of sovereignty before the formation of the they were, as well as to those which are alconstitution, and still retain it, except so far as tered. It produces a uniform whole, which is they have surrendered it by that instrument; as much disturbed and deranged by changing that this principle results from the nature of what the regulating power designs to leave the government, and is secured by the tenth untouched as that on which it has operated.

amendment: that an affirmative grant of There is great force in this argument, and power is not exclusive, unless in its own na- the court is not satisfied that it has been ture it be such that the continued exercise refuted. of it by the former possessor is inconsistent Since, however, in exercising the power ot with the grant, and that this is not of that regulating their own purely internal affairs.

description. ... _ whether of trading or police, the states may

In discussing the question, whether this sometimes enact laws the validity of which power is still in the states, in the case under depends on their interfering with, and being

consideration, we may dismiss from it the contrary to, an act of congress passed in inquiry, whether it is surrendered by the pursuance of the constitution, the court will mere grant to congress, or is retained until enter upon the inquiry, whether the laws of congress shall exercise the power. We may New York, as expounded by the highest tridismiss that inquiry, because it has been ex- bunal of that state, have, in their application ercised, and the regulations which congress to this case, come into collision with an act deemed it proper to make, are now in full of congress, and deprived a citizen of a right operation. The sole question is, Can a State to which that act entitles him. Should this regulate commerce with foreign nations and collision exist, it will be immaterial whether among the States while Congress is regulat- those laws were passed in virtue of a con-

Ing itp... current power “to regulate commerce with [Here the Chief Justice examined the acts foreign nations and among the several states,”

of Congress of 1796 and 1799 directing fed- or in virtue of a power to regulate their eral officers to assist in the execution of the domestic trade and police. In one case and quarantine and health laws of a State, the the other the acts of New York must yield to act of 1803 prohibiting the importation of — the law of congress; and the decision sustain-

slaves into any State which shall itself pro- ing the privilege they confer against a right hibit their importation, and the act of 1789 given by a law of the Union, must be erroacknowledging a concurrent power in the neous. This opinion has been frequently exStates to regulate the conduct of pilots. | pressed in this court, and is founded as well These acts were cited at the bar for the on the nature of the government as on the purpose of showing an opinion in congress, words of the constitution. In argument, howthat the states possess, concurrently with the ever, it has been contended that, if a law legislature of the Union, the power to regu- passed by a state in the exercise of its aclate commerce with foreign nations and knowledged sovereignty, comes into conflict among the states. Upon reviewing them, we with a law passed by congress in pursuance think, they do not establish the proposition of the constitution, they affect the subject, they were intended to prove. They show the and each other, like equal opposing powers. opinion that the states retain powers enabl- But the framers of the constitution foresaw ing them to pass the laws to which allusion this state of things, and provided for it by has been made, not that those laws proceed declaring the supremacy not only of itself from the particular power which has been but of the laws made in pursuance of it. The

delegated to congress. nullity of any act inconsistent with the conIt has been contended by the counsel for stitution is produced by the declaration that

the appellant that, as the word “to regulate” the constitution is supreme law. ... In implies in its nature full power over the every such case the act of congress, or thing to be regulated, it excludes, necessarily, treaty, is supreme; and the law of the state,

242 DocUMENTS OF AMERICAN HISTORY though enacted in the exercise of powers not and metaphysical reasoning, founded on these

controverted, must yield to it.... premises, explain away the constitution of

The court is aware that in stating the train our country and leave it a magnificent strucof reasoning by which we have been con-_ ture indeed, to look at, but totally unfit for ducted to this result, much time has been use. They may so entangle and perplex the consumed in the attempt to demonstrate understanding as to obscure principles which propositions which may have been thought were before thought quite plain, and induce axioms. ... But it was wumavoidable. ... doubts where, if the mind were to pursue its Powerful and ingenious minds, taking as own course none would be perceived. In such postulates that the powers expressly granted a case, it is peculiarly necessary to recur to to the government of the Union are to be safe and fundamental principles, to sustain contracted, by construction, into the nar- those principles, and, when sustained, to make rowest possible compass, and that the orig- them the tests of the arguments to be exinal powers of the states are to be retained, amined. if any possible construction will retain them, | Decree of Court of New York reversed and may, by a course of well-digested, but refined annulled and bill of Aaron Ogden dismissed.

130. THE NATIONALISM OF PRESIDENT J. Q. ADAMS Extract from First Annual Message to Congress December 6, 1825 (Richardson, ed. Messages and Papers, Vol. II, p. 311 ff.) President Adams was firmly committed to a portion as it improves the condition of those policy of internal improvements, and the devel- over whom it is established. Roads and caopment of education and the sciences at govern- pals by multiplying and facilitating the comment expense. He proposed to finance such mynications and intercourse between distant projects by carefully conserving the public lands. regions and multitudes of men, are among

Adams himself, while Secretary of State, pre- th tj tant f 3 . pared a monumental Report on Weights and € Most important Means © improvement. Measures, and one of his last public acts was the But moral, political, intellectual improvement

dedication of an astronomical observatory. For are duties assigned by the Author of Our

the philosophical principles underlying this doc- Existence to social no less than to individual trine, see Brooks Adams, ed. The Degradation of man. For the fulfillment of those duties govthe Democratic Dogma, introduction; B. C. ernments are invested with power, and to the Clark, John Quincy Adams, p. 235 ff.; F. J. Tur- attainment of the end—the progressive im-

hath nae of ore . ee tation is. piston a provement of the condition of the governed

internal IMPFOV - Us __the exercise of delegated powers is a duty Wheeler, History of Congress, Vol. IL, p. 109 ft. as sacred and indispensable 3s the usurpation

_. . Upon this first occasion of address- of powers not granted is criminal and odious. ing the Legislature of the Union, with which Among the first, perhaps the very first, inI have been honored, in presenting to their strument for the improvement of the condiview the execution so far as it has been ef- tion of men is knowledge, and to the acquisifected of the measures sanctioned by them tion of much of the knowledge adapted to for promoting the internal improvement of the wants, the comforts, and enjoyments of our country, I can not close the communica- human life public institutions and seminaries tion without recommending to their calm of learning are essential. So convinced of this and persevering consideration the general was the first of my predecessors in this office,

principle in a more enlarged extent. The now first in the memory, as, living, he was

great object of the institution of civil first in the hearts, of our countrymen, that government is the improvement of the once and again in his addresses to the Concondition of those who are parties to gresses with whom he cooperated in the pubthe social compact, and no government, in lic service he earnestly recommended the whatever form constituted, can accomplish establishment of seminaries of learning, to the lawful ends of its institution but in pro- prepare for all the emergencies of peace and

THE NATIONALISM OF PRESIDENT J. Q. ADAMS 243 war--a national university and a military enterprises be estimated, and what compenacademy. With respect to the latter, had he sation can be made to them or to their counlived to the present day, in turning his eyes tries for them? Is it not by bearing them in to the institution at West Point he would affectionate remembrance? Is it not still more ) have enjoyed the gratification of his most by imitating their example—by enabling earnest wishes: but in surveying the city countrymen of our own to pursue the same which has been honored with his name he career and to hazard their lives in the same would have seen the spot of earth which he cause? had destined and bequeathed to the use and In inviting the attention of Congress to benefit of his country as the site for an uni- the subject of internal improvements upon a

versity still bare and barren. view thus enlarged it is not my design to

In assuming her station among the civil- recommend the equipment of an expedition ized nations of the earth it would seem that for circumnavigating the globe for purposes our country had contracted the engagement of scientific research and inquiry. We have to contribute her share of mind, of labor, objects of useful investigation nearer home, and of expense to the improvement of those and to which our cares may be more beneparts of knowledge which lie beyond the ficially applied. The interior of our own terreach of individual acquisition, and partic- ritories has yet been very imperfectly exularly to geographical and astronomical sci- plored. Our coasts along many degrees of ence. Looking back to the history only of the latitude upon the shores of the Pacific Ocean, half century since the declaration of our though much frequented by our spirited comindependence, and observing the generous mercial navigators, have been barely visited emulation with which the Governments of by our public ships. The River of the West, France, Great Britain, and Russia have de- first fully discovered and. navigated by a voted the genius, the intelligence, the treas- countryman of our own, still bears the name ures of their respective nations to the com- of the ship in which he ascended its waters, mon improvement of the species in these and claims the protection of our armed na.

branches of science, is it not incumbent tional flag at its mouth. With the establish.

upon us to inquire whether we are not bound ment ofa military post there or at some other by obligations of a high and honorable char- _ point of that coast, recommended by my acter to contribute our portion of energy and predecessor and already matured in the deexertion to the common stock? The voyages liberations of the last Congress, I would of discovery prosecuted in the course of that suggest the expediency of connecting the time at the expense of those nations have equipment of a public ship for the exploranot only redounded to their glory, but to the tion of the whole northwest coast of this improvement of human knowledge. We have continent. been partakers of that improvement and owe The establishment of an uniform standard

for it a sacred debt, not only of gratitude, of weights and measures was one of the

but of equal or proportional exertion in the specific objects contemplated in the forma-

same common cause. Of the cost of these tion of our Constitution, and to fix that undertakings, if the mere expenditures of standard was one of the powers delegated by outfit, equipment, and completion of the ex- express terms in that instrument to Congress.

peditions were to be considered the only The Governments of Great Britain and charges, it would be unworthy of a great and France have scarcely ceased to be occupied generous nation to take a second thought. with inquiries and speculatigns on the same One hundred expeditions of circumnaviga- subject since the existence of our Constitution like those of Cook and La Pérouse would _ tion, and with them it has expanded into pro-

not burden the exchequer of the nation fit- found, laborious, and expensive researches ting them out so much as the ways and means into the figure of the earth and the comparaof defraying a single campaign in war. But if _ tive length of the pendulum vibrating seconds

we take into the account the lives of those in various latitudes from the equator to the benefactors of mankind of which their serv- pole. These researches have resulted in the ices in the cause of their species were the composition and publication of several works purchase, how shall the cost of those heroic highly interesting to the cause of science.

244 DOCUMENTS OF AMERICAN History The experiments are yet in the process of torial surface of Europe there are existing performance. Some of them have recently upward of 130 of these light-houses of the been made on our own shores, within the skies, while throughout the whole American "walls of one of our own colleges, and partly hemisphere there is not one. If we reflect a by one of our own fellow-citizens. It would moment upon the discoveries which in the be honorable to our country if the sequel of last four centuries have been made in the the same experiments should be countenanced _ physical constitution of the universe by the

by the patronage of our Government, as they means of these buildings and of observers have hitherto been by those of France and _ stationed in them, shall we doubt of their

Britain. usefulness to every nation? And _ while

Connected with the establishment of an scarcely a year passes over our heads without university, or separate from it, might be un- bringing some new astronomical discovery to dertaken the erection of an astronomical ob- light, which we must fain receive at second servatory, with provision for the support of hand from Europe, are we not cutting ouran astronomer, to be in constant attendance — selves off from the means of returning light of observation upon the phenomena of the for light while we have neither observatory heavens, and for the periodical publication nor observer upon our half of the globe and

of his observations. It is with no fecling of the earth revolves in perpetual darkness to pride as an American that the remark may be our unsearching eyes? ... made that on the comparatively small terri131. THE PANAMA CONGRESS

Message of President Adams on the Participation of the United States in the Panama Congress ‘December 26, 1825 (Richardson, ed. Messages and Papcrs, Vol. II, p. 318 ff.) A Congress of the American nations was called by Secretaries of State, Vol. IV, p. 137 ff.; C. Schurz,

Bolivar to meet in Panama in the summer .of Henry Clay, Vol. I. On Bolivar see T. R. Ybarra, 1826. Though Bolivar did not originally invite Solivar; H. Augcil, Bolivar; F. L. Petre, Bolivar. the United States, invitations were extended by To the Senate of the United States: Colombia and Mexico. President Adams adverted

to the Congress in his message of December 6, In the message to both Houses of Congress 1825. The message of December 26 presents at the commencement of the session it was his definite acceptance of the invitation and the mentioned that the Governments of the nominations for delegates. A subsequent message Republics of Colombia, of Mexico, and of of March 15, 1826 contains a lengthy argument Central America had severally invited the for American partic.pation in the Congress. The Government of the United States to be repreproposal to send delegates to the Congress aroused sented at the Congress of American nations Pitter opposition in COMETS: party of a factional to be assembled at Panama to deliberate believed that the objects ‘ot the Congress were upon objects of peculiar concernment to this

inimical to slavery. Though the Foreign Affairs hemisphere, and that this invitation had Committee of the Senate teported adversely on been accepted. the mission, both Houses finally voted for par- Although this measure was deemed to be ticipation. This action, however, came too late: within the constitutional competency of the Mr. Anderson died on the way to Panama, and Executive. I have not thought proper to take Mr. Sergeant arrived after the Congress had ad- any step in it before ascertaining that my journed. Sec. Clay’s instructions to the American opinion of its expediency will concur with delegates can be found in Department of State, that of both branches of the Legislature. first, Instructions, Vol. XI; President Adams's mes- by the decision of the Senate upon the nomisage of March 15 in Richardson, Vol. I, p. 329 ff. .; . Other documents are in International American nations to be laid before them. and, secConference, Vol. IV: The Congress of 1826 at ondly, by the sanction of both Houses to the Panama. See also, I. B. Lockey, Pan-American- appropriations, without which it can not be ism: Its Beginnings; S. F. Bemis, ed. American carried into effect... .

THE PANAMA CONGRESS 245 It will be seen that the United States establishment of any future European colony neither intend nor are expected to take part within its borders may be found advisable. in any deliberations of a belligerent charac- This was more than two years since anter: that the motive of their attendance is nounced by my predecessor to the world as a neither to contract alliances nor to engage in principle resu‘ting from the emancipation of any undertaking or project importing hos- both the American continents. It may be so

tility to any other nation. developed to the new southern nations that

But the Southern American nations, in the they will all feel it as an essential appendage

infancy of their independence, often find to their independence. themselves in positions with reference to There is yet another subject upon which, other countries with the principles applicab’e without entering into any treaty, the moral to which, derivable from the state of inde- influence of the United States may perhaps pendence itself, they have not been familiar- be exerted with bene-icial consequences at ized by experience. The result of this has such a meeting—the advancement of religious been that sometimes in their intercourse with liberty. Some of the southern nations are even

the United States they have manifested d’s- yet so far under the dominion of prejudice pos:tions to reserve a right of granting spe- that they have incorporated with their politicial favors and privileges to the Spanish na- cal constitutions an exclusive church, without

tion as the price of their recognition. At toleration of any other than the dominant others they have actually established duties sect. The abandonment of this last badge of and impositions operating unfavorably to the religious bigotry and oppression may be United States to the advantage of other pressed more effectually by the united exerEuropean powers. and sometimes they have — tions of those who concur in the principles of

appeared to consider that they might inter- freedom of conscience upon those who are change among themselves mutual concessions yet to be convinced of their justice and wisof exclusive favor, to which neither Euro- dom than by the solitary efforts of a minister pean powers nor the United States shou!d be to any one of the separate Governments. .. . adm ‘tted. In most of these cases their regu- In fine, a decisive inducement with me for

lations unfavorable to us have yielded to acceding to the measure is to show by this friendly expostulation and remonstrance. But token of respect to the southern Republics it is believed to be of infinite moment that the interest that we take in their welfare and the pr.nciples of a liberal commercial inter- our disposition to comp!y with their wishes. course should be exhibited to them, and urged Having been the first to recognize their inde-

with disinterested and friendly persuasion pendence. and sympathized with them so far upon them when all assembled for the avowed as was compatible with our neutral duties in purpose of consulting together upon the es- all their struggles and sufferings to acquire it, tablishment of such principles as may have an’ we have laid the foundation of our future important bearing upon their future welfare. intercourse with them in the broadest princiThe consentaneous adoption of principles ples of reciprocity and the most cordial feelof maritime neutrality, and favorable to the ings of fraternal friendship. To extend those navigation of peace. and commerce in time principles to all our commercial relations with of war, will also form a subject of considera- them and to hand down that friendship to tion to this Congress. The doctrine that free future ages is congenial to the highest policy ships make free goods and the restrictions of of the Union, as it will be to that of all those reason upon tue extent of biockades may be nations and their posterity. In the confidence established by general agreement with far that these sentiments will meet the approbamore ease, and perhaps with less danger, by tion of the Senate, I nominate Richard C the general engagement to adhere to them Anderson. of Kentucky, and John Sergeant, concerted at such a meeting, than by partial of Pennsylvania, to be envoys extraordinary treaties or conventions with each of the na- and ministers plenipotentiary to the assembly tions separately. An agreement between all of American nations at Panama. and William the parties represented at the meeting that B. Rochester, of New York, to be secretary each will guard by its own means against the to the mission.

246 DOCUMENTS OF AMERICAN History 132. MARTIN v. MOTT 12 Wheaton, 19 1827

The War of 1812 was violently opposed in New not been denied here that the act of 1795 is England and parts of New York State. In some within the constitutional authority of Constances this opposition took the form of denying gress, or that Congress may not lawfully pro_the right of the President to call out the militia vide for cases of imminent danger of invaChief Justice of the Supreme Court advised the “!0% 48 well as for cases where an Tvasion Governor that he, and not the President, had has actually taken place. In our opinion there the right to decide when the Constitutional ex- 18 no ground for a doubt on this point, even igency existed which required the calling of the if it had been relied on, for the power to proState militia. It was this question which came vide for repelling invasions includes the power before the Supreme Court in the following case. to provide against the attempt and danger of For the background of opposition to the War of invasion, as the necessary and proper means

of a State. In Massachusetts, for example, the ; . :

Orie arene of oe he USA effectuate 1s, ve ch.S.xxl; H.we ams, History o to é Unite ns the object. States During the Administration of James Madi- t ‘th fs he power ths contded by Conere in son, Vol. VI, ch. xvi; T. Roosevelt, Gouverneur 0 tne Tes! ent Is doubtless of a very high

Morris. and delicate nature. A few people are naturally jealous of the exercise of military Story, J. This is a writ of error to the power; and the power to call the militia into

judgment of the court for the trial of im- actual service was certainly felt to be one of peachments and the correction of errors of no ordinary magnitude. But it is not a power the State of New York, being the highest which can be executed without a correspondcourt of that state, and is brought here in ent responsiblity. It is, in its terms, a limited virtue of the 25th section of the judiciary power, confined to cases of actual invasion,

act of 1789, ch. 20.... The avowry, in or of imminent danger of invasion. If it be

substance, asserts a justification of ...a a limited power, the question arises, by whom fine and forfeiture imposed upon the original is the exigency to be judged of and decided? plaintiff by a court-martial, for a failure to Is the President the sole and exclusive judge enter the service of the United States as a whether the exigency has arisen, or is it to militia-man, when thereto required by the be considered as an open question, upon President of the United States in pursuance which every officer to whom the orders of the of the act of the 28th of February, 1795. ... President are addressed may decide for himThe constitution declares that Congress _ self, and equally open to be contested by every

shall have power “to provide for calling militia-man who shall refuse to obey the orforth the militia, to execute the laws of the ders of the President? We are all of the opinUnion, suppress insurrections, and repel in- ion that the authority to decide whether the vasions” and also “to provide for organizing, exigency has arisen, belongs exclusively to the arming and disciplining the militia, and for President, and that his decision is conclusive governing such part of them as may be em-_ upon all other persons. We think that this ployed in the service of the United States”. construction necessarily results from the na-

In pursuance of this authority, the act of ture of the power itself, and from the mani1795 has provided “that whenever the United fest object contemplated by the aci of Con-

States shall be invaded, or be in imminent gress... . danger of invasion from any foreign nation If we look at the language of the act of or Indian tribe, it shall be lawful for the 1795, every conclusion drawn from the nature President of the United States to call for such of the power itself is strongly fortified... . number of the militia of the state or states The power itself is confined to the executive most convenient to the place of danger, or of the Union, to him who is, by the constituscene of action, as he may judge necessary to tion, “the Commander-in-chief of the militia, repel such invasion, and to issue his order for when called into the actual service of the that purpose, to such officer or officers of the United States,”’ whose duty it is to “take care

militia as he shall think proper.” ... It has that the laws be faithfully executed,” and

MASSACHUSETTS HicH ScuooLt Law 247 whose responsibility for an honest discharge power to any person, to be exercised by him, of his official obligations is secured by the upon his own opinion of certain facts, it is a

highest sanctions. He is necessarily consti- sound rule of construction that the statute tuted the judge of the existence of the ex- constitutes him the sole and exclusive judge igency in the first instance, and is bound to. of the existence of those facts. And, in the act according to his belief of the facts. If he present case, we are all of opinion that such does so act, and decides to call forth the mili- is the true construction of the act of 1795. tia, his orders for this purpose are in strict It is no answer that such a power may be conformity with the provisions of the law; abused, for there is no power which is not and it would seem to follow as a necessary susceptible of abuse. The remedy for this, as consequence, that every act done by a sub- well as for all other official misconduct, if it ordinate officer, in obedience to such orders, should occur, is to be found in the constitution is equally justifiable. The law contemplates, itself. In a free government the danger must under such circumstances, orders shall be be remote, since in addition to the high qualgiven to carry the power into effect; and it ities which the Executive must be presumed to cannot therefore be a correct inference that possess, of public virtue and honest devotion

any other person has a just right to disobey to the public interests, the frequency of them. The law does not provide for any ap- elections, and the watchfulness of the reprepeal from the judgement of the President, sentatives of the nation, carry with them all or for any right in subordinate officers to re- the checks which can be useful to guard view his decision, and in effect defeat it. against usurpation or wanton tyranny.

Wherever a statute gives a discretionary Judgement reversed.

~ 133. MASSACHUSETTS HIGH SCHOOL LAW 1827

(Laws of Massachusetis, January session, 1827, ch. cxlii) This is the first American law providing for the one school in each year. In every city, town. establishment of high schools. Note that its pro- or district, containing five hundred families, visions are mandatory rather than merely per- oy householders shall be provided with such

however The Taw was not ace daily ore teacher or teachers for such term of time as

; . shall equivalent tointwenty-four months, of the Massachusetts Board of be Education, ..

1837. Even in 1840 there were only 18 high shall also be provided with a master of good schools in the State: by 1860 the number had morals, competent to instruct, in addition to increased to over one hundred. See, G. H. Martin, the branches of learning aforesaid, in the his-

Evolution of the Massachusetts Public School tory of the United States, bookkeeping by

System, single entry, geometry, surveying, algebra;

and shall employ such master to instruct a Be it enacted, That each town or district school in such city, town, or district, for the within this Commonwealth, containing fifty benefit of all the inhabitants thereof, at least families, or householders, shall be provided ten months in each year, exclusive of vacawith a teacher or teachers, of good morals, to tions, in such convenient places, or alterinstruct children in orthography, reading, nately at such places in such city, town, or writing, English grammar, geography, arith- district, as said inhabitants, at their meeting metic, and good behavior, for such term of in March, or April, annually, shall determine; time as shall be equivalent to six months for and in every city, or town, and district, conone school in each year; and every town or taining four thousand inhabitants, such masdistrict containing one hundred families or ter shall be competent in addition to all householders, shall be provided with such the foregoing branches, to instruct the Latin teacher or teachers, for such term of time and Greek languages, history, rhetoric, and as shall be equivalent to eighteen months, for logic.

248 DocUMENTS OF AMERICAN Ilrstory 134. AMERICAN INSURANCE COMPANY vy. CANTER 1 Peters, 511 1828

Appeal from the United States circuit court for The course which the argument has taken, the district of South Carolina. This was a suit will require, that. in deciding this question,

by the American Insurance Co to recover a cargo the court should take into view the relation in of cotton which had been sold by order of the Which Florida stands to the United States. territorial legislature Florida. The plaintiffs The Constitution confers alleged that theofterritorial court which ordered - absolutely on the the sale was not a legally constituted court be- S0VErnment of the Union the powers of makcause the acquisition of Florida by the United 8 war and of making treaties; consequently, States was unconstitutional. This is the leading that government possesses the power of accase on the constitutionality of the acquisition of | quiring territory, either by conquest or by territory. See A. Bever.dgze, John Marshall, Vol. treaty. The usage of the world is, if a nation IV, p. 142 ff.; C. Warren, Supreme Court, (1928 be not entirely subdued, to consider the hold-

ed.) Vol. 1, p. 700. ing of conquered territory as a mere military occupation, until its fate shall be determined

MarsHatt, C. J. The plaintiffs filed their at the treaty of peace If it be ceded by the libel in this cause in the District Court of treaty. the acquisition is confirmed. and the South Carolina to obtain restitution of 356 ceded territory becomes a part of the nation bales of cotton . , . which had been insured to which it is annexed: either on the terms by them on a voyage from New Orleans to — stipulated in the treaty of cession, or on Havre de Grace, in France. The Poimt @ such as its new master shall impose. On such Petre was wrecked on the coast of Florida, the trans‘er of territory, it has never been held cargo saved by the inhabitants, and carricd that the relations of the inhabitants with each into Key West, where it was so!d for the other undergo any change. Their relations

purpose of satisfying the salvors; by virtue with their former sovereign are dissolved, and of a decree of a court, consisting of a notary new relations are created between them and and five jurors, which was erected by an act the government which has acquired their terof the territorial Leg:slature of Florida. The ritory. The same act which transfers their owners abandoned to the underwriters, who country transfers the allegiance of those who proceeded against the property; alleging that remain in it; and the law which may be dethe sale was not made by order of a court nominated political is necessarily changed, al-

competent to change the property. ... though that which regulates the intercourse David Canter claimed the cotton as a and genera] conduct of individuals remains bona fide purchaser, under the decree of a in force, until altered by the newly created

competent court... . power of the state. a The district judge pronounced the decree On the 2d of February, 1819, Spain ceded

of the Territorial Court a nullity, and awarded Florida to the United States. The 6th article

restitution to the libelants. ... of the treaty of cession contains the following The libelants and claimant both ap-_ provision: ‘The inhabitants of the territories

pealed.... which his Catholic Majesty cedes to the

The cause depends mainly on the question United States by this treaty shall be incorwhether the property in the cargo saved, was porated in the Union of the United States, as

changed. by the sale at Key West. ... Its soon as may be cons stent with the principles validity has been denied, on the ground, that of the federal Constitution; and admitted tu it was ordered by an incompetent tribunal. the enjoyment of the privileges, rights, and The tribunal was constituted by an act of the immunities of the citizens of the United

territorial legislature of Florida, passed on States.” . the 4th July, 1823, which is inserted in the This treaty Is the law of the land, and acrecord. shat act purports to give the power mits the inhabitants of Florida to the enjoywhich has been exercised; consequently, the ment of the privileges. rights and immunities sale is valid, if the territorial legislature was of the citizens of the United States, It is un-

competent to enact the law. necessary to inquire whether this is not their

Tue §. C. Protest AGAINST TARIFF OF 1828 249 condition. independent of stipulation. They of the Constitution does not apply to it. The do not, however, participate in political next sentence declares. that “the judges both power; they do not share in the government of the supreme and inferior courts, shall hold till Florida shall become a State. Inthe mean- their offices during good behavior.” The time Florida continues to be a territory of judges of the superior courts of Florida hold the United States. governed by virtue of that their offices for four years. These courts, then, clause in the Constitution which empowers are not constitutional courts, in which the Congress “to make all needful rules and reg- judicial power conferred by the Constitution ulations respecting the territory or other on the general government can be deposited.

property belonging to the United States.” They are incapable of receiving it. They Perhaps the power of governing a territory are legislative courts. created in virtue of the belonging to the United States which has not general right of sovereignty which exists in by becoming a State acquired the means of the government, or in virtue of that clause self-government may result necessarily, from which enables Congress to make all needful the facts that it is not within the jurisdiction rules and regulations, respecting the territory of any particular State, and is within the belonging to the United States. The jurisdicpower and jurisdiction of the United States. tion with which they are invested, is not a The right to govern may be the inevitable part of that judicial power which is de.ined consequence of the right to acquire territory. in the third article of the Constitution, but Whichever may be the source whence the is conferred by Congress, in the execution ol power is derived, the possession of it is un- those general powers which that body posquestioned. In execution of it Congress, in — sesses over the territories of the United States. 1822, passed “An Act for the Establishment Although admiralty jurisdiction can be exof a Territorial Government in Florida:” and ercised in the States, in those courts only on the 3d of March, 1823, passed another act which are established in pursuance of the to amend the act of 1822. Under this act the third article of the Constitution; the same territorial legislature enacted the law now un- limitation does not extend to the territories.

der consideration. .. . : In legislating for them, Congress exercises It has been contended that, by the Consti- the combined powers of the general, and of a tution, the judicial power of the United States state government.

extends to all cases of admiralty and mari- We think. then, that the act of the territime jurisdiction; and that the whole of this torial legislature erecting the court by whose

judicial power must be vested “in one su- decree the cargo of the Point a Petre was preme court, and in such inferior courts as sold, is not “inconsistent with the laws and Congress shall from time to time ordain and Constitution of the United States,” and is establish.” Hence, it has been argued that valid. Consequently, the sale made in pursuCongress cannot vest admiralty jurisdiction ance of it changed the property, and the dein courts created by the territorial legisla- cree of the circuit court, awarding restitu-

ture, tion of the property to the claimant, ought We have only to pursue this subject one — to be affirmed, with costs.

step further, to perceive that this provision Decree affirmed.

135, TILE SOUTIT CAROLINA PROTEST AGAINST THE TARIFF OF 1828 December 19, 1828 (Elliot’s Debates, i861 ed. Vol. IV, p. 580) This protest against the “tariff of abominations” protests against the tariff and for protests from of May 20, 1828 was the concluding part of the other States, sce, H. V. Ames, State Documents South Carolina Expos:tion, drafted by Calhoun, on Federal Relations.

then Vice-President of the United States. The ; ;

Exposition is in Calhoun’s Works, 1855 ed. Vol. he Senate and House of Representatives VI. See also, references in Doc. No. 143 On Cal- of South Carolina, now met, and sitting in houn see H. Von Holst, Calhoun; G. Hunt, Cal- General Assembly, through the Hon. William houn; W. C. Meigs, Calhoun, 2 Vols. For earlier Smith and the Hon. Robert Y. Hayne, their

250 DOCUMENTS OF AMERICAN History representatives in the Senate of the United domestic industry implies an absolute conStates, do, in the name and on behalf of the trol over all the interests, resources, and purgood people of the said commonwealth, sol- suits of a people, and is consistent with the emnly PROTEST against the system of pro- _ idea of any other than a simple, consolidated

tecting duties, lately adopted by the federal government. government, for the following reasons:— Sth. Because, from the contemporaneous Ist. Because the good people of this com- exposition of the Constitution in the numbers monwealth believe that the powers of Con- of the Federalist, (which is cited only because gress were delegated to it in trust for the the Supreme Court has recognized its authoraccomplishment of certain specified objects ity), it is clear that the power to regulate which limit and control them, and that every commerce was considered by the Convention exercise of them for any other purposes, isa as only incidentally connected with the violation of the Constitution as unwarrant- encouragement of agriculture and manufacable as the undisguised assumption of sub- tures; and because the power of laying imstantive, independent powers not granted or posts and duties on imports was not under-

expressly withheld. stood to justify in any case, a prohibition of

2d. Because the power to lay duties on im- foreign commodities, except as a means of ports is, and in its very nature can be, only a extending commerce, by coercing foreign nameans of effecting objects specified by the tions to a fair reciprocity in their intercourse Constitution; since no free government, and with us, or for some bona fide commercial least of all a government of enumerated pow- purpose.

ers, can of right impose any tax, any more Oth. Because, whilst the power to protect than a penalty, which is not at once justified manufactures is nowhere expressly granted to by public necessity, and clearly within the Congress, nor can be considered as necessary scope and purview of the social compact; and and proper to carry into effect any specified since the right of confining appropriations of power, it seems to be expressly reserved to the the public money to such legitimate and con- states, by the 10th section of the 1st article of stitutional objects is as essential to the liberty the Constitution.

of the people as their unquestionable privi- 7th. Because even admitting Congress to lege to be taxed only by their consent. have a constitutional right to protect manu3d. Because they believe that the tariff law factures by the imposition of duties, or by passed by Congress at its last session, and all regulations of commerce, designed principally

other acts of which the principal object is the for that purpose, yet a tariff of which the protection of manufactures, or any other operation is grossly unequal and oppressive, branch of domestic industry, if they be con- is such an abuse of power as is incompatible sidered as the exercise of a power in Congress with the principles of a free government and

to tax the people at its own good will and the great ends of civil society, justice, and pleasure, and to apply the money raised to equality of rights and protection. | objects not specified in the Constitution, is 8th. Finally, because South Carolina, from a violation of these fundamental principles, a her climate, situation, and peculiar institubreach of a well-defined trust, and a perver- tions, is, and must ever continue to be, sion of the high powers vested in the federal wholly dependent upon agriculture and com-

government for federal purposes only. merce, not only for her prosperity, but for 4th. Because such acts, considered in the her very existence as a state; because the light of a regulation of commerce, are equally valuable products of her soil—the blessings liable to objection; since, although the power by which Divine Providence seems to have

to regulate commerce may, like all other designed to compensate for the great disad-

powers, be exercised so as to protect domes- vantages under which she suffers in other retic manufactures, yet it is clearly distinguish- spects—are among the very few that can be able from a power to do so ¢e nomine, both in cultivated with any profit by slave labor; and the nature of the thing and in the common if, by the loss of her foreign commerce, these acception of the terms; and because the con- products should be confined to an inadequate founding of them would lead to the most ex- market, the fate of this fertile state would be travagant results, since the encouragement of poverty and utter desolation; her citizens, in

THE CONSTITUTION OF A LYCEUM 251 despair, would emigrate to more fortunate of which it is the surest pledge, but feeling it regions, and the whole frame and constitution to be their bounden duty to expose and resist of her civil policy be impaired and deranged, all encroachments upon the true spirit of the

if not dissolved entirely. Constitution, lest an apparant acquiescence Deeply impressed with these considera- in the system of protecting duties should be tions, the representatives of the good people drawn into precedent—do, in the name of the of this commonwealth, anxiously desiring to commonwealth of South Carolina, claim to live in peace with their fellow-citizens, and to enter upon the Journal of the Senate their do all that in them lies to preserve and per- protest against it as unconstitutional, opprespetuate the union of the states, and liberties sive, and unjust.

136. THE CONSTITUTION OF A LYCEUM 1829

(Old South Leaflets No. 139) The Lyceum movement was part of the general 5. The delegates will meet delegates from educational reform movement of the cighteen other branches of the Lyceum in this county thirties. It was organized in 1826 by Josiah Hol- semi-annually, to adopt regulations for their brook of Massachusetts, and the various lyceums general and mutual benefit, or to take measof New England were fedcrated in 1831. In many , d + “t dj _ respects similar to the Chautauqua movement of ures to Introduce unliormity an ImMPTOve the late nineteenth and early twentieth century, ments into common schools, and to diffuse the lyceums attracted to their platforms some of useful and practical knowledge generally the most eminent intellectual leaders of the day. through the community, particularly to form See, H. B. Adams, “Educational Extension in and aid a BOARD OF EDUCATION.

the United States,” U. S. Commissioner of Ed- 6. To raise the standard of common educaucation, Report, 1899-1900; J. S. Noffsinger, tion, and to benefit the juvenile members of Correspondence Schools, Lyceums, and Chau- the Lyceum, a portion of the books procured

tauquas. shall be fitted to young minds; and teachers Constitution of schools may be permitted to use for the

benefit of their pupils who are members of Many Lyceums have adopted the following the Lyceum the apparatus and minerals unor similar articles for their Constitution:— der such restrictions as the association shall

1. The objects of the Lyceum are the im- prescribe. .. . provement of its members in useful knowledge and the advancement of Popular Edu-

cation. RECOMMENDATIONS

2. To effect these objects, they will hold The undersigned hereby express their opinmeetings for reading, conversation, discus- ion that popular education would be greatly sions, dissertations, illustrating the sciences, advanced by measures to concentrate the or other exercises which shall be thought ex- views and efforts of those disposed to act in pedient, and, as it is found convenient, will its behalf to different parts of the country. procure a cabinet consisting of books, appa- That the formation of a Society would be ratus for illustrating the sciences, plants, min- the most direct and efficient measure to conerals, and other natural or artificial produc- centrate such views and efforts.

tions. That the institution denominated the

3. Any person may be Member of the Ly- AmeERIcAN LycCEUM embraces in its plan ceum by paying into the treasury annually the important objects of a National Society, Two Dollars; and Twenty Dollars paid at for the advancement of popular education.

any one time will entitle a person, his or her That it is highly desirable that an auxheirs or assigns, to one membership forever. iliary to this Society, or a branch Lyceum, Persons under eighteen years of age will be should be established in every town. entitled to all the privileges of the Society, That some simple articles of apparatus are except voting, for one-half the annual sum important to render Lyceums interesting,

above named... . useful, and permanent, and that the articles

252 DocUMENTS OF AMERICAN ITISTORY proposed by Mr. Horsrooxk are fitted to ing apparatus, and other exercises in relation this object, and that a portion of them would to their schoo's. would have a tendency to be useful in district and other schools. raise their qualifications and to increase the That a weekly meeting of teachers for us- value of their services.

137. CRAIG er. at. v. THE STATE OF MISSOURI 4 Peters, 410 1830

Writ of error to the Supreme Court of the State to the amount of two hundred thousand dolof Missouri. This case concerned the constitu- lars, of denominations not exceeding ten doltionality of an act of the legislature of Missouri, lars nor less than fifty cents. The paper pur-

27 June, 1821, to establish loan offices which ports on its face to be receivable at the were empowered to issue certificates to the treasury, or at any loan-office of the State of amount ofwere twotohundred thousand dollars,IssOurl, whichI Mi discol ftaxes taxeordebts certificates be receivable at the treasury ISC in narge debts d cue of the State of Missouri in discharge of taxes '0 the State. The law .. . also p-edges the or debts due to the State and by all officers in faith and funds of the State for their redempthe State in discharge of salaries and fees of office. tion.

lt seems impossible to doubt the intention

MARSHALL, C. J.... This brings us to of the Legislature in passing this act, or to the great question in the cause: Is the act of mistake the character of these certificates, or the Legislature of Missouri repugnant to the the office they were to perform. The denom-

Constitution of the United States? inations of the bills—-from ten dollars te

The counsel for the plaintiffs in error main- fifty cents—fitted them for the purpose of tain that it is repugnant to the Constitution, ordinary circulation and their reception in because its object is the emission of bills of | payment of taxes and debts to the governcredit contrary to the express prohibition ment and to corporations, and of salaries and contained in the tenth section of the first ar- fees, would give them currency. They were to

ticle. .. . The clause in the Constitution be put into circulation; that is, emitted by the which this act is supposed to violate is in government... . these words: ‘‘No state shall emit bills of But it is contended that though these cer-

credit”’. tificates should be deemed bills of credit, acWhat is a bill of credit? What did the Con- cording to the common acceptation of the

stitution mean to forbid? term, they are not so in the sense of the [n its enlarged, and perhaps its literal sense, Constitution because they are not made legal the term “bill of credit” may comprehend — tender. any instrument by which a State engages to The Constitution itself furnishes no counpay money at a future day; thus including a tenance to this distinction. The prohibition is certificate given for money borrowed. But the general. It extends to all bills of credit, not language of the Constitution itself, and the to bills of a particular description. That trimischief to be prevented, which we know from bunal must be bold indeed, which, without the history of our country, equally limit the the aid of other explanatory words, could ven-

interpretation of the terms... . To “emit ture on this construction. It is the less admisbills of credit” conveys to the mind the idea _ sible in this case, because the same clause of issuing paper intended to circulate through of the Constitution contains a substantive the community for its ordinary purposes, as prohibition to the enactment of tender laws. money, which paper is redeemable at a future The Constitution, therefore, considers the day. This is the sense in which the terms have emission of bills of credit and the enactment

always been understood. .. . of tender laws as distinct operations, indeWhat is the character of the certificates is- pendent of each other, which may be sepsued by authority of the act under considera- arately performed. Both are forbidden. To tion? What office are they to perform? Cer- sustain the one because it is not also the

tificates signed by the auditor and treasurer other; to say that bills of credit may be 9: the State are to be issued by those officers emitted if they be not made a tender in pay-

JACKSON’S VETO OF MAYSVILLE ROAD BILL 253 ment of debts, is, in effect, to expunge that have spoken their will in terms which we candistinct independent prohibition, and to read not misunderstand. the clause as if it had been entirely omitted. To these admon.-tions we can only answer,

We are not at liberty to do this... . that if the exercise of that jurisdiction which

A majority of the court feels constrained has been imposed upon us by the Constituto say that the consideration on which the’ tion and laws of the United States shall be note in this case was given is against the calculated to bring on those dangers which highest law of the land, and that the note have been indicated, or if it sha!l be indisitself is utterly void. In rendering judgement pensable to the preservation of the Union, for the plaintiff the Court for the State of and consequently, of the independence and Missouri decided in favor of the validity of a liberty of these States, these are consideralaw which is repugnant to the Constitution tions which address themselves to those

of the United States. departments which may with perfect pro-

In the argument we have been reminded by _ priety be influenced by them. This departone side of the dignity of a sovercign State; ment can listen only to the mandates of law,

of the humiliation of her submitting herself and can thread only that path which is to this tribunal; of the dangers which may marked out by duty. result from inflicting a wound on that dig-

nity; by the other, of the still superior dig- The judgement of the Supreme Court of nity of the people of the United States, who Missouri is reversed.

138. JACKSON'S VETO OF MAYSVILLE ROAD BILL

' May 27, 1830 (Richardson, ed. Afessages and Papers, Vol. II, p. 483 ff.) President J. Q. Adams had supported a policy rendering the claim of jurisdiction. In the of interna] Improvements at national expense, but first view the question of power is an open

ca ratipal many repens ened one, and can be decided without the embar tion. On the veto, sec, W. MacDonald, Jacksonian rassments: attending the other, arising from

Democracy, ch. viii; E. C. Mason, The Veto the practice of the Government. Although

Power, sec. 83 ff. frequently and strenuously attempted, the power to this extent has never been exercised

May 27, 1830. by the Government in a single instance. It

To the House of Representatives. does not, in my opinion, possess it; and no

Gentlemen: I have maturely considered _ bill, therefore, which admits it can receive the b:ll proposing to authorize “ta subscrip- my official sanction.

tion of stock in the Maysville. Washington, But in the other view of the power the Paris, and Lexington Turnpike Road Com- question is differently situated. The ground pany,” and now return the same to the House taken at an early period of the Government of Representatives, in which it originated, was ‘that whenever money has been raised

with my objections lo its passage... . by the general authority and is to be ap-

The constitutional power of the Federal plied to a particular measure, a question Government to construct or promote works arises whether the particular measure be of internal improvement presents itself in within the enumerated authorities vested in two points of view—the first as bearing upon Congress. If it be, the money requisite for the sovereignty of the States within whose it may be applied to it; if not, no such aplimits their execution is contemplated, if plication can be made.” The document in jurisdiction of the territory which they may which this principle was first advanced is of occupy be claimed as necessary to their deservedly high authority, and should be held preservation and use; the second as asserting in grateful remembrance for its immediate the simple right to appropriate money from agency in rescuing the country from much the National Treasury in aid of such works existing abuse and for its conservative effect when undertaken by State authority, sur- upon some of the most valuable principles of

254 DOCUMENTS OF AMERICAN HISTORY the Constitution. The symmetry and purity denominated national. It has no connection

of the Government would doubtless have with any established system of improvebeen better preserved if this restriction of ments; is exclusively within the limits of a the power of appropriation could have been State, starting at a point on the Ohio River maintained without weakening its ability to and running out 60 miles to an interior town, fulfill the general objects of its institution, an and even as far as the State is interested effect so likely to attend its admission, not- conferring partial instead of general advanwithstanding its apparent fitness, that every tages. subsequent Administration of the Govern- Considering the magnitude and importance ment, embracing a period of thirty out of the of the power, and the embarrassments to forty-two years of its exislence, has adopted which, from the very nature of the thing, its a more enlarged construction of the power. exercise must necessarily be subjected, the It is not my purpose to detain you by a mi-_ real friends of internal improvement ought nute recital of the acts which sustain this not to be willing to confide it to accident and

assertion, but it is proper that I should no- chance... . tice some of the most prominent in order In the other view of the subject, and the that the reflections which they suggest to my only remaining one which it is my intention

mind may be better understood. . . . to present at this time, is involved the exThe bill before me does not call fora more pediency of embarking in a system of interdefinite opinion upon the particular circum- nal improvement without a previous amendstances which will warrant appropriations of ment of the Constitution explaining and money by Congress to aid works of internal defining the precise powers of the Federal improvement, for although the extension of | Government over it. Assuming the right to the power to apply money beyond that ot appropridte money to aid in the construction carrying into effect the object for which it is of national works to be warranted by the appropriated has, as we have seen, been long contemporaneous and continued exposition of claimed and exercised by the Federal Gov- the Constitution, its insufficiency for the ernment, yet such grants have always been successful prosecution of them must be adprofessedly under the control of the general mitted by all candid minds. If we look to principle that the works which might be thus usage to define the extent of the right, that aided should be ‘‘of a general, not local, na- will be found so variant and embracing so tional, not State,” character. A disregard of | much that has been overruled as to involve this distinction would of necessity lead to the the whole subject in great uncertainty and to subversion of the federal system. That even render the execution of our respective duties this is an unsafe one, arbitrary in its nature, in relation to it replete with difficulty and and liable, consequently, to great abuses, is embarrassment. It is in regard to such works

too obvious to require the confirmation of and the acquisition of additional territory experience. It is, however, sufficiently definite that the practice obtained its first footing. In

and imperative to my mind to forbid my most, if not all, other disputed questions of approbation of any bill having the character appropriation the construction of the Conof the one under consideration. I have given _ stitution may be regarded as unsettled if the to its provisions all the reflection demanded right to apply money in the enumerated cases by a just regard for the interests of those of _ is placed on the ground of usage... .

our fellow-citizens who have desired its pas- If it be the wish of the people that the sage, and by the respect which is due to a construction of roads and canals should be coordinate branch of the Government, but I conducted by the Federal Government, it is am not able to view it in any other light not only highly expedient, but indispensably than as a measure of purely local character; necessary, that a previous amendment of the or, if it can be considered national, that no Constitution, delegating the necessary power further distinction between the appropriate and defining and restricting its exercise with duties of the General and State Governments reference to the sovereignty of the States, need be attempted, for there can be no local should be made. Without it nothing exteninterest that may not with equal propriety be sively useful can be effected. The right toe

CHEROKEE NATION V. GEORGIA 255 exercise as much jurisdiction as is necessary the collection of tolls to keep them in repair

to preserve the works and to raise funds by can not be dispensed with... .

139. THE SPOILS OF VICTORY Extract from: a Speech by Mr. Marcy 1831

(Niles’ Register, Vol. XLII, p. 8, September 1, 1832) In the course of the debate on Van Buren’s ap- United States from New York, in the course pointment as Minister to England, Clay referred of the debate on the nomination of Mr. Van to the spoils system in New York and alleged that Buren said— Van Buren had introduced this political principle “It may be, sir, that the politicians of New into national politics. Mr. Marcy, in defending vox are not so fastidious as some gentlemen

Van Buren, announced the notorious doctrine disclosine th incinles on which

that “to the victor belong the spoils.” Though the are, as to disclosing the principles spoils system has been traced back to the Fed- they act. They boldly preach what they praceralist machine in New York politics, this specch 4#ce. When they are contending for victory,

of Marcy’s, observes Dr. Alexander, “forever... they avow their intention of enjoying the confirmed the belief that Van Buren was an fruits of it. If they are defeated, they expect inveterate spoilsman.” For the origins of the to retire from office. If they are successlul, spoils system, see H. L. McBain, De Witt Clin- they claim, as a matter of right, the advanton and the Origin of the Spoils System in New tages of success. They see nothing wrong in

sor in of New Yorn 2 Amsocacy ™ the rule that to the VICTOR belongs the spoils of the ENEMY.”

Mr. Marcy, one of the senators of the 140. CHEROKEE NATION v. GEORGIA 5 Peters, 1 1831

Suit for injunction to restrain the State of ecution of certain laws of that state, which, Georgia. In 1827 the Cherokee Indians, occupy- as is alleged, go directly to annihilate the

ing extensive lands in northwestern Georgia, set (Cherokee as a political society, and to seize up a government and declared themselves anin- for the use of Georgia, the lands of the na-

dependent nation. Thereupon the legislature of . hich h be ed to th by th

Georgia passed resolutions alleging ownership of on waren fave Deen assur o mem y hae all Cherokee territory and extending the laws United States, Mm solemn treaties repeatedly of Georgia over the Cherokee Indians, and an- made and still in force. nulling all laws, usages and customs of the In- If courts were permitted to indulge their dians. The Indians appealed to the Supreme sympathies, a case better calculated to excite Court for an injunction to prevent the execution them can scarcely be imagined. A people, once of these laws. The opinion of Marshall is notable numerous, powerful, and truly independent,

for its definition of the legal relations of the In- found by our ancestors in the quiet and dians with the United mtates government ne uncontrolled possession of an ample domain, ndians constituted not foreign nations but do- gradually sinking beneath our superior policy See, Beveridge, Marshall, Vol. IV, p. 539 ff.; A. our arts and Our arin, have yielded their Abel, “History of Events Resulting in Indian lands, by successive treaties, each of which Consolidation West of the Mississippi River,” in Contains a solemn guarantee of the residue, Am. Hist. Assoc. Reports, 1906, Vol. 1; and ref- until they retain no more of their formerly

mestic dependent nations in a state of pupilage. .2 erences in Docs. No. 141-142. extensive territory than is deemed necessary

to their comfortable subsistence. To preserve MARSHALL, C. J. This bill is brought by this remnant, the present application is made.

the Cherokee nation, praying an injunction Before we can look into the merits of the to restrain the state of Georgia from the ex- case, a preliminary inquiry presents itself,

256 DOCUMENTS OF AMERICAN II1story Has this court jurisdiction of the cause? The foreign to each other. The term foreign nathird article of the constitution describes the tion is. with strict propriety, applicable by

extent of the judicial power. The second either to the other. But the relation of the

section closes an enumeration of the cases to Indians to the United States is marked by which it is extended, with “controversies peculiar and cardinal distinctions which exist

between a state or citizens thereof, and nowhere else. The Indian territory is adforeign states, citizens or subjects.” A sub- mitted to compose a part of the United sequent clause of the same section gives the States. In all our maps, geographical treaties, Supreme court original jurisdiction, in all histories and laws, it is so considered. In all cases in which a state shall be a party. The our intercourse with foreign nations, in our party defendant may then unquestionably be commercial regulations, in any attempt at sued in this court. May the plaintiff sue in intercourse between Indians and foreign it? Is the Cherokee nation a foreign state, in nations, they are considered as within the the sense in which that term is used in the jurisdictional limits of the United States, constitution? The counsel for the plaintiffs subject to many of those restraints which have maintained the affirmative of this prop- are imposed upon our own citizens. They osition with great earnestness and ability. So acknowledge themselves. in their treaties, to much of the argument as was intended to be under the protection of the United States: prove the character of the Cherokees as a they admit, that the United States shall have state, as a distinct political society, separated the sole and exclusive right of regulating the from others, capable of managing its own af- trade with them, and managing all their affairs and governing itself, has in the opinion fairs as they th:nk proper; and the Cherokees of a majority of the judges, been completely in particular were allowed by the treaty of successful. They have been uniformly treated Hopewe'l, which preceded the constitution, as a state, from the settlement of our coun- “to send a deputy of their choice, whenever try. The numerous treaties made with them they think fit, to congress.” Treaties were by the United States, recognise them as a made with some tribes. by the state of New people capable of maintaining the relations York, under a then unsettled construction of of peace and war, of being responsible in the confederation, by which they ceded all their political character for any violation of their lands to that State, taking back a limtheir engagements, or for any aggression com- __ited grant to themselves. in which they admit

mitted on the citizens of the United States, their dependence. Though the Indians are by any individual of their community. Laws acknowledged to have an unquestionable, and

have been enacted in the spirit of these heretofore unquestioned, right to the lands treaties. The acts of our government plainly they occupy, until that right shall be extinrecognise the Cherokee nation as a state, and guished by a voluntary cession to our gOV-

the courts are bound by those acts. ernment; yet it may well be doubted, whether

A question of much more difficulty re- those tribes which reside within the acknow!mains. Do the Cherokees constitute a foreign edged boundaries of the United States can, state in the sense of the constitution? The with accuracy, be denominated foreign nacounsel! have shown conclusively, that they tions. They may, more correctly, perhaps, be

are not a state of the Union, and have in- denominated domestic dependent nations, sisted that, individually, they are aliens, not They occupy a territory to which we assert owing allegiance to the United States. An a title independent of their will, which must aggregate of aliens compos-ng a state must, take effect in point of possession, when their they say, be a foreign state; each individual right of possess:on ceases. Meanwhile, they

being foreign, the whole must be foreign. are in a state of pupilage; their relation to This argument is impos:nz, but we must the United Siates resembles that of a ward examine it more closely, before we yield to to his guardian. They look to our government it. The condition of the Indians in relation to for protection: rely upon its kindness and its the United States is, perhaps, unlike that of power; appeal to it for relief to their wants; any other peopite in existence. In general, and address the president as their prea a nations nottwo owing a common allegiance, are ther. They and their country are considere

CyrEeROKEE NATION V. GEORGIA 257 by foreign nations, as well as by ourselves, entirely distinct. We cannot assume that the as being so completely under the sovereignty distinction was lost, in framing a subsequent and dominion of the United States, that any article, unless there be something in its lan. attempt to acquire their lands, or to form a guage to authorize the assumption. ~ political connection with them would be con- The counsel for the plaintiffs contend, that sidered by all as an invasion of our territory the words “Indian tribes’ were introduced and an act of hostility. These considerations into the article, empowering congress to reggo far to support the opinion, that the fram- ulate commerce, for the purpose ol removing ers of our constitution had not the Indian those doubts in which the management of . tribes in view, when they opened the courts Indian affairs was involved by the language of the Union to controversies between a state of the ninth article of the confederation. Inor the citizens thereof and foreign states. tending to give the whole of managing those In considering this subject, the habits and affairs to the government about to be instiusages of the Indians, in their intercourse tuted, the convention conferred it explicitly; with their white neighbors, ought not to be and omitted those qualifications which ementirely disregarded. At the time the consti- barrassed the exercise of it, as granted in the tution was framed, the idea of appealing to confederation. This may be admitted, withan American court of justice for an assertion out weakening the construction which has of right or a redress of wrong, had perhaps been intimated. Had the Indian tribes been never entered the mind of an Indian or of his foreign nations, in the view of the conventribe. Their appeal was to the tomahawk, or tion, this exclusive power of regulating to the government. This was well understood intercourse with them might have been, and, by the statesmen who framed the constitution most probably, would have been, specifically of the United States, and might furnish some _ given, in language indicating that idea, not in reason for om‘tting to enumerate them among language contradistinguishing them from the parties who might sue in the courts of the foreign nations. Congress might have been Union. Be this as it may, the peculiar rela- empowered “to regulate commerce with fortions between the United States and the In- eign nations, including the Indian tribes, and

dians occupying our territory are such, that among the several states.” This language we should feel much- difficutty in considering would have suggested itself to statesmen who

them as designated by the term foreign state, considered the Indian tribes as foreign nawere there no other part of the constitution tions, and were yet desirous of mentioning which might shed light on the meaning of them particularly. these words. But we think that in construing It has been also said, that the same words them, considerable aid is furnished by that have not necessarily the same meaning atclause in the eighth section of the third ar- tached to them, when found in different parts ticle, which empowers congress to “regulate of the same instrument; their meaning is commerce with foreign nations, and among controlled by the context. This is undoubtedly the several states, and with the Indian tribes.” true. In common language, the same word has In this clause, they are as clearly contradis- various meanings, and the peculiar sense in tinguished, by a name appropriate to them- which it is used in any sentence, is to be de-

selves, from foreign nations, as from the termined by the context. This may not be several states composing the Union. They equally true with respect to proper names. are designated by a distinct appellation; and ‘‘Foreign nations” is a general term, the apas this appellation can be applied to neither plication of which to Indian tribes, when of the others, neither can the application dis- | used in the American constitution, is, at best,

tinguishing either of the others be, in fair extremely questionable. In one article, in construction, appl-ed to them. The objects to which a power is given to be exercised in rewhich the power of regulating commerce _ gard to foreign nations generally, and to the might be directed, are divided into three dis- Indian tribes particularly, they are mentioned

tinct classes—-foreign nations, the several as scparate, in terms clearly contradistinstates, and Indian tribes. When forming this guishing them from each other. We perceive article, the convention considered them as _ plainly, that the constitution, in this article,

258 DOCUMENTS OF AMERICAN History does not comprehend Indian tribes in the government in their own country, by the general term “foreign nations;” not, we Cherokee nation, this court cannot interpose; presume, because a tribe may not be a nation, at least, in the form in which those matters

but because it is not foreign to the United are presented. States. When, afterwards, the term “foreign That part of the bill which respects the — State” is introduced, we cannot impute to the land occupied by the Indians, and prays the convention, the intention to desert its former aid of the court to protect their possession,

meaning, and to comprehend Indian tribes may be more doubtful. The mere question within it, unless the context force that con- of right might, perhaps, be decided by this struction on us. We find nothing in the con- court, in a proper case, with proper parties. . text, and nothing in the subject-of the article, But the court is asked to do more than de-

which leads to it. cide on the title. The bill requires us to con-

The court has bestowed its best attention trol the legislature of Georgia, and to restrain on this question, and, after mature delibera- the exertion of its physical force. The protion, the majority is of opinion, that an In- priety of such an interposition by the court dian tribe or nation within the United States may be well questioned; it savors too much

is not a foreign state, in the sense of the of the exercise of political power, to be constitution, and cannot maintain an action within the proper province of the judicial

in the courts of the United States. department. But the opinion on the point A serious additional objection exists to the respecting parties makes it unnecessary to jurisdiction of the court. Is the matter of the decide this question. bill the proper subject for judicial inquiry If it be true, that the Cherokee nation have and decision? It seeks to restrain a state from rights, this is not the tribunal in which the forcible exercise of legislative power those rights are to be asserted. If it be true, over a neighboring people, asserting their in- that wrongs have been inflicted, and that still dependence; their right to which the state greater are to be apprehended, this is not the denies. On several of the matters alleged in tribunal which can redress the past or prevent the bill, for example, on the laws making it the future. The motion for an injunction is criminal to exercise the usual powers of self- denied. Story, J. and Tuompson, J. dissenting.

141. WORCESTER v. GEORGIA 6 Peters, 515 1832

Error to the Superior Court for the County of | Union, which has exercised the powers of Gwinnett, Georgia. The facts are stated in the government over a people who deny its opinion below. It is of this opinion that Presi- jurisdiction, and are under the protection of

dent Jackson is reputed to have remarked: “John the United States.

r Il. co 3

warnar nas. mace as Se ineesed nt ra dan The plaintiff is a citizen of the State ot interference with what she considered her sov- Vermont, condemned to hard labor for four ereign affairs that she refused to appear before years in the penitentiary of Georgia under the Court in this case, and refused likewise to color of an act which he alleges to be Tepug-

obey the mandate of the Court. For the his- nant to the Constitution, laws, and treaties torical background of the case, see Beveridge, of the United States. Marshall, Vol. IV, p. 547 ff.; E. M. Coulter, The legislative power of a State, the conShort History of Georgia, ch. xvii; W. Lumpkin, trolling power of the Constitution and laws Removal of the Cherokee Indians from Georgia, oF the United States, the rights, if they have 2 vols.; U. B. Phillips, Georgia and State Rights, any, the political existence of a once nup. 66 tf. See also, Cherokee Nation v. State of merous and powerful people, the personal

Georgia, Doc. No. 140. liberty of a citizen, all are involved in the

MARSHALL, C. J. This cause, in every point subject now to be considered. La

of view in which it can be placed, is of the We must inquire and decide whether the

deepest interest. act of the Legislature of Georgia under The defendant is a State, a member of the which the plaintiff in error has been prose-

REMOVAL OF SOUTHERN INDIANS 259 cuted and condemned, be consistent with, or a right to all the lands within those bound-

repugnant to the Constitution, laws and aries, which is not only acknowledged, but

treaties of the United States. guaranteed by the United States... .

It has been said at the bar that the acts The Cherokee Nation, then, is a distinct

of the Legislature of Georgia seize on the community, occupying its own territory, with whole Cherokee country, parcel it out among boundaries accurately described, in which the neighboring counties of the State, extend the laws of Georgia can have no force, and her code over the whole country, abolish its which the citizens of Georgia have no right institutions and its laws, and annihilate its to enter but with the assent of the Cherokees

political existence. themselves or in conformity with treaties and

If this be the general effect of the system, with the acts of Congress. The whole interlet us inquire into the effect of the particular course between the United States and this statute and section on which the indictment nation is, by our Constitution and laws, vested

is founded. in the government of the United States.

It enacts that ‘all white persons, residing The act of the State of Georgia under

within the limits of the Cherokee Nation on which the plaintiff in error was prosecuted is the lst day of March next, or at any time consequently void, and the judgement a null-

thereafter, without a licence or permit from ity... . The Acts of Georgia are repugnant his excellency the governor ...and who to the Constitution, laws, and treaties of the

shall not have taken the oath hereinafter re- United States. quired, shall be guilty of a high misdemeanor, They interfere forcibly with the relations and upon conviction thereof, shall be pun- established between the United States and ished by confinement to the penitentiary at the Cherokee Nation, the regulation of which

- hard labor for a term not less than four according to the settled principles of our

years.” ... Constitution, are committed exclusively to The extraterritorial power of every Legis- the government of the Union.

lature being limited in its action to its own They are in direct hostility with treaties, citizens or subjects, the very passage of this repeated in a succession of years, which act is an assertion of jurisdiction over the mark out the boundary that separates the Cherokee Nation, and of the rights and pow- Cherokee country from Georgia; guarantee

ers consequent on jurisdiction. to them all the land within their boundary;

The first step, then, in the inquiry which solemnly pledge the faith of the United the Constitution and the laws impose on this States to restrain their citizens from tres-

court, is an examination of the rightfulness passing on it; and recognize the pre-

of this claim... . existing power of the nation to govern itFrom the commencement of our govern- _ self.

ment Congress has passed acts to regulate They are in equal hostility with the acts of trade and intercourse with the Indians; which Congress for regulating this intercourse, and treat them as nations, respect their rights, giving effect to the treaties.

and manifest a firm purpose to afford that The forcible seizure and abduction of the protection which treaties stipulate. All these plaintiff, who was residing in the nation with acts, and especially that of 1802, which is its permission, and by authority of the Presistill in force, manifestly consider the several dent of the United States, is also a violation Indian nations as distinct political commu- of the acts which authorize the chief magis-

nities, having territorial boundaries, within trate to exercise this authority. .. . which their authority is exclusive, and having Judgement reversed.

142. REMOVAL OF SOUTHERN INDIANS TO INDIAN TERRITORY Extract from Jackson’s Seventh Annual Message to Congress December 7, 1835 (Richardson, ed. Messages and Papers, Vol. Ill, p. 171 ff.) Georgia's indian policy, and the failure of Jack- terpretation of the rights of the Indians, led to

upreme Court in its in- the plan of removing the remaining Creeks,

260 DOCUMENTS OF AMERICAN IIIstory Cherokees, and other Indian tribes of the South The plan for their removal and reéstablishto a reservation west of the Mississippi. This ment is founded upon the knowledge we have policy had been outlined by Jackson in his fizst pained of their character and habits, and has message to Congress, and in 1839 Congress had been dictated by a spirit of enlarged liberality.

appropriated half a million dollars for the re- A territory exceedine in extent that relin.

moval of the Indians to the west. In 1834 Con- ; y ° nat renn

gress created a special Indian Territory, and by uished has been granted to each tribe. Of its a treaty of December 29, 1835, the Indians sur- Climate, fertility, and capacity to support an rendered their lands east of the Mississippi in Indian population the representations are return for five million dollars, the expenses of highly favorable. To these districts the Inremoval, and land. See G. Foreman, Indian Re- dians are removed at the expense of the moval; G. Foreman, Indians and Pioneers, ch. United States, and with certain supplies of xxi; W. MacDonald, Jacksonian Democracy, clothing, arms, ammunition, and other indis-

ch. x. pensable articles; they are also furnished gratuitously with provisions for the period of WASHINGTON, December 7, 1835. a year after their arrival at their new homes.

... The plan of removing the aboriginal In that time, from the nature of the counpeople who yet remain within the settled por- try and of the products raised by them, they

tions of the United States to the country can subsist themselves by agricultural labor, west of the Mississippi River approaches its if they choose to resort to that mode of life: consummation. It was adopted on the most if they do not they are upon the skirts of the mature consideration of the condition of this great prairies, where countless herds of bufrace, and ought to be persisted in till the ob- —falo roam, and a short time suffices to adapt

ject is accomplished, and prosecuted with as their own habits to the changes which a much vigor as a just regard to their circum- change of the animals destined for their food stances will permit, and as fast as their con- may require. Ample arrangements have also sent can be obtained. All preceding experi- been made for the support of schools; in ments for the improvement of the Indians some instances council houses and churches have failed. It seems now to be an established are to be erected, dwellings constructed for fact that they can not live in contact with a the chiefs, and mills for common use. Funds civilized community and prosper. Ages of have been set apart for the maintenance of fruitless endeavors have at length brought us the poor; the most necessary mechanical to a knowledge of this principle of inter- arts have been introduced, and blacksmiths, communication with them. The past we can gunsmiths, wheelwrights, millwrights, etc., not recall, but the future we can provide for. are supported among them. Steel and iron, Independently of the treaty stipulations into and sometimes salt, are purchased for them, which we have entered with the various and plows and other farming utensils, dotribes for the usufructuary rights they have mestic anima‘s,' looms, spinning wheels, ceded to us, no one can doubt the moral duty cards, etc., are presented to them. And beof the Government of the United States to sides these beneficial arrangements, annuities protect and if possible to preserve and per- are in all cases paid, amounting in some inpetuate the scattered remnants of this race stances to more than $30 for each individual which are left within our borders. In the dis- of the tribe, and in all cases sufficiently great, charge of this duty an extensive region in the if justly divided and prudently expended, to West has been assigned for their permanent enable them, in addition to their own exerresidence. It has been divided into districts tions, to live comfortably. And as a stimulus

and allotted among them. Many have al- for exertion, it is now provided by law that ready removed and others are preparing to “in all cases of the appointment of intergo, and with the exception of two small bands preters or other persons employed for the living in Ohio and Indiana, not exceeding benefit of the Indians a preference shall be 1,500 persons, and of the Cherokees, all the given to persons of Indian descent, if such tribes on the east side of the Mississippi, and can be found who are properly quali:ied for

extending from Lake Michigan to Florida, the discharge of the duties.” .

have entered into engagements which will Such are the arrangements for the physical

lead to their transplantation. comfort and for the moral improvement of

SOUTH CAROLINA ORDINANCE OF NULLIFICATION 261 the Indians. The necessary measures for their citizens, and guarding the Indians as far as political advancement and for their separa- possible from those evils which have brought

tion from our citizens have not been neg- them to their present condition. Summary lected. The pledge of the United States has authority has been given by law to destroy been given by Congress that the country des- all ardent spirits found in their country, tined for the residence of this people shall be without waiting the doubtful result and slow forever “secured and guaranteed to them.” A process of a legal seizure. I consider the abcountry west of Missouri and Arkansas has solute and unconditional interdiction of this been assigned to them, into which the white article among these people as the first and settlements are not to be pushed. No political great step in their melioration. Halfway communities can be formed in that extensive measures will answer no purpose. These can region, except those which are established by not successfully contend against the cupidity

the Indians themselves or by the United of the seller and the overpowering appetite States for them and with their concurrence. of the buyer. And the destructive effects of A barrier has thus been raised for their pro- the traffic are marked in every page of the

tection against the encroachment of our history of our Indian intercourse... . 143. SOUTH CAROLINA ORDINANCE OF NULLIFICATION November 24, 1832 (Séatutes at Large of South Carolina, Vol. I, p. 329 ff.)

The tariif of July 14, 1832 was only less un- duties on articles similar to those intended popular than the “tariff of abominations” of to be protected, hath exceeded its just pow1828. The legislature of South Carolina met in ers under the Constitution, which confers on special session in October, 1832 and provided for jt no authority to afford such protection, and ation convention consider the tariff: conven- iain the truewos meaning met intoNovember andthe adopted theviolated Ordinance . ; and intent of Nullification. For Jackson’s Proclamation, see of the Constitution, which provides for equalDoc. No. 144. See, D. F. Houston, Critical Study ty in imposing the burthens of taxation of Nullification in South Carolina; C.S. Boucher, Upon the several States and portions of the Nullification Movement in South Carolina; J.G. Confederacy: And whereas the said Congress, Van Deusen, Economic Basis of Disunion in exceeding its just power to impose taxes and

South Carolina; H. Von Holst, Calhoun; G. collect revenue for the purpose of effecting unt, Calkoun; J. S. Bassett, Andrew Jackson, and accomplishing the specific objects and Vol. II; J. Parton, Andrew Jackson, Vol. ILI; purposes which the Constitution of the rs Bowers, Party Battles of the Jackson Period, United States authorizes it to effect and ac-

a complish, hath raised and collected unneces-

‘ln Ord.nunce to Nullify certain acts of the sary revenue for objects unauthorized by the Congress of the United States, purport- Constitution:— ing to be laws laying duties and imposts We, therefore, the people of the State of on the importation of foreign commodi- South Carolina in Convention assembled, do

ties. declare and ordain, ... That the several

Whereas the Congress of the United States, acts and parts of acts of the Congress of the

by various acts, purporting to be acts lay- United States, purporting to be laws for the ing duties and imposts on foreign imports, imposing of duties and imposts on the imporbut in reality intended for the protection of tation of foreign commodities, . . . and, more

domestic manufactures, and the giving of especially, .. . [the ‘tariff acts of 1828 and bounties to classes and individuals engaged 1832]... , are unauthorized by the Constiin particular employments, at the expense tution of the United States. and violate the and to the injury and oppression of other true meaning and intent thereof, and are null, classes and individuals, and by wholly ex- void. and no law, nor binding upon this State, empting from taxation certain foreign com- its officers or citizens; and all promises, conmodities, such as are not produced or manu- tracts. and obligations, made or entered into, factured in the United States, to afford a or to be made or entered into, with purpose pretext ‘or imposing higher and excessive to secure the duties imposed by the said acts,

262 DOCUMENTS OF AMERICAN HisToRyY and all judicial proceedings which shall be the same; and on the neglect or omission of hereafter had in affirmance thereof, are and any such person or persons so to do, his or

shall be held utterly null and void. their office or offices shall be forthwith vaAnd it is further Ordained, That it shall cated, . . . and no person hereafter elected not be lawful for any of the constituted au- to any office of honor, profit, or trust, civil thorities, whether of this State or of the or military, (members of the Legislature ex-

United States, to enforce the payment of cepted), shall, until the Legislature shall duties imposed by the said acts within the otherwise provide and direct, enter on the limits of this State; but it shall be the duty execution of his office, ... until he shall, of the Legislature to adopt such measures’ in like manner, have taken a similar oath; and pass such acts as may be necessary to and no juror shall be empannelled in any of give full effect to this Ordinance, and to pre- the courts of this State, in any cause in which

vent the enforcement and arrest the opera- shall be in question this Ordinance, or any tion of the said acts and parts of acts of the act of the Legislature passed in pursuance Congress of the United States within the thereof, unless he shall first, in addition to limits of this State, from and after the Ist the usual oath, have taken an oath that he

day of February next, .. . will well and truly obey, execute, and enforce

And it is further Ordained, That in no case’ this Ordinance, and such act or acts of the of law or equity, decided in the courts of this Legislature as may be passed to carry the State, wherein shall be drawn in question the same into operation and effect, according to authority of this ordinance, or the validity of the true intent and meaning thereof.

such act or acts of the Legislature as may And we, the People of South Carolina, ‘to be passed for the purpose of giving effect the end that it may be fully understood by thereto, or the validity of the aforesaid acts the Government of the United States, and of Congress, imposing duties, shall any ap- the people of the co-States, that we are depeal be taken or allowed to the Supreme termined to maintain this, our Ordinance and Court of the United States, nor shall any Declaration, at every hazard, Do further Decopy of the record be printed or allowed for clare that we will not submit to the applicathat purpose; and if any such appeal shall be _ tion of force, on the part of the Federal Gov-

attempted to be taken, the courts of this ernment, to reduce this State to obedience; State shall proceed to execute and enforce but that we will consider the passage, by their judgments, according to the laws and Congress, of any act... to coerce the usages of the State, without reference to such State, shut up her ports, destroy or harass attempted appeal, and the person or persons her commerce, or to enforce the acts hereby attempting to take such appeal may be dealt declared to be null and void, otherwise than

with as for a contempt of the court. through the civil tribunals of the country, as And it is further Ordained, That all per- inconsistent with the longer continuance of sons now holding any office of honor, profit, South Carolina in the Union: and that the or trust, civil or military, under this State, people of this State will thenceforth hold (members of the Legislature excepted), shall, themselves absolved from all further obliga-

within such time, and in such manner as the tion to maintain or preserve their political Legislature shall prescribe, take an oath well connexion with the people of the other States,

and truly to obey, execute, and enforce, this and will forthwith proceed to organize a Ordinance, and such act or acts of the Legis- separate Government, and do all other acts lature as may be passed in pursuance thereof, and things which sovereign and independent according to the true intent and meaning of States may of right to do.

144. JACKSON’S PROCLAMATION TO THE PEOPLE OF SOUTH CAROLINA December 10, 1832

(Richardson, ed. Messages and Papers, Vol. II, p. 640 ff.) Jackson’s Proclamation was primarily concerned January 16, 1833 Jackson reported to Congress with the constitutional issues of nullification. on nullification and presented concrete recom-

JACKSON’S PROCLAMATION TO PEOPLE OF S. C. 263 mendations for action. See, Richardson, Messages declaring the course which duty will require

and Papers, Vol. II, p. 610 ff. For references, me to pursue, and, appealing to the under-

see Doc. No. 143. standing and patriotism of the people, warn Whereas a convention assembled in the them of the consequences that must inevitaState of South Carolina have passed an or- bly result from an observance of the dictates dinance by which they declare “that the sev- of the convention... .

eral acts and parts of acts of the Congress The ordinance is founded, not on the inof the United States purporting to be laws defeasible right of resisting acts which are for the imposing of duties and imposts on plainly unconstitutional and too oppressive the importation of foreign commodities,... to be endured, but on the strange position are unauthorized by the Constitution of the that any one State may not only declare an United States, and violate the true meaning act of Congress void, but prohibit its execuand intent thereof, and are null and void and tion; that they may do this consistently with no law,” nor binding on the citizens of that the Constitution; that the true construction State or its officers; and by the said ordi- of that instrument permits a State to retain nance it is further declared to be unlawful its place in the Union and yet be bound by for any of the constituted authorities of the no other of its laws than those it may choose State or of the United States to enforce the to consider as constitutional. It is true, they payment of the duties imposed by the said add, that to justify this abrogation of a law acts within the same State, and that it is the it must be palpably contrary to the Constituduty of the legislature to pass such laws as_ tion; but it is evident that to give the right may be necessary to give full effect to the of resisting laws of that description, coupled

said ordinance; and with the uncontrolled right to decide what Whereas by the said ordinance it is further laws deserve that character, is to give the

ordained that in no case of law or equity power of resisting all laws; for as by the decided in the courts of said State wherein theory there is no appeal, the reasons alleged shall be drawn in question the validity of the by the State, good or bad, must prevail. If it said ordinance, or of the acts of the legisla- should be said that public opinion is a sufture that may be passed to give it effect, or ficient check against the abuse of this power, of the said laws of the United States, no ap- it may be asked why it is not deemed a sufpeal shall be allowed to the Supreme Court ficient guard against the passage of an un-

of the United States, nor shall any copy of constitutional act by Congress? There is, the record be permitted or allowed for that however, a restraint in this last case which purpose, and that any person attempting to makes the assumed power of a State more take such appeal shall be punished as for indefensible, and which does not exist in the

contempt of court; and... other. There are two appeals from an un-

Whereas the said ordinance prescribes to constitutional act passed by Congress—one the people of South Carolina a course of to the judiciary, the other to the people and conduct in direct violation of their duty as the States. There is no appeal from the State citizens of the United States, contrary to the decision in theory, and the practical illustralaws of their country, subversive of its Con- tion shows that the courts are closed against stitution, and having for its object the de- an application to review it, both judges and

struction of the Union— jurors being sworn to decide in its favor.

To preserve this bond of our political ex- But reasoning on this subject is superfluous istence from destruction, to maintain in- when our social compact, in express terms, violate this state of national honor and pros- declares that the laws of the United States, perity, and to justify the confidence my its Constitution, and treaties made under it fellow-citizens have reposed in me, I, Andrew’ are the supreme law of the land, and, for Jackson, President of the United States, have greater caution, adds “that the judges in thought proper to issue this my proclamation, every State shall be bound thereby, anything

stating my views of the Constitution and _ in the constitution or laws of any State to laws applicable to the measures adopted by the contrary notwithstanding.” And it may the convention of South Carolina and to the be asserted without fear of refutation that reasons they have put forth to sustain them, no federative government could exist without

264 DOCUMENTS oF AMERICAN IIIsTory a similar provision. Look for a moment to formed for important objects that are anthe consequence. If South Carolina considers nounced in the preamble, made in the name

the revenue laws unconstitutional and has a and by the authority of the people of the right to prevent their execution in the port United States, whose delegates framed and of Charleston, there would be a clear consti- whose conventions approved it. The most tutional objection to their collection in every . important among these objects—that which other port; and no revenue could be col- is placed first in rank, on which all the others

lected anywhere, for all imposts must be rest—is “to form a more perfect union.” equal. [t is no answer to repeat that an un- Now, is it possible that even if there were no constitutional law is no law so long as the express provision giving supremacy to the question of its legality is to be decided by Constitution and laws of the United States the State itself, for every law operating in- over those of the States, can it be conceived juriously upon any local interest will be per- that an instrument made for the purpose of haps thought, and certainly represented, as “forming a more perfect union” than that of unconstitutional, and, as has been shown, the Confederation could be so constructed by

there is no appeal. the assembled wisdom of our country as to If this doctrine had been established at an substitute for that Confederation a form of earlier day, the Union would have becn dis- government dependent for its existence on solved in its infancy. The excise law in Penn- the local interest, the party spirit, of a State, sylvania, the embargo and nonintercourse or of a prevailing faction in a State? Every law in the Eastern States, the carriage tax in man of plain, unsophisticated understanding Virginia, were all deemed unconstitutional, who hears the question will give such an anand were more unequal in their operation — swer as will preserve the Union. Metaphysical

than any of the laws now complained of; subtlety, in pursuit of an impracticable thebut, fortunately, none of those States dis- ory, could alone have devised one that is covered that they had the right now claimed calculated to destroy it. by South Carolina. The war into which we I consider, then, the power to annul a law were forced to support the dignity of the of the United States, assumed by one State, nation and the rights of our citizens might incompatible with the existence of the Union, have ended in defeat and d'sgrace, instead of contradicted expressly by the letter of the victory and honor, if the States who sup- Constitution, unauthorized by its spirit, inposed it a ruinous and unconstitutional meas- consistent with every principle on which it ure had thought they possessed the right of was founded, and destructive of the great nullifying the act by which it was declared object for which it was formed. and denying supplies for its prosecution. After this general view of the leading prinHardly and unequally as those measures bore ciple, we must examine the particular appliupon several members of the Union, to the cation of it which is made in the ordinance.

legislatures of none did this efficient and The preamble rests its justification on peaceable remedy, as it is called, suggest these grounds: It assumes as a fact that the itself. The discovery of this important fea- obnoxious laws, although they purport to be ture in our Constitution was reserved to the laws for raising revenue, were in reality inpresent day. To the statesmen of South Caro- tended for the protection of manufactures, lina belongs the invention, and upon the citi- which purpose it asserts to be unconstituzens of that State will unfortunately fall the — tional; that the operation of these laws is un-

evils of reducing it to practice. equal; that the amount raised by them is

If the doctrine of a State veto upon the — greater than is required by the wants of the laws of the Union carries with it internal evi- Government; and, finally, that the proceeds

dence of its impracticable absurdity, our are to be applied to objects unauthorized by constitutional history will also afford abun- the Constitution. These are the only causes dant proof that it would have been repu- alleged to justify an open opposition to the diated w:th indignation had it been proposed laws of the country and a threat of seceding

to form a feature in our Government. from the Union if any attempt should be Our present Constitution was formed... made to enforce them. The first virtually

in vain if this fatal doctrine prevails. It was acknowledges that the law in question was

JACKSON’S PROCLAMATION TO PEOPLE OF 5S. C. = 265 passed under a power expressly given by the sacrifices of local interest, of State prejuConstitution to lay and collect imposts: but dices, of personal animosities, that were made its constitutionality is drawn in question to bring it into existence, will again be pafrom the motives of those who passed it. triotically offered for its support. However apparent this purpose may be in The two remaining objections made by the the present case, nothing can be more dan- _ ordinance to these laws are that the sums gerous than to admit the position that an un- intended to be raised by them are greater constitutional purpose entertained by the than are required and that the proceeds will members who assent to a law enacted under be unconstitutionally employed... . a constitutional power shall make that law The ordinance, with the same knowledge void. For how is that purpose to be ascer- of the future that characterizes a former obtained? Who is to make the scrutiny? How jection, tells you that the proceeds of the tax often may bad purposes be falscly imputed, will be unconstitutionally applied. If this in how many cases are they concealed by could be ascertained with certainty, the obfalse professions. in how many is no declara- jection would with more propriety be retion of motive made? Admit this doctrine, served for the law so applying the proceeds, and you give to the States an uncontrolled but surely can not be urged against the laws right to decide, and every law may be an- levying the duty. nulled under this pretext. If, therefore, the These are the allegations contained in the absurd and dangerous doctrine should be ad- ordinance. Examine them seriously, my mitted that a State may annul an unconsti- fellow-citizens; judge for yourselves. I aptutional law, or one that it deems such, it peal to you Lo determine whether they are so

will not apply to the present case. clear, so convincing, as to leave no doubt of The next objection is that the laws in their correctness; and even if you should question operate unequally. This objection come to this conclusion, how far they justify may be made with truth to every law that the reckless, destructive course which you has been or can be passed. The wisdom of are directed to pursue. Review these objccman never yet contrived a system of taxation tions and the conclusions drawn from them that would operate with perfect equality. If once more. What are they? Every law, then,

the unequal operation of a law makes it for ra-s.ng revenue, according to the South unconstitutional, and if all laws of that de- Carolina ordinance, may be rightfully anscription may be abrogated by any State for nulled, unless it be so framed as no law ever that cause, then, indeed, is the Federal Con- will or can be framed. Congress have a right stitution unworthy of the slightest effort for to pass laws for raising revenue and each

its preservation. ... Nor dd the States, State have a right to oppose their execution— when they severally ratified it, do so under two rights directly opposed to each other: the impression that a veto on the laws of the and yet is this absurdity supposed to be United States was reserved to them or that contained in an instrument drawn for the they coud exercise it by implication. Search express purpose of avoiding collisions bethe debates in all their conventions, examine tween the States and the General Governthe speeches of the most zealous opposers of | ment by an assembly of the most enlightened Federal authority, look at the amendments statesmen and purest patriots ever embodied that were proposed; they are all silent—not for a similar purpose.

a. syllable uttered, not a vote given, not a In vain have these sages declared that Conmotion made to correct the explicit suprem- gress shall have power to lay and collect acy given to the laws of the Union over those taxes, duties, Impos.s, and excises; in vain of the States, or to show that implication, as have they provided that they shal] have is now contended, could defeat it. No; we power to pass laws which shall be necessary have not erred. The Constitution is still the and proper to carry those powers into execuobject of our reverence, the bond of our tion, that those laws and that Constitution Union, our defense in danger, the source of — shall be the “supreme law of the land, and our prosperity in peace. It shall desccnd, as that the judges in every State shall be bound we have received it, uncorrupted by sophis- thereby, anything in the constitution or laws

tical construction, to our posterity; and the of any State to the contrary notwithstand-

266 DOCUMENTS OF AMERICAN HtsTorRy ing;” ... if a bare majority of the voters the States or in any other manner, its charin any one State may, on a real or supposed acter is the same. It is a Government in knowledge of the intent with which a law has which all the people are represented, which been passed, declare themselves free from its operates directly on the people individually,

operation; ... not upon the States; they retained all the The Constitution declares that the judicial power they did not grant. But each State, powers of the United States extend to cases having expressly parted with so many powers arising under the laws of the United States, as to constitute, jointly with the other States,

and that such laws, the Constitution, and a single nation, can not, from that period, treaties shall be paramount to the State con- possess any right to secede, because such stitutions and laws. The judiciary act pre- secession does not break a league, but de-

scribes the mode by which the case may be _ stroys the unity of a nation; and any injury

brought before a court of the United States to that unity is not only a breach which by appeal when a State tribunal shall decide would result from the contravention of a against this provision of the Constitution. compact, but it is an offense against the whole The ordinance declares there shall be no ap- Union. To say that any State may at pleasure

peal—makes the State law paramount to the secede from the Union is to say that the Constitution and laws of the United States, United States are not a nation, because it forces judges and jurors to swear that they would be a solecism to contend that any part will disregard their provisions, and even of a nation might dissolve its connection makes it penal in a suitor to attempt relief with the other parts, to their injury or ruin, by appeal. It further declares that it shall without committing any offense. Secession,

not be lawful for the authorities of the like any other revolutionary act, may be

United States or of that State to enforce the morally justified by the extremity of oppayment of duties imposed by the revenue pression; but to call it a constitutional right

laws within its limits. is confounding the meaning of terms, and can Here is a law of the United States, not only be done through gross error or to deeven pretended to be unconstitutional, re- ceive those who are willing to assert a right, pealed by the authority of a small majority but would pause before they made a revoluof the voters of a single State. Here is a pro- tion or incur the penalties consequent on a vision of the Constitution which is solemnly failure.

abrogated by the same authority. Because the Union was formed by a comOn such expositions and reasonings the or- pact, it is said the parties to that compact dinance grounds not only an assertion of the may, when they feel themselves aggrieved, right to annul the laws of which it complains, depart from it; but it is precisely because it but to enforce it by a threat of seceding is a compact that they can not. A compact is from the Union if any attempt is made to an agreement or binding obligation. It may

execute them. by its terms have a sanction or penalty for

This right to secede is deduced from the its breach, or it may not. If it contains no nature of the Constitution, which, they say, sanction, it may be broken with no other is a compact between sovereign States who consequence than moral guilt; if it have a have preserved their whole sovereignty and _ sanction, then the breach incurs the desigtherefore are subject to no superior; that nated or implied penalty. A league between because they made the compact they can independent nations generally has no sanction break it when in their opinion it has been other than a moral one; or if it should condeparted from by the other States. Fallacious tain a penalty, as there is no common suas this course of reasoning is, it enlists State _ perior it can not be enforced. A government,

pride and finds advocates in the honest on the contrary, always has a sanction, exprejudices of those who have not studied the press or implied; and in our case it is both nature of our Government sufficiently to see necessarily implied and expressly given. An

the radical error on which it rests... . attempt, by force of arms, to destroy a govThe Constitution of the United States, ernment is an offense, by whatever means the then, forms a government, not a league; and constitutional compact may have _ been whether it be formed by compact between formed: and such government has the right

JACKSON’S PROCLAMATION TO PEOPLE OF S. C. 267 by the law of self-defense to pass acts for gates to a State convention; that convention punishing the offender, unless that right is has ordained that all the revenue laws of modified, restrained, or resumed by the con- the United States must be repealed, or that gtitutional act. In our system, although it is they are no longer a member of the Union. modified in the case of treason, yet authority The governor of that State has recommended is expressly given to pass all laws necessary to the legislature the raising of an army to to carry its powers into effect, and under this carry the secession into effect, and that he grant provision has been made for punishing may be empowered to give clearances to vesacts which obstruct the due administration sels in the name of the State. No act of vio-

of the laws. lent opposition to the laws has yet been

It would seem superfluous to add anything committed, but such a state of things is to show the nature of that union which con- hourly apprehended. And it is the intent of nects us, but as erroneous opinions on this this instrument to proclaim, not only that the subject are the foundation of doctrines the duty imposed on me by the Constitution “to most destructive to our peace, I must give take care that the laws be faithfully exesome further development to my views on cuted” shall be performed to the extent of

this subject... . the powers already vested in me by law,

The States severally have not retained their or of such others as the wisdom of Congress entire sovereignty. It has been shown that in shall devise and intrust to me for that purbecoming parts of a nation, not members of pose, but to warn the citizens of South Caroa league, they surrendered many of their lina who have been deluded into an opposiessential parts of sovereignty. The right to tion to the laws of the danger they will incur make treaties, declare war, levy taxes, exer- by obedience to the illegal and disorganizing cise exclusive judicial and legislative powers, ordinance of the convention; to exhort those

were all of them functions of sovereign who have refused to support it to persevere power. The States, then, for all these impor- in their determination to uphold the Contant purposes were no longer sovereign. ... stitution and laws of their country; and to How, then, with all these proofs that under point out to all the perilous situation into all changes of our position we had, for des- which the good people of that State have ignated purposes and with defined powers, been led, and that the course they are urged created national governments, how is it that to pursue is one of ruin and disgrace to the the most perfect of those several modes of very State whose rights they affect to sup-

union should now be considered as a mere’ port.... league that may be dissolved at pleasure? It If your leaders could succeed in estabis from an abuse of terms. Compact is used lishing a separation, what would be your as synonymous with league, although the situationr Are you united at home? Are you

true term is not employed, because it would free from the apprehension of civil discord, at once show the fallacy of the reasoning. It with all its fearful consequences? Do our would not do to say that our Constitution neighboring republics, every day suffering was only a league, but it is labored to prove some new revolution or contending with some it a compact (which in one sense it is) and new insurrection, do they excite your envy?

then to argue that as a league is a compact But the dictates of a high duty oblige me every compact between nations must of solemnly to announce that you can not succourse be a league, and that from such an ceed. The laws of the United States must be engagement every sovereign power has a_ executed. I have no discretionary power on right to recede. But it has been shown that the subject; my duty is emphatically proin this sense the States are not sovereign, nounced in the Constitution. Those who told and that even if they were, and the national you that you might peaceably prevent their Constitution had been formed by compact, execution deceived you; they could not have there would be no right in any one State to been deceived themselves. They know that a

exonerate itself from its obligations. forcible opposition could alone prevent the This, then, is the position in which we execution of the laws, and they know that stand: A small majority of the citizens of such opposition must be repelled. Their obone State in the Union have elected dele- ject is disunion. But be not deceived by

268 DocuMENTS oF AMERICAN [IIistTory uames. Disunion by armed force is treason. Having the fullest confidence in the justness Are you really ready to incur its guilt? If of the legal and constitutional opinion of my you are, on the heads of the instigators of dutics which has been expressed, I rely with the act be the dreadful consequences: on their equal confidence on your undivided support heads be the dishonor, but on yours may fall in my determination to execute the laws, to the punishment. On your unhappy State will preserve the Union by all constitutional inevitably fall all the evils of the conflict you means, to arrest, if possible, by moderate and force upon the Government of your country. firm measures the necessity of a recourse to It can not accede to the mad project of dis- force; and if it be the will of Heaven that union, of which you would be the first vic- the recurrence of its primeval curse on man

tims. Its Tirst Magistrate can not, if he for the shedding of a brother’s blood should would, avoid the performance of his duty. fall upon our land, that it be not called down

The consequence must be fearful for you, by any offensive act on the part of the

distressing to your fellow-citizens here and United States. to the friends of good government through- Yellow-citizens, the momentous case is beout the world. Its enemies have beheld our fore you. On your undivided support of your prosperity with a vexation they could not Government depends the decision of the great conceal; it was a standing refutation of their question it involves—whether your sacred slavish doctrines, and they will point to our Union will be preserved and the blessing it discord with the triumph of malignant joy. secures to us as one people shall be perpetu-

It is yet in your power to disappoint ated. No one can doubt that the unanimity

them. ... with which that decision will be expressed Fellow-citizens of the United States, the will be such as to Inspire new confidence in

threat of unhallowed disunion, the names of — republican institutions, and that the prudence,

those once respected by whom it is uttered, the wisdom, and the courage which it will the array of military force to support it, de- bring to their defense will transmit them unnote the approach of a crisis in our affairs on impaired and invigorated to our children. which the continuance of our unexampled May the Great Ruler of Nations grant that prosperity, our political existence, and per- the signal blessings with which He has fahaps that of all free governments may de- vored ours may not, by the madness of party pend. The conjuncture demanded a free, a or personal ambition, be disregarded and full, and explicit enunciation, not only of my lost; and may His wise providence bring intentions, but of my principles of action; those who have produced this crisis to see and as the claim was asserted of a right by a__ the folly before they feel the misery of civil State to annul the laws of the Union, and _ strife, and inspire a returning veneration for

even to secede from it at pleasure, a frank that Union which, if we may dare to peneexposition of my opinions in relation to the trate His designs, He has chosen as the only

origin and form of our Government and the means of attaining the high destinies to construction I give to the instrument by which we may reasonably aspire.

which it was created seemed to be proper. ANDREW JACKSON.

145. SOUTH CAROLINA’S REPLY TO JACKSON’S PROCLAMATION December 20, 1832 (Statutes at Large of South Carolina Vol. I, p. 356-7) The Committee on federal relations, to not authorize him in that mode, to interfere which was referred the proclamation of the whenever he may think fit, in the affairs of President of the United States, has had it the respective states, or that he should use under consideration, and recommends the _ it as a means of promulgating executive exadoption of the following resolutions: pos.tions of the Constitution, with the sancResolved, That the power vested by the tion of force thus superseding the action of Constitution and laws in the President of the other departments of the general government.

United States, to issue his proclamation, does Resolved, That it is not competent to the

NULLIFICATION OF THE ForcE BILuy 269 President of the United States, to order by proclamation, of his personal feelings and proclamation the constituted authorities of a _ relations towards the State of South Caro-

state to repeal their legislation, and that the lina, is rather an appeal to the loyalty of late attempt of the President to do so is un- subjects, than to the patriotism of citizens, constitutional, and manifests a disposition to and is a blending of official and individual arrogaie and exercise a power utterly destruc- character, heretofore unknown in our state

tive of liberty. papers, and revolting to our conception of

Resolved, That the opinions of the Presi- political propriety. dent, in regard to the rights of the States, are Resolved, That the undisguised indulgence erroneous and dangerous, leading not only to of personal hostility in the said proclamation the establishment of a consolidated govern- would be unworthy of the animadversion of ment in the stead of our free confederacy, this legislature, but for the seldom and ofbut to the concentration of all powers in the ficial form of the instrument which is made

chief executive. its vehicle.

Resolved, That the proclamation of the Resolved, That, the principles, doctrines

President is the more extraordinary, that he and purposes, contained in the said proclamahad silently, and as it is supposed, with en- tion are inconsistent with any just idea of a tire approbation, witnessed our sister state limited government, and subversive of the of Georgia avow, act upon, and carry into rights of the states and liberties of the peoeffect, even to the taking of life, principles ple, and if submitted to in silence would lay identical with those now denounced by him a broad foundation for the establishment of

in South Carolina. monarchy.

Resolved, That each state of the Union Resolved, That while this legislature has

has the right, whenever it may deem such a_ witnessed with sorrow such a relaxation of course necessary for the preservation of its the spirit of our institutions, that a Presiliberties ‘or vital interests, to secede peaceably dent of the United States dare venture upon

from the Union, and that there is no con- this high handed measure, it regards with stitutional power in the general government, indignation the menaces which are directed much less in the executive department, of against it, and the concentration of a stand-

that government, to retain by force such ing army on our borders—that the state will

state in the Union. repel force by force, and relying upon the Resolved, That the primary and para- blessings of God, will maintain its hberty at

mount allegiance of the citizens of this state, all hazards.

native or adopted, is of right due to this Resolved, That copies of these resolutions

state. be sent to our members in Congress, to be Resolved, That the declaration of the laid before that body.

President of the United States in his said

146. NULLIFICATION OF THE FORCE BILL March 18, 1833 (Statutes at Large of South Carolina, Vol. I, p. 400-401)

AN ORDINANCE ports,” approved the second day of March, To Nullify an Act of the Congress of the 1833, is unauthorized by the Constitution of United States, entitled “An Act further to the United States, subversive of that Conprovide for the Collection of Duties on stitution, and destructive of public liberty; Imports,” commonly called the Force Bill. and that the same is, and shall be deemed, null and void, within the limits of this State; We, the Peopte of the State of South Caro- and it shall be the duty of the Legislature, lina in Convention assembled, do Declare and at such time as they may deem expedient, to Ordain, that the Act of the Congress of the adopt such measures and pass such acts as United States, entitled “An Act further to may be necessary to prevent the enforcement provide for the collection of duties on im-_ thereof, and to inflict proper penalties on

270 DOCUMENTS oF AMERICAN History any person who shall do any act in execution _ is hereby empowered, from time to time, or enforcement of the same within the limits when they may deem it proper, to provide

of this State. for the administration to the citizens and

We do further Declare and Ordain, That officers of the State, or such of the said ofthe allegiance of the citizens of this State, ficers as they may think fit, of suitable oaths while they continue such, is due to the said or affirmations, binding them to the observState; and that obedience only, and not al- ance of such allegiance; and abjuring all legiance, is due by them to any other power other allegiance; and, also, to define what or authority, to whom a control over them shall amount to a violation of their allegiance, has been, or may be delegated by the State; and to provide the proper punishment for and the General Assembly of the said State such violation.

147. JACKSON’S VETO OF THE BANK BILL July 10, 1832 (Richardson, ed. Messages and Papers, Vol. II, p. 576 ff.) The Bill for the recharter of the Second Bank advantages and obviating these objections. I passed the Senate, June 11, and the House, July sincerely regret that in the act before me I 3, 1832, with amendments in which the Senate can perceive none of those modifications of concurred. The attempt to pass the bill over the bank charter which are necessary, in my Jackson’s veto failed. The veto of the recharter opinion, to make it compatible with justice presidential campaign. Particularly interesting is with sound policy, or with the Constitution

of the bank became the principal issue of the . : need,

Jackson’s rejection of the finality or binding Of our country.

character of the opinion of the Supreme Court The present corporate body .. . enjoys on a question of constitutionality. For back- an exclusive privilege of banking under the ground see, R. C. H. Catterall, The Second Bank authority of the General Government, a moof the United States; W. MacDonald, Jacksonian nopoly of its favor and support, and, as a Democracy, ch. vii; W. L. Royall, Andrew Jack- necessary consequence, almost a monopoly son and the Bank; J. S. Bassett, Andrew Jack- o¢ the foreign and domestic exchange. The son Vo 1. Il, chs. XXVUTARVET 5 D. R. Dewey, powers, privileges, and favors bestowed upon

Financial History, ch. ix. it in the original charter, by increasing the WASHINGTON, July 10, 1832. value of the stock far above its par value,

To the Senate: operated as a gratuity of many millions to The bill “to modify and continue” the act the stockholders. .. .

entitled “An act to incorporate the sub- The act before me proposes another scribers to the Bank of the United States” gratuity to the holders of the same stock, was presented to me on the 4th July instant. .. . On all hands it is conceded that its pasHaving . . . come to the conclusion that it sage will increase at least 20 or 30 per cent ought not to become a law, I herewith re- more the market price of the stock, subject turn it to the Senate, in which it originated, to the payment of the annuity of $200,000

with my objections. per year secured by the act, thus adding in a A bank of the United States is in many moment one-fourth to its par value. It is not

respects convenient for the Government and _ our own citizens only who are to receive the useful to the people. Entertaining this opin- bounty of our Government. More than eight ion, and deeply impressed with the belief millions of the stock of this bank are held by that some of the powers and privileges pos- foreigners. By this act the American Repubsessed by the existing bank are unauthorized __ lic proposes virtually to make them a present

by the Constitution, subversive of the rights of some millions of dollars. For these gratuof the States, and dangerous to the liberties ities to foreigners and to some of our own of the people, I felt it my duty at an early opulent citizens the act secures no equivalent

period of my Administration to call the at- whatever... . . tention of Congress to the practicability of Every monopoly and all exclusive priviorganizing an institution combining all its leges are granted at the expense of the pub-

JacKsoNn’s VETO OF THE BANK BILu 271 lic, which ought to receive a fair equivalent. interests are identified with those of the forThe many millions which this act proposes eign stockholders, will there not be cause to to bestow on the stockholders of the existing tremble for the purity of our elections in bank must come directly or indirectly out of | peace and for the independence of our counthe earnings of the American people. It is try in war? Their power would be great when-

due to them, therefore, if their Government ever they might choose to exert it; but if sell monopolies and exclusive privileges, that this monopoly were regularly renewed every they should at least exact for them as much fifteen or twenty years on terms proposed by as they are worth in open market. The value themselves, they might seldom in peace put of the monopoly in this case may be correctly forth their strength to influence elections or

ascertained. The twenty-eight millions of control the affairs of the nation. But if any stock would probably be at an advance of private cilizen or public functionary should 50 per cent, and command in market at least | interpose to curtail its powers or prevent a $42,000,000, subject to the payment of the renewal of its privileges, it can not be present bonus. The present value of the mo- doubted that he would be made to feel its nopoly, therefore, is $17,000,000, and this influence... . the act proposes to sell for three millions, If we must have a bank with private stockpayable in fifleen annual installments of holders, every consideration of sound policy

$200,000 each. and every impulse of American feeling adIt is not conceivable how the present stock- monishes that it should be purely American.

holders can have any claim to the special Its stockholders should be composed exclufavor of the Government. The present cor- sively of our own citizens, who at least ought poration has enjoyed its monopoly during the _ to be friendly to our Government and willing

period stipulated in the original contract. If to support it in times of difficulty and danwe must have such a corporation, why should’ ger. . . . To a bank exclusively of American not the Government sell out the whole stock stockholders, possessing the powers and privand thus secure to the people the full market ileges granted by this act, subscriptions for value of the privileges granted? Why should $200,000,000 could be readily obtained... .

not Congress create and sell twenty-eight It is maintained by the advocates of the millions of stock, incorporating the pur- bank that its constitutionality in all its feachasers with all the powers and privileges se- tures ought to be considered as settled by cured in this act and putting the premium precedent and by the decision of the Supreme

upon the sales into the Treasury? .. . Court. To this conclusion I can not assent. The modifications of the existing charter Mere precedent is a dangerous source of au-

proposed by this act are not such, in my thority, and should not be regarded as deview, aS make it consistent with the rights of | ciding questions of constitutional power exthe States or the liberties of the people. The cept where the acquiescence of the people and qualification of the right of the bank to hold the States can be considered as well settled. real estate, the limitation of its power to es- So far from this being the case on this subtablish branches, and the power reserved to ject, an argument against the bank might be Congress to forbid the circulation°of small based on precedent. One Congress, in 1791, notes are restrictions comparatively of little decided in favor of a bank; another, in 1811,

value or importance. All the objectionable decided against it. One Congress, in 1815, principles of the existing corporation, and decided against a bank; another, in 1816, demost of its odious features, are retained with- cided in its favor. Prior to the present Con-

out alleviation. ... gress, therefore, the precedents drawn from

Is there no danger to our liberty and inde- that source were equal. If we resort to the pendence in a bank that in its nature has so States, the expressions of legislative, judicial, little to bind it to our country? The president and executive opinions against the bank have

of the bank has told us that most of the State been probably to those in its favor as 4

banks exist by its forbearance. Should its tol....

influence become concentered, as it may un- If the opinion of the Supreme Court covder the operation of such an act as this, in ered the whole ground of this act, it ought the hands of a self-elected directory whose not to control the codrdinate authorities of

272 DOCUMENTS OF AMERICAN II1stTory this Government. The Congress, the Execu- ment, to undertake here to inquire into the tive, and the Court must cach for itself be degree of its necessity would be to pass the guided by its own opinion of the Constitu- dine which circumscribes the judicial departlion. Each public officer who takes an oath ment and to tread on legislative ground.” to support the Constitution swears that he The principle here affirmed is that the ‘“‘dewill support it as he understands it, and not gree of its necessity,”. involving all the details as it is understood by others. It is as much of a banking institution, is a question exthe duty of the House of Representatives, of | clusively for legislative consideration. A bank

the Senate, and of the President to decide is constitutional, but it is the province of the upon the constitutionality of any bill or Legislature to determine whether this or that resolution which may be presented to them particular power, privilege, or exemption is for passage or approval as it is of the su- “necessary and proper” to enable the bank to preme judges when it may be brought before discharge its duties to the Government, and them for judicial decision. The opinion of from their decision there is no appeal to the the judges has no more authority over Con- courts of justice. Under the decision of the gress than the opinion of Congress has over Supreme Court, therefore, it is the exclusive the judges, and on that point the President is province of Congress and the President: to independent of both. The authority of the decide whether the particular features of this Supreme Court must not, therefore, be per- act are necessary and proper in order to enmitted to control the Congress or the Ex- able the bank to perform conveniently and ecutive when acting in their legislative ca- efficiently the public duties assigned to it as a pacities, but to have only such influence as _ fiscal agent, and therefore constitutional, or the force of their reasoning may deserve. unnecessary and improper, and therefore unBut in the case relied upon the Supreme _ constitutional. Court have not decided that all the features Without commenting on the general prinof this corporation are compatible with the ciple afhrmed by the Supreme Court, let us Constitution. It is true that the court have examine the details of this act in accordance said that the law incorporating the bank is a with the rule of legislative action which they constitutional exercise of power by Coneress; have laid down. It will be found that many but taking into view the whole opinion of of the powers and privileges conferred on it the cqurt and the reasoning by which they can not be supposed necessary for the purpose have come to that conclusion, I understand for which it is proposed to be created, and are them to have decided that inasmuch as a_ not, therefore, means necessary to attain the bank is an appropriate means for carrying end in view, and consequently not justified

into effect the enumerated powers of the by the Constitution. ... General Government, therefore the law in- The Constitution declares that “the Concorporating it is in accordance with that pro- gress shall have power to exercise exclusive vision of the Constitution which declares legislation in all cases whatsoever” over the

that Congress shall have power “to make all District of Columbia. Its constitutional laws which shall be necessary and proper for power, therefore, to establish banks in the carrying those powers into execution.” Hav- district of Columbia and increase their capiing satisfied themselves that the word “#ec- tal at will is unlimited and uncontrollable by essary” in the Constitution means “zeedful,” any other power than that which gave au“requisite,” “essential,” “conducive to,” and thority to the Constitution. Yet ths act dethat “a bank” is a convenient, a useful, and clares that Congress shall mot increase the essential instrument in the prosecution of the capital of existing banks, nor create other Government's “fiscal operations,” they con- banks with capitals exceeding in the whole clude that to “use one must be within the $6.000.000. The Constitution declares that discretion of Congress” and that “the act to Congress shall have power to exercise excluincorporate the Bank of the United States is sive legislation over this District “in all cases a law made in pursuance of the Constitu- whatsoever,” and this act declares they shall tion:” “but,” say they, “where the law is not not. Which is the supreme law of the land? prohibited and is really calculated to effect This provision can not be “necessary” or any of the objects intrusted to the Govern- “proper” or constitutional unless the absurd-

JACKSON’S VETO OF THE BANK BILL 273 ity be admitted that whenever it be “neces- tion ever imagined that any portion of the sary and proper” in the opinion of Congress taxing power of the States not prohibited to they have a r.ght to barter away one portion them nor delegated to Congress was to be of the powers vested in them by the Consti- swept away and annihilated as a means oi tution as a means of executing the rest... . executing certain powers delegated to ConThe Government is the only ‘proper’ — gress. judge where its agents should reside and If our power over means is so absolute that keep their offices, because it best knows where the Supreme Court will not call in question their presence will be “necessary.” It cannot, the constitutionality of an act of Congress therefore, be “necessary” or “proper” to au- the subject of which “is not prohibited, and

thorize the bank to locate branches where it is really calculated to effect any of the ob-

pleases to perform the public service, with- jects intrusted to the Government,” alout consulting the Government, and contrary though, as in the case before me, it takes to its will. The principle laid down by the away powers expressly granted to Congress Supreme Court concedes that Congress can and rights scrupulously reserved to the States, not establish a bank for purposes of private it becomes us to proceed in our legislation speculation and gain, but only as a means with the utmost caution. Though not directly, of executing the delegated powers of the our own powers and the rights of the States General Government. By the same principle may be indirectly legislated away in the use a branch bank can not constitutionally be of means to execute substantive powers. We established for other than public purposes. may not enact that Congress shall not have The power which this act gives to establish the power of exclusive legislation over the two branches in any State, without the in- District of Co'umbia, but we may pledge the junction or request of the Government and _ faith of the United States that as a means of for other than public purposes, is not “#eces- executing other powers i shall not be exersary” to the due execution of the powers’ cised for twenty years or forever. We may

delegated to Congress. .. . not pass an act prohibiting the States to tax

The principle is conceded that the States the banking business carried on within their can not rightfully tax the operations of the limits, but we may, as a means of executing General Government. They can not tax the our powers over olher objects, place that money of the Government deposited in the business in the hands of our agents and then State banks, nor the agency of those banks in declare it exempt from State taxation in remitting it; but will any man maintain that their hands. Thus may our own powers and their mere selection to perform this public the rights of the States, which we can not service for the General Government would ex- directly curtail or invade, be frittered away empt the State banks and their ordinary busi- and extinguished in the use of means emness from State taxation? Had the United ployed by us to execute other powers. That

States, instead of estabtishing a bank at a bank of the United States, competent to Philadelphia, employed a private banker to all the duties which may be required by the keep and transm't their funds, would it have Government, might be so organized as not to deprived Pennsylvania of the right to tax his infringe on our own delegated powers or the bank and his usual banking operations? ... reserved rights of the States I do not enterIt can not be necessary to the character of tain a doubt... . the bank as a fiscal agent of the Government Under such circumstances the bank comes that its private business should be exempted forward and asks a renewal of its charter from that taxation to which all the State for a term of fifteen years upon conditions

banks are liable, nor can I conceive it which not only operate as a gratuity to the “proper” that the substantive and most es- stockholders of many millions of dollars, but sential powers reserved by the States shall will sanction any abuses and legalize any be thus attacked and annihilated as a means encroachments... .

of executing the powers delegated to the The bank is professedly established as an General Government. It may be safely as- agent of the executive branch of the Govsumed that none of those sages who had an-~ ernment, and its constitutionality is mainagency in forming or adopting our Constitu- tained on that ground. Neither upon the

274 DOCUMENTS OF AMERICAN History propriety of present action nor upon the Experience should teach us wisdom. Most provisions of this act was the Executive con- of the difficulties our Government now ensulted. It has had no opportunity to say that counters and most of the dangers which imit neither needs nor wants an agent clothed pend over our Union have sprung from an

with such powers and favored by such ex- abandonment of the legitimate objects of emptions. There is nothing in its legitimate Government by our national legislation, and functions which makes it necessary or proper. the adoption of such principles as are emWhatever interest or influence, whether pub- bodied in this act. Many of our rich men lic or private, has given birth to this act, it have not been content with equal protection

can not be found either in the wishes or and equal benefits, but have besought us to necessities of the executive department, by make them richer by act of Congress. By atwhich present action is deemed premature, tempting to gratify their desires we have in and the powers conferred upon its agent not the results of our legislation arrayed section only unnecessary, but dangerous to the Gov- against section, interest against interest, and

ernment and country... . man against man, in a fearful commotion

There are no necessary evils in govern- which threatens to shake the foundations of ment. Its evils exist only in its abuses. If it our Union. It is time to pause In our career would confine itself to equal protection, and, to review our principles, and if possible reas Heaven docs its rains, shower its favors vive that devoted patriotism and spirit of alike on the high and the low, the rich and compromise which distinguished the sages of the poor, it would be an unqualified blessing. the Revolution and the fathers of our UnIn the act before me there scems to be a_ ion.

wide and unnecessary departure from these ANDREW JACKSON.

just principles. .. .

148. THE REMOVAL OF THE PUBLIC DEPOSITS Jackson’s Paper read to the Cabinet September 18, 1833

(Richardson, ed. Messages and Papers, Vol. III, p. 5 ff.) The veto of the bill to recharter the Bank was States, the President deems it his duty to

the principal issue of the campaign of 1832. communicate in this manner to his Cabinet Jackson looked upon his re-election as a public the final conclusions of his own mind and endorsement of his policy, and proceeded to the the reasons on which they are founded, in next step of his “war on the Bank by withdraw- order to put them in durable form and to ing the public deposits from it. Secretary Duane . ; refused to issue the order removing the deposits, prevent misconceptions. so and was forced to give up his office to R. B. Of all the substitutes for the present bank Taney, who, on September 26, issued the order Which have been suggested, none seems to for removal and designated the Girard Bank of have united any considerable portion of the Philadelphia as a place of deposit. Jackson’s public in its favor. Most of them are ‘liable paper read to the Cabinet and drafted by Taney, to the same constitutional objections for is, according to Professor MacDonald, “the most which the present bank has been condemned, explicit statement we have of Jackson’s theory and perhaps to all there are strong objections regarding the status and function of a cabinet on the score of expediency. officer in our constitutional system.” W.waole, On t]tnehole. the considers P ‘de t d1t MacDonald, Jacksonian Democracy, ch. xiii; See, mA tne rresident J. S. Bassett, Andrew Jackson. Vol. II, ch. xxix; 4S conclusively settled that the charter of S. Tyler, R. B. Taney, p. 191 ff.; D. R. Dewey, the Bank of the United States will not be

Financial History, p. 203 ff. renewed, and he has no reasonable ground

to believe that any substitute will be es-

Having carefully and anxiously considered _ tablished. Being bound to regulate his course all the facts and arguments which have been _ by the laws as they exist, and not to anticipate submitted to him relative to a removal of the the interference of the legislative power for

public deposits from the Bank of the United the purpose of framing new systems, it is

THE REMOVAL OF THE PuBLIc DEPOSITS 275 proper for him seasonably to consider the When shall it be commenced? Shall no step means by which the services rendered by the be taken in this essential concern until the Bank of the United States are to be per- charter expires and the Treasury finds itself

formed after its charter shall expire. without an agent, its accounts in confusion,

The existing laws declare that— with no depository for its funds, and the

The deposits of the money of the United whole business of the Government deranged, States in places in which the said bank and or shall it be delayed until six months, or a branches thereof may be established shall be year, or two years before the expiration of

made in said bank or branches thereof unless the charter? It is obvious that any new the Secretary of the Treasury shall at any system which may be substituted in the place

time otherwise order and direct, in which case of the Bank of the United States could not the Secretary of the Treasury shall immedi- be suddenly carried into effect on the terminaately lay before Congress, if in session, and, tion of its existence without serious inconif not, immediately alter the commencement venience to the Government and the people.

of the next session, the reasons of such order Its vast amount of notes are then to be

or direction. redeemed and withdrawn from circulation and The power of the Secretary of the Treasury its immense debt collected. These operations over the deposits is unqualified. The provision must be gradual, otherwise much suffering that he shall report his reasons to Congress is and distress will be brought upon the com-

no limitation. Had it not been inserted he munity. would have been responsible to Congress had It ought to be not a work of months only, he made a removal for any other than good but of years, and the President thinks it can reasons, and his responsibility now ceases not, with due attention to the interests of the upon the rendition of sufficient ones to Con- people, be longer postponed. It is safer to gress. The only object of the provision is to begin it too soon than to delay it too make his reasons accessible to Congress and long... . enable that body the more readily to judge As the President presumes that the charter of their soundness and purity, and thereupon _ to the bank is to be considered as a contract to make such further provision by law as the on the part of the Government, it is not now

legislative power may think proper in rela- in the power of Congress to disregard its tion to the deposit of the public money. ... stipulations; and by the terms of that conIt is a matter of surprise that a power tract the public money is to be deposited in which in the infancy of the bank was freely the bank during the continuance of its charter

asserted as one of the ordinary and familiar unless the Secretary of the Treasury shall duties of the Secretary of the Treasury should otherwise direct. Unless, therefore, the Secre-

now be gravely questioned, and attempts tary of the Treasury first acts, Congress have made to excite and alarm the public mind as__ no power over the subject, for they can not if some new and unheard-of power was about add a new clause to the charter or strike one

to be usurped by the executive branch of out of it without the consent of the bank,

the Government. and consequently the public money must reIt is but a little more than two and a half main in that institution to the last hour of its years to the termination of the charter of existence unless the Secretary of the Treasury the present bank. It is considered as the de- shall remove it at an earlier day. The recision of the country that it shall then cease sponsibility is thus thrown upon the executo exist, and no man, the President believes, tive branch of the Government of deciding has reasonable ground for expectation that how long before the expiration of the charter any other Bank of the United States will be the public interest will require the deposits

created by Congress. to be placed elsewhere; ... it being the

To the Treasury Department is intrusted duty of one of the Executive Departments to ‘the safe-keeping and faithful application of decide in the first instance, . . . whether the the public moneys. A plan of collection dif- public deposits shall remain in the Bank of

ferent from the present must therefore be the United States until the end of its exintroduced and put in complete operation istence or be withdrawn some time before, before the dissolution of the present bank. the President has felt himself bound to

276 DOCUMENTS OF AMERICAN HIsToRY | examine the question carefully ...and in motive may lead to the expenditure of hun. his opinion the near approach of the termina- dreds of thousands, and even millions, more? tion of the charter and the public considera- And can we justify ourselves to the people tions heretofore mentioned are of themselves by longer lending to it the money and power amply sufficient to justify the removal of the of the Government to be employed for such deposits, without reference to the conduct of purposes?

the bank or their safety in its keeping. It has been alleged by some as an objection But in the conduct of the bank may be to the removal of the deposits that the bank found other reasons, very imperative in their has the power, and in that event will have the character, and which require prompt action. disposition, to destroy the State banks emDevelopments have been made from time to p-oyed by the Government, and bring distress

time of its faithlessness as a public agent, upon the country. It has been the fortune of its misapplication of public funds, its inter- the President to encounter dangers which were

ference in elections, its efforts by the ma- represented as equally alarming, and he has chinery of committces to deprive the Govern- seen them van‘sh before resolution and

ment directors of a full knowledge of its energy. ... But if the President believed concerns, and, above all, its flagrant miscon- the bank possessed all the power which has duct as recently and unexpectedly disclosed been attributed to it, his determination would in placing all the funds of the bank, includ- only be rendered the more inflexible. If, indeed,

ing the money of the Government, at the _ this corporation now holds in its hands the disposition of the president of the bank as happiness and prosperity of the American means of operating upon public opinion and people, it is high time to take the alarm. If procuring a new charter, without requiring the despotism be already upon us and our him to render a voucher for their disburse- only safety is in the mercy of the despot, rement. A brief recapitulation of the facts cent developments in relation to his designs which justify these charges, and which have and the means he employs show how necescome to the knowledge of the public and sary it is to shake it off. The struggle can the President, will, he thinks, remove every never come with less distress to the people or reasonab:e doubt as to the course which it is under more favorable auspices than at the now the duty of the President to pursue. ... present moment. With these facts before him in an official All doubt as to the willinzness of the State report from the Government directors, the banks to undertake the service of the GovernPresident would feel that he was not only ment to the same extent and on the same responsible for all the abuses and corruptions terms as it is now performed by the Bank the bank has committed or may commit, but of the United States is put to rest by the almost an accomplice in a conspiracy against report of the agent recently employed to that Government which he has sworn honestly collect information, and from that wilingness

to acminister, if he did not take every step their own safety in the operation may be within his constitutional and legal power conidently inferred. Knowing their own relikely to be efficient in putting an end to these sources better than they can be known by enormities. If it be possible within the scope others, it is not to be supposed that they of human affairs to find a reason for remov- would be willing to place themselves in a ing the Government deposits and leaving the situation which they can not occupy without bank to its own resource for the means of danger of annihilation or embarrassment. . . . effecting its criminal designs, we have it here. From all these considerations the Presi-

Was it expected when the moneys of the dent thinks that the State banks ought imUnited States were directed to be placed in mediately to be employed in the collection that bank that they would be put under the and disbursement of the public revenue, and control of one man empowered to spend mil- the funds now in the Bank of the United lions without rendering a voucher or specify- States drawn out with all convenient dis-

ing the object? Can they be considered safe patch... . | —

wi.» the evidence before us that tens of thou- As one of the most serious objections to sand: have been spent for highly improper, the Bank of the United States is the power if not corrupt. purposes, and that the same which it concentrates, care must be taken in

Tue LIBERATOR 277 finding other agents for the service of the tions which impel to immediate action... .

Treasury not to raise up another power In the remarks he has made on this all-

equally formidable... . important question he trusts the Secretary It is the desire of the President that the of the Treasury will see only the frank and

control of the banks and the currency shall, respectful declarations of the opinions which as far as possible, be entirely separated from the President has formed on a measure of the political power of the country as well as great national interest deeply affecting the wrested from an institution which has already character and usefulness of his Administraattempted to subject the Government to its tion, and not a spirit of dictation, which the will. In his opinion the action of the General President would be as careful to avoid as Government on this subject ought not to ready to resist. Happy will he be if the facts extend beyond the grant in the Constitution, now disclosed produce uniformity of opinion

which only authorizes Congress “to coin and unity of action among the members of money and regulate the value thereof;” all the Administration. else belongs to the States and the people, and The President again repeats that he begs must be regulated by public opinion and the — his Cabinet to consider the proposed measure

interests of trade. as his own, in the support of which he shall In conclusion, the President must be per- require no one of them to make a sacrifice mitted to remark that he looks upon the of opinion or princip‘e. Its responsibility has

pending question as of higher consideration been assumed after the most mature deliberathan the mere transfer of a sum of money _ tion and reflection as necessary to preserve the from one bank to another. Its decision may morals of the people, the freedom of the press, affect the character of our Government for and the purity of the elective franchise, with-

ages to come. Should the bank be suffered out which all will unite in saying that the longer to use the public moneys in the ac- blood and treasure expended by our forecomplishment of its purposes, with the proofs fathers in the establishment of our happy of its faithlessness and corruption before system of government will have been vain our eyes, the patriotic among our citizens will and fruitless. Under these convictions he feels

despair of success in struggling against its that a measure so important to the American power, and we shall be responsible for entail- people can not be commenced too soon, and

ing it upon our country forever. Viewing it he therefore names the Ist day of October as a question of transcendent importance, next as a period proper for the change of both in the principles and consequences it the deposits, or sooner, provided the necesinvolves, the President could not, in justice sary arrangements with the State banks can to the responsibility which he owes to the be made.

country, refrain from pressing upon the Secre- ANDREW JACKSON. tary of the Treasury his view of the considera~ _

149. THE LIBERATOR, Vol. I., No. 1. January 1, 1831 (William Llovd Garrison, 1805-1879: the Story of his Life Told by his Children,

} Vol. I, p. 224 ff.)

About 1828 Garrison met Benjamin Lundy, and biography by his children, above, and L. Swift, the following year joined with him in editing the Wéalliam Lloyd Garrison. A severely critical estiGenius for Universal Emancipation. Jailed for mate is in G. H. Barnes, The Antislavery Imlibel, he was bailed out by the philanthropist pulse, 1830-1844. See also bibliography in A. B. Arthur Tappan, and shortly betook himself to Hart, Slavery and Abolition. Boston where, with Isaac Knapp, he issued the

Liberator. The entrance of Garrison into the To the Public.

anti-slavery agitation gave that movement a par-

ticularly violent and fanatical character, and he In the month of August, I issued proposals came eventually to be regarded as the leading for publishing “The Liberator” in Washington abolitionist in the country. On Garrison see the City; but the enterprise, though hailed in

278 DOCUMENTS oF AMERICAN History different sections of the country, was palsied strenuously contend for the immediate enby public indifference. Since that time, the franchisement of our slave population. In removal of the Genius of Universal Emanci- Park-Street Church, on the Fourth of July, pation to the Seat of Government has ren- 1829, in an address on slavery, I unreflectdered less imperious the establishment of a ingly assented to the popular but pernicious

similar periodical in that quarter. doctrine of gradual abolition. I seize this

During my recent tour for the purpose of opportunity to make a full and unequivocal exciting the minds of the people by a series recantation, and thus publicly to ask pardon of discourses on the subject of slavery, every of my God, of my country, and of my place that I visited gave fresh evidence of | brethren the poor slaves, for having uttered the fact, that a greater revolution in public a sentiment so full of timidity, injustice and sentiment was to be effected in the free states absurdity. A. similar recantation, from my —and particularly in New England—than at pen, was published in the Genius of Universal the south. I found contempt more bitter, op- Emancipation at Baltimore, in September, position more active, detraction more relent- 1829. My conscience is now satisfied. less, prejudice more stubborn, and apathy I am aware, that many object to the severmore frozen, than among slave owners them- ity of my language: but is there not cause selves. Of course, there were individual ex- for severity? I will be as harsh as truth, and ceptions to the contrary. This state of things as uncompromising as justice. On this subject, afflicted, but did not dishearten me. I deter- I do not wish to think, or speak, or write, with mined, at every hazard, to lift up the standard moderation. No! No! Tell a man whose house

of emancipation in the eyes of the nation, is on fire, to give a moderate alarm; tell him within sight of Bunker Hill and in the birth to moderately rescue his wife from the hands place of liberty. That standard is now un- of the ravisher; tell the mother to gradually furled; and long may it float, unhurt by the extricate her babe from the fire into which spoliations of time or the missiles of a des- it has fallen;—but urge me not to use moderaperate foe—yea, till every chain be broken, — tion ina cause like the present. I am in earnest and every bondman set free! Let Southern —I will not equivocate—I will not excuse— oppressors tremble—let their secret abettors I will not retreat a single inch—AND I WILL

tremble—Ict their Northern apologists BE HEARD. The apathy of the people is tremblc—let all the enemies of the persecuted enough to make every statue leap from its

blacks tremble. pedestal, and to hasten the resurrection of

I deem the publication of my original the dead. Prospectus unnecessary, as it has obtained a It is pretended, that I am retarding the

wide circulation. The principles therein in- cause of emancipation by the coarseness of culcated will be steadily pursued in this paper, my invective, and the precipitancy of my

excepting that I shall not array myself as measures. The charge is not true. On this

the political partisan of any man. In defend- question my influence,—humble as it is —is ing the great cause of human rights, I wish felt at this moment to a considerable extent, to derive the assistance of all religions and and shall be felt in coming years—not per-

of all parties. niciously, but beneficially—not as a curse, but

Assenting to the “self evident truth” main- as a blessing; and posterity will bear testitained in the American Declaration of In- mony that I was right. I desire to thank God, dependence, “that all men are created equal, that he enables me to disregard “the fear of and endowed by their Creator with certain man which bringeth a snare,” and to speak inalienable rights—among which are life, his truth in its simplicity and power. .. .

liberty and the pursuit of happiness,” I shall William Lloyd Garrison. 150. THE AMERICAN ANTI-SLAVERY SOCIETY: CONSTITUTION AND DIECLARATION OF SENTIMENTS December 4, 1833

The enactment of the West Indian Emancipation ganization of abolitionist sentiment in the United bill by Parliament in 1833 precipitated the or- States in an Anti-Slavery Society. Though there

Tuer AMERICAN ANTI-SLAVERY SOCIETY 279 was considerable opposition to such organiza~ lawfully in our power to bring about the extion at the time, the insistence of Garrison car- tinction of Slavery, we do hereby agree, with ried the day, and a convention was called to 4 prayerful reliance on the Divine aid, to form meet in Philadelphia, December 4, 1833. Only a oyrselves into a society, to be governed by banal of dlagtes cy and thst were dom he fllowing Constitution —

tion of Sentiments. See, William Lloyd Garrison: Art. I1—This Society shall be called the The Story of His Life Told by His Children, AMERICAN ANTI-SLAVERY SOCIETY, Vol.1; A. B. Hart, Slavery and Abolition, ch. xii; Art. II.—The object of this Society is the L. Tappan, Arthur Tappan; S. T. Pickard, Life entire abolition of Slavery in the United and Works of J. G. Whittier; G. H. Barnes, The States. While it admits that each State, in

Antislavery Impulse, 1830-1844. which Slavery exists, has, by the Constitution of the United States, the exclusive right to 1. CONSTITUTION OF THE AMERICAN levislate in regard to its abolition in said State,

ANTI-SLAVERY SOCIETY it shall aim to convince all our fellow-citizens, (Platform of the American Anti-Slavery Society yy arguments addressed to their understandand its Auxiliaries, New York, 1860, p. 3-4) ings and consciences, that Slavcholding is a Whereas the Most High God “hath made of — heinous crime in the sight of God, and that one blood all nations of men to dwell on all the duty, safety, and best interests of all conthe face of the carth,” and hath commanded cerned, require its immediate abandonment,

them to love their neighbors as themselves; without expatriation. The Society will also and whereas, our National Existence is based endeavor, in a constitutional way to influence upon this principle, as recognized in the Dec- Congress to put an end to the domestic Slave laration of Independence, “that all mankind — trade, and to abolish Slavery in all those por-

are created equal, and that they are endowed {jons of our common country which come by their Creator with certain inalienable ynder its control, especially m the District rights, among which are life, liberty, and the f Columbia,—and likewise to prevent the pursuit of happiness”; and whereas, after the extension of it to any State that may be lapse of nearly sixty years, since the faith hereafter admitted to the Union. and honor of the American people were Art. III.—This Society shall aim to elevate pledged to this avowal, before Almighty God the character and condition of the people of and the World, nearly one-sixth part of the color, by encouraging their intellectual, moral, nation are held in bondage by their fellow- and religious improvement, and by removing cilizens; and whereas, Slavery is contrary t0 public prejudice, that thus they may, accord-

the principles of natural justice, of our re- ing to their intellectual and moral worth, publican form of government, and of the share an equality with the whites, of civil and Christian religion, and is destructive of the religious privileges; but this Society will prosperity of the country, while it is endanger- never, in any way, countenance the oppressed

ing the peace, union, and liberties of the jn vindicating their rights by resorting to States; and whereas, we believe it the duty physical force. and interest of the masters immediately to Art. IV.—Any person who consents to the emancipate thcir slaves, and that no scheme principles of this Constitution, who contribof expatriation, either voluntary or by com- utes to the funds of this Society, and is not pulsion, can remove this great and increasing 4 Slavcholder, may be a member of this So-

evil; and whereas, we believe that it is prac- ciety, and shall be entitled to vote at the ticable, by appeals to the consciences, hearts, meetings... . and interests of the people, to awaken a public sentiment throughout the nation that 2. DECLARATION OF SENTIMENTS OF THE will be opposed to the continuance of Slavery AMERICAN ANTI-SLAVERY CONVENTION

in any part of the Republic, and by effecting (William Lloyd Garrison: The Story of His Life

the spcedy abolition of Slavery, prevent a Told by His Children, Vol. I, p. 408 ff.) general convulsion; and whereas, we believe The convention assembled in the city of we owe it to the oppressed, to our fellow- Philadelphia, to organize a National Anticitizens who hold slaves, to our whole country, Slavery Society, promptly seize the opportu-

to posterity, and to God, to do all that is nity to promulgate the following Declaration

280 DOCUMENTS OF AMERICAN History of Sentiments, as cherished by them in rela- is as great to enslave an American as an tion to the enslavement of one-sixth portion African.

of the American people... . Therefore we believe and affirm—that

We have met together for the achievement there is no difference, in principle, between of an enterprise, without which that of our the African slave trade and American slavery: fathers is incomp!cte; and which, for its mag- That every American citizen, who detains nitude, solemnity, and probable results upon a human being in involuntary bondage as his the destiny of the world. as far transcends property, is, according to Scripture, (Ex. xxi,

theirs as moral truth does physical] force. 16,) a man-stealer. |

In purity of motive, in earnestness of zeal, That the slaves ought instantly to be set in decis:on of purpose, in intrepidity of action, free, and brought under the protection of in steadfastness of faith, in sincerity of spirit, law:

we would not be inferior to them. ... That if they had lived from the time of Their grievances, great as they were, were Pharaoh down to the present period. and had trifling in comparison with the wrongs and _ been entailed through successive generations, sufferings of those for whom we plead. Our _ their right to be free could never have been fathers were never slaves—never bought and alienated, but their claims would have con-

sold like cattle—never shut out from the _ stantly risen in solemnity: light of knowledge and religion—never sub- That all those laws which are now in force,

jected to the lash of brutal taskmasters. admitting the right of slavery, are -thereBut those, for whose emancipation we are fore, before God. utterly null and void; being striving—constituting at the present time at an audacious usurpation of the Divine preleast one-sixth part of our countrymen—are rogative, a daring infringement on the law

recognized by law, and treated by their of nature, a base overthrow of the very fe:low-beings, as brute beasts; are nlundered foundations of the social compact, a comdaily of the fruits of their toil without redress; p'ete extinction of all the relations, endcarreally enjoy no constitutional nor legal pro- ments and obligations of mankind, and a tection from licentious and murderous out- presumptuous transgression of all the holy

rages upon their persons; and are ruthlessly commandments; and that therefore they torn asunder—the tender babe from the arms ought instantly to be abrogated. of its frantic mother—the heartbroken wife We further believe and affirm—that all perfrom her weep.ng husband—at the caprice sons of color, who possess the qualifications or pleasure of irresponsible tyrants. For the which are demanded of others, ought to be

crime of having a dark complexion, they admitted forwith to the enjoyment of the suffer the pangs of hunger. the infliction of same privileges, and the exercise of the same stripes, the ignominy of brutal servitude. They prerogatives, as others: and that the paths are kept in heathenish darkness by laws ex- of preferment, of wealth and of intelligence,

pressly enacted to make their instruction a should be opened as widely to them as to

criminal offence. persons of a white complexion.

These are the prominent circumstances in We maintain that no compensation should the condition of more than two million people, be given to the planters emancipating their the proof of which may be found in thousands _ slaves:

of indisputable facts, and in the laws of the Because it would be a surrender of the

slave-holding States. great fundamental principle, that man cannot

Hence we maintain—that, in view of the hold property in man: civil and religious privileges of this nation, Because slavery is a crime, and therefore the guilt of its oppression is unequalled by is not an article to be sold: any other on the face of the earth; and, there- Because the holders of slaves are not the fore, that it is bound to repent instantly, to just proprietors of what they claim; freeing undo the heavy burdens, and to let the op-_ the slave is not depriving them of property,

pressed go free... . but restoring it to its rightful owner ; it is

It is piracy to buy or steal an native African, not wronging the master, but righting the and subject him to servitude. Surely, the sin slave—restoring him to himself:

S. C. RESOLUTIONS ON PROPAGANDA 281 Because immediate and general emancipa- our ‘territory which the Constitution has tion would only destroy nominal, not real placed under its exclusive jurisdiction.

property; it would not amputate a limb or We also maintain that there are, at the break a bone of the slaves, but by infusing present time, the highest obligations resting motives into their breasts, would make them _upon the people of the free States to remove doubly valuable to the masters as free labor- slavery by moral and political action, as

ers; and prescribed in the Constitution of the United

Because, if compensation is to be given at States. They are now living under a pledge all, it should be given to the outraged and of their tremendous physical force, to fasten guiltless slaves, and not to those who have _ the galling fetters of tyranny upon the limbs

plundered and abused them. of millions in the Southern States; they are We regard as delusive, crucl and dangerous, _ liable to be called at any moment to suppress

any scheme of expatriation which pretends to a general insurrection of the slaves; they aid, either directly or indirectly, in the eman- authorize the s:ave owner to vote for threecipation of the slaves, or to be a substitute fifths of his slaves as property, and thus enfor the immediate and total abolition of able him to perpetuate his oppression; they

slavery. support a standing army at the South for We fully and unanimously recognise the its protection; and they seize the slave, who sovereignty of cach State, to legislate ex- has escaped into their territories, and send

clusively on the subject of the slavery which him back to be tortured by an enraged master is tolerated within its limits: we concede that or a brutal driver. This relation to slavery is Congress, under the present national com- criminal, and full of danger: IT MUST BE pact, has no right to interfere with any of the BROKEN UP. slave States, in relation to this momentous These are our views and principles—these

subject: our designs and measures. With entire conBut we maintain that Congress has a right, fidence in the overruling justice of God, we and is solemnly bound, to suppress the do- plant ourselves upon the Declaration of our mestic slave trade between the several States, Independence and the truths of Divine Reve-

and to aholish slavery in those portions of lation, as upon the Everlasting Rock. ...

151. SOUTH CAROLINA RESOLUTIONS ON ABOLITIONIST PROPAGANDA December 16, 1835

(Acts and Resolutions of South Carolina, 1835, p. 26 ff.) The Southern States met abolitionist propaganda 2. Resolved, That no state having a Just re-

with regulatory or prohibitory legislation; most gard for her own peace and security can of the states south of Virginia provided seve.€ acquiesce in a state of things by which such penalties for printing or speaking anything that = Concniracies are engendered within the limits

might incite insurrection among the slaves, or fa friend] t ‘ted to her by the bond even for arguing against the institution of of a triendly state, unite to er yt c on S slavery. Several states demanded that the Fed- of a common league of political association, eral government close the mails to abolitionist Without either surrendering or compromising literature: the resolutions of South Carolina are her most essential rights. given as an example of these demands. See, A. B. 3. Resolved, That the Legislature of South

Hart, Slavery and Abolition, ch. xvi. Carolina, having every confidence in the 1. Resolved, That the formation of the aboli- Justice and friendship of the non-slaveholding

tion societies, and the acts and doings of states, announces to her co-states her concertain fanatics. calling themselves abolition- fident expectation, and she earnestly requests

ists, in the non-slaveholding states of this that the governments of these states will confederacy, are in direct violation of the promptly and effectually suppress all those obligations of the compact of the union, dis- associations within their respective limits,

social, and incendiary in the extreme. purporting to be abolition societies, and that

282 DOCUMENTS OF AMERICAN HIsTorRyY they will make it highly penal to print, publish, 6. Resolved, That we should consider the and distribute newspapers, pamphlets, tracts abolition of slavery in the District of Columand pictorial representations calculated and bia, as a violation of the rights of the citizens

having an obvious tendency to excite the of that District, derived from the implied slaves of the southern states to insurrection conditions on which that territory was ceded

and revolt. to the general government, and as an usurpa4. Kesolved, That, regarding the domestic tion to be at once resisted as nothing more slavery of the southern states as a subject than the commencement of a scheme of much

exclusively within the control of each of the more extensive and flagrant injustice. , said states, we shall consider every inter- 7. Resolved, That the legislature of South ference, by any other state of the general Carolina, regards with decided approbation, government, as a direct and unlawful inter- the measures of security adopted by the Post

ference, to be resisted at once, and under Office Department of the United States, in

every possible circumstance. relation to the transmission of incendiary 5. Resolved, In order that a salutary nega- tracts. But if this highly essential and protive may be put on the mischievous and _ tective policy, be counteracted by congress, unfounded assumption of some of the aboli- and the United States mail becomes a vehicle tionists—the non-slaveholding states are re- for the transmission of the mischievous docuquested to disclaim by legislative declaration, ments, with which it was recently freighted, all right, either on the part of themselves or we, in this contingency, expect that the Chief the government of the United States, to in- Magistrate of our state, will forthwith call terfere in any manncr with domestic slavery, _ the legislature together, that timely measures

either in the states, or in the territories where may be taken to prevent its traversing our

it exists. territory. (Resolutions of transmission.) 152. TEXAS DECLARATION OF INDEPENDENCE March 1, 1836

_ (Poore, ed. Constitutions, Charters, etc. Part II, p. 1752-3) The Texan revolution against Mexico had broken SOLEMNLY DECLARE out in the fall of 1835: early in 1836 a Mexican st. That they have taken up arms in defence army of some 6000 under Santa Anna crossed of their Rights and Liberties, which were the border and the war for independence began. threatened by the encroachments of military The first weck of March witnessed the attack on despots, and in defence of the Republican

the Alamo.toWhile and his 188 men were Princjol f the Federal Constituti preparing defendTravis the Alamo, a convention Mncipies 0 come ONStITUtLOn oOf

met at Washington, Texas and drew up a Mexico of eighteen hundred and twenty-four. declaration of independence. On March 16 a 2d. That Texas is no longer, morally or civilly, constitution modelled closely upon that of the bound by the compact of Union; yet, stirnuUnited States was submitted to the convention. lated by the generosity and sympathy common

On April 21, 1836, Santa Anna was defeated at to a free people they offer their support San Jacinto, and Texas had won its independence. and assistance to such of the Mexicans of See, G. P. Garrison, Texas; C. Goodwin, The the Mexican Confederacy as will take .up Trans-Mississippi West, ch. v.; N. W. Stephen- arms against their military despotism.

son, J exas ane te en rary Me james, 3d. That they do not acknowledge, that the The Raven, a Stography of oom ae present authorities of the nominal Mexican WHEREAS, General Antonio Lopez de Republic have the right to govern within the Santa Anna and other Military Chieftains limits of Texas. have, by force of arms, overthrown the Fed- 4th. That they will not cease to carry on eral Institutions of Mexico, and dissolved the war against the said authorities, whilst their Social Compact which existed between Texas troops are within the limits of Texas. and the other Members of the Mexican Con- Sth. That they hold it to be their right, durfederacy—— Now, the good People of Texas, ing the disorganization of the Federal System availing themselves of their natural rights, and the reign of despotism, to withdraw from

THE SPECIE CIRCULAR 283 the Union, to establish an independent Govern- for the payment of any debts contracted by ment, or to adopt such measures as they may _ her Agents.

deem best calculated to protect their rights 8th. That she will reward by donations in and liberties: but that they will continue Land, all who volunteer their services in her faithful to the Mexican Government so long present struggle, and receive them as Citizens. as that nation is governed by the Constitution These DECLARATIONS we solemnly avow

and Laws that were formed for the govern- to the world, and call GOD to witness their

ment of the Political Association. truth and sincerity; and invoke defeat and

6th. That Texas is responsible for the ex- disgrace upon our heads should we prove penses of their Armies now in the field. guilty of duplicity.

7th. That the public faith of Texas is pledged RICHARD ELLIS, President. 153. THE SPECIE CIRCULAR July 11, 1836 (American State Papers, Public Lands, Vol. VIII, p. 910)

The distribution of government funds in “pet” national domain in this manner, the President banks, the distribution of the surplus, and ap- of the United States has given directions, and parent prosperity led to violent speculation in you are hereby instructed, after the 15th day public lands in the west during the second Jack- of August next, to receive in payment of the son administration. Land sales rose from $2,623,- ublic lands nothing except what is directed 000, in 1832 to $14,787,000 in 1835, and . anes B EXCEP $24,877,000 in 1836. Payment, however, was fre- 2 the existing laws, viz: gold and silver, and quently in notes of local banks based on other ‘1 the proper cases, Virginia land scrip; pronotes of speculators. Under these circumstances vided that till the 15th of December next, the Benton drafted the specie circular which was same indulgences heretofore extended as to promulgated by the Secretary of the Treasury. the kind of money received, may be conJuly 11, 1836. The result of the specie circular tinued for any quantity of land not exceedwas to check sharply the sales of public lands ing 320 acres to each purchaser who is an

and to reveal the unsoundness of many of the actual settler or bona fide resident in the

smaller western banks. For Jackson’s explanation State where the sales are made

and defence of the specie circular see Doc. No. ° a 154. On the specie circular, see W. MacDonald, In order to ensure the faithful execution Jacksonian Democracy, ch. xvi; D. R. Dewey, Ff these instructions, all receivers are strictly Financial History of the United States, ch. x; prohibited from accepting for land sold, any R. G. Wellington, Political and Sectional In- draft, certificate, or other evidence of money, fluence of the Public Lands, 1828-1842; E. G. or deposite, though for specie, unless signed Bourne, History of the Surplus Revenue of by the Treasurer of the United States, in con-

1837. formity to the act of April 24,1820. ...

Circular to Receivers of Public Money, and to The principal objects of the President in

the Deposite Banks adopting this measure being to repress alleged frauds, and to withhold ged frauds, an old any countenance

TREASURY DeEparTMENT, July 11, 1836 or facilities in the power of the Government In consequence of complaints which have from the monopoly of the public lands in the been made of frauds, speculations,and monop- hands of speculators and capitalists, to the

olies, in the purchase of the public lands, injury of the actual settlers in the new States, and the aid which 1s said to be given to effect and of emigrants in search of new homes, as these objects by excessive bank credits, and well as to discourage the ruinous extension

dangerous if not partial facilities through of bank issues, and bank credits, by which bank drafts and bank deposites, and the gen- those results are generally supposed to be eral evil influence likely to result to the promoted, your utmost vigilance is required, public interests, and especially the safety of and relied on, to carry this order into comthe great amount of money in the Treasury, plete execution.

and the sound condition of the currency of the Levi WoopBury. country, from the further exchange of the

284 DOCUMENTS OF AMERICAN History 154. JACKSON’S MESSAGE ON THE SPECIE CIRCULAR Extract from Eighth Annual Message to Congress December 5, 1836 (Richardson, ed. Messages and Papers, Vol. Ill, p. 249) ... The effects of an extension of bank in favor of actual settlers. This measure has credits and overissues of bank paper have produced many salutary consequences. It been strikingly illustrated in the sales of the checked the career of the Western banks public lands. From the returns made by the and gave them additional strength in anticivarious registers and receivers in the early pation of the pressure which has since perpart of last summer it was perceived that vaded our Eastern as well as the European

the receipts arising from the sales of the commercial cities. By preventing the expublic lands were increasing to an unprece- tension of the credit system it measurably dented amount. In effect, however, these cut off the means of specu.ation and retarded receipts amounted to nothing more than _ its progress in monopolizing the most valuacredits in bank. The banks lent out their notes ble of the public lands. It has tended to save to speculators. They were paid to the receivers _ the new States from a nonres:dent proprictor-

and immediately returned to the banks, to be ship, one of the greatest obstacles to the lent out again and again, be:ng mere instru- advancement of a new country and the ments to transfer to speculators the most prosperity of an old one. It has tended to valuable public land and pay the Government keep open the public lands for entry by by a credit on the books of the banks. Those emigrants at Government prices instead of credits on the books of some of the Western _ their being compelled to purchase of specula-

banks, usually called deposits, were already tors at double or triple prices. And it is greatly beyond their immediate means of pay- conveying into the interior large sums in ment, and were rapidly increasing. Indeed, — silver and gold, there to enter permanently each speculation furnished means for another; into the currency of the country and place for no sooner had one individual or company it on a firmer foundation. It is confidently paid in the notes than they were immediately believed that the country will find in the

lent to another for a like purpose, and the motives which induced that order and the banks were extending their bus:ness and their happy consequences which will have ensued

issues so largely as to alarm cons:derate men much to commend and nothing to conand render it doubtful whether these bank demn. credits if permitted to accumulate would ulti- It remains for Congress if they approve mately be of the least value to the Govern- the policy which dictated this order to follow ment. The spirit of expansion and specula- it up in its various bearings. Much good, in tion was not confined to the deposit banks, my judgment, would be produced by probut pervaded the who.e multitude of banks hibiting sales of the public lands except to throughout the Union and was giving rise to actual settlers at a reasonable reduction of

new institutions to aggravate the evil. price, and to limit the quantity which shall The safety of the public funds and the _ be sold to them. Although it is believed the interest of the people generally required that General Government never ought to receive these operations should be checked; and it anything but the constitutional currency in

became the duty of every branch of the exchange for the public lands, that point General and State Governments to adopt all would be of less importance if the lands were legitimate and proper means to produce that sold for immediate settlement and culliva

salutary effect. Under this view of my duty tion. Indeed, there is scarcely a m.schief I directed the issu:ng of the order which will arising out of our present land system, in be Jaid before you by the Secretary of the cluding the accunulating surplus of revenues, Treasury, requiring payment for the public which would not be remed:ed at once by a lands sold to be made in specie, with an ex- restriction on land sales to actual settlers; ception until the 15th of the present month and it promises other advantages to the

CraARLES RIVER BRIDGE V. WARREN BRIDGE 285 country in general and to the new States in most profound consideration of Conparticular which can not fail to receive the gress... . 155. CHARLES RIVER BRIDGE v. WARREN BRIDGE 11 Peters, 420 1837

Error to the supreme court of Massachusetts. statute more unfavorably to the public, and By act of 1785 the legislature of Massachusetts ty the rights of the community, than would granted to the Charles River Bridge Company be done in a like case in an English court the right to buld and maintain a toll bridge 65 justice. over the Charles River. The bridge was opened But we are not now left to determ‘ne for in 1786, and in 1792 the charter was extended the { ; h les by which publi , to a period of seventy years. The charter was é lirst time the ru.es Dy which public gran S not, however, exclusive. In 1828 the legislature 4T€ tO be construed in this country. The sub-

incorporated the Warren Bridge Company for Ject has already been cons-dered in this the purpose of erecting a competing br:dge only court, and the rules of construction above a few rods from the Charles River Bridge. The stated fully established. In the case of the Warren Bridge was to be surrendered to the Un.ted States v. Arredondo, 8 Pet. 738, the State as soon as the cost of construction should leading cases upon this subject are collected be recovered. The Charles River Bridge Com- together by the learned judge who delivered

pany sued for an injunction on the ground the op‘nion of the court, and the principle

that the construction of a competing bridge con- . . ;

stituted an impairment of contract. The ques- recognized that, m grants by the public noth-

tion before the court was whether the original 48 Passes by implication. . . . .

grant should be so construed as to constitute an But the case most analogous to this, and in exclusive grant. The decision, Chief Justice Ta- which the question came more directly before ney’s first constitutional opinion, was of utmost the court, is the case of Providence Bank v. importance in establ.shing the principle that leg- Billings, 4 Pet. 514, which was decided in islative grants are to be construed narrowly in 1830. In that case it appeared that the leg’s-

favor of the State, and that any amb.guity ina Jature of Rhode Island had chartered the

grant must operate against the corporation and = bank, in the usual form of such acts of in-

in favor of the public. This decision modified the corporation. The charte tained Uipusignificance of the decision of the court in the PO n- c Charter contamed no stipu Dartmouth College Case, and marked what some lation on the part of the State that it would

students have regarded as a retreat from the Ot impose a tax on the bank, nor any reseradvanced position taken by the Court under vation of the right to do so. It was silent on Marshall. See, Warren, Supreme Court, (1928 this po-nt. Afterwards a law was passed imed.) Vol. Il, p. 21 ff.; Boudin, Government by posing a tax on all banks in the State, and Judiciary, Vol. I, p. 385 ff.; S. Tyler, Memoir of the right to impose this tax was resisted by Roger B. Taney; B. C, Steiner, Life of R. B. the Providence Bank upon the ground that if Taney; G. W. Biddle, “Constitutional History the State could impose a tax, it might tax so of the United States as Influenced by Ch-ef- heavily as to render the franchise of Justice Taney” in Constitutional History of the y He ATAMCMISE OF NG Vnited States as seen in the Development of value, and destroy the institution; that the

American Law. . charter was a contract, and that a power which may in effect destroy the charter is

Taney, C. J... . Borrowing, as we have inconsistent with it, and is impliedly redone, our system of jurisprudence from the nounced in granting it. But the court said English law... it would present a singu‘ar that the taxing power is of vital importance spectacle, if, while the courts in England are and essential to the existence of government, restraining, within the strictest limits, the and that the re‘inquishment of such a power sp:rit of monopoly, and exclusive privileges is never to be assumcd. ... The case now in nature of monopolies, and confining cor- before the court is, in principle, precisely the porations to the privileges plainly given to same. It is a charter from a state; the act

them in their charter, the courts of this of incorporation is silent in relation to the country should be found enlarging these contested power. The argument in favor of

privileges by implication; and construing a the proprietors of the Charles River bridge,

286 DOCUMENTS OF AMERICAN HtstTory is the same, almost in words, with that used distinctly placed on the ground, that the by the Providence Bank: that is, that the interests of the community were concerned power claimed by the state, if it exists, may in preserving, undiminished, the power then

be so used as to destroy the value of the in question; and whenever any power of the franchise they have granted to the corpora- state is said to be surrendered or diminished, tion. The argument must receive the same whether it be the taxing power, or any other answer; and the fact that the power has been affecting the public interest, the same prinalready exercised, so as to destroy the value ciple applies, and the rule of construction of the franchise, cannot in any degree affect must be the same. No one will question, that the principle. The existence of the power the interests of the great body of the people does not, and cannot, depend upon the cir- of the state, would, in this instance, be afcumstance of its having been exercised or fected by the surrender of this great line of

not. travel to a single corporation, with the right

It may, perhaps, be said, that in the case of to exact toll, and exclude competition, for the Providence Bank, this court were speak- seventy years. While the rights of private ing of the taxing power; which is of vital property are sacredly guarded, we must not importance to the very existence of every forget, that the community also have rights,

government. But the object and end of all and that the happiness and well-being of government is to promote the happiness and every citizen depends on their faithful presprosperity of the communily by which it is ervation. established; and it can never be assumed, that Adopting the rule of construction above the government intended to diminish its stated as the settled one, we proceed to apply power of accomplishing the end for which it to the charter of 1785 to the proprietors of it was created. And in a country like ours, the Charles River bridge. This act of incorfree, active and enterprising, continually ad- poration is in the usual form, and the privivancing in numbers and wealth, new chan- leges such as are commonly given to cornels of communication are daily found neces- porations of that kind. It confers on them

sary, both for travel and trade, and are the ordinary faculties of a corporation, for essential to the comfort, convenience and the purpose of building the bridge; and esprosperity of the people. A state ought never tablishes certain rates of toll, which the ' to be presumed to surrender this power, be- company are authorized to take. This is the cause, like the taxing power, the whole com- whole grant. There is no exclusive privilege

munity have an interest in preserving it given to them over the waters of Charles undiminished. And when a corporation al- river, above or below their bridge; no right

leges, that a state has surrendered, for to erect another bridge themselves, nor to

seventy years, its power of improvement and prevent other persons from erecting one, no public accommodation, in a great and impor- engagement from the State, that another tant line of travel, along which a vast num- — shall not be erected; and no undertaking not ber of its citizens must daily pass, the com- to sanction competition, nor to make immunity have a right to insist, in the language provements that may diminish the amount of of this court, above quoted, “that its aban- its income. Upon all these subjects the chardonment ought not to be presumed, ina case, ter is silent; and nothing is said in it about a

in which the deliberate purpose of the state line of travel, so much insisted on in the to abandon it does not appear.” The con- argument, in which they are to have exclutinued existence of a government would be _ sive privileges. No words are used from which

of no great value, if, by implications and an intention to grant any of these rights can presumptions, it was disarmed of the powers be inferred. If the plaintiff is entitled to necessary to accomplish the ends of its crea- them, it must be implied, simply from the tion, and the functions it was designed to nature of the grant, and cannot be inferred

perform, transferred to the hands of privi- from the words by which the grant is

leged corporations. The rule of construction made... :

announced by the court, was not confined to The inquiry then is, does the charter conthe taxing power, nor is it so limited, in the — tain such a contract on the part of the State?

opinion delivered. On the contrary, it was Is there any such stipulation to be found in

THE CaROLINE AFFAIR 287 that instrument? It must be admitted on all have the corporations supposed that their hands, that there is none—no words that even _ privileges were invaded, or any contract vio-

relate to another bridge, or to the diminution lated on the part of the State... . of their tolls, or to the line of travel. If a And what would be the fruits of this doccontract on that subject can be gathered trine of implied contracts on the part of the from the charter, it must be by implication, States, and of property in a line of travel and cannot be found in the words used. Can’ by a corporation, if it should now be sancsuch an agreement be implied? The rule of — tioned by this court? To what results would

construction before stated is an answer to it lead us? If it is to be found in the charter the question. In charters of this description, to this bridge, the same process of reasoning no rights are taken from the public, or given must discover it, in the various acts which to the corporation, beyond those which the have been passed, within the last forty years,

words of the charter, by their natural and for turnpike companies. ... If this court proper construction, purport to convey. There should establish the principles now contended are no words which import such a contract as for, what is to become of the numerous rail-

the plaintiffs in error contend for, and none roads established on the same line of travel can be implied; and the same answer must with turnpike companies, and which have be given to them that was given by this court rendered the franchises of the turnpike corto the Providence Bank. The whole commu-___ porations of no value? Let it once be under-

nity are interested in this inquiry, and they stood that such charters carry with them have a right to require that the power of pro- these implied contracts, and give this unmoting their comfort and convenience, and known and undefined property in a line of of advancing the public prosperity, by pro- travelling, and you will soon find the old viding safe, convenient, and cheap ways for turnpike corporations awakening from their the transportation of produce and the pur- _ sleep and calling upon this court to put down

poses of travel, shall not be construed to the improvements which have taken their have been surrendered or diminished by the place. The millions of property which have State, unless it shall appear by plain words been invested in railroads and canals upon

that 1t was intended to be done. ... lines of travel which had been before occupied Indeed, the practice and usage of almost by turnpike corporations will be put in jeopevery State in the Union old enough to have ardy. We shall be thrown back to the imcommenced the work of internal improve- provements of the last century, and obliged ment, is opposed to the doctrine contended to stand still until the claims of the old for on the part of the plaintiffs in error. turnpike corporations shall be satished, and Turnpike roads have been made‘in succession, they shall consent to permit these States to

on the same line of travel; the later ones in- avail themselves of the lights of modern terfering materially with the profits of the science, and to partake of the benefit of those first. These corporations have, in some in- improvements which are now adding to the stances, been utterly ruined by the introduc- wealth and prosperity, and the convenience tion of newer and better modes of transporta- and comfort, of every other part of the civition and travelling. In some cases, railroads lized world... . have rendered the turnpike roads on the same Judgment affirmed.

line of travel so entirely useless, that the Story, J., delivered a dissent'ng opinion franchise of the turnpike corporation is not in which THompson, J., concurred. worth preserving. Yet in none of these cases

156. THE CAROLINE AFFAIR

Message of President Van Buren | January 8, 1838

(Richardson, ed. Messages and Papers, Vol. III, p. 401 ff.) Upon the failure of the Canadian Rebellion of in the Niagara River, and from there made at1837, a number of refugees seized Navy Island tacks upon the Canadian border. On December

288 DOCUMENTS OF AMERICAN [IISTORY 29, Canadian militia seized the steamer, Caro- Wells, of Buffalo, and bound for Schlosser, line, then in the service of the insurgents, but upon the east side of the Niagara River and on the New York shore. This invasion of Amerl- within the United States; that this deponent can territory led to a diplomatic controversy ¢ommanded the said Caroline, and that she

with . ee eeain that Ne spseauemny aa was cleared from Buffalo with a view to run Bravated tne arrest new Nore ey © between said Buffalo Schlosser, carrying Britishpysub,ect, Alexander Mc Leod, onand the charge a od of murder in connection with the attack on the PaSSENgers, freight, etc. ; that this deponent

Caroline. The documents appended to Van caused the said Caroline to be landed at Buren’s message give the history of the affair, Back Rock on her way down, and that while

See, O. E. Tiffany “Relations of the United at Black Rock this deponent caused the States to the Rebellion of 1837,” Publications of | American flag to be run up, and that soon the Buffalo Historical Society, Vol. VIII; J. B. after leaving Black Rock Harbor a volley of McMaster, History of the People of the United musketry was discharged at the Caroline from States, Vol. VI, p. 434 ff.; and Brztish and Foreign the Canada shore, but without injury; that State Papers, Vols. XXVI, XXIX, passim. the said Carol.ne continued her course down WASHINGTON, January 8, 1838. the Niagara River unmolested and landed To the Senate and House of Representatives outside of certa.n scows or boats attached to

of the United States: Navy Isiand, where a number of passengers

In the highly excited state of feeling on the csemparked and. oe “eponcat he ae ances in Canada. it was to be apprehended that at about 6 o’clock in the evening this

northern frontier, occasioned by the disturb- Certain articles o Jreignt were landec, . .

that causes of complaint might arise on the eeponen case’ the sa caroline . be line dividing the United States from Her ‘@naed at line ax - . crew i. ‘i cers Britannic Majesty’s dominions. Every pre- of the Caro “ numbered ten, nth that i

authorized by the existing United laws, and as the uals, , States, came on board of the Caroline ion "was teefore taken om Oat eS sour nee te af th

the Canadian side ves hoped that no se. and requested this deponent and other ofrious violation of the rights of the United neers OF tne oat to Peymit them 0 ea

ou that an outrage of a g

States would be permitted to occur. I regret, le to vet lodeines Me the * were near by. most ag sevated. character has been com- these requests were acceded to, and the permitted ~ accompanied by a hostile though Sons thus com:ng on board retired to rest, as

_ did also the crew and officers of the Carcline,

Soe vee nel f our territory, prot except such as were stationed to watch dur-

ing the strongest feelings of resentment onthe ‘§ ‘ “cht. that about midnight this de. part of our citizens in the neighborhood and Ing i" ~ - « uned by one 0 P the watch on the whole border line, and that the excite- eat several coats filed ath ven were mak. ment previously existing pas been alarming 'y ing toward the Caroline from the river, and

increased. To guard against the possible - this deponent immediately gave the alarm currence of any similar act I have thought it ond hefore he was able to reach the dock the

indispensable to call out a portion of the Caroline was boarded by some seventy or militia, to be posted on hat prone The cighty men, all of whom were armed; that

ted to Congress , » th

rete herew MY the outraze ina they immediately commenced a warfare with sitted th "measures taken in consequence muskets, swords, and cutlasses upon the demitt ec, me ity £ fenseless crew and passengers of the Caroline of its occurrence, and the necessity for re- sader a fierce cry of “G-—d d—n them, give

sorting to them... . M. VAN BUREN. them no quarters; kill every man. Fire!

) fire!”: that the Caroline was abandoned with-

SpaTE oF New York, Niagara County, ss: out resistance, and the only effort made by. Gilman Appleby, of the city of Buffaco, either the crew or passengers seemed to be being sworn, says ‘that he left the port of to escape slaughter; that this deponent nare

Buffalo on the morning of the 29th instant in rowly escaped, navn naecenved are

the steamboat Caroline, owned by William wounds, none of which, however,

THE CAROLINE AFFAIR 289 serious character; that immediately after the the insurrection in Lower Canada, namely, Caroline fell into the hands of the armed the national antipathy of the French inhabitforce who boarded her she was set on fire, cut: ants, did not in any degree apply in the loose from the dock, was towed into the cur- upper Province, whose population, like the rent of the river, there abandoned, and soon’ British and American inhabitants of Lower after descended the Niagara Falls; that this Canada, were wholly opposed to the revolt | deponent has made vigilant search after the and anxious to render every service in their individuals, thirty-three in number, who are power in support of the Queen’s author-

known to have been on the Caroline at the ity.... (ime she was boarded, and twenty-one only On the night of the 4th December the are to be found... . the twelve individuals inhabitants of the city of Toronto were who are miss.ng, this deponent has no doubt, alarmed by the intelligence that about 500 were either murdered upon the steamboat or persons armed with rifles were approaching found a watery grave in the cataract of the the city; that they had murdered a gentle-

‘alls; and this deponent further says that man of great respectability in the highway, immediately after the Caroline was got into and had made several persons prisoners. . . . the current of the stream and abandoned, as On the 7th of December an overwhelming before stated, beacon lights were discovered — force of militia went against them and disupon the Canada shore near Chippewa, and persed them without losing a man, taking after sufficient time had elapsed to enable many prisoners. who were instantly by my the boats to reach that shore th:s deponent order released and suffered to depart to their distinctly heard loud and vociferous cheer- homes. The rest, with their leaders, fled; ing at that point; that this deponent has no some have since surrendered themselves to doubt that the individuals who boarded the justice: many have been taken, and some Caroline were a part of the British forces have escaped from the Province. . . .

now stationed at Chippewa. After the dispersion of the armed insur-

[Subscribed and: sworn to before a com- gents near Toronto Mr. McKenzie, their

missioner, etc. | ° leader. escaped in disguise to the Niagara TorRONTO, UPPER CANapDA, January 8, 1838. . db and crossed over to Bultalo. Reports His Excellency Henry §. Fox ad beenthespread there and e‘sewhere along American frontier that Toronto had been

Her Majesty’s Minister, Washington. ... burnt and that the rebels were completely The governor of the State of New York © successful, but the falsehood of these absurd

complains of the cutting out and burning rumors was well known before McKenzie

of the steamboat Caroline by order of arrived on the American side... .

Colonel McNab, commanding Her Majesty's Nevertheless. a number of American citiforces at Chippewa, in the Province of Upper zens in Buffalo and other towns on the Canada, and of the destruction of the lives frontier of the State of New York enlisted

of some American citizens who were on as sold‘ers, with the avowed object of inboard of the boat at the time she was at- vading Canada and establishing a provisional

tacked. government. Public meetings were held to The act complained of was done under the forward this design of invading a country

fol’owing circumstances: with which the United States were at peace.

In Upper Canada, which contains a popula- Volunteers were cal'ed for. and arms, amtion of about 450,000 souls, the most perfect munition, and provisions were supplied by tranquillity prevailed up to the 4th day of contributions openly made. All this was in

December last, although in the adjoining direct and flagrant violation of the express Province of Lower Canada many of the laws of the United States, as well as of the French Canadian inhabitants had been in Idw of nations. open rebellion, aga:nst the Government for The civil authority of Buffalo offered some

about a month preced ng. slight shew of resistance to the movement.

At no time since the treaty of peace with being urged to interpose by many of the the United States in 1815 had Upper Canada most respectable citizens. But no real imbeen more undisturbed. The real causes of pediment was Offered, and on the 13th of

290 DOCUMENTS OF AMERICAN History ‘December some hundreds of the citizens of | cember positive information was given to the State of New York, as an armed body Colonel McNab by persons from Buffalo that under the command of a Mr. Van Rensselaer, a small steamboat called the Caroline, of an American citizen, openly invaded and took about SO tons burthen, had been hired by the possession of Navy Island, a part of Upper pirates, who called themselves “patriots,” and

Canada, situate in the Niagara River. was to be employed in carrying down cannon Not believing that such an outrage would and other stores and in transporting men and really be committed, no force whatever was anything else that might be required between

assembled at the time to counteract this Fort Schlosser and Navy Island.

hostile movement. He resolved if she came down and engaged In a very short time this lawless band in this service to take or destroy her. She

obtained from some of the arsenals of the did come down agreeably to the information State of New York (clandestinely, as it is he received. She transported a piece of artilsaid) several pieces of artillery and other lery and other stores to the island, and made arms, which in broad daylight were openly repeated passages during the day between the

transported to Navy Island without resist- island and the main shore. | ance from the American authorities. The In the night he sent a party of militia people of Buffalo and the adjacent country in boats, with orders to take or destroy her. continued to supply them with stores of They proceeded to execute the order. They various kinds, and additional men enlisted found the Caroline moored to the wharf op-

in their ranks. : posite to the inn at Fort Schlosser. In the

In a few days their force was variously inn there was a guard of armed men to prostated from S00 to 1,500, of whom a small tect her—part of the pirate force, or acting proportion were rebels who had fled from in their support. On her deck there was an Upper Canada. They began to intrench them- armed party and a sentinel, who demanded: selves, and threatened that they would in a the countersign. short time make a landing on the Canadian Thus identified as she was with the force

side of the Niagara River... . which in defiance of the law of nations and’ An official statement of the unfriendly pro- every principle of natural justice had inceedings at Buffalo was without delay (on vaded Upper Canada and made war upon its.

the 13th December) made by me to his unoffending inhabitants, she was boarded, excellency the governor of the State of New and after a resistance in which some desperYork, to which no answer has been received. ate wounds were inflicted upon the assailants. And after this open invasion of our territory, she was carried. If any peaceable citizens of and when it became evident that nothing was the United States perished in the conflict, it effected at Buffalo for preventing the viola- was and is unknown to the captors, and it tion of neutrality, a special messenger was was and is equally unknown to them whether

sent to your excellency at Washington to any such were there... . urge your interposition in the matter... . No wanton injury was committed by the Soon after his departure this band of out- party who gallantly effected this service. laws on Navy Island, ... opened a fire They loosed the vessel from the wharf, and from several pieces of ordnance upon the finding they could not tow her against the Canadian shore, which in this part is thickly rapid current of the Niagara, they abandoned

settled, . . . They put several balls through the effort to secure her, set her on fire, and

a house in which a party of militiamen were let her drift down the stream. .

quartered. . . . They killed a horse on which The prisoners taken were a man who, it a man at the time was riding, but happily will be seen by the documents accompanydid no further mischief, though they fired ing this dispatch, avowed himself to be a also repeatedly with cannon and musketrY subject of Her Majesty, inhabiting Upper

upon our boats. Canada, who had lately been braitorously in

They continued daily to render their posi- arms in that Province, and, having fled to tion more formidable, receiving constant sup- the United States, was then on board for

plies of men and warlike stores from the the purpose of going to the camp at Navy State of New York, ... On the 28th De- Island; and a boy, who, being born in Lower

PRE-EMPTION AcT oF 1841 291 Canada, was probably residing in the United tries, Upper Canada alone is the object of States, and who, being afraid to land from _ their hostilities. The Government of the the boat in consequence of the firing kept United States has failed to enforce its auup by the guard on the shore, was placed in thority by any means, civil or military, and one of the boats under Captain Drew and the single question (if it be a question) is taken over to our side, from whence he was whether Upper Canada was bound to refrain sent home the next day by the Falls ferry from necessary acts of self-defense against with money given him to bear his ex- a people whom their own Government either

penses. .. . could not or would not control.

The exact position, then, of affairs on our In perusing the message of His Excellency

frontier may be thus described: Governor Marcy to the legislature of the An army of American citizens, joined toa State of New York your excellency will very few traitors from Upper Canada, and probably feel some degree of surprise that under the command of a subject of the after three weeks’ continued hostility carried United States, has been raised and equipped on by the citizens of New York against the in the State of New York against the laws people of Upper Canada his excellency seems of the United States and the treaties now to have considered himself not called upon subsisting, and are using artillery plundered to make this aggression the subject of refrom the arsenals of the State of New York mark for any other purpose than to complain in carrying on this piratical warfare against of a solitary act of self-defense on the part

a friendly country. of Her Majesty’s Province of Upper Canada, The officers and Government of the United to which such unprovoked hostilities have States and of the State of New York have unavoidably led.

attempted to arrest these proceedings and I have the honor to be, sir, your excelto control their citizens, but they have failed. lency’s most obedient, humble servant,

Although this piratical assemblage are thus F. B. HEAD. defying the civil authorities of both coun-

157. PRE-EMPTION ACT OF 1841 September 4, 1841

(U. S. Statutes at Large, Vol. V, p. 453 fi.) The occupation of the west, pushing ahead faster sales of public lands and to grant pre-emption than the government land surveys, created a_ rights, problem of a grave character. Individual settlers Sec. 8. That there shall be granted to each

squatted on the public domain, and considered ciate | | five hundred thousand acres of it a gross injustice when lands which they had land fo nt 1 _ cleared, cultivated, and improved were put up . rors + MLERHA improvements. Fro for public sale. To circumvent the government, vided, that to each of the States which has settlers organized “Claims Associations”, whose already received grants for said purposes,

members were bound not to bid higher than a there is hereby’ granted no more than a

pre-arranged price. Congress, in 1841, recognized quantity of land which shall, together with

the rights of squatters and the force of public the amount said State has already received opinion by enacting a pre-emption law by which .. . make five hundred thousand acres. .. .

setters wea awed Ho eee herring ioht Sec. 9. .. That the net proceeds of the of purchase at the » inimun, orice when wach sale of said lands shall be faithfully applied to

land was placed on sale. See, B. H. Hibbard, His- objects of internal improvement ct tory of Public Land Policies, ch. ix; S. Sato, namely, roads, railways, bridges, canals and History of the Land Question in the United improvement of water-courses, and draining States, p. 148 ff.; R. G. Wellington, Political and Of Swamps... .

Sectional Influence of the Public Lands, 1828- Sec. 10. That from and after the passage

1842. of this act, every . . . man, over the age of

. twenty-one years, and being a citizen of the

An Act to appropriate the proceeds of the United States, or having filed his declaration

292 DOCUMENTS OF AMERICAN JIISTORY of intention to become a citizen ...who gu'’shed by the United States at any time since the first day of June, A. D. eighteen during the operation of this act; no sections hundred and forty, has made ...a settle- of land reserved to the United States alterment in person on the public lands to which nate to other sections granted to any of the the Indian title had been . .. extinguished, States for the construction of any canal, railand which ... shall have been surveyed road, or other . . . public improvement; no prior thereto, and who shall inhabit and im- sections . . . included within the limits of

prove the same, and who... shall erect any incorporated town; no portions of the a dwelling thereon, ... is hereby, author- public lands which have been selected as the

ized to enter with... the land office... site for a city or town; no parcel or lot of by legal subdivisions, any number of acres land actually settled and occupied for the not exceeding one hundred and sixty, or a purposes of trade and not agriculture; and

quarter section of land, to include the no lands on which are situated any known residence of such claimant, upon paying to _ salines or mines, shall be liable to entry under

the United States the minimum price of such and by virtue of the provisions of this land, subject, however, to the foitlowing limi- act. ... tations and exceptions: No person shall be Sec. 11. That when two or more persons entitled to more than one pre-emptive right shall have settled on the same quarter secby virtue of this act; no person who is the tion of land, the right of pre-emption shall proprietor of three hundred and twenty acres be in him or her who made the first settle-

of land in any State or Territory of the ment, provided such persons shall conform United States, and no person who shall quit to the other provisions of this act; and all or abandon his residence on h's own land to questions as to the right of pre-emption arisreside on the public land in the same State ing between different scttlers shall be settled or Territory, shall acquire any right of pre- by the register and receiver of the district emption under this act; no lands included in within which the land is situated, subject to any reservation ... no lands reserved for an appeal to and a revision by the Secretary

the support of schools, nor the lands... to of the Treasury of the United States. ... which the title has been or may be extin-

158. PRIGG v. THE COMMONWEALTII OF PENNSYLVANIA 16 Peters, 539 1842

Error to the Supreme Court of Pennsylvania. The facts are briefly these: the plaintiff The facts of the case are stated in the opinion § jn error was indicted in the Court of Oyer " below. The decision of the Court, that Congress and Terminer for York County for having,

had exclusive power over the rendition of fugi- = taken and. carried away from that live slaves, and that the states could not be county to the State of Maryland, a certain

obliged to enforce fugitive slave laws through ;

state officers, led to a series of Personal Liberty Negro. woman, named Margaret Morgan, with Laws in northern states which largely nullificd 4 design and intention of selling and disposthe Fugitive Slave Laws. Sce, for example, Doc. 18 of, and keeping her as a slave or servant

No. 182. See, Warren, Supreme Court, (1928 ed.) for life, contrary to a statute of Penn-

Vol. II, p. 83 ff.; A. B. Hart, Slavery and Aboli- sylvania, passed on the 26th of March 1826.

tion, ch. xix; M. G. Mc Dougall, Fugitive Slaves, That statute in the first section, . .. pro1619-1865; J.C. Hurd, The Law of Freedomand vides, that if any person or persons shall

Bondage, Vol. I. from and after the passing of the act, by Story, J. This is a writ of error to the force and violence take and carry away... Supreme Court of Pennsylvania, brought and shall by fraud and false pretense seduce under the 25th section of the Judiciary Act ... any negro or mulatto from any part of of 1789, for the purpose of revising the that Commonwealth, ... shall on convicjudgement of that court, in a case involving tion thereof, be deemed guilty of a felony, and

the construction of the Constitution and Jaws shall forfeit and pay a sum not less than

of the United States. five hundred, nor more than one thousand

Pricc v. THE COMMONWEALTH OF PENNSYLVANIA 293 dollars; . . . and shall be confined and kept The remaining question is, whether the

to hard labor, etc... . power of legis!ation upon this subject is exThe plaintiff in error pleaded not guilty to clusive in the national government, or con

the indictment; and at the trial the jury current in the States, until it is exercised found a special verdict, which, in substance, by Congress. In our opinion it is exclusive;

states, that the negro woman, Margaret and we shall now proceed briefly to state Morgan was a slave for life, and held to our reasons for that opinion. .. . labor and service . . . to a certain Margaret In the first place it is material to statc Ashmore, a citizen of Maryland; that the ... that the right to seize and retake fugis'ave escaped and fled from Maryland into tive slaves and the duty to deliver them up, Pennsylvania in 1832; that the plaintiff in in whatever State of the Union they may be error . . . caused the said negro woman to found, and of course the corresponding power be taken... asa fugitive from labor by a _ of Congress to use the appropriate means to State constable under a warrant from a_ enforce the right and duty, derive their whole Pennsylvania magistrate; that the said negro validity and obligation exclusively from the

woman was thereupon brought before the Constitution of the United States... said magistrate who refused to take further Under the Constitution it is recognized as an cognizance of the case; and thereupon the absolute and positive right and duty, pervad-

plaintiff... did... carry away the said ing the whole Union with an equal and sunegro woman and her children out of Penn- preme force, uncontrolled and uncontro!lable

sylvania into Maryland. ... The special by State sovereignty or State legislation. It verdict further finds, that one of the children is therefore in a just sense a new and posiwas born in Pennsylvania, more than a year tive right, independent of comity, confined after the said negro woman had fled and_ to no territorial limits, and bounded by no

escaped from Maryland... State institutions or policy. The natural in-

The question arising in the case as to the ference deducible from this consideration constitutionality of the statute of Penn- certainly is, in the absence of any positive

sylvania, has been most elaborately argued delegation of power to the State Legislatures, at the bar. The counsel for the plaintiff have that it belongs to the legislative department contended that the statute of Pennsylvania of the national government, to which it owes Is unconstitutional; First, because Congress its origin and establishment. It would be a has the exclusive power of legislation upon strange anomaly, and forced construction, to the subject matter under the constitution of | suppose that the national government meant

the United States, and under the act of to rely for the due fulfillment of its own the 12th of February 1793, which was passed proper duties and the rights which it intended

in pursuance thereof; second, that if this to secure upon State legislation, and not upon

power is not exclusive in Congress, still that of the Union. A fortiori, it would be the concurrent power of the State Legisla- more objectionable to suppose that a power, tures is suspended by the actual exercise of | which was to be the same throughout the the power by Congress; and third, that if Union, should be confided to State sovernot suspended, still the statute of Pennsyl- eignty, which could not rightfully act beyond vania, in all its provisions applicable to this its own territorial limits.

case, is in direct collision with the act of In the next place, the nature of the proCongress, and therefore is unconstitutional vision and the objects to be attained by it. and void. The counsel for Pennsylvania main- require that it should be controlled by one

tain the negative of all these points. and the same will, and act uniformly by the Few questions which have ever come be- same system of regulations throughout the

fore this court involve more delicate and Union... . important considerations; and few upon It is scarcely conceivable that the slavewhich the public at large may be presumed holding States would have been satisfied with

to feel a more profound and pervading in- leaving to the legislation of the non-slave-

terest. . .. holding States a power of regulation, in (Upholds constitutionality of fugitive slave the absence of that of Congress, which would

act of 1793.) or might practically amount to a power to

294 DOCUMENTS OF AMERICAN Hrstory destroy the rights of the owner. . . . On the way, the master or the State? The law of the other hand, construe the right of legislation State does in no case discharge, in the lanas exclusive in Congress, and every evil and guage of the Constitution, the slave from every danger vanishes. The right and the the service of his master.

duty are then co-extensive and uniform in It is a most important police regulation. remedy and operation throughout the whole And if the master violate it, is he not amenaUnion. The owner has the same security, and ble? The offence consists in abduction of a the same remedial justice, and the same ex- person of color. And this is attempted to be

emption from State regulation and control, justified upon the simple ground that the through however many States he may pass _ slave is property. That a slave is property with his fugitive slave in his possession. ... must be admitted. The State law is not These are some of the reasons but by no violated by the seizure of the slave by the means all upon which we hold the power of master, for this is authorized by the act of legislation on this subject to be exclusive in Congress; but by removing him out of the Congress. To guard, however, against any State by force, and without proof of right, possible misconstruction of our views, it is which the act does not authorize. Now, is proper to state that we are by no means to. not this an act which a State may probe understood, in any manner whatsoever to hibit? .. . doubt or to interfere with the police power The important point is, shall the presumpbelonging to the States in virtue of their tion of right set up by the master, unsusgeneral sovereignty. That police power ex- tained by any proof, or the presumption tends over all subjects within the territorial which arises from the laws and institutions limits of the States, and has never been con- of the State, prevail. This is the true issue. ceded to the United States. ... But such The sovereignty of the State is on one side, regulations can never be permitted to inter- and the asserted interest of the master on fere with or to obstruct the just rights of the the other. That interest is protected by the owner to reclaim his slave, derived from the paramount law, and a special, a summary, Constitution of the United States, or with and an effectual mode of redress is given. But the remedies prescribed by Congress to aid this mode is not pursued, and the remedy

and enforce the same. is taken into his own hands by the master.

Upon these grounds we are of opinion that The presumption of the State that the the act of Pennsylvania upon which this colored person is free may be erroneous in indictment is founded, is unconstitutional fact; and if so, there can be no difficulty in

and void... . proving it. But may not the assertion of Judgement reversed... the master be erroneous also; and if so, how

M’LEAN, J., dissenting. ... The slave is is his act of force to be remedied? The

found in a State where every man, black or colored person is taken, and forcibly conwhite, is presumed to be free; and this State, veyed beyond the jurisdiction of the State. to preserve the peace of its citizens, and its This force, not being authorized by the act soil and jurisdiction from acts of violence, of Congress nor by the Constitution, may has prohibited the forcible abduction of per- be prohibited by the State. As the act covers sons of color. Does this law conflict with the the whole power in the Constitution, and

Constitution? It clearly does not in its carries out, by special enactments, its pro-

terms... . visions, we are, in my judgement, bound by

No conflict can arise between the act of the act. We can no more, under such cirCongress and this State law. The conflict cumstances, administer a remedy under the can only arise between the forcible acts of Constitution in disregard of the act than the master and the law of the State. The we can exercise a commercial or other power

master exhibits no proof of right to the in disregard of an act of Congress on the

services of the slave, but seizes him and is same subject. about to remove him by force. I speak only This view respects the rights of the master of the force exerted on the slave. The law and the rights of the State. It neither jeop-

of the State presumes him to be free and ards nor retards the reclamation of the

srohibits his removal. Now, which shall give slave. It removes all State action prejudi- |

, THE PEOPLE v. FISHER 295 cial to the rights of the master; and recog- tect its own jurisdiction, and the peace of nizes in the State a power to guard and pro- its citizens... .

159. THE PEOPLE v. FISHER N. Y. Reports, 14 Wend. 9 1835

This case illustrates the attitude of the Courts conspiring either to reduce the time of labor toward combinations of laborers organized for or to raise their wages, to the punishment the purpose of securing higher wages, in the of fine and imprisonment. I have found but early decades of the nineteenth century. See Doc. fey, adjudications upon this subject; but

No. 160. precedents, in the absence of adjudications SAvAGE, C. J. The legislature have given are some evidence of what the law is. Among us their definition of conspiracies, and abro- these we find precedents at common law gated the common law on the subject. We against journeymen for conspiring to raise must therefore see whether this case comes their wages and lessen the time of labor, and within the statute. The legislature have said, to compel masters to pay for a whole day’s

“ (6) To commit any act injurious to work; against journeymen lamp-lighters, for the public health, to public morals, or to conspiring to raise wages, and against jourtrade or commerce; or for the perversion or meymen curriers for the like offence; against obstruction of justice of the due administra- salt makers, for conspiring to enhance the tion of the laws—they shall be deemed guilty price of salt; . .. The immediate object in of a misdemeanor.” And in section 9, it is those cases, as in this, probably was to benedeclared that “no conspiracies, other than fit the conspirators themselves; but if their such as are enumerated in the last section, Individual benefit is to work a public injury, are punishable criminally.” If the conspiracy a conspiracy for such an object is against charged in the indictment is an offence under the spirit of the common law... . this statute, it must be embraced under the Whatever disputes may exist among politisixth subdivision, and is an act injurious to cal economists upon the point, I think there

trade or commerce. ... can be no doubt, in a legal sense, but what The question therefore is, is a conspiracy the wages of labor compose a material porto raise the wages of journeymen shoemakers tion of the value of manufactured articles. an act injurious to trade or commerce? The The products of mechanical labor compose

words trade and commerce are said by a large proportion of the materials with Jacobs, in his Law Dictionary, not to be which trade is carried on. By trade, I now

synonymous; that commerce relates to deal- understand traffic or mutual dealings between ings with foreign nations; trade, on the con- members of the same community, or internal trary, means mutual traffic among ourselves, trade. Coarse boots and shoes are made in or the buying, selling, or exchange of articles many parts of our country; not for particubetween members of the same community. lar persons who are to wear them, but as an

That the raising of wages and a conspiracy, article of trade and commerce. Probably confederacy, or mutual agreement among such is the case in Geneva, where this ofjourneymen for that purpose is a matter of fence was committed. If journeymen _ bootpublic concern, and in which the public have makers, by extravagant demands for wages,

a deep interest, there can be no doubt. That so enhance the price of boots made in it was an indictable offence at common law Geneva, for instance, that boots made elseis established by legal adjudications. ... where, in Auburn, for example, can be sold Such was the construction of the common _ cheaper, is not such an act injurious to trade?

law; but in England the subject has been It is surely so to the trade of Geneva in thought sufficiently important to require the that particular article, and that I apprehend

special attention of the legislature, and is all that is necessary to bring the offence statutes were enacted in the reign of Edward within the statute. It is important to the 6th and George 3d, which subject workmen, best interests of society that the price of

296 DOCUMENTS OF AMERICAN IIIstory labor be left to regulate itself, or rather be to effect such an object are injurious, not limited by the demand for it. Combinations only to the individual particularly oppressed,

and confederacies to enhance or reduce the but to the public at large... . It is true prices of labor, or of any articles of trade that no great danger is to be apprehended or commerce, are injurious. They may be on account of the impracticability of .. . oppressive, by compelling the public to give universal combinations. But if universally or

more for an article of necessity or of con- even generally entered into, they would be venience than it is worth; or on the other prejudicial to trade and to the public; they hand, of compelling the labor of the mechanic are wrong in each particular case. Truth for less than its value. Without any officious is, that industry requires no such means to and improper interference of the subject, support it. Competition is the life of trade. the price of labor or the wages of mechanics If the defendants cannot make coarse boots

will be regulated by the demand for the for less than one dollar per pair, let them manufactured article, and the value of that refuse to do so: but let them not directly or which is paid for it; but the right does not indirectly undertake to say that others shall

exist either to enhance the price of the not do the work for a less price. It may be article, or the wages of the mechanic, by that Pennock, from greater industry or any forced and artificial means. The man greater skill, made more profit by making who owns an article of trade or commerce boots at seventy-five cents per pair than is not obliged to sell it for any particular the defendants at a dollar. He had a right price, nor is the mechanic obliged by law to work for what he pleased. His employer to labor for any particular price. He may had a right to employ him for such price say that he will not make coarse boots for as they could agree upon. The interference less than one dollar per pair, but he has no of the defendants was unlawful; its tendency right to say that no other mechanic shall is not only to individual oppression, but to make them for less. The cloth merchant may public inconvenience and embarrassment.

say that he will not sell his goods for less I am of the opinion that the offence is than so much per yard, but has no right to indictable, and that the judgment of the say that any other merchant shall not sell general sessions of Ontario county should be for a less price. If one individual does not reversed, and that a venire de novo should possess such a right over the conduct of _ issue. another, no number of individuals can pos- Judgment accordingly. sess such a right. All combinations therefore

160. COMMONWEALTH v. HUNT Mass. Reports, 4 Metcalf 45 1842

By the common law, which obtained in most fendants, together with divers other persons American States, any combination of working unknown to the grand jurors, “on the first men for the purpose of regulating the terms of Monday of September 1840, at Boston, being employment or Parsing wages was a conspiracy. workmen and journeymen in the art and See, for example, the Trial of James Melvin and...) occupation of boot-makers, unlawOthers for Conspiracy to Raise Wages, New full iciousl d deceitfully designi York City, 1810, American State Trials, Vol. 'UHY. Perniciousty and ceceitiully designing XIII, p. 576 if.; and People v. Fisher, Doc. No. and intending to continue, keep up, form, 159. In the famous case of Commonwealth v. and unite themselves into an unlawful club, Hunt, Chief Justice Shaw held that a combina- society and combination, . . . did unlawfully tion of working men for this purpose was not assemble and meet together, and, ... did

illegal. then and there unjustly and corruptly... agree together, that none of them would work

This was an indictment against the de- for any master or person whatsoever, in the fendants, (seven in number,) for a conspir- said art, mystery or occupation, who shou'd acy. The first count alleged that the de- employ any workman or journeyman, or other

COMMONWEALTH V. IIUNT 297 person, in the said art, who was not amember lawful conspiracy, against the laws of this

of said club, society or combination, after Commonwealth... . notice given him to discharge such workman Suaw, C. J... . We have no doubt, that from the employ of such master; to the great by the operation of the constitution of this damage and oppression, not only of their said Commonwealth, the general rules of the commasters employing them in said art and occu- mon law, making conspiracy an indictable

pation, but also of divers other workmen and offence, are in force here, and that this is journeymen in the said art, mystery and included in the description of laws which had, occupation; to the evil example of all others before the adoption of the constitution, been in like case offending, and against the peace used and approved in the Province, Co-ony,

and dignity of the Commonwealth.” or State of Massachusetts Bay, and usually The second count charged that the de- practised in the courts of law... . Still it fendants, and others unknown, at the time is proper in this connexion to remark, that and place mentioned in the first count, “did although the common law in regard to conunlawfully assemble, meet, conspire, con- spiracy in this Commonwealth is in force, federate and agree together, not to work for yet it will not neccessarily follow that every any master or person who should employ indictment at common law for this offence any workman not being a member of a club, is a precedent for a similar indictment in society or combination, called the Boston this State. The gencral rule of the common Journeymen Bootmakers’ Society in Boston, law is, that it is a criminal and indictable in Massachusetts, or should break any of offence, for two or more to confederate and their by-laws, unless such workman should combine together, by concerted means, to do

pay to said club and society such sum as- that which is unlawful or criminal, to the should be agreed upon as a penalty for the injury of the public,.or portions or classes breach of such unlawful rules, orders and of the community, or even to the rights of by-laws; and by means of said conspiracy, an individual. This rule of law may be they did compel one Isaac B. Wait, a master equally in force as a rule of the common cordwainer in said Boston, to turn out of law, in England and in this Commonwealth; his employ one Jeremiah Horne, a journey- and yet it must depend upon the local laws man bootmaker, because said Horne would of each country to determine, whether the not pay a sum of money to said society for purpose to be accomplished by the combinaan alleged penalty of some of said unjust tion, or the concerted means of accomplish-

rules, orders and by-laws.”. . . ing it, be unlawful or criminal in the respec-

The defendants were found guilty, at the tive countries. All those laws of the parent October term, 1840, of the municipal court, country, whether rules of the common law, and thereupon several exceptions were alleged or early English statutes, which were made

by them to the ruling of the judge at the for the purpose of regulating the wages of trial. The only exception, which was con- laborers, the settlement of paupers, and mak- . sidered in this court, was this: “The de- ing it penal for anyone to use a trade or fendants’ counsel contended that the indict- handicraft to which he had not served a ment did not set forth any agreement to do _ full apprenticeship—not being adapted to a criminal act, or to do any lawful act by the circumstances of our colonial condicriminal means; and that the agreements, tion—were not adopted, used or approved, therein set forth, did not constitute a con- and therefore do not come within the despiracy indictable by any law of this Com- — scription of the laws adopted and confirmed

monwealth; and they moved the court so by the provision of the constitution already

to instruct the jury: But the judge refused cited... . so to do, and instructed the jury that the Stripped then of these introductory recitals indictment against the defendants did, in his and alleged injurious consequences, and of opinion, describe a confederacy among the the qualifying epithets attached to the facts, defendants to do an unlawful act, and to the averment is this; that the defendants and effect the same by unlawful means: That the others formed themselves into a society, and society, organized and associated for the pur- agreed not to work for any person who pose described in the indictment, was an un- should employ any journeyman or other per-

298 DocUMENTS OF AMERICAN History son, not a member of such society, after perceive, that it is criminal for men to agree notice given him to discharge such workman. together to exercise their own acknowledged

The manifest intent of the association is, to rights, in such a manner as best to subserve induce all those engaged in the same occupa- their own interests. One way to test this tion to become members of it. Such a pur- is, to consider the effect of such an agreepose is not unlawful. It would give them a ment, where the object of the association power which might be exerted for useful and is acknowledged on all hands to be a laudable

honorable purposes, or for dangerous and one. Suppose a class of workmen, impressed pernicious ones. If the latter were the real with the manifold evils on intemperance, and actual object, and susceptible of proof, should agree with each other not to work in it should have been specially charged. Such a shop in which ardent spirit was furnished, an association might be used to afford each or not to work in a shop with any one who other assistance in times of poverty, sick- used it, or not to work for an employer, who ness and distress; or to raise their intellect- should, after notice, employ a journcyman ual, moral and social condition; or to make who habitually used it. The consequences improvement in their art; or for other might be the same. A workman, who should proper purposes. Or the association might be _ still persist in the use of ardent spirit, would designed for purposes of oppression and in-_ find it more difficult to gel employment; a

justice. ... master employing such an one might, at Nor can we perceive that the objects of | times, experience inconvenience in his work,

this association, whatever they may have in losing the services of a skilful but inbeen, were to be attained by criminal means. temperate workman. Still it seems to us, that The means which they proposed to employ, as the object would be lawful, and the means

as averred in this count, and which, as we not unlawful, such an agreement could not are now to presume, were established by the be pronounced a criminal conspiracy. . . .

proof, were, that they would not work for We think, therefore, that associations may a person, who, after due notice, should em- be entered into, the object of which is to ploy a journeyman not a member of their adopt measures that may have a tendency society. Supposing the object of the associa- to impoverish another, that is, to diminish tion to be laudable and lawful, or at least his gains and profils, and yet so far from not unlawful, are these means criminal? The being criminal or unlawiul, the object may case supposes that these persons are not be highly meritorious and public spirited. bound by contract, but free to work for ‘The legality of such an association will therewhom they please, or not to work, if they fore depend upon the means to be used for so prefer. In this state of things, we cannot its accomplishment... .

161. THE WEBSTER-ASHBURTON TREATY August 9, 1842 (Malloy, ed. Treaties, Conventions, etc, Vol. I, p. 650 ff.) This treaty finally settled the long-standing sonal friend of Webster’s. On the northeastern northeastern boundary dispute between the boundary dispute and the Treaty, see Webster’s United States and Canada. In 1827 a convention — speech, in Works, Vol. V, p. 78 If.; J. B. Moore, had referred the dispute to the arbitration of the History of International Arbitrations, Vol. I, chs. King of the Netherlands, but his award had been iff.; W. F. Ganong, The Boundaries of New rejected by both Great Britain and the United Brunswick; H. 5. Burrage, Maine in the North-

States. In 1838 the dispute precipitated the eustern Boundary Conlroversy; E. D. Adams,

“Aroostook War”? between the inhabitants of “Lord Ashburton and the Treaty of Washington,” Maine and New Brunswick. The Webster-Ash- American Hist. Rev., July, 1912; S. F. Bemis, burton Treaty embraced other outstanding dis- ed. American Secretaries of State, Vol. V, p. 20 ff.

eae Hearty nth ad aftsire: axe Doe Treaty to Settle and Define Boundaries ; for No. 156. The negotiations were conducted with the Final Suppression of the African Slaveamiability on both sides: Ashburton, the Ameri- Trade; and for the Giving up of Crimials

can representative of the Barings, was a per- Fugitive from Justice. :

THE WEBSTER-ASHBURTON TREATY 299 Art. I. It is hereby agreed and declared Canada on the other; and from said point of that the line of boundary shall be as follows: intersection, west, along the said dividing Beginning alt the monument at the source of _ line, as heretofore known and understood, to

the river St. Croix as designated and agreed the Iroquois or St. Lawrence River... .

to by the Commissioners under the fifth Art. II. It is moreover agreed, that, from article of the treaty of 1794, between the the place where the joint commissioners

Governments of the United States and Great terminated their labors under the sixth article

Britain; thence, north, following the explor- of the treaty of Ghent, to wit: at a point ing line run and marked by the surveyors of in the Neebish channel, near Muddy Lake, the two Governments in the years 1817 and the line shall run into and along the ship

1818, under the fifth article of the treaty channel between St. Joseph and St. Tamof Ghent, to its intersection with the river many islands, to the division of the channel St. John, and to the middle of the channel at or near the head of St. Joseph's island; (hereof; thence, up the middle of the main thence, turning eastwardly and northwardly

channel of the said river St. John, to the around the lower end of St. George’s or mouth of the river St. Francis; thence, up Sugar island, and following the middle of the the middle of the channel of the said river channel which divides St. George’s from St. St. Francis, and of the lakes through which Joseph’s island; thence up the east Neebish

it flows, to the outlet of the Lake Pohena- channel, nearest to St. George’s island, gamook: thence, southwesterly, in a straight through the middle of Lake George; thence, line, to a point on the northwest branch of west of Jonas’ island, into St. Mary’s river, the river St. John, which point shall be ten to a point in the middle of that river, about miles distant from the main branch of the one mile above St. George’s or Sugar island,

st. John, in a straight line, and in the near- so as to appropriate and assign the said est direction; but if the said point shall be island to the United States; thence, adopting found to be less than seven miles from the the line traced on the maps by the commisnearest point of the summit or crest of the sioners, through the river St. Mary and Lake highlands that. divide those rivers which Superior, to a point north of Ile Royale, in

empty themselves into the river St. Law- said lake, one hundred yards to the north rence from those which fall into the river and east of Ile Chapeau, which _lastSt. John, then, the said point shall be made mentioned island lies near the northeastern to recede down the said northwest branch point of Ile Royale, where the line marked of the river St. John, to a point seven miles by the commissioners terminates; and from in a straight line from the said summit or the last-mentioned point, southwesterly, crest; thence, in a straight line, in a course through the middle of the sound between Ie about south, eight degrees west, to the point Royale and the northwestern main land, to where the parallel of latitude of 46° 25’ the mouth of Pigeon river, and up the said north intersects the southwest branch of the river, to and through the north and south St. John’s; thence, southerly, by the said Fowl Lakes, to the fakes of the height of branch, to the source thereof in the high- land between Lake Superior and the Lake of lands at the Metjarmette portage; thence, the Woods; thence, along the water comdown along the said highlands which divide munication to Lake Saisaginaga, and through

the waters which empty themselves into the that lake; thence, to and through Cypress river St. Lawrence from those which fall into Lake, Lac du Bois Blanc, Lac la Croix, Little

the Atlantic Ocean, to the head of Hall’s Vermilion Lake, and Lake Namecan, and Stream; thence, down the middle of said through the several smaller lakes, straits, or stream, till the line thus run intersects the streams, connecting the lakes here mentioned, old line of boundary surveyed and marked to that point in Lac la Pluie, or Rainy Lake, by Valentine and Collins, previously to the at the Chaudiére Falls, from which the comyear 1774, as the 45th degree of north lati- missioners traced the line to the most northtude, and which has been known and under- western point of the Lake of the Woods; Stood to be the line of actual division be- thence, along the said line, to the said most tween the States of New York and Vermont northwestern point, being in latitude 49° on one side, and the British province of 23’ 55” north, and in longitude 95° 14’ 38”

300 DocUMENTS OF AMERICAN HISTORY west from the observatory at Greenwich; vessels. of suitable numbers and descriptions, thence, according to existing treaties, due to carry in all not less than eighty guns, to south to its intersection with the 49th parallel enforce. separately and respectively, the laws, of north latitude, and along that parallel to rights, and obligations, of each of the two the Rocky mountains. It being understood countries, for the suppression of the slave that all the water communications and all trade: the said squadrons to be independent the usual portages along the line from Lake of each other; but the two Governments Superior to the Lake of the Woods, and also _ stipulating, nevertheless, to give such orders

Grand portage, from the shore of Lake to the officers commanding their respective Superior to the Pigeon river, as now actually forces as shall enable them most effectually

used, shall be free and open to the use of to act in concert and co-operation, upon the citizens and subjects of both coun- mutual consultation, as exigencies may arise,

tries... . for the attainment of the true object of this Art. VIII. The parties mutually stipulate article; copies of all such orders to be com: that each shall prepare, equip, and maintain municated by each Government to the other, in service, on the coast of Africa, a sufficient respectively.

and adequate squadron, or naval force of

162. THE CONSTITUTION OF THE BROOK FARM ASSOCIATION 1841

(O. B. Frothingham, Transcendentalism in New England, p. 159 ff.) Brook Farm, by virtue of the distinguished principles of justice and love to our social character of its membership and of its Lterary organization in accordance with the laws of associations, is the most famous of those Utopian Divine Providence; to substitute a system experiments which flourished in the generation of brotherly codperation for one of selfish | preced.ng the Civil War. It was established at competition; to secure to our children and south of Boston, and among its members were those who may be entrusted to our care, the George Ripley, J. S. Dwight, Charles A. Dana, benefits of the highest physical, intellectual

West Roxbury, Massachusetts, some nine miles )

and Nathaniel Hawthorne, while almost the %d moral education, which in the progress

whole of literary Boston and Concord frequented Of knowledge the resources at our command its halls. A disastrous fire brought the experiment will permit; to institute an attractive, efto an untimely end in 1846. See, L. Swift, Brook ficient, and productive system of industry; Farm; O, B. Frothingham, George Ripley, chs. to prevent the exercise of worldly anxiety, ili~iv; O. B. Frothingham, Transcendentalism in by the competent supply of our necessary

New England, ch. vii; J. T. Codman, Brook wants; to diminish the desire of excessive

isms; M. Hillquit, History of Socialism in the ‘ovr :

F arm; J. H. Noyes, History of American Social- accumulation, by making the acquisition of . United States; H. Semler, Geschichte der Social- individual property subservient to upright ismus und Communismus in Nord America. For and disinterested uses; to guarantee to each other communistic experiments, see C. Nordhoff, other forever the means of physical support, The Communistic Societies of the United States; and of spiritual progress; and thus to im-

W. A. Hinds, American Communities and Co- part a greater freedom, simplicity, truthoperative Colonies; G. B. Lockwood, The New fulness, refinement, and moral dignity, to our

“ar mony a oom B. “ * aortaIcaria; mode of life;—-we undersigned do unite mana; A. Shaw, . A, , osthem ee

Bishop Hill Colony; R. J. Hendricks, Bethel and 3? 3. rvarad Association, ane adopt and Aurora. Hawthorne’s Blithedale Romance gives a ordain the following articles o agreement,

somewhat unfair p:cture of Brook Farm. to wit:

CONSTITUTION ARTICLE I

In order more effectually to promote the Sec. 1. The name of this Association shall great purposes of human cu‘ture; to es- be “THE BROOK-FARM ASSOCIATION FOR tablish the external relations of life on a InpustTRY AND EpucaTIoNn.” All persons who basis of wisdom and purity; to apply the shall hold one or more shares in its stock, or

DorRoTHEA Dirx’s MEMORIAL 301 whose labor and skill shall be considered an Sec. 2. The Association guarantees to all its

equivalent for capital, may be admitted by members, their children, and family dethe vote of two-thirds of the Association, as pendents, house-rent, fuel, food, and cloth-

members thereof, ing, and the other necessaries of life, withSec. 2. No member of the Association shall out charge, not exceeding a certain fixed ever be subjected to any religious test; nor amount to be decided annually by the Asshall any authority be assumed over individ- sociation; no charge shall ever be made for ual freedom of opinion by the Association, support during inab-lity to labor from sicknor by any one member over another; nor ness or o-d age, or for medical or nursing shall any one be he!d accountable to the attendance, except in case of shareholders, Association, except for such overt acts, omis- who shall be charged therefor... but no sions of duty, as violate the principles of charge shall be made to any members for

justice, purity, and love, on which it is education or the use of library and public founded; and in such cascs the relation of rooms.... any member may be suspended, or d-scon-

tinued, at the pleasure of the Association. ARTICLE V Sec. 1. The government of the Association

ARTICLE II shall be vested in a board of Directors, Sec. 1. The members of this Association shall oar onetal our eins tection at own and manage such teal and personal Education; 3d., Direction of Industry; 4th, estate in joint stock proprietorship, divided Direction of. Finance; consisting of three into shares of one hundred dollars, each, as persons each... . may from time to time be agreed On. ws Sec. 5. The departments of Education and Sec. 4. The shareholders on their part, for Finance shall be under the control each of themselves, their heirs and A SSIBDS, do re- its own Direction. which shall select, and in nounce all cam on any Pro i“ heir can tO concurrence with the General Direction, shall the Association or the use of their capital appoint such teachers, officers, and agents, as

invested in the stock of the Association, hall be necessary to the lot F

except five per cent, interest on the amount . , aa complete an of stock held by them, payable in the manner systematic organization of the department.

described in the prece ding section Nodeemed Directors or other officers shall be to possess any rank superior to the other members of the Association, nor shall

ArTIcLe II they receive any extra remuneration for theit Sec. 1. The Association shall provide such official services. employment for all its members as shall be Src. 6. The department of Industry shall be

adapted to their capacities, habits, and arranged in groups and scries, as far as tastes; and each member shall select and practicable, and shall consist of three pri. perform such operations of labor, whether mary series; to wit, Agricultural, Mechanical, corporal or mental, as shall be deemed best and Domestic Industry. The chief of each suited to his own endowments, and the bene- _ series shall be c'ected every two months by

fit of the Association. — the members thereof. ...

163. DOROTHEA DIX’S MEMORIAL TO TIIE LEGISLATURE OF MASSACHUSETTS

January, 1843 (Old South Leaflets, No. 148) In March 1841, Dorothea Dix, visiting a jail house, was presented to the Legislature by some in East Cambridge, Massachusetts, found insane of her influential friends. The Memorial propersons kept in an unheated room. The following duced a profound sensation: it was referred to a two years she spent investigating the jails and committee of which Dr. Samuel G. Shaw was almshouses of Massachusetts, and in January chairman and reported with recommendations

1843 her report, dated from Dr. Channing’s for relief. Within a short time Massachusetts

302 DOCUMENTS OF AMERICAN History made more adequate provision for her insane, but am ready to furnish other and more ane Miss Dix entered upon a larger field of complete details, if required. te of the Acces Uns astral Sunt, my pictures are dislesing, coarse, and

pean countries. See, F. Tiffany, Life of Dorothea severe, my subjects, it must be recollected, of-

Lynde Diz; A. S. Roe, Dorothea Dix. er no tranquil, refined, or composing features.

The condition of human beings, reduced to the

Gentlemen,—I respectfully ask to present extremest states of degradation and misery

"this Memorial, believing that the cause, cannot be exhibited in softened language, or which actuates to and sanctions so unusual a adorn a polished page.

movement, presents no equivocal claim to I proceed, gentlemen, briefly to call your public consideration and sympathy. . . . attention to the present state of insane perAbout two years since leisure afforded op- sons confined within this Commonwealth, portunity and duty prompted me to visit in cages, closets, cellars, stalls, pens! Chained. several prisons and almshouses in the vicinity maked, beaten with rods, and lashed into of this metropolis. I found, near Boston, obedience. . . .

in the jails and asylums for the poor, a It is the Commonwealth, not its integral numerous class brought into unsuitable con- parts, that is accountable for most of the nection with criminals and the general mass abuses which have lately and do still exist. of paupers. I refer to idiots and insane per- I repeat it, it is defective legislation which sons, dwelling in circumstances not only ad- perpetuates and multiplies these abuses. In verse to their own physical and moral im- illustration of my subject, I offer the follow-

provement, but productive of extreme ing extracts from my Note-book and Jour-

disadvantages to all other persons brought into nal:—

association with them. I applied myself dili- Springfield. In the jail, one lunatic woman, gently to trace the causes of these evils, and furiously mad, a State pauper, improperly sought to supply remedies. As one obstacle situated, both in regard to the prisoners, the was surmounted, fresh difficulties appeared. keepers, and herself. It is a case of extreme Every new investigation has given depth to _ self-forgetfulness and oblivion to all the the conviction that it is only by decided, decencies of life, to describe which would be

prompt, and vigorous legislation the evils to repeat only the grossest scenes. She is to which I refer, and which I shall proceed much worse since leaving Worcester. In the more fully to illustrate, can be remedied. I almshouse of the same town is a woman apshall be obliged to speak with great plain- parently only needing judicious care, and some ness, and to reveal many things revolting well-chosen employment, to make it unnecesto the taste, and from which my woman’s _ sary to confine her in solitude, in a dreary nature shrinks with peculiar sensitiveness. unfurnished room. Her appeals for employBut truth is the highest consideration. J tel) ment and companionship are most touching, what I have seen—painful and shocking as but the mistress replied “‘she had no time to

the details often are—that from them you attend to her.”... may feel more deeply the imperative obliga- Lincoln. A woman in a cage. Medford. tion which lies upon you to prevent the pos- One idiotic subject chained, and one in a sibility of a repetition or continuance of close stall for seventeen years. Pepperell.

such outrages upon humanity... . One often doubly chained, hand and foot;

I come to present the strong claims of suf- another violent; several peaceable now. fering humanity. I come to place before the Brookfield. One man caged, comfortable. Legislature of Massachusetts the condition Granville. One often closely confined; now of the miserable, the desolate, the outcast. I losing the use of his limbs from want of come as the advocate of helpless, forgotten, exercise. Charlemont. One man caged. Savoy. insane, and idiotic men and women; of beings One man caged. Lenox. Two in the jail, sunk to a condition from which the most against whose unfit condition there the jailer unconcerned would start with real horror; protests. of beings wretched in our prisons, and more Dedham, The insane disadvantageously

wretched in our almshouses. .. . placed in the jail. In the almshouse, two I must confine myself to few examples, females in stalls, situated in the main build-

DorROoTHEA D1x’s MEMORIAL 303 ing; lie in wooden bunks filled with straw; degree of violence to another, in swift progalways shut up. One of these subjects is ress. There she stood, clinging to or beating supposed curable. The overseers of the poor upon the bars of her caged apartment, the have declinéd giving her a trial at the hospi- contracted size of which afforded space only

tal, as I was informed, on account of ex- for increasing accumulations of filth, a foul

pense. ... spectacle. There she stood with naked arms Besides the above, I have seen many who, and dishevelled hair, the unwashed frame inpart of the year, are chained or caged. The vested with fragments of unclean garments. use of cages all but universal. Hardly a town _ the air so extremely offensive, though ventila-

but can refer to some not distant period of tion was afforded on all sides save one, that using them; chains are less common; negli- it was not possible to remain beyond a few gences frequent; wilful abuse less frequent moments without retreating for recovery to than sufferings proceeding from ignorance, or the outward air. Irritation of body, produced want of consideration. I encountered during by utter filth and exposure, incited her to the the last three months many poor, creatures horrid process of tearing off her skin by wandering reckless and unprotected through inches. Her face, neck, and person were the country. . . . But I cannot particularize. thus disfigured to hideousness. She held up

In traversing the State, I have found hun- a fragment just rent off. To my exclamadreds of insane persons in every variety of tion of horror, the mistress replied: “Oh, we circumstance and condition, many whose can’t help it. Half the skin is off sometimes.

situation could not and need not be im- We can do nothing with her; and it makes

proved; a less number, but that very large, no difference what she eats, for she consumes whose lives are the saddést pictures of human her own filth as readily as the food which

suffering and degradation. is brought her.” I give a few illustrations; but description Men of Massachusetts, I beg, I implore, fades before reality. I demand pity and protection for these of Danvers. November. Visited the almshouse. my suffering, outraged sex. Fathers, husA large building, much out of repair. Under- bands, brothers, I would supplicate you for

stand a new one is in contemplation. Here this boon; but what do I say? I dishonor are from fifty-six to sixty inmates, one idiotic, you, divest you at once of Christianity and

three insane; one of the latter in close con- humanity, does this appeal imply distrust.

finement at all times. If it comes burdened with a doubt of your Long before reaching the house, wild righteousness in this legislation, then blot it shouts, snatches of rude songs, imprecations out; while I declare confidence in your and obscene language, fell upon the ear, pro- honor, not less than your humanity. Here ceeding from the occupant of a low building, you will put away the cold, calculating spirit rather remote from the principal building to of selfishness and self-seeking; lay off the which my course was directed. Found the armor of local strife and political opposition;

mistress, and was conducted to the place here and now, for once, forgetful of the which was called “the home” of the forlorn earthly and perishable, come up to these halls

maniac, a young woman, exhibiting a condi- and consecrate them with one heart and tion of neglect and misery blotting out the one mind to works of righteousness and faintest idea of comfort, and outraging every just judgment.

sentiment of decency. She had been, I learnt, Become the benefactors of your race,

“a respectable person, industrious and the just guardians of the solemn rights worthy. Disappointments and trials shook you hold in trust. Raise up the fallen, her mind, and, finally, laid prostrate reason succor the desolate, restore the outcast, deand self-control. She became a maniac for fend the helpless, and for your eternal and life. She had been at Worcester Hospital great reward receive the benediction, “Well for a considerable time, and had been re- done, good and faithful servants, become turned as incurable.” The mistress told me rulers over many things!”

she understood that, “while there, she was Injustice is also done to the convicts: it comfortable and decent.” Alas, what a change is certainly very wrong that they should be was here exhibited! She had passed from one doomed day after day and night after night

304 DocUMENTS OF AMERICAN II1IstTory to listen to the ravings of madmen and to what it was Originally designed to be or madwomen. This is a kind of punishment else make some just appropriation for the that is not recognized by our statutes, and benefit of this very unfortunate class of our is what the criminal ought not to be called ‘‘fellow-beings.”’

upon to undergo. The confinement of the Gent:emen, I commit to you this sacred criminal and of the insane in the same build- cause. Your action upon this subject will af-

ing is subversive of that good order and fect the present and future condition of hundiscipline which should be observed in every dreds and of thousands. In this legislation, as well-regulated prison. I do most sincerely in all things, may you exercise that ‘‘wisdom hope that more permanent provision will be which is the breath of the power of God.”

made for the pauper insane by the State, Respectfully submitted,

either to restore Worcester Insane Asylum D. L. Dix. . 164. CLAY’S RALEIGH LETTER April 17, 1844 ~ (Niles’ National Register, Vol. LXVI, p. 152-3) It was apparent, early in 1844, that Clay would should become an integral part of the United

be the Whig nom.nce for the Presidency, and it States.... To the astonishment of the

was commonly believed that Van Buren would who’e nation, we are now informed that a be nominated by the Democrats. Farly in 1844 treaty of annexation has been actually conVan Buren vis.ted Clay at Ashland and came cluded, and is to be submitted to the senate to an agreement with him to eliminute the Texas aor question from the campaign. Accordingly on 0r its consideration. The motives for my April 17 both candidates published letters op- Silence, therefore, no longer remain, and I posing immediate annexation. Van Huren’s letter feel it to be my duty to present an exposiin all probability cost him the nomination. Clay’s tion of my views and opinions upon the letter so embarrassed him in the campaign that question, for what they may be worth, to the he sought to explain it away in a serves of letters public consideration. I adopt this method known as the “Alabama letters”—but without gg being more convenient than several replies success. Clay was defeated by Polk who was to the respective communications which | pledged to immediate annexation. The letters of have received. Clay and Van Buren and the subsequent Alabama letters can be found in Niles Register, Vol. LXVI. I regret that I have not the advantage o1 See, C. Schurz, Henry Clay, Vol. Il; T.C. Smith, 4 View of the treaty itself, so as to enable The Liberty and Free Soil Parties; E. M. Shep- me to adapt an expression of my opinion to

ard, Martin Van Buren. the actual conditions and stipulations which

it contains. Not possessing that opportunity.

To THE Eprtors or THE NATIONAL I am constrained to treat the question ac-

INTELLIGENCER cording to what I presume to be the terms

Raleigh, April 17, 1844. of the treaty. If, without the loss of national! Gentlemen: Subsequent to my departure character, without the hazard of foreign war. from Ashland, in December last, I received with the general concurrence of the nation,

various communications from popular as- without any danger to the integrity of the semblages and private individuals, requesting Union, and without giving an unreasonable an expression of my opinion upon the ques- price for Texas, the question of annexation

tion of the annexation of Texas to the were presented, it would appear in quite a

United States.... The rejection of the different light from that in which, I apoverture of Texas, some vears ago, to become _ prehend., it is now to be regarded... .

annexed to the United States, had met with Annexation and war with Mexico are general acquiescence. Nothing had since oc- identical. Now, for one, I certainly am not

curred materially to vary the question. I willing to involve this country in a foreign had seen no evidence of a desire being en- war for the object of acquiring Texas. I know tertained, on the part of any considerable there are those who regard such a war with portion of the American people, that Texas indifference and as a trifling affair, on ac-

Cray’s RALEIGH LETTER 305 count of the weakness of Mexico, and her of it, in decided opposition to the wishes of a inability to inflict serious injury upon this considerable and respectable portion of the

country. But I do not look upon it thus confederacy. I think it far more wise and lightly. I regard all wars as great calamities, important to compose and harmonize the to be avoided, if possible, and honorab!e present confederacy, as it now exists, than peace as the wisest and truest policy of this to introduce a new element of discord and

country. What the United States most need distraction into it.... Mr. Jefferson exare union, peace, and patience. Nor do I pressed the opinion, and others believed, that

think that the weakness of a power should it never was in the contemplation of the form a motive, in any case, for inducing us framers of the constitution to add foreign to engage in or to depreciate the evils of territory to the confederacy, out of which war.—Honor and good faith and justice are new states were to be formed. The acquisiequally due from this country towards the tions of Louisiana and Florida may be deweak as towards the strong. And, if an act fended upon the peculiar ground of the relaof injustice were to be perpetrated towards tion in which they stood to the states of the any power, it would be more compatible with Union. After they were admitted, we might the dignity of the nation, and, in my judg- well pause a while, people our vast wastes, ment, less dishonorable, to inflict it upon a develop our resources, prepare the means of powerful instead of a weak foreign nation. defending what we possess, and augment our But are we perfectly sure that we should be © strength, power, and greatness. If hereafter

free from injury in a state of war with further territory should be wanted for an Mexico? Have we any security that count- increased population, we need entertain no less numbers of foreign vessels, under the apprehensions but that it will be acquired by authority and flag of Mexico, would not prey means, it is to be hoped, fair, honorable, and upon our defenceless commerce in the Mexi- constitutional. can gulf, on the Pacific ocean, and on every It is useless to disguise that there are those other sea and ocean? What commerce, on the who espouse and those who oppose the annexother hand, does Mexico offer, as an indem- ation of Texas upon the ground of the influnity for our losses, to the gallantry and enter- ence which it would exert, in the balance of

prise of our countrymen? This view of the political power, between two great sections subject supposes that the war would be con- of the Union. I conceive that no motive for fined to the United States and Mexico as the the acquisition of foreign territory would be only belligerents. But have we any certain more unfortunate, or pregnant with more guaranty that Mexico would obtain no allies fatal consequences, than that of obtaining it

among the great European powers? ... for the purpose of strengthening one part Assuming that the annexation of Texas is against another part of the common confed-

war with Mexico, is it competent to the eracy. Such a principle, put into practical treaty-making power to plunge this country operation, would menace the existence, if it into war, not only without the concurrence of, did not certainly sow the seeds of a disso!ubut without deigning to consu:t congress, to tion of the Union. It would be to procla’m to which, by the constitution, belongs exclusively the world an insatiable and unquenchable

the power of declaring war? | thirst for foreign conquest or acquisition of ' I have hitherto considered the question territory. For if today Texas be acquired to upon the supposition that the annexation is strengthen one part of the confederacy, toattempted without the assent of Mexico. If morrow Canada may be required to add she yields her consent, that would materially strength to another. And, after that might affect the foreign aspect of the question, if it have been obtained, still other and further did not remove all foreign difficulties. On the acquisitions wou'd become necessary to assumption of that assent, the question would equalize and adjust the balance of political be confined to the domestic considerations power. Finally, in the progress of this spirit which belong to it, embracing the terms and of universal dominion, the part oi the conconditions upon which annexation is pro- federacy which is now weakest, would find posed. I do not think that Texas ought to be itself still weaker from the impossibility. of received into the Union, as an integral part securing new theatres for those peculiar in-

306 DocUMENTS OF AMERICAN Hisrory stitutions which it is charged with being de- the friend of both, between them, each could

sirous to extend. advance its own happiness by such constituBut would Texas, ultimately, really add tions, laws, and measures, as were best

strength to that which is now considered the adapted to its peculiar condition. They would weakest part of the confederacy? If my in- be natural allies, ready, by co-operation, to formation be correct, it would not. Accord- repel any European or foreign attack upon ing to that, the territory of Texas is suscepti- either. Each would afford a secure refuge to ble of a division into five states of convenient the persecuted and oppressed driven into exile size and form. Of these, two only would be _ by either of the others. They would emulate adapted to those peculiar institutions to which each other in improvements, in free instituI have referred, and the other three, lying tions, and in the science of self-government. west and north of San Antonio, being only Whilst Texas has adopted our constitution as

adapted to farming and grazing purposes, the model of hers, she has, in several imfrom the nature of their soil, climate, and portant particulars, greatly improved upon it. productions, would not admit of those insti- Although I have felt compelled, from the tutions. In the end, therefore, there would be nature of the inquiries addressed to me, to two slave and three free states probably extend this communication to a much greater added to the Union. If this view of the soil length than I could have wished, I could not and geography of Texas be correct, it might do justice to the subject, and fairly and fully serve to diminish the zeal both of those who expose my own opinions in a shorter space. In

oppose and those who are urging annexa- conclusion, they may be stated in a few

tion. ... words to be, that I consider the annexation of In the future progress of events, it is Texas, at this time, without the assent of

probable that there will be a voluntary or Mexico, as a measure compromising the naforcible separation of the British North. tional character, involving us certainly in war American possessions from the parent coun- with Mexico, probably with other foreign try. I am strongly inclined to think that it powers, dangerous to the integrity of the will be best for the happiness of all parties Union, inexpedient in the present financial that, in that event, they should be erected condition of the country, and not called for into a separate and independent republic. by any general expression of public opinion. With the Canadian republic on one side, that Iam, respectfully, your obedient servant,

of Texas on the other, and the United States, HENRY CLAY. 165. THE ANNEXATION OF TEXAS Joint Resolution of Congress annexing Texas to the United States March 1, 1845 (U. S. Statutes at Large, Vol. V, p. 797-8) Texas, inhabited largely by Americans, achieved two-thirds vote in the Senate. Fear of English independence from Mexico in 1836; independence _ designs in Texas played a considerable réle in has-

was recognized by the United States and most _ tening annexation. See, J. H. Smith, The Annexaof the powers of Europe, but not by Mexico. tion of Texas; E. D. Adams, British Interests and The project of annexation to the United States Activities in Texas; S. F. Bemis, ed. American was continually agitated, and a treaty of an- Secretaries of State, Vol. V, passim; J. S. Reeves, nexation negotiated in 1844 which had been re- American Diplomacy under Tyler and Polk. jected by the Senate became the major issue of

the campaign of 1844. The triumph of Polk on a Resolved ... , That Congress doth con-

platform calling for the “re-annexation” of sent that the territory properly included Texas, appeared to give a mandate from the within, and rightfully belonging to the ReAmerican people for annexation, and accordingly bjic of Texas, may’ be erected into a new a joint resolution for annexation was pushed State, to be called the State of Texas, with through approved March 1. This ae f f t totobeb was the firstCongress occasion of theand use of the joint @ republican form o government, resolution to achieve a desired result in foreign adopted by the people of said republic, by relations instead of a treaty, which demanded a deputies in convention assembled, with the

TEXAS AND OREGON 307 consent of the existing government, in order which shall be entitled to admission under that the same may be admitted as one of the the provisions of the federal constitution.

States of this Union. And such States as may be formed out of 2. That the foregoing consent of Congress that portion of said territory lying south of is given upon the following conditions, and thirty-six degrees thirty minutes north latiwith the following guarantees, to wit: First, tude, commonly known as the Missouri comSaid State to be formed, subject to the ad- promise line, shall be admitted into the Union justment by this government of all questions with or without slavery, as the people of each of boundary that may arise with other gov- State asking admission may desire. And in ernments; and the constitution thereof, with such State or States as shall be formed out the proper evidence of its adoption by the of said territory north of said Missouri compeople of said Republic of Texas, shall be promise line, slavery, or involuntary servitransmitted to the President of the United tude, (except for crime,) shall be prohibited.

States, to be laid before Congress for its 3. That if the President of the United final action, on or before the first day of States shall in his judgment and discretion January, one thousand eight hundred and deem it most advisable, instead of proceeding forty-six. Second, Said State, when admitted to submit the foregoing resolution to the Reinto the Union, after ceding to the United public of Texas, as an overture on the part States, all public edifices, fortifications, bar- of the United States for admission, to nego-

racks, ports and harbors, navy and navy- tiate with that Republic; then, yards, docks, magazines, arms, armaments, Be it resolved, That a State, to be formed and all other property and means pertaining out of the present Republic of Texas, with to the public defence belonging to said Re- suitable extent and boundaries, and with two public of Texas, shall retain all the public representatives in Congress, until the next funds, debts, taxes, and dues of every kind, apportionment of representation, shall be adwhich may belong to or be due and owing mitted into the Union, by virtue of this act, said republic; and shall also retain all the on an equal footing with the existing States, vacant and unappropriated lands lying within as soon as the terms and conditions of such its limits, to be applied to the payment of the admission, and the cession of the remaining debts and liabilities of said Republic of Texas, Texian territory to the United States shall be and the residue of said lands, after discharg- agreed upon by the Governments of Texas ing said debts and liabilities, to be disposed and the United States: And that the sum of

of as said State may direct; but in no event one hundred thousand dollars be, and the are said debts and liabilities to become a same is-hereby, appropriated to defray the charge upon the Government of the United expenses of missions and negotiations, to States. Third. New States, of convenient size, agree upon the terms of said admission and not exceeding four in number, in addition to cession, either by treaty to be submitted to said State of Texas, and having sufficient pop- the Senate, or by articles to be submitted to ulation, may hereafter, by the consent of said the two houses of Congress, as the President State, be formed out of the territory thereof, may direct.

166. TEXAS AND OREGON } Extract from Polk’s Inaugural Address March 4, 1845 (Richardson, ed. Messages and Papers, Vol. IV, p. 379 ff.) The Democratic campaign of 1844 had been J. S. Reeves, American Diplomacy under Tyler fought on the platform of the “re-annexation of and Polk. Texas and the re-occupation of Oregon’’. Polk, a

confirmed expansionist, announcea his adherence .

to these policies in his inaugural address. Of par- . .. The Republic of Texas has made ticular interest is Polk’s statement that “ovr title known her desire to come into our Union, to

to the country of Oregon is clear and unques- form a part of our Confederacy and enjoy tionable.” See, E. I. McCormac, James K. Polk; with us the blessings of liberty secured and

308 DocUMENTS oF AMERICAN II1Istory guaranteed by our Constitution. Texas was independent state or becomes an ally or once a part of our country—was unwisely dependency of some foreign nation more ceded away to a foreign power—is now inde- powerful than herself. Is there one among pendent, and possesses an undoubted right to our citizens who wou.d not prefer perpetual dispose of a part or the whole of her territory peace with Texas to occasional wars, which so and to merge her sovereignty as a separate often occur between bordering independent and independent state in ours. I congratulate nations? Is there one who would not prefer

my country that by an act of the late Con- free intercourse with her to high duties on gress of the United States the assent of this all our products and manufactures which enter Government has been given to the reunion, her ports or cross her frontiers? Is there one and it only remains for the two countries to who would not prefer an unrestricted comagree upon the terms to consummate an ob- munication with her citizens to the frontier

ject so important to both. obstructions which must occur if she remains

I regard the question of annexation as be- out of the Union? Whatever is good or evil longing exclusively to the United States and in the local institutions of Texas will remain Texas. They are independent powers compe- her own whether annexed to the United States tent to contract, and foreign nations have no or not. None of the present States will be right to interfere with them or to take excep- _ responsible for them any more than they are tions to their reunion. Foreign powers do for the local institutions of each other. They not seem to appreciate the true character of have confederated together for certain speciour Government. Our Union is a confedera- fied objects. Upon the same princip‘e that tion of independent States, whose policy is they would refuse to form a perpetual union peace with each other and all the world. To with Texas because of her local institutions enlarge its limits is to extend the dominions our forefathers would have been prevented of peace over additional territories and in- from forming our present Union. Perceiving creasing millions. The world has nothing to no valid objection to the measure and many fear from military ambition in our Govern- reasons for its adoption vitally affecting the ment. While the Chief Magistrate and the pop- _ peace, the safety, and the prosperity of both ular branch of Congress are elected for short countries, I shall on the broad principle which terms by the suffrages of those millions who formed the basis and produced the adoption must in their own persons bear all the burdens of our Constitution, and not in any narrow

and miseries of war, our Government can _ spirit of sectional policy, endeavor by all not be otherwise than pacific. Foreign powers constitutional, honorable, and appropriate should therefore look on the annexation of means to consummate the expressed will of Texas to the United States not as the con- the people and Government of the United quest of a nation seeking to extend her do- States by the reannexation of Texas to our minions by arms and violence, but as the Union at the earliest practicab'e period.

peaceful acquisition of a territory once her Nor will it become in a less degree my own, by adding another member to our con- duty to assert and maintain by all constitu- | federation, with the consent of that member, tional means the right of the United” States thereby diminishing the chances of war and to that portion of our territory which lies opening to them new and ever-increasing beyond the Rocky Mountains. Our title to the

markets for their products. country of the Oregon is ‘‘clear and unquesTo Texas the reunion is important, because __tionable,” and already are our people prethe strong protecting arm of our Government paring to perfect that title by occupying it

would be extended over her, and the vast with their wives and children. But eighty resources of her fertile soil and genial climate years ago our population was confined on the would be speedily developed, while the safety west by the ridge of the Alleghanies. Within of New Orleans and of our whole southwest- that period—with’n the lifetime, I might say.

ern frontier against hostile aggression, as of some of my hearers—our people, increaswell as the interests of the whole Union, ing to many millions, have filled the eastern

would be promoted by it.... valley of the Mississippi, adventurously asNone can fail to see the danger to our cended the Missouri to its headsprings, and safety and future peace if Texas remains an are already engaged in establish:ng the bless-

PotKk’s REASSERTION OF THE MONROE DocrTRINE 309 ings of self-government in valleys of which for their homes. The increasing facilities of the rivers flow to the Pacific. The world be- intercourse will easily bring the States, of ho-ds the peaceful triumphs of the industry which the formation in that part of our terriof our emigrants. To us belongs the duty of tory can not be long delayed, within the protecting them adequately wherever they sphere of our federative Union. In the meanmay be upon our soil. The jurisdiction of time every obligation imposed by treaty or our laws and the benefits of our republican conventional stipulations should be sacredly institutions shou'd be extended over them in respected... . the distant regions which, they have selected

lo7. THE REASSERTION OF THE MONROE DOCTRINE Extract from President Polk’s First Annual Message to Congress December 2, 1845 (Richardson, ed. Messages and Papers, Vol. IV, p. 398 ff.) This message of Polk’s was, according to Pro- exemption from European interference. The fessor Perkins, “second only in importance” nations of America are equally sovereign and to the original Monroe Doctrine. It inaugurated independent with those of Europe. They posa new era in the history of the doctrine, and was secs the same rights. independent of all forclosely connected with Polk’s policy toward Ore- eign interposition, to make war, to conclude continent” rather than, as in the case of Monroe, Peace, and to regulate their internal affairs. of “these continents”. Oa the revival of the Doc- The people of the United States can not, trine, see, D. Perkins. The Monrve Doctrine, therefore, view with indifference attempts of

gon and Texas. Note that Polk speaks of “this - .

1826-1867, ch. ii, and notes. European powers to interfere with the independent action of the nations on this conti-

... The rapid extension of our settle- nent. The American system of government ments over our territories heretofore unoccu- is entirely different from that of Europe. pied, the addition of new States to our Jealousy among the different sovereigns of Confederacy, the expansion of free principles, Europe, lest any one of them might become

and our rising greatness as a nation are at- too powerful for the rest, has caused them tracting the attention of the powers of anxiously to desire the establishment of what

Europe, and lately the doctrine has been they term the “balance of power.” It can broached in some of them of a “balance of not be permitted to have any application on power” on this continent to check our ad- the North American continent. and especially vancement. The United States. sincerely de- to the United States. We must ever maintain sirous of preserving relations of good under- the princip‘e that the people of this continene standing with all nations, can not in silence alone have the right to decide their own permit any European interference on the destiny. Shou'd any portion of them, constiNorth American continent, and should any — tuting an independent state. propose to unite such interference be attempted will be ready themselves with our Confederacy, this will

to resist it at any and all hazards. be a question for them and us to determine

It is well known to the American people without any foreign interposition. We can and to all nations that this Government has never consent that European powers shall never interfered with the relations subsisting interfere to prevent such a union because it between other governments. We have never might disturb the “balance of power” which made ourselves parties to their wars or their they may desire to maintain upon this con- ' alliances; we have not sought their territories tinent. Near a quarter of a century ago the

by conquest; we have not mingled with principle was distinctly announced to the

parties in their domestic struggles: and be- world. in the annual message of one of my lieving our own form of government to be predecessors. that— the best, we have never attempted to propa- The American continents, by the free and gate it by intrigues, by diplomacy, or by independent condition which they have asforce. We may claim on this continent a like sumed and maintain, are henceforth not to be

310 DocCUMENTS OF AMERICAN History considered as subjects for future coloniza- at this day but the promulgation of a policy

tion by any European powers. which no European power should cherish the This principle will apply with greatly in- disposition to resist. Existing rights of every creased force should any European power at- European nation should be respected, but it

tempt to establish any new colony in North is due alike to our safety and our interests America. In the existing circumstances of that the efficient protection of our laws should the world the present is deemed a proper be extended over our whole territorial limits, occasion to reiterate and reaffirm the prin- and that it should be distinctly announced to ciple avowed by Mr. Monroe and to state my _ the world as our settled policy that no future cordial concurrence in its wisdom and sound European colony or dominion shall with our policy. The reassertion of this principle, es- consent be planted or established on any part pecially in reference to North America, is of the North Amcrican continent. ...

168. POLK’S MESSAGE ON WAR WITH MEXICO May 11, 1846 (Richardson, ed. Messages and Papers, Vol. IV, p. 437 ff.) This notorious message, declaring that “Mex- Congress of the United States, to annex her-

ico... has shed American blood upon the self to our Union, and under these circumAmerican soil,” led toa declaration of war, May stances it was plainly our duty to extend our 13. Whether the territory between the Nueres protection over her citizens and soil.

and the Rio Grande, where this act of war took This force was concentrated at Corpus place, was actually American Territory, is highly Christi h ‘l after I had controversial. In any event Polk and his Cabinet ristl, and remained there until after I hac had determined upon war as carly as May 9, so received such information from Mexico as that the alleged provocation for the war was not rendered it probable, if not certain, that the

the real one, Whether Polk deserved the appella- © Mexican Government would refuse to reccive

tion of “the mendacious Polk” or not is a mat- our envoy. ter of opinion among historians. On the origins Meantime Texas, by the final action of our of the Mexican War, sce, J. H. Smith, L he War Congress, had become an integral part of our with Mexico, Vol.1; J.S. Reeves, The Diplomacy Union, The Congress of Texas, by its act of of Tyler and Polk; E. C. McCormac, James K. December 19, 1836, had declared the Rio del United States and Mexico, Vol. 1; N. W. Stephen- Norte to be the boundary of that Republic, son, Texas and the Mexican War; G. P. Garri- Its jurisdiction had been extended and exer-

Polk; LL.M. Sears, John Slidell; G. L. Rives, The )

gon, Westward Extension, chs. xiii-xv. cised beyond the Nueces. The country be-

tween that river and the Del Norte had been To the Senate and House of Representatives: represented in the Congress and in the conThe existing state of the relations between vention of Texas, had thus taken part in the

the United States and Mexico renders it act of annexation itself, and is now included proper that I should bring the subject to the within one of our Congressional districts. Our

consideration of Congress... . own Congress had, moreover, with great

In my message alt the commencement of unanimity, by the act approved December the present session I informed you that upon 31, 1845, recognized the country beyond the the earnest appeal both of the Congress and Nueces as a part of our territory by including convention of Texas I had ordered an effi- it within our own revenue system, and a revecient military force to take a position “be- nue officer to reside within that district has tween the Nueces and the Del Norte.” This been appointed by and with the advice ‘and had become necessary to meet a threatened consent of the Senate. It became, therefore, invasion of Texas by the Mexican forces, for of urgent necessity to provide for the detense which extensive military preparations had _ of that portion of our country. Accordingly, been made. The invasion was threatened on the 13th of January last instructions were solely because Texas had determined, in ac- issued to the general in command of these

cordance with a solemn resolution of the troops to occupy the left bank of the Del

THE OREGON TREATY 311 Norte. This river, which is the southwestern Rio del Norte, on its left bank, to ascertain boundary of the State of Texas, is an exposed whether the Mexican troops had crossed or

frontier. were preparing to cross the river, “became

The movement of the troops to the Del engaged with a large body of these troops, and Norte was made by the commanding general after a short affair, in which some 16 were under positive instructions to abstain from killed and wounded, appear to have been al] aggressive acts toward Mexico or Mexican — surrounded and compelled to surrender.” . . .

citizens and to regard the relations between The cup of forbearance had been exhausted that Republic and the United States as peace- even before the recent information from the ful unless she should declare war or commit fronticr of the Del Norte. But now, after

acts of hostility indicative of a state of reiterated menaces, Mexico has passed the

war... . boundary of the United States, has invaded

The Mexican forces at Matamoras as-_ our terrilory and shed American blood upon sumed a belligerent attitude, and on the 12th the American soil. She has proclaimed that of April General Ampudia, then in command, hostilities have commenced, and that the two notified General Taylor to break up his camp nations are now at war. within twenty-four hours and to retire be- As war exists, and, notwithstanding all our yond the Nueces River, and in the event of _ efforts to avoid it, exists by the act of Mexico his failure to comply with these demands herself, we are called upon by every considannounced that arms, and arms alone, must eration of duty and patriotism to vindicate decide the question. But no open act of hos- with decision the honor, the rights, and the tility was committed until the 24th of April. interests of our country... .

On that day General Arista, who had suc- In further vindication of our rights and ceeded to the command of the Mexican’ defense of our territory, I invoke the prompt forces, communicated to General Taylor that action of Congress to recognize the existence “he considered hostilities commenced and of the war, and to place at the disposition of should prosecute them.” A party of dragoons the Executive the means of prosecuting the of 63 men and officers were on the same day war with vigor, and thus hastening the restordispatched from the American camp up the ation of peace... .

169. THE OREGON TREATY June 15, 1846 (Malloy, ed. Treaties, Conventions, etc., Vol. I, p. 656) The Oregon Treaty, establishing the boundary ArT. I.. From the point on the forty-ninth between the United States and British America parallel of north latitude, where the boundary along the 49th parallel, concluded half a cen- Jaiq down in existing treaties and conventions

ary of boundary controversy in a manner between the United States and Great Britain ighly favorable to the United Byunates, the terminates. the Ii f between bound btheh convention of 1818 the United StatesStates. and Great the line of boundary Britain had joint occupancy of the territory be- territories of the United States and those of

tween the 42nd and the 54th parallels; this ar- er Britannic Majesty shall be continued rangement had been extended indefinitely in 1827, Westward along the said forty-ninth parallel

with provision for termination on one year’s Of north latitude to the middle of the channotice. A resolution of April 27, 1846 authorized nel which separates the continent from Vanthe presicent to give notice of the termination couver’s Island, and thence southerly through

ton ‘On the Oreson Treaty. see r - wae the middle of the said channel, and of Fuca’s American Diplomacy under Tyler and Polk : Straits, to the Pacific Ocean: Provided, howJ. C. Bell, Opening a Highway to the Pacific, eve r, That the navigation of the whole of the 1838-1846; F. Merk, “Oregon Pioncers and the said channel and straits, south of the fortyBoundary,” American Hist. Rev., Vol. XXIX, nth parallel of north latitude, remain free p. 681 ff.; H. S. Commager, “England and the and open to both parties. Oregon Treaty of 1846,” Oregon Historical Qt. ArT. IJ. From the point at which the forty-

Vol. XXVIII. ninth parallel of north latitude shall be found

312 DOCUMENTS OF AMERICAN II1story to intersect the great northern branch of the the terr tory south of the forty-ninth parallel

Columbia River, the navigation of the said of north latitude, as provided in the first branch shall be free and open to the Hudson’s article of this treaty, the possessory rights of Bay Company, and to all British subjects the Hudson’s Bay Company, and of all Brittrading with the same, to the point where the _ ish subjects who may be already in the occusaid branch meets the main stream of the Co- pation of land or other property lawfully aclumbia, and thence down the said main stream quired within the said territory, shall be

to the ocean, with free access into and respected.

through the said river or rivers, it being un- Art. IV. The farms, lands, and other propderstood that all the usual portages along erty of every description, belonging to the the line thus described shall, in like manner, Puget’s Sound Agricultural Company, on the be free and open. In navigating the said river north side of the Co:umbia River, shall be or rivers, British subjects, with their goods confirmed to the said company. In case, howand produce, shall be treated on the same ever, the situation of those farms and lands footing as citizens of the United States: it should be considered by the United States to being, however, always understood that noth- be of public and political importance, and the

ing in this article shall be construed as pre- United States government should signify a venting, or intended to prevent, the govern- desire to obtain possession of the whole, or ment of the United States from making any of any part thereof, the property so required regu'ations respecting the navigation of the shall be trans. 1852, declared that the frequent service or labor, but shall be delivered up, Violations of the Constitution of the United on claim of the party to whom such service States by the Federal Government. and itsen- or labor may be due.” croachments upon the reserved rights of the This stipulation was so material to the comStates, fully justified this State in their with- pact that without it that compact would not drawal from the Federal Union; but in defer- have been made. The greater number of the ence to the opinions and wishes of the other contracting parties held slaves, and they had Slaveholding States, she forbore at that time previously evinced their estimate of the value to exercise this right. Since that time these of such a stipulation by making it a condition encroachments have cont:nued to increase, in the Ordinance for the government of the and further forbearance ceases to be a vir- territory ceded by Virginia, which obligations,

tue. and the laws of the General Government, And now the State of South Carolina hav- have ceased to effect the objects of the Con-

ing resumed her separate and equal place stitution. The States of Maine, New Hampamong nations, deems it due to herself, to shire, Vermont, Massachusetts, Connecticut, the remaining United States of America, and Rhode Island, New York, Pennsylvania, Ilito the nations of the world, that she should no’s, Indiana, Michigan, Wisconsin and Lowa, declare the immediate causes which have led have enacted laws which either nullify the

to this act. acts of Congress, or render useless any atIn 1787, Deputies were appointed by the tempt to execute them. In many of these States to revise the artic'es of Confederation; States the fugitive is discharged from the and on 17th September, 1787, these Deputies service of labor claimed, and in none of them recommended, for the adoption of the States, has the State Government complied with the the Articles of Union, known as the Consti- stipulation made in the Constitution. The

tution of the United States. State of New Jersey, at an early day, passed . . . Thus was established by compact be- a law in conformity with her constitutional tween the States, a Government with defined obligation; but the current of Anti-Slavery

objects and powers, limited to the express feeling has led her more recently to enact words of the grant.... We hold that the laws which render inoperative the remedies Government thus established is subject to the provided by her own laws and by the laws of two great princip!es asserted in the Declara- Congress. In the State of New York even the

tion of Independence; and we ho!d further, right of transit for a slave has been denied that the mode of its formation subjects it to by her tribunals; and the States of Ohio and a third fundamental principie, namely, the law Iowa have refused to surrender to Justice of compact. We maintain that in every com- fugitives charged with murder, and with inpact between two or more parties, the obli- citing servile insurrection in the State of Virgation is mutual; that the failure of one of ginia. Thus the constitutional compact has the contracting parties to perform a material been deliberately broken and disregarded by part of the agreement, entirely releases the the non-slaveholding States; and the conseobligation of the other; and that, where no quence fo-lows that South Carolina is released arbiter is provided, each party is remitted to from her obligation. .. . his own judgment to determine the fact of We affirm that these ends for which this

failure, with all its consequences. Government was instituted have been de-

In the present case, that fact is established feated, and the Government itself has been with certainty. We assert that fourteen of the destructive of them by the action of the nonStates have deliberately refused for years past slaveho:ding States. Those States have asto fulfil their constitutional obligations, and sumed the right of deciding upon the prowe refer to their own statutes for the proof. priety of our domestic institutions; and have

374 DocUMENTS OF AMERICAN History denied the rights of property established in votes have been used to inaugurate a new polfifteen of the States and recognized by the icy, hostile to the South, and destructive of Constitution; they have denounced as sinful _ its peace and safety.

the institution of Slavery; they have permit- On the 4th of March next this party will ted the open establishment among them of _ take possession of the Government. It has societies, whose avowed object is to disturb announced that the South shall be excluded the peace of and eloin the property of the from the common territory, that the Judicial citizens of other States. They have encour- tribunal shall be made sectional, and that a aged and assisted thousands of our slaves to war must be waged against Slavery until it leave their homes; and those who remain, — shall cease throughout the United States.

have been incited by emissaries, books, and The guarantees of the Constitution will

pictures, to servile insurrection. then no longer exist; the equal rights of the For twenty-five years this agitation has States will be lost. The Slaveholding States been steadily increasing, until it has now se- will no longer have the power of self-govern-

cured to its aid the power of the common ment, or self-protection, and the Federal Government. Observing the forms of the Government will have become their enemy.

Constitution, a sectional party has found Sectional interest and animosity will

within that article establishing the Executive deepen the irritation; and all hope of remedy

Department, the means of subverting the is rendered vain, by the fact that the public Constitution itself. A geographical line has opinion at the North has invested a great been drawn across the Union, and all the political error with the sanctions of a more States north of that line have united in the erroneous religious belief. election of a man to the high office of Presi- We, therefore, the people of South Carodent of the United States whose opinions and lina, by our delegates in Convention assempurposes are hostile to Slavery. He is to be bled, appealing to the Supreme Judge of the intrusted with the administration of the com- world for the rectitude of our intentions, have mon Government, because he has declared solemnly declared that the Union heretofore

that “Government cannot endure perma- existing between this State and the other nently half slave, half free,” and that the States of North America is dissolved, and public mind must rest in the belief that Slav- that the State of South Carolina has resumed ery is in the course of ultimate extinction. her position among the nations of the world, This sectional combination for the subver- as a separate and independent state, with full sion of the Constitution has been aided, in power to levy war, conclude peace, contract some of the States, by elevating to citizenship alliances, establish commerce, and to do all persons who, by the supreme law of the land, other acts and things which independent are incapable of becoming citizens; and their States may of right do.

200. MAYOR FERNANDO WOOD’S RECOMMENDATION FOR THE SECESSION OF NEW YORK CITY January 6, 1861 (E. McPherson, ed. The Political History of the Great Rebellion, p. 42 ff.) The financial and commercial interests of New tory of New York State during the period of York City, with their heavy investments in the the Civil War. South and in the textile industries, were particularly hostile to a war policy on the part of To the Honorable the Common Council: the Federal government. Thurlow Weed made Gentlemen: We are entering upon the public

strenuous efforts to commit Lincoln to a com- duties of the year under circumstances as promise policy; Governor Morgan of New York unprecedented as they are gloomy and pain-

urged moderation; and even Horace Greeley ful to contemplate For historical background, see, D. IN Alexander, It would scem that a dissolution of the Political History of the State of New York, Federal Union is inevitable. . . . . Vol. II, ch. xxvi; S. D. Brummer, Political His- If these forebodings shall be realized, and

let the “erring sisters go in peace.” oT, .

Mayor FERNANDO WoonD’s RECOMMENDATION 375 a separation of the States shall occur, mo- the State has been used by the latter to our mentous considerations will be presented to injury. The Legislature, in which the present the corporate authorities of this city. We partizan majority has the power, has become must provide for the new relations which will an instrument by which we are plundered to necessarily grow out of the new condition of _ enrich their speculators, lobby agents, and

public affairs. Abolition politicians... . It will not only be necessary for us to set- How we shall rid ourselves of this odious

tle the relations which we shall hold to other and oppressive connection, it is not for me to

cities and States, but to establish if we can, - determine. It is certain that a dissolution new ones with a portion of our own State. cannot be peacefully accomplished, except by Being the child of the Union, having drawn _ the consent of the Legislature itself. Whether our sustenance from its bosom, and arisen to this can be obtained or not, is, in my Judgeour present power and strength through the ment, doubtful. Deriving so much advantage vigor of our mother—when deprived of her from its power over the city, it is not probamaternal advantages, we must rely upon our _ ble that a partizan majority will consent to a own resources and assume a position predi- separation—and the resort to force by viocated upon the new phase which public affairs lence and revolution must not be thought of will present, and upon the inherent strength for an instant. We have been distinguished which our geographical, commercial, politi- as an orderly and law-abiding people. Let us cal, and financial preéminence imparts to us. do nothing to forfeit this character, or to With our aggrieved brethren of the Slave add to the present distracted condition of States, we have friendly relations and a com- __ public affairs.

mon sympathy. We have not participated in Much, no doubt, can be said in favor of the the warfare upon their constitutional rights justice and policy of a separation. . . . Why or their domestic institutions. . . . Our ships should not New York city, instead of suphave penetrated to every clime, and so have porting by her contributions in revenue twoNew York capital, energy, and enterprise thirds of the expenses of the United States, found their way to every State, and, indeed, become also equally independent? As a free

to almost every county and town of the city, with but nominal duty on imports, her

American Union. If we have derived suste- local Government could be supported without nance from the Union, so have we in return — taxation upon her people. Thus we could live disseminated blessings for the common bene-__ free from taxes, and have cheap goods nearly fit of all. Therefore, New York has a right duty free. In this she would have the whole to expect, and should endeavor to preserve a and united support of the Southern States, continuance of uninterrupted intercourse with as well as all the other States to whose inter-

every section. ests and rights under the Constitution she It is, however, folly to disguise the fact has always been true. that, judging from the past, New York may It is well for individuals or communities have more cause of apprehension from the to look every danger squarely in the face and ageressive legislation of our own State than to meet it calmly and bravely. As dreadful from external dangers. We have already suf- as the severing of the bonds that have hithfered largely from this cause. For the past erto united the States has been in contemplafive years, our interests and corporate rights tion, it is now apparently a stern and inevihave been repeatedly trampled upon. Being an table fact. We have now to meet it with all integral portion of the State, it has been the consequences, whatever they may be. If assumed, and in effect tacitly admitted on the Confederacy is broken up, the Governour part by nonresistance, that all political ment is dissolved, and it behooves every disand governmental power over us rested in tinct community, as well as every individual, the State Legislature. Even the common right to take care of themselves.

of taxing ourselves for our own government, When Disunion has become a fixed and has been yielded, and we are not permitted to certain fact, why may not New York disrupt

do so without this authority. .. . the bands which bind her to a venal and Thus it will be seen that the political con- corrupt master—to a people and a party that nection between the people of the city and have plundered her revenues, attempted to

376 DOCUMENTS OF AMERICAN IIIstTory : ruin her commerce, taken away the power of ably if we can, forcibly if we must,” let me self-government, and destroyed the Confed- not be misunderstood. The redress can be eracy of which she was the proud Emp’re found only in appeals to the magnanimity of City? Amid the gloom which the present and the people of the who'e State. The events of prospective condition of things must cast the past two months have no doubt effected over the country, New York, as a Free City, a change in the popular sentiment of the may shed the only light and hope of a future State and National politics. This change may reconstruction of our once blessed Confed- bring us the desired relief, and we may be

eracy. - able to obtain a repeal of the law to which 1] But I am not prepared to recommend the have referred, and a consequent restoration violence implied in these views. In stating of our corporate rights.

this argument in favor of freedom ‘“‘peace- I'ERNANDO Woop, Mayor. 201. THE CONSTITUTION OF THE CONFEDERATE STATES OF AMERICA March 11, 1861

(Richardson, ed. Afessages and Papers of the Confederacy, Vol. I, p. 37 ff.) A Provisional Constitution had been adopted States, shall be allowed to vote for any offFebruary 8, 1861: it is reproduced in Jefferson cer, civil or political, State or Federal. Davis, Rise and Fall of the Confederate Govern- (2) No person shall be a Representative ment, Vol. II, append x K. The ‘permanent Con- who shall not have attained the age of stitution closely resembled the Constitution of the twenty-five years, and be a citizen of the United States. Even the African slave trade was Confederate Stat d who shall h prohibited. Professor Stephenson observes that on ederate ates, an Who shall not, w cn “the framers of 1861 left unstated most of their ected, be an inhabitant of that State in distinctive views”. See, N. W. Stephenson, The which he shall be chosen.

Day of the Confederacy, ch. i. (3) Represcntatives and direct taxes shall be apportioned among the several States

WE, the people of the Confederate States, which may be included within this Confedereach State acting in its sovereign and inde- acy, according to their respective numbers, pendent character, in order to form a perma- which shall be determined by adding to the nent federal government, establish justice, in- | whole number of free persons, including those

sure domestic tranquillity, and secure the bound to service for a term of years, and blessings of liberty to ourselves and our pos- excluding Indians not taxed, three-fifths of all terity—invoking the favor and guidance of — slaves. The actual enumeration shall be made Almighty God—do ordain and establish this within three years after the first meeting of

Constitution for the Confederate States of the Congress of the Confederate States, and

America. within every subsequent term of ten years, in such manner as they shall by law direct.

ART. I The number of Representatives shall not exSec. 1.—All legislative powers herein dele- ceed one for every fifty thousand, but each gated shall be vested in a Congress of the State shall have at least one Representative; Confederate States, which shall consist of a and until such enumeration shall be made,

Senate and House of Representatives. the State of South Carolina shall be entitled Sec. 2. (1) The House of Representatives to choose six; the State of Georgia ten; the shall be chosen every second year by the peo- State of Alabama nine; the State of Florida ple of the several States; and the electors in two; the State of Mississippi seven; the State each State shall be citizens of the Confederate of Louisiana six; and the State of Texas six. States, and have the qualifications requisite (4) When vacencies happen in the reprefor electors of the most numerous branch of _ sentation of any State, the Executive authorthe State Legislature; but no person of for- ity thereof shall issue writs of election to fill

eign birth, not a citizen of the Confederate such vacancies. |

CONSTITUTION OF THE CONFEDERATE STATES 377 (5) The House of Representatives shall shall not extend further than removal from choose their Speaker and other officers; and office, and disqualification to ho!d and enjoy shall have the so'e power of impeachment; any office of honor, trust, or profit, under the except that any judicial or other federal officer Confederate States; but the party convicted resident and acting soley within the limits of — shall, nevertheless, be liable to and subject to any State, may be impeached by a vote of indictment, trial, judgment, and punishment two-thirds of both branches of the Legisla- according to law.

ture thereof. SEC. 4. (1) The times, places, and manner Sec. 3. (1) The Senate of the Confederate of holding elections for Senators and RepreStates shall be composed of two Senators sentatives, shal: be prescribed in each State from each State, chosen for six years by the by the Legislature thereof, subject to the Legislature thereof, at the regular session provisions of this Constitution; but the Connext immediately preceding the commence-- gress may, at any time, by law, make or ment of the term of service; and each Sen- alter such regulations, except as to the times

ator shall have one vote. and p:aces of choosing Senators.

(2) Immediately after they shall be assem- (2) The Congress shall assemble at least _ bled, in consequence of the first election, once in every year; and such meeting shall they shall be divided as equally as may be be on the first Monday in December, unless into three classes. The seats of the Senators they shall, by law, appoint a different day. of the first class shall be vacated at the ex- SEC. 5. (1) Each House shall be the judge piration of the second year; of the second _ of the elections, returns, and qualifications of class at the expiration of the fourth year; and its own members, and a majority of each of the third class at the expiration of the — shall constitute a quorum to do business; but sixth year; so tnat one-third may be chosen a smaller number may adjourn from day to every second year; and if vacancies happen day, and may be authorized to compel the by resignation or otherwise during the recess attendance of absent members, in such manof the Legislature of any State, the Executive ner and under such penalties as each House thereof may make temporary appointments may provide.

until the next meeting of the Legislature, (2) Each House may determine the rules which shall then fill such vacancies. of its proceedings, punish its members for (3) No person shall be a Senator, who disorderly behavior, and, with the concurshall not have attained the age of thirty years, rence of two-thirds of the whole number, ex-

and be a citizen of the Confederate States: pel a member. and who shall not, when elected, be an in- (3) Each House shall keep a journal of its habitant of the State for which he shall be proceedings, and from time to time publish

chosen. the same, excepting such part as may in its

(4) The Vice-President of the Confederate judgment require secrecy, and the ayes and States shall be President of the Senate, but nays of the members of either House, on any shall have no vote, unless they be equally di- question, shall, at the desire of one-fifth of

vided. those present, be entered on the journal.

(5) The Senate shall choose their other (4) Neither House, during the session of

officers, and a'so a President pro tempore, in Congress, shall, without the consent of the the absence of the Vice-President, or when other, adjourn for more than three days, nor

he shall exercise the office of President of to any other p!ace than that in which the

the Confederate States. two Houses shall be sitting.

(6) The Senate shall have so'e power to SEc. 6. (1) The Senators and Representatry all impeachments. When sitting for that tives shall receive a compensation for their purpose they shall be on oath or affirmation. services, to be ascertained by law, and paid When the President of the Confederate States out of the Treasury of the Confederate is tried, the Chief-Justice shall preside; and States. They shall, in all cases except treason no person shall be convicted without the con- and breach of the peace, be privi.eged from currence of two-thirds of the members pres- arrest during their attendance at the session

ent. of their respective Houses, and in going to (7) Judgment in cases of impeachment and returning from the same; and for any

378 DocUMENTS OF AMERICAN HISTORY speech or debate in either House, they shall in case of other bills disapproved by the

not be questioned in any other place. President. :

(2) No Senator or Representative shall, (3) Every order, resolution, or vote, to

during the time for which he was elected, be which the concurrence of both Houses may appointed to any civil office under the author- be necessary (except on questions of adity of the Confederate States, which shall journment) shall be presented to the Presi-

have been created, or the emoluments dent of the Confederate States; and before whereof shall have been increased during the same shall take effect shall be approved such time; and no person holding any office by him; or being disapproved by him, may under the Confederate States shall be a mem- be repassed by two-thirds of both Houses, ber of either House during his continuance in according to the rules and limitations preoffice. But Congress may, by law, grant to — scribed in case of a bill. the principal officer in each of the Executive SEc. 8.—The Congress shall have power—

Departments a seat upon the floor of either (1) To lay and collect taxes, duties, imHouse, with the privilege of discussing any posts, and excises, for revenue necessary to

measure appertaining to his department. pay the debts, provide for the common deSec. 7. (1) All bills for raising revenue shall fence, and carry on the Government of the originate in the House of Representatives; Confedcrate States; but no bounties shall be but the Senate may propose or concur with granted from the treasury; nor shall any

amendments as on other bills. duties or taxes on importations from foreign

(2) Every bill which shall have passed both nations be laid to promote or foster any Houses shall, before it becomes a law, be pre- branch of industry; and all duties, .imposts, sented to the President of the Confederate and excises shall be uniform throughout the States; if he approve he shall sign it; but if Confederate States.

not, he shall return it with his objections to (2) To borrow money on the credit of the that House in which it shall have originated, Confederate States. who shall enter the objections at large on (3) To regulate commerce with foreign their journal, and proceed to reconsider it. If, mations, and among the several States, and after such reconsideration, two-thirds of that with the Indian tribes; but neither this, nor House shall agree to pass the bill, it shall be any other clause contained in the Constitusent, together with the objections, to the tion shall be construed to delegate the power other House, by which it shall likewise be to Congress to appropriate money for any reconsidered, and if approved by two-thirds internal improvement intended to facilitate of that House, it shall become a law. But in commerce; except for the purpose of furall such cases, the votes of both Houses shall _nishing lights, beacons, and buoys, and other

be determined by yeas and nays, and the aids to navigation upon the coasts, and the names of the persons voting for and against improvement of harbors, and the removing the bill shall be entered on the journal of each of obstructions in river navigation, in all House respectively. If any bill shall not be which cases, such duties shall be laid on the returned by the President within ten days navigation facilitated thereby, as may be nec(Sundays excepted) after it shall have been essary to pay the costs and expenses thereof. presented to him, the same shall be a law, (4) To establish uniform laws of naturallin like manner as if he had signed it, unless zation, and uniform laws on the subject of the Congress, by their adjournment, prevent bankruptcies throughout the Confederate its return; in which case it shall not be a law. States, but no law of Congress shall discharge The President may approve any appropria- any debt contracted before the passage of the tion and disapprove any other appropriation same.

in the same bill. In such case he shall, in (5) To coin money, regulate the value signing the bill, designate the appropriations thereof, and of foreign coin, and fix the

disapproved; and shall return a copy of such standard of weights and measures.

appropriations, with his objections, to the (6) To provide for the punishment of coun-

House in which the bill shall have originated; _terfeiting the securities and current coin of and the same proceedings shall then be had as__ the Confederate States,

CONSTITUTION OF THE CONFEDERATE STATES 379 (7) To establish post-offices and post- Sec. 9. (1) The importation of negroes vt routes; but the expenses of the Post-office De- the African race, from any foreign country,

partment, after the first day of March, in other than the slaveholding States or Territhe year of our Lord eighteen hundred and _ tories of the United States of America, is sixty-three, shall be paid out of its own reve- hereby forbidden; and Congress is required

nues. to pass such laws as shall effectually prevent (8) To promote the progress of science the same.

and useful arts, by securing for limited times (2) Congress shall also have power to proto authors and inventors the exclusive right hibit the introduction of slaves from any

to their respective writings and discoveries. State not a member of, or Territory not (9) To constitute tribunals inferior to the belonging to, this Confederacy.

Supreme Court. (3) The privilege of the writ of habeas (10) To define and punish piracies and corpus shall not be suspended, unless when felonies committed on the high seas, and in cases of rebellion or invasion the public

offences against the law of nations. safety may require it.

(11) To declare war, grant letters of mar- (4) No bill of attainder, or ex post facto que and reprisal, and make rules concerning law, or law denying or impairing the right of

captures on land and water. property in negro slaves shall be passed.

(12) To raise and support armies; but no (5) No capitation or other direct tax shall appropriation of money to that use shall be _ be laid unless in proportion to the census or

for a longer term than two years. enumeration hereinbefore directed to be (13) To provide and maintain a navy. taken.

(14) To make rules for government and (6) No tax or duty shall be laid on articles regulation of the land and naval forces. exported from any State, except by a vote of (15) To provide for calling forth the mili- two-thirds of both Houses. tia to execute the laws of the Confederate (7) No preference shall be given by any States; suppress insurrections, and repel in- regulation of commerce or revenue to the

vasions. ports of one State over those of another.

(16) To provide for organizing, arming, (8) No money shall be drawn from the

and disciplining the militia, and for governing treasury but in consequence of appropriations

such part of them as may be employed in the made by law; and a regular statement and service of the Confederate States; reserving account of the receipts and expenditures of to the States, respectively, the appointment all public money shall be published from time of the officers, and the authority of training to time.

the militia according to the discipline pre- (9) Congress shall appropriate no money

scribed by Congress. from the treasury except by a vote of two-

(17) To exercise exclusive legislation, in thirds of both Houses, taken by yeas and all cases whatsoever, over such district (not nays, unless it be asked and estimated for exceeding ten miles square) as may, by ces- by some one of the heads of departments, and sion of one or more States, and the accept- submitted to Congress by the President; or ance of Congress, become the seat of the for the purpose of paying its own expenses Government of the Confederate States; and and contingencies; or for the payment of to exercise a like authority over all places claims against the Confederate States, the purchased by the consent of the Legislature justice of which shall have been judicially of the State in which the same shall be, for declared by a tribunal for the investigation the erection of forts, magazines, arsenals, of claims against the Government, which it is dock-yards, and other needful buildings, and hereby made the duty of Congress to estab(18) To make all laws which shall be nec- __ lish.

essary and proper for carrying into execution (10) All bills appropriating money shall the foregoing powers, and all other powers specify in federal currency the exact amount vested by this Constitution in the Govern- of each appropriation and the purposes for ment of the Confederate States, or in any which it is made; and Congress shall grant

department or officer thereof. no extra compensation to any public con-

380 DOCUMENTS OF AMERICAN IIIstory tractor, officer, agent, or servant, after such be informed of the nature and cause of the contract shall have been made or such service accusation; to be confronted with the wit-

rendered. nesses against him; to have compulsory (11) No title of nobility shall be granted process for obtaining witnesses in his favor;

by the Confederate States; and no person and to have the assistance of counsel for holding any office of profit or trust under his defence. them shall, without the consent of the Con- (18) In suits at common law, where the gress, accept of any present, emoluments, of- value in controversy shall exceed twenty dol-

fice, or title of any kind whatever, from any lars, the right of trial by jury shall be pre-

king, prince, or foreign state. served; and no fact so tried by a jury shall (12) Congress shall make no law respect- be otherwise reéxamined in any court of the ing an establishment of religion, or prohibit- Confederacy, than according to the rules of ing the free exercise thereof; or abridging the the common law.

freedom of speech or of the press; or the (19) Excessive bail shall not be required, right of the peop'e peaceably to assemble and nor excessive fines imposed, nor cruel or un-

petition the Government for a redress of usual punishment inflicted.

grievances. (20) Every law, or resolution having the

(13) A well-regulated militia being neces- force of law, shall relate to but one subject, sary to the security of a free State, the right and that shall be expressed in the title. of the people to keep and bear arms shall not SEC. 10. (1) No State shall enter into any

be infringed. treaty, alliance, or confederation; grant let(14) No so'dier shall, in time of peace, be ters of marque and reprisals; coin money; quartered in any house without the consent make any thing but go:d and silver coin a of the owner; nor in time of war, but in a tender in payment of debts: pass any bill of

manner prescribed by law. attainder, or ex post facto law, or law impair-

(15) The right of the people to be secure ing the obligation of contracts; or grant any in their persons, houses, papers, and against title of nobility. unreasonable searches and seizures, shall not (2) No State shall, without the consent of be violated; and no warrant shall issue but Congress, lay any imposts or duties on imupon probable cause, supported by oath or ports or exports, except what may be absoaffirmation, and particularly describing the lutely necessary for executing its inspection place to be searched, and the person or things laws; and the net produce of all duties and

to be seized. imposts, laid by any State on imports or ex-

(16) No person shall be held to answer for ports, shall be for the use of the Treasury of a capital or otherwise infamous crime, unless the Confederate States: and all such laws on a presentment or indictment of a grand _ shall be subject to the revision and control of jury, except In cases arising in the land or Congress. naval forces, or in the militia, when in actual (3) No State shall, without the consent of service, in time of war, or public danger; nor Congress, lay any duty of tonnage, except on shall any person be subject for the same of- _sea-going vessels, for the improvement of its fence to be twice put in Jeopardy of life or rivers and harbors navigated by the said veslimb; nor be compelled in any criminal case sels: but such duties shall not conflict with to be a witness against himself; nor be de- any treaties of the Confederate States with prived of life, liberty, or property, without foreign nations; and any surplus of revenue, due process of law; nor shall any private’ thus derived, shall, after making such improperty be taken for public use without just provement, be paid into the common treas-

compensation. ury; nor shall any State keep troops or ships

(17) In all criminal prosecutions the ac- of war in time of peace, enter into any agreecused shall enjoy the right to a speedy and ment or compact with another State, or with public trial, by an impartial jury of the State a foreign power, or engage in war, unless and district wherein the crime shall have actually invaded, or in such imminent danger been committed, which district shall have as will not admit of delay. But when any been previously ascertained by law, and to river divides or flows through two or more

CONSTITUTION OF THE CONFEDERATE STATES 381 States, they may enter into compacts with toa choice. And if the House of Representaeach other to improve the navigation thereof. tives shall not choose a President, whenever the right of choice shall devolve upon them,

ART. II. before the fourth day of March next follow-

SEC. 1. (1) The Executive power shaJ] be ing, then the Vice-President shall act as vested in a President of the Confederate President, as in case of the death, or other States of America. He and the Vice-President constitutional disability of the President.

shall hold their offices for the term of six (4) The person having the greatest number years; but the President shall not be reéligi- of votes as Vice-President shall be the Viceble. The President and Vice-President shall President, if such number be a majority of

be elected as follows: the whole number of electors appointed; and

(2) Each State shall appoint, in such man- if no person have a majority, then from the ner as the Legislature thereof may direct, a two highest numbers on the list, the Senate number of electors equal to the whole num- _ shall choose the Vice-President; a quorum ber of Senators and Representatives to which for the purpose shall consist of two-thirds of the State may be entitled in Congress; but the whole number of Senators, and a majority no Senator or Representative, or person hold- of the whole number shall be necessary for

ing an office of trust or profit under the a choice. Confederate States, shall be appointed an (5) But no person constitutionally ineligi-

elector. ble to the office of President shall be eligible

(3) The electors shall meet in their respec- to that of Vice-President of the Confederate tive States and vote by ballot for President States. and Vice-President, one of whom, at least. (6) The Congress may determine the time shall not be an inhabitant of the same State of choosing the electors. and the day on with themselves; they shall name in their which they shall give their votes; which day ballots the person voted for as President, and shall be the same throughout the Confederin distinct ballots the person voted for as ate States. Vice-President, and they shall make distinct (7) No person except a natural born citizen lists of all persons voted for as President,and of the Confederate States. or a citizen of all persons voted for as Vice-President, thereof, at the time of the adoption of this and of the number of votes for each; which Constitution, or a citizen thereof born in the list they shall sign, and certify, and transmit, United States prior to the 20th December. sealed, to the Government of the Confederate 1860, shall be eligible to the office of PresiStates, directed to the President of the Sen- dent; neither shall any person be eligible to ate. The President of the Senate shall, in that office who shall not have attained the the presence of the Senate and House of age of thirty-five years, and been fourteen Representatives, open all the certificates, and years a resident within the limits of the Conthe votes shall then be counted; the person _ federate States, as they may exist at the time

having the greatest number of votes for of his election. President shall be the President, if such num- (8) In case of the removal of the Presiber be a majority of the whole number of dent from office, or of his death, resignation. electors appointed; and if no person shall or inability to discharge the powers and duties have such a majority, then, from the persons of the said office, the same shall devolve on having the highest numbers, not exceeding the Vice-President: and the Congress may, three, on the list of those voted for as Presi- by law, provide for the case of the removal,

dent, the House of Representatives shall death, resignation, or inability both of the

choose immediately, by ballot, the President. President and the Vice-President, declaring But, in choosing the President, the votes shall what officer shall then act as President, and be taken by States, the Representative from such officer shall then act accordingly until each State having one vote; a quorum for the disability be removed or a President shall this purpose shall consist of a member or _ be elected.

members from two-thirds of the States, and (9) The President shall, at stated times, a majority of all the States shall be necessary _ receive for his services a compensation, which

382 DOCUMENTS OF AMERICAN History . shall neither be increased nor diminished dur- (4) The President shall have power to fill ing the period for which he shall have been all vacancies that may happen during the elected; and he shall not receive within that recess of the Senate, by granting commissions

period any other emolument from the Con- which shall expire at the end of the next

federate States, or any of them. session; but no person rejected by the Senate (10) Before he enters on the execution of _ shall be reappointed to the same office during the duties of his office, he shall take the fol- their ensuing recess.

lowing oath or affirmation: SEC. 3. (1) The President shall, from time “I do solemnly swear (or affirm) that I will to time, give to the Congress information of

faithfully execute the office of President of the state of the Confederacy, and recomthe Confederate States, and will, to the best mend to their consideration such measures as of my ability, preserve, protect, and defend he shall judge necessary and expedient; he

the Constitution thereof.” may, on extraordinary occasions, convene

SEC. 2. (1) The President shall be com- both Houses, or either of them; and, in case mander-in-chief of the army and navy of the of disagreement between them, with respect Confederate States, and of the militia of the to the time of adjournment he may adjourn

several States, when called into the actual them to such time as he shall think proper; service of the Confederate States; he may re- he shall receive ambassadors and other public

quire the opinion, in writing, of the principal ministers; he shall take care that the laws officer in each of the Executive Departments, be faithfully executed, and shall commission upon any subject relating to the duties of all the officers of the Confederate States.

their respective offices; and he shall have SEc. 4. (1) The President and Vice-Presipower to grant reprieves and pardons for of- dent, and all civil officers of the Confederate fences against the Confederate States, except States, shall be removed from office on im-

in cases of impeachment. peachment for, or conviction of, treason, (2) He shall have power, by and with the _ bribery, or other high crimes and misdemean-

advice and consent of the Senate, to make ors. treaties, provided two-thirds of the Senators’

present concur; and he shall nominate, and, ART. IIL. by and with the advice and consent of the SEC. 1. (1) The judicial power of the ConSenate, shall appoint ambassadors, other pub- federate States shall be vested in one Sulic ministers, and consuls, Judges of the Su- perior Court, and in such inferior courts as preme Court, and all other officers of the the Congress may from time to time ordain Confederate States, whose appointments are’ and establish. The judges, both of the Sunot herein otherwise provided for, and which preme and inferior courts, shall hold their shall be established by law; but the Congress offices during good behavior, and shall, at may by law vest the appointment of such stated times, receive for their services a cominferior officers, as they think proper, in the pensation, which shall not be diminished durPresident alone, in the courts of law, or in jing their continuance in office.

the heads of departments. Sec. 2. (1) The judicial power shall extend

(3) The principal officer in each of the to all cases arising under the Constitution, the Executive Departments, and all persons con- laws of the Confederate States, or treaties nected with the diplomatic service, may be made or which shall be made under their removed from office at the pleasure of the authority; to all cases affecting ambassadors, President. All other civil officers of the Ex- other public ministers, and consuls ; to all ecutive Department may be removed at any cases of admiralty or maritime jurisdiction; time by the President, or other appointing to controversies to which the Confederate power, when their services are unnecessary, States shall be a party; to controversies beor for dishonesty, incapacity, inefficiency, tween two or more States; between a State misconduct, or neglect of duty; and when so and citizens of another State, where the removed, the removal shall be reported to State is plaintiff; between citizens claiming the Senate, together with the reasons there- lands under grants of different States, and

for. between a State or the citizens thereof, and

CONSTITUTION OF THE CONFEDERATE STATES 383 foreign States, citizens, or subjects; but no State from which he fled, be delivered up to State shall be sued by a citizen or subject of | be removed to the State having jurisdiction

any foreign State. of the crime.

(2) In all cases affecting ambassadors, (3) No slave or other person held to servother public ministers, and consuls, and ice or labor in any State or Territory of the those in which a State shall be a party, the Confederate States, under the laws thereof. Supreme Court shall have original jurisdic- escaping or unlawfully carried into another. tion. In all the other cases before mentioned. shall, in consequence of any law or regulathe Supreme Court shall have appellate juris- tion therein, be discharged from such service diction, both as to law and fact, with such or labor; but shall be delivered up on claim exceptions, and under such regulations as the of the party to whom such slave belongs, or

Congress shall make. to whom such service or labor may be due.

(3) The trial of all crimes, except in cases Sec. 3. (1) Other States may be admitted of impeachment, shall be by jury, and such into this Confederacy by a vote of two-thirds

trial shall be held in the State where the of the whole House of Representatives, and said crimes shall have been committed; but two-thirds of the Senate, the Senate voting when not committed within any State, the by States; but no new State shall be formed trial shall be at such place or places as the or erected within the jurisdiction of any other

Congress may by law have directed. State; nor any State be formed by the juncSec. 3. (1) Treason against the Confeder- tion of two or more States, or parts of ate States shall consist only in levying war States, without the consent of the Legislaagainst them, or in adhering to their enemies, tures of the States concerned as well as of giving them aid and comfort. No person shall the Congress.

be convicted of treason unless on the testi- (2) The Congress shall have power to dismony of two witnesses to the same overt act, pose of and make all needful rules and regula-

or on confession in open court. tions concerning the property of the Con(2) The Congress shall have power to de- federate States, including the lands thereof.

clare the punishment of treason, but no at- (3) The Confederate States may acquire tainder of treason shall work corruption of new territory; and Congress shall have power blood, or forfeiture, except during the life of | to legislate and provide governments for the

the person attainted. inhabitants of all territory belonging to the Confederate States, lying without the limits

ART. IV. of the several States, and may permit them,

Sec. 1. (1) Full faith and credit shall be at such times, and in such manner as it may given in each State to the public acts, records, by law provide, to form States to be admitted

and judicial proceedings of every other into the Confederacy. In all such territory. State. And the Congress may, by general the institution of negro slavery, as il now laws, prescribe the manner in which such exists in the Confederate States, shall be acts, records, and proceedings shall be recognized and protected by Congress and

proved, and the effect thereof. by the territorial government; and the in-

Src. 2. (1) The citizens of each State shall habitants of the several Confederate States be entitled to all the privileges and immuni- and Territories shall have the right to take ties of citizens of the several States, and shall to such territory any slaves lawfully held have the right of transit and sojourn in any’ by them in any of the States or Territories of State of this Confederacy, with their slaves the Confederate States. and other property; and the right of prop- (4) The Confederate States shall guaranerty in said slaves shall not be thereby im- tee to every State that now is or hereafter

paired. may become a member of this Confederacy, (2) A person charged in any State with a Republican form of Government, and shail treason, felony, or other crime against the protect each of them against invasion; and laws of such State, who shall flee from on application of the Legislature, (or of the justice, and be found in another State, shall, Executive when the Legislature is not in seson demand of the executive authority of the sion,) against domestic violence.

384 DOCUMENTS OF AMERICAN [l1sTrory eral State Legislatures, and all executive and

ART. V. judicial offices, both of the Confederate States Sec. 1. (1) Upon the demand of any three and of the several States, shall be bound, States, legally assembled in their several by oath or affirmation, to support this ConConventions, the Congress shall summon a _ stitution; but no religious test shall ever be Convention of all the States, to take into required as a qualification to any office or consideration such amendments to the Con- public trust under the Confederate States. stitution as the said States shall concur in 5. The enumeration, in the Constitution, suggesting at the time when the said demand of _certain rights, shall not be construed to

is made; and should any of the proposed deny or disparage others retained by the amendments to the Constitution be agreed people of the several States.

on by the said Convention—voting by 6. The powers not delegatcd to the Con. States—and the same be ratified by the Leg- federate States by the Constitution, nor islatures of two-thirds of the several States, prohibited by it to the States, are reserved or by conventions in two-thirds thereof—as to the States, respectively, or to the people the one or the other mode of ratification may _ thereof. be proposed by the general convention—they

shall thenceforward form a part of this Con- ART. VII. :

stitution. But no State shall, without its con- 1.—The ratification of the conventions of sent, be deprived of its equal representation five States shall be sufficient for the establish-

In the Senate. ment of tnis Constitution between the States so ratifying the same. 2. When five States shall have ratified this

ART. VI. Constitution in the manner before specified,

1—The Government established by this the Congress, under the provisional ConstituConstitution is the successor of the Pro- tion, shall prescribe the time for holding the visional Government of the Confederate election of President and Vice-President, and States of America, and all the laws passed for the meeting of the electoral college, and by the latter shall continue in force until the for counting the votes and inaugurating the same shall be repealed or modified; and all President. They shall also prescribe the time the officers appointed by the same shall re- for holding the first election of members of main in office until their successors are ap- Congress under this Constitution, and the pointed and qualified, or the offices abolished. time for assemb:ing the same. Until the as2. All debts contracted and engagements sembling of such Congress, the Congress entered into before the adoption of this Con- under the provisional Constitution shall con-

stitution, shall be as valid against the Con- tinue to exercise the legislative powers federate States under this Constitution as granted them; not extending beyond the time

under the Provisional Government. limited hy the Constitution of the Provisional 3. This Constitution, and the laws of the Government. Confederate States, made in_ pursuance Adopted unanimously by the Congress of thereof, and all treaties made, or which shall the Confederate States of South Carolina, be made, under the authority of the Con- Georgia, Flor.da, Alabama, Mississippi, Loutfederate States, shall be the supreme law of siana, and Texas, sitting in convention at the the land: and the judges in every State shall capitol, in the city of Montgomery, Ala., on

be bound thereby, any thing in the Con- the eleventh day of March, in the year stitution or laws of any State to the con- eighteen hundred and sixty-one.

trary notwithstanding. Howell Cobb 4. The Senators and Representatives be- President of the Congress. fore mentioned, and the members of the sev- _ [Signatures]

LINCOLN’S First INAUGURAL ADDRESS 385 202. LINCOLN’S FIRST INAUGURAL ADDRESS March 4, 1861 (Richardson, ed. Aflessages and Papers, Vol. VI, p. 5 ff.) In his first inaugural address Lincoln reiterated hypercritical rules. And, while I do not his constitutional doctrine that the Union was choose now to specify particular acts of older than the States and that the contract be- Congress as proper to be enforced, I do tween the States was binding and irrevocable. suggest that it will be much safer for all,

ne Seward fae. as Nraugural en Pee both in official and private stations, to conAbraham Lincoln, Vol. III; W. E, Barton, Presi- form to and abide by all those acts which

dent Lincoln, Vol. I, ch. xiii. stand unrepealed, than to violate any of

them, trusting to find impunity in having

FELLOW-CITIZENS OF THE UNITED STATES: them held to be unconstitutional. .. .

—In compliance with a custom as old A disruption of the Federal Union, hereas the Government itself, I appear before tofore only menaced, is now formidably atyou to address you briefly, and to take in tempted. your presence the oath prescribed by the I hold that, in contemplation of universal Constitution of the United States to be taken law and of the Constitution, the Union of by the President “before he enters on the these States is perpetual. Perpetuity is im-

execution of his office.”. . . phed. if not expressed, in the fundamental

Apprehension seems to exist among the law of all national governments. It is safe to people of the Southern States that by the assert that no government proper ever had accession of a Republican administration a provision in its organic law for its own their property and their peace and personal termination. Continue to execute all the exsecurity are to be endangered. There has _ press provisions of our national Constitution, never been any reasonable cause for such and the Union will endure forever—it being

e apprehension. Indeed, the most ample evi- impossible to destroy it except by some dence to the contrary has all the whi'e ex- action not provided for in the instrument isted and been open to their inspection. It itself. is found in nearly all the published speeches Again, if the United States be not a govof him who now addresses you. I do but ernment proper, but an association of States quote from one of those speeches when I in the nature of contract merely, can it as declare that “I have no purpose, directly or a contract be peaceably unmade by less than

indirectly, to interfere with the institution all the parties who made it? One party to of slavery in the States where it exists. I a contract may violate it—break it, so to believe I have no lawful right to do so, and speak; but does it not require all to lawfully

I have no inclination to do so.” ... rescind it?

I now reiterate these sentiments; and, in Descend:ng from these general principles, doing so, I only press upon the public at- we find the proposition that in legal contention the most conclusive evidence of templation the Union is perpetual confirmed which the case is susceptible, that the prop- by the history of the Union itself. The erty, peace and securily of no section are Union is much older than the Constitution. to be in any wise endangered by the now’ It was formed, in fact, by the Articles of incoming administration. I add, too, that Association in 1774. It was matured and all the protection which, consistently with continued by the Declaration of Independthe Constitution and the laws, can be given, ence in 1776. It was further matured, and will be cheerfully given to all the States the faith of all the then thirteen States exwhen lawfully demanded, for whatever cause _ pressly plighted and engaged that it should ;

—as cheerfully to one section as to an- be perpetual, by the Articles of Confedera-

other... . : tion in 1778. And, finally, in 1787 one of the

I take the official oath to-day with no declared objects for ordaining and establishmental reservations, and with no purpose to ing the Constitution was “to form a more construe the Constitution or laws by any perfect Union.”

386 DOCUMENTS OF AMERICAN History But if the destruction of the Union by have that sense of perfect security which is one or by a part only of the States be law- most favorable to calm thought and reflecfully possible, the Union is less perfect than tion. The course here indicated will be folbefore the Constitution, having lost the vital lowed unless current events and experience

element of perpetuity. shall show a modification or change to be It follows from these views that no State proper, and in every case and exigency my upon its own mere motion can lawfully get best discretion will be exercised according out of the Union; that resolves and ordi- to circumstances actually existing, and with nances to that effect are legally void; and a view and a hope of a peaceful solution of that acts of violence, within any State or the national troubles and the restoration of States, against the authority of the United fraternal sympathies and affections. States, are insurrectionary or revolutionary, That there are persons in one section or

according to circumstances. another who seek to destroy the Union at I therefore consider that, in view of the all events, and are glad of any pretext to Constitution and the laws, the Union is un- do it, I will neither affirm nor deny; but if

broken; and to the extent of my ability I there be such, I need address no word to shall take care, as the Constitution itself them. To those, however, who really love expressly enjoins upon me, that the laws the Union may I not speak? of the Union be faithfully executed in all Before entering upon so grave a matter the States. Doing this I deem to be only as the destruction of our national fabric, a simple duty on my part; and I shall per- with all its benefits, its memories, and its

form it so far as practicable, unless my rightful hopes, would it not be wise to ascertain masters, the American people, shall with- precisely why we do it? Will you hazard so hold the requisite means, or in some au- desperate a step while there is any possibility thoritative manner direct the contrary. I trust that any portion of the ills you fly from this will not be regarded as a menace, but have no real existence? Will you, while the only as the declared purpose of the Union certain ills you fly to are greater than all the that it will constitutionally defend and main- real ones you fly from—will you risk the

tain itself. commission of so fearful a mistake?

In doing this there needs to be no blood- All profess to be content in the Union if shed or violence; and there shall be none, all constitutional rights can be maintained. unless it be forced upon the national au- Is it true, then, that any right, plainly written thority. The power confided to me will be in the Constitution, has been denied? I think used to hold, occupy, and possess the prop- not. Happily the human mind is so conerty and places belonging to the Govern- _ stituted that no party can reach to the audacment, and to collect the duties and imposts; ity of doing this. Think, if you can, of a but beyond what may be necessary for these single instance in which a plainly written objects, there will be no invasion, no using provision of the Constitution has ever been of force against or among the people any- denied. If by the mere force of numbers a where. Where hostility to the United States, majority should deprive a minority of any in any interior locality, shall be so great and clearly written constitutional right, it might, universal as to prevent competent resident in amoral point of view, justify revolution— citizens from holding the Federal offices, certainly would if such a right were a vital there will be no attempt to force obnoxious one. But such is not our case. All the vital strangers among the people for that object. rights of minorities and of individuals are While the strict legal right may exist in the so plainly assured to them by affirmations government to enforce the exercise of these and negations, guaranties and prohibitions, In

. offices, the attempt to do so would be so the Constitution, that controversies never irritating, and so nearly impracticable withal, arise concerning them. But no organic law that I deem it better to forego for the time can ever be framed with a provision specifi-

the uses of such offices. cally applicable to every question which may The mails, unless repelled, will continue to occur in practical administration. No forebe furnished in all parts of the Union. So © sight can anticipate, nor any document of far as possible, the people everywhere shall reasonable length contain, express provisions

LINCOLN’s First INAUGURAL ADDRESS 387 for all possible questions. Shall fugitives from obviously possible that such decision may be

labor be surrendered by national or by State erroneous in any given case, still the evil

authority? The Constitution does not ex- effect following it, being limited to that pressly say. May Congress prohibit slavery particular case, with the chance that it may in the Territories? The Constitution does be overruled and never become a precedent

not expressly say. Must Congress protect for other cases, can better be borne than slavery in the Territories? The Constitution could the evils of a different practice. At

does not expressly say. the same time, the candid citizen must conFrom questions of this class spring all our fess that if the policy of the government, constitutional controversies, and we divide upon vital questions affecting the whole

upon them into majorities and minorities. If people, is to be irrevocably fixed by decisions the minority will not acquiesce, the majority of the Supreme Court, the instant they are must, or the Government must cease. There made, in ordinary litigation between parties

is no other alternative; for continuing the in personal actions, the people will have Government is acquiescence on one side or ceased to be their own rulers, having to

the other. that extent practically resigned the govern-

If a minority in such case will secede ment into the hands of that eminent tribunal. rather than acquiesce, they make a precedent Nor is there in this view any assault upon which in turn will divide and ruin them; for the court or the judges. It is a duty from a minority of their own will secede from which they may not shrink to decide cases them whenever a majority refuses to be con- properly brought before them, and it is no trolled by such minority. For instance, why fault of theirs if others seek to turn their may not any portion of a new confederacy a decisions to political purposes. year or two hence arbitrarily secede again, One section of our country believes slavery

precisely as portions of the present Union is right, and ought to be extended, while

now claim to secede from it? All who cherish the other believes it is wrong, and ought not disunion sentiments are now being educated to be extended. This is the only substantial

to the exact temper of doing this. dispute. The fugitive slave clause of the Is there such perfect identity of interests Constitution and the law for the suppresamong the States to compose a new Union — sion of the foreign slave trade are each as as to produce harmony only, and prevent re- well enforced, perhaps, as any law can ever

newed secession? be in a community where the moral: sense Plainly, the central idea of secession is the of the people imperfectly supports the law essence of anarchy. A majority held in re- itself. The great body of the people abide straint by constitutional checks and limita- by the dry legal obligation in both cases, and

tions, and always changing easily with de- a few break over in each. This, I think, liberate changes of popular opinions and cannot be perfectly cured; and it would be sentiments, is the only true sovereign of a worse in both cases after the separation of free people. Whoever rejects it does, of the sections than before. The foreign slave necessity, fly to anarchy or to despotism. trade, now imperfectly suppressed, would be Unanimity is impossible; the rule of a minor- ultimately revived, without restriction, in one ity, aS a permanent arrangement, is wholly section, while fugitive slaves, now only parinadmissible; so that, rejecting the majority tially surrendered, would not be surrendered principle, anarchy or despotism in some form at all by the other.

is all that is left. Physically speaking, we cannot separate. I do not forget the position assumed by We cannot remove our respective sections

some, that constitutional questions are to be from each other, nor build an impassable wall decided by the Supreme Court; nor do I deny between them. A husband and wife may be

that such decisions must be binding, in any’ divorced and go out of the presence and case, upon the parties to a suit, as to the beyond the reach of each other; but the difobject of that suit, while they are also en- ferent parts of our country cannot do this. titled to a very high respect and considera- They cannot but remain face to face, and tion in all parallel cases by all other depart- intercourse, either amicable or hostile, must ments of the government. And, while it is continue between them. Is it possible, then,

388 DOCUMENTS OF AMERICAN IIISTORY to make that intercourse more advantageous eternal truth and justice, be on your side of

or more satisfactory after separation than the North, or on yours of the South, that before? Can alicns make treaties easier than truth and that justice will surely prevail by friends can make laws? Can treaties be more the judgment of this great tribunal of the faithfully enforced between aliens than laws American peopte.

can among friends? Suppose you go to war, By the frame of the government under you cannot fight always; and when, after which we live, this same peop!e have wisely much loss on both sides, and no gain on given their public servants but little power either, you cease fighting, the identical old for mischief; and have, with equal wisdom, questions as to terms of intercourse are again provided for the return of that little to their

upon you. own hands at very short intervals. While

This country, with its institutions, belongs the people retain their virtue and vigilance, to the people who inhabit it. Whenever they no administration, by any extreme of wicked-

shall grow weary of the existing govern- ness or folly, can very seriously injure the ment, they can exercise their constitutional government in the short space of four years. right of amending it, or their revolutionary My countrymen, one and all, think calmly right to dismember or overthrow it. I cannot and well upon this whole subject. Nothing be ignorant of the fact that many worthy valuable can be lost by taking time. If there and patriotic citizens are desirous of having be an object to hurry any of you in hot haste the national Constitution amended. While I to a step which you would never take demake no recommendation of amendments, 1 lberately, that object will be frustrated by fully recognize the rightful authority of the taking time; but no good object can be fruspeople over the whole subject, to be exercised trated by it. Such of you as are now disin either of the modes prescribed in the _ satisfied still have the oid Constitution uniminstrument itself, and I shoud, under exist- paired, and, on the sens.tive point, the laws ing circumstances, favor rather than oppose of your own framing under it; while the new a fair opportunity being afforded the people administration will have no immediate power,

to act upon it. I will venture to add that if it would, to change either. If it were adto me the convention mode seems preferable, mitted that you who are dissatisfied hold the

in that it allows amendments to originate right side in the dispute, there still is no with the people themselves, instead of only — single good reason for precipitate action. Inpermitting them to take or reject proposi- _ telligence, patriotism, Christianity, and a firm

tions originated by others not especially reliance on Him who has never yet forsaken chosen for the purpose, and which might not this favored land, are still competent to adbe precisely such as they would wish to just in the best way all our present difficulty. either accept or refuse. I understand a pro- In your hands, my dissatisfied fellowposed amendment to the Constitution—which countrymen, and not in mine, is the momenamendment, however, I have not seen—has _ tous issue of civil war. The government will

passed Congress, to the effect that the Fed- not assail you. You can have no conflict

eral Government shall never interfere with without being yourselves the aggressors. You the domestic instituions of the States, in- have no oath registered in h2aven to destroy cluding that of persons he!d to service. To the government, while I shall have the most

avoid misconstruction of what I have said, so:emn one to “preserve, protect. and deI depart from my purpose not to speak of fend” it. particular amendments so far as to say that, I am loath to close. We are not enemies, holding such a provision to now be implied but friends. We must not be enemies. Though constitutional law, I have no objection to its passion may have strained, it must not break, being made express and irrevocable. . . . our bonds of affection. The mystic chords of

Why should there not be a patient con- memory, stretching from every battle-field fidence in the ultimate justice of the people? and patriot grave to every living heart and Is there any better or equal hope in the _ hearthstone all over this broad land, will yet world? In our present differences is either swetl the chorus of the Union when again party without faith of being in the right? touched, as surely they will be, by the better If the Almighty Ruler of nations, with his angels of our nature.

Davis’s MESSAGE TO CONGRESS 389 203. DAVIS’S MESSAGE TO CONGRESS April 29, 1861 (Richardson, ed. Messages and Papers of the Confederacy, Vol. I, p. 63 ff.) Davis called the Confederate Congress together Under this contract of alliance, the war of in special session April 29, 1861. In his message the Revolution was successfully waged, and

he analyzed again the theory of the Union and yesuited in the treaty of peace with Great the logic of secession, In this message he also Britain in 1783, by the Lerms of which the asked for authority to prosecute the war: in re- a eral States were each by name recognized sponse to his requests Congress at this session to be independent. The Articles of Confedera-

authorized him to use all the land and naval ; ;

force of the Confederacy, to issue letters of ton contained a clause whereby all altera-

marque, raise volunteers, make loans, etc. See, tions were prohibited unless confirmed by the J. Davis, Rise and Fall of the Confederate Gov- _Legis'atures of every State after being agreed

ernment, Vol. I, Part IV, ch. iv. to by the Congress; and in obedience to this provision, under the resolution of Congress

Gentlemen of the Congress... . of the 21st of February, 1787, the several The declaration of war made against this States appointed delegates who attended a Confederacy by Abraham Linco!n, the Presi- convention “for the sole and express purpose dent of the United States, in his proclama- of revising the Articles ot Confederation and tion issued on the {5th day of the present reporting to Congress and the several Legislamonth, rendered it necessary, In my judg- _ tures such alterations and provisions therein

ment, that you should convene at the earliest as shall, when agreed to in Congress and practicable moment to devise the measures confirmed by the States, render the Federal necessary for the defense of the country. The Constitution adequate to the exigencies of occasion is indeed an extraordinary one. It Government and the preservation of the justifies me in a brief review of the relations Union.” It was by the delegates chosen by heretofore existing between us and the States the several States under the resolution Just which now unite in warfare against us and quoted that the Constitution of the United in a succinct statement of the events which States was framed in 1787 and submitted to have resulted in this warfare, to the end that the several States for ratification, as shown mankind may pass intelligent and impartial by the seventh article, which is in these judgment on its motives and objects. Dur- words: “The ratification of the conventions ing the war waged against Great Britain by of mime States shall be sufficient for the esher colonies on this continent a common _ tablishment of this Constitution between the danger impelled them to a close alliance and States so ratifying the same.” . . . The Conto the formation of a Confederation, by the stitution of 1787, having, however, omitted terms of which the colonies, styling them- the clause already recited from the Articles selves States, entered “severally into a firm of Confederation, which provided in explicit league of friendship with each other for their terms that each State retained its sovereignty

: common defense, the security of their liber- and independence, some alarm was felt in the ties, and their mutual and general welfare. States, when invited to ratify the Constituhinding themselves to assist each other tion, lest this omission should be construed against all force offered to or attacks made into an abandonment of their cherished prinupon them, or any of them, on account of ciple, and they refused to be satisfied until religion, sovereignty, trade, or any other amendments were added to the Constitution pretense whatever.” In order to guard against placing beyond any pretense of doubt the any misconstruction of their compact, the reservation by the States of all their soverseveral States made explicit declaration in a eign rights and powers not expressly deledistinct article—that “each State retains 1's gated to the United States by the Constitusovereignty, freedom, and independence, and _ tion.

every power, jurisdiction, and right which is Strange, indeed, must it appear to the imnot by this Confederation expressly delegated partial observer, but it is none the less true to the United States in Congress assembled.” that all these carefully worded clauses proved

390 DocUMENTS OF AMERICAN HISTORY unavailing to prevent the rise and growth in large portion of the laboring population con-

the Northern States of a political school sisted of African slaves imported into the which has persistently claimed that the gov- colonies by the mother country. In twelve ernment thus formed was not a compact be- out of the thirteen States negro slavery tween States, but was in effect a national existed, and the right of property in slaves government, set up above and over the States. was protected by law. This property was

An organization created by the States to recognized in the Constitution, and _ prosecure the blessings of liberty and inde- vision was made against its loss by the escape pendence against foreign aggression, has been of the slave. The increase in the number of gradually perverted into a machine for their slaves by further importation from Africa control in their domestic affairs. The crea- was also secured by a clause forbidding Conture has been exalted above its creators; the gress to prohibit the slave trade anterior to principals have been made subordinate to the a certain date, and in no clause can there

agent appointed by themselves. The people be found any delegation of power to the of the Southern States, whose almost ex- Congress authorizing it in any manner to clusive occupation was agriculture, early per- legislate to the prejudice, detriment, or disceived a tendency in the Northern States to couragement of the owners of that species render the common government subservient of property, or excluding it from the protecto their own purposes by imposing burdens _ tion of the Government. on commerce as a protection to their manu- The climate and soil of the Northern States facturing and shipping interests. .. . By de- soon proved unpropitious to the continuance

grees, as the Northern States gained pre- of slave labor, whilst the converse was the

ponderance in the National Congress, case at the South. Under the unrestricted self-interest taught their people to yield ready free intercourse between the two sections, assent to any plausible advocacy of their the Northern States consulted their own in-

right as a majority to govern the minority terests by selling their slaves to the South without control. They learned to listen with and prohibiting slavery within their limits. impatience to the suggestion of any constitu- The South were willing purchasers of prop-

tional impediment to the exercise of their erty suitable to their wants, and paid the will, and so utterly have the principles of price of the acquisition without harboring a the Constitution been corrupted in the North- suspicion that their quiet possession was to

ern mind that, in the inaugural address de- be disturbed by those who were inhibited livered by President Lincoln in March last, not only by want of constitutional authority, he asserts as an axiom, which he plainly but by good faith as vendors, from disquietdeems to be undeniable, that the theory of ing a title emanating from themselves. As the Constitution requires that in all cases the soon, however, as the Northern States that majority shall govern; .. . This is the lam- prohibited African slavery within their limits entable and fundamental error on which rests had reached a number sufficient to give their the policy that has culminated in his declara- representation a controlling voice in the tion of war against these Confederate States. Congress, a persistent and organized system In addition to the long-continued and deep- of hostile measures against the rights of the seated resentment felt by the Southern States owners of slaves in the Southern States was at the persistent abuse of the powers they inaugurated and gradually extended. A conhad delegated to the Congress, for the pur- tinuous series of measures was devised and pose of enriching the manufacturing and prosecuted for the purpose of rendering inshipping classes of the North at the expense secure the tenure of property in slaves... . of the South, there has existed for nearly half Emboldened by success, the theatre of agitaa century another subject of discord, involv- tion and aggression against the clearly exing interests of such transcendent magnitude pressed constitutional rights of the Southern as at all times to create the apprehension in States was transferred to the Congress; Sena-

the minds of many devoted lovers of the tors and Representatives were sent to the Union that its permanence was impossible. common councils of the nation, whose chief When the several States delegated certain title to this distinction consisted in the display powers to the United States Congress, a of a spirit of ultra-fanaticism, and whose busi-

Davis’s MESSAGE TO CONGRESS 391 ness was not “to promote the general welfare of the whole United States and had become or insure domestic tranquillity,” but toawaken absolutely necessary to the wants of civilized

the bitterest hatred against the citizens of man. With interests of such overwhelming sister States, by violent denunciation of their magnitude imperiled, the people of the Southinstitutions; the transaction of public affairs ern States were driven by the conduct of the

was impeded by repeated efforts to usurp North to the adoption of some course of powers not delegated by the Constitution, action to avert the danger with which they for the purpose of impairing the security of were openly menaced. With this view the property in slaves, and reducing those States Legislatures of the several States invited the which held slaves to a condition of inferior- people to select delegates to conventions to ity. Finally a great party was organized for be held for the purpose of determining for the purpose of obtaining the administration themselves what measures were best adapted of the Government, with the avowed object to meet so alarming a crisis in their history. of using its power for the total exclusion of | Here it may be proper to observe that from the slave States from all participation in the a period as early as 1798 there had existed

benefits of the public domain acquired by all in all of the States of the Union a party the States in common, whether by conquest almost uninterruptedly in the majority based or purchase; of surrounding them entirely by upon the creed that each State was, in the States in which slavery should be prohibited; last resort, the sole judge as well of its

of thus rendering the property in slaves so wrongs as of the mode and measure of insecure as to be comparatively worthless, redress... . and thereby annihilating in effect property .. . In the exercise of a right so ancient, worth thousands of millions of dollars. This so well-established, and so necessary for selfparty, thus organized, succeeded in the month preservation, the people of the Confederate of November last in the election of its candi- States, in their conventions, determined that date for the Presidency of the United States. the wrongs which they had suffered and the In the meantime, the African slaves had _ evils with which they were menaced required

augmented in number from about 600,000, that they should revoke the delegation of at the date of the adoption of the constitu- powers to the Federal Government which tional compact, to upward of 4,000,000. In _ they had ratified in their several conventions. moral and social condition they had been They consequently passed ordinances resumelevated from brutal savages into docile, in- ing all their rights as sovercign and indetelligent, and civilized agricultural laborers, pendent States and dissolved their connection and supplied not only with bodily comforts with the other States of the Union. but with careful religious instruction. Under Having done this, they proceeded to form the supervision of a superior race their labor a new compact amongst themselves by new had been so directed as not only to allow articles of confederation, which have been a gradual and marked amelioration of their also ratified by the conventions of the sevown condition, but to convert hundreds of eral States with an approach to unanimity thousands of square miles of the wilderness far exceeding that of the conventions which into cultivated lands covered with a prosper- adopted the Constitution of 1787. They have ous people; towns and cities had sprung into organized their new Government in all its existence, and had rapidly increased in wealth departments; the functions of the executive, and population under the social system of the legislative, and judicial magistrates are perSouth; the white population of the Southern formed in accordance with the will of the slave-holding States had augmented from people, as displayed not merely in a cheerful about 1,250,000 at the date of the adoption acquiescence, but in the enthusiastic support of the Constitution to more than 8,500,000, of*the Government thus established by them-

in 1860; and the productions in the South selves; and but for the interference of the of cotton, rice, sugar, and tobacco, for the Government of the United States in this full development and continuance of which legitimate exercise of the right of a people the labor of African slaves was and is indis- to self-government, peace, happiness, and pensable, had swollen to an amount which prosperity would now smile on our land... .

formed nearly three-fourths of the exports Jefferson Davis.

392 DocuMENTS OF AMERICAN IItstory 204. SEWARD’S PLAN TO AVERT CIVIL WAR April 1, 1861 | (Writings of Abraham Lincoln, Constitutional ed., Vol. V, p. 278 ff.) Seward was onc of the founders of the Republi- Sumter, although not in fact a slavery or a can Party and the most prominent of the can- party question, is so regarded. Witness the didates for the Republ-can nomination in 1860. temper manifested by the Republicans in He looked his appointment to the first the free States, and even by the Union men place in theupon Cabinet as nothing more than his.

due, and entertained the idea of dominating the in the South, , ;

Presidential policy. “Seward,” said Gideon Welles, I would therefore terminate it as a safe “liked to be called premier”. His “Thoughts for ™eans for changing the issue. I deem it the President’s Consideration” were intended to fortunate that the last administration created establish his dominance over the President: Lin- the necessity. coln’s reply was a masterly rebuke, which did For the rest, I would simultaneously denot alienate the Secretary of State. The best fend and reinforce all the ports in the gulf, biography of Seward is F. Bancroit, Life of Wil- and have the navy recalled from foreign iam H. Seward, 2 vols.; see especially Vol. Tl, stations to be prepared for a blockade. Put chs, xxviii, xxix. See also, C. E. Macartney, Lin- the island of Key West under martial law

coln and His G. Bradford, ; , . te .of Portraits, ch. Cabinet, vii. Th-s ch. willv.;raise distinctly Union the question union or disunion. I would maintain every Some Thoughts for the President’s Con- fort and possession in the South. sideration, April 1, 1861.

First. We are at the end of a month’s ad- Tor Forercn NATIONS ministration, and yet without a policy either I would demand explanations from Spain

domestic or foreign. and France, categorically, at once.

Second. This, however, is not culpable, and I would seek explanations from Great It has even been unavoidable. The presence Britain and Russia, and send agents into of the Senate, with the need to meet ap- Canada, Mexico, and Central America to plications for patronage, have prevented at- rouse a vigorous continental spirit of indetention to other and more grave matters. pendence on this continent against European

Third. But further delay to adopt and __ jntervention. ,

prosecute our pouicies for both domestic and And, if satisfactory explanations are not foreign affairs would not only bring scandal received from Spain and France, on the administration, but danger upon the Would convene Congress and declare war

country. against them.

Fourth. To do this we must dismiss the But whatever policy we adopt, there must applicants for office. But how? I suggest that be an energetic prosecution of it. we make the local appointments forthwith, For this purpose it must be somebody’s leaving foreign or general ones for utterior bus’ness to pursue and direct it incessantly.

and occasional action. Either the President must do it himself, Fifth. The policy at home. I am aware and be all the while active in it, or

that my views are singular, and perhaps not Devolve it on some member of his Cabinet. sufficiently explained. My system is built Once adopted, debates on it must end, and

upon this idea as a ruling one, namely, that Jl agree and abide.

we must It is not in my especial province; CHANGE THE QUESTION BEFORE THE PUB- But I neither seek to evade nor assume LIC FROM ONE UPON SLAVERY, OR ABOUT _ responsibility. SLAVERY, for a question upon UNION OR DIS- REPLy To SECRETARY SEWARD’S

UNION:

In other words, from what would be re- MEMORANDUM

garded as a party question, to one of patriot- Executive Mansion, April 1, 1861.

ism or union. Elon. W. H. SEwarp.

The occupation or evacuation of Fort My DEAR SIR:—Since parting with you I

LINCOLN’S MESSAGE TO CONGRESS 393 have been considering your paper dated this within the range of our foreign policy; but up day, and entitled “Some Thoughts for the to that time we have been preparing circulars President’s Consideration.” The first proposi- and instructions to ministers and the like, all

tion in it is, “First, We are at the end of a in perfect harmony, without even a sugmonth’s administration, and yet without a gestion that we had no foreign policy.

policy either domestic or foreign.” Upon your closing propositions—that

At the beginning of that month, in the ‘whatever policy we adopt, there must be

inaugural, I said: “The power confided to me an energetic prosecution of it. will be used to hold, occupy, and possess the “For this purpose it must be somebody’s property and places belonging to the Govern- _ business to pursue and direct it incessantly. ment, and to collect the duties and imposts.”’ “Either the President must do it himself, This had your distinct approval at the time; and be all the wh.le active in it, or

and, taken in connection with the order I “Devolve it on some member of his Cabiimmediately gave General Scott, directing met. Once adopted, debates on it must end, him to employ every means in his power to and all agree and abide’—I remark that if strengthen and hold the forts, comprises the this must be done, I must do it. When a exact domestic policy you now urge, with the general line of policy is adopted, I appresingle exception that it docs not propose to hend there is no danger of its being changed

abandon Fort Sumter. without good reason, or continuing to be a Again. I do not perceive how the reinforce- subject of unnecessary debate; still, upon

ment of Fort Sumter would be done on a_ points arising in its progress I wish, and slavery or a party issue; while that of Fort suppose I am entitled to have, the advice Pickens would be on a more national and of all the Cabinet.

patriotic one. Your obedient servant, The news received yesterday in regard to A. LINCOLN. St. Domingo certainly brings a new item

205. LINCOLN’S MESSAGE TO CONGRESS IN SPECIAL SESSION July 4, 1861 (Richardson, ed. Messages and Papers, Vol. VI, p. 20 ff.) By proclamation of April 15, 1861, Lincoln called Mississippi, Louisiana, and Florida, except-

Congress to meet in special session July 4, 1861. ing only those of the Post-office DepartIn the intervening period Lincoln had straincd ment... .

ie executive authority in his eltort to suppress _.. The purpose to sever the Federal ¢ rebellion. The special session message informed Uni I do Congress of the steps that the executive had non was openly avowed. n accordance

taken and made specific recommendations for with this purpose, an ordinance had been the grant of additional powers. It presented too, 4dopted in each of these States, declaring in a more elaborate form than the Inaugural the States respectively to be separated from Address, Lincoln’s conception of the sgnificance the national Union. A formula for institutof the struggle for the preservation of the Union. ing a combined government of these States had been promulgated; and this illegal orFELLOW-CITIZENS OF THE SENATE AND ganization, in the character of confederate House or REPRESENTATIVES :—Having been States, was a’ready invoking recognition, aid,

convened on an extraordinary occasion, as and intervention from foreign powers. .. . authorized by the Constitution, your atten- And this issue embraces more than the fate tion is not called to any ordinary subject of these United States. It presents to the

of legislation. whole family of man the question whether At the beginning of the present Presi- a constitutional republic or democracy—a

dential term, four months ago, the functions government of the people by the same people of the Federal Government were found to —can or cannot maintain its territorial integbe generally suspended within the several rity against its own domestic foes. It presents States‘of South Carolina, Georgia, Alabama, the question whether discontented individu-

394 DocUMENTS OF AMERICAN History als, too few in number to control administra- without the consent of the Union or of any

tion according to organic laws in any case, other State... . can always, upon the pretenses made in this This sophism derives much, perhaps the

case, or on any other pretenses, or arbitrarily whole, of its currency from the assumption without any pretense, break up their govern- that there is some omnipotent and sacred ment, and thus practically put an end to free supremacy pertaining to a State—to each government upon the earth. It forces us to State of our Federal Union. Our States have ask: Is there in all republics this inherent neither more nor less power than that reand fatal weakness? Must a government, of served to them in the Union by the Connecessity, be too strong for the liberties of stitution—no one of them ever having been its own people, or too weak to maintain its a State out of the Union. The Original ones

own existence? passed into the Union even before they cast

So viewing the issue, no choice was left off their British colonial dependence; and the but to call out the war power of the govern- new ones each came into the Union directly ment, and so to resist force employed for its from a condition of dependence, excepting destruction by force for its preservation. ... Texas. And even Texas in its temporary inThe forbearance of this government had dependence was never designated a State. been so extraordinary and so long continued The new ones only took the designation of as to lead some foreign nations to shape their States on coming into the Union, while that action as if they supposed the early destruc- name was first adopted for the old ones in

tion of our national Union was probable. and by the Declaration of Independence. While this, on discovery, gave the executive ... Having never been States either in some concern, he is now happy to say that substance or in name outside of the Union, the sovereignty and rights of the United whence this magical omnipotence of “State States are now everywhere practically re- rights,” asserting a claim of power to lawspected by foreign powers; and a general fully destroy the Union itself? Much is said sympathy with the country is manifested about the “sovereignty” of the States; but

throughout the world... . the word even is not in the national Constitu-

It might seem, at first thought, to be of _ tion, nor, as is believed, in any of the State little difference whether the present move- constitutions. What is “sovereignty” in the ment at the South be called “secession” or political sense of the term? Would it be “rebellion.” The movers, however, well un- far wrong to define it as ‘a political comderstand the difference. At the beginning munity without a political superior’? Tested they knew they could never raise their trea~ by this, no one of our States except Texas son to any respectable magnitude by any ever was a sovereignty. . . . The States have name which implies violation of law. They their status in the Union, and they have no knew their people possessed as much of moral _ other legal status. If they break from this, sense, as much of devotion to law and order, they can only do so against law and by revo-

and as much pride in and reverence for the lution. The Union, and not themselves

history and government of their common _ separately, procured their independence and country as any other civilized and patriotic their liberty. By conquest or purchase the people. They knew they could make no ad- Union gave each of them whatever of in-

vancement directly in the teeth of these dependence or liberty it has. The Union is strong and noble sentiments. Accordingly, older than any of the States, and, in fact, they commenced by an insidious debauch- it created them as States. Originally some ing of the public mind. They invented an dependent colonies made the Union, and, in ingenious sophism which, if conceded, was turn, the Union threw off their old defollowed by perfectly logical steps, through pendence for them, and made them States, all the incidents, to the complete destruction such as they are. Not one of them ever had

of the Union. The sophism itself is that any a State constitution independent of the State of the Union may consistently with Union. Of course, it is not forgotten that the national Constitution, and therefore law- all the new States framed their constitutions fully and peacefully, withdraw from the Union _ before they entered the Union—nevertheless,

Toe CRITTENDEN-JOHNSON RESOLUTIONS 395 dependent upon and preparatory to coming the side of the Union it is a struggle for

into the Union... . maintaining in the world that form and What is now combated is the position that substance of government whose leading object

secession is consistent with the Constitution is to elevate the condition of men—to lift —is lawful and peaceful. It is not contended artificial weights from all shoulders; to clear

that there is any express law for it; and the paths of laudable pursuit for all; to

nothing should ever be implied as law which afford all an unfettered start, and a fair leads to unjust or absurd consequences. ... chance in the race of life. Vielding to partial The seceders insist that our Constitution and temporary departures, from necessity, admits of secession. They have assumed to this is the leading object of the government make a national constitution of their own, for whose existence we contend... . in which of necessity they have either dis- Our popular government has often been carded or retained the right of secession as called an experiment. Two points in it our they insist it exists in ours. If they have dis- people have already settled—the successful carded it, they thereby admit that on prin- establishing and the successful administerciple it ought not to be in ours. If they have ing of it. One still remains—its successful retained it, by their. own construction of maintenance against a formidable internal atours, they show that to be consistent they tempt to overthrow it. It is now for them must secede from one another whenever they to demonstrate to the world that those who shall find it the easiest way of settling their can fairly carry an election can also suppress debts, or effecting any other selfish or unjust a rebellion; that ballots are the rightful and object. The principle itself is one of disin- peaceful successors of bullets; and that when tegration and upon which no government can ballots have fairly and constitutionally de-

possibly endure... . cided, there can be no successful appeal back It may well be questioned whether there is to bullets; that there can be no successful to-day a majority of the legally qualified appeal, except to ballots themselves, at sucvoters of any State except perhaps South ceeding elections. Such will be a great lesson Carolina in favor of disunion. There is much of peace: teaching men that what they canreason to believe that the Union men are not take by an election, neither can they take the majority in many, if not in every other it by war; teaching all the folly of being the

one, of the so-called seceded States... . beginners of a war.... This is essentially a people's contest. On

206. THE CRITTENDEN-JOHNSON RESOLUTIONS ON THE OBJECTS OF THE WAR July, 1861 (Richardson, ed. Messages and Addresses, Vol. VI, p. 430) These resolutions represented a conservative at- the constitutional Government and in arms

titude toward the South and the objects of the around the capital; that in this national war that shortly disappeared. The Crittenden emergency Congress, banishing all feelings of Resolutions passed the House, July 22, 1861, with ere passion or resentment, will recollect only two dissenting votes; the Johnson Resolu- ly its duty to the whole c th hi tions passed the Senate July 25 with five dissent- on yt Ss Gury to be whole country; that t is

ing votes. war 1s not wagedofupon our part in any spirit oppression, nor for any purpose of con-

; quest or subjugation, nor purpose of over-

THE CRITTENDEN RESOLUTIONS throwing or interfering with the rights or Resolved by the House of Representatives established institutions of those States, but of the Congress of the United States, That to defend and maintain the supremacy of the present deplorable civil war has been the Constitution and to preserve the Union, forced upon the country by the disunionists with all the dignity, equality, and rights of of the Southern States now in revolt against the several States unimpaired; and that as

396 DOCUMENTS OF AMERICAN History soon as these objects are accomplished the country; that this war is not prosecuted upon

War Ought to cease. our part in any spirit of oppression, nor for any purpose of conquest or subjugation, nor

THE JoHNSoN REsoLuTIONs purpose of overthrowing or interfering with

Resolved, That the present deplorable civil the rights or established institutions of those

war has been forced upon the country by States, but to defend and maintain the suthe disunionists of the Southern States now premacy of the Constitution and all laws in revolt against the constitutional Govern- made in pursuance thereof and to preserve ment and in arms around the capital; that the Union, with all the dignity, equality, and in this national emergency Congress, banish- rights of the several States unimpaiicd; that ing all feel:ng of mere passion or resentment, as soon as these objects are accomplished the

will recollect only its duty .to the whole war ought to cease.

207. GENERAL BUTLER’S “CONTRABANDS”

Report of General Butler to the Secretary of War July 30, 1861 (F. Moore, ed. The Rebellion Record, Vol. Il, p. 437) The problem of the refugee slaves was one of their homes at Hampton, fleeing across the the most perplexing which the Government had creek within my lines for protection and to face. General Butler, commanding at Fortress support. Indeed, it was a most distressing Monroe, took matters into his own hands, and sieht to see these poor creatures, who had treated lugitive or captured slay cs as “contra- trusted to the protection of the arms of the band of war’. For a somewhat different solution, see Frémont’s Proclamation, Doc. No. 208. The United States, and who aided the troops of fairest discussion of Butler is in C. R. Fish’s ar- the United States in their enterprise, to be ticle in the Dictionary of American Biography. thus obliged to flee from their homes, and

| Vol. III. the homes of their masters who had deserted them, and become fugitives from fear of the

Head-quarters Department of Virginia, return of the rebel soldiery, who had threatFortress Monroe, July 30, 1861. ened to shoot the men who had wrought for Hon. Simon Cameron, Secretary of War:— us, and to carry off the women who had sir: ... In the village of Hampton there — served us, to a worse than Egyptian bondage. were a large number of negroes, composed I have, therefore, now within the Peninsula, in a great measure of women and children this side of Hampton Creek, 900 negroes, of the men who had fled thither within my 300 of whom are able-bodied men, 30 of lines for protection, who had escaped from whom are men substantially past hard labor, maurauding parties of rebels who had been 175 women, 225 children under the age of gathering up able-bodied blacks to aid them 10 years, and 170 between 10 and 18 years, in constructing their batteries on the James and many more coming in. The questions and York Rivers. I have employed the men’ which this state of facts presents are very in Hampton in throwing up intrenchments, embarrassing. and they were working zea'ously and effici- First, What shall be done with them? and, ently at that duty, saving our soldiers from Second, What is their state and condition?

that labor under the gleam of the mid-day Upon these questions I desire the instrucsun. The women were earning substantially tions of the Department. their own subsistence in washing, marketing. The first question, however, may perhaps and taking care of the clothes of the soldiers, be answered by considering the last. Are and rations were being served out to the men these men, women, and children, slaves? Are who worked for the support of the children. they freer Is their condition that of men, But by the evacuation of Hampton, rendered women, and children, or of property, or is it necessary by the withdrawal of troops, leav- a mixed relation?» What their status was ing me scarcely 5,000 men outside the Fort, under the Constitution and laws, we all know. including the force at Newport News, all What has been the effect of rebellion and a

these black people were obliged to break up state of war upon that status? When I

Fr&imMont’s PROCLAMATION ON SLAVES 397 adopted the theory of treating the able-bodied ters’ acts, and the state of war, assumed the negro fit to work in the trenches as property condition, which we hold to be the normal] liable to be used in aid of rebellion, and so one, of those made in God’s image? Is not contraband of war, that condition of things every constitutional, legal, and moral requirewas in so far met, as I then and still believe, ment, as well to the runaway master as their on a legal and constitutional basis. But now _ relinquished slaves, thus answered? I confess a new series of questions arises. Passing by that my own mind is compelled by this reawomen, the children, certainly, cannot be soning to look upon them as men and women. treated on that basis; if property, they must If not free born, yet free, manumitted, sent

be considered the incumbrance rather than forth from the hand that held them never the auxiliary of an army, and, of course. in to be reclaimed... . no possible legal relation could be treated as In a loyal State I would put down a contraband. Are they property? If they were _ servile insurrection. In a state of rebellion | so, they have been left by their masters and would confiscate that which was used to opowners, deserted, thrown away, abandoned, pose my arms, and take all that property. like the wrecked vessel upon the ocean. Their which constituted the wealth of that State, former possessors and owners have cause- and furnished the means by which the war lessly, traitorously. rebelliously. and, to carry is prosecuted, beside being the cause of the out the figure, practically abandoned them to war; and if, in so doing, it should be objected

be swallowed up by the winter storm of that human beings were brought to the free starvation. If property, do they not become enjoyment of life. liberty, and the pursuit of the property of the salvors? but we, their happiness, such objection might not require salvors, do not need and will not hold such much consideration. property, and will assume no such ownership: Pardon me for addressing the Secretary oi

has not, therefore, all proprietary relation War directly upon this question, as it in-

ceased? Have they not become, thereupon, volves some political considerations as well men, women, and children? No longer under as propriety of military action. I am, sir, ownership of any kind, the fearful relicts of | your obedient servant,

fugitive masters, have they not by their mas- BENJAMIN F. BUTLER. 208. FREMONT’S PROCLAMATION ON SLAVES St. Louis, August 30, 1861 (F. Moore, ed. The Rebellion Record, Vol. III, p. 33)

John Charles Frémont, too popular a figure to security of life, and devastation of property ignore, was placed in charge of the Department by bands of murderers and marauders, who of the West. An ardent abolitionist, he declared infest nearly every county in the State, and martial law and issued the proclamation of avai] themselves of public misfortunes, in the

August 30 confiscating the property and eman- vicinity of a hostile ¢ t atif a

cipating the slaves of rebels. While this action y ue force, to gratify private

inspired applause from the abolitionists, it seri- and neighborhood vengeance, and who find ously embarrassed the administration, and Lin- 7 enemy wherever they find plunder, finally coln was forced largely to countermand it. On demand the severest measures to repress the Frémont, see, A. Nevins, Frémont, ch. xxx-xxxi; daily increasing crimes and outrages, which

C. Goodwin, J. C. Frémont, ch. xii. are driving off the inhabitants and ruining the State.

Hlead-quarters Western Department. In this condition, the public safety and St. Louis, Aug, 30, 1861. success of our arms require unity of purpose. CIRCUMSTANCES in my judgment are of without let or hindrance to the prompt adsufficient urgency to render it necessary that ministration of affairs. In order, therefore, the commanding General of this department to suppress disorders, maintain the public should assume the administrative powers of peace, and give security to the persons and the State. Its disorganized condition, help- property of loyal citizens, I do hereby extend lessness of civil authority and the total in- and declare established martial law through-

398 DocUMENTS OF AMERICAN HtsTORY out the State of Missouri. The lines of the are warned that they are exposing themarmy occupation in this State are for the _ selves. present declared to extend from Leaven- All persons who have been led away from worth, by way of posts of Jefferson City, allegiance, are required to return to their Rolla, and Ironton, to Cape Girardeau on homes forthwith. Any such absence without the Mississippi River. All persons who shall sufficient cause, will be held to be presump-

be taken with arms in their hands within tive evidence against them. The object of these lines shall be tried by court-martial, this declaration is to place in the hands of and if found guilty, will be shot. Real and military authorities power to give instantanepersonal property of those who shall take ous effect to the existing laws, and supply up arms against the United States, or who — such deficiencies as the conditions of the war

shall be directly proven to have taken an demand; but it is not intended to suspend the active part with their enemies in the field, ordinary tribunals of the country, where law is declared confiscated to public use, and will be administered by civil officers in the their slaves, if any they have, are hereby usual manner, and with their customary au-

declared free men. thority, while the same can be peaceably All persons who shall be proven to have administered. destroyed, after the publication of this order, The commanding General will labor vigi-

railroad tracks, bridges, or telegraph lines, lantly for the public welfare, and, by his shall suffer the extreme penalty of the law. efforts for their safety, hopes to obtain not All persons engaged in treasonable corre- only acquiescence, but the active support of spondence, in giving or procuring aid to the the people of the country.

enemy, in fermenting turmoil, and disturb- J. C. FREMONT,

ing public tranquillity, by creating or circulat- Major-General Commanding. ing false reports, or incendiary documents,

209. EX PARTE MERRYMAN 17 Federal Cases, 144. 1861

Circuit Court, District of Maryland. Petition for for a writ of habeas corpus is made to me a writ of habeas corpus. John Merryman a under the 14th section of the Judiciary Act citizen of Baltimore, Maryland, was arrested by of 1789, which renders effectual for the citiorder of General Keim, and imprisoned at Fort Zen the constitutional privilege of the writ of McHenry. No ground having been shown for his habeas corpus. That act gives to the Courts

arrest, Chief Justice Taney authorized a wrt of the United States, as well as to each of habeas corpus, commanding General Cad- |. walader in command of Fort McHenry to deliver Justice of the Supreme Court, and to every up the prisoner. General Cadwalader, stating that District Judge, power to grant writs of habeas

he was acting under the authority of the Presi- corpus for the purpose of an inquiry into dent, refused to respect the writ. The Chief the cause of commitment. The petition was Justice then cited him for contempt of court, presented to me at Washington, under the but the General refused to receive the writ of impression that I would order the prisoner contempt. It was under these circumstances that to be brought before me there, but as he the Chief Justice filed the following opinion. ... .onfned in Fort McHenry, at the City For a reply to the argument of the court, see the of Baltimore, which is in my circuit, I reF. Moore, ed. The Rebellion Record, Vol. II, solved to hear it in the latter city, as obedip. 185 ff. For a discussion of the case sce War- ence to the writ, under such circumstances, ren, Supreme Court, ch. xxviii; S. Klaus, ed. would not withdraw Gen. Cadwalader who The Milligan Case, Introduction; J. G. Randall, had him in charge from the limits of his Constitutional Problems Under Lincoln; B. C. military command... .

opinion of the Hon. Reverdy Johnson, in oe

Steiner, Life of Roger Brooke Taney; G. C. A copy of the warrant or order, under ‘Sellery, Lincoln’s Suspension of Habeas Corpus, which the prisoner was arrested, was de-

University of Wisconsin, Bull. No. 149. manded by his counsel, and refused. And it Taney, C. J. The application in this case is not alleged in the return that any specific

Ex Partt MERRYMAN 399 act, constituting an offence against the laws the writ of Aabeas corpus is in the ninth secof the United States, has been charged against tion of the first article.

him upon oath; but he appears to have been This article is devoted to the Legislative arrested upon general charges of treason and Department of the United States, and has rebellion, without proof, and without giving not the slightest reference to the Executive the names of the witnesses, or specifying Department. It begins by providing “that the acts, which in the judgement of the all legislative powers therein granted shall military officer, constituted the crime. And be vested in a Congress of the United having the prisoner thus in custody on these States... .” After prescribing the manner in vague and unsupported accusations, he re- which these two branches of the Legislative fuses to obey the writ of habeas corpus, department shall be chosen, it proceeds to upon the ground that he is duly authorized by enumerate specifically the legislative powers

the President to suspend it. which it thereby grants and legislative powers

The case, then, is simply this: A military which it expressly prohibits, and at the conofficer residing in Pennsylvania issues an clusion of this specification, a clause is inorder to arrest a citizen of Maryland, upon — serted giving Congress “the power to make vague and indefinite charges, without any all laws which may be necessary and proper proof, so far as appears. Under this order for carrying into execution the foregoing

his house is entered in the night; he is powers, and all other powers vested by this seized as a prisoner, and conveyed to Fort Constitution in the Government of the McHenry, and there kept in close confine- United States or in any department or ofment. And when a habeas corpus is served fice thereof.” on the commanding officer, requiring him to The power of legislation granted by this produce the prisoner before a justice of the latter clause is by its word carefully conSupreme Court, in order that he may ex- fined to the specific objects before enumeramine into the legality of the imprisonment, ated. But as this limitation was unavoidably the answer of the officer is that he is au- somewhat indefinite, it was deemed necessary thorized by the President to suspend the to guard more effectively certain great cardiwrit of habeas corpus at his discretion, and, nal principles essential to the liberty of the in the exercise of that discretion, suspends citizen and to the rights and equality of the it in this case, and on that ground refuses States by denying to Congress, in express

obedience to the writ. terms, any power of legislation over them. It As the case comes before me, therefore, was apprehended, it seems, that such legislaTY understand that the President not only tion might be attempted under the pretext claims the right to suspend the writ of habeas _ that it was necessary and proper to carry into corpus himself, at his discretion, but to dele- execution the powers granted; and it was de-

gate that discretionary power to a military termined that there should be no room to officer, and to leave it to him to determine doubt, where rights of such vital importance whether he will or will not obey judicial were concerned, and accordingly this clause process that may be served upon him. is immediately followed by an enumeration No official notice has been given to the’ of certain subjects to which the powers of Courts of Justice, or to the public, by procla- legislation shall not extend; and the great im-

mation or otherwise, that the President portance which the framers of the Constituclaimed this power and had exercised it in tion attached to the privilege of the writ of the matter stated in the return. And I cer- habeas corpus to protect the liberty of the tainly listened to it with some surprise, for citizen, is proved by the fact that its suspenI had supposed it to be one of those points sion, except in cases of invasion and rebellion,

of constitutional law upon which there was is first in the list of prohibited power; and no difference of opinion, and that it was ad- even in these cases the power is denied and mitted on all hands that the privilege of the its exercise prohibited unless the public safety

writ could not be suspended except by act shall require it. It is true that in the cases

of Congress. ... mentioned Congress is of necessity to judge

The clause in the Constitution which au- whether the public safety does or does not thorizes the suspension of the privilege of require it; and its judgement is conclusive.

400 DOCUMENTS OF AMERICAN History But the introduction of these words is a nature of sovereignty, or the necessities of standing admonition to the legislative body government for self-defence, in times of tu-

of the danger of suspending it and of the mult and danger. The Government of the

extreme caution they should exercise before United States is one of delegated and limited they give the Government of the United powers. It derives its existence and authority States such power over the liberty of a citi- altogether from the Constitution, and neither

zen. of its branches—executive, legislative, or juIt is the second Article of the Constitution dicial—can exercise any of the powers of

that provides for the organization of the government beyond those specified and Executive Department, and enumerates the granted... . powers conferred on it, and prescribes its To guide me to a right conclusion, I have duties. And if the high power over the liberty the Commentaries on the Constitution of the of the citizens now claimed was intended to United States of the late Mr. Justice Story

be conferred on the President, it would un- . . . and also the clear and authoritative dedoubtedly be found in plain words in this ar- cision of (the Supreme) Court, given more ticle. But there is not a word in it that can than a half century since, and conclusively

furnish the slightest ground to justify the establishing the princip'es I have above

exercise of the power. . . . stated. Mr. Story, speaking in his CommenAnd the only power, therefore, which the taries of the /Aabeas corpus clause in the Con-

President possesses, where the “life, liberty stitution, says: and property” of a private citizen is con- “It is obvious that cases of a peculiar emercerned, is the power and duties prescribed in gency may arise, which may justify, nay, even

(he third section of the Second Article which require, the temporary suspension of any requires, “that he shall take care that the laws right to the writ... . Hitherto no suspenbe faithfully executed.” He is not authorized sion of the writ has ever been authorized by to execute them himself, or through agents Congress since the establishment of the Conor officers, civil or military, appointed by _ stitution. It would seem, as the power is given himself, but he is to take care that they be to Congress to suspend the writ of habeas faithfully carried into execution as they are corpus in cases of rebellion or invasion, that expounded and adjudged by the co ordinate the right to judge whether the exigency had branch of the government, to which that duty arisen must exclusively belong to that body”. Is assigned by the Constitution. It is thus Commentaries, section 1,336. made his duty to come in aid of the judicial And Chief Justice Marshall, in delivering authority, if it shall be resisted by force too the opinion of the Supreme Court in the case strong to be overcome without the assistance ex parte Bollman and Swartwout, uses this of the Executive arm. But in exercising this decisive language, in 4 Cranch, 101:

power, he acts in subordination to judicial “If at any time the public safety should authority, assisting it to execute its process require the suspension of the powers vested

and enforce its judgements. by this act in the courts of the United States,

With such provisions in the Constitution, it is for the Legislature to say so. That quesexpressed in language too clear to be misun- tion depends on political considerations, on derstood by anyone, I can see no ground’ which the Legislature is to decide. Until the whatever for supposing that the President in legislative will be expressed, this court can any emergency or in any state of things can only see its duty, and must obey the laws.”

authorize the suspension of the privilege of I can add nothing to these clear and emthe writ of /abeas corpus, or arrest a citizen phatic words of my great predecessor. except in aid of the judicial power. He cer- But the documents before me show that tainly does not faithfully execute the laws if the military authority in this case has gone he takes upon himself Icgislative power by far beyond the mere suspension of the privsuspending the writ of habeas corpus—and _ ilege of the writ of habeas corpus. It has, by the judicial power, also, by arresting and im- force of arms, thrust aside the judicial auprisoning a person without due process of law. _ thorities and officers to whom the ConstituNor can any argument be drawn from the _ tion has confided the power and duty of inter-

SECESSION OF KENTUCKY 401 preting and administering the laws, and United States are no longer living under a substituted a military government in its Government of laws, but every citizen holds place, to be administered and executed by life, liberty, and property at the will and

military officers... . pleasure of the army officer in whose military The Constitution provides, as I have before district he may happen to b2 found.

said, that “no person shall be deprived of life, In such a case my duty was too plain to liberty, or property without due process of be mistaken. I have exercise