There is, however, one of the recommendations made by the members of the Hartford Convention to the legislatures of the several states represented in that body which should be specially noticed here, because it proceeded upon an idea that was long afterwards acted upon by some of those states, and by others also. It was contained in the following resolution:

"That it be and hereby is recommended to the Legislators of the several States represented in this Convention, to adopt all such measures as may be necessary effectually to protect the citizens of said States from the operation and effects of all acts which have been or may be proposed by the Congress of the United States, which shall contain provisions subjecting the militia or other citizens to forcible drafts, conscriptions, or impressments not authorized by the Constitution of the United States."

It is doubtless quite possible that the distinguished and able men who put their signatures to this recommendation contemplated only such measures as might be necessary to subject acts of Congress, supposed to be unconstitutional, to a judicial test of their validity. But the tenor of the report does not warrant us in assuming that this was all that they contemplated. On the contrary, it would seem that the idea prevailed among them that there might be an emergency in which it would be the duty of a state legislature to take into its own hands the protection of its citizens against infractions of the Federal Constitution. They had in view emergencies which "are either beyond the reach of the judicial tribunals, or too pressing to admit of the delay incident to their forms." In such emergencies, they said, "States, which have no common umpire, must be their own judges, and execute their own decisions." We, who live in an age when constitutional doctrines have become better understood, can perceive

annotations and comments. Mr. R. C. Winthrop supposes that this invaluable pamphlet was in his father's possession at the time of his death in 1841; but it has not since been found. It is not difficult, however, to infer that the "mischief" which Mr. Dane apprehended was some proposition looking to a separation of the New England States from the Union, and that this was parried by the suggestion of the plan for allowing those states to use a part of the federal revenues for the defence of their own coasts so long as the war should continue, and by the proposal of another convention, to be held in Boston in the following June.

how crude and unsafe those ideas were. They assumed that there could be an emergency beyond the reach of the judicial power, or which could not wait for judicial action; and they overlooked the question of the competency of a state, or of a state legislature, to decide when there had been a deliberate, palpable, and dangerous infraction of the Constitution by an act of Congress. Revolution may at all times be resorted to against acts of a government which are too oppressive to be borne, and which admit of no constitutional remedy. The Government of the United States has no prerogative which entitles it to be exempt from revolution, when the people choose to resort to that desperate remedy. It must defend its rightful existence and authority by the means with which the Constitution has clothed it. But the right to resort to revolution against intolerable oppression is governed by no law. The right to find relief against an act of Congress which transcends its constitutional powers springs from and is regulated by the Constitution itself. It is a right that can be exercised only by resorting to a judicial remedy; and no state legislature can take any measures to obstruct the execution of a statute of the United States, excepting to aid in subjecting it to the proper judicial test of its constitutional validity. Yet this was not clearly perceived even by such men as those who composed the Hartford Convention; nor was it perceived by the state legislatures which, after the year 1850, took steps to obstruct the extradition of fugitives from service under a statute of the United States then recently enacted.

It is now to be observed that the lapse of fifteen years after the War of 1812-15 had produced in New England the state of feeling that is above adverted to led, in a very different quarter of the country and in a time of profound peace, to much more searching and more dangerous discussions of the character and powers of the Federal Constitution.

In 1830 South Carolina became very restive under the operation of that part of the revenue laws that is commonly called the Tariff. The existing Tariff made discriminations in favor of home manufactures, and this South Carolina did not like. She passed various resolutions denouncing the Tariff as unconstitutional, and propounding new means of resistance of unconstitutional laws. Suddenly and unexpectedly a discussion sprang up in the Senate

of the United States, between Mr. Hayne, senator from South Carolina, and Mr. Webster, senator from Massachusetts, concerning the nature of the Constitution, and the constitutional mode of resisting the exercise of unconstitutional powers. In that discussion Mr. Hayne stated and enforced with great ability the nullification doctrine. It was in substance this That the Constitution, being a compact between sovereign states, to which the states are parties, each state may judge for itself when the Constitution has been deliberately, palpably, and dangerously violated by Congress, and may, within its own limits, arrest the operation of the obnoxious law, and hold it inoperative until a convention of three fourths of the states has decided that it is constitutional. Every one sees, at the present day, that this doctrine, if left unanswered, would have overthrown the Union. But we must transport ourselves back to that period. We must remember that a generation had grown up in the South, with habits of thinking about the Union and the Constitution very different from the habits of the people of the Northern, the Middle, and the Western States. The latter had no particular reason to speculate closely about this subject. Happily for all parties-happily for the discussion of the momentous topic of the nature of the Constitution-slavery was not introduced specially into the great debate of 1830. In that debate it fell to Mr. Webster to answer Mr. Hayne; and in making that answer he made the celebrated speech which gave him the popular title of "Defender of the Constitution." It is not necessary to recapitulate his doctrine further than to say that its principal positions were that the Constitution was established by the people of the United States for the purpose of making a government, and not a league of sovereign states; that the people granted to their government irrevocably certain powers; that they declared the Constitution, and all laws passed in pursuance of it, as well as treaties, the supreme law of the land; that they created in the government an authority to determine the extent of its own powers by a judicial process, where judicial determination is practicable, and by the judgment of Congress where it is not; that to provide against usurpation, the people reserved the power and provided a mode for amending the Constitution; and, therefore, that no state has or can exercise, under the Constitution,

any power to arrest in her own limits the operation of any law which Congress has enacted.

The reader will observe that the South Carolina doctrine was, not that they claimed a right to make a revolution, but that the Constitution itself, by its very nature as a compact between sovereign states, gave each state a right to judge for itself when a law is unconstitutional, and to nullify it in the manner I have described; because, in a case of compact between sovereign states, there is no common arbiter to decide when the compact is broken, but each party to it must decide for itself.

It is both curious and important, in tracing the history of opinion on this great subject, to observe what relation this doctrine of nullification bore to the subsequently alleged right of state secession from the Union. The relation was one of strict logical sequence. If it is true that under the Constitution each state has a right to judge for itself when a particular law of Congress is unconstitutional, and thereupon to arrest its execution within her limits, it follows inevitably that she may arrest all the operations of the general government within her limits. If the states are, under the Constitution, sovereign parties to a compact, there is nothing but a moral accountability to prevent any one of them from breaking that compact when it thinks it has good reason. Now, the moral accountability of associated sovereign states is referable only to the right of revolution or to war; and therefore it is that secession is revolution or war. But the nullifiers of 1830 did not so regard it. They clung to the idea of a constitutional right of nullification, as a process resulting from the nature of the Constitution itself. Not so Mr. Madison, whose authority they claimed to invoke from the Resolutions of '98. Writing in 1833 to Mr. Rives, he said:

"The conduct of South Carolina has called forth not only the question of nullification, but the more formidable one of secession. It is asked whether a state, by resuming the sovereign form in which it entered the Union, may not, of right, withdraw from it at will. As this is a simple question whether a state, more than an individual, has a right to violate its engagements, it would seem that it might be safely left to answer itself. But the countenance given to the claim shows that it cannot be so lightly dismissed. The natural feelings which laudably attach

the people composing a state to its authority and importance are at present too much excited by the unnatural feelings with which they have been inspired against their brethren of other states not to expose them to the danger of being misled into erroneous views of the nature of the Union, and the interest they have in it. One thing at least seems to be too clear to be questioned that while a state remains within the Union it cannot withdraw its citizens from the operation of the Constitution and laws of the Union. In the event of an actual secession, without the consent of the co-states, the course to be pursued by these involves questions painful in the discussion of them. God grant that the menacing appearances which obtruded it may not be followed by positive occurrences requiring the more painful task of deciding them."

I

The reader will not fail to notice the penetration of this venerable statesman, in his retirement, in marking the causes that had begun to operate in promoting the growth of fatal errors. He speaks of the natural feelings which laudably attach the people of a state to its authority and importance; the unnatural excitement of sectional feelings; and the danger of being misled into erroneous views of the nature of the Union and the interest that all have in it. In weighing, therefore, the moral accountability of our Southern brethren for their share in producing the late civil war, let it not be forgotten that more than forty years ago Mr. Madison pointed out that it was opinion, honest, however mistaken opinion, that was possibly destined, under natural influences and the excitements of feeling, to bring the Union into the terrible necessity of encountering secession. I am in no way concerned to justify the Rebellion, as we are accustomed to call this great national schism. I am describing the growth of opinion on a complicated subject of human duty. How far we are morally accountable for the formation of our opinions on any subject-how far we are morally bound to forecast the consequences of our opinions-is a subject too vast to be entered upon here; and it is, moreover, a subject entirely distinct from the history of opinion.

To return to that history, it is only necessary to say further,

'Madison's Works, IV. 290.