1776-1860] THE DOCTRINE ESTABLISHED

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like an individual. The decision was given by Justice Wilson, unquestionably the ablest constitutional lawyer in the convention that made the Constitution, and was strengthened by a similar opinion by Chief Justice Jay. In a powerful dissenting opinion, Justice Iredell, basing his reasons on the common law, declared the states to be as sovereign within their sphere as was the United States within its own. His opinion was accepted by Georgia as the constitutional one, and was welcomed by the Republicans as the foundation for their political creed. On the day following the decision, Sedgwick, of Massachusetts, in the House, moved a resolution, preliminary to an amendment to the Constitution, to protect the sovereign states from suits brought by individuals. Congress took no immediate action, but the spirit of his resolution quickly overspread the country, quickened the party which Jefferson was organizing, and culminated in the Eleventh Amendment, the adoption of which was announced to Congress by President Adams just thirty-four days before Jefferson wrote to Wise on the state of political parties.

The doctrine of state sovereignty thus got constitutional standing. The party by whose influence the amendment had been carried through, by the elections in 1800 was put in possession of the government. It reversed the majority in the Senate and gained twenty-three members in the House, giving it a majority of eighteen. On the twentysixth ballot the House chose Jefferson President. Thus, curiously, the author of the Kentucky resolutions, who first made the doctrine of state sovereignty a principle in the creed of a great party, was chosen to the presidency by the representatives of the people voting as states. For sixty years the party which he had organized was to follow an unprecedented career. During that time thirty Congresses assembled and thirteen "greatly distinguished citizens," as Lincoln described them in his first inaugural, administered the government. That party was to elect ten of these Presidents, and to control both the Senate and the House in twenty-three of these Congresses. In five others it was to control the Senate. In one Congress only was it to be in the minority in both branches: for two years from the

inauguration of William Henry Harrison the Whigs were to have a majority in both Houses, but-John Tyler was President.

Had Jefferson's wishes been carried out, the Virginia and Kentucky resolutions would have become an amendment to the Constitution. With his party firmly in control of the government, this was unnecessary. The doctrines of 1798 were a perennial theme for discussion-in state constitutional conventions, in Congress, and in the political literature of the country. They came gradually to be construed as the warrant for administrative measures, and by a political school as the implied interpretation of the supreme law. Economic events greatly affected this school, and ultimately divided it. The first tariff act expired in 1796, having been in force nearly seven years. It was not listed among the acts specially odious to the party which Jefferson was then organizing. But the act of 1816 combined the principles of revenue and protection, and from the April day when Monroe signed it the idea of state sovereignty underwent a change. Thirty years before, Hamilton had declared that the national government would never be supreme until it should turn all the principles and passions of men to its support. From the passage of the tariff of 1816, the national government gradually became identified with the personal fortunes of a manufacturing class. The doctrines of 1798 were from this time made to include the doctrine of free trade. The old parties divided on new lines, and the first industrial struggle between them began. The country, hitherto agricultural, now divided into manufacturing states and agricultural states: into the northern with free labor, and the southern with slave. There were tariff men in the South and Southwest, but the majority there gradually combined into a party favoring free trade, state sovereignty, and slavery extension. The first struggle between the radical wing of this party and the national government culminated in the effort of South Carolina to nullify the tariff laws in 1833, and to administer the doctrines of the Kentucky resolutions of 1799. On the 16th of March of that year, Augustus Fitch, one of Jackson's innumerable political scouts, wrote to the President

1776-1860]

SOUTH CAROLINA, DRED SCOTT

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an account of what he saw in the Columbia convention when it rescinded the ordinance of nullification. The chief obstacle to rescinding was that "Mr. Clay's bill did not fully abandon the principle of protection." Across the face of this unpublished letter Jackson wrote: "The Ordinance & all laws under it repealed-so ends the wicked & disgraceful conduct of Calhoun McDuffie & their co-nullies. They will only be remembered, to be held up to scorn, by every one who loves freedom, our glorious constitution & government of laws."

But the doctrines of 1798 survived. Pierce and King were elected in 1852 on a platform which incorporated the Virginia and Kentucky resolutions. The party electing them declared that the doctrines of 1798 constituted one of the main foundations of its political creed, and that it was resolved to carry them out in their obvious meaning and import. On this issue the party elected a majority in both branches of Congress, received a majority of the popular vote, and chose more than five-sixths of the electoral college. Four years later it incorporated the same plank in its platform, continued its control of Congress, and elected Buchanan and Breckenridge; but their popular vote was only a plurality, and they received only five-ninths of the electoral vote. Two days after the inauguration the decision in the Dred Scott case, long anxiously awaited, was handed down. The chief justice declared that the United States did not possess all the powers which usually belong to the sovereignty of a nation. The states had surrenderd only a portion of their sovereignty. The ordinance of 1787 violated their sovereign rights. As in the case of Georgia in 1794, so in that of Dred Scott, the state alone had final jurisdiction. The doctrines of 1798 had again triumphed.

In October following, the Lecompton convention applied the decision in the first constitution proposed for Kansas, in which the state was described as free, sovereign, and independent-the last instance of the use of the word in an American constitution. The election of Buchanan and the Dred Scott decision proved that the doctrines of 1798 were still held in high favor, and also that the sentiment of the

country was rapidly changing. The nature of the change is suggested in an appeal to the people of the United States which emanated from the leaders of a new party opposed to slavery extension. It appeared in January, 1854, and was signed, among others, by Sumner, Chase, and Giddings. It put opposition to slavery extension wholly on industrial grounds. If slavery were permitted in Kansas and Nebraska, it would restrict immigration, enhance the cost of constructing the proposed Pacific railway, and cut off the free states of the Atlantic from the free states of the Pacific. The development of the central portion of the continent would be hopelessly prevented. The economic argument was elaborated from this time, till an industrial constitutency was thoroughly organized into a new political party. As the opposition in 1794 found constitutional standing-ground in the dissenting opinion of Justice Iredell, so the opposition in 1854 found a constitutional basis for their opinions in the dissenting opinion of Justice Curtis in the Dred Scott case.

Congress showed the effect of a changed public sentiment. In the thirty-sixth, the second of Buchanan's administration, the new Republican party gained control of the House. Two years later the new party gained control of both houses and elected Lincoln, displacing that great party which, sixty years before, had in like manner driven the Federalists from power. The new industrial doctrines which had triumphed over the doctrines of 1798 were briefly set forth in President Lincoln's first inaugural: "The Union is much older than the Constitution. It was formed, in fact, by the Articles of Association in 1774." Few indeed of those who heard him could have told at that moment what were the articles to which the President referred. Two years older than the Declaration of Independence, they declared the industrial independence of the colonies. They were a solemn non-importation agreement to encourage "frugality, economy, and industry, and promote agriculture, arts, and the manufactures of this country. The nation rested on industry, the nation was sovereign-ideas antagonistic to the doctrines of 1798. These ideas were now to be tested by civil war.

CHAPTER XXXI

THE STATES BEFORE THE CIVIL WAR

1800-1860

The state constitutions adopted down to the outbreak of the Civil War were thirty-two in number, and fell under the general law of migration. Those which had been adopted west of New England and the middle states strongly resembled their originals in these states. older southern states were the parents of constitutions adopted west of them. The North and the South had become distinct communities, and the constitutions in force in the two sections indicated how deeply seated were many of the differences between them. At the North the civil unit was the township; at the South, the county. State government at the North was more or less of the New York type; at the South, more or less of the type prevailing in Virginia. During the first sixty years of the century, population had moved westward to the Pacific, and placed the entire public domain under local government. There were vast unsettled areas in the territories, and nearly as great ones in the states. The unoccupied region lay chiefly west of the Mississippi. Migration and immigration had carried the distinguishing features of the New York constitution westward and those of Virginia and Kentucky southwestward. The northern and southern streams of population first met in California, in 1849, and there resulted a composite commonwealth, the form of whose constitution resembled that of New York, but the spirit under which it was to be administered was strongly like that of Virginia.*

The bills of rights had changed but little since 1800, though two clauses, one distinctively northern, the other

*For an account of the California constitution of 1849-1850, see my Constitutional History of the American People, 1776-1850, Vol. II, Chapters X-XII.