Nullification, Secession, Webster's Argument, and the Kentucky and Virginia Resolutions / Considered in Reference to the Constitution and Historically

by Caleb William Loring

By the 13th of June the Virginia resolutions had been considered and passed with changes and amendments,[22] the first resolution as changed, being that a national government ought to be established; the plan as to representation (Resolves 7 and 8), being that the representation in the two branches of the Legislature should be in accordance with the free population and three fifths of all other persons (slaves), and excepting Indians.

Further action on this report was deferred to June 14th at the request of Mr. Patterson, who then offered a plan called that of New Jersey, formed by the deputations of Connecticut, New York, New Jersey, and Delaware, preserving the articles of the confederation, one Legislature, the equal vote of each State, but revising, correcting, and enlarging the conferred powers so as to render them “adequate to the exigencies of government and the preservation of the Union.” In the resolutions the Executive, if any State or any body of men in the State should oppose the execution of the acts or treaties of the government, was to call forth the power of the States to enforce and compel an obedience.[23] The ratification was to be by the Legislatures of the States; that of the Virginia plan was to be by the people. The objection that the delegates to the convention were exceeding their authority, which was only to amend the articles of the confederation, was again brought up; the discussion whether the government should be national or a confederacy was again renewed. It was pointed out as a fatal objection by Madison, Hamilton (who then spoke for the first time), and others, that under a confederacy the coercing of a State to pay its quota or compelling it to obey would in fact be a civil war, where the militia of other States would have to march against the delinquent power. Hamilton said he neither liked the Virginia nor the New Jersey plan; he praised the constitutional monarchy of Great Britain as the most perfect government. He was particularly opposed to Patterson’s plan, “being fully convinced that no amendment of the confederation leaving the States in possession of their sovereignty could possibly answer the purpose.”[24] He stated the plan he should prefer: a general government, with an executive and a senate for life or good behavior, the general government to have the appointment of the governors of each State, who should have a veto over the State laws.[25] He wished the States abolished as States, but admitted the necessity of their having subordinate jurisdiction.[26] He was aware that others did not approve of his plan, nor would they, he thought, of that of Virginia, but they might finally come to it. He thought universal suffrage a bad principle of government. He apparently did not know how strongly the democratic feeling existed amongst the people of this country; nor perhaps appreciate the strength of a government that has at its back the will and brute power of the majority of fighting men, as shown in our civil war. He made that unfortunate speech, afterwards used against him, that the people were getting tired of an excess of democracy, “and what is even the Virginia plan but pork still, with a little change of the sauce.”[27]

As no one seconded Hamilton’s plan and he did not urge it, the question before the convention was between Mr. Patterson’s plan enlarging the power of the confederacy or the national one of Virginia. The former, after much debate, was laid aside, only New York and New Jersey voting no. The Virginia resolutions were taken up again by a vote of seven States ay, to three nay, Maryland divided, which was a vote, so Madison says, that they “should be adhered to as preferable to those of Mr. Patterson.”[28]

That the word national was dropped from the resolutions of Virginia has been dwelt upon by Southern writers, and by Calhoun at length in his speech of 1833, as a proof that the national idea was abandoned. No such conclusion can be drawn from the way in which it was done. On June 20th, the day after the Virginia resolutions were again taken up and adopted, the first resolution being before the House, Mr. Ellsworth moved it should read: “That the government of the United States ought to consist of a supreme legislative, executive, and judiciary.” This alteration, he said would drop the word national and retain the proper title, “The United States.” Mr. Randolph said he did not object, and it was unanimously acquiesced in.

The second resolution, that the Legislature should consist of two branches, was taken up. Mr. Lansing moved instead, that “legislation be vested in the United States in Congress,” and again urged a confederacy. On this George Mason,[29] to whom Mr. Lodge refers, said he did not expect this point to be re-agitated, and compared a national government to a confederate one. He spoke, “with horror,” of the necessity that the latter would have of collecting its taxes by compulsion over States, of marching the militia of one State against another to enforce taxes; rebellion was the only case where military force should be exerted against citizens. In the early days of the convention he had urged that the new government should be one over individuals not States. He would not, however, abolish the State governments or render them absolutely insignificant. This second resolution was carried seven States to three, Maryland divided.[30]

The next resolution, that the first branch of the Legislature should be elected by the people, was supported by Mason, and Wilson said he considered it the corner-stone of the fabric; only New Jersey voted against it, Maryland divided.

On the resolution of how the second branch of the Legislature should be elected—by the State Legislature or the people,—Virginia voted that it should be by the people.[31]

That the representation in the first branch should be in proportion to the people was established. Then June 29th began the great controversy in the convention of how the representation should be in the second branch, whether in proportion to population or by State.

When this discussion took place, the three great States were Virginia, Massachusetts, and Pennsylvania. Virginia then comprised the territory which is now West Virginia and Kentucky, and, including her slaves, had the largest population. Massachusetts, instead of being insignificant in territory, had the large area of Maine, which was made into a separate State in 1820. Massachusetts had the largest white population and had furnished more soldiers than any other State in the Revolution; and it was probably for this reason that Madison alluded to it as the most powerful State. New York had then about the same population that Connecticut and Maryland had, and from apparent want of foresight as to its future great and immediate increase in population and power took a prominent part with the smaller States that wished representation should be by an equal vote in both branches of the new Legislature. The representatives of Connecticut, Sherman and Ellsworth, were also strenuously in favor of equality of States. Ellsworth, in reply to Madison’s attack on Connecticut for refusing compliance to federal requisitions, excused his State by reason of her distress and impoverishment by her exertions during the revolutionary war, and asserted that the muster rolls will show she had more troops in the field in the revolutionary war than even Virginia, and he appealed to the presiding officer, Washington, as to the truth of his statement.[32] Georgia, then estimated to be the smallest in population, trusting to the future settlement of its claimed large territory extending from the sea-coast to the Mississippi, usually voted with the larger States.[33] Mr. Bedford, of Delaware, asserted that South Carolina, puffed up with the possession of her wealth and negroes, and North Carolina were both united with the great States, and for the smaller States threatened, “sooner than be ruined, there are foreign powers who will take us by the hand.”[34] For this he was very justly rebuked by Rufus King, of Massachusetts. It was hard for the smaller States having an equal vote in the Confederacy to change it for one proportioned to inhabitants. It was estimated that Delaware would have but one representative in each branch to Virginia’s sixteen. The argument of the smaller States was that Virginia, Massachusetts, and Pennsylvania would combine to crush the other States. Madison replied that their interests were so different there was no fear of this. Massachusetts’ product was fish; Pennsylvania’s, flour; Virginia’s, tobacco. He predicted that the struggle, when it came, would be between the Southern States with their interests as exporters and the Northern commercial States. The opinion was pretty generally entertained that any division that might arise would be between North and South.