Thirty Years' View (Vol. 1 of 2) / or, A History of the Working of the American Government for Thirty Years, from 1820 to 1850

by Thomas Hart Benton

I do not discuss these resolutions at this time. That discussion is no part of my present object. I speak of the pledge which they contain, and call it a mistake; and say, that whatever may be the wishes or the opinions of the people of Missouri on the subject of the extension or non-extention of slavery to the Territories, they have no idea of resisting any act of Congress on the subject. They abide the law, when it comes, be it what it may, subject to the decision of the ballot-box and the judiciary.

I concur with the people of Missouri in this view of their duty, and believe it to be the only course consistent with the terms and intention of our constitution, and the only one which can save this Union from the fate of all the confederacies which have successively appeared and disappeared in the history of nations. Anarchy among the members, and not tyranny in the head, has been the rock on which all such confederacies have split. The authors of our present form of government knew the danger of this rock, and they endeavored to provide against it. They formed a Union—not a league—a federal legislature to act upon persons, not upon States; and they provided peaceful remedies for all the questions which could arise between the people and the government. They provided a federal judiciary to execute the federal laws when found to be constitutional; and popular elections to repeal them when found to be bad. They formed a government in which the law and the popular will, and not the sword, was to decide questions; and they looked upon the first resort to the sword for the decision of such questions as the death of the Union.

The old confederation was a league, with a legislature acting upon sovereignties, without power to enforce its decrees, and without union except at the will of the parties. It was powerless for government, and a rope of sand for union. It was to escape from that helpless and tottering government that the present constitution was formed; and no less than ten numbers of the federalist—from the tenth to the twentieth—were devoted to this defect of the old system, and the necessity of the new one. I will read some extracts from these numbers—the joint product of Hamilton and Madison—to show the difference between the league which we abandoned and the Union which we formed—the dangers of the former and the benefits of the latter—that it may be seen that the resolutions of the general assembly of Missouri, if carried out to their conclusions, carry back this Union to the league of the confederation—make it a rope of sand, and the sword the arbiter between the federal head and its members.

Mr. B. then read as follows:

"The great and radical vice, in the structure of the existing confederation, is in the principle of legislation for States or governments, in their corporate or collective capacities, and as contra-distinguished from the individuals of which they consist. Though this principle does not run through all the powers delegated to the Union, yet it prevades and governs those on which the efficacy of the rest depends. The consequence of this is, that, though in theory constitutionally binding on the members of the Union, yet in practice they are mere recommendations, which the States observe or disregard at their option. Government implies the power of making laws. It is essential to the idea of a law that it be attended with a sanction, or, in other words, a penalty or punishment for disobedience. This penalty, whatever it may be, can only be inflicted in two ways—by the agency of the courts and ministers of justice, or by military force; by the coercion of the magistracy, or by the coercion of arms. The first kind can evidently apply only to men; the last kind must of necessity be employed against bodies politic, or communities, or States. It is evident there is no process of a court by which their observance of the laws can, in the last resort, be enforced. Sentences may be denounced against them for violations of their duty; but these sentences can only be carried into execution by the sword. In an association where the general authority is confined to the collective bodies of the communities that compose it, every breach of the laws must involve a state of war; and military execution must become the only instrument of civil obedience. Such a state of things can certainly not deserve the name of government, nor would any prudent man choose to commit his happiness to it."

Of the certain destruction of the Union when the sword is once drawn between the members of a Union and their head, they speak thus:

"When the sword is once drawn, the passions of men observe no bounds of moderation. The suggestions of wounded pride, the instigations of irritated resentment, would be apt to carry the States, against which the arms of the Union were exerted, to any extremes necessary to avenge the affront, or to avoid the disgrace of submission. The first war of this kind would probably terminate in a dissolution of the Union."

Of the advantage and facility of the working of the federal system, and its peaceful, efficient, and harmonious operation—if the federal laws are made to operate upon citizens, and not upon States—they speak in these terms:

"But if the execution of the laws of the national government should not require the intervention of the State legislatures; if they were to pass into immediate operation upon the citizens themselves, the particular governments could not interrupt their progress without an open and violent exertion of unconstitutional power. They would be obliged to act, and in such manner as would leave no doubt that they had encroached on the national rights. An experiment of this nature would always be hazardous in the face of a constitution in any degree competent to its own defence, and of a people enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority. The success of it would require not merely a factious majority in the legislature, but the concurrence of the courts of justice, and of the body of the people. If the judges were not embarked in a conspiracy with the legislature, they would pronounce the resolutions of such a majority to be contrary to the supreme law of the land, unconstitutional and void. If the people were not tainted with the spirit of their State representatives, they, as the natural guardians of the constitution, would throw their weight into the national scale, and give it a decided preponderance in the contest."

Of the ruinous effects of these civil wars among the members of a republican confederacy, and their disastrous influence upon the cause of civil liberty itself throughout the world, they thus speak: