Toney Arnold Hardy.

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Delivered at the University of Mississippi Annual
Commencement, June 3, 1907.

What Constituted the Southern States the True
Defenders of the Constitution and the Union.

"Rich in patriotism, in intellectual force, in civic
and military achievements, she advances, bearing with
her the proud heritage, advocated in council cham-
ber, justified at the bar, and vindicated in battle,
principles which constituted the Southern States the
true defenders of the Constitution and the Union."





"Mr. John W. Odom, of DeSoto County, has donated
to the University the sum of $2,000, 'the interest only
of which shall be awarded each year as a prize to that
student in the University of Mississippi who shall
present the best essay or oration (1) in defense of the
constitutional and legal right of the Southern States
in 1861 to secede from the Federal Union, or (2) upon
some topic the central thought and purpose of which
shall be to defend the course of the people of the
seceding States and their leaders, provided such essay
or oration shall be approved, and such award shall be
made by a committee of three disinterested judges
appointed by the Chancellor of the University. At
least every third year, commencing with the year
1906, the subject shall be a defense of the constitu-
tional and legal right of the Southern States in 1861
to secede from the Federal Union. For the inter-
vening years allied subjects as above indicated shall
be chosen and assigned by the Chancellor of the Uni-
versity of Mississippi and his successors in office.

" 'The most meritorious essay or oration offered
each year in competition, and for which the prize shall
be awarded, shall be presented in public during the
commencement exercises of the University, and other
essays or orations offered in the same competition
may be so presented if deemed advisable by the fac-
ulty of the University.

" 'The sum herein donated to the University of
Mississippi for the purpose herein stated shall be
known as the John W. Odom Fund, and the prize
hereby founded and established in the University
shall be known as the John W. Odom Confederate Me-
morial Prize.' "



1. The contest shall be open to all students of the

2. The prize shall be awarded upon the nature and
scope of research and excellence of literary style.

3. The essays or orations submitted in competition
shall have each not more than 4,000 words. The win-
ning oration shall be limited to not more than twenty
minutes in delivery.

4. The manuscripts in competition must be sub-
mitted in typewritten form, on standard thesis paper,
to the Chancellor by May 15th each year in order to
be considered.

5. The subject for 1907 is "What Constituted the
Southern States the True Defenders of the Constitu-
tion and the Union." — Catalogue of the University of
Mississippi, April, 1907.

In competition for this prize there were eight con-
testants, all Seniors, two from the Literary Depart-
ment and six from the Law Department.

The committee, composed of Hon. J. H. Kimmons,
Hon. H. H. Thomison, of the Oxford Bar, and Prof.
G. G. Hurst, Principal University Training School,
awarded the prize to Mr. Toney Arnold Hardy, Gulf-
port, Miss.


The establishment of truths — eternal, unchange-
able, immutable — is never wrong. Recognizing no
sanctity or infallibility in acts and opinions relating
to the South that she should escape historical criti-
cism or be exempt from all the tests of truth and honor,
it is the filial duty of the living New South to recon-
struct those ideas and opinions in so far as they are
based on ignorance or prejudice; for as now written,
if accepted in future years, they will consign the
South to infamy and clothe the gallant Confederate
soldier, as it were, with the fatal shirt of Nessus, fatal
to honor, to energy, to noble development, to true

That the war had its origin in opposing principles
which in their action upon the conduct of men pro-
duced the ultimate collision of arms, and that slavery,
so called, was but the question, among others, by
which these antagonistic principles which had been in
conflict from the beginning were finally brought into
actual and active conflict on the field of battle, may
be assumed as an unquestionable fact. The line of
demarcation between the opposing principles may be
drawn on the cardinal question of construing the
Constitution of the United States. The contest was
between those who held it to be strictly Federal in
character and those who maintained it to be thor-
oughly National. If Federal, sovereignty resides in
the people as they were originally formed in the colo-
nies and afterwards into States; if National, sover-
eignty resides in the people as they are merged into
the mass, one indivisible whole; if the States are
united by compact which prescribes no period for

the duration of their union, then in accordance with
the doctrine of secession, as laid down by Rawle and
Tucker, and Webster and Story, any State may of
right secede without any cause or reason for its with-

In order to understand what led to the adoption of
the Constitution and what kind of government was
established by that instrument, whether Federal or
National, it has seemed necessary to ascertain the
origin and history of the forces in operation anterior
to, as well as those concurrent with, the formation of
the Constitution, which forces were really the source
of its existence. This has been accomplished by
searching into the authentic records of official acts,
often forgotten, obscured or hid away, and by placing
upon them the original, natural and rational inter-

No one denies that each colony, distinct in origin,
was separate from and independent of the others,
the common bond of allegiance being through the
British Crown; and that this sovereignty had not
been jointly over all but separately 'over each, and
might have been abandoned as to some and retained
as to others. Yet it is avowed that when through
repeated breaches of chartered privileges and lawless
encroachments upon well established rights, these
colonies threw off the common bond— the British
Crown — that they changed politically the relation
subsisting between them. Bold assumptions and mis-
conceptions are these, to thrust upon the Declaration
of Independence, which created no new institutions,
was in no sense a charter of government, or of a con-
stitution, the instrumentality which could have sud-
denly and violently jerked the colonies into one para-
mount, indivisible sovereignty of one people. These

colonies became, according to their declaration, not
an independent nation, but free and independent
States. How manifestly illogical is an appeal to that
instrument as a source of congressional power!

This very need for a prompt and more effective
action than could be secured by tedious and uncertain
appeals to their constituent bodies — States now —
led to the adoption of the Articles of Confederation:
a compact entered into by the States, to which the
States as free, sovereign and independent political
communities were the parties. Was any purpose ex-
hibited by an entry into this compact to abandon
their sovereignty, authority or independence? On
the contrary, is it not shown that they clung to these
as an object of dearest, unyielding desire, demon-
strated in strong, unmistakable language by that
section of the Articles of Confederation which pro-
vides that "each State retains its sovereignty, free-
dom and independence and every power, jurisdic-
tion and right which is not by this Confederation
expressly delegated to the United States in Congress
assembled"? But this "rope of sand" did not mend
matters. That most fundamental of all the attri-
butes of sovereignty was lacking; its behests were
unenforcible. The impotence of treaties, financial
disaster, commercial depression and social disorder
caused many suggestions for enlarging powers and for
a more efficient interstate organization.

One of two alternatives remained: either to invest
Congress with larger powers or to supinely allow a
collapse of the government. As a last hope, as the
only feasible expedient, a Federal convention was
called, as expressed in the resolution of Congress,
"for the sole and express purpose of revising the Ar-
ticles of Confederation." Not to change the nature

of the general government, but to delegate to it some
additional powers and to adjust its machinery in har-
mony therewith. Such was the manifest object in
assembling the delegates. But the great question
with us is, was the federative feature of the "Union"
changed by the new Constitution? A resort to the
proceedings of the convention and to the face of the
Constitution there framed yields the best evidence.
If the ultimate sovereignty which unquestionably
resided in the people of the States was, in fact, aban-
doned, and thereupon a National government endowed
with ultimate, paramount sovereignty was presented
to the whole American people, en masse, for adoption;
if such a radical change was intended, contemplated,
or in fact effected, the face of the Constitution and
the proceedings of the convention, as a part of the
res gestae, will truthfully disclose. "They are the
title deeds of our political inheritance of constitutional

The convention, composed of delegates chosen by
the States, immediately upon organizing resolved
itself into a committee of the whole to consider the
plan of government submitted by Governor Ran-
dolph of Virginia. To the very first resolution Gov-
erneur Morris of Pennsylvania offered the following
substitute :

" Resolved, That a National Government ought to
be established, consisting of a supreme, judicial, legis-
lative and executive."

Governor Randolph's plan containing this sub-
stitute in the report of the committee came up before
the convention for consideration. The entire bill
was discussed pro and con; the ideas and objects of
the members, generally, developed; and the bearing
of this word "National" disclosed. Mr. Ellsworth of

Connecticut moved to expunge National Government
from the first resolve and insert Government of the
United States in its stead, "which was agreed to nem.
con." And wherever thereafter the words National
Government occurred in Randolph's plan, they were
stricken out and "Government of the United States,"
or its equivalent, was substituted. And why? The
truth is, quite a number of delegates including Ran-
dolph, Hamilton and Morris, were in favor of abolish-
ing the Federal system and for effecting a change of
sovereignty by establishing a great National Gov-
ernment. But they were in the minority, and thus
in the very first days of the convention were shat-
tered the hopes of those who had dreamed of a great
American empire.

Writers on the Constitution have asserted that one
people, or a nation de facto, formed the Constitution,
and the preamble has been the chief foundation upon
which these authors and the constitutional lawyers of
the North have built their arguments against the
rights of the States as sovereign co-partners. Mr.
Webster, in his great speech in the United States
Senate in 1833, concludes with a dissertation upon
this preamble:

"Finally, sirs," said he, "how can any man get over
the words of the Constitution itself? 'We, the people
of the United States, do ordain and establish this Con-
stitution.' These words must cease to be a part of
the Constitution, they must be obliterated from the
parchment upon which they are written, before any
human ingenuity or human argument can remove the
popular basis on which the Constitution rests, and
turn the instrument into a mere compact between
sovereign States."


But facts are stubborn things, and Mr. Webster's
theory and the facts are incompatible. Here is what
surviving contemporaneous records report:

On the 7th of August, 1787, a preamble reciting,
"We, the people of the States of New Hampshire,
Massachusetts, etc., do ordain, declare and establish
the following Constitution," utterly negativing any
idea of consolidation and preserving carefully the
entity and distinct sovereignty of the States, was unan-
imously adopted. On the 8th of September follow-
ing a committee was appointed "to revise the style
of" not to change the meaning of, the articles. Four
days later they made their report adopting the ver-
biage now found in the Constitution: "We, the people
of the United States, etc." Why was this change in
phraseology made and accepted? For a very obvious
and conclusive reason. It was not known which of
the States would ratify, and unlike the Articles of
Confederation, unanimity was not required for its
adoption or validity. It was to become obligatory
on the States adopting when nine had ratified. Hence
it would have been exceedingly inappropriate to set
forth in advance the action of the States in their free
and separate deliberations, a thing which no human
prescience could forecast.

Patrick Henry, that matchless orator and purest
of patriots, ably and formidably opposed the ratifi-
cation of the Constitution in the Virginia convention.
He, too, uninformed of the underlying facts, hurls
mercilessly bitter denunciation, burning invective,
and unveiled sarcasm at this same preamble.

"This proposal," said he, "of altering our Federal
Government is of a most alarming nature. My polit-
ical curiosity, exclusive of my anxious solicitude for
the public welfare, leads me to ask, who authorized


them to speak the language of 'we, the people,' instead
of 'we, the States' ? States are the characteristics
and the soul of a confederation. If the States be not
the agents of this compact, it must be one great, con-
solidated National Government of all the States."

Mr. Madison not only undermines this beautiful
superstructure by a recital of the circumstances mak-
ing necessary a change of phraseology, but with his
usual accuracy of thought utterly demolishes its very
elements. He produces from the same instrument
cumulative proof, arriving at the inevitable conclu-
sion, based as it is upon the rules of inexorable logic,
that the States are the agents of this compact. He
replied: "Who are the parties to it (the Constitu-
tion)? The people, but not the people as composing
one great body, but the people as composing thirteen
sovereignties. Were it as the gentleman (Mr. Henry)
asserts, a consolidated government, the assent of a
majority of the people would be sufficient for its
establishment, and as a majority have already adopted
it, the remaining States would be bound by the act
of the majority even if they unanimously reprobated
it; but, sir, no State is bound by it without its own

Pursuant to their declaration of freedom, sover-
eignty and independence, each of the States had pro-
ceeded, in its own manner, at its own convenience,
according to its own method, severally and distinctly,
to frame and adopt a State Constitution -and to organ-
ize the State government. Virginia, for example, on
the 29th of the same month before the signing of the
Declaration of Independence, performed the highest
function of State sovereignty by establishing of her
own free and sovereign will a Constitution which
continued as the basis of her government until 1829.


But the time had now arrived for an entry into the
more "perfect union." The labors of the delegates in
the Constitutional Convention, as to that convention,
were ended. The Constitution of the United States
of America had been framed. Conforming to its
enabling clause, that "the ratification of nine States
shall be sufficient for the establishment of this Con-
stitution between the States so ratifying the same,"
the States by separate and distinct acts began the
consideration of its provisions. The ablest men of
the country, in action and in council, were drawn
together in these State conventions. Divergence of
opinion, developed in the Constitutional Convention,
became more marked and distinctly defined. Debates
were dramatic, spirited and strong. The opposition
in nearly all of the States was bitter, stubborn and
formidable, and the small majorities assenting attest
the reluctance with which the people acceded to even
a partial dominion. And why such decided opposi-
tion? Was it because the Constitution threatened
the destruction of the autonomy of the States, central-
izing power in a National head, and investing the
new government with purse and sword? Only par-
tially so. It is true that strong men criticised the
inchoate Constitution as actually effecting these results:
destroying the sovereignty of the States. But the
great brunt of the opposition centered, not around
the position that State sovereignty would be literally
swept away; that the federative feature of the gov-
ernment under the Articles of Confederation would
be supplanted by a consolidated, National Govern-
ment, but, with an abiding conviction, and a pro-
phetic knowledge it now seems to us, that those in
authority would pervert to selfish aggrandizement
the letter and spirit of the Constitution; that Con-


gress would not be confined to enumerated powers,
and would abuse the implied. The predictions of
Patrick Henry in the Virginia convention show the
remarkable provision and sagacity of this friend of
liberty. In his last speech before the convention,
imploring the people not to ratify until, as a condition
precedent, a Bill of Rights had been appended to the
Constitution, he said:

"Whoever will advert to the use made, repeatedly,
in England of the prerogative of the King, and the
frequent attacks on the privileges of the people, not-
withstanding many legislative acts to secure them,
will see the necessity of excluding implications. Na-
tions who have trusted to logical deductions have
lost their liberty."

Reserve covenants, as convoys of safety, accom-
panied the ratification papers of most of the States,
so fearful were the people, fresh from the defense of
violated charters and faithless aggressions on inalien-
able rights, of the accretion of power by the Federal
Government. Massachusetts and New Hampshire in
ratifying proposed "as a safeguard to all the States"
an amendment reserving to the several States, to be
by them exercised, powers not expressly granted by
the Constitution. South Carolina accompanied her
accession to the Union with the following resolution:
"This convention doth also declare that no section or
paragraph of the said Constitution warrants a con-
struction that the States do not retain every power
not expressly relinquished by them, and vested in
the general government of the Union." Virginia
announced with her ratification that the powers
granted under the Constitution, being derived from
the States, might be reassumed by them whenever
the same shall be perverted to their injury and oppres-


sion,'" and further shielded the rights of the States
by declaring that "every power not delegated remains
with the States, and at their will." New York, to
the same effect, with her ratification declared that
the powers of government might be reassumed by
the people whenever it should become necessary to
their happiness, and that every power, jurisdiction
and right that was not delegated to Congress remained
to the several States, or to the respective State gov-
ernments. Rhode Island withheld her ratification
for three years on account of the power granted to
Congress to regulate foreign and interstate com-
merce. Possessed of the best harbor on the Atlantic
coast and an advantageous natural location for the
carrying on of commerce, she entered the Union with
marked diffidence, and only then upon a well grounded
assurance, as avouched at the time of her ratification,
that the "powers of government might be resumed
whenever it should become necessary to her happi-
ness." Rhode Island might have never entered the
Union! It is material to this discussion and inter-
esting to inquire, what relation politically she would
have borne, in that event, to the individual States
and to the Federal Government, which is tantamount
to asking: Would Rhode Island have been an inde-
pendent State or a territory under the Union? It is
a naked, historical fact that the government under
the Constitution did actually go into operation sev-
eral months before either Rhode Island or North
Carolina joined the Federal Union. The action of
these States during that interval had not, most re-
motely, bound or civilly affected the action of the
individual States or of the United States. Nobody
pretended to any right of coercion, a heresy that was
promulgated for the first time during General Jack-


son's administration by Mr. Webster, or of interfer-
ence with the exercise by these States of any political

It seems conclusive of argument, after noting the
particular, separate and several action of the States
in ratifying, where the nature and character of the
Constitution and the resulting union, as revealed by
the debates, clearly indicate that while many appre-
hended danger from an encroachment upon the sov-
ereignty of the States by constructions and implica-
tions, yet almost universally it was the avowed under-
standing of its nature by advocates and supporters,
many of whom, like Hamilton and Madison, had
favored a National Government in the Constitutional
Convention, that it purported to be, according to the
authoritative definition of Montesque, a Federal Con-

It is premised that the Union as created by the
Constitution is a Union of States and not of peoples;
that the Federal Government has been instituted by
the States and for the States. Under the Articles of
Confederation each State in determining all ques-
tions, it will be remembered, had but one vote irre-
spective of population. Bold and audacious though
it may appear, it is confidently asserted without fear
of successful contradiction that in this respect there
is no essential change under the new Constitution.
The fifth article provides the manner in which amend-
ments may be made to the 'Constitution, expressly
stipulating therein that no amendment shall ever be
made, in any manner, which shall deprive the States
of their equal suffrage in the Senate. Surely this
truly remarkable instrument, of which England's
most illustrious statesman has proclaimed that it is
"more than the expression of calm wisdom and lofty


patriotism. It has its distinctive providential ele-
ment," contains no surplusage, and this particular
section came there through no mere inadvertence.
What, then, if any, are the characteristic features of
the American system of government which reflect
the object and purpose of the delegates in the conven-
tion in framing a provision which makes indestructible
the equal suffrage of the States in the Senate? It is
answered: Can any measure be passed, any law
enacted, can any man be appointed to any office of
dignity or profit unless a majority of the States, by
and through their Senators, favorably concur? And,
further, as Alexander Stephens has forcibly sug-
gested, "In fact, can the government in any of its
phases and function be operated at all, if a majority
of the States in the Senate refuse their co-operation?"
The Supreme Court of the United States has so held.
In Cohens v. Virginia, Chief Justice Marshall uses this
language: "It is true that if all the States or a ma-
jority of them refuse to elect Senators the legislative


Online LibraryToney Arnold Hardy...What constituted the southern states, the true defenders of the Constitution and the Union .. → online text (page 1 of 2)