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gainst the States ih*o»a-tivt». a hat a larg*l M>r -*°”
,,» people of thp Upitej Slates thus r»S ;,n * *‘ ie
„ lieivi,.-to the :Viiie and the ger^ral gevcrn-
mdudin* nuiiv who call itemsclves the
; ii,! s ni state rights am! oppone» ,,; 4, l consolida
tion, can scarcely he doubled. a* * l "* "“'i 1 on that
supposition, it can be explained. that aw many of that
description, shtrttlil denounce the tlorinne tor which
the state :. r ontcn<r», m soabsurtl. But fortunately,
the r ipiiosition is entirely destitute of truth. So
’i.ir tram the ( 004111111100 being the work <>t the A-
merican people collsctirely, no such political body,
eiihc r now, or ever did exist. In that character the
people of this country never performed a single
political act, nor indeed can, without an entire rev
olution, in all our political relations.
I challenge an instance. From the beginning,
ami in nlf the changes of political existence,
through which we have passed, the people of the
United States hare been united, as forming politi
cal communities, and not as individuals. Keen in
the first stage of existence, they formed distinct
colonies, indepemleniof each oilier, amJpolitically
united only through"the finish Crown. In their
•irst 1 formal Union, for the purpose of resisting the
encroachments of the Mother Country, they united
as distinct political communities; and, passing
from (heir Colonial condition, in the act announc
ing their independence to the world, they declared
themselves, by riarac and enumeration, free and
independent slates. In that character, they form
ed the oldrconfcderation ; and, when it was propo-
.. :d tc supercede the articles of the confederation,
by the present constitution, they met in conven
tion as states, acted and voted, as states; and the
constitution, when formed, was submitted for rati
fication to the people of the several states; it was
ratified, by them as states, each state for itself,
each by its ratification binding its own citizens ; the
paits thus separately binding themselves, and uot
the whole, the parts; to which, if it be added, that
it is declared in tlto preamble of the constitution,
to iie ordained by the] people of the United States,
and in the article of reification, when ratified, it is
declared “to be binding between the states so rat-
ifying," the conclusion is inevitable, that the con
stitution is the wotk’of the people of the states,
considered as sep arate aud independent political
communities—that they a/e its authors—their pow
er created it—their voice clothed it with authori
ty that the government it formed is in reality their
agent—and that the Union of which it is the bond,
is an Union of states, and not of individuals. No
•me, who regards bis character for intelligence and
truii. has ever ventured directly to deny facts so
certain; hut while they arc too certain for denial,
they arc also too conclusive in favor of the rights of
the states for admission. The usual course has
been adopted to elude what can neither be denied
nr.r admitted, and never Ins the device been more
successfully practised. By confounding slates,
with statu governments, and the people of the states
with the American people collectively, things, as
it regards the subject of this communication, to-
tally dissioiilar, as much so as a triangle and a
square, facts of themselves perfectly certain and
plain, and which, when well understood, must lead
to a correct conception bfthe subject, have been
involved in obscurity ahd mystery.
i will next proceed to state some of the results
which necessarily follow, liom the facts which
have been established.
The first, and in reference to the subject of this
Communication, the most important is, that there
is no direct and immediate connexion between the
individual citizens of a State and the General
Government. The relation between them is thro’
the State. The Union is an Union of States, as
communities, and not an Union of individuals.
As members of n State, her citizens were original
ly subject to no control, but that of the State;
and could be subject to no other, except by the
act of the State itself. The Constitution was ac-
cotdingly submitted to \ho Stntes fbr ihctr sejm-
rato ratification; aud it was only by the ratification
of the State that its citizens became subject to the
control of tho General Government. The ratifi
cation of any other, or all other States, without its
own, could create no connexion between them and
the General Government, nor impose on them the
slightest obligation. Without the ratification of
their own State, they would stand in the same re
lation to the General Government as do the citi
zens or subjects of any foreign State; and wo find
the citizens of North Carolina and Rhode Island
actually bearing that relation to the Government,
for sour* time alter it went into operation, these
States having in the first instance declined to ral-
ily. Nor had the act of any individual the least
influence in subjecting him to the control of the
General Government, except as it might influence
the ratification of the Constitution by his own
State. Whether subject to its control or not, de
pended wholly on the act of the State. His dis
sent had not tho least weight against the assent of
his State, nor his assent against its dissent. It
follows as a necessary conscqucnee, that the act
of ratification bound tho State as a commOnity, as
is expressly declared in the article of ratification
above quoted, and not the citizens of the States as
the former. Another, and a highly important con
sequence, as it regards the subject under investi
gation, follows with equal certainty; that on a
question, whether a particular power exercised by
the General Government, be granted by the Con
stitution, it belongs to a State as a member of the
Union, in her sovereign capacity, in Convention,
to determine definitively, as far as her citizens are
concerned, the exti-nt ol the obligation which she
contracted, aud if. in her opinion, tho act exercis
ing the powci be unconstitutional, to declare it
null and void, which declaration would bo obliga
tory On her citizens. In coming to this conclu*
ston, it mav be proper to remark,-to prevent mis
representation, that I do not claim for a State the
right to abrogate an act of the General Govern
incut. It is the Constitution that annuls an un
constitutional act. Such an act is of itself void,
and of 110 effect. What I claim is the right of n
State, as far as its citizens arc concerned, to de-
idare tiio extent of the obligation, and that such
declaration is binding on them—a right, which lim
ited to its citizens, flowing directly from the rela
tion of (lie State to the General Government, on
the one side, and its citizens on the other, as al
ready explained, and resting on the most plain and
solid reasons
Passing over, what of itself might he consider
ed conclusive, the obvious piiuciplc, that it be
longs to the authority which imposed the obliga
tion to declare its extent, as far as those are con
cerned on whom the obligation is placed, I shall
present u single argument which, of itself is de
cisive. I have already shewn that there is no
immediate connexion between tho citizens of a
State and tho General Government, and that the
relation between them is through tho State. 1
have also shown, that whatever obligations were
imposed on the r.tiz.cns, were imposed by the
declaration of ih- '*•:<> , ratifying the Constitu
tion. A similar «b i.(ration, by the same autlior-
Dor „l hv analogy. The case of a treaty be
tween sovereigns' is strictly analogous. 1 here,
as in tli.J case, the State contracts for the CJti-
zen or subject;—there, as in this,tue obtig
is imposed by the State; and is independent
Ids will; and* there, ns in this, the declaration of
the State determining the extent of tlie obliga
tion contracted, is obligatory 011 him, as much so
as tho treaty itself.
Having now, I trust, established the very im
portant point, that the declaration of a State, as
in the extent of the power granted, is obhgamry
on its citizens, I shall proceed to consider the et-
fects of such declarations in rcfcrctirc to the
General Government; a question which neces
sarily involves the consideration of the relation
between it and the States. It lias been shewn,
that tlm people of the States, acting as distinct
and independent communities, arc the authors ot
the constitution, and that the Gcucral Govern
ment was organized and ordained by them to ex-
ositiou to grant power, “to negative all laws con
trary, in tlie opinion of the National Legislature,
to the articles of the Union, or any treaty subsist-
th'is'\ 1 w obligati011 ! i.tg under the authority of the Union; aud to call
1 u indenendeut of forth the force of the Upton against any
of the Union tailing to fulfil its duty under the arti
clcs thereof.” Thp next project submitted (Charles
Pinckney’s) coiitaiued a similar provision. It pro
posed “that the Legislature of the United *-<atcs
should have the power to revise the laws of the
several States, that may be supposed to infringe
the powers exclusively delegated by this consti
tution to Congress, and to negative mid annul
such as do.” The next was submitted by Air.
Paterson of New Jersey, which provided, “if auy
State, or body of men in any State, shall oppose
• * * T _ — cVin l» fiptc
cento its powers.
Tho Government then, with
kU 113 . . . f ^
all its departments, is m fact tho agents of the
States, constituted to execute their joint will, as
expressed in the constitution. . .
In using the term agent, I do not intend to de
rogate in any degree-, from its character, as a Go
vernment. It is as truly tod properly a Govern
ment, as are the State Governments themselves.
I have applied it, simply because it strictly be
longs to the relation between the General Gov
ernment and tho States, as, in fact, it docs also
to that between a State and its own government.
Indeed, according to our theory, Governments
are in their nature but trusts, and those appomt-
to admiuister them, trustees or agents to execute
the trust powers. The sovereignty resides else
where; iu the people not in the govcruniont.
And with us, the people, mean tho people of the
several States originally formed into 13ylistiuct
and independent communities, anil now into 24.
—Politically speaking in reference to our system, house assent to the same ;’ w mea, ;
there arc no other people. The General Govern- ftetti d attempt to commit, was will
ment, as well as those af the States, is but the or- . I ‘lo not deem it necessary to trac
* - . . si..* irmrnnk nf tl»ft rnnrfttitinn t!i« fate c
gan of their power; the latter, that of their res
pective States, through which arc exorcised sep
arately that portion of pdwer not delegated by the
constitution, and in the exercise of which, each
State has a local and pceuuliar interest, the for
mer, the joint organ of all the States confederat
ed into one gcueral community, and through
which they Jointly aud coucurriugly exercise the
delegated powers in which all have a common in
terest. Thus viewed, the constitution of the U-
nited States, with tho Government it treated, is
truly and strictly the constitution of each State;
as much sO as its own particular constitution aud
Government, ratified by the sarno authority, iu
tho same mode, and having, as far ns its citizens
are concerned, its powers and obligations from
the same source; differing only in the aspect, un
der which 1 am considering the subject, in the
plighted faith of tho States to its co-itntcs, and
of which! os far as its citizens aro considered,
tho State, iii the last resort, is the exclusive
judge.
Such then, is the relation between the State
and the Gcucral Government. Iu whatever light
WC may cousidcr-the constitution, whether as a
compact between the States or of the nature of a
legislative enactment by the joint ami concurring
authority of the States, in their high sovereignty.
In whatever light it maydi'c viewed, I hold it as
necessarily resulting, that in the ease of a power
disputed between them, the Government, as tho
agent, has no right to enforce its construction a-
gniiist the construction of the State, ns one of the
sovereign parties to the constitution, any more
than the State Government would have against
the people of the State in their suvereign capaci
ty, the relation being the same between them.—
That such would be the case between agent and
principal in the ordinary irananvii^ua i;r v , .. u
will Jonbt, ..or will it bo possible to assign a
reason, why it is not as applicable to the case of j
government as that of individuals. The priu.t !
plo in fact, springs from tho relation itself, and is
applicable to all its forms and characters. It
may however, bo proper to notice a distinction
between the case of a single principal and his a-
geut, and that of several principals atid their joint
agent, which might otherwise catfse some confu
sion. In both cases as between the agent and a
principal, the construction of the principal, wheth
er he be a single principal or one of several, is
equally conclusive; but, in tho latter case, both
the principal ami the agent bear relation to the
other principals, which must he taken irito'the es
timate, in order to understand fully all the re
sults which may grow out of the contest for pow
er between them. Though the construction of
the principal is conclusive against the joint agent
as between them, such is not the case between
him aud his associates. They both have an e-
qual right of construction, and it would bo the
duty of the agent to bring the subject before the
principal to be adjusted according to the terms of
tlie instrument of association; ami of the princi
pal to submit to such adjustment. In such ca
ses the contract itself is the law, which must de
termine the rclativo rights and powers of the par-
imlivi Inals, the latter being bound through their . ,
" ate, and ,n consequence of the ratification of ties tott. Iho General Government is a case of
i.iUo with
tty, ir
tent of tlm obligatii :
couceru^d. be of « | 1
course, on the itippo-i
been transferee.!, a.,
that it has not. A •
right to question the o
other declaration i’
tli irity ; ami ;is In: w
of ins Siam tissr uting
or he assented or U.
itrd, so
e hiring the ex-
fnr as they aro
1 speak, of
te right has not
•after he shown
have no more
would have the
:!:o same nu
ll.c dec.araiion
‘■'utioii, whcdi-
uld i-i he equal
ly buuud by a dm l.irutiou declaring the >xtentof
|j'il asset) t. whether oppose.) to, or 10 fnv,^ 0 j-
«uch declaration- Iu this conclusion I am su f .
joint agency—the joint agent of the twenty-four
sovereign Statos, It would he its duty,-accord
ing to tho principles established iu such cases, in
stead of endeavoring to enforce its construction
of its (rowers against that of the State, to bring
the subject before tlie States themselves, In the
ouly form which,- afccording to the provisions of
the constitution it can be, by a proposition to a-
meud, in the manner prescribed 111 the instrument,
to be acted on by them ill the only inode they
can rightfully pursue, by expressly graining or
withholding tho contested power. Against this
conclusion there can be raised but bno objection,
that the States have surrendered, or transfer
red the right in question. If such be the fact,
there ought to lie 11a difficulty in establishing it.
Tho grant of the powers delegated is contain
ed iu a written instrument, drawn up with great
care, and adopted with tho utmost deliberation.
It provides that the powers not granted aro re
served to the States and the people. If it he sur
rendered or transferred, let then tho grant be
shewn, ami the controversy terminated i and
surely it ought to be shewn, plainly and clearly
shewn, before tho Stntes aro asked to admit what,
if true, would not only divest them of a right,
which, under all its forms, belongs to the princi
pal over his agent, unless surrendered, but which
cannot be surrendered, without in effect, and Ibr
all practical purposes, reversing the relation be
tween them; putting .the agent in the place of
the principal, ami tho principal in that of the a-
gent; and which would degrade the States, from
tho high aud sovereign ceudition which they
hare over held, under every form of their exist
ence, to be mere subordinate and dependent cor
porations. But, instead of shewing any such
grant, not a provision can be found in tlie con
stitution, authorising-the General Government to
exercise any control whatever over a State by-
force, by veto, by judicial process, or in any form
—a most important omission, intendoiL ami uot
accidental; and as will he shewn iu the course of
these remarks, omitted by the dictates of the pro-
foundost wisdom.
I’ho journal and proceedings of the conven
tion which formed the constitution, afford ahuu-
dant proof that there was in that body a power-*
ful party, distinguished for talents and influenee,
intent on obtaining for the G'encral Government
a grant of the vt-jy pow er iu question, aud that
they attempted to effect this object in all possi
ble ways, hut fortuuately without success. The
first project of a constitution submitted to tho
convention (Gov. Randolph's) embraced a prop-
or prevent the carrying into execution shell acts,
or treaties" (of the Union) “tho Federal Execu
tive shall be authorised to call forth the powers
of the confederated stntes, or so much thereof, as
shall be necessary to enforce or compel the obe
dience to snch acts, or observance to such treat
ies.” Gen. Hamilton’s followed next, which pro
vided that “all law's of the particular States,
contrary to the constitution or laws of tho Unit
ed States, to he utterly Void; and the better to
prevent such laws being passed, the Govgm-
oror President of each state shall be appointed by
the General Government, and shalUmvo a nega
tive on tho laws about to he passed, in the state of
which he is Governor or President.”
At a subsequent period, a proposition was raoV'
ed and referred to a committee, to provide that
“the jurisdiction of the supreme court shall ex
tend to all controversies between the United
States ami any individual state;’’ am! at a still
later period, it was moved to grant power “to
negative all laws passed by tho several stntes, in
terfering, in the opinion of tho Legislature, with
the general harmony atad interest of the Uuioil,
provided that two-thirds of tho members of each
nurao tn tlxt'caine!” which, after ait inef-
hdrawu.
trace through the
journals of tho convention die fate of these vari
ous proposition^. That they were moved, and
failed is sufficient to prove conclusively, iu a man
ner never to lie obliterated, that the convention,
w hich framed the constitution, was opposed to
granting the p'otVer to tlie General Government
iu any form, through any of its departments, leg
islative, execuiivo or judicial, to coerce or control
a stale, though proposed in all conceivable modes,
and sustained by the most talented and infliten-
tial members of the body. This, 011c would sup
pose, ought to settle forever the question of the
surrender, or transfer of power, under considera
tions ; ami such ut fact, would he the ease, were
the opinion of a largo portion of the community
not biased, as in fact ills, by interest. A majori
ty have a direct interest in enlarging the power
of tho Government, and the interested .adhere to
power with a pertinacity which bids defiance to"
truth, though sustained"by evidence, .as conclu
sive as mathematical demonstration; ami accor
dingly, the advocates of the powers of the Gen
eral Government, notwithstanding ttc- iihpreg-
uable strength of the proof to the contrary, have
boldly claimed bit construction, a power, tho
grant of which was so perseveringly sought, and
so sterhly resisted by the convention. They rest
the claim on tho provisions in the Constitution,
which declare, “that this constitution and the
laws made in pursuance thereof, shall be the su
preme law of the land,” and that, “the judicial
power shall extend to all cases in law and equity
arising under this constitution, the laws of the
nited States, ami treaties made, or which shall he
made, under their authority.”
I do not propose to go into a minute examina
tion of these provisions. They have been so fre
quently and so ably investigated, and it has been
so clearly shown, that they do uot warrant the ns-
•mrnptioii of the power claimed for the goveru-
mrnt, that I do not deem it necessary. I shall
ftv •» ft.ii tit, laclictl rC-
marks.
I have already stated, that a distinct proposi
tion ivas made to confer the very power in con
troversy on the Supremo Court, which failed;
which, of itself, odght 16 overrule the assumption
of the power by construction, unlesssustained by
the most conclusive argt; ncuts; but when it is
added, that this proposition was moved (20th
August) subsequent to the period of adopting the
provisions, above cited, vesting the court with its
present powers, (18th July.) and that an effort
was made at a still Inter period, (23d August,) to
invest congress with a negative on all state laws,
which', iri its opinion, miglit interfere with the ge
neral interest ami harmony of the Union, the ar
gument would seem too conclusive against the
powers of tho court, to be overruled by construc
tion, however strong.
Passing by, however, thi*, and also tho objec
tion, that the terms cases iu law ami equity, are
technical, embracing only questions between par
ties amenable to tho process of the court, and, of
course, excluding questions, between tile States
and the General Government; an argmftcut which
has never been answered; -there remains another
objection perfectly conclusive.
The construction, which would confer on the
Supremo Qourt the power iu question, rests on
the grobtfi! that the constitution has Conferred on
that tribunal the high and important right of deci
ding 011 tho coitfs'thutioijality of laws. That it
possess this right I do not deny; hut I do utterly,
that it is conferred by the constitution, cither by
tho provisions above cited, or any other. It is a
power derived not from tho constitution, hut from
the necessity of the case; and so far from being
possessed by the supreme court exclusively, or
peculiarly, it not only belongs to every court of
tho country, high or low, civil or criminal, blit to
all foreign courts, before which a case may be
brought, involving the construction of a law which
may conflict with the provisions of tho constitu
tion. The reason is plain. Where there are two
sets of rulers prescribed hi reference to the same'
subject, 0110 inr a higher am! another by an infe
rior authority,* the judicial tribunal eallod in tixdo-
cidc on the’easo, thuA unavoidably determine,
should they conflict which is the law; and that
necessity compete it to decide, that the rule pre
scribed "by the inferior power, if, in its opinion,
inconsistent with that of ihc fiightr^ is void; be
tho conflict between the constitution imd a law,
or between a charter ami the bye-laws of a cor
poration, the principle aud source of authority are
tlto same iu both cases. Being derived from ne
cessity, it is restricted within its limits, and can
not pass an inch beyond its narrow confines of
deciding in a caso before a epurt, (and, of course,
cr source, from the states. There arc thousands,
influenced by these impressions, without being
conscious of it, and who, while they believe them
selves to be opposed to consolidation, have infu
sed into their conception of our constitution,-al-
limits of the state, to execute legally, Iho act nul
lified, or any other passed with a view to enforce
it; while on the other hand, the state would be
able to enforce legally and peaceably its declara
tion of nullification. Sustained by its court and
most all the ingredients wiliqb enter into dial form juries, it would calmly and quietly, but success-
. -ri.„ difference between I fullv. meet every ellort of the general government
the
coufeder;
ffiKSgsarV^sswimisra-> •**?«<““°J
their governments, the present constitution a as the court or some other device {\vhie&, however,
far removed from consolidation, and is as strictly guarded as it is by the ramparts of the co ut. u-
an d : ,s purely a confederation, as the one which , tion, would, I hold, be impossible, f he attempt
. * I to elude, should it be made, would itself be un-
* Like tho old confederation, it was formed and j constitutional, and iu turn, would be annulled
ratified by state authority. The only difference by the sovereign voice of the state. Nor would
iu this particular is, that one was ratified by the 1 the right oT appeal to the supreme court, under
neople of the states, the other by the state govern- the judiciary, avail the general government. If
ments; one Tunning more strictly a l niou of the “ '
state governments, the other of the states them
selves; one, of the agents exercising tho'powers
taken it would but cud in a new trial, and that,
iu another verdict against the government; but
whether it may be taken would be optional with
The court itself has decided, that a
^sovereignty, and tho other ofthe sovereign them- the state. The court itself has decided, that a
selves • but both were unions of political bodies, 1 copy of the record is requisite to review a judg-
-.jfioInVt from a union ofthe ncoplc individually, i tnent of a state court, ami tt necessary, the state
if in that of a repeal of the acts establishing ports
of entries in the slate, the legality of the seizure
must be determined, and that would bring up the
question of the constitutionality of giving a pref
erence to the ports of one-state over those of ano
ther ; and so :f we pass from water to land, we will
find every attempt there to substitute force for law
must in like manner come under the review of
the courts of the Union, aud the unconstitution*
ality would be so glaring, that the Legislative
ami Executive Departments, in their attempt to
coer.c.e, should either make an attempt, so law
less and desperate, vould be without tlto support
of the judicial departn^nt. I will not pursue the
question farther, as 1 hoiu it perfectly clear, that
so long as a state retains in'er Federal relations,
so long, in a word, as it continues a member o?
the Uuiou, the contest between it and the general
government must be before the courts and. juries:
and every attempt, in whatever form, whether by
land or water, to substitue force as the arbiter,
in their place must fail. The unconstitutional-
ity of the attempt would be so open aud pal
pable, that it would he impossible to sustain it.
There is indeed one view, and one only of the
the address of the convention, laving the coustitu- I nounced and executed before the possibility pi
tion before congress, speak of consolidating and J reversal; and executed too, without rcspotisibih-
Iti considering this aspect of the controversy,
I pass over the fact, that the general government j
has no right to resort to force against a state—to j
codrcc a sovereign member of thq Union, which, I r .
I trust, I hayc established beyond all possible ! such too must be its effect, which presents tup mga-
doubt. Let it, however, be determined to use important question, are they in fact the same, on
force, and the difficulty would be insurmountable, ; tho dcr : siort of which depends the question, wh?-
place the stale beyond the paltf cf all her Feder
al relations, and thereby, all control on the part
of the other states over* her. She would stand
to them simply in the relation, of a foreign, state,
divested of'all Federal connexion., and having
none other between them, but those belonging to
the laws of iiatio’us. Standing thug towards 011c
another, force might indeed he employed against
a stale, but it must be a belligerent force, precc:
ded by a declaration of war, and carried on with
all its formalities. Such would be the certain eft
feet of secession ; and if nullification be secession
if it be but a different name for the .same tldnp
conception, has been the principal cause of the ability).ofwhich, would very soon fully manifest
impression so prevalent of tlie inferiority of the ! itself, should folly or madness ever make the at-
suites to the general government-, aild pt the con- tAipt
sequent right ofthe latter to coerce tho former.
Raised from below the state governments it was
conceived to be placed above the states them
selves. -r
I have now, I trust, conclusively shewn that a
state has a right iu her sovereign capacity, in con-
lararions woSl.l be obligatory on her citizens, as | the constitution, and to Subvert the system to its I that may^be exercised^ WithoiH tumma m 0 0
highly «o sis.the constitution itself, and conclu- foundation
sice against the general govornmeut, which would
have no
Against whom would it he applied? Congress
Federal relations of the State or net.
1 am aware that there is a considerable and re
spectable portion pf our state, with a very large
portion of the Union, constituting in fact a great
majority, who are of the opinion that they .are
the same thing, differing only in name, aud who,
under that impression, denounce it as the most
dangerous of alL doctrines; and yet, so far from
being the same, they are, unless indeed I am
greatly deceived, not only perfectly distiuguisha*
blc, but totally dissimilar in their liatiirc, their ob
ject and effect; and that so far from deserving tin;
denunciation so properly belonging Jo the act
with whichitis.cpiifcauded, itis in truth, the high
land the eiicroactiments 01 me .government; 1 nuuuo nwiuw treaspn ; (“levying est and most precious rights of all til-spates, a.n
and Veto, as arresting or inhibiting its author-I war against the United States, adhereing to their essential to preserve that very ^ ni j n ’. f ?'' t ^ t s, X
ized acts within tho limits ofthe state. enemies, giving them aid aipl. comfort! ) or any posed effect of dcstrojin 0 \ih.ch, it bituilj
The practical effect, could the right lie co.nsld- ! other prime, made penal by the constitution or the j anathematized., . „ f .
erod as one fully recognized, would be plain.and : laws of.the U. States. I I ^all now proceed to make good my assertion
simple, ami has already ill a great infcasiiro been j To suppose that force could bo called iu, un
anticipated. If the State lias a right, there must i plies indeed, a great mistake, both as to the 11a-
ofnecessity be a corresponding obligation on the j turcof our government and that of the coutro-
part of the general government, to acquiesce in : versy. It would lie a legal and constitutional
its exercises; and of course, it wouliT be its duty j contest, a conflict of moral and not physical foice
to abandon the power, at least as far as the state ! —a trial of constitutional not military power, to
1 “ . .» ' be decided before the judicial tribunals of the
powers
of the"'excrcisVof'this* high and important right, j it he called resistance for the juries to refuse to
which is tho great conservative principle of qur J find, and the courts to render judgment, in con-
system is know under the various names of Nul- ; fortuity to the wishes of the gcneial.go\ernmeut;
location, Interposition, and State Veto, in refer- no insurrection to suppress ; no armed force to
.euce to its operation viewed. Under different as-! reduce; not a sword unsheathed : not a bayonet
pects. Nullification, ns .aAutUliug an unconstitu- i raised; none, absolutely none, on whom force
tionai actof the geriera! government as far as the ! could be used, except it bo on the unarmed citi-
statc is conccnTed; Interposition, as throwing j zens, engaged peaceably and quietly in their dai-
thc shield bf. protection between the citizens of a ; ly occupations,
state,ail'd the encroachments of the government; j No one would-be guilty of ti
t tr nutlmr. ! wm* nirainct'thn TT»*it#*H Stnfps. ;i
is concerned, and to apply to the states them
selves, according to the form prescribed in the
constitution, to obtain it by a grant. If granted,
acquiescence then would be a duty on the part of
the state; anil iu that event,, the contest would
terminate iu epuyerting a doubtful constructive
power, into one positively granted ,.but should it
not be granted, no alternative wouia retnniu for
the general government btn its permanent aban
donment- In either event the controversy would
be closed, and the constitution fixed; a result of
the utmost importance to the steady operation of
the Government, and tho stability of the system,
and which can neverbe attnined under its present
country, and not on the field of battle..' In such
contest there would be tio object for force, but
those peaceful tribunals—nothing on which it
could be.employed, but in putting down courts
and juries, and p’reventing the,execution of judi
cial process. Leave these untouched, and all the
militia that could lie called forth, backed by a re
gular force of ten times the number of our Small,
but gallailt arid patriotic army, could not have
the slightest effect on the result of the controver
sy; but subvert these by an armed body, and you
subvert the very foundation of this, our free, con
stitutional and legal system of government; and
operation, without the recognition of the right, as : rear in its place a military despotism,
experience lias shewn. 1 Feeling the force of these difficulties, it is pro-
f’rom the ndoption of the constitution, we have posed with the view, I suppose, of disembarrass-
iug the operation as much a&possible of the trou
blesome , interference of courts and juries, to
change thesccue of coercion from land to water,
as if the government could have one particle
more right to coerce a state by water than by laud,
but, unless! am greatly deceived, the difficult}’ on
that element would not be much less than ou the
other. The jury trial, at least the local jury tri
al, (the trial by tho viciuagc,) may indeed be c-
vaded there; but la its place other aud not much
less forriiidable objects must be encountered.
There can he but two modes of coercion resort-
had hut one continued agitation of constitutional
questions, embracing some of the most important
powers exercised by the government; arid yet,
in spite of all the ability aud force of argument
displayed iii the various discussions, .backed by
the high authority, claimed for the supfefne court,
to adjust such controversies, not a single consti
tutional question, of a political character, which
has ever been agitated during this long period,
has been set tied iu the public opinion, except that
of the uuconstitutionality of the alien anil sedi
tion law; and, what is remarkable, that was set
tled against the decision of the supreme court.—
The tendency is to increase, aud not diminish this
Conflict for power. New questions are yearly
of their total dissimilarity.
First, they are wholly dissimilar in their natinje.
One has reference to the parties itaettiServes, and
the other to their agents. Secession a with
drawal from the Union, a separation from part
ners, and as far as'depends ou the member with
drawing, a dissolution of the partnership. It pre
supposes an association; an Union of several states,
or individuals, for a common object. V, herever.
these exist, secession may; aud where- they do
not.it cannot*. Nullification, on the contrary,
presupposes the relation of principal and agent)
the 011c granting a power to be executed, the
other appoinfed by him with authority to cse:uto
it :.aiid is simply a declaration on the part of the
principal, madia in due form, that an .act of then-
gent transcending his power, uuli and avoid. It
is a right belonging exclusively to the relation be
tween, principal and agent, to lie found w herever
it exists, anil iu all its forms, and theirjoint agents,
as well as between a single principal aud his a-
gent.
Tiie difference in their object is no less striking
than iu llieir nature.
The object of secession is to free the withdraw
ing member from the obligation of the association
or upjQu, aud is applicable to cases.where file in
tention of the association or union has failed, eitner
by an abuse of power ou the part of its members,
or other causes. Its direct aud immediate object,
as it concerns the withdrawing member, is the
dissolution of the association or union. O11 the
contrary, the object of nullification is to confine
the agent within the limits ofhis powers, by arres
ting his acts transcending them; not with the
view of destroying the delegated or trust power,
hut to preserve it, by compelling the agent to fiil-
aud growing unCerfa’inty as to its power, in rela
tion to the most Important subjects of legislation;
aud cquallyjip, that this dangerous state can ter-
Biinatc, without a power somewhere to compel,
in effect, the government to, abandon doubtful
constructive powers, or to convert them into pos
itive grants, by an amendment of the constitu
tion; iu a word, to substantiate the positive
grtmts of the parties themselves for the-construc
tive powers interpolated by the agents. Nothing
short of this, iu a system constructed aS ours is,
wgtti a double set of agents, one for local ami tho
dthcr Tor general purposes, can ever terminato
tho conffietfor power, Qr give uniformity and sta
bility to its action.
Sueli would he the Practice and happy opera
tiouv were the right 'recognised; but the ease tnay
he far othenyiso; and as the right is not only de
nied, but violently opposed, tho general govern
ment.'so far from acquiescing in its exercise, and-
nbaudc/uiug the power, as it ought, may endeav
or, by nil the means within its. command to en
force its construction against that of the State.—
ft is under tins aspect of the question, that I now
proposoto consider the practical effect of the ex
orcise of tho right with the view to determine
which of the two, tho state or the general govern
ment must prevail in the conflict; which compels
mo to revert to some of the grounds already es
tablished.
I have ah-endy shown that the declaration of
nullification would he obligatory ou tho citizens
betwecu parties amenable to its process, cxclu- of tho stato, as much so, in fact, as its declaration
ding thereby political questions,) which of the 1 ratifying the constitution, resting, as it docs, on
two is iu reality the law, the act of congress, or) tlios’ame basis. It would, to them, he the liigli-
thc constitution, when on their face they arc In- : est possible evidence, that the power contested
ed. to by water, blockade, arid abolition of the
ports of entry of the state, accompanied by po-
lial enactments, authorising seizures for entering I fil the object for which the ageucy, or trust was
idded, without diminishing the old, while the | tho waters of the state. If the.former bo attemp- I created; and is applicable only to cases where the
contest becomes more obstinate as the list in- \ ted, there will be other parties besides tlie gen- ; trust or delegated powers arc transcended on the
creases; and, what is highly omnious. more sec- j oral government and the state. Blockade is a part of the agent. Without the power of sece*-
tiortal. It is impossible, that the government cau | belligerent right. It presupposes a state of war,
last under this increasing diversity of opinion, ' and unless there he a war (war iu due form as
prescribed by the constitution,) the order for
consistent; and yet, frorri 1 this resulting, limited
power, derived from necessity, and held in com
mon with every court in tba world which by pos
sibility may take cognizance of a case involving
the interpretation of our constitution aud laws, it
is attempted to confer ou the supreme court a
power wiiich would work a thorough aud radical
change in our system; and which power was po;
sitivelyrefused by the convention.
TJie opinion, that the General Government lias
the right to enforce its construction of its powers
against a state, Iu any mode whatever, is, in truth,
founded on a fundamental misconception of our
system. At the bottom of this, and in fact almost
every other miscuuceptiou as to the relation be
tween the states aud the general government,
lurks the radical owor, that the latter u a uational,
and uot as iu reality it is a confederated govern
ment; and that it derives its powers from a high-
was uot granted; And, of course, that the acts of
tho general government was unconstitutional.—
They would be bouud in all the relations of life,
private aud political, to respect aud-obey it: and
when called upon as jurymen *0 render their ver
dict accordingly, or, as Judges', tc pronounce
judgment iu conformity to it. The right of jury
Trial is secured by the constitution (thauks to the
jealous spirit of liberty, doubly secured and for
tified ) and with this inestimable right—inestima
ble, net only as an essential portion of the Judi
cial tribunals of the country, but infinitely more
so, considered a a popular, and still more, a local
reortiseutation, inthatdepartmoutof government,
which, without it, would be the farthest removed
from the control of the people; and a fit instru
ment to sap the foundation of tho system; with,
I repeat, this inestimable right, it would be im
possible for tlie general government, within the
sion, an association, or union, formed for the.
common good of ail the members, might prove
ruinous to some,.by tlfc abuse of power, 011 the
blockade would not be respected by other na- j part of the others; and without nullification, tho -
tious or their subjects. Their vessels would pro- agent might under colour of construction, assume
need iTi’rcctly for the blockaded port, with certain a power never intended to be delegated, or to con-
prospects of gain; if seized underthe order of I vert those delegated, to object* never intended to
blockade, through the claim of indemnity, against! be comprehended in tlie trust, to the ruin of tho.
the general government; and if nut, by a profit- ; principal, or., iu case of a joint agency, to the rn*.
able market without tlie exaction of duties. j in of some of the principals. Has each, thus its
The other mode, the abolition of the ports of; appropriate object; but objects iu their nature re
entry ofthe state, would also have its difficulties. \ ry dissimilar; so much so, that iu case of an as-
Thc constitution provides that “no preference i sociation, or union, where the powers arodelegri'-.
shall be given J»y any regulation of commerce, or j ted to he executed by an agent, the abuse of pow-
revenue, to the ports of one state over those of j er, on the part of the agent to the injury of one,
another; nor shall vessels bound to or front one or more ofthe members, would not justify seccs-
state be, obliged to enter, clear, or pay duties in sinn, on their part. Tlie rightful remedy in that
another,;”, provisions too clear fo be eluded even case would be nullification. There would be
by the force of'construction. There will be ano- ; neither right, nor pretext, to secede; not right,
ther difficulty. If seizures ()0 made iu port, or ! because secession is applicable only to the acts of
witliin the distance assigned by the laws of na- : the members of the association, or union, and not
tious, as the limits of a state, the trial must be in to the act of the agent; nor pretext, because there
the state, with all the embarrassments of its courts I is another, and equally efficient remedy, short of
and juries; while beyond tho ports’a'liit the dis- ' the dissolution of the association or union, which
taucc to which I have referred, it would be diffi- j can only ho justified by necessity; Nullification
cult to point out any principle by which aforeigu ! may, indeed, he succeeded by secession. In the
vessel at least could he seized, except as an in- case stated should tlie other members undertake
cident to the rightof blockade, and of course, with - to graut the power nullified, and should the na-
all the difficulties belonging to that mode of coer- turo of the power be such as to defeat the object:,
cion. j of the association, or union, at least, so far as tho
But there yet remains another, and I doubt not, member nullifying is concerned; it would then bc-
insupcr.able barrier, to be found in tho judicial come an abuse of power on the part of the princi-
tribunals of the Union, against all the schemes of | pals, aud thus present a case, where secession
using force, whether by land or water Though j would apniy; but in no oilier, could itbejustified,
I cannot concur iu tlie opiuion of those who re-*’; except it be for a failure of the association or un-
gard the supremo court as the mediator, appoint- ion, to effect the object, for which it was created,
ed by the coiistitutioH, between the states aud the ; independent of any abuse of power,
general government; and though I cannot doubt I It now rfimaiusto shew, that their effect is as
there is a natural bias on its part towards the ; dissimilar, as their 11atare, orobject.
powers ofthe latter, yet. I must greatly lower my i Nullification leaves the members of the assoei-
opinion ofthat high and important tribunal, for 1 ation, or union, in the condition it found them, sub-
intelligence, justice and attachment to the con- j ject to all its burdens, and entitled to all its ldvan-
stitntion, aud particularly of that pure and up
right Magistrate, who has so long, and with such
distinguished honor to himself and the Union, pre
sided over its deliberations, with" all the weight
that belongs to an intellect of the first order, uni
ted with the most spotless integrity, to believe for
a moment, that au attempt so plainly and mani
festly unconstitutional, as a resort to force would
be, ia such a contest, could bo sustained by the
sanctionofits authority. Iu whatever form'force
may be used, it must present questions for legal
adjudication. If in the shape of blockade, the
tages, comprehending the member nulliij-ing
well as the others; i(s object being, not to destroy,
but to preserve, as has been stated. It simply ar
rests the act of the ajieut, as far as the pi iucipal is
concerned, leaving in every other respect, tho
operation nfifle joint concern, as before, seces
sion 011 the contrary, destroys, so hit as the with-
drawingmenibpr is concerned, tho association, or
union, and restores him to the relation he occupi
ed towards the other members before the existence
ofthe association or union. He loses the benefit,
hut is released from thmj>urden aud control; and
vessels seized under it must he condemned, and I cau no longer he dealt with, by his former associ-
thus would be presented the question of prize or j ates, as one ofits members.
no prize, and tylih it, the legality of tho blockade: | Such aro clearly the differences between them