VIRGINIA RESOLUTIONS OF 1798:--DISABUSED OF NULLIFICATION, BY THEIR
AUTHOR.
Vindicated upon their words, and upon contemporaneous
interpretation, another vindication, superfluous in point of proof,
but due to those whose work has been perverted, awaits these
resolutions, derived from the words of their author (after seeing
their perversion); and to absolve himself and his associates from
the criminal absurdity attributed to them.
The contemporary opponents of the Resolutions of 1798 said all the
evil of them, and represented them in every odious light, that
persevering, keen and enlightened opposition could discover or
imagine. Their defenders successfully repelled the charges then made
against them; but could not vindicate them from intending the modern
doctrine of Nullification, because that doctrine had not then been
invented, and the ingenuity of their adversaries did not conceive
of that ground of attack. Their venerable author, however--the
illustrious MADISON[7]--was still alive, when this new perversion
of his resolutions had been invented, and when they were quoted to
sustain doctrines synonymous with disorganization and disunion. He
was still alive, in retirement on his farm. His modesty and sense
of propriety hindered him from carrying the prestige and influence
of his name into the politics of the day; but his vigorous mind
still watched with anxious and patriotic interest the current of
public affairs, and recoiled with instinctive horror both from the
doctrine and attempted practice of Nullification, and the attempted
connection of his name and acts with the origination of it. He held
aloof from the public contest; but his sentiments were no secret.
His private correspondence, embracing in its range distinguished men
of all sections of the Union and of all parties, was full of the
subject, from the commencement of the Nullification excitement down
to the time of his death: sometimes at length, and argumentatively;
sometimes with a brief indignant disclaimer; always earnestly
and unequivocally. Some of these letters, although private, were
published during Mr. Madison's lifetime, especially an elaborate one
to Mr. Edward Everett; and many of the remainder have recently been
put into print, through the liberality of a patriotic citizen of
Washington (Mr. J. Maguire), but only for private distribution, and
hence not accessible to the public. They are a complete storehouse
of material, not only for the vindication of Madison and his
compeers, from the doctrine of Nullification, but of argument and
reasons against Nullification and every kindred suggestion.
[7] Mr. Madison did not introduce the Resolutions into the Virginia
legislature. He was not a member of that body in 1798. The
resolutions were reported by John Taylor, of Caroline. Mr. Madison,
however, was always reputed to be their author, and in a letter to
Mr. James Robertson, written in March, 1831, he distinctly avows it.
He was both the author and reporter of the Report and Resolution of
1799-1800.
From the letter to Mr. Everett, published in the North American
Review, shortly after it was written (August, 1830), the following
extracts are taken:
"It (the constitution of the United States) was formed by the
States, that is, by the people in each of the States, acting in
their highest sovereign capacity; and formed consequently by the
same authority which formed the State constitutions.
"Being thus derived from the same source as the constitutions of
the States, it has, within each State, the same authority as the
constitution of the State, and is as much a constitution in the
strict sense of the term within its prescribed sphere, as the
constitutions of the States are within their respective spheres;
but with this obvious and essential difference, that being a
compact among the States in their highest sovereign capacity,
and constituting the people thereof one people for certain
purposes, it cannot be altered or annulled at the will of the
States individually, as the constitution of a State may be at
its individual will."
"Nor is the government of the United States, created by the
constitution, less a government in the strict sense of the term,
within the sphere of its powers, than the governments created
by the constitutions of the States are, within their several
spheres. It is like them organized into legislative, executive
and judiciary departments. It operates, like them, directly on
persons and things. And, like them, it has at command a physical
force for executing the powers committed to it.
"Between these different constitutional governments, the one
operating in all the States, the others operating separately in
each, with the aggregate powers of government divided between
them, it could not escape attention, that controversies would
arise concerning the boundaries of jurisdiction."
"That to have left a final decision, in such cases, to each
of the States, could not fail to make the constitution and
laws of the United States different in different States, was
obvious, and not less obvious that this diversity of independent
decisions, must altogether distract the government of the Union,
and speedily put an end to the Union itself."
"To have made the decision under the authority of the individual
States, co-ordinate in all cases, with decisions under the
authority of the United States, would unavoidably produce
collisions incompatible with the peace of society."
"To have referred every clashing decision, under the two
authorities, for a final decision, to the States as parties
to the constitution, would be attended with delays, with
inconveniences and expenses, amounting to a prohibition of the
expedient."
"To have trusted to 'negotiation' for adjusting disputes between
the government of the United States and the State governments,
as between independent and separate sovereignties, would have
lost sight altogether of a constitution and government of the
Union, and opened a direct road, from a failure of that resort,
to the _ultima ratio_, between nations wholly independent of,
and alien to each other.... Although the issue of negotiation
might sometimes avoid this extremity, how often would it happen
among so many States, that an unaccommodating spirit in some
would render that resource unavailing?"
After thus stating, with other powerful reasons, why all those
fanciful and impracticable theories were rejected in the
constitution, the letter proceeds to show what the constitution does
adopt and rely on, "as a security of the rights and powers of the
States," namely:
"1. The responsibility of the senators and representatives in
the legislature of the United States to the legislatures and
people of the States; 2. The responsibility of the President to
the people of the United States; and, 3. The liability of the
executive and judicial functionaries of the United States to
impeachment by the representatives of the people of the States
in one branch of the legislature of the United States, and trial
by the representatives of the States, in the other branch."
And then, in order to mark how complete these provisions are for
the security of the States, shows that while the States thus
hold the functionaries of the United States to these several
responsibilities, the State functionaries, on the other hand, in
their appointment and responsibility, are "altogether independent of
the agency or authority of the United States."
Of the doctrine of nullification, "the expedient lately advanced,"
the letter says:
"The distinguished names and high authorities which appear to
have asserted and given a practical scope to this doctrine,
entitle it to a respect which it might be difficult otherwise to
feel for it."
"The resolutions of Virginia, as vindicated in the report
on them, will be found entitled to an exposition, showing a
consistency in their parts, and an inconsistency of the whole
with the doctrine under consideration."
"That the legislature could not have intended to sanction
any such doctrine is to be inferred from the debates in the
House of Delegates. The tenor of the debates, which were ably
conducted, discloses no reference whatever to a constitutional
right in an individual State to arrest by force a law of the
United States."
"If any further light on the subject could be needed, a very
strong one is reflected in the answers to the resolutions, by
the States which protested against them.... Had the resolutions
been regarded as avowing and maintaining a right, in an
individual State, to arrest by force the execution of a law of
the United States, it must be presumed that it would have been a
conspicuous object of their denunciation."
In a letter to Mr. Joseph C. Cabell, May 31, 1830, Mr. Madison says:
"I received yesterday yours of the 26th. Having never concealed
my opinions of the nullifying doctrines of South Carolina, I did
not regard the allusion to it in the _Whig_, especially as the
manner of the allusion showed that I did not obtrude it.... I
have latterly been drawn into a correspondence with an advocate
of the doctrine, which led me to a review of it to some extent,
and particularly to a vindication of the proceedings of Virginia
in 1798, '99, against the misuse made of them. That you may see
the views I have taken of the aberrations of South Carolina, I
enclose you an extract."
And in a letter to Mr. Daniel Webster, written a few days
previously, he uses nearly the same language; as also in a letter in
February, 1830, to Mr. Trist.
To Mr. James Robertson, March 27, 1831, Mr. Madison writes as
follows:
"The veil which was originally over the draft of the resolutions
offered in 1798 to the Virginia Assembly having been long since
removed, I may say, in answer to your inquiries, that it was
penned by me."
"With respect to the terms following the term
'unconstitutional,' viz., 'not law, but null, void, and of
no force or effect,' which were stricken out of the seventh
resolution, my memory cannot say positively whether they were
or were not in the original draft, and no copy of it appears
to have been retained. On the presumption that they were in
the draft as it went from me, I am confident that they must
have been regarded only as giving accumulated emphasis to the
declaration, that the alien and sedition acts had, in the
opinion of the assembly, violated the constitution of the United
States, and not that the addition of them could annul the acts
or sanction a resistance of them. The resolution was expressly
_declaratory_, and, proceeding from the legislature only, which
was not even a party to the constitution, could be declaratory
of opinion only."
To Joseph C. Cabell, Sept. 16, 1831:
"I congratulate you on the event which restores you to the
public councils, where your services will be valuable,
particularly in defending the constitution and Union against the
false doctrines which assail them. That of nullification seems
to be generally abandoned in Virginia, by those who had most
leaning towards it. But it still flourishes in the hot-bed where
it sprung up."
"I know not whence the idea could proceed that I concurred in
the doctrine, that although a State could not nullify a law of
the Union, it had a right to secede from the Union. Both spring
from the same poisonous root."
To Mr. N. P. Trist, December, 1831:
"I cannot see the advantage of this perseverance of South
Carolina in claiming the authority of the Virginia proceedings
in 1798, '99, as asserting a right in a single State to nullify
an act of the United States. Where, indeed, is the fairness
of attempting to palm on Virginia an intention which is
contradicted by such a variety of contradictory proofs; which
has at no intervening period, received the slightest countenance
from her, and which with one voice she now disclaims?"
"To view the doctrine in its true character, it must be
recollected that it asserts a right in a single State to stop
the execution of a federal law, until a convention of the States
could be brought about by a process requiring an uncertain time;
and, finally, in the convention, when formed, a vote of seven
States, if in favor of the veto, to give it a prevalence over
the vast majority of seventeen States. For this preposterous and
anarchical pretension there is not a shadow of countenance in
the constitution; and well that there is not, for it is certain
that, with such a deadly poison in it, no constitution could be
sure of lasting a year."
To Mr. C. E. Haynes, August 26, 1832:
"In the very crippled and feeble state of my health, I cannot
undertake an extended answer to your inquiries, nor should
I suppose it necessary if you have seen my letter to Mr.
Everett, in August, 1830, in which the proceedings of Virginia,
in 1798-'99, were explained, and the novel doctrine of
nullification adverted to.
"The distinction is obvious between such interpositions on
the part of the States against unjustifiable acts of the
federal government as are within the provisions and forms of
the constitution. These provisions and forms certainly do not
embrace the nullifying process proclaimed in South Carolina,
which begins with a single State, and ends with the ascendency
of a minority of States over a majority; of seven over
seventeen; a federal law, during the process, being arrested
within the nullifying State; and, if a revenue law, frustrated
through all the States."
To Mr. Trist, December 23, 1832:
"If one State can, at will, withdraw from the others, the
others can, at will, withdraw from her, and turn her _nolentem
volentem_ out of the Union. Until of late, there is not a
State that would have abhorred such a doctrine more than South
Carolina, or more dreaded an application of it to herself. The
same may be said of the doctrine of nullification which she now
preaches as the only faith by which the Union can be saved."
In a letter to Mr. Joseph C. Cabell, December 28, 1832:
"It is not probable that (in the adoption of the resolutions
of 1798), such an idea as the South Carolina nullification had
ever entered the thoughts of a single member, or even that of a
citizen of South Carolina herself."
To Andrew Stevenson, February 4, 1833:
"I have received your communication of the 29th ultimo, and
have read it with much pleasure. It presents the doctrine of
nullification and secession in lights that must confound,
if failing to convince their patrons. You have done well in
rescuing the proceedings of Virginia in 1798-'99, from the many
misconstructions and misapplications of them."
"Of late, attempts are observed to shelter the heresy of
secession under the case of expatriation, from which it
essentially differs. The expatriating party removes only his
person and his movable property, and does not incommode those
whom he leaves. A seceding State mutilates the domain, and
disturbs the whole system from which it separates itself. Pushed
to the extent in which the right is sometimes asserted, it might
break into fragments every single community."
To Mr. Stevenson, February 10, 1833, in reference to the South
Carolina nullifying ordinance:
"I consider a successful resistance to the laws as now
attempted, if not immediately mortal to the Union, as at least a
mortal wound to it."
To "a Friend of the Union and State rights," 1833:
"It is not usual to answer communications without proper names
to them. But the ability and motives disclosed in the essays
induce me to say, in compliance with the wish expressed, that
I do not consider the proceedings of Virginia, in 1798-'99, as
countenancing the doctrine that a State may, at will, secede
from its constitutional compact with the other States."
To Mr. Joseph C. Cabell, April 1, 1833:
"The attempt to prove me a nullifier, by a misconstruction
of the resolutions of 1798-'99, though so often and so
lately corrected, was, I observe, renewed some days ago in
the 'Richmond Whig,' by an inference from an erasure in the
House of Delegates from one of those resolutions, of the
words 'are null, void and of no effect,' which followed the
word 'unconstitutional.' These words, though synonymous
with 'unconstitutional,' were alleged by the critic to mean
nullification; and being, of course, ascribed to me, I was, of
course, a nullifier. It seems not to have occurred, that if the
insertion of the words could convict me of being a nullifier,
the erasure of them (unanimous, I believe), by the legislature,
was the strongest of protests against the doctrine.... The vote,
in that case seems not to have engaged the attention due to
it. It not merely deprives South Carolina of the authority of
Virginia, on which she has relied and exulted so much in support
of her cause, but turns that authority pointedly against her."
From a memorandum "On Nullification," written in 1835-'36:
"Although the legislature of Virginia declared, at a late
session, almost unanimously, that South Carolina was not
supported in her doctrine of nullification by the resolutions of
1798, it appears that those resolutions are still appealed to as
expressly or constructively favoring the doctrine."
"And what is the text in the proceedings of Virginia which this
spurious doctrine of nullification claims for its patronage? It
is found in the third of the resolutions of 1798."
"Now is there any thing here from which a 'single' State
can infer a right to arrest or annul an act of the general
government, which it may deem unconstitutional? So far from it,
that the obvious and proper inference precludes such a right."
"In a word, the nullifying claims, if reduced to practice,
instead of being the conservative principle of the constitution,
would necessarily, and it may be said, obviously, be a deadly
poison."
"The true question, therefore, is, whether there be a
'constitutional' right in a single State to nullify a law of
the United States? We have seen the absurdity of such a claim,
in its naked and suicidal form. Let us turn to it, as modified
by South Carolina, into a right in every State to resist within
itself the execution of a federal law, deemed by it to be
unconstitutional, and to demand a convention of the States to
decide the question of constitutionality, the annulment of the
law to continue in the mean time, and to be permanent unless
three fourths of the States concur in overruling the annulment.
"Thus, during the temporary nullification of the law, the
results would be the same as those proceeding from an
unqualified nullification, and the result of a convention
might be that seven out of twenty-four States might make the
temporary results permanent. It follows, that any State which
could obtain the concurrence of six others, might abrogate any
law of the United States whatever, and give to the constitution,
constructively, any shape they pleased, in opposition to the
construction and will of the other seventeen.[8] Every feature
of the constitution might thus be successively changed; and
after a scene of unexampled confusion and distraction, what had
been unanimously agreed to as a whole, would not, as a whole, be
agreed to by a single party."
[8] The above was written when the number of the States was
twenty-four. Now, when there are thirty-one States, the proportion
would be _eight to twenty-three_! that is, that a single State
nullifying, the nullification would hold good till a convention were
called, and then if the nullifying State could procure seven others
to join, the nullification would become absolute--the eight States
overruling the twenty-three.
To this graphic picture of the disorders which even the first stages
of nullification would necessarily produce, drawn when the graphic
limner was in the eighty-sixth and last year of his life, the
following warning pages, written only a few months earlier, may be
properly appended:
"What more dangerous than nullification, or more evident than
the progress it continues to make, either in its original shape
or in the disguises it assumes? Nullification has the effect
of putting powder under the constitution and Union, and a
match in the hand of every party to blow them up, at pleasure.
And for its progress, hearken to the tone in which it is now
preached; cast your eyes on its increasing minorities in most
of the Southern States, without a decrease in any one of them.
Look at Virginia herself, and read in the gazettes, and in the
proceedings of popular meetings, the figure which the anarchical
principle now makes, in contrast with the scouting reception
given to it but a short time ago.
"It is not probable that this offspring of the discontents of
South Carolina will ever approach success in a majority of the
States. But a susceptibility of the contagion in the Southern
States is visible; and the danger not to be concealed, that
the sympathy arising from known causes, and the inculcated
impression of a permanent incompatibility of interests between
the South and the North, may put it in the power of popular
leaders, aspiring to the highest stations, to unite the South,
on some critical occasion, in a course that will end in creating
a new theatre of great though inferior extent. In pursuing this
course, the first and most obvious step is nullification, the
next, secession, and the last, a farewell separation. How near
has this course been lately exemplified! and the danger of its
recurrence, in the same or some other quarter, may be increased
by an increase of restless aspirants, and by the increasing
impracticability of retaining in the Union a large and cemented
section against its will. It may, indeed, happen, that a return
of danger from abroad, or a revived apprehension of danger at
home, may aid in binding the States in one political system,
or that the geographical and commercial ligatures may have
that effect, or that the present discord of interests between
the North and the South may give way to a less diversity in
the application of labor, or to the mutual advantage of a safe
and constant interchange of the different products of labor in
different sections. All this may happen, and with the exception
of foreign hostility, hoped for. But, in the mean time, local
prejudices and ambitious leaders may be but too successful in
finding or creating occasions for the nullifying experiment of
breaking a more beautiful China vase[9] than the British empire
ever was, into parts which a miracle only could reunite."
[9] See Franklin's letter to Lord Howe, in 1776.
Incidentally, Mr. Madison, in these letters, vindicates also his
compeers, Mr. Jefferson and Mr. Monroe. In the letter to Mr. Cabell,
of May 31, 1830, he says:
"You will see, in vol. iii., page 429, of Mr. Jefferson's
Correspondence, a letter to W. C. Nicholas, proving that he
had nothing to do with the Kentucky resolutions, of 1799, in
which the word 'nullification' is found. The resolutions of
that State, in 1798, which were drawn by him, and have been
republished with the proceedings of Virginia, do not contain
this or any equivalent word."
In the letter to Mr. Trist, of December, 1831, after developing at
some length the inconsistencies and fatuity of the "nullification
prerogative," Mr. Madison says:
"Yet this has boldly sought a sanction, under the name of Mr.
Jefferson, because, in his letter to Mr. Cartwright, he held
out a convention of the States as, with us, a peaceful remedy,
in cases to be decided in Europe by intestine wars. Who can
believe that Mr. Jefferson referred to a convention summoned
at the pleasure of a single State, with an interregnum during
its deliberations; and, above all, with a rule of decision
subjecting nearly three fourths to one fourth? No man's creed
was more opposed to such an inversion of the republican order of
things."
In a letter to Mr. Townsend of South Carolina, December 18, 1831:
"You ask 'whether Mr. Jefferson was really the author of the
Kentucky resolutions, of 1799;' [in which the word 'nullify' is
used, though not in the sense of South Carolina nullification.]
The inference that he was not is as conclusive as it is
obvious, from his letter to Col. Wilson Cary Nicholas, of
September 5, 1799, in which he expressly declines, for reasons
stated, preparing any thing for the legislature of that year.
"That he (Mr. Jefferson) ever asserted a right in a single State
to arrest the execution of an act of Congress--the arrest to be
valid and permanent, unless reversed by three fourths of the
States--is countenanced by nothing known to have been said or
done by him. In his letter to Major Cartwright, he refers to
a convention as a peaceable remedy for conflicting claims of
power in our compound government; but, whether he alluded to a
convention as prescribed by the constitution, or brought about
by any other mode, his respect for the will of majorities, as
the vital principle of republican government, makes it certain
that he could not have meant a convention in which a minority of
seven States was to prevail over seventeen, either in amending
or expounding the constitution."
In the letter (before quoted) to Mr. Trist, December 23, 1832:
"It is remarkable how closely the nullifiers, who make the name
of Mr. Jefferson the pedestal for their colossal heresy, shut
their eyes and lips whenever his authority is ever so clearly
and emphatically against them. You have noticed what he says in
his letters to Monroe and Carrington, pages 43 and 302, vol.
ii., with respect to the powers of the old Congress to coerce
delinquent States, and his reasons for preferring for the
purpose a naval to a military force; and, moreover, that it was
not necessary to find a right to coerce in the federal articles,
that being inherent in the nature of a compact."
In another letter to Mr. Trist, dated August 25, 1834:
"The letter from Mr. Monroe to Mr. Jefferson, of which you
inclose an extract, is important. I have one from Mr. Monroe, on
the same occasion, more in detail, and not less emphatic in its
anti-nullifying language."
In the notes "On Nullification," written in 1835-'6:
"The amount of this modified right of nullification is, that a
single State may arrest the operation of a law of the United
States, and institute a process which is to terminate in the
ascendency of a minority over a large majority. And this
new-fangled theory is attempted to be fathered on Mr. Jefferson,
the apostle of republicanism, and whose own words declare,
that 'acquiescence in the decision of the majority is the
vital principle of it.' Well may the friends of Mr. Jefferson
disclaim any sanction to it, or to any constitutional right of
nullification from his opinions."
In a paper drawn by Mr. Madison, in September, 1829, when his
anxieties began first to be disturbed by the portentous approach
of the nullification doctrine, he concludes with this earnest
admonition, appropriate to the time when it was written, and not
less so to the present time, and to posterity:
"In all the views that may be taken of questions between
the State governments and the general government, the awful
consequences of a final rupture and dissolution of the Union
should never for a moment be lost sight of. Such a prospect
must be deprecated--must be shuddered at by every friend of his
country, to liberty, to the happiness of man. For, in the event
of a dissolution of the Union, an impossibility of ever renewing
it is brought home to every mind by the difficulties encountered
in establishing it. The propensity of all communities to divide,
when not pressed into a unity by external dangers, is a truth
well understood. There is no instance of a people inhabiting
even a small island, if remote from foreign danger, and
sometimes in spite of that pressure, who are not divided into
alien, rival, hostile tribes. The happy union of these States is
a wonder; their constitution a miracle; their example the hope
of liberty throughout the world. Wo to the ambition that would
meditate the destruction of either."
These extracts, voluminous as they are, are far from exhausting the
abundant material which these admirable writings of Mr. Madison
contain, on the topic of nullification. They come to us, for our
admonition and guidance, with the solemnity of a voice from the
grave; and I leave them, without comment, to be pondered in the
hearts of his countrymen. Notwithstanding the advanced age and
growing bodily infirmities of Mr. Madison, at the time when these
letters were written, his mind was never more vigorous nor more
luminous. Every generous mind must sympathize with him, in this
necessity, in which he felt himself in his extreme age, and when
done, not only with the public affairs of the country, but nearly
done with all the affairs of the world, to defend himself and
associates from the attempt to fasten upon him and them, in spite of
his denials, a criminal and anarchical design--wicked in itself, and
subversive of the government which he had labored so hard to found,
and utterly destructive to that particular feature considered the
crowning merit of the constitution; and which wise men and patriotic
had specially devised to save our Union from the fate of all
leagues. We sympathize with him in such a necessity. We should feel
for any man, in the most ordinary case, to whose words a criminal
intention should be imputed in defiance of his disclaimers; but,
in the case of Mr. Madison--a man so modest, so pure, so just--of
such dignity and gravity, both for his age, his personal qualities,
and the exalted offices which he had held; and in a case which went
to civil war, and to the destruction of a government of which he
was one of the most faithful and zealous founders--in such a case,
an attempt to force upon such a man a meaning which he disavows,
becomes not only outrageous and odious, but criminal and impious.
And if, after the authentic disclaimers which he has made in his
advanced age, and which are now published, any one continues to
attribute this heresy to him, such a person must be viewed by the
public as having a mind that has lost its balance! or, as having a
heart void of social duty, and fatally bent on a crime, the guilt
of which must be thrown upon the tenants of the tomb--speechless,
but not helpless! for, every just man must feel their cause his own!
and rush to a defence which public duty, private honor, patriotism,
filial affection, and gratitude to benefactors impose on every man
(born wheresoever he may have been) that enjoys the blessings of the
government which their labors gave us.