The discontents on the subject of the Tariff, which have so long existed
in several of the Southern States, and particularly in South Carolina,
have at length reached a crisis. As soon as it was ascertained that the
party in favor of Nullification had prevailed in that State at the late
elections, the Governor immediately summoned an extraordinary session of
the Legislature, which was held accordingly at Columbia, on the 22d of
October. In calling together the new Legislature before the end of the
current political year, as generally understood, the Governor exercised
an authority, which may perhaps be fairly considered as doubtful,
although it appears to have been sanctioned by the highest judicial
authority of the State. This, however, is a secondary question, upon
which we shall not enlarge. In the message which he transmitted to the
Legislature at the opening of the extraordinary session, the Governor
recommended to them to pass an act authorizing the meeting of a
Convention, to deliberate upon the measures to be taken by the State for
the purpose of obtaining relief from the operation of the Tariff. The
act was accordingly passed by large majorities,--two thirds being
required by the Constitution;--and the Convention, which was chosen in
pursuance of it, opened its session at Columbia on the 19th of
November.
This body proceeded at once and without much discussion to adopt what
they call an 'Ordinance to nullify' the Revenue laws of the country,
which we propose to copy in the course of our remarks. Having published
this act, with an accompanying exposition of their motives in passing
it, and addresses to the people of the United States and of South
Carolina, the Convention adjourned without delay, leaving it in charge
to a committee appointed for that purpose to summon another meeting, if
it should appear expedient. The composition of the Ordinance is
attributed to Chancellor Harper; that of the exposition accompanying it
to Mr. McDuffie; and that of the addresses to the people of the United
States and of South Carolina respectively to General Hayne and Mr.
Turnbull. The Legislature of the State have since assembled, and,
agreeably to the tenor of the Ordinance, will doubtless pass such laws
as may be thought necessary for carrying the measure into full effect.
These proceedings constitute a very serious crisis,--the most serious
that has occurred in the history of our country since the establishment
of the Government, with the exception of that which attended the close
of the last war with Great Britain, and from which, by the fortunate
intervention of the Peace, we escaped without injury. In the present
instance, there seems to be no prospect of evading the difficulty in any
such way. We must meet it in front, and either overcome it, or submit to
all its consequences.
The general principles by which the statesmen of South Carolina
undertake to support their views, have been already very fully discussed
in various quarters. But, considering the great importance and urgent
interest of the subject, it may not be wholly superfluous to take, once
more, a calm, and as far as may be, impartial survey of the ground in
dispute. In doing this, we shall of course leave out of view the topics
of the constitutionality and expediency of the measures of the General
Government, which are the motive or pretext for the present proceedings
in Carolina. Believing, as we do, that the Protecting Policy is founded
in a correct understanding of the principles of the Constitution, and of
the true interest of the country, we still very cheerfully recognise in
our fellow-citizens of all the States, the right to entertain a
different opinion, and to act upon it in a legal and constitutional
way. The precise question now before us is, whether the present
proceedings in South Carolina are legal and constitutional. The most
authentic and elaborate exposition of the arguments that are urged in
defence of them, is to be found in the letter of the Vice-President of
the United States to Governor Hamilton, of August 28, 1832, to which we
shall accordingly refer as the leading authority in their favor.
In the course of our remarks, we shall generally employ the term
_annul_, in preference to the new-fashioned word _nullify_. The meaning
of the two, as given in the dictionaries, is exactly the same, but the
former is in better use, and presents to most minds a more distinct idea
than the latter. It is well known that one of the most frequent sources
of obscurity and confusion in reasoning, is the use of terms which, from
whatever cause, are in any degree vague; and we have very little doubt
that in the present controversy, the error of the Carolina statesmen may
be attributed in part to the unfortunate substitution of the new-fangled
terms _nullify_ and _nullification_, for the corresponding good old
English words _annul_ and _annulling_. Many a professed _nullifier_
would, we suspect, shrink from the assertion that a State has a right to
_annul_ an act of the General Government. Mr. Calhoun seldom employs the
latter term, and states expressly, that he does 'not claim for a State
the right to _abrogate_' an act of the General Government. Now,
according to Johnson, the meaning of _abrogate_ is to _take away from a
law its force_, to _repeal_, to _annul_. To _annul_, according to the
same authority, is to _make void_, to _nullify_, to _reduce to nothing_:
and finally, to _nullify_ is to _annul_, to _make void_. The meaning of
the three words, in correct usage, is exactly the same; and Mr. Calhoun,
in disclaiming the right of a State to _abrogate_ an act of the General
Government, really disclaims the right to _annul_ or _nullify_ such an
act, in any proper sense of those terms, and abandons in a single
sentence the doctrine which he is at so much pains to establish in the
rest of his exposition. In disclaiming the use of the word _abrogate_,
abstaining generally from that of _annul_, and taking refuge in what
Governor Lumpkin very properly calls the _mystical_ terms _nullify_ and
_nullification_, the Vice President has, we think, betrayed a secret
consciousness of the weak point in his cause.
The controversy is, however, not about words, but things. The right
which the Vice-President disclaims under the name of _abrogating_, but
claims for a State under that of _nullifying_ an act of the General
Government, is thus stated by himself in the letter alluded to above.
1. 'A State has a right, in her sovereign capacity in Convention, to
declare an unconstitutional act of Congress to be null and void; and
such declaration is obligatory on her citizens, and conclusive against
the General Government; which would have no right to enforce its
construction of its powers against that of the State.'
2. Upon the exercise of this right by a State, 'it would be the duty of
the General Government to abandon the power, at least as far as the
nullifying State is concerned, and to apply to the States themselves,
according to the form prescribed by the Constitution, to obtain it by a
grant.'
3. If the power thus applied for be 'granted, acquiescence then would be
a duty on the part of the State; and in that event, the contest would
terminate in converting a doubtful constructive power into one
positively granted: but should it not be granted, no alternative would
remain for the General Government but its permanent abandonment.'
Such are the three leading points in the _doctrine of nullification_, as
laid down by its principal champion. It will be perceived that they
contemplate not a single act, but a long and complex course of
proceedings, involving the agency not only of the nullifying State, but
of the General Government and of all the other States. The discontented
State _nullifies_ an obnoxious act: it then becomes the duty of the
General Government to cease to execute the act within that State, and to
apply to the States for the power in dispute: if the power be obtained,
it is the duty of the nullifying State to acquiesce: if not, the act is
definitively annulled.
Now, if all this be legal and constitutional, why do we find no mention
or hint of any part of it in the Constitution or the laws? As respects
the first and third steps in the proceedings, it may be urged, with some
plausibility, that the Constitution is silent, because it does not
undertake to regulate in any way the action of the States, as bodies
politic, or of their Governments. But what account can be given of the
silence of the Constitution upon the second step in the proceedings?
When a State has exercised the power of annulling an act of Congress,
it then becomes 'the duty of the General Government to abandon the
power, (by which Mr. Calhoun doubtless means to discontinue executing
the act) at least within the limits of the nullifying State, and to
apply to the States themselves in the form prescribed by the
Constitution, to obtain it by a grant.' Here is a two-fold duty of great
delicacy and importance, which, according to the Vice-President,
devolves, in a certain contingency, upon the General Government. The
General Government is bound to discontinue the execution of one of its
laws within a particular State, and the General Government is bound to
apply to the States, in the form prescribed in the Constitution, for a
grant of the power to pass such a law. Of all this the Constitution says
not one word. If the passage which we have quoted from the exposition
stood alone, we should, in fact, be entirely at a loss to know what the
Vice-President means in this place by _the form prescribed in the
Constitution_, as that in which the General Government is to apply to
the States for a grant of new powers: but from other parts of the
document, we gather that he alludes to the clause which prescribes a
form for amending that instrument. Now it is undoubtedly true that the
General Government might, if they should by constitutional majorities
deem it expedient, recommend to the States an amendment, which, if
carried, would have the effect of augmenting their powers; but it is
equally certain that the clause, which provides a form for amending the
Constitution, does not make it the duty of the General Government to
recommend an amendment of this description in the case supposed by the
Vice-President, or in any other. In this as in all its other parts, the
Constitution is entirely silent upon the important duties which are
supposed by the Vice-President to devolve upon the General Government,
in consequence of the exercise by a State of its supposed right to annul
an act of that Government. Are these duties to be imposed, and the
rights and powers necessary to their execution conferred upon the
General Government, by mere construction? Is it not a little singular,
that the advocates of this very liberal construction are precisely the
persons who are most decidedly opposed to all constructive powers, and
whose principal object in all their present proceedings is to reduce, if
necessary by main force, the constructive powers of the General
Government to the narrowest possible compass?
The Constitution, we repeat, is totally silent in regard to the powers
attributed by the theory of nullification to the States and to the
General Government. This fact might, perhaps, fairly be considered as of
itself a sufficient and decisive objection to the whole system. Let us
next inquire, how far these powers are in themselves susceptible of
being exercised. If it shall appear that the duties which, according to
this system, devolve respectively upon the States and the General
Government are not only not prescribed in the Constitution, but are also
physically and morally impracticable, there will arise a pretty strong
presumption that it could not have been the intention of the framers of
the Constitution that any such acts should be performed.
The first step in the process is, as we have said, the annulling by the
discontented State of the obnoxious act of the General Government. The
State declares the act to be null and void, and takes measures to
prevent the execution of it within its limits. How far this will be
found a practicable operation we shall be better able to judge when we
are informed of the proceedings of the Carolina Legislature. For the
present, it may be sufficient to say that the various projects which
have been successively recommended in the newspapers have been so
obviously chimerical and visionary, as to render it altogether probable
that no satisfactory scheme had suggested itself to the leaders, and
very doubtful whether it would be possible to hit upon one. Without,
however, anticipating what the wisdom of the Legislature may bring
forth, let us proceed at once to the second step in the process; viz.
the duties which devolve upon the General Government. This part of the
theory, we may observe, though it has been less adverted to, is, in the
opinion of the Vice-President, not less important and valuable than the
other, and equally essential to the completeness of the system. If it be
found impracticable, the whole theory must be given up.
A State having nullified an act of the General Government, it then
becomes the duty of the General Government to abandon the power (of
passing such an act), and to apply to the States, in the form of
proposing an amendment of the Constitution, for the grant of such a
power. Let us see how far these duties are practicable.
The General Government consists of three branches, the Executive, the
Legislative, and the Judiciary, to each of which its peculiar and
appropriate functions are assigned by the Constitution and the laws.
What then is meant, when it is said that it becomes the duty of the
General Government to abandon the power to pass a certain act, at least
within the limits of a particular State? Is it meant that the
Legislative department of the General Government is bound to repeal the
obnoxious law, as respects that State or the Union at large? This is
obviously impossible, because by the supposition the majority of the
Legislature believe the act to be constitutional and expedient,--and
therefore cannot conscientiously, in the ordinary exercise of the
Legislative power, repeal it.
Is it meant, that the Executive and Judiciary departments of the General
Government shall suspend the execution of the law within the limits of
the State in question? This again is equally impossible. The functions
of the Executive and Judiciary departments are entirely administrative.
The persons entrusted with them have no discretionary power. They are
bound by their oaths of office to execute the laws that are given to
them by the Legislature, and have no more right to augment or diminish
them by one jot or tittle, than they have to declare themselves
dictators of the country. The abandonment by the General Government of
the power to pass the act complained of by the nullifying State is
therefore a thing in itself entirely impracticable. Even the omnipotent
Parliament of England, which, according to Lord Coke, can do any thing
but convert a man into a woman, could not repeal a law which was
sustained by a majority of its members; nor could even the hereditary
executive power of England or any other constitutional monarchy suspend
for a moment the execution of a law, which is still in force. The thing
is in its nature a moral impossibility.
So much for the first part of the two-fold duty, which, according to the
Vice-President, devolves upon the General Government, in the event of
the nullification by a State of a law of the United States. But the
General Government is not only bound to abandon the disputed power, but
also to apply to the States, in the form provided for amending the
Constitution, for a grant of that power. We have seen that the first of
these supposed duties is in its nature impracticable. It is obvious to
the slightest reflection, that the other is not less so. By the General
Government the Vice-President must of course intend, in this connexion,
the Legislative department of the Government, the Executive, as such,
having nothing to do with the process of amendment. Now, independently
of the objection to which we have already adverted, viz. that the
Constitution imposes no such duty on the Legislature, it is plain that
the operation is in itself impracticable, for the same reason which
would prevent the repeal of the obnoxious act. The Legislature cannot
recommend an amendment of the Constitution, giving to itself the power
to pass such an act, for the plain reason, that by the supposition a
majority of the members believe that the Legislature already possess the
power, and that it is consequently impracticable for them to adopt, on
their official responsibility, a measure which implies that they believe
the contrary.
It is only necessary to consider for a moment how the plan would work in
detail, in order to be convinced that it is utterly impracticable. It
becomes the duty of the General Government, by which we will suppose the
Vice-President to mean the Legislature, to apply to the States for a
grant of the disputed power. But what is the Legislature? The
Legislature is a complex being, composed of the President and two
elective assemblies, comprehending two hundred and eighty-five persons.
It is the duty, it seems, of these two hundred and eighty-five persons,
in their political capacity, to apply to the States for a grant of new
powers. But who is to move? What is the business of every body is the
business of nobody. Shall it be the President? The Constitution makes it
the duty of the President to recommend from time to time to the
consideration of Congress such measures, as he shall judge necessary and
expedient. But the President, by the supposition, believes that the
General Government already possess the power in question. It is
impossible, therefore, that he should recommend to Congress to propose
an amendment conferring this power. For the same reason, the proposition
cannot be made in Congress by a member of the majority of either House.
The duty, such as it is, of making the proposition, might no doubt be
performed by some member of the minority of one of the two branches. But
how are the majority to vote for a proposition which they do not
approve? How is the President to approve a law which he does not
approve? Individuals occasionally support or oppose measures for
particular reasons, which have no reference to their own opinion upon
their merits; but in arguing on general principles, it must of course be
assumed that the members of the Government can only act on principle.
The operation supposed is therefore in its nature essentially
impracticable.
Indeed the supposition that it can in any case be the duty of one or
more individuals to do an act which, if done by them at all, must be
done in pursuance of their own free and unbiased belief in its
expediency, is so obviously incongruous, that we really wonder how an
acute logician, as the Vice-President unquestionably is, could have been
led by any prepossession or political hallucination to admit it for a
moment. If it be really the duty, under the Constitution, of the
Legislature or of any branch or member of it to perform a particular
act, there is no room for the exercise of discretion. The thing must be
done. Thus it is the duty of the House to choose their speaker and other
officers. This is accordingly done at the opening of every new Congress,
as a matter of course, and it would be unconstitutional even to debate
upon the propriety of so doing. But a proposition to amend the
Constitution or any act performed in the ordinary exercise of the
Legislative power, must be, from its nature, the result of the free and
conscientious judgment of the President and a majority of the two Houses
of Congress upon its merits; and it is impossible that it can be their
duty, in any case, to decide in favor of a particular measure without
reference to its merits, when their own free and conscientious judgment
upon its merits is the precise and only rule which they are bound to
follow, in the decision of every question that is brought before them.
The process of nullification is therefore, in its most important points,
absolutely impracticable. This being the case, any consideration of its
constitutionality or expediency is superfluous. It is unnecessary to
inquire whether a plan, which cannot in the nature of things be carried
into execution, would or would not be constitutional or expedient if it
could. But the respect which we sincerely entertain for the talents and
character of many of the citizens who are engaged in this project, seems
to render it proper that it should be viewed under all its different
aspects. Let us therefore suppose, for the sake of argument, that the
project is practicable, and look at it in reference to its expediency.
Passing over as before the first step in the process, the effect of
which is less certain because the precise form in which it will be taken
is not yet known, let us as before proceed at once to the second, and
inquire how it will operate in the case immediately in question.
Let us suppose, then, that the State of South Carolina annuls the
Tariff. On the theory of the Vice-President, it will then become the
duty of the General Government to refrain from enforcing the Tariff
within the limits of South Carolina, and to apply to the States for a
grant of power to pass laws for the protection of domestic industry. We
have shown that both parts of this duty are wholly impracticable; but
let us imagine that they could be performed, and see what would be the
result. Let us suppose that the General Government, at the present
session of Congress, in defiance of their own opinion of the
constitutionality and expediency of the Protecting Policy and of the
express provision of the Constitution that all duties, imposts and
excises shall be uniform throughout the United States, suspend the
execution of the Tariff law within the limits of South Carolina.--Let us
also suppose that the General Government, conscientiously believing, as
they do, that they possess the power to pass laws for the protection of
domestic industry, shall yet assure the people that they believe they do
not possess it, and recommend an amendment of the Constitution which
shall give it to them. What will be the result?
The suspension of the Tariff law, within the limits of South Carolina,
would of course render the ports of that State entirely free. As soon as
this fact became generally known at home and abroad, the whole foreign
commerce of the country would centre in these ports, and the receipts of
the custom-houses, which constitute nearly the whole revenue of the
country, would be reduced at once to nothing. In the mean time, the
process of amending the Constitution is notoriously a very slow one. We
have supposed that the General Government, at the same session of
Congress, at which they suspend the execution of the Tariff law in
Carolina, propose to the States to adopt the amendment in question. The
recommendation goes out to the Governors of the States, and is laid by
them before their several Legislatures, as they come into session at
various times in the course of the following year. Some of these
Legislatures act upon it at once; some lay it on their tables never to
take it up again; others refer it, as they habitually do all questions
of an embarrassing description, to their next following session. In this
way the affair drags along for a number of years, and it is even very
doubtful whether any returns at all would ever be received from half
the States. Let us suppose, however, that in process of time, say in
five years from the date of the proposal by the General Government,
returns are received from all the States, and let it be granted for
argument's sake, that the proposed amendment is not sanctioned by the
number of States necessary under the Constitution to give it effect,
which is three-fourths of the whole:--this is the supposition most
favorable to the views of the Vice-President. What follows? Is the great
object of settling the construction of the Constitution attained? Quite
the contrary. Not a single step has been yet taken towards the
attainment of it. The refusal of the States to sanction the proposed
amendment, far from proving that the General Government does not,
according to their construction of the Constitution, possess the
disputed power, might be, and in many cases undoubtedly would be, the
result of their belief that the General Government already possesses it.
How, for example, could Pennsylvania, where the Legislature unanimously
believe that the General Government possesses the power to protect
domestic industry, sanction the proposal of an amendment intended to
confer that power? The refusal of the States to sanction the amendment
would therefore prove nothing at all as to their opinion upon the
meaning of the Constitution, and would leave the whole subject exactly
as it stood before. The Vice-President tells us, it is true, that if the
proposed amendment were not sanctioned by the requisite number of
States, no alternative would remain for the General Government, but the
permanent abandonment of the disputed power. But, with all due deference
to the judgment of Mr. Calhoun, we must be permitted to say that this is
a conclusion entirely without premises, or, in less technical language,
a naked assertion without proof, and we may add without even the
appearance of plausibility. If the States refuse to amend the
Constitution, it remains of course as it was before; and it is the duty
of the General Government, as it was before, to act upon their own
construction of its meaning, which is, by the supposition, in favor of
the reality of the contested power. As honest men, acting on their
official responsibility, they cannot possibly do otherwise; they would
be obliged to re-enact the law which, by the supposition, had been
repealed in reference to the nullifying State, and things would
proceed exactly as they did before. At the end of the process,
therefore,--supposing it even to result in the manner most favorable to
the Vice-President's view,--the whole subject would remain precisely as
it stood at the beginning. The affair would afford a new example of what
a foreign writer has called the system of _All Action and No Go_.
In the mean time, what would have been the state of the country during
the five years which have been devoted to this tedious, complicated and
ineffectual attempt to settle the construction of the Constitution? The
revenue would have declined almost to nothing, and there would have been
of course an annual deficit of nearly the whole amount necessary to
defray the expenses of the Government, and pay the interest and
principal of the debt. How would this have been covered? The ordinary
resource in cases of deficit is a loan, but it may well be doubted
whether, under the circumstances supposed, the credit of the Government
would be particularly good. If loans could be obtained, which is the
most favorable supposition, we should be saddled with a debt of about a
hundred millions, probably at exorbitant interest, as the cost of this
political experiment. Were this the only inconvenience, most judicious
citizens would be disposed to say, with the Grecian philosopher who was
offered, at a pretty high price, the favors of a frail beauty of some
celebrity,--that they did not choose to buy repentance so dear. But this
debt of a hundred millions would be the least part of the mischief. The
importation of foreign goods free of duty for five years would of course
destroy all our domestic manufactures, and ruin that part of our
population which is employed in them. The value of the manufactures
annually produced in this country is estimated by Mr. Gallatin at about
$150,000,000,--probably a very low computation. Supposing the ordinary
rate of profit in this branch of industry to be at from six to seven per
cent., this amount of annual products represents a capital of a thousand
million dollars, which would be swept at once into nothing. This is
another trifling item to be added to the cost and charges of
nullification. Omitting all consideration of the effect upon the
happiness of the six or seven hundred thousand persons who depend for
subsistence upon these manufactures, and looking merely at the financial
results, we must needs say that this is a most expensive, as well as in
our opinion unsatisfactory, mode of expounding the Constitution. And
these, as we have said, are the results of the process on the most
favorable supposition; for if loans could not be obtained, which is a
more probable one, the immediate consequence would be a national
bankruptcy, which would of course be followed instantaneously by
domestic convulsions, a complete breaking up of the Government, and a
dissolution of the Union.
Such, if the process of nullification, which, as we have seen, would be
found utterly impracticable at every step, could be carried into effect,
would be its practical results. Such would be its results, supposing it
to proceed without opposition from any quarter, and to operate
throughout in the manner most agreeable to the views set forth in Mr.
Calhoun's exposition. Is it possible that a statesman of distinguished
talents and patriotic feelings,--that a large majority of the citizens
of a high-minded, generous and intelligent State, can look forward to
such results with satisfaction?--that they can consider a course of
measures which, waving any question of its constitutionality or
practicability, and supposing it to go into quiet operation without
opposition in any quarter, and to work to their heart's content in every
particular, could still produce nothing better than the results which we
have described,--as _expedient_?--Is it not more probable that the
Vice-President and his political friends, by confining their attention
exclusively to one partial view of the subject, and employing with
fanatical earnestness all their energies in recommending this one view
to the public favor, have entirely lost sight of all others, and are
rushing forward, without even realizing its existence, to a precipice
which is accurately and distinctly laid down by themselves in their own
political charts?
However this may be, it is plain from the most cursory survey of the
doctrine of nullification, that it is wholly unsanctioned by the
Constitution, although it contemplates important proceedings, not only
by the States but by the General Government, which of course can only
act under constitutional authority: that it is in all its important
points utterly impracticable, and that could it even be carried into
effect, and that in the manner most agreeable to the views of its
partisans, it would at once break up the Government, and spread
desolation and ruin through the country. We now proceed to examine some
of the arguments, by which this enormous political heresy is supported
in the document before us. We have already quoted the passages
containing the statement of the doctrine in Mr. Calhoun's own language.
The leading argument by which he sustains it is as follows.
1. The General Government is an agent with limited powers, constituted
by the States as principals to execute their joint will, expressed in
the Constitution.
2. But in private affairs, a principal has a right to revoke or modify
the powers of his agent at discretion, to put his own construction upon
them, and to disavow and annul any acts done by the agent upon a
mistaken construction of his powers; while the agent, on his part, has
no right to enforce his construction against that of his principal.
3. In the same way, _any one State_ has a right to put its own
construction upon the Constitution, by which the States create the
General Government their common agent, and to disavow and annul any acts
done by the General Government upon a mistaken construction of these
powers, while the General Government, on its part, has no right to
enforce its own construction of the Constitution against that of its
principal.
The correctness of this reasoning, says the Vice-President, in its
application 'to the ordinary transactions of life, no one will doubt,
_nor can it be possible to assign a reason, why it is not as applicable
to the case of a Government as to that of individuals_.' Not
anticipating the nature of the objections that may be made to his
reasoning, the Vice-President of course does not attempt to refute them,
nor does he think it necessary to illustrate, explain or enforce his own
theory, but, under the comfortable assurance that in its application to
the ordinary transactions of life _no one will doubt it_, and that it
_cannot be possible_ to assign a reason why it should not be applied in
the case of Governments, he jumps at once to his conclusion, that it is
and ought to be applicable to that of the United States. Now it is
obvious to us, that this reasoning, far from commanding the universal
assent which the Vice-President seems to expect for it, will be
considered by most intelligent and unprejudiced readers as open to
various weighty and decisive objections. Admitting that the General
Government may, in a certain sense of the term, be properly described as
the agent of the States, the other proposition, that a principal has an
unlimited right to construe the powers and disavow the acts of his agent
is, even in private affairs, far from being equally clear; and were this
even true in private affairs, it would by no means follow that _any one
State_ has an equally good right to annul at discretion the acts of the
General Government. We shall enlarge a little upon each of these points.
1. It is not true that a principal has, in the ordinary transactions of
life, an unlimited right to construe the powers and disavow the acts of
his agent. Although an agent may have construed his powers in a
different manner from that in which his principal intended that they
should be understood, yet if he can make it appear that he has exercised
ordinary diligence and acted with good faith, he has a right to enforce
his construction against that of his principal, and the law will sustain
him in it. A merchant, for example, addresses a letter of instructions
to a shipmaster or supercargo, and the latter in consequence makes
contracts which the principal did not intend that he should make; the
principal will nevertheless be bound by them, unless he can show that
the agent has been guilty of neglect or fraud; for it is his own fault
if he has not made his instructions intelligible, or has chosen his
agent so badly that he cannot understand plain language.
The argument from analogy, and it is the only one by which the
Vice-President undertakes to support his main position, therefore fails
entirely. If the attitude of the General Government toward the States be
the same as that of an agent in relation to his principal, it then
follows that the General Government has a right to enforce its
construction of the Constitution against that of the States, provided
always that it act with good faith, and in the exercise of all the
diligence and attention which the case requires.
2. But admitting even that, in private affairs, a principal has an
unlimited right to construe the powers and disavow the acts of his
agent, we cannot agree with the Vice-President, that it is impossible to
assign a reason why _any single State_ has not an equally good right to
annul at discretion the acts of the General Government. We think that at
least two very sufficient reasons may be given, why this conclusion
would not follow.
The first reason is that the General Government, if it be regarded as an
agency, is an agency for a joint concern, comprehending four and twenty
principals. Now if we admit that principals have an unlimited right to
construe the powers and disavow the acts of their agents, it is quite
obvious that, in the case of a joint concern, this right cannot belong
to any one of the partners acting separately from the others, but must
belong to the whole firm, expressing their intentions for this purpose
through the organs and in the form which they habitually employ for all
other purposes. But the proposition of the Vice-President is, that any
one State has a right, without consulting the other States, to nullify
at discretion any act of the General Government. That is, that any one
partner in the joint concern has a right, without even consulting his
co-partners, to construe the powers of the common agent in his own way,
and to assume or avoid, at discretion, his share of responsibility for
the acts which an agent may have performed in the name of the firm.
It is almost needless to say that this is not the principle on which
partnership concerns are generally managed, and that a partnership
concern, which should be managed on this principle, would not be likely
to possess unlimited credit or to carry on for any length of time a very
lucrative business.
The Vice-President anticipates this objection, and for the purpose of
meeting it has introduced the second and third points in his theory, as
stated at the commencement of this article. As the manner in which he
treats this part of the subject is quite curious, we shall quote his own
words.
'It may, however, be proper to notice a distinction between the case
of a single principal and his agent, and that of several principals
and their joint agent, which might otherwise cause some confusion.
In both cases, as between the agent and a principal, the
construction of the principal, whether he be a single principal, or
one of several, is equally conclusive; but, in the latter case, both
the principal and the agent bear a relation to the other principals,
which must be taken into the estimate, in order to understand fully
all the results which may grow out of the contest for power between
them. Though the construction of the principal is conclusive against
the joint agent, as between them, such is not the case between him
and his associates. They both have an equal right of construction,
and it would be the duty of the agent to bring the subject before
the principal to be adjusted according to the terms of the
instrument of association; and of the principal to submit to such
adjustment. In such cases, the contract itself is the law, which
must determine the relative rights and powers of the parties to it.
The General Government is a case of joint agency,--the joint agent
of the twenty-four sovereign States. It would be its duty, according
to the principles established in such cases, instead of attempting
to enforce its construction of its powers against that of the State,
to bring the subject before the States themselves, in the only form
in which, according to the provisions of the Constitution, it can
be, by a proposition to amend, in the manner prescribed in the
instrument, to be acted on by them in the only mode they can
rightfully pursue, by expressly granting or withholding the
contested power. Against this conclusion there can be raised but one
objection, that the States have surrendered or transferred the right
in question. If such be the fact, there ought to be no difficulty in
establishing it.'
It seems from these remarks that, according to the Vice-President's
notion of the proper mode of proceeding in a joint concern, if one of
the principals suspect that the common agent is exceeding his powers, it
forthwith becomes the duty--not of the principal, but--of the agent to
submit the doubtful question in regard to the construction of his own
powers, to the consideration of the other principals. The discontented
partner begins by disclaiming publicly his share of responsibility for
the acts of the agent. The agent then consults the other partners: if a
majority of them approve the proceedings of the agent, the discontented
partner is bound to submit: if not, the agent ceases to exercise the
disputed power. Thus, when the President and Directors of the Bank of
the United States employed Mr. Sergeant to perform a certain service for
them at London, if one of the Directors had happened to hear that that
gentleman was exceeding his powers, according to the construction put
upon them by this Director, it would have been the duty of the latter to
publish the fact in the newspapers, and to give notice to all the world
that he, as one of the Directors, would not hold himself responsible for
Mr. Sergeant's proceedings. The newspaper containing this notice would
in process of time have reached London, and Mr. Sergeant on reading it
would have been bound to write to the President of the Bank, informing
him that he had seen a notice to a certain effect in a Philadelphia
paper, and inquiring whether he had or had not mistaken the meaning of
his instructions. The President, on receiving Mr. Sergeant's letter,
would have been bound to call together the Board of Directors, and
submit the subject to their consideration. If the Board, proceeding in
the usual form of transacting business, had decided that Mr. Sergeant
had not exceeded his powers, it would have been the duty of the
discontented Director to withdraw his objections, and to give public
notice that he was ready to resume his share of responsibility. On the
other supposition, Mr. Sergeant would have ceased to exercise the
disputed power.
Such is the notion entertained by the Vice-President of the proper and
usual mode of proceeding in a partnership concern. Our readers, who are
at all familiar with business, will, we think, agree with us in the
opinion that he has mistaken the matter entirely. In the case supposed,
a Director of the Bank, who had heard of any facts which led him to
suppose that Mr. Sergeant was exceeding his powers, instead of
publishing the intelligence in the newspapers, and making it an occasion
for open scandal, would have gone quietly to the Bank, and mentioned
what he had heard in private to the President. The President would have
submitted the facts to the Directors at their next meeting. If the
Board, represented by the necessary number of members, were satisfied
that Mr. Sergeant was in fact exceeding his powers, the President would
have written to him to that effect, and the Board would have taken the
proper measures for remedying any mischief that might have resulted from
his mistake. In the other event, the discontented Director would have
been relieved from his apprehensions. In either case, the affair would
have passed off quietly, without scandal, and, according to our
apprehension, in the ordinary and regular way of transacting business.
Reasoning therefore analogically, from the relation between an agent and
his principal in a partnership concern,--the only semblance of an
argument which the Vice-President offers in support of his main
position,--we should draw a conclusion of a directly opposite character,
viz. that instead of proceeding at once to _nullify_ and throwing upon
the General Government the responsibility of bringing the subject before
the other States, it would be the duty of a discontented State to begin
by addressing herself in the way of consultation to the other States,
her co-partners in the great political firm of the Union. We have
already shown that it would be wholly impracticable from the nature of
the case for the General Government, believing itself, as it does by the
supposition, to possess the disputed power, to adopt any measure
implying a contrary opinion. We have shown that the General Government
has no authority under the Constitution to adopt such a measure. But
admitting that it were both constitutional and practicable, what
propriety would there be in it? If Carolina conceive that she has a
right to complain of the proceedings of the common agent of the
political partnership to which she belongs, and think that her partners
ought also to attend to the subject, is she not perfectly capable of
saying to them herself all that is necessary or proper on the occasion?
Is it not obvious that the agent, who is supposed to be in fault, is the
very last person who can be depended on to bring the question before the
tribunal which is to decide upon it? Is it reasonable to expect that he
will intermeddle in a matter in which he has really no concern, for the
mere purpose of denouncing himself as a usurper of power, not granted by
his commission? Is there not a wanton and almost ludicrous absurdity in
the very idea of such a proceeding? And independently of all this, how
ungraceful in the General Government to apply for an augmentation of its
own powers, and this too at the very moment when it is accused of
exceeding them! Is it not apparent, that such an application would come
with infinitely greater propriety from any other quarter? We can hardly
believe that, on cool reflection, the Vice-President himself would
sanction with his final judgment a theory pregnant with so many and such
various incongruities.
It would therefore be the duty of the discontented State, instead of
proceeding to _nullify_ and throwing upon the General Government the
responsibility of bringing the subject before the other States, to
_begin_ by addressing herself directly to the other States in the way of
consultation. But in what form is this to be done? The Vice-President
tells us, that the subject must be brought before the States 'in the
only form in which according to the Constitution it can be, by a
proposition to amend in the manner prescribed by that instrument.' But
how does it appear, that this is the only or the proper form in which
the business can be done? The object is to _ascertain the meaning_ of
the Constitution. Why resort for this purpose to a process intended for
a totally different one, and, as we have seen, wholly unsuitable and
ineffectual for this? Suppose that all the insuperable preliminary
objections to which we have adverted are overcome;--that the General
Government has applied for a grant of the disputed power, and that the
States, as the Vice-President would of course desire, have refused the
application;--how would the case then stand? Precisely as it does now.
The question would still be, what is the meaning of the Constitution as
it is? And after all that had taken place, it would still be just as far
from a solution as before. Instead of resorting to a process intended
for another purpose, and wholly ineffectual for this, why not employ the
one which the Constitution provided and organized for this special
object? 'The judicial power,' says the Constitution, 'shall extend to
all cases in law and equity arising under this Constitution, the laws of
the United States and the treaties made or which shall be made under
their authority.' Why not submit the question at once to the Supreme
Court? This is the method by which the States, when they established the
Constitution, intended that all questions respecting the construction
of it should be decided. Nor does a resort to this method involve, as
some suppose, the inconvenience of making the General Government the
judge of its own powers. The Judiciary department, though nominally a
branch of the General Government, is, and was for this express purpose
meant and made to be, wholly independent of the other branches of that
Government. It is properly a separate agency, established for specific
purposes by the same authority which for other purposes established the
Executive and Legislative branches. It has no community of interest,
direct or indirect, with these branches, and is in all respects the most
competent and capable, as it is the proper constitutional judge of the
extent of their powers, as defined by the great charter of the Union.
But waving this point, upon which we are aware that the Vice-President's
views would not agree with ours, and admitting for the moment and for
argument's sake, that the Supreme Court is not the proper tribunal to
decide in this case, the question still returns, Why resort to the form
provided for making amendments? This is a form, in which the States act
for a certain purpose within the pale of the Constitution. But this
whole process of _nullification_,--if not, as we believe it to be,
_unconstitutional_,--is at least, and is admitted to be by those who
approve it, _extra-constitutional_. The State of Carolina throws herself
back, (such is the received phrase) upon her _reserved rights_, and
undertakes to decide, in her capacity as an independent State and a
party to the Union, which she considers as a confederacy of independent
States, whether the compact has been faithfully observed. She satisfies
herself that it has been violated, and she now wishes to ascertain
whether the other States agree with her in opinion. But how are these
States to be consulted and to act in this matter? Obviously in the same
capacity in which Carolina proposes it. She appears in this affair as a
sovereign and independent power; as such she must address herself to the
other States, and it is only in their capacity as sovereign and
independent powers, resting on their reserved rights, that they
can receive and act upon her communication. The whole affair,
reasoning of course on the principles of the Vice-President, is
_extra-constitutional_. Why then resort to a process, intended for the
direction of the States while acting within the pale of the Constitution
for its ordinary purposes? The Vice-President, in proposing this course,
obviously forgets his own principles. The true one, on his system,
would be very different. Having taken her stand upon her reserved rights
and assumed the attitude of a sovereign power, Carolina should exhibit a
little more of the lion port and awe-commanding face. Instead of
resorting to a paltry humiliating process, which supposes throughout the
subordination of all the parties concerned in it to the common authority
of the Union, our _soi-disant_ sovereign, in order to be consistent,
should send ambassadors to all the other States to communicate the
business in hand. These again, being thus called on, must in like manner
throw themselves back upon their reserved rights, and assume, for the
time, the attitude of independent States. If a consultative meeting be
deemed expedient, it must be a congress of ambassadors held by
arrangement among the States, and in which they will appear by their
ministers as independent powers. At such a meeting, the rule of deciding
questions according to the opinion of the majority has of course no
application. Although three-fourths or even all the States, except
Carolina, should agree that the compact had not been violated, she would
still be at liberty as a sovereign power to adhere to her own
construction, and to hold herself in future exempt from the obligation
imposed by the articles of union. Such, as we conceive, is the only
process consistent with the theory of nullification, which the
Vice-President, with submission to his better judgment, does not follow
out to its proper and natural conclusion. We find accordingly that
Georgia, who, although she has said but little about nullification, has,
to do her justice, practised it for two or three years past with a vigor
and consistency that rather put to shame the Carolina doctors of the
science,--having thought proper to consult the other Southern States
upon the propriety of assembling an anti-Tariff Convention,--instead of
depending upon the General Government to bring the subject before them
in the form provided for amending the Constitution, forthwith despatches
her ambassadors to their several seats of Government to communicate her
sovereign intentions, where, for aught we know to the contrary, they
have been carrying on their negotiations up to this day.
So much for the first reason, why the doctrine, that a principal has, in
ordinary cases, an unlimited right to construe the powers, and disavow
the acts of his agent,--were it even true, as we have shown that it is
not,--would in no way help the Vice-President's argument. Carolina is
one of a number of principals, composing a partnership concern; and if
she have any doubts about the propriety of the proceedings of the common
agent, her only course is to consult with her co-partners, and to
acquiesce in the opinion of the majority. But there is another reason
still more substantial, why the doctrine in question, even if true,
would be of no service to the Vice-President:--a reason leading at once
to the heart of the whole argument, of which the matters thus far
touched upon are merely the 'limbs and outward flourishes;' and that is,
that a Government, although it may in a certain sense be called an
agency, is an agency of a peculiar kind, carrying with it rights and
obligations, of which the nature and extent cannot be deduced by analogy
from those which are incident to the relation of agent and principal in
private life, and can only be determined by a correct analysis of the
structure of society and the original principles of the human
constitution.
That the Government of the United States, though described as an agency,
is to all intents and purposes a real _Government_, is frankly admitted
by the Vice-President himself. 'In applying the term agent to the
General Government, I do not intend to derogate in any degree from its
character as a Government. _It is as truly and properly a Government as
are the State Governments themselves._ I have applied it simply because
it strictly belongs to the relation between the General Government and
the States, _as in fact it does also to that between a State and its own
Government_. Indeed, according to our theory, _Governments are in their
nature but trusts, and those appointed to administer them trustees or
agents to execute the trust powers_. The sovereignty resides
elsewhere,--in the people, and not in the Government.' 'The Constitution
of the United States, with the Government it created, is truly and
strictly the Constitution of each State, as much so as its own
particular Constitution and Government, ratified by the same authority
in the same mode, and having, as far as its citizens are concerned, its
powers and obligations from the same source.'
In these principles we fully concur, but in laying them down in this
distinct and unequivocal manner, the Vice-President has, as we humbly
conceive, conceded the whole matter in controversy, and given up every
inch of ground which he had to stand upon. If it could be made out that
the two Houses of Congress, the President, and the various executive and
judicial officers acting under them, are not a proper Government, but a
mere agency constituted by four and twenty mutually independent States
for certain specific objects, it would follow, not precisely that the
theory of nullification is true, for this, as we have seen, is, at least
as stated by the Vice-President in the document before us, not merely
unconstitutional, but in itself essentially impracticable, incongruous
and absurd:--but that any State which might be, for any or no reason,
tired of the arrangement, would have a perfect right, after such
consultation and advisement with the other parties as might be necessary
to secure their interests, to revoke its powers. But the moment it is
admitted that the two Houses of Congress, the President and the
executive and judicial officers acting under them,--by whatever name
they may be called,--are a _real Government_:--that the instrument by
which they hold their powers is a _real Constitution_, the case changes.
By the _Constitution of Government_, is meant, in every community, the
great _social compact_ which binds together the individual members into
one body politic or political society. Whatever may be its form,
character, or origin,--whether it be written or unwritten;--free,
limited, or despotic;--whether founded in force, fraud, or voluntary
association;--whether created by a number of previously independent
States or by a number of previously independent individuals, so long as
it is and is admitted to be a real _Constitution of Government_, it
carries with it certain incidents which belong to it as such, and which
are inseparable from its nature. Of these incidents, essential
properties or characteristics of the _social compact_, the first in
order are that the parties to it have not a moral right to withdraw from
it at discretion, or to construe at discretion the powers of the
Government created by it, but are bound to remain parties to it, and to
acquiesce in the acts of the Government created by it, excepting in
those extreme cases which justify open rebellion. These are principles
universally acknowledged. No one has ever questioned them; no one has
ever undertaken to maintain that the members of a political society have
a right to withdraw from it at discretion, or that the laws of the land
are not in ordinary cases binding on the citizens. The principle is
equally true under all forms of government, as the Vice-President
himself very correctly intimates, when he states that the relation
between the General Government and the States is the same with that
between the States and their own Governments, or in general between all
Governments and the societies in which they are established.
Such are the principles which, by _universal acknowledgment_, determine
the relations between Governments and the political societies in which
they exist. When therefore the Vice-President fully and formally admits
that the two Houses of Congress, the President, and the executive and
judicial officers acting under them are a _real Government_;--that the
instrument by virtue of which they hold their powers is a real
_Constitution_ or _social compact_, he admits,--if he choose at the same
time to describe them as an agency,--that they are an agency which the
parties that constituted it, whether States or individuals, have not a
right to revoke at discretion; an agency which construes its own powers,
and has a right to enforce its own construction of them upon its
principals, excepting in the extreme cases which justify a _violent
resistance to the law_: he admits that nullification is either wholly
unjustifiable or justifiable only as _resistance_: he admits, in a word,
that nullification, if it have any proper and intelligible meaning at
all, is only another name for _rebellion_. This is, in fact, the real
truth of the whole business.
And this being the case, it is apparent that, even if the acts which the
nullifiers propose to perform were justifiable, it would be on
principles other than those which they profess; that their theory would
still be erroneous, and their language incongruous and absurd. In
certain extreme cases, the citizen is justified in resisting the
execution of the law; but even then he has neither the right nor the
power to _annul_ or _repeal_ it. This is an operation, which from its
nature can only be performed by the same authority which enacted the
law, viz: the Government of the country. The supposition made by the
nullifiers, that in certain cases a citizen or a certain number of
citizens have a right to annul or repeal the law of the land, is not
merely an error, but a manifest absurdity, involving a contradiction in
terms. In the cases which justify resistance, the principle upon which
the citizen proceeds, is not that he has a legal or constitutional right
to annul or repeal the offensive law,--which is the doctrine of the
nullifiers,--but that he has a right, which he admits to be illegal and
unconstitutional, but which he claims as a natural one, to make a
violent opposition to its execution.
Such is the second reason, why the doctrine that a principal has, in
ordinary cases, an unlimited right to construe the powers and disavow
the acts of his agent,--were it even true, as we have shown that it is
not,--would in no way help the Vice-President's argument. The General
Government, if it be an agency, is an agency of a peculiar kind, which,
from its nature, is not revocable at the discretion of the parties that
constituted it, which construes its own powers, and which has a right to
enforce its construction of them against that of its principals,
excepting in those extreme cases that authorize rebellion.
This, as we have said, is the principal and leading consideration which
governs the whole subject. Once admit, what the Vice-President fully
recognises, and what no man in his senses can deny, that the General
Government, call it agency or what you will, is a real Government;--that
the instrument from which it derives its power is a real _Constitution_
or _social compact_, and the argument is brought to a close; there is
not a word more to be said about the matter. The acts of the Government
are, as such, the law of the land. This results from the nature of the
case, and is also affirmed in the Constitution, which, in order to avoid
all doubt or difficulty about the point immediately in controversy in
the present instance, expressly provides that the acts of the General
Government shall be the Supreme Law of the land, _any thing in the
Constitution or laws of any State to the contrary notwithstanding_. But
to say that a citizen, or any number of citizens, can _annul_ or
_repeal_ the law of the land, is, we repeat, a manifest absurdity.
_Resist_ it they _can_, and in certain extreme cases _may_: but that
they should _annul_ or _repeal_ it, is a thing not illegal or
unconstitutional, but impossible and unimaginable. The repeal of a law
is as much an exercise of legislative power as the enactment of it, and
from its very nature cannot be performed, unless by some person or
persons invested with that power, in other words, by the Government. To
assert the contrary, is in substance to assert that the same person can
be sovereign and subject, or in a free State, in and out of office, at
one and the same time.
We have thus endeavored, by a few plain considerations, to show, first,
that the doctrine of nullification is not only unsanctioned by the
Constitution, but wholly impracticable, and that its results, if it
could be carried into effect, would be of the most disastrous
character:--secondly, that the only semblance of argument, by which the
Vice-President attempts to sustain it in the document before us, is
entirely without foundation. It follows from the view which we have
taken of the subject, that the controversy respecting the origin of the
Constitution, which has been often agitated in connexion with this
question, is in a great measure foreign to it. Whether the General
Government had its origin in the will of the State Governments, of the
_people_ of the States, or of the _people_ of the United States is a
point of no importance in the present inquiry, for those who admit that
it is the real and rightful _Government of the country_. For those, if
any such there be, who wish to establish the proposition that the Union
is a confederacy of independent States, _subject to no common
Government_, the question of the origin of the Constitution is an
essential one, because it is in the circumstances attending it, that
they must look for the proofs of their theory. But for those who believe
that that instrument is a _social compact_, and the Government created
by it a real Government, it is unnecessary, for the present purpose, to
go beyond that fact, which proves, of itself, that its acts are the law
of the land, and that in respect to them there is no middle course
between obedience and rebellion.
As respects the origin of the Constitution, we will therefore merely
remark, without enlarging on the subject, that we agree with the
Vice-President in the opinion that it derives its authority from the
States acting as distinct communities, and not from the aggregate mass
of the people of the United States. The latter theory receives some
countenance from the opening words of the preamble:--_We the people of
the United States_;--but is obviously inconsistent with the facts
attending the formation and adoption of the Constitution. Throughout the
whole proceedings, the States appeared as distinct communities. Those
States, which did not at first approve the Constitution, considered
themselves and were considered by the other States as at liberty to
remain without the pale, and actually did so remain for some years. This
could not have happened if all the States had previously constituted one
people, that is, one body politic. In that case the decision of the
body, in whatever form it might have been collected, must have been
obligatory upon all the members. Indeed, the preceding instrument of
Union, commonly called the Old Confederation, expressly recognises the
sovereignty and independence of the States, and describes the Union as a
league. The Congress which assembled under this Confederation was not a
General Government, but a meeting of delegates or ambassadors, in which
each State had an equal vote, and which merely recommended to the States
the adoption of certain measures, which being adopted by them and in
that case only, obtained the character and force of _laws_. It is
obviously impossible to reconcile this condition of things with the
theory, that the States, at the period immediately preceding the
adoption of the Constitution, constituted one people. We find
accordingly, that President J. Q. Adams, who, in his late Fourth of July
Oration, professes the doctrine that the acts of Union which preceded
the declaration of Independence combined the States into one people, and
that they never existed as separate sovereignties, treats the old
Confederation as a temporary departure from the true political system of
the country. In other words, he admits that the character of it is
inconsistent with his theory. But this Confederation, whatever may be
thought of its value, undoubtedly determined for the time being the
_actual_ relation of the parties to it. There is reason to suppose, from
the tenor of another late publication by Mr. Adams, that he considers
the union of Great Britain and Ireland as a departure from the true
political system of those countries; but he would probably not think of
maintaining, as a consequence of that opinion, that Ireland is at this
moment an independent State. On our view of the subject, therefore, the
States, from the period of the Declaration of Independence to that of
the establishment of the Constitution, existed, in form at least, as
distinct communities, independent of each other, and, though
confederated for certain purposes, not subject to a common Government.
The Constitution, by which they subjected themselves to a common
Government, was the act which gave them the character of _one people_.
The form of distinct communities, under which they existed during the
period alluded to, may have been, as we agree with President Adams that
it was, an unfortunate expression of the substantial condition of the
population of this continent; but this is a question not of substance
but of form, and such undoubtedly was, for the time being, the form of
their political existence.
We are therefore disposed to agree with the Vice-President in the
opinion, that the parties to the great social compact, entitled the
Constitution, were not the individual citizens composing the whole
people of the United States, but the several distinct communities into
which they are divided, and which were at that time,--to use the
ordinary language,--sovereign and independent States. We may remark _en
passant_ that the phrase _Sovereign State_, which certain persons employ
so frequently and appear to consider as pregnant with important
political conclusions, though it may, perhaps, be sufficiently
authorized by usage to be received as good English, is not, in the
strict and proper use of language, admissible, and is therefore better
avoided in all precise and scientific discussion. The word _sovereign_
has the same etymology with _supreme_, of which it is another form, and
properly implies, as that does, comparison with something else. Thus the
_Supreme_ Being is the highest of all beings: the _Supreme_ Court is the
highest of all the Courts: the _Sovereign_ power in a State is the
highest political authority. But States, being as such politically
independent of each other, cannot in the nature of things stand towards
each other in the relation of superiority or inferiority, and can of
course be neither _sovereign_ nor _subject_. We find, accordingly, that
in the Declaration of Independence,--a document remarkable throughout
for great propriety in the use of language,--although it was once quoted
by Governor Hamilton, on some public occasion, as saying that the United
Colonies are, and of right ought to be, free, sovereign and independent
States, the word _sovereign_ is not employed. The language used is that
the colonies are, and of right ought to be, free and independent States.
As applied to States, the word _sovereign_, if it have any meaning at
all, can only mean _independent_. In this sense it is no longer
applicable to the several States composing the Union, which, since the
adoption of a common Government, are not politically independent of each
other. This is not a merely verbal criticism. Words are things; and we
strongly suspect that the frequent use of this incorrect, ambiguous,
and,--to recur again to the language of Governor Lumpkin,--_mystical_
phrase _Sovereign State_, has created a good deal of embarrassment,
which the substitution of the more correct and intelligible term
_independent_ would have in part prevented.
To return, however, from this digression:--although we agree with the
Vice-President in the opinion, that the Constitution had its origin in
the will of the States acting as distinct communities, we cannot
acquiesce in the conclusions which he deduces from this fact, or admit
that, for the present purpose, it makes any difference whatever in the
case. Independent States may form themselves into a body politic, as
well as independent individuals. Such is in fact the historical origin
of most of the communities now existing throughout the world. They are
in general aggregations of smaller communities, previously existing in
an independent form. Where the States, so forming themselves into one
body politic, retain for certain purposes a distinct name and character,
their position in the body politic, of which they form a part, is
precisely the same with that of the individual citizens in an ordinary
community. This, as we have seen, is fully and distinctly admitted by
Mr. Calhoun himself. He admits that the General Government is as fully
and properly a Government as are the State Governments themselves, and
that the relation between the General Government and the States is
precisely the same with that between the Governments and citizens of the
States, or in general between the Governments and citizens of any other
community. How then can he possibly claim for the States a right of
annulling the acts of the General Government, when he certainly would
not think of claiming such a right for the citizens of the several
States, or of any other political societies, in reference to their
respective Governments?
It may be true, as Mr. Calhoun intimates, that a State Government has no
right to enforce its construction of the Constitution of the State
against the people of the State, appearing in their sovereign capacity;
or, more generally, that in our theories of government the people of any
country, acting in their sovereign capacity, have a right to construe,
alter or totally destroy the Constitution at discretion. But supposing
this to be true, would it follow that every individual citizen has a
right to annul the Constitution, or any part of it, at discretion?
Would Mr. Calhoun himself think of drawing such a conclusion, in
reference to the individual citizens of the States, or of other
communities?--Undoubtedly not. How then can he with the least regard for
consistency draw it in reference to the individual States, which, as he
tells us himself, stand in precisely the same relation to the General
Government, in which the individual citizens of the States and of other
communities stand in relation to their respective Governments?
The right claimed for the States of annulling the Constitution and laws
of the United States, must, says the Vice-President, belong to them,
unless they have expressly surrendered or transferred it. We have
already seen, that no member of a body politic, whether composed of
States or individuals, does or can possess a right to annul or repeal
the law; and that the contrary proposition involves a contradiction in
terms. Were the Constitution wholly silent on the subject, the mere fact
that they had formed themselves, by a solemn social compact, into one
great people, subject to a common Government, though retaining, as
distinct communities, no inconsiderable share of the legislative
power,--this fact alone, we say, would have carried with it a peremptory
obligation upon the States to obey the law as construed by the courts of
justice, excepting in the extreme cases that justify resistance. It
would, however, be natural enough for independent States, in forming a
compact of this description, to introduce an expression of this
obligation; and it may be a matter of curiosity to consider for a moment
what language could have been used, in order to express the idea in the
most direct and unequivocal manner. To one who was seeking for such an
expression, some such phrase as the following would probably occur. _No
State shall have a right, either in the exercise of the sovereign
(constitution-making) or the ordinary legislative (law-making) power, to
annul or arrest the execution of this Constitution, or any law made in
pursuance of it by the General Government._ This, we say, or something
like it would probably be the language, which would occur to any one who
was seeking for the most direct and unequivocal expression of the idea,
that the States have no right to set up their authority against that of
the General Government. Now the language of the Constitution on this
subject is still more decisive, because it expresses the same ideas
conveyed by that here supposed in two forms, the one positive and the
other negative. _This Constitution, and the laws of the United States
which shall be made in pursuance thereof, and all treaties made or which
shall be made under the authority of the United States, shall be the
supreme law of the land._ This positive declaration carries with it, as
we have said, by implication, the full import of the negative one which
we have supposed above: but in order to make assurance _doubly_ sure,
the framers of the Constitution added a negative declaration, which,
though more concise than the one we have supposed, is of precisely the
same meaning; _and the judges in every State shall be bound thereby, any
thing in the Constitution or laws of any State to the contrary
notwithstanding_. This declaration, we repeat, though more concise, is
equivalent in meaning to the more extended expression of the same idea,
which we have imagined as the most direct and unequivocal that could
possibly be used.--_Any thing in the laws of any State to the contrary
notwithstanding._--No State, in the exercise of its ordinary law-making
power, shall have a right to annul or arrest the execution of this
Constitution, or the laws made in pursuance thereof by the United
States. _Any thing in the Constitution of any State to the contrary
notwithstanding._--No State, in the exercise of her sovereign or
constitution-making power; no State, acting in her sovereign capacity,
shall have a right to annul or arrest the execution of this
Constitution, or the laws made in pursuance thereof by the United
States. Any act that may be done for this purpose is to be, _ipso
facto_, null and void. _The judges shall not be bound by it._ Will the
Vice-President or any person of plain common sense undertake to say,
that this is not a correct paraphrase of the negative clause in the
Constitution? If it be admitted that it is, will the Vice-President or
any man of plain common sense undertake to say, that if the framers of
the Constitution had employed the language of this paraphrase instead of
the concise equivalent phrase which they used, there could be any doubt
respecting the character of the present proceedings in Carolina? There
is, in fact, no doubt about it.
It is painful to see a person so distinguished for talent, and, as we
have hitherto been willing to believe, for uprightness of purpose, as
Mr. Calhoun is, attempting to escape by a side path from the plain and
obvious meaning of this clause, which he shrinks from meeting in the
face. He alludes to several propositions that had previously been
submitted to the Convention which framed the Constitution, for the
purpose of making the acts of the General Government paramount to those
of the States; and because these were rejected, he concludes, that the
one which was adopted is not to be carried into effect according to its
plain and natural sense. Is this fair argument? Is it even plausible? It
is impossible, within the narrow compass of an article, to go fully
into every part of this vast subject; but any one, who will take the
trouble to examine the proceedings of the Convention, will readily see
why they rejected the first propositions, and why they adopted the last.
As the States retain a very considerable portion of the legislative
power, and remain, for many purposes, distinct communities, it was
thought important that, in regard to the exercise of the powers so
retained, they should not be under the formal control of the General
Government:--in other words, that so far as they were sovereign, they
should not be subject. Hence the rejection of the proposal of General
Hamilton to give the President a negative on all State laws; and hence
subsequently the amendment of the Constitution, by which it was ordained
that no State should be sued at law. This was all perfectly proper: but
it was also essential that the paramount authority of the acts of the
General Government should be secured, and the object was attained by the
proposition finally adopted, which declares distinctly, both in a
positive and negative form, that such is the understanding of the
Convention, and leaves it to _the Courts of Justice_ to enforce the
provision. This plan is just as effectual as the other would have been,
because the decisions of the courts may and must be sustained, if the
occasion require it, by the whole military force of the country; while
at the same time it removes the possibility of any actual collision
between the two law-giving powers, in the regular performance of their
functions. Each exercises a complete and uncontrolled discretion as to
the objects and extent of its own legislation;--puts its own
construction upon its own powers;--passes, in short, any laws which it
deems constitutional and expedient. Neither, in this form of action, has
any control over the proceedings of the other.--The General Government
has no more right to annul an act of the State of South Carolina, than
the State of South Carolina has to annul an act of the General
Government. But when the proceedings of the two powers come into
collision,--as it may well be supposed that, under such circumstances,
they occasionally will,--the silent operation of the Courts of Justice
gives the ascendancy, where the Constitution declares that it belongs,
to those of the General Government. The provision, like most others in
the Constitution, is obviously the simplest and best that could have
been adopted. The rejection of other propositions of similar tendency
only proves that the Convention considered the subject very maturely,
and successively laid aside the several imperfect and inexpedient
methods of effecting the great object in question, which were proposed
to them, until they finally hit upon one that was satisfactory.
In alluding to this decisive clause in the Constitution, the
Vice-President omits entirely the negative part of it, and quotes it in
the following form:--_This Constitution and the laws made in pursuance
thereof shall be the supreme law of the land._ He then adds that he
shall not go into a minute examination of its effect, the subject having
been already so frequently and so ably investigated, that he deems it
unnecessary. This might have been a good reason for not discussing it at
all; but if it was expedient to discuss it at all, it seems hardly
proper that the most material point in the argument should be passed
over in silence. The omission looks very much like conscious weakness.
For ourselves, we have met with no suggestion, whether made on this or
any former occasion, which, according to our views, has thrown even the
shadow of a doubt upon the meaning of the passage. The pretext for a
question would probably be sought in the qualification, _made in
pursuance of the Constitution_. It may be said that, under this
qualification, laws not made in pursuance of the Constitution are not
paramount to those of the States. But this phrase has obviously no
bearing on the point in question. The meaning is, that the Constitution
and the laws of the United States, made _in the manner prescribed by
it_, or _for the purpose of carrying it into effect_, shall be the
paramount law of the land, just as in the other part of the phrase it is
said, that treaties made _under the authority of the United States_
shall also form a part of this paramount law. In both cases, there is no
reference to the question, whether the law or the treaty has been made
in a rightful or wrongful exercise of the legislative or treaty-making
power. It is merely affirmed that the acts of the General Government,
performed in the exercise of their powers under the Constitution, are
paramount to those of the States. The same language is used in the
Ordinance of Nullification, which declares that 'this Ordinance and the
laws _made in pursuance thereof_ by the legislative power of the State,
shall be binding on the citizens.' It is obviously not intended, that
the citizen shall judge for himself whether the laws so made are or are
not agreeable to the tenor of the Ordinance, but merely that the laws
which the assembly,--acting under this Ordinance or in consequence of
the recommendation contained in this Ordinance,--may pass, shall be
obligatory.
This qualification, which has sometimes, we believe, been regarded as
very significant, has therefore no bearing on the point in question, nor
is it, as Mr. Calhoun imagines, by the clause conferring on the Supreme
Court the power of deciding in all cases arising under the Constitution,
that the States are supposed to be deprived of their right of putting
their own construction upon the powers of the General Government. The
right of deciding on the constitutionality of the laws of the United
States, belongs, from the nature of the case, to the courts, and is
expressly given to the Supreme Court by the Constitution; but the
possession of this right by the courts does not carry with it that of
deciding, that an act of the General Government is of paramount
authority to one of a State. On this subject, we are quite surprised at
the looseness of the Vice-President's reasoning, and its apparent
inconsistency with the general scope of his doctrine. 'Where there are
two sets of rules,' he remarks, 'prescribed in reference to the same
subject, _one by a higher and the other by an inferior authority_, the
judicial tribunal called on to decide the case, must unavoidably
determine, should they conflict, which is the law; and that necessarily
compels it to decide that the rule prescribed by the _inferior power_,
if, in its opinion, inconsistent with that of the higher, is
void.'--This doctrine is strange indeed in the mouth of the Prince of
nullifiers and great champion of State Sovereignty. Where, we would ask,
has the Vice-President learned that the State Governments are inferior
and the General Government a superior power?--We must inform him, that
without being nullifiers, and without believing in the doctrine of State
Sovereignty, we make no such admission for Massachusetts. The State and
General Governments, each of which exercises, independently of the
other, a portion of the sovereign or legislative power of the people,
are neither superior nor inferior to each other: they are precisely on a
level. The right of deciding on the constitutionality of the acts of the
General Government would no more of itself authorize the judges to
decide that they are paramount to those of the States, than it would
authorize them to decide that the acts of the States are paramount to
those of the General Government. The two Governments, considered as
distinct legislative powers, are on a footing of perfect equality. The
question, which shall prevail when their acts come into collision, must
be decided by the nature of the case, and by the specific provisions of
the Constitution. It follows, from the nature of the case, that the acts
of the General Government, which represents the body politic of which
all the States are members, must have an authority paramount to any
other existing in the community; and this conclusion is confirmed by the
letter of the Constitution, which expressly declares, in so many words,
that the acts of the General Government are paramount to those of the
States. It was by forming themselves into one body politic, and by
expressly stipulating with each other in the compact by which this body
politic was formed, that the acts of the General Government representing
it should be paramount to their own, that the States surrendered the
right of putting their own construction on the powers of the General
Government; and this is the foundation of the authority possessed by the
judges, when, by virtue of a different clause, they take cognisance of
cases arising under the Constitution, to decide, as they undoubtedly
must and would do, that any act of a State, whether in its sovereign or
legislative capacity, pretending to annul an act of the General
Government, is of itself, _ipso facto_, null and void.
Finally, says the Vice-President, 'it belongs to the authority which
imposes an obligation, to declare its extent, as far as those are
concerned on whom the obligation is placed. The obligation upon the
individual citizens of the United States to obey the laws, results from
the acts of their respective States, by which they became parties to the
Union; and a similar act of the same authority declaring the extent of
the obligation must be of equal authority, and of course releases the
citizen from the obligation which he came under, by the effect of the
former one.'