TRANSCRIBER'S NOTES:
Obvious typographical errors have been corrected.
Inconsistencies in spelling have been retained from the original.
The cover of this book was created by the transcriber and is placed in the public domain.
STRICTURES
ON
NULLIFICATION.
STRICTURES
ON
NULLIFICATION.
FROM THE NORTH AMERICAN REVIEW.
BOSTON:
STIMPSON AND CLAPP, 72 WASHINGTON STREET.
J. E. Hinckley & Co., Printers, 14 Water Street.
1832.
STRICTURES
ON NULLIFICATION.
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.
