7OUT50AJ, THACT ^Ob 14. •
SEPTEMBER. 1832.
IMPORTANT
COMKESPOTOEXCE
ON THE SUBJECT OF
STATS INTERPOSITIOX,
BETWEEN
His Excellency GOY. HAMILTON,
AND
sosr. c. c£Z.HOur&r»
Vice-President of the United States.
Copied from the Pendleton Messenger of 15th Sept, 1832.J
.PUBLISHED BY THE ASSOCIATION.
CHARLESTON:
PRINTED BY A. E, MILLER,
No. 4, Broad-street,
1632. '
[Governor Hamilton to Hon. John C. Calhoun.']
PENDLETON, JULY 31, 1832.
My Dear Sir,—In reading again, a few days since, your communication
addressed, last summer, to the editor of the ' Pendleton Messenger,' containing
an exposition of the doctrine of the right of interposition, which belongs to a
sovereign State in this Confederacy, to arrest an usurpation, on the part of the
General Government, of powers not delegated to it, 1 .felt satisfied, not only
from a remark which you yourself make in that- article, but from an obvious
condensation of your argument, that, .there were still a variety of lights*in
which the trqth and vital importance of tin's highly conservative principle to
the liberties of the-States were quite familiar to the reflections* of your own
mind, which have not suggested themselves even to those who are the most
zealously devoted to the doctrines in question.
Your patience has bsqn so heavily taxed by the late oppressive session of
Congress (oppressive in every sense of the term) that I feel some scruple in
placing you under.the requisition which my request is about to impose;
but if you could find leisure this summer, for my private satisfaction and
information, to fill out your argument of the last year, bv going somewhat
more into detail both as- to the principles ami consequences of Nullification,
you would add one more to the many obligations of friendship I owe you. As
I shall be, during the residue of the summer, in Charleston, be pleased.to
direct to that place.
I remain, my dear sir, with great esteem, your's, faithfully and respedfully.
. ' JAMES HAMILTON,- Junicrr
Hon. J. C. Cat.houn, Vice-President of the United States.
[Ron. John C. Calhoun to Governor Hamilton.]
FORT IHLL, AUGUST 28, 1832;
My Dear Sir,—I have received your note of-tiie 31st of July, requesting me
to give you a fuller development of my views, than that contained in my
address last summer, on the right of a State to defend her reserved powers
against the encroachments of the General Government.
As fully occupied as my time is, were it doubly so, the quarter from which
the request comes, with my deep conviction of the vital importance of the
subject, would exact u compliance.
No one can be more sensible, than I am, that the address of last summer
fell far short of exhausting the subject, fix was. in fact, intended as a simple
statement of my views. I felt that the independence and candour which
ought to distinguish one occupying a high public station, imposed a duty on
me to meet the call for my opinion, by a frank and full avowal of my senti¬
ments, regardless of consequence^. To fulfil this duty, and not to discuss the
subject, was the object of the Address. But in making these preliminary
remarks, I do not intend to prepare you to expect a full discussion on the
present occasion. What I propose is to touch some of the more prominent
points that have received less* of the public attention, than their importance
seeme to me to^demand.
3
Strange as the assertion may appear, it is nevertheless true, that the great
difficulty in determining whether a State has the right to defend her reserved
powers against the General Government, or, in fact, any right at all beyond
those of a mere corporation, is to bring the public mind to realize plain histori¬
cal facts, connected with the origin and formation of the Government. Till
they are fully understood, it is impossible that a correct and just view can be
taken of the sub ject. In this connection, the first and most important point is,
to ascertain distinctly, who are the real authors of the Constitution of the
United States—whose powers created it-—whose voice clothed it with author¬
ity—and whose agent, the government it formed, in reality is. At this point, I
commence the execution of the task which your request has imposed.
The formation and adoption of the Constitution are events so recent, and all
the connected facts so fully attested, that it would seem impossible that there
should be the least uncertainty in relation to them; and yet, judging by what
is constantly heard and seen, there are few subjects on which the public opinion
is more confused. The most indefinite expressions are habitually used in
speaking of them. Sometimes it is said, that 1he Constitution was made by
the States, and at others, as if in contradistinction, by the people, without
distinguishing between the two very different meanings which may be attached
to those general expressions; and this, not in ordinary conversation, but in
grave discussions before deliberative bodies, and in judicial investigations,
where the greatest accuracy, on so important a point might be expected; par¬
ticularly, as one or the other meaning is intended, condi tions the most oppo¬
site must follow, not only in reference to the subject of this communication,
but as to the nature and character of our political system. By a State, may be
meant, either the government of a State, or the people, as forming a separate
and independent community; and by the people, either the American people
taken collectively, as forming one great community, or as the people of thd
several States, forming, as above stated, separate and independent communi¬
ties. These distinctions are essential in the inquiry. If, by the people, be
meant, the people collectively, and not the people of the several States taken
separately; and, if it be true, indeed, that the Constitution is the work of the
American people collectively—if it originated with them, and derives its
authority from their will—then there is an end of the argument. The right,
claimed for a State, of defending her reserved powers against the General
Government, would be an absurdity. Viewing the American people collect¬
ively, as the source of political power, the rights of the States would be mere
concessions—concessions from the common majority, and to be revoked by
them with the same facility that they were granted. The States would, on
this supposition, bear to the Union the same relation that counties do to the
States; and it would, in that case, be just as preposterous to discuss the right
of interposition on the part of a State against the General Government, as that
of the counties against the States themselves. That a large portion of the
people of the United States thus regard the relation between the States and the
Geneial Government, including many who call themselves the friends of
State Rights and opponents of Consolidation, can scarcely be doubted, as it is
only on that supposition it can be explained that so many of that description
should denounce the doctrine for which the State contends, as so absurd.
But, fortunately, the'supposition is entirely destitute of truth. So far from
the Constitution being the work of the American people collectively, no such
political body, either now, or ever did exist. In that character the people of
this country never performed a single political act—nor indeed can, without
an entire revolution in all our political relations.
I challenge an instance. From the beginning, and in all the changes of
political existdnoo, through which we have passed, the people of the United
States have been united as forming political communities, and not as indi-
4
viduals. Even in the first stage of existence they formed distinct colonies,
Independent of each other, and politically united only through the British
•rown. In their first- informal union, for the purpose of resisting the encroach¬
ments of the mother country, they united as distinct political communities;
and, passing from their colonial condition, in the act announcing their
independence to the world, they declared themselves, by name and enumera¬
tion, free and independent States. In that character, they formed the old
confederation; and, when it was proposed to supersede the articles of the
confederation,T>y the present Constitution, they met in Convention as States,
acted aud voted as States; and the Constitution, when formed, was submitted
for ratification to the people of the several States; it was ratified by them, as
States—each State for itself; each, by its ratification, binding its own citizens;
the parts thus separately binding themselves—and not the whole the parts;
to which, if it be added, that is declared in the preamble of the Constitution to
Be ordained by the people of the United States, and in the article of ratification,
when ratified, it is declared "to be binding between the States so ratifying,"
the conclusion is inevitable, that the. Constitution is the work of th,e people of
the States, considered as separate and independent political communities—
that they are its authors—their power Created it—their voice clothed it with
authority—that the government it formed is, in reality, their agent—and that
the union, of which it is the bond, is an union of States, and not of individuals.
No one who regards his character for intelligence and truth, has ever ventured
directly to deny facts so certain; but while they are too certain for denial, they
are also too conclusive in favour of the rights of the States, for admission.
The usual course has been adopted: to elude what can neither be denied nor
admitted; and never has the device been more successfully practised. By
confounding States with State Governments, and the people of the States
•with the American people collectively, things, as it regards the subject of this
Communication, totally dissimilar, as much so as a triangle and a square, facts,
•f themselves perfectly certain and plain, and which, when well understood,
must lead to a eorrect conception of the snbject, have been involved in obscu¬
rity and mystery.
I will next proceed to state some of the results, which necessarily follow,
Bom the facts which have been established.
The first, and in reference to the subject of this communication, the most
important is, that there is no direct and immediate connection between the
individual citizens of a State and the General Government. The relation
between them is through the State. The Union is an union of States, as
communities, and not an union of individuals. As members of a State, her
citizens were originally subject to no control, but that'of the State; and could
be subject to no other, except by the act of the State itself. The Constitution
was accordingly submitted to the States for their separate ratification; and it
was only by the ratification of the State that its citizens became subject to the
control of the General Government. The ratification of any other, or all the
other States, without its own, could create no connection between them and
the General Government, nor impose on them the slightest obligation. With¬
out the ratification of their own State, they would stand in the same relation
to the General Government, as do the citizens and subjects of any foreign
State; and we find the citizens of North-Carolina and Rhode-Island actually
bearing that relation to the Government for some time after it went into opera¬
tion ; these States having, in the first instauce, declined to ratify. Nor had
the act of any individual the least influence in subjecting him to the control of
the General Government, except as it might influence the ratification of the
Constitution by his own State. Whether subject to its control, or not. de¬
pended wholly on the act of the State. His dissent had not the least weight
against the assent of his State—nor his assent against its dissent. It follows,
5
as a necessary consequence, that the act of ratification bound the State, alf a
community, as is expressly declared in the article of ratification above quoted,
and not the citizens of the State, as individuals; tire latter being bound
through their State, and in consequence of the ratification of the former.
Another,- and a highly important consequence, as it regards the subject under
investigation, follows with equal certainty; that on a question, whether a
particular power, exercised by the General Government, be granted by the
Constitution, it belongs to the State, as a member of the Union, in her sover¬
eign capacity, in Convention, to determine definitively, as far as her citizens
are concerned, the extent of the. obligation which she contracted; and if, in
her opinion, the act exercising the power be unconstitutional, to declare it null
and void, which declaration would he obligatory on her citizens. In coming to
this conclusion, it may "be proper to remark, to prevent misrepresentation,
that I do not claim for a State the right to abrogate an act of the General Gov¬
ernment. It is the Constitution that annuls an unconstitutional act. Such an
act is, of itself, void and of no effect. What I claim is, the right of the State,
as far as its citizens arc concerned, to declare the extent of the obligation, and that
such declaration is binding on them—a right, when limited to its citizens, flow¬
ing directly from the relation of the State to the General Government, on the
one side, and its citizens on the other, as already explained, and resting on thq
most plain and solid reasons.
Passing over, what of itself might be considered conclusive, the obvious
principle, that it belongs to the authority, which imposed the obligations to de¬
clare its extent, so far as those are concerned on whom the obligation i3 pla-~
ced. I*shall present a single argument which, of itself, is decisive. I have
already shewn, that there is no immediate connection between the citizens of
a State and the General Government; and, that the relation between them, is
through the State. I have also'shewn, that whatever ^obligations were im¬
posed on the citizens, were imposed by the declaration of the State, ratifying
the Constitution. A similar declaration, by the same authority, made with
equal solemnity, declaring the extent of the obligation, must, as far as they
are concerued, be of equal authority. I speak, of course, on the supposition,
that the right has not been transferred, as jt will hereafter be shewn, that it
lias not. A citizen would have no more right to question the one, than he
would hove, the other declaration. They rest on the same authority; and as
he was bound by the declaration of his State assenting to the Constitution,
whether he assented or dissented, so would he be equally bound, by a declara¬
tion defining the extent of that assent, whether opposed to, or in favour of
such declaration. In this conclusion. I am supported by analogy. The case
of a treaty between sovereigns is strictly analogous. There, as in this case,
the State contracts for the citizen, or subject;—there, as in this, the obliga.
tion is imposed by the State ; and is independent of his will; and there, as in
this, the declaration of the State, determining the extent of the obligation
contracted, is obligatory on him, as much so, as the treaty itself.
Having now, I trust, established the very important point, that the decla¬
ration of a State, as to the extent of the power granted, is obligatory on its
citizens, I shall next proceed to consider the effects of such declarations, in
reference to the General Government; a question which necessarily involves
the consideration of the relation between it and the States. It has been
shewn, that the people of the States, acting as distinct and independent com¬
munities, are-the authors of the Constitution, and that the General Govern¬
ment was organized and ordained by them to exeoute its powers. The Gov¬
ernment then, with all of its Departments, is in fact the agent of the States,
constituted to execute their joint will, as expressed in the Constitution.
In using the term agent, I do not intend to derogate, in any degree, from its
character as a Government. It is as truly and properly a Government, as
I*
6
afp 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 govern¬
ment. Indeed, according to oor theoiy, Governments are, in their nature, but
trusts, arid those appointed to administer them, trustees, or agents to execute
the trust powers. The sovereignty resides elsewhere ; in the people; not in
,the Government; and with us, the people mean the people of the several States
originally formed into thirteen distinct and independent communities, and
now into twenty-four. Politically speaking, in reference to our own system,
there are no other people, The General Government, as well as those of the
States, is but the organ of their power; the latter, that of their respective
States, through which is exercised separately that portion of power not de¬
legated by the Constitution, and, in the exercise of which, each State has a
local and peculiar interest; trie former, th'e joint organ of all the States confe¬
derated into one general community, and through -which they jointly and
concurringly exercise the delegated powers, in which all have a common in¬
terest. Thus viewed, the Constitution of the United States, with the Gov¬
ernment which 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, differing only in
the aspect, under which I am considering the subject, in the plighted, faith
of the State to its co-States, and of which, as far as its citizens are considered,
the State, in the last resort, is the exclusive judge.
Such, then, is the relation between the State and General Government, in
whatever light we jnay consider the Constitution, whether as a compact be¬
tween the States, or of the natme of a legislative enactment by the joint
and concurring authority of the States, in their high sovereignty. In what¬
ever light it may be viewed, I hold it as necessarily resulting, that in the case
of a power disputed between them, the Government, as the agent; has no
right to enforce its construction against the construction of the State, as one
of the sovereign parties to the Constitution, any more, than the State Gov¬
ernment would have, against tiie people of the State, in their sovereign capa¬
city, the relation being the same between them. That such would be the
case, between agent and principal, in the ordinary transactions of life, no
one will doubt, nor will it be possible to assign a reason, why it is not as appli¬
cable to the case of government as to that of individuals. The principle in
fact, springs from the relation itssf and is applicable to in all its forms and
Characters. 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 relation to ihe
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 thorn, such is not the case between him and his asso¬
ciates. They both have an equal right of construction, and it would be the
duty of the agent to bring the subject before the principals to be adjusted, ac¬
cording to the terms of the instrument of association, and of the principal to
submit to such adjustment. Tn 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-foqr sovereign States. It would be its duly, according to the princi¬
ples established, in such cases, instead of attempting to enforce its coastfuc-
7
tion, of its powers, against that of the States, to bring the subject before the
States themselves, in the only form, which according to the provision 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, bv 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. The grant of the powers delega¬
ted is contained in a written ■ instrument, drawn up with great, care, and
adopted with the utmost deliberation. It provides, that the powers not grant¬
ed, are reserved to the States and the people. If it be surrendered, or trans¬
ferred, let then the grant be shewn, and the controversy terminated, and
surely, it ought to be shewn, plainly and clearly shewn, before the States are
asked to admit what, if true, would not only divest them of a right, which,
under all it® terms, belongs to the principal over his hgent, unless surrendered,
but which cannot be surrendered, without in effect, and for all practical pur¬
poses, reversing the relation between them ; putting the agent in the place
of the principal, and the principal in that of the agent; and which would
degrade the States, from the high and sovereign condition, which they have
ever held, under every form of their existence, to be mere subordinate and
dependant corporations But instead of shewing any such grant, not a pro¬
vision can be found in the Constitution, authorizing the General Government
to exercise any control whatever over a State by force, by veto, by judicial pro¬
cess, or in any other form—a most important omission, intended, and not acci¬
dental; and as will be shewn in the course of these remarks, omitted by the
dictates of the profoundest wisdom.
The journal and proceedings of the Convention, which formed the Con¬
stitution, afford abundant proof, that there was in that body a p'owerful par¬
ty, distinguished for talents and influence, intent on obtaining for the Gener¬
al Government, a grant of the very power in question, and that they at¬
tempted to effect this object, in all possible ways, but fortunately without
success. The first project of a Constitution submitted to the Convention
(Gov. Randolph's) embraced a proposition to grant power, "to negative all
laws contrary, in the opinion of the National Legislature, to the articles of
the Union, or any treaty subsisting under the authority of the Union; and to
call forth the force of the Union against any member of the U; ion failing to
fulfil Us duty under the articles thereof." The next project submitted
^Charles Pihckney's) contained a similar provision. It proposed, "that
the Legislature of the United States should have the power 10 revise the laws
of the several Stales, .that may be supposed to infringe the powers exclu¬
sively delegated by this Constitution to Congress, and to negative and an*
mil such as do." The next was submitted by Mr. Paterson of New Jersey,
which provided, "if any ,State, or body of men in any state, shall oppose or
prevent the carrying into execution such acts or treaties" (of the Union)
" the federal executive shall be authorized to call forth the powers of the con-
federated States, or so much thereof, as shall be necessary to enforce, or com¬
pel the obedience 10 such acts, or observance of such treaties." Gen. Ham¬
ilton's followed next, which provided, that ' all laws of the particular States
contrary to the Constitution, or laws of the United States, to be utterly void:
and the better to prevent such laws being passed, the Governor, or Presi¬
dent of each State shall be appointed by the General Government: and shall
have a negative on the laws about to be passed, in the State of which he is
Governor, or President."
At a subsequent period, a proposition was moved and referred to a Com¬
mittee, to.provide, that "the jurisdiction of the Supreme Court shall extend
.to all controversies between the United States, and an individual state;" and,
8
at a still later period, it was moved to grant power "to negative all laws passed
by the several states, interfering in the opinion of the Legislature, with the
general harmony and interest of the Union, provided, that two thirds of the
members of each house assent to the same;" which after an effectual at¬
tempt to commit was withdrawn.
I do not deem it necessary to trace through the Journals of the Convention
the fate of these various propositions. It is sufficient that they were moved
andfailed to prove Conclusively, in a manner'never Jo be obliterated, that the
Convention, which framed the Constitution, was opposed to granting the
power to the General Government, in any form, through any of its Depart¬
ments, legislative, executive or judicial, to coerce or control a State, though
proposed in all conceivable modes, and sustained by"the most talented and
influential members of the body. This, one would suppose, ought to settle
forever the question of the surrender, er transferjif the power, under con¬
sideration; and such in fact would be the case, were the opinion of a lafge
portion of the community not biassed as in fact it is, -by interest. A major¬
ity have a direct interest in enlarging the powers of the Government, and
the interested adhere tospower with a pertinacity which bids defiance to truth,
though sustained by evidence, as conclusive as mathematical demonstration;
and accordingly, the advocates of the powers of the General Government,
notwithstanding the impregnable strength of the proof to the contrary, have
boldly claimed on construction, a power, the grant of which was so perse-
veringly sought, nd so sternly resisted by the Convention. They rest the
claim on the provisions in the Constitution, which declare, "that this Consti¬
tution and the Jaws made in pursuance thereof, shall he the supreme law of
the land," and that, "the judicial power shall extend to all cases in law and
equity arising under this Constitution, tire laws of the United States, and
treaties made, or which shall be made, under their authority."
I do not propose to go into a minute examination of these provisions.—
They have been so frequently and so ably investigated, and it^has been so
clearly shewn that they do not warrant the assumption of the power claim¬
ed for the Government, that I do not deem it necessary. I shall therefore
confine myself to a few detached remarks.
I have already stated, that a distinct proposition was made to confer the
very power in controversy on the Supreme court.'which failed; which, of it¬
self ought to overrule the assumption of the power by construction, unless
sustained by the most conclusive argumentsiimt when it is added that this pro¬
portion was moved (20th August) subsequent to the period of adopting the
provisions, above cited, vesting the court with its present powers, (18th Ju¬
ly) and that, an effort was made, at a still later perio^ (23 August) to invest
Congress-with a negative on all state laws, which, in its opinion, might in¬
terfere with the general interest and harmony of the Union, the argument
would seem too conclusive against the powers of the court, to be overruled
by construction, however strong.
Passing by, however, this, and also the objection, that the terms cases in
law and equity are technical, embracing only questions between parties, ame¬
nable to the process of the court, and, of course, excluding questions be¬
tween the States and the General Government ; an argument which
has never been answered ; there remains another objection perfectly
conclusive.
The construction, which would confer on the Supremo court the power
in question, rests on the ground, that the constitution has conferred on that
tribunal the high and important right of deciding on the constitutionality of
laws. That it possesses this power, I do not deny, but I do utterly, that it
is conferred by the Constitution,, either by the provisions above cited, or any
Other. It is a power, derived not from the Constitution, but from the neceg-
9
sity of the case; and so far from being possessed by the Supreme court, et"
clusively, or peculiarly, it not only belongs to every court of the country*
high or low, civil or criminal, but to all foreign courts, before which a case
may be brought, involving the construction of a law which may conflict with
the provisions of the Constitution. The reason is plain. Where there are
two sets of rules prescribed, in reference to the same subject, one by a high¬
er, and the other by an inferior authority, the judicial tribunal called in to de¬
cide on the case must unavoidably determine, should they conflict, which is
the law ; and that necessity compels it to decide, that the rule prescribed by
the inferior power, if, in its opinion, inconsistent with that of the higher, is
void ; be the conflict between the constitution and a law, or between a char¬
ter, and the by-laws of a corporation. The principle, and source of autho¬
rity are the same in both cases. Being derived from necessity, it is restricted
within" its limits, and cannot pass an inch beyond its narrow confines of deci.
ding in a case before the court, and of course, between parties amenable to
its process, excluding thereby political questions, which of the two is in re¬
ality, the law, the act of Congress, or the Constitution, when, on their face,
they are inconsistent; and yet, from this resulting, limited power derived
from necessity, and held in common with, every court in the world, whn h by
possibility "may take cognizance of a case involving the interpretation
of our Constitution and laws, it is attempted to confer on the Supreme
Court, a power, which would work a thorough and radical change in
our system ; and which power was p sitively refused by the Convention.
The opinion, that the General Government has the right to enforce its con¬
struction of its powers against a State, in any mode whatever is, in truth,
founded on a misconception of our system. At the bottom of this, and in
fact, almost every other misconception, as to the relation between the States
and the General Government, lurks the radical error, that the latter is a na¬
tional, and not as in reality it is a Confederated Government; and that it de¬
rives its powers from a higher source than the States. Theie are thousands
influenced by these impressions, without being conscious of it, and who,
while they believe themselves to be opposed to consolidation, have infused
into their conception of our Constitution, almost all the ingredients, which
enter into that form of Government. The striking difference between the
present Government, and that under the old-confederation (I speak of Govern¬
ments, as distinct from -constitutions) has mainly contributed to this dangerous
impression. But, however disimilar their Governments, the present Consti¬
tution is as far removed from consolidation, and is as strictly, and as purely
a confederation, as the one which it superseded.
Like the Old Confederation, it was formed and ratified by State authority.
The only difference inthis particular is, that one was ratified by the people
of the States, the other by the State Governments; one forming more strictly
an Union of the State Governments, the other of the States themselvesone
of the agents exercising the powers of Sovereignty, and the other of the
Sovereigns themselves ; but birth were Unions of Political bodies, as distinct
from an Union of the people individually. They are, indeed, both confede¬
rations ; but the present in a higher and purer sense, than that which it suc¬
ceeded ; just as the act of a sovereign., is higher and move perfect, than that
of his agent; and it was, doubtless, in reference to this difference, that the
preamble of the Constitution, and the address of the Convention, laying the
Constitution before Congress, speak of consolidating and perfecting the
Union ; yet this difference, which while itelevated the General Government,
in relation to the State Governments, placed it more immediately in the
relation of the creature and agent of the States themselves, by a natural mis¬
conception, has been the principal cause of-the impression so prevalent—of
the inferiority of the States to the General G<5vernroent,aizd of the consequent
10
right of the latter to coerce the former. Raised from below the State
Governments, it was conceived to be placed above the States themselves.
I have now, I trust, conclusively shown, that a State has a right, in her
sovereign capacity, in Convention, to declare an unconstitutional act of
Congress to be null and void, and that such declaration would be obligatory
on her citizens,, as highly'so as the constitution itself, and conclusive against
the General Government, which would have no right to enforce its construc¬
tion of its powers against-that of the State.
I next propose to consider the practical effect of the exercise of this high
and important right, which, as the great conservative principle of our sys¬
tem, is knowii under the various'names of Nullification, Interposition, and
State Veto, in reference to its operation,, viewed under different aspects".—
Nullification, as annulling an unconstitutional act of the General Govern¬
ment, as far as the State is concerned; Interposition, as throwing the shield
of protection between the citizens of a State, and the encroachments of the
Government; and Veto, as arresting or inhibiting its unauthorised acts within
the limits of the State.
The practical effect, could the right be considered as one fully recognized,
would be plain and simple, and has already in a great measure been antici¬
pated. If the State has a right, there must of necessity be a corresponding
obligation on the part of the General Government, to acquiesce in its exer¬
cise ; and of course it would be its duty to abandon the power, at least as far
as the State is concerned, and to apply to the States themselves, according to
the form prescribed in the Constitution, to obtain it by a grant. If granted,
acquiescence then would be a duty on the part of the State, and in that event,
the contest would terminate in converting a doubtful constructive power, in¬
to one positjvely granted; but should it not be granted, no alternative would
«%emain for the General Government but its permanent- abandonment. In
either event, the controversy would be closed, and the Constitution fixed ; a
result of the utmost importance to the steady operation of the Government,
and the stability of the system, and which can never be attained under its
present operation, without the recognition of the right, as experience has
shewn. •
From the adoption of the Constitution, we have had but one continued
agitation of constitutional questions, embracing some of the most i mportant
powers exercised by the Government; and yet, in spite of all the ability and
force of argument disnlayed in the various discussions, backed by the high
authority claimed for the Supreme Court, to adjust such controversies, not
a single constitutional question, of a political characte , which h is ever been
agitated, during this long period, lias been settled, in the public opinion,
except that of the unconstitutionality of the Alien and" Sedition Law ; and,
what is remarkable, that was settled against the decigim of the Supreme Court.
The tendency is to increase, and not dim'nish this conflict for power. New
questions ate yearly added, without diminishing the old, while the contest
becomes more obstinate as the list increases ; and. what is highly ominous
more sectional. It is impossible that the Government, can last, under this
increasing diversity of opinion, and growing uncertainty, as to its power,,
in relation to the most important subjects of legislation ; and equally so, that
this dangerous state can terminate, without a power somewhere to compel
in effect, the Government to abandon doubtful constructive powers, or to
convert them into positive grants, by an amendment of the Constitution ; in
a word, to substitute the positive grants of the parties themselves, for the
constructive powers interpolated by the agents Nothing short of this, in a
system constructed as ours is. with a double set of agents, one for local, and
the other for general purposes, 'can ever terminate the conflict for power, or
give uniformity and stability to its action,
11
Such would be the! practical and happy operation were the right recognized;
but the case may be far otherwise; and as the right is not only denied, but
violently opposed, the General Government, so far from acquiescing in its
exercise, and abandoning the power, as.it ought, may endeavor, b} ail the
means within its command, to enforce its construction against that of the
State. It is under this aspect of the question, that I now propose to consi¬
der the practical effect of the exercise of the right with the view to determine,
which of the two, the State or the General Government, must prevail in
the conflict; which compels me to revert to some of the grounds already
established.
I have already shewn, that the declaration of Nullification would be obli¬
gatory on the citizens of the State, as much so in fact, as its declaration ra¬
tifying the Constitution. resting as it does, on the same basis. It would to
them he the highe'st possible evidence, that ti e power contested was not
granted, and, of course, that the act of the Gucral Government was uncon¬
stitutional. They would be bound, in all the relations of life, private and
political, to respectand obey it; and., when called upon, as Jurymen, to ren¬
der their verdict accordingly, or as Judges, to pronounce judgment in con¬
formity to it. The' right of Jury trial is secured by the Constitution (thanks
to the jealous spirit •of liberty doubly-secured and fortified) and with this in¬
estimable right—inestimable, not only as unessential portion of the judicial
tribunals of the country, but infinitely more so, considered as a popular, and
still more, a local representation, in that department of the Government,
which, without it, would be the farthest removed from the control of the
people ; and a fit instrument to sap the foundation of the system ; with, I re¬
peat, this inestimable right, it would be impossible for the general govern¬
ment, within the limits of the State, to execute, legally, the act nullified, or
any other, passed with a view to enforce it; while on the other hand, the
State would he able to enforce, legally and peaceably, its declaration of Nul¬
lification. Sustained by its Court and Juries, it would calmly and quietly,
but successfully, meet every effort of the General Government to enforce its
claim of power. The result would he inevitable. Before the judicial tri¬
bunals of the country, the State must prevail ; Unless, indeed, Jury
trial could be eluded, by the refinements of she court, or by seme
other device; which, however, guarded as it is by the ramparts, of the
Constitution, would, T hold, be impossible. The attempt to elude,
should it be made, would itself be unconstitutional ; and, in turn, would
be annulled by the sovereign voice of the State. Nor Would the right
of appeal-to the Supreme Court, under the Judiciary act, avaii the General
Government. If taken, it would but end in a new trial, and that, in ano¬
ther verdict against the government ; but whether it may be taken, would
be optional with the State. The Court, itself lias decided, that a copy of the
record is requisite to review a Judgment "of a State Court; and, if necessary,
the State would take the precaution to prevent, by proper enactments, any
means of obtaining a copy. But ifobtained, what would it avaii, against the
execution of the penal enactments of the State, intended to enforce the de¬
claration of Nullification? The Judgment of the State Court would be
pronounced and executed, before the possibility of a reversal; and executed
too, without responsibility incurred by any one. *
Beaten before the courts, the General Government would be compelled to
abandon its unconstitutional pretensions, or resort to force—a reso t, the dif¬
ficulty (I was about to say, the impossibility) of which, would very soon fully
manifest itself, should folly, or madness, ever make the attempt.
In considering this aspect of the Controversy, I pass over the fact, that the
General Government has no right to resort to force against a state—to coerce
a sovereign member of the Union—which, I trust, I have established beyond
12
all possible doubt. Let it, however, be determined to use force, and the di£
ficulty would be insurmountable, unless, indeed, it be also determined to set
aside the Constitution, and to subvert the system to its foundations.
Against whom would it be applied? Congress has, it is true, the right to
call f rth the militia, "to execute the laws, and suppress insurrectionsbut
there would be no law resisted, unless, indeed, it be called resistance for the
juries to refuse to find, and the courts to render judgment, in conformity to
the wishes of the General Government; no insurrection to suppress; no
armed force to reduce; not a sword unsheathed; not a bayonet raised; none,
absolutely none, on whom force could be#used; except it be on the unarmed
citizens engaged peaceably and quietly, in their daily occupations.
No one would beguiltv of treason, ("levying war against the United States,
adhering to their eriemie--; giving them aid and comfort,") or any other
crime, made penal by the Constitution, or the laws of the United States.
To suppose that force couid be called iu, implies, indeed, a great mistake,
both as to the nature of'our Government and that of the controversy. It
would be" a legal and constitutional congest, a conflict of moral, and not phy¬
sical force—a trial of constitutional, net military power, to be decided before
the judicial tribunals of the country, and not on the field of battle. In such
contest, there would he no object for force, but those peacefif tribunals—no¬
thing on which it could be employed, but in putting down courts and juries,
and preventing the execution of judicial process. Leave thesn untouched,
anil all the militia that could be called forth, backed by a regular force of ten
times the number of our small but gallant and patriotic army, could not have
the slightest effect on the result of the controversy; but subvert these bv an
armed body, and you subvert the very foundation of this, our free, constitu¬
tional and legal.system qf government, and rear in its place a inilitaiy des¬
potism.
Feeling the force of these difficulties, it is proposed with the view, T sup¬
pose, of disembarrassing the operationas much as possible of the troublesome
interference of courts and juries, to change the scene of coercion £>om land
to water, as if the Government could have one particle more right to coerce
a state by water than" bv land; but unless I am greatly deceived, the difficulty
on that element will not be much less than on the other ' The jury trial, at
least the local jury, (the trial by the vicinage)may indeed, be evaded there ;
but, in its place, other and not much less formidable obstacles must be en¬
countered.
There can be but two modes of coercion resorted (o by water, blockade,
and abolition of the ports of-entry of the State, accompanied by penal enact¬
ments, authorising seizures for entering the waters of the State If the for¬
mer be attempted, there will be other parties, besides the General Govern¬
ment and the "-'late. Blockade is a belligerent right. It presupposes a state
of war, and, unless there be war (war in due form, as prescribed by the Con¬
stitution.) the order for blockade would not be respected by other nations, or
their subjects. Their vessels would proceed directly for the blockaded port,
with certain .prospects of gain; if seized under the order of blockade, through
the claim of indemnity against the General Government; and, if not, by a
profitable market without the exaction of duties.
The other mode, the abtolition of the ports of entry of the States, would
also have its difficulties. The Constitution provides that" " no preference
shall be given by any regulationof commerce, or revenue, to the ports df
one State, over those of another; nor shall vessels bound to or from one
State be obliged to enter, clear, or pay duties in another;" provisions too
clear to be eluded even by the force of construction. There will be another
difficulty. If seizures be made in port or within the distance assigned by
the laws of nations, as the limits of a State, the trial must be in the State,
13
with aH the embarrassments of its courts and juries; while beyond the ports
and the distance to wTJnfeb I have referred, it would be difficult to point out
any principle by which pjforeign vessel at least, could be seized, except as an
incident to the right of blockade, and of course, with all the difficulties be¬
longing to that mode of Coercion.
But, there yet remains another, and, I doubt not. insuperable barrier, to be
found in the Judicial tribunals of the Union, against all the schemes of intro¬
ducing force,"whether by land or water.—Though I cannot concur in the
opinion of those who regard the Supreme Court as the mediator, appointed
by the Constitution, between the States and the General Government; and
though I cannot dcftibt there is a natural bias on its part, towards the powers
of the latter, yet I must greatly lower my opinion of that high and impor¬
tant tribunal, for intelligence, justice and attachment to the Constitution,
and particularly of that pure and upright Magistrate, who has so long, and
with such distinguished honor to himself and theUniop, presided over its de¬
liberations, wi-h all the weight that belongs to an intellect of the first order,
united with the most spotless inlegrity, to believe for a moment, that an at¬
tempt, so plainly and manifestly unconstitutional, as a resort to force would
be, in such a contest,' ceVild be sustained by the sanction of its authority. In
whatever form force may he used, it must present questions for legal adjudi¬
cation. If in the shape of blockade, the vessels seized under it, must be
condemned, and thus would be presented the qu»stion of prize or no prize,
and,; with it, the legality of the blockade; if^ in that of a repeal of the acts,
establishing ports of entries in the State, the legality of ffie seizure must be
determined, and that would bring-up the question of the constitutionality of
giving a preference to the ports of one State over those of another; and, so,
if we pass from water to land, \ye will find every attempt there, to substitute
force for law, must in like manner, come under the review ofthe Courts ofthe
Union,and the unconstitutionality would be so glaring,that the Executiveand
Legislative Departments, in their attempt to coerce, should either make an at¬
tempt; so lawless and desperate, would he without the support of the Judicial
Department. I will not pursue the question farther, as I hold it perfectly clear,
that so long as a State retains its Federal relations, so long, ip a word, as it
continues a member of the Union the contest between it and the General
Government must be before the CourtS-and Juries, and every attempt, in what¬
ever form, whether by land, or water, to substitute force as the arbiter, in
their place, must fail. The unconstitutionality of-the attempt would be so
open and palpable, that it would be impossible to sustain it.
There is indeed one view, and one only of the contest, in which force could •
be employed ; but that view, as between the parties^ would supersede the
Constitution itself; that Nullification is secession, and would, consequently,
place the State, as to the others, in the relation of a foreign State. Such
clearly would be the effect of secession; but it is equally clear, that it would
place the State beyond the pale of allher Federal relations, and, thereby, all
control on the part of the other States over her. She would stand to them
simply in t}ie relation' of a foreign State, divested of all Federal connection,
and having none other between them, but those belonging to the laws of
nations. Standing thus towards one another, force might indeed be employed
against a State, but it must be a belligerent force, preceded by a declaration
of war, and carried on with all its formalities. Such would Jbe the certain
'effect of secession ; and if Nullification be Secession—if it be but a different
name for the same thing—such too, must be its effect; which presents the
highly important question,- are they, in fact the- same, on the decision of
which, depends the question, whether it be a peaceable and constitutional
remedy, that maybe exercised without terminating the Federal relations of
the State, or not.
2
14
I am aware, that there is a considerable, and respectable portion of.our
State, witli a very large portion of the Union, constituting in fact, a great ma¬
jority, who are of the opinion, that they are the same thing, differing only in
name ;- and who, under that impression, denounce* jt, as the most dangerous
of all doctrines ; and yet, so far from being the .same, they are, unless indeed
I, am greatly deceived, not only perfectly distinguishable, but totally dissimilar
-in their nature, their object, and effect; and that, so far from deserving-the
denunciation, so properly belonging to. the act, with which it -is confounded,
it is, in truth, the highest and most precious of all the rights of the States,
and essential to preserve that very Union, for the supposed eflect'of destroy¬
ing which, it is. so bitterly anathematized.
I. shall now proceed to make good my assertion of their total dissimilarity.
First, they are wholly dissimilar in their nature.- One has reference to the
parties themselves, and the other to their agents. Secession is a withdrawal
from the Uuion; a separation from partners, and, as far as depends on-the
member withdrawing, a dissolution of the partnership. It presupposes an
association ; a Union of several States, or individuals, fbf a common object.
Wherever these exist, Secession may ; and where they do not, it . cannot.
Nullification on the bontrary, presupposes the relation of principal apd' qgent;
the one granting a power to be executed, the other, appointed by him, with
authority to execute it; anil is simply a declaration on the part of the principal,
made in due form, that an act of the agent, transcending his poictr is null and
void. It is aright belonging exclusively to iberelation between principal and
agent, to be found wherever it exists, and in all its forms, between several, or
an association of principals, and their joint agents, as well as between a sin¬
gle principal and his agent.
The difference in their object is no less striking than in their nature.
The objedt of Secession is to free the withdrawing member from the obliga¬
tion of the association, or union; "and is applicable to cases, where the inten¬
tion of the association, or union has failed, either by an abuse of power on the
part of its members, or other causes. Its direct and immediate object, as it con¬
cerns the withdrawing member, is the dissolution of the association or union.
On the contrary the object of Nullification is to -confine the agent within the
limits of his powers, by arresting his acts, transcending them; nut . with the
view of destroying the delegated.or trust power, but-to preserve it, by compelling
the agent to fulfil the object for which the agency, or trust was created; and is
applicable only to cases where the trust or delegated powers are transcended on
the part of the agent. Without the power of Secession, an association, or
union, formed for the common good of all the members, might prove ruinous
to some, by the abuse of power, on the part of the others; and without .Nul¬
lification, the agent might under colour of construction v assume a power never
intended to be delegated, or to convert those delegated, to objects never in¬
tended to fie comprehended in the trust, to the ruin of the principal, or, in
case of ajoint agency, to the ruin of some of the principals. Each has thus,
its appropriate object; but objects in their nature, very dissimilar; so much
so, that in case of an association or union, where the powers are delegated to
be executed by an agent, the abuse of power, on the part of the agent to the
injury of one or morp of the members, would not justify Secession," on .their
part. The rightful remedy in that case would be Nullification. • There would
be neither right, nor pretext to secede; not right, because secession is appli¬
cable only to the acts of the members of the association or union, and not to
tie act of the agent: nor" pretext, because there is another, and equally effi¬
cient remedy, short of the dissolution of the association or union, which can
only be justified by necessity. Nullification may, indeed, be succeededby
Secession, In the case stated should the other members undertake to grant
t he power nullified, and should the nature of the power be such as to defeat
the object of the association or union, at least, as far as the member nullifying'
15
is concerned, it would then become an abuse of power on the part of the prin
eipals: and thus present a case, where secession would apply ; but in no
other, could it be justified, except it be for a failure of the association or
union, to effect the object for which it was created, independent of any abuse
of power. *,
It now retnaius to shew, that their effect is as dissimilar, as their nature, or
"b-iect- :
Nullification leaves th'e members of the association, or union, in the condi¬
tion it foVmd them, subject to all it^ burdens, and entitled to all its advantages,
comprehending the member nullifying, as well as the others ; its object being,
not to destroy, but to preserve, as has been stated. It simply arrests the act
of the agent, as far as the principal is concerned, leaving in every other res¬
pect, the operation of the joint concern, as before ; Secession on the contrary,
destroys, as far as the;withdrawing member is concerned, the association, or
union, and restores hrm to the relation he occupied towards the other mem¬
bers before the existence of'the association or union. He loses the benefit,
but is released from the burden a"nd control; an<J can no longer be dealt with
by his former associates, as one of its members.'
Such are clearly the differences between them-—differences so marked,
that instead of beinj* identified, as supposed, they form a contrast, in all the
aspects in which they can be regarded. The application of these remarks
to the political association, or Union.of these twenty-four Stales, and the
General fcovernixn nt, their joint agent, is too obvious, after what has been
already said, to require any additional illustration ; and I will dismiss this part
of the subject, with a single additional remark.
There are many, who acknowledge the right of a State to secede, but
deny its right to nullify; and yet, it seems impossible to admit the one, with--
out admitting the other. They both presuppose the sclme structure of the
Government, that it is a unioij of the -States as forming political communi¬
ties, the same right on the part of the States, as members of the Union, to
determine for her citizens, the extent of the ppwers delegated and those re¬
served, and, of-course to de< ide whether the constitution has or has not,
been violated. The simple dillerencu then, between those who admit Seces¬
sion, and deny Nullification, and those who admit both, is, that one acknowl¬
edges, that the declaration ol a State, pronouncing that the Constitution has
been violated, and isthereloi», null and void, would he obligatory on her
citizens, and would arrest all the acts of the Government, within the limits
of the State ; while they deny that a similar declaration, made by the same
authority, and in the same, manner, that, an act of the Government has tran¬
scended its powers,, and that it is, therefore, null and void, would have any
obligation, while the other acknowledges the obligation in both cases. The
one admits that the declaration of a State assenting to the Constitution
bound her citizens, and that her declaration can unbind 1 hem ; but denies,
that a similar declaration, as to the ex-tent, she has in fact bound them, has
any obligatory force on them ; while the other-gives equal force to the declar¬
ation in the several cases. The one denies the obligation, where the object
is to preserve the Union in the only icay it can be, bv confining the Government,
formed to execute the trust powers, strictly within their limits, and to the
objects, for which they were delegated, though they give full' force, where
the object is to destroy the Union itself; while the other, in giving equal
weight to hoth, prefers the one because it preserves, and rejects the other because
it destroys ; and yet, the former is the Union ; and the latter the Disunion
party! And all this strange distinction originates as far as lean judge, in
attributing to Nullification, what belongs exclusively to Secession. The diffi¬
culty. as to the former, it seems is, tbat a State cannot be in and out of the
Union at the-same time-
16
This is, indeed, true, if applied to Secession—the throwing off the authority
of the Union itself. To nullify the Constitution, if I may be pardoned the
solecism, would indeen be tantamount to disunion; and as applied tg such an
act, it would be true that a State could not be in and out of the Union at the
same time; but the act would be Secession.
But to apply it to Nullification, properly understood, the object of which,
ihstead of resisting or diminishing the powers of the Union, is to preserve
them as they are, neither increased nor diminished, and thereby the Union
itself (for the tJnion may^ be as effectually destroyed by increasing as by
diminishing its powers—by Consolidation as by disunion itself) would be, 1
would say, had I not great respect for many who do thus apply it, egregious
trifling with a grave and deeply important constitutional subject,
I might here finish the task which your request imposed ;" having, I trust,
demonstrated, beyond the po wer of refutation, that a State has the right to
defend her reserved powers, against the encroachments of the General Gov¬
ernment; and, I may add, that the right is in its nature peaceable, consistent
with the federal relations of the State, and perfectly efficient, whether , con¬
tested in the Courts, or attempted to be resisted by- force. But there is
another aspect of the subject, not yet touched, without adverting to which, it
is impossible to understand the full effects of Nullification, or the real charac¬
ter of our political institutions; I-allude to the power which the States, as a
confederated body, have acquired directly over each other; and on which I
will now proceed to make some remarks, though I fear at the hazard of
fatiguing you.
Previous to the adoption of the present Constitution, no power eould be
exercised over any State, by any other, Or all of the States, without its own
consent; and we, accordingly, find, that the old Confederation and the pre¬
sent Constitution were both submitted for ratification to each of the States, and
that each ratified for itself, and was bound only in consequence of its own
particular ratification, as has been already stated. The present Constitution has
made in this particular, a most important modification in their condition. I allude
to the provision which gives validity to amendments of the Constitution, when
ratified by three-fourths of the States—a ju ovision which has not attracted as
much attention as it importance deserves. Without it, no ehauge could have,
been made in the Constitution, unless with the unanimous consent of all the
States, in like manner as it was adopted. This provision, then, contains a
highly important concession, by each to all of the States, of a portion of the
original and inherent right of self-government, possessed, previously by each
separately, in favour of their general confederated powers, giving, thereby,
increased energy to the States in their united capacity, and weakening them
in the same degree in their separate.' Its abject was to facilitate and strengthen
the action of the amending, or (to speak a little more appropriately as it re¬
gards the point under consideration) the repairing power. It was foreseen,
that experience would probably disclose errors in'the Constitution itself—that
time would make great changes.in the condition of the country, which would
require corresponding changes in the Constitution—that the irregular and con¬
flicting movements of the bodies, composing sj complex a system, might
cause derangements requiring correction—and that to require the unanimous
consent ofiali the States to meet-these various contingences, would be placing
the whole too much under the control of the parts ; jo remedy which, this
great additional power was given to the amending or repairing power—this
■eis.medica.trix of the system.
To understand, correctly, the nature of this concession, we must not con¬
found it with the delegated powers, conferred on the General Government,
and to he exercised by it, as the joint agents-of the.States. IHiey are essentially
different. The former is, in fact, but a modification of the original sovereign
17
power, residing in the people of the several States—of the creating or Consti¬
tution-making power itself, intended, as stated, to facilitate and strengthen its
action, and not change its character. Though modified, it is not delegated. It
still resides in the States, and is still to be exercised by them, and not by the Gov¬
ernment.
I propose next, to consider this important modification of the sovereign
powers of the States, in connexion with the right of Nullification,
It isacknowledged, on all sides, that the duration and'stability of our sys¬
tem depends on maintaining the equilibrium between the States and the Gen¬
eral Government—the reserved arid delegated powers. We know, that the
Convention which formed the Constitution, and the various State Conven¬
tions which adopted it, as far as we are informed of their proceedings,
felt the deepest solicitude on this point: They saw and felt there would be
an incessant conflict between them, which would menace the existence of the
system itself, unless properly guarded". The contest between the States and
General Government—the reserved and delegated rights—will, in truth, be a
conflict between the great'predominant interests of the Union, on one side,
controlling and directing the movements of the Government, and seeking to en¬
large the delegated powers, and thereby advance their power and prosperity;
and, on ibe other, the minor interests rallying on the reserved powers, as the
only means of protecting themselves against the encroachment and oppression
of'the other". Tn such a contest, without the most effectual check, the stronger
will absorb the weaker interests: while, on the other hand, without an ade-
qu ite provision of some description, or other, 'the efforts of the weaker to
guard against the encroachments of the stronger, might permanently derange
the system.
On the side of the reserved powers, no check more effectual can be found,,
or desired, than Nullification, or the right of arresting, within the limits of a
State, the exercise, by the General Government, of any powers, but the dele¬
gated—a right which (if the Stat.es be true to themselves, and faithful to the
Constitution) will ever prove, oa the side of the reserved powers, an effectual
protection to both.
Nor is the.check on the side of the delegated,_ less perfect. Though less
strong it is an ample guard against encroachments; and is as strong as the nature
of the system will bear,'as will appear in the sequel. It is to be found in the
amending power. Without the modification, which it contains of the rights of
self-government, on the part of the States, as already explained, the consent
of each State would have been requisite to any additional grant.of power, or
other amendment of the Constitution. ' While, then, Nullification would ena¬
ble a State to arrest thej^xercise of a power not delegated, the right of self-go¬
vernment, if unmodified, would enable her to prevent the grant of a power not
delegated; an fifth us, her conception of what power ought to be granted,
would be as conclusive, against the co-States, as her construction of the pow¬
ers granted, is against the Geneial Government. In that case, the danger
would bo on the side of the States, or reserved powers. The amending pow¬
er, in effect, corrects this"danger. In virtue of the provisions, which it con¬
tains, the resistance of a State, to a power cannot finally prevail, unless she
be sustained by one fourth of the co-States; .and, in the same degree, that her
resistance is weakened, the power of the General Government, or the side of
the delegated powers, is strengthened. It is true, that the right of a State to
arrest an unconstitutional act is, of itself, complete against the Government;
but it is equally so, that the controversy may in effect, be terminated against
her, by a grant of the contested powers, by three fourths of the States. It is
thus, by this simple, and apparently incidental contrivance the right of a
State to nullify an unconstitutional act, so essential to the protection of the
reserved rights, but which, unchecked, might too much debilitate the Govern-
2*
18
went, is counterpoised, not by weakening the energy of a State in her direct
resistance to the encroachment of the" Government, or by giving to the latter
a direct control over the States, as proposed in the Convention, but in a man¬
ner infinitely moresafe, and, if I may be permitted so to express myself, sci¬
entific, by strengthening the amending, or repairing power—the power of
•orrecting all abuses or derangements by whatever cause, or from whatever
quarter.
To sum all in a few words. The General Government has the right in
the first instance of construing its own powers, which, if final and conclusive,
as is supposed by many would have placed the reserved powers at the mercy
of the delegated; and, thus, destroy the equilibrium of the system. Against
that, a State ha6 the right of Nullification. This right on the part of the State,
if not counterpoised, might tend too strongly to weaken the General Govern¬
ment and derange the system. To correct this, the amending, or repairing
power is strengthened. The former cannot be made too strong, if the latter
be proportiouably so. 'The increase of the latter is, in effect/the decrease of
the former. Give to a majority ofthe States the right of amendment, and the
arresting power, on the part of the State, would in fact be annulled. The
amending power and the powers of the Gpvernment would, in that case, be, in
reality, in the same hands, The same majority that controlled the one, would
the other; and the power arrested, as not granted, would be immediately re¬
stored, in the shape of a grant. This modification of the right of self-govern¬
ment, on the part of the States, is, in fact, the pivot ofthe system. By shift¬
ing its position, as the preponderance is on the one side or .the other, or, to
drop the similie, by inc;easing, or diminishing the energy of the repairing
power, effected by diminishing or increasing the number of States necessary
to. amend the Constitution, the equilibrium between the reserved and the de¬
legated rights.may be preserved, or destroyed at pleasure.
I am aware, it is objected, that according to this view, one fourth of the
States may in reality change the Constitution, and, thus, take away power's,
which have been unanimously granted by all the States. The objection is
more specious than solid. The right of a State is not to resume delegated
?lowers, but to prevent the reserved from being assumed by the Government,
t is, however, certain, the right may be abused, and, thereby^ powers be re¬
sumed, which were in fact delegated ; and it is also true, if sustained by oue
fourth of the co-States, such resumption may be successfully and permanently
made by the State. This is the danger ; and the utmost extent ofthe danger,
from the side ofthe reserved powers. It would, I acknowledge, be desirable
to avoid or lessen it; but neither can be effected, without increasing a greater
and imposing danger.
If the right-be denied to the State to defend her reserved' powers, for fear
she might resume the delegated, that denial would, in effect, yield to the Gene¬
ral Government the power, under the colour of construction, to assume, at
pleasure, all the reserved powers. It is, in fact, a question between the dan¬
ger of the States resuming the delegated powers, on one side, and the Gene¬
ral Government assuming the reserved on the other. Passing over the" far
greater probability of the latter, than the former, which I endeavoured to illus¬
trate in the Address of last summer, I shall confine my remarks to the striking
difference between them, viewed- in connection with the genius and theory of
our Government.
The right of a State, originally, to complete self-government is a fundamen¬
tal principle in our system, in virtue of which, the grant of power required the
tonsent of all the States, ichile to withltold power the dissent of a single State was
sufficient. It is true, that this original and absolute power of self-government
has been modified by the Constitution; 3s already stated, so that three-fourths
ef the States may now grant power, and consequently it requires more than
One fourth to withhold. The boundary between the reserved and the dele-
19
gated powers marks the limits of the Union. The States are united to the ex¬
tent of the latter and separated beyond that limit II is, then, clear tha:. it was
not intended, that the States should be more united, than the will of one fourth
of them, or rather one more than a fourth would permit. It is worthy of re¬
mark, that it was proposed in the Convention to increase the confederative
power, as it may be called, by vesting two thirds of the States with the right
of amendment; so as to require more than a third insteacJ.of a fourth, to with¬
hold power. The proposition was rejected; and three-fourths unanimously
adopted. It is, then, more hostile to the nature of our system, to assume powers
not delegated, than to resume those that are; and less hostile, that a State,, sustain¬
ed by one fourth of her co-States, should prevent,the exercise of power really in¬
tended to be granted, than that the General Government should assume the exer¬
cise of powers not intended lobe delegated. In the latter case, the usurpation of
power would be against the fundamental principle of our system, the original
right of the States to self-government; while in the former, if it be usurpation
at all, it tvould be, if so hold an expression may be used, an usurpation in the
spirit of the Constitution itself—the. spirit ordaining that the utmost extent of
our Union should be limited by the will of any number of States, exceeding
a fourth, and that most wisely. In a country having so, great a diversity of
geographical and political interests, with so vast a territory to be filled in a
short time with almost countless millions,—-a country, of which the parts will
equal Empires,—ail union, more intimate than that ordained in the Constituti¬
on, and so intimate; of course, tint it migh' be permanently hostile to the
feelings of more than a fourth of tha States, instead- of strengthening, would
have exposed the system to certain destruction. There is a deep and profound
philosophy, which he, who best knows our nature, will the most highly appre¬
ciate, that would make the- intensity of the Union, if I may so express myself,
inversely to the extent of territory and the population of a country, and the di¬
versity of its interests geographical and political, and which would hold, in
deeper dread, the assumption of reserved rights, by the agent appointed to ex¬
ecute the delegated, than the resumption of the delegated, by the authority
which granted the powers and ordained the agent to administer them. There
appears indeed, to be a great prevailing principle, that tends to place the dele¬
gated power in opposition to the delegating; the created to the creating
power—reaching far beyond man and his works, up to the universal source
of all power. The earliest pages of sacred history record the rebellion of
the Archangels against the high authority of Heaven itself, and ancient my¬
thology, the war of the Titans against J upiter, which according to its narrative,
menaced the universe with destruction. This all pervading principle is at
work in our system—the created warring against the creating power, and un¬
less the Government be bolted and chained down, with links of adamant, by
the hands of the States which" created it, the creature will usurp the place of
the creator, and universal political idolatry overspread the land.
If the views presented be correct, it follows, that on the interposition of a
State, in favour of the reserved rights, it would be the duty of the General
Government to abandon the contested power, or to apply to the States them¬
selves, the source of all political authority, for the power, m one, of the two
modes prescribed in the Constitution. If the case be a simple one, embracing
a single power, and that in its nature, easily adjusted, the nroie ready and appro¬
priate mode, would be an amendment of the ordinary form, on a proposition of
two-thirds of both houses of Congress, to be ratified by three-fourths* of the
Stales; but, on the contrary, should the derangement of the system be great,
embracing many points difficult to adjust, the States ought to be convened in
General Convention;.the most august of all assemblies, representing the united
sovereignty of the Confederated States, and having power and authority to
coirect every error, and to repair every dilapidation or injury, whether caused
by time or accident, or the conflicting movement of the bodies, which com-
20
pose the system. With institutions every way so fed tun ate, possessed of means
so well calculated to prevent disorders, and so admirable to correct them, when
they cannot be prevented, .he who would prescribe for our political disease,
disunion, on the one side, or coercion of a State, in the assertion of its rights,
on the other, icOvld deserve, and will receive the execrations of this and alt fib
lure generations.
I have now finished what I had to say on the subject of this communication,
in its immediate connection with the Constitution. In the discussion, I have
advanced nothing but on tbe-authority of the Constitution itself, or that of re¬
corded unquestionable facts, connected with the. history of its origin and for¬
mation; and have made no deduction, but such as rested on principles, which
I believe to be unquestionable ; but it would be idle to expect, in the present
state of the public mind, a favorable reception of the conclusions, to which I
have been carried. There are too many misconceptions to encounter, too
many prejudices to combat, and above all, too great a weight of interest to
resist. I do not propose to investigate these great impediments to the reception
of the truth, though it would be an interestang.subjt ct of inquiry to .trace them
to their cause, and to measure the force of their imped ing power; but there is one
among them of so marked a character, and* which operates so extensively, that
I cannot conclude without making it the subject of a few remarks, particularly
as they will be calculated to throw much light, on what has already been said.
Of all the impediments, opposed to a just conception, of the nature of our
political system, the impression, that the right of a State to'arrest an unconsti¬
tutional act of the General Government is inconsistent with the great and
fundamental principle of all free States, that a majority has a right to govern,
is the greatest. Tims regarded Nullification.'^, without further reflection, de¬
nounced as the most dangerous and monstrous of ali political heresies, as in
truth it would be, were the objection, as well founded, as, in fact, it is destitute
of all foundation, as I shall now proceed to shew.
Those who make the objection seem to.suppose that the right of a majority
to govern, is a principle too simple to admit of any distinction ; and yet, if I
do not mistake, it is susceptible of the most important distinction—entering
deeply into the construction of our system, and, I may add, into that of all
free States, in proportion to the perfection of their institutions, and is essential
to tlie very existence of liberty.
When, then, it is said, that a majority has the right to govern, there are two
modes of estimating the majority, to either of which the expression is applica¬
ble. The one, in which the whole community is regarded in the aggregate,
and the majority is estimated in reference to the entire mass. This may be
called the majority of the whole, or the absolute majority. The other, in
which it is regarded in reference to its political interests, whether composed
of different classes, of different communities, formed into one general confede¬
rated community, and in which the majority is estimated, not in reference to
the whole, but to each class or community of which it is composed, the assent
of each, taken separately and the concurrence of all constituting the majority.
A majority, thus estimated, may be called the concurring majority.
When it is objected to Nullification, that it is opposed to the principle, that
a majority ought to gove n, he who makes the objection must mean the abso¬
lute, as distinguished from the concurring. It is only in the sense of the
former the objection can be applied. In that of the concurring, it would be
absurd, as the concurring assent of all the parts (with us, the States) is of the
very essence of uch majority. Again—it is manifest, that in the sense it
would be good against Nullification, it would be equally so against the Constitu¬
tion itself; for, in whatever light that instrument may be regarded, it is clearly
not the work of the absolute, but of the concurring majority. It was formed
and ratified by the concurring assent of all the States, and not by the majority
21
of the whole taken in the aggregate, as has been already stated. Thus the
acknowledged right of each State in reference to the Constitution is unques¬
tionably the same right which Nullification attributes to each, in reference to
the unconstitutional acts of the Government; and, if the latter be opposed to
the right of a majority to govern, the former is equally so. I go-farther. The
objection might, with equal truth, be applied to all free States that have ever
existed; I mean Stales deserving the name, and excluding, of course, those
which after a factious and anarchial existence of a few years have sunk under
the yoke of tyranny, or the dominion of some foreign power. There is not,
with this exception, a single free State whose institutions are not based on the
principle of the concurring majority—not one, in which the community was
not regarded in reference to its different political interests,-and which did not,
in some form or other, take the assent of each in the operation of the Govern¬
ment.
In support of this assertion, I- might begin with our own Government and go
back to that of Sparta, and show, conclusively, that there is not one on the
list, whose institutions were not organized on the principle of the concurring
majority, and, in the operation of which, the sense of each great interest was-
not separately consulted. The various devices, which have been contrived
for this purpose, with the peculiar operation of each, would be a curious and
highly important subject of investigation. I can only allude to some of the
most prominent.
The principle of the concurring majority has sometimes been incorporated
in the regular and prdinary operation of the Government, each interest having
a distinct organization, and a combination of the whole forming the Govern¬
ment ; but still requiring the consent of each, within its proper sphere, to give
validity to the measures of Government. Of this modification, the British and
Spartan Governments are, by far, the most memorable and perfect examples.
In others, the right of acting—of making and executing the laws—was vested
in one interest, and the right of arresting, or Nullifying, in another. Of this
description the Roman Government is much the most striking instance. In
others, the right of originating or introducing projects of laws, was in one, and
of enacting them, in another, as at Athens, where the Areopagus proposed and
the General Assembly of the people enacted laws.
These devices were all resorted to, with the intention of consulting the
separate interests, of which the several communities were composed: and
against all of which, the objection to Nullification, that it is opposed to the will
of a majority, could be raised with equal force—as strongly, and, I may say,
much more so, against the-unlimited, unqualified, and uncontrolable veto of a
single tribune, out often, at Rome, on all laws and the execution of laws, as
against the same right of a sovereign State (one of the twenty-four tribunes of
this Union) limited, as the right is, to the unconstitutional acts of the General
Government, and liable, as in effect it is, to be controlled by three-fourths of
the co-States; and yet the Roman Republic, and the other States to which I
have referred, are the renowned among free States, whose examples have
diffused the spirit of liberty over the world, and which, if struck from the list,
would leave behind but little to be admired or imitated. There indeed would
remain one class deserving from us particular notice, as ours belong to it; I
-mean Confederacies—but as a class, heretofore far less distinguished for
power and prosperity, than those already alluded to—though, I trust, with the
improvements we have made, destined to be placed at the very head of the
illustrious list of States, which have blessed the world with examples of well
regulated liberty; and which stand, as so many oases in the midst of the
desert of oppression and despotism which occupy so vast a space in the chart
of Governments. That such will he the great and glorious destiny of our
system, I feel assured—provided we do not permit our Government to degen-
erate into the worst of all possible forms, a Consolidated Government swayed
by the will of an absolute majority. — But to proceed.
Viewing a confederated community, as composed of as many distinct polit¬
ical interests, as there are States, and as requiring the consent of each to its
measures, no government can be conceived, in which the sense of the whole
community can be more perfectly taken, and all its interests be more fully
represented and protected - But, with this great advantage, united with the
means of the most just and perfect local administration through the agency of
the States, and combined with the capacity of embracing within its limits
the greatest extent of territory and variety of interests, it is liable to one
almost fatal objection, the tardiness and feebleness of its movements—a de¬
fect difficult to be remedied; and when not. so great, as to render a form of
Government, in other sespeCts so admirable, almost worthless. To overcome
this difficulty was the great desideratum in political science, and the most
difficult problem within its circle. To us'Belongs the glory of its solution, if
indeed our experiment, (for such it must yet be called,; shall prove, that we
have overcome it, as I sincerely believe and hope it will, on account of our
own, as well as the liberty and happiness of our race.
Onr first experiment in Government was on the old form of a simple
confederacy, unmodified, and extending the principle of the cpncurring
majority alike to the Constitution (the articles i f Union) arid to the Gov¬
ernment which it constituted. It failed; and the present structure was
reared in its place, combining for the first time in a confederation, the ab¬
solute with the concurring majority; and thus uniting the justice of the
one, with the energy of the other.
The new Government was reared on the foundation of the old, streng¬
thened but not changed. It stands on the same solid basis of the concur¬
ring majority, perfected by the sanction of the people of the States directly
given, and not indirectly, through the Slate Governments, as their repre¬
sentatives as in the old confederation. With that difference, the authority,
which made the two Constitutions—which granted their powers and or¬
ganized their respective governments to execute them, is the same. But
in passing from the Constitution to the Government, (the law making and
the law-administering powers)fthe difference between the two becomes
radical and essential There, in the present, the concurring majority is
dropped, and the absolute, substituted. In determining, then, what powers
ought to be granted, and how the Government appointed for.their execution
ought to be organized, the separate and concurring voice of the dates was
required; the Union being regarded, for this purpose, in reference to its va¬
rious and distinct interests; but in the execution of these powers (delegat¬
ed only because all the States had a common interest in their exercise) the
Union, is no longer regarded, in reference to its parts, but as forming, to the
extent of its delegated pow ers, one ereat community, to he governed by a
common will, just as the States are in reference to their separate interests
and by a government organized on principles similar to theirs. By this
simple, but fortunate arrangement, we have engrafted the abs lute on the
concurring majority, thereby giving to the administration of the powers of
the government, where they were required, all the energy and promptness
belonging to the former, while we have retained in the power g anting and
organizing authority, (if I raayNso express myself,) theprinciple of the con¬
curring majority, and with it, that justice, moderation, and full and perfect
representation of all the interests of the community, but belongs exclu
siveiy to it.
iducli is the solidity and beauty of our admirable system, without which,
it is perfectly obvious, can only be preserved by maintaining the ascendancy
of the CONSTITUTION-MAKING- AUTHORITY OVER THE RAW-MAKING—THE CON'
23
ctmniNG 6vrer the absolute majority. Nor is it less clear, that this can
Only be effected by the right of a State to annul the unconstitutional acts
of the Government—a right confounded with the idea of a minority gov
erning a majority, but which, so far from being the case, is indispensable to
prevent the more energetic, but imperfect majority, which controls the
movemenls of the Government, from usurping the place of that more per¬
fect and just majority, which formed the Constitution, and ordained Gov¬
ernment to execute its powers.
Nor need we apprehend, that this check, as,powerful as it is, will prove
excessive. The distinction between the Constitution and the law-making
powers, so strongly marked in our institutions, may yet be considered as
a new and untried experiment. It can scarcely be said to have existed, at
all, before our system of Government. We have yet much to (earn, as to
its practical operation, and among other things, if I do not mistake, we are
far from realizing the many and great difficulties of holding the latter sub¬
ordinate to the former, and without which, it is obvious, the entire scheme
of constitutional Government, at least in our sense, must prove, abortive.
Short, as has been our experience, some of these, of a very formidable
character, have begun to disclose themselves; particularly between the
Constitution and the Government of the Union. The two powers, there,
represent very different interests; the one, that of all the States taken
separately; and "the other, that of a majority of the States, as forming a
confederated community Each acting under the impulse of these res¬
pective and very ■ ifferent interests, must necessarily strongly tend to come
into collision; andiiithe conflict, the advantage will be found, almost ex¬
clusively, on the side of the Government, or law-making power. A few
remarks will he sufficient to illustrate these positions.
The Constitution while it grants powers to the Government, at the
same time, imposes restrictions on its action, with the intention of con-
lining it within a limited range of powers, and of the means of executing
th&iri The object of the powers,-is to protect the rights, and promote
the interests of all, and of the restrictions, to prevent the majority, or the
dominant interests of the Government, from perverting powers, intended
for thfe common goyd, into the means of oppressing the minor interests of
the community. TivUs circumstanced, the dominant interest in possession
of the [lowers of the government, and the minor interest, on whom they
are exercised, must regard these restrictions in a very different light- the
latter as a protection ; and the former as a restraint, and of course, accom¬
panied, with all the impatient feeding, with which restrictions on cupidity
and ambition are ever regarded, by those unruly passions. Under their
influence, the Constitution will be viewed by the majority, not as the
source of their authority, as it should be, but as sh ickles on their power.
To tlicm, it will have no value, as the means of protection- As a majority
they require none. Their number and strength, and not the Constitution,
are their protection ; and of course, if I may so speak, their instinct will
be, to weaken and destroy the restrictions, in order to enlarge the powers.
He must have a very imperfect knowledge of the human heart, who does
not see, in this state of things, an incessant conflict between the Govern¬
ment, or the law-making power,, and the Constitution-making power,
Nor is it less certain, that in the contest, the advantage will be exclusively
with the former.
The law-making power is organized, and in constant action, having the
control of the honors and emoluments of the country, and armed with the
power to punisjj and reward ; the other, on the contrary, is unorganized,
lying dormant in the great inert mass of the community, till called into
acti.on, on extraordinary occasions and at distant intervals, and then be-
24
stowing no honors, exercising no patronage, having neither the faculty to
reward, nor to punish, but endowed, simply, with the attribute to grant
powers and ordain the authority to execute them. The result is inevitable.
With so strong an instinct on the part of the Government, to throw olF the
restrictions of the Constitution, and to enlarge its powers ; and with such
powerful facultie to gratify this instinctive impulse, the law-making, must
necessarily, encroach on the Constitution-making power, unless restrained
by the most efficient check ; at least, as strong as that for which we con¬
tend. It is worthy of remark, that all other circumstances being equal, the
more dissimilar the interests represented by the two, the more powerful
will be this tendency to encroach ; and it is from this among other causes,
that it is so much stronger between the Government and the Constitution-
making powers of the Union, where the interest are so very dissimilar,
than between the two in the several States
That the framers of the Constitution were aware of the danger, which I
have described, we have conclusive proof, in the provision to which I
have so frequently alluded. I mean that which provides for amendments
to Ihe Constitution.
I have already remarked on that portion of this provision, which with the
view of strengthening the confederated power, conceded to three fourths of
the States a right to amend, which otherwise could only have,been exercised
by the unanimous consent of all. It is remarkable, that while this prov sion
thus strengthened the amending power, as it regards the States, it imposed
impediments on it, as far as the Government was concerned. The power
of acting as a general rule is invested in the majority of Congress, but
instead of permitting a .majority to propose amendments, the provission
requires, for that purpose, two thirds of both houses, clearly with a view
of interposing a barrier, against the strong instictive appetite of the Govern¬
ment for the acquisition of power. But it would have beep folly, in the ex¬
treme, thus carefully to guard the passage to thedirect acquisition, had the wide
door of construction been left open to its indirect; and, hence, in the same
spirit in which two thirds of both houses were required to propose amendments,
the Convention that framed the Constitution, rejected the many propositions,
which were moved in the body, with the intention of divesting the States of
the right of interposing, and thereby of the only effectual means of preventing
the enlargement of the powers of the Governmeut by construction.
It is thus that the constitution-making power lias fortified itself against the
law-making; and that so effectually, that however strong the disposition and
capacity of the latter to encroach, the means of resistance, ou the part of the
former, is notl-ss powerful. If, indeed, encroachments have been made, the
fault is not in the system, but in the inattention and neglect of those whose in¬
terest and duty it was, to interpose the ample means of protection afforded by
the Constitution.
To 9um up in a few words, in conclusion, what appears to me to be the en¬
tire philosophy of Government, in reference to the subject of this commumca*
tion.
Two powers are necessary to the existence and preservation of free states: a
power on the part of the ruled to prevent rulers from abusing their authority,
by compelling them to be faithful to their constituents, and which is effected
through the right of suffrage; and a power to compel the parts ok society
to be just to one another, by compelling them to consult the interest
of each other, which can only be effected, whatever may be the device for
the purpose, by requiring the concurring assent of all the great and distinct
interests of the community to the measures of the Government. This result,
is the sum total of all the contrivances adopted by free States to preserve their
liberty, by preventing the conflicts between the several classes, or parts of the
25
community. Both powers are indispensable. The one as much so as the other.
The rulers are not more disposed to encroach on the ruled, than the different
interests of the community on one another; nor would they more' certainly
convert their power from the just and legitimate objects for which govern¬
ments are instituted, into an instrument of aggrandizement, at the expense
of the ruled, unless made responsible to their constituents, than would the
stranger interest theirs, at the expense of the weaker, unless compelled to
consult them in the measures of the Government, by taking their separate
and concurring assent. The same cause operates in both cases. The con¬
stitution of our nature, which would impel the rulers to oppress the ruled,
unless prevented, would, in like manner, and with equal force, impel the
stronger to oppress the weaker interest. To vest the right of government in
the absolute majority, would be, in fact, but to embody the will of the
stronger interest in the operations of the government, and not the
will of the whole community, and to leave the others unprotected,
A prey to its ambition and cupidity, just as would be the case, between
rulers and ruled, if the right to govern was vested exclusively in the hands of
the former. They would both be, in reality, absolute and despotic govern¬
ments ; the one as much so as the other.
They would both become mere instruments of cupidity and ambition, in
the hands of those, who wielded them. No one doubts, that such would be
the case, were the government placed under the control of irresponsible
rulers; but, unfortunately for the cause of liberty, it is not seen, with equal
clearness, that it must as necessarily be so, when controlled by an absolute
majority; and yet, the former is not more certain, than the latter. To
this, we may attribute the mistake so often and so fatally repeated, that to
expel a despot is to establish liberty—a mistake to which we may trace
the failure of many noble and generous efforts in favor of liberty. The
error consists, in considering communities, as formed of interests strictly
identical throughout, instead of being composed, as they in reality are, of as
many distinct interests as there are individuals. The interests of no two
persons are the same, regarded in reference to each other; though they
may be, viewed in relation to the rest of the community. It is this di¬
versity, which the several portions of the community bear-to each other, in
reference to the whole, that renders the principle of the concurring majori¬
ty necessary to preserve liberty. Place the power in the hands of the ab¬
solute majority, and the strongest of these would certainly pervert the gov¬
ernment from the object for which it was instituted, the equal protection of
the rights of all, into an instrument of advancing itself, at the expense of the
rest of the community. Against this abuse of power no remedy can be de¬
vised, but that of the concurring majority. Neither the right of suffrage,
nor public opinion can possibly check it They in fact, but tend to ag¬
gravate the disease. It seems really surprising, that truths so obvious
should be so imperfectly understood. There would appear, indeed, a feeble¬
ness in our intellectual powers on political subjects, when directed to large
masses. We readily see, why a single individual, as a ruler, would, if not
prevented, oppress the rest of the community, but are at a loss to under
stand, why seven millions would, if not also prevented, oppress six millions,
as if the relative numbers on either side could, in the least degree, vary the
principle.
In stating what I have, I have but repeated the experience of ages, com¬
prehending all free governments preceding ours, and ours as far as it has pro¬
gressed. The practical operation of ours has been substantially on the prin¬
ciple ofthe absolute majority. We have acted, with some exceptions, its if
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the General Government had the right to interpret its own powers, without
limitation, or-check; and tho'many circumstances, have favoured us, and
greatly impeded the natural progress of events, under such an operation of
the system, yet we already see, in whatever direction we turn our eyes, the
growing symptoms of disorder and decay—the growth of faction,cupidity
and corruption; and the decay of patriotism, integrity and disinterestedness.
In the midst of youth, we see the flushed cheek and the short and feverish
breath, that mark the approach of the fatal hour; and come it will, un¬
less there be a speedy and radical change—a return to the great con¬
servative principle, which brought the Republican party into authority, but
which, with the possession of power and prosperity, it has long since ceased
to remember.
I have now finished the task, which your request imposed. If I have been
so fortunate, as to add to your fund, a single new illustration of this great
conservative principle of our Government, or to furnish an additional argu¬
ment calculated to sustain the State in her noble and patriotic struggle to re¬
vive and maintain it, and, in which you have acted a part long to be remem¬
bered by the friends of freedom, I shall feel amply compensated for the time
occupied, in so long a communication. I believe the cause to be, the cause
of truth and justice, of Union, Liberty, and the Constitution, before which,
the ordinary party struggles of the day", sink into perfect insignificance;
and that it will be so regarded by the most distant posterity, I have not the
slightest doubt.
With great, and sincere regard,
I am yours, &c. &c.
JOHN C. CALHOUN
His Ex. James Hamilton, Jun.
Governor of S. Carolinti.
[Governor Hamilton to Hon. John C. Calhoun.]
Pendleton Tuesday morning Sept 11. 1332.
Mr dear Sir.—On my return from Charleston last evening, I found your
favor of the 28th ult. I embrace the earliest moment of making you my
best acknowledgements for your obliging and most satisfactory compliance
with the request I ventured to make you in my letter of the last month.
I have read your reply with intense interest, and have risen from its peru¬
sal with a vastly augmented confidence in the truth and importance of the
doctrines we believe, and are ready to maintain.
You have added so much fresh and valuable matter, to your previous
argument, that 1 am not so selfish or so little regardful of the obligations I
owe to the great cause in which we are embarked, as to desire to keep your
reply exclusively to myself, more especially at the present crisis, when
the truths you have unfolded are calculated to shed so much light on the
public mind, on a public question of inestimable interest. Permit me then,
on my own responsibility, to make our correspondence public, in such a
mode as I shall deem best.
I remain, my dear sir, with great esteem,
very respectfully and truly yours,
J. HAMILTON, Jun.
Hon. John C. Calhoun, V. p. of the U. S.
27
[Hon. John C. Calhoun to Governor Hamilton.~\
Fort Hill, Tuesday eveing, Mill Sept. 1832.
My dear Sir.—I have received your note of this morning, requesting
permission to publish my answer to your letter of the 31st July.
Taking as, I do, the deepest interest in the subject of the note, to which
my communication is an answer, and solemnly believing, that the success of
our great and novel experiment in Government depends on the success of
the doctrines, for which we contend, I would not feel myself justified in with¬
holding my assent to any measure, which you and our friends may think cal¬
culated to shed additional light on the great principles in controversy; and
as itis your impression that the publication of my answer will have that ef¬
fect, you are at liberty to make what disposition of it you may think proper.
My only fear is that your kind and partial feelings have over estimated the
importance of the views, which I have presented. As to the responsibility,
neccessarily incurred, in giving publicity to doctrines, which a large por¬
tion of the community will probably consider new and dangerous, 1 feel none.
I have too deep a conviction of their truth, and their vital importance
to the Constitution, the Union, and the Liberty of these States, to have the
least uneasiness on that point. He but illy deserves the public confi¬
dence, who would shrink from the avowal of what he believes to be the
truth, in such a case, be the consequence to him, personally, what they may.
With sincere regard and esteem, I am,&c.
JOHN C. CALHOUN.
His Ex. Gov. Hamilton.
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