University of Virginia Library

TO JOSEPH C. CABELL.

Dear Sir,—I recd. on the evening of Friday your
two letters of Augt 30 & Sepr 1, with the copy of the
Virga. proceedings in 98–99, and the letters of
"Hampden."

When I looked over your manuscript pamphlet,
lately returned to you, my mind did not advert to a
discrepancy in your recorded opinions, nor to the
popularity of the rival jurisdiction claimed by the

Court of Appeals. Your exchange of a hasty opinion
for one resulting from fuller information & matured
reflection, might safely defy animadversion. But it
is a more serious question how far the advice of the
two friends you have consulted, founded on the
unanimous claim of the Court having Judge Roane
at its head, ought to be disregarded; or how far it
might be expedient in the present temper of the
Country, to mingle that popular claim wth. the Tariff
heresy, which is understood to be tottering in the
public opinion, & to which your observations &
references are calculated to give a very heavy blow.
It were to be wished that the two Judges [Cabell &
Coalter] cou'd read your manuscript, and then decide
on its aptitude for public use. Would it be impossible
so to remould the Essay as to drop what might
be offensive to the opponents of the necessary power
of the Supreme Court of the U. States, but who are
sound as to the Tariff power; retaining only what
relates to the Tariff; or, at most, to the disorganizing
doctrine which asserts a right in every State to
withdraw itself from the Union. Were this a mere
league, each of the parties would have an equal right
to expound it; and of course, there would be as much
right in one to insist on the bargain, as in another to
renounce it. But the Union of the States is, according
to the Virga. doctrine in 98–99, a Constitutional
Union; and the right to judge in the last resort,
concerning usurpations of power, affecting the
validity of the Union, referred by that doctrine to
the parties to the compact. On recurring to original
principles, and to extreme cases, a single State might
indeed be so oppressed as to be justified in shaking
off the yoke; so might a single county of a State be,
under an extremity of oppression. But until such
justifications can be pleaded, the compact is obligatory
in both cases. It may be difficult to do full justice
to this branch of the subject, without involving
the question between the State and Federal Judiciaries:
But I am not sure that the plan of your
pamphlet will not admit a separation. On this
supposition, it might be well, as soon as the Tariff
fever shall have spent itself, to take up both the
Judicial & the anti-union heresies; on each of which
you will have a field for instructive investigation,
with the advantage of properly connecting them in
their bearings. ☞ A political system that does
not provide for a peaceable and effectual decision of
all controversies arising among the parties is not a
Government, but a mere Treaty between independent
nations, without any resort, for terminating disputes
but negotiation, and that failing, the sword. That
the system of the U. States, is what it professes to be,
a real Governt. and not a nominal one only, is proved
by the fact that it has all the practical attributes
& organs of a real tho' limited Govt.; a Legislative,
Executive, & Judicial Department, with the physical
means of executing the particular authorities assigned
to it, on the individual citizens, in like manner
as is done by other Governts. Those who would
substitute negociation for Governmental authority,
and rely on the former as an adequate resource,
forget the essential difference between disputes to be
settled by two Branches of the same Govt. as between
the House of Lords & Commons in England,
or the Senate & H. of Representatives here; and
disputes between different Govts. In the former case,
as neither party can act without the other, necessity
produces an adjustment. In the other case, each
party having in a Legislative, Executive, & Judicial
Department of its own, the compleat means of giving
an independent effect to its will, no such necessity
exists; and physical collisions are the natural result
of conflicting pretensions.

In the years 1819 & 1821, I had a very cordial
correspondence with the author of "Hampden" &
"Algernon Sydney," [Judge Roane.][107] Although we
agreed generally in our views of certain doctrines
of the Supreme Court of the U. S. I was induced in
my last letter to touch on the necessity of a definitive
power on questions between the U. S. and
the individual States, and the necessity of its being
lodged in the former, where alone it could preserve
the essential uniformity. I received no answer,
which, indeed, was not required, my letter being an
answer.

I shall return the printed pamphlet as soon as I
have read the letters of "Hampden" making a part
of it.

I have not the acts of the Sessions in question; &
will thank you, when you have the opportunity to
examine the Preambles to the polemic Resolutions

of the Assembly, & let me know whether or not they
present an Inconsistency. If I mistake not, Governor
Tylers message emphatically denounced all
imposts on commerce not exclusively levied for the
purposes of revenue.

I return the letter of Mr. "Morris, inclosed in yours
recd. some time ago. Mr. Pollard ought to have been
at no loss for my wish to ascertain the authorship of
"The danger not over," the tendency, if not the
object of the republication, with the suggestion that I
had a hand in the paper, being to shew an inconsistency
between my opinion then & now on the subject
of the Tariff power. It may not be amiss to receive
the further explanations of Mr. Pollard. But I
learn from Mr. Robert Taylor, who was a student of
law at the time with Mr. Pendleton, that he saw a
letter to him from Mr. Jefferson expressing a desire
that he would take up his pen at the crisis; but without,
as Mr. Taylor recollects, furnishing any particular
ideas for it, or naming me on the occasion. I
believe a copy of the letter is among Mr. Jefferson's
papers, and that it corresponds with Mr. T's account
of it.

I comply with your request to destroy your two
letters; and, as this has been written in haste and
with interruptions of company, it will be best disposed
of in the same way. Some of the passages in
it called for more consideration & precision than I
could bestow on them.

P. S. Since the above was written, I have recd.

yours of the 3d. inst. There could not be a stronger
proof of the obscurity of the passage it refers to
than its not being intelligible to you. Its meaning is
expressed in the slip of paper inclosed. The passage
may be well eno' dispensed with, as being developed
in that marked above by.☞

Copy of the slip: Note that there can of course
be no regular Arbiter or Umpire, under any Governmental
system, applicable to those extreme cases,
or questions of passive obedience & non-resistence,
which justify & require a resort to the original rights
of the parties to the system or compact; but that in
all cases not of that extreme character, there is &
must be an Arbiter or Umpire in the constitutional
authority provided for deciding questions concerning
the boundaries of right & power. The particular
provision, in the Constitution of the U. S. is in the
authority of the Supreme Court, as stated in the
"Federalist, "No. 39.