University of Virginia Library

TO N. P. TRIST.

Other, and some not very candid attempts, are made to
stamp my political career with discrediting inconsistencies.
One of these is a charge that I have on some occasions, represented
the supreme Court of the U. S. as the judge in the
last Resort, on the boundary of jurisdiction between the
several States & the U. S. and on other occasions have assigned
this last resort to the parties to the Constitution. It is the
more extraordinary that such a charge should have been
hazarded; since besides the obvious explanation, that the
last resort means in one case, the last within the purview &
forms of the Constitution; and in the other, the last resort of
all, from the Constitution itself, to the parties who made
it, the distinction is presented & dwelt on both in the report
on the Virga Resolutions and in the letter to Mr. Everett, the
very documents appealed to in proof of the inconsistency.
The distinction between these ultimate resorts is in fact the
same, within the several States. The Judiciary there may in
the course of its functions be the last resort within the provisions
& forms of the Constitution; and the people, the parties
to the Constitution, the last in cases ultra-constitutional, and
therefore requiring their interposition.

It will not escape notice that the Judicial authority of the
U. S. when overruling that of a State, is complained of as
subjecting a Sovereign State, with all its rights & duties, to
the will of a Court composed of not more than seven individuals.
This is far from a true state of the case. The question wd. be
between a single State, and the authority of a tribunal representing
as many States as compose the Union.

Another circumstance to be noted is that the Nullifiers in
stating their doctrine omit the particular form in which it
is to be carried into execution; thereby confounding it with
the extreme cases of oppression which justify a resort to
the original right of resistance, a right belonging to every

community, under every form of Government, consolidated as
well as Federal. To view the doctrine in its true character,
it must be recollected that it asserts, a right in a single State,
to stop the execution of a Federal law, altho' in effect stopping
the law everywhere, until a Convention of the States could be
brought about by a process requiring an uncertain time; and
finally in the Convention when formed a vote of 7 States, if in
favor of the veto, to give it a prevalence over the vast majority
of 17 States. For this preposterous & anarchical pretension
there is not a shadow of countenance in the Constitn.
and well that there is not; for it is certain that with such
a deadly poison in it, no Constn. could be sure of lasting a
year; there having scarcely been a year, since ours was formed,
without a discontent in some one or other of the States which
might have availed itself of the nullifying prerogative. Yet
this has boldly sought a sanction under the name of Mr.
Jefferson, because, in his letter to Majr. Cartwright, he held out
a Convention of the States, as, with us, a peaceable remedy in
cases to be decided in Europe by intestine wars. Who can
believe that Mr. J. referred to a Convention summoned at
the pleasure of a single State, with an interregnum during its
deliberations; and, above all with a rule of decision subjecting
nearly ¾ to ¼. No man's creed was more opposed to such an
inversion of the Repubn. order of things.

There can be no objection to the reference made to the
weakening effect of age on the judgment, in accounting for
changes of opinion. But inconsistency at least may be
charged on those who lay such stress on the effect of age in one
case, and place such peculiar confidence, where that ground
of distrust would be so much stronger. What was the comparative
age of Mr. Jefferson, when he wrote the letter to Mr.
Giles, a few months before his death; in which his language,
tho' admitting a construction not irreconcilable with his former
opinions is held, in its assumed meaning, to outweigh on the
tariff question, opinions deliberately formed in the vigour of
life, reiterated in official reasonings & reports; and deriving

the most cogent sanction from his Presidential Messages, and
private correspondences. What again the age of Genl. Sumter,
at which the concurrence of his opinion is so triumphantly
hailed? That his judgment may be as sound as his
services have been splendid, may be admitted; but had his
opinion been the reverse of what it proved to be, the question
is justified by the distrust of opinions, at an age very far short
of his, whether his venerable years would have escaped a
different use of them.

But I find that by a sweeping charge, my inconsistency is
extended "to my opinions on almost every important question
which has divided the public into parties." In supporting
this charge, an appeal is made to "Yates's Secret Debates in
the Federal Convention of 1787," as proving that I originally
entertained opinions adverse to the rights of the States; and to
the writings of Col. Taylor, of Caroline; as proving that I
was in that Convention "an advocate for a Consolidated
national Government."

Of the Debates, it is certain that they abound in errors,
some of them very material in relation to myself. Of the
passages quoted, it may be remarked that they do not warrant
the inference drawn from them. They import "that I was
disposed to give Congress a power to repeal State laws," and
"that the States ought to be placed under the controul of the
Genl Gt at least as much as they were formerly when under
the British King & Parliament."

The obvious necessity of a controul on the laws of the
States, so far as they might violate the Constn & laws of the
U. S. left no option but as to the mode. The modes presenting
themselves were 1. A Veto on the passage of the State Laws.
2. A Congressional repeal of them. 3. A Judicial annulment
of them. The first tho' extensively favored at the outset,
was found on discussion, liable to insuperable objections
arising from the extent of Country and the multiplicity of
State laws. The second was not free from such as gave a preference
to the third as now provided by the Constitution. The

opinion that the States ought to be placed not less under
the Govt. of the U. S. than they were under that of G. B.,
can provoke no censure from those who approve the Constitution
as it stands with powers exceeding those ever allowed
by the colonies to G. B. particularly the vital power of taxation,
which is so indefinitely vested in Congs. and to the
claim of which by G. B. a bloody war, and final separation
was preferred.

The author of the "Secret Debates," tho' highly respectable
in his general character, was the representative of the portion
of the State of New York, which was strenuously opposed
to the object of the Convention, and was himself a zealous
partisan. His notes carry on their face proofs that they were
taken in a very desultory manner, by which parts of sentences
explaining or qualifying other parts, might often escape the
ear. He left the Convention also on the 5th of July before
it had reached the midway of its Session, and before the
opinions of the members were fully developed into their
matured & practical shapes. Nor did he conceal the feelings
of discontent & disgust which he carried away with him.
These considerations may account for errors; some of which
are self-condemned. Who can believe that so crude and
untenable a statement could have been intentionally made
on the floor of the Convention, as "that the several States were political Societies, varying from the lowest corporations, to the highest sovereigns," or "that the States had vested all the essential rights of Government in the old Congress."

On recurring to the writings of Col. Taylor[144] it will be seen
that he founds his imputation agst myself and Govr. Randolph,
of favoring a Consolidated National Governmt. on the
Resolutions introduced into the Convention by the latter
in behalf of the Virga. Delegates, from a consultation among
whom they were the result. The Resolutions imported that a
Govt., consisting of a National Legislr e., Executive & Judiciary,

ought to be substituted for the existing Congs. Assuming for
the term national a meaning co-extensive with a single Consolidated
Govt. he filled a number of pages, in deriving from
that source a support of his imputation. The whole course
of proceedings on those Resolutions ought to have satisfied
him that the term National as contradistinguished from Federal,
was not meant to express more than that the powers to
be vested in the new Govt were to operate as in a Natl. Govt.
directly on the people, and not as in the old Confedcy. on the
States only. The extent of the powers to be vested, also
tho' expressed in loose terms, evidently had reference to
limitations & definitions to be made in the progress of the
work, distinguishing it from a plenary & Consolidated Govt.

It ought to have occurred that the Govt. of the U. S. being
a novelty & a compound, had no technical terms or phrases
appropriate to it, and that old terms were to be used in new
senses, explained by the context or by the facts of the case.

Some exulting inferences have been drawn from the change
noted in the Journal of the Convention of the word national
into "United States." The change may be accounted for by
a desire to avoid a misconception of the former, the latter
being preferred as a familiar caption. That the change could
have no effect on the real character of the Govt was & is
obvious; this being necessarily deduced from the actual
structure of the Gov. and the quantum of its powers.

The general charge which the zeal of party has brought agst.
me, "of a change of opinion in almost every important question
which has divided parties in this Country," has not a little
surprized me. For, altho' far from regarding a change of
opinion under the lights of experience and the results of improved
reflection as exposed to censure, and still farther from
the vanity of supposing myself less in need than others, of that
privilege, I had indulged the belief that there were few, if any
of my contemporaries thro' the long period & varied services, of
my political life, to whom a mutability of opinion on great Constitutional
questions was less applicable.

Beginning with the great question growing out of the terms
"Common Defence & General Welfare," my early opinion expressed
in the Federalist, limiting the Phrase to the specified
powers, has been adhered to on every occasion wch. has called
for a test of it.

As to the power in relation to roads & canals, my opinion,
without any previous variance from it, was formally announced
in the veto on the bonus bill in 1817, and no proof of a subsequent
change has been given.

On the subject of the Tariff for the encouragemt. of manufactures,
my opinion in favor of its constitutionality has been
invariable from the first session of Congs. under the new
Constn. of the U. S. to the explicit & public maintenance of it
in my letters to Mr. Cabell in 1828.

It will not be contended that any change has been manifested
in my opinion of the unconstitutionality of the alien &
Sedition laws.

With respect to the supremacy of the Judicial power on
questions occurring in the course of its functions, concerning
the boundary of Jurisdiction between the U. S. & individual
States, my opinion in favor of it was as the 41 No. of the
Federalist shews, of the earliest date; and I have never
ceased to think that this supremacy was a vital principle of
the Constitution as it is a prominent feature in its text. A
supremacy of the Constitution & laws of the Union, without
a supremacy in the exposition & execution of them, would be
as much a mockery as a scabbard put into the hand of a
Soldier without a sword in it. I have never been able to see,
that without such a view of the subject the Constitution
itself could be the supreme law of the land; or that the uniformity
of the Federal Authority throughout the parties to
it could be preserved; or that without this uniformity, anarchy
& disunion could be prevented.

On the subject of the Bank alone is there a color for the
charge of mutability on a Constitutional question. But here
the inconsistency is apparent, not real, since the change, was

in conformity to an early & unchanged opinion, that in the
case of a Constitution as of a law, a course of authoritative,
deliberate, and continued decisions, such as the Bank could
plead was an evidence of the Public Judgment, necessarily
superseding individual opinions. There has been a fallacy
in this case as indeed in others in confounding a question
whether precedents could expound a Constitution, with a
question whether they could alter a Const. This distinction
is too obvious to need elucidation. None will deny that precedents
of a certain description fix the interpretation of a law.
Yet who will pretend that they can repeal or alter a law?

Another error has been in ascribing to the intention of the
Convention which formed the Constitution, an undue ascendency
in expounding it. Apart from the difficulty of verifying
that intention it is clear, that if the meaning of the Constitution
is to be sought out of itself, it is not in the proceedings
of the Body that proposed it, but in those of the State Conventions
which gave it all the validity & authority it possesses.