University of Virginia Library

TO ALEXANDER RIVES.[148]

(Confidential.)

I have received the letter signed "A Friend of Union and
State Rights," enclosing two Essays under the same signature.

It is not usual to answer communications without the proper
names to them. But the ability and the motives disclosed
in the essay induce me to say, in compliance with the wish
expressed, that I do not consider the proceedings of Virginia
in '98–99 as countenancing the doctrine that a State may
at will secede from its constitutional compact with the other
states. A rightful secession requires the consent of the
others, or an abuse of the compact absolving the seceding
party from the obligation imposed by it.

In order to understand the reasoning on one side of the
question, it is necessary to keep in view the precise state of the
question and the positions and arguments on the other side.
This is particularly necessary in questions arising under our
novel and compound system of government. Much error and
confusion have grown out of a neglect of this precaution.

The case of the alien and sedition acts was a question between
the Government and the constituent body, Virginia
making an appeal to the latter against the assumption of
power by the former.

The case of a claim in a State to secede from its union with
the others is a question among the states themselves as parties
to a compact.

In the former case it was asserted against Virginia, that the
states had no right, to interpose legislative declarations of
opinion on a constitutional point; nor a right to interpose at
all against a decision of the Supreme Court of the United
States, which was to be regarded as a tribunal from which
there could be no appeal.

The object of Virginia was to vindicate legislative declarations
of opinion; to designate the several constitutional modes
of interposition by the states against abuses of power, and to
establish the ultimate authority of the states as parties to and
creatures of the Constitution to interpose against the decisions
of the judicial as well as the other branches of the Government
—the authority of the judicial being in no sense ultimate,
out of the purview and form of the Constitution.

Much use has been made of the term "respective" in the
third resolution of Virginia, which asserts the right of the
States, in cases of sufficient magnitude to interpose "for
maintaining within their respective limits the authorities,
and so forth, appertaining to them;" the term "respective"
being construed to mean a constitutional right in each State,
separately, to decide on and resist by force encroachments
within its limits. A foresight or apprehension of the misconstruction
might easily have guarded against it. But, to say
nothing of the distinction between ordinary and extreme
cases, it is observable that in this, as in other instances
throughout the resolution, the plural number (States) is used
in referring to them that a concurrence and co-operation of
all might well be contemplated in interpositions for effecting
the objects within reach; and that the language of the closing
resolution corresponds with this view of the third. The
course of reasoning in the report on the resolutions requires the
distinction between a State and the States.

It surely does not follow from the fact of the states, or

rather the people embodied in them, having, as parties to the
constitutional compact, no tribunal above them, that, in
controverted meanings of the compact, a minority of the
parties can rightfully decide against the majority, still less
that a single party can decide against the rest, and as little
that it can at will withdraw itself altogether from its compact
with the rest.

The characteristic distinction between free Governments,
and Governments not free is that the former are founded on
compact, not between the Government and those for whom
it acts, but among the parties creating the Government.
Each of these being equal, neither can have more right to say
that the compact has been violated and dissolved than every
other has to deny the fact and to insist on the execution of the
bargain. An inference from the doctrine that a single state
has a right to secede at will from the rest is that the rest
would have an equal right to secede from it; in other words,
to turn it, against its will, out of its union with them. Such a
doctrine would not, till of late, have been palatable anywhere,
and nowhere less so than where it is now most contended for.

A careless view of the subject might find an analogy
between state secession and individual expatriation. But the
distinction is obvious and essential, even in the latter case,
whether regarded as a right impliedly reserved in the original
social compact, or as a reasonable indulgence, it is not exempt
from certain conditions. It must be used without injustice
or injury to the community from which the expatriating
party separates himself. Assuredly he could not withdraw
his portion of territory from the common domain. In the
case of a State seceding from the union, its domain would be
dismembered, and other consequences brought on not less
obvious than pernicious.

I ought not to omit my regret that in the remarks on Mr.
Jefferson and myself the names had not been transposed.

Having many reasons for marking this letter confidential,
I must request that its publicity may not be permitted in any

mode or through any channel. Among the reasons is the risk
of misapprehensions or misconstructions, so common, without
more attention and development that I could conveniently
bestow on what is said.