University of Virginia Library

NOTES ON NULLIFICATION.[166]

Altho' the Legislature of Virginia declared at a late session
almost unanimously, that S. Carolina was not supported
in her doctrine of nullification by the Resolutions of 1798,
it appears that those resolutions are still appealed to as
expressly or constructively favoring the doctrine.

That the doctrine of nullification may be clearly understood
it must be taken as laid down in the Report of a special committee
of the House of Representatives of S. C. in 1828. In
that document it is asserted, that a single State has a constitutional
right to arrest the execution of a law of the U. S.
within its limits; that the arrest is to be presumed right and
valid, and is to remain in force unless ¾ of the States, in a
Convention, shall otherwise decide.

The forbidding aspect of a naked creed, according to which
a process instituted by a single State is to terminate in the
ascendancy of a minority of 7, over a majority of 17, has led

its partizans to disguise its deformity under the position that
a single State may rightfully resist an unconstitutional and
tyrannical law of the U. S., keeping out of view the essential
distinction between a constitutional right and the natural
and universal right of resisting intolerable oppression. But the
true question is whether a single state has a constitutional
right to annul or suspend the operation of a law of the U. S.
within its limits, the State remaining a member of the Union,
and admitting the Constitution to be in force.

With a like policy, the nullifiers pass over the state of things
at the date of the proceedings of Vira. and the particular
doctrines and arguments to which they were opposed; without
an attention to which the proceedings in this as in other cases
may be insecure agst. a perverted construction.

It must be remarked also that the champions of nullification,
attach themselves exclusively to the 3. Resolution, averting
their attention from the 7 Resolution which ought to be
coupled with it, and from the Report also, which comments
on both, & gives a full view of the object of the Legislature
on the occasion.

Recurring to the epoch of the proceedings, the facts of the
case are that Congs. had passed certain acts, bearing the name
of the alien and sedition laws, which Virg & some of the other
States, regarded as not only dangerous in their tendency, but
unconstitutional in their text; and as calling for a remedial
interposition of the States. It was found also that not only
was the constitutionality of the acts vindicated by a predominant
party, but that the principle was asserted at the same
time, that a sanction to the acts given by the supreme Judicial
authority of the U. S. was a bar to any interposition whatever
on the part of the States, even in the form of a legislative
declaration that the acts in question were unconstitutional.

Under these circumstances, the subject was taken up by
Virga. in her resolutions, and pursued at the ensuing session
of the Legislature in a comment explaining and justifying them;
her main and immediate object, evidently being, to produce

a conviction everywhere, that the Constitution had been
violated by the obnoxious acts and to procure a concurrence
and co-operation of the other States in effectuating a repeal of
the acts. She accordingly asserted and offered her proofs
at great length, that the acts were unconstitutional. She
asserted moreover & offered her proofs that the States had
a right in such cases, to interpose, first in their constituent
character to which the govt. of the U. S. was responsible,
and otherwise as specially provided by the Constitution; and
further, that the States, in their capacity of parties to and
creators of the Constitution, had an ulterior right to interpose,
notwithstanding any decision of a constituted authority;
which, however it might be the last resort under the forms of
the Constitution in cases falling within the scope of its functions,
could not preclude an interposition of the States as the
parties which made the Constitution and, as such, possessed
an authority paramount to it.

In this view of the subject there is nothing which excludes
a natural right in the States individually, more than in any
portion of an individual State, suffering under palpable and
insupportable wrongs, from seeking relief by resistance and
revolution.

But it follows, from no view of the subject, that a nullification
of a law of the U.S. can as is now contended, belong rightfully
to a single State, as one of the parties to the Constitution; the
State not ceasing to avow its adherence to the Constitution. A
plainer contradiction in terms, or a more fatal inlet to anarchy,
cannot be imagined

And what is the text in the proceedings of Virginia which
this spurious doctrine of nullification claims for its parentage?
It is found in the 3d. of the Resolutions of–98, which is in the
following words.

"That in case of a deliberate, a palpable & dangerous
exercise of powers not granted by the [constitutional] compact,
the States who are parties thereto have a right and are in duty
bound to interpose for arresting the progress of the evil, &

for maintaining within their respective limits, the authorities
rights & liberties appertaining to them."

Now is there anything here from which a single State can
infer a right to arrest or annul an act of the General Govt.
which it may deem unconstitutional? So far from it, that the
obvious & proper inference precludes such a right on the part
of a single State; plural number being used in every application
of the term.

In the next place, the course & scope of the reasoning requires
that by the rightful authority to interpose in the cases
& for the purposes referred to, was meant, not the authority
of the States singly & separately, but their authority as the
parties to the Constn., the authority which, in fact, made
the Constitution; the authority which being paramount to the
Constitution was paramount to the authorities constituted by
it, to the Judiciary as well as the other authorities. The
resolution derives the asserted right of interposition for
arresting the progress of usurpations by the Federal Govt.
from the fact, that its powers were limited to the grant
made by the States; a grant certainly not made by a single
party to the grant, but by the parties to the compact containing
the grant. The mode of their interposition, in
extraordinary cases, is left by the Resolution to the parties
themselves; as the mode of interposition lies with the parties to
other Constitutions, in the event of usurpations of power not
remediable, under the forms and by the means provided by
the Constitution. If it be asked why a claim by a single
party to the constitutional compact, to arrest a law, deemed
by it a breach of the compact, was not expressly guarded agst.
the simple answer is sufficient that a pretension so novel, so
anomalous & so anarchical, was not & could not be anticipated.

In the third place, the nullifying claim for a single State
is probably irreconcilable with the effect contemplated by the
interposition claimed by the Resolution for the parties to the
Constitution namely that of "maintaining within the respective
limits of the States the authorities rights & liberties

appertaining to them." Nothing can be more clear than that
these auths. &c., &c., of the States, in other words, the
authority & laws of the U. S. must be the same in all; or that
this cannot continue to be the case, if there be a right in each
to annul or suspend within itself the operation of the laws
& authority of the whole. There cannot be different laws
in different states on subjects within the compact without
subverting its fundamental principles, and rendering it as
abortive in practice as it would be incongruous in theory.
A concurrence & co-operation of the States in favor of each,
would have the effect of preserving the necessary uniformity
in all, which the Constitution so carefully & so specifically
provided for in cases where the rule might be in most danger
of being violated. Thus the citizens of every State are to
enjoy reciprocally the privileges of citizens in every other
State. Direct taxes are to be apportioned on all, according to
a fixed rule. Indirect taxes are to be the same in all the
States. The duties on imports are to be uniform: No
preference is to be given to the ports of one State over those
of another. Can it be believed, that with these provisions
of the Constn. illustrating its vital principles fully in view of
the Legislature of Virginia, that its members could in the
Resolution quoted, intend to countenance a right in a single
State to distinguish itself from its co-States, by avoiding the
burdens, or restrictions borne by them; or indirectly giving
the law to them.

These startling consequences from the nullifying doctrine
have driven its partizans to the extravagant presumption
that no State would ever be so unreasonable, unjust & impolitic
as to avail itself of its right in any case not so palpably
just and fair as to ensure a concurrence of the others, or at
least the requisite proportion of them.

Omitting the obvious remark that in such a case the law
would never have been passed or immediately repealed;
and the surprize that such a defence of the nullifying right
should come from S. C. in the teeth & at the time of her own

example, the presumption of such a forbearance in each
of the States, or such a pliability in all, among 20 or 30 independent
sovereignties, must be regarded as a mockery by
those who reflect for a moment on the human character,
or consult the lessons of experience, not the experience of
other countries & times, but that among ourselves; and not
only under the former defective Confederation, but since the
improved system took place of it. Examples of differences,
persevering differences among the States on the constitutionality
of Federal acts, will readily occur to every one; and
which would, e'er this, have defaced and demolished the
Union, had the nullifying claim of S. Carolina been indiscriminately
exercisable. In some of the States, the carriage-tax
would have been collected, in others unpaid. In some,
the tariff on imports would be collected; in others, openly
resisted. In some, lighthouses wd. be established; in others
denounced. In some States there might be war with a foreign
power; in others, peace and commerce. Finally, the appellate
authority of the Supreme Court of the U. S. would
give effect to the Federal laws in some States, whilst in others
they would be rendered nullities by the State Judiciaries. In
a word, the nullifying claims if reduced to practice, instead of
being the conservative principle of the Constitution, would
necessarily, and it may be said obviously, be a deadly poison.

Thus, from the 3d. resoln. itself, whether regard be had to the
employment of the term States in the plural number, the argumentative
use of it, or to the object namely the "maintaining
the authority & rights of each, which must be the same in
all as in each, it is manifest that the adequate interposition
to which it relates, must be not a single, but a concurrent
interposition.

If we pass from the 3d. to the 7th. Resolution, which,
tho' it repeats and re-enforces the 3d. and which is always
skipped over by the nullifying commentators, the fallacy of
their claim will at once be seen. The resolution is in the
following words. ["That the good people of the commonwealth

having ever felt and continuing to feel the most sincere
affection to their brethren of the other states, the truest
anxiety for establishing and perpetuating the union of all,
and the most scrupulous fidelity to that Constitution which
is the pledge of mutual friendship and the instrument of
mutual happiness, the General Assembly doth solemnly appeal
to the like dispositions in the other states, in confidence that
they will concur with this commonwealth in declaring, as it
does hereby declare, that the acts aforesaid are unconstitutional,
and that the necessary and proper measures will be
taken by each for co-operating with this state in maintaining
unimpaired the authorities, rights, and liberties reserved
in the states respectively or to the people."[167] ] Here it distinctly
appears, as in the 3d. reoln. that the course contemplated
by the Legislature, "for maintaining the authorities,
rights, & liberties reserved to the States respectively," was
not a solitary or separate interposition, but a co-operation in
the means necessary & proper for the purpose.

If a further elucidation of the view of the Legislature could
be needed, it happens to be found in its recorded proceedings.
In the 7th. Resolution as originally proposed, the term
"unconstitutional," was followed by null void, &c. These
added words being considered by some as giving pretext
for some disorganizing misconstruction, were unanimously
stricken out, or rather withdrawn by the mover of the
Resolutions.

An attempt has been made, by ascribing to the words
stricken out, a nullifying signification, to fix on the reputed
draftsman of the Resolution the character of a nullifier.
Could this have been effected, it would only have vindicated
the Legislature the more effectually from the imputation of
favoring the doctrine of S. Carolina. The unanimous erasure
of nullifying expressions was a protest by the H. of Delegates,
in the most emphatic form against it.

But let us turn to the "Report," which explained and

vindicated the Resolutions; and observe the light in which
it placed first the third and then the 7th.[168]

It must be recollected that this Document proceeded from
Representatives chosen by the people some months after the
Resolutions had been before them, with a longer period for
manifesting their sentiments before the Report was adopted;
and without any evidence of disapprobation in the Constituent
Body. On the contrary, it is known to have been recd. by
the Republican party, a decided majority of the people, with
the most entire approbation. The Report therefore must
be regarded as the most authoritative evidence of the meaning
attached by the State to the Resolutions. This consideration
makes it the more extraordinary, and let it be added the
more inexcusable, in those, who in their zeal to extract a particular
meaning from a particular resolution, not only shut
their eyes to another Resolution, but to an authentic exposition
of both.

And what is the comment of the Report on that particular
resolution?, namely, the 3d.

In the first place, it conforms to the resolution in using the
term which expresses the interposing authy. of the States, in
the plural number States, not in the singular number State.
It is indeed impossible not to perceive that the entire current
& complexion of the observations explaining & vindicating the
resolns. imply necessarily, that by the interposition of the
States for arresting the evil of usurpation, was meant a concurring
authy. not that of a single state; whilst the collective
meaning of the term, gives consistency & effect to the reasoning
& the object.

But besides this general evidence that the Report in the
invariable use of the plural term States, withheld from a single
State the right expressed in the Resoln. a still more precise
and decisive inference, to the same effect, is afforded by several
passages in the document.

Thus the report observes "The States then being the

parties to the constl. compact, and in their highest sovereign
capacity, it follows of necessity, that there can be no tribunal
above their authy. to decide in the last resort, whether the compact
made by them be violated; and, consequently that as
the parties to it, they must themselves decide in the last resort
such questions as may be of sufficient magnitude to require
their interposition."

Now apart from the palpable insufficiency of an interposition
by a single State to effect the declared object of the interposition
namely, to maintain authorities & rights which must
be the same in all the States, it is not true that there would
be no tribunal above the authority of a state as a single
party; the aggregate authority of the parties being a tribunal
above it to decide in the last resort.

Again the language of the Report is, "If the deliberate
exercise of dangerous powers palpably withheld by the Constitution
could not justify the parties to it in interposing
even so far as to arrest the progress of the evil, & thereby
preserve the Constitun. itself, as well as to provide for the safety
of the parties to it, there wd. be an end to all relief from
usurped power"—Apply here the interposing power of a
single State, and it would not be true that there wd. be no
relief from usurped power. A sure & adequate relief would
exist in the interposition of the States, as the co-parties to
the Constitution, with a power paramount to the Constn. itself.

It has been said that the right of interposition asserted for
the states by the proceedings of Virginia could not be meant
a right for them in their collective character of parties to and
creators of the Constitution, because that was a right by none
denied. But as a simple truth or truism, its assertion might
not be out of place when applied as in the resolution, especially
in an avowed recurrence to fundamental principles, as in duty
called for by the occasion. What is a portion of the Declaration
of Independence but a series of simple and undeniable
truths or truisms? what but the same composed a great
part of the Declarations of Rights prefixed to the state constitutions?

It appears, however, from the report itself,
which explains the resolutions, that the last resort claimed
for the Supreme Court of the United States, in the case of the
alien and sedition laws, was understood to require a recurrence
to the ulterior resort in the authority from which that
of the court was derived. "But, (continues the Report) it is
objected[169] that the judicial authority is to be regarded as the
sole expositor of the Constn. in the last resort."

In answering this objection the Report observes, "that
however true it may be that the judicial Dept., in all questions
submitted to it by the forms of the Constn. to decide in the
last resort, this resort must necessarily not be the last—in
relation to the rights of the parties to the constl. compact
from which the Judicial as well as the other Departments
hold their delegated trusts. On any other hypothesis, the
Delegation of judicial power wd. annul the authy. delegating
it, and the concurrence of this Dept. with the others in
usurped power, might subvert for ever, and beyond the possible
reach of any rightful remedy, the very Constitn. which all
were instituted to preserve." Again observes the report,
"The truth declared in the resolution being established, the
expediency of making the declaration at the present day
may safely be left to the temperate consideration and candid
judgment of the American public. It will be remembered
that a frequent recurrence to fundamental principles is
solemnly enjoined by most of the State constitutions, and
particularly by our own, as a necessary safeguard against the
danger of degeneracy, to which republics are liable as well
as other governments, though in a less degree than others.
And a fair comparison of the political doctrines, not unfrequent
at the present day, with those which characterized the
epoch of our revolution, and which form the basis of our

republican constitutions, will best determine whether the
declaratory recurrence here made to those principles ought
to be viewed as unreasonable and improper, or as a vigilant
discharge of an important duty. The authority of constitutions
over governments, and of the sovereignty of the
people over constitutions, are truths which are at all times
necessary to be kept in mind; and at no time, perhaps, more
necessary than at present."

Who can avoid seeing the necessity of understanding
by the "parties" to the constl. compact, the authority, which
made the compact and from which all the Depts. held their
delegated trusts. These trusts were certainly not delegated
by a single party. By regarding the term parties in its plural,
not individual meaning, the answer to the objection is clear
and satisfactory. Take the term as meaning a party, and
not the parties, and there is neither truth nor argument in the
answer. But further, on the hypothesis, that the rights of the
parties meant the rights of a party, it wd. not be true as
affirmed by the Report, that "the Delegation of Judl.
power wd. annul the authy. delegating it, and that the
concurrence of this Dept. with others in usurped power might
subvert for ever, & beyond the reach of any rightful remedy,
the very Constitution wch. all were instituted to preserve."
However deficient a remedial right in a single State might be
to preserve the Constn. against usurped power an ultimate and
adequate remedy wd. always exist in the rights of the parties
to the Constn. in whose hands the Constn. is at all times but
clay in the hands of the potter, and who could apply a remedy
by explaing. amendg., or remakg. it, as the one or the other
mode might be the most proper remedy.

Such being the comment of the Report on the 3d. Resolution,
it fully demonstrates the meaning attached to it by Virginia
when passing it, and rescues it from the nullifying misconstruction
into which the Resolution has been distorted.

Let it next be seen, how far the comment of the Rept. on
the 7th Resoln. above inserted accords with that on the 3d.;

and that this may the more conveniently be scanned by every
eye, the comment is subjoined at full length.

["The fairness and regularity of the course of proceedings
here pursued have not protected it against objections even
from sources too respectable to be disregarded.

"It has been said that it belongs to the judiciary of the
United States, and not to the state legislatures, to declare
the meaning of the federal Constitution.

" But a declaration that proceedings of the federal government
are not warranted by the Constitution, is a novelty
neither among the citizens nor among the legislatures of the
states; are not the citizens or the Legislature of Virginia
singular in the example of it.

"Nor can the declarations of either, whether affirming or
denying the constitutionality of measures of the federal
government, or whether made before or after judicial decisions
thereon, be deemed, in any point of view, an assumption of the
office of the judge. The declarations in such cases are expressions
of opinions, unaccompanied with any other effect
than what they may produce on opinion by exciting reflection.
The expositions of the judiciary, on the other hand, are carried
into immediate effect by force. The former may lead to a
change in the legislative expressions of the general will;
possibly to a change in the opinion of the judiciary; the latter
enforces the general will, while that will and that opinion
continue unchanged.

"And if there be no impropriety in declaring the unconstitutionality
of proceedings in the federal government,
where can be the impropriety of communicating the declaration
to other states, and inviting their concurrence in a like
declaration? What is allowable for one must be allowable
for all; and a free communication among the states, where the
Constitution imposes no restraint, is as allowable among the
state governments as among other public bodies or private
citizens. This consideration derives a weight that cannot
be denied to it, from the relation of the state legislatures to the

federal Legislature, as the immediate constituents of one of
its branches.

"The legislatures of the states have a right also to originate
amendments to the Constitution, by a concurrence of two
thirds of the whole number, in applications to Congress for the
purpose. When new states are to be formed by a junction
of two or more states or parts of states, the legislatures of the
states concerned are, as well as Congress, to concur in the
measure. The states have a right also to enter into agreements
or compacts, with the consent of Congress. In all such
cases, a communication among them results from the object
which is common to them.

"It is lastly to be seen whether the confidence expressed
by the resolution, that the necessary and proper measures
would be taken by the other states for co-operating with Virginia
in maintaining the rights reserved to the states or to the
people, be in any degree liable to the objections which have
been raised against it.

"If it be liable to objection, it must be because either the
object or the means are objectionable.

"The object being to maintain what the Constitution has
ordered, is in itself a laudable object.

"The means are expressed in the terms 'the necessary and
proper measures.' A proper object was to be pursued by
means both necessary and proper.

"To find an objection, then, it must be shown that some
meaning was annexed to these general terms which was not
proper; and, for this purpose, either that the means used by
the General Assembly were an example of improper means, or
that there were no proper means to which the term could refer.

"In the example given by the state, of declaring the alien
and sedition acts to be unconstitutional, and of communicating
the declaration to the other states, no trace of improper
means has appeared. And if the other states had concurred in
making a like declaration, supported, too, by the numerous
applications flowing immediately from the people, it can

scarcely be doubted that these simple means would have been
as sufficient as they are unexceptionable.

"It is no less certain that other means might have been
employed which are strictly within the limits of the Constitution.
The legislatures of the states might have made a direct
representation to Congress, with a view to obtain a rescinding
of the two offensive acts; or they might have represented to
their respective senators in Congress their wish that two
thirds thereof would propose an explanatory amendment
to the Constitution; or two thirds of themselves, if such had
been their option, might, by an application to Congress,
have obtained a convention for the same object.

"These several means, though not equally eligible in
themselves, nor probably to the states, were all constitutionally
open for consideration. And if the General Assembly,
after declaring the two acts to be unconstitutional, the first and
most obvious proceeding on the subject, did not undertake to
point out to the other states a choice among the farther means
that might become necessary and proper, the reserve will not
be misconstrued by liberal minds into any culpable imputation.

"These observations appear to form a satisfactory reply
to every objection which is not founded on a misconception
of the terms employed in the resolutions. There is one other,
however, which may be of too much importance not to be
added. It cannot be forgotten, that among the arguments
addressed to those who apprehended danger to liberty from
the establishment of the general government over so great a
country, the appeal was emphatically made to the intermediate
existence of the state governments between the people and that
government, to the vigilance with which they would descry
the first symptoms of usurpation, and to the promptitude
with which they would sound the alarm to the public. This
argument was probably not without its effect; and if it was
a proper one then to recommend the establishment of the
Constitution, it must be a proper one now to assist in its
interpretation.

"The only part of the two concluding resolutions that remains
to be noticed, is the repetition in the first of that warm
affection to the Union and its members, and of that scrupulous
fidelity to the Constitution, which have been invariably felt
by the people of this state. As the proceedings were introduced
with these sentiments, they could not be more properly
closed than in the same manner. Should there be any so far
misled as to call in question the sincerity of these professions,
whatever regret may be excited by the error, the General
Assembly cannot descend into a discussion of it. Those who
have listened to the suggestion can only be left to their own
recollection of the part which this state has borne in the
establishment of our national independence, in the establishment
of our national Constitution, and in maintaining under
it the authority and laws of the Union, without a single
exception of internal resistance or commotion. By recurring
to these facts, they will be able to convince themselves that
the representations of the people of Virginia must be above
the necessity of opposing any other shield to attacks on their
national patriotism than their own consciousness and the
justice of an enlightened public, who will perceive, in the
resolutions themselves, the strongest evidence of attachment
both to the Constitution and to the Union, since it is only by
maintaining the different governments and departments within
their respective limits that the blessings of either can be
perpetuated."]

Here is certainly not a shadow of countenance to the
doctrine of nullification. Under every aspect, it enforces
the arguments and authority agst such an apocryphal version
of the text.

From this view of the subject, those who will duly attend
to the tenour of the proceedings of Virga and to the circumstances
of the period when they took place will concur in the
fairness of disclaiming the inference from the undeniableness
of a truth, that it could not be the truth meant to be asserted
in the Resoln. The employment of the truth asserted, and

the reasons for it, are too striking to be denied or misunderstood.

More than this, the remark is obvious, that those who
resolve the nullifying claim into the natural right to resist
intolerable oppression, are precluded from inferring that to be
the right meant by the Resoln., since that is as little denied, as
the paramountship of the authy., creating a Constn. over an
authy. derived from it.

The true question therefore is whether there be a constitutional
right in a single state to nullify a law of the U. S. We
have seen the absurdity of such a claim in its naked and
suicidal form. Let us turn to it as modified by S. C., into
a right in every State to resist within itself, the execution of
a Federal law deemed by it to be unconstitutional; and to
demand a Convention of the States to decide the question
of constitutionality, the annulment of the law to continue in
the mean time, and to be permanent, unless ¾ of the states
concur in over-ruling the annulment.

Thus, during the temporary nullification of the law, the
results would be the same from those proceeding from an unqualified
nullification, and the result of a convention might be,
that 7 out of the 24 states, might make the temporary results
permanent. It follows, that any State which could obtain the
concurrence of six others, might abrogate any law of the U. S
constructively whatever, and give to the Constitution any
shape they please, in opposition to the construction and will
of the other seventeen, each of the 17 having an equal right
& authority with each of the 7. Every feature in the Constitution,
might thus be successively changed; and after a scene
of unexampled confusion & distraction, what had been
unanimously agreed to as a whole, would not as a whole be
agreed to by a single party. The amount of this modified
right of nullification is, that a single State may arrest the
operation of a law of the United States, and institute a process
which is to terminate in the ascendency of a minority over a
large majority, in a Republican System, the characteristic

rule of which is that the major will is the ruling will. And
this newfangled theory is attempted to be fathered on Mr.
Jefferson the apostle of republicanism, and whose own words
declare that "acquiescence in the decision of the majority
is the vital principle of it." [See his Inaugural Address.]

Well might Virginia declare, as her Legislature did by a
resolution of 1833 "that the resolutions of 98–99, gave no support
to the nullifying doctrine of South Carolina. And well
may the friends of Mr. J. disclaim any sanction to it or to any
constitutional right of nullification from his opinions. His
memory is fortunately rescued from such imputations, by the
very Document procured from his files and so triumphantly
appealed to by the nullifying partisans of every description.
In this Document, the remedial right of nullification is expressly
called a natural right, and, consequently, not a right
derived from the Constitution, but from abuses or usurpations,
releasing the parties to it from their obligation.[170]

It is said that in several instances the authority & laws of the
U. S. have been successfully nullified by the particular States.
This may have occurred possibly in urgent cases, and in confidence
that it would not be at variance with the construction
of the Fedl. Govt or in cases where, operating within the
Nullifying State alone it might be connived at as a lesser evil
than a resort to force; or in cases not falling within the Fedl.
jurisdiction; or finally in cases, deemed by the States, subversive
of their essential rights, and justified therefore, by
the natural right of self-preservation. Be all this as it may,
examples of nullification, tho' passing off witht any immediate
disturbance of the public order, are to be deplored, as weakeng.
the com̃on Govt. and as undermining the Union. One thing
seems to be certain, that the States which have exposed themselves
to the charge of nullification, have, with the exception of
S. C., disclaimed it as a constitutional right, and have moreover
protested agst. it as modified by the process of South Carolina.

The conduct of Pena. and the opinions of Judge Mc Kean
& Tilgman have been particularly dwelt on by the nullifiers.
But the final acquiescence of the state in the authy. of the
Fedl. Judiciary transfers their authy. to the other scale, and
it is believed that the opinions of the two judges, have been
superseded by those of their brethren, which have been since
& at the present time are, opposed to them.[171]

Attempts have been made to shew that the resolutions of
Virginia contemplated a forcible resistance to the alien &

sedt. laws and as evidence of it, the laws relating to the armory,
and a Habs. corpus for the protection of members of her
Legislature, have been brought into view. It happens however,
as has been ascertained by the recorded dates that the
first of these laws was enacted prior to the al. & sed.
laws. As to the last, it appears that it was a general law,
providing for other emergencies as well as federal arrests
and its applicability never tested by any occurrence under the
al. & sedn. laws. The law did not necessarily preclude an
acquiescence in the supervising decision of the Fedl. Judy.
shd. that not sustain the Habs. corps. which it might be
calculated would be sustained. And all must agree, that cases
might arise, of such violations of the security & privileges of
representatives of the people, as would justify the states in a
resort to the natural law of self-preservation. The extent of
the privileges of the fedl & State representatives of the
people, agst. criminal charges by the 2 authorities reciprocally,
involves delicate questions which it may be better to leave
for those who are to decide on them, than unnecessarily to
discuss them in advance. The moderate views of Va. on the
critical occasion of the al. & sed. laws, are illustrated by the
terms of the 7th Resol. with an eye to which the 3d Resol.
ought always to be expounded, by the unanimous erasure of
the terms "null void" &c., from the 7th art. as it stood; and
by the condemnation & imprisonment of Callender under the
law, without the slightest opposition on the part of the
state. So far was the State from countenancing the nullifying
doctrine, that the occasion was viewed as a proper one for
exemplifying its devotion to public order, and acquiescence
in laws which it deemed unconstitutional, whilst those laws
were not constitutionally repealed. The language of the
Govr in a letter to a friend, will best attest the principles &
feelings which dictated the course pursued on the occasion.[172]

It is sometimes asked in what mode the States could interpose
in their collective character as parties to the Constitution
agst usurped power. It was not necessary for the object &
reasoning of the resolns & report, that the mode should be
pointed out. It was sufficient to shew that the authy. to
interpose existed, and was a resort beyond that of the Supreme
Court of the U. S. or any authy. derived from the Constitn.
The authy. being plenary, the mode was of its own choice, and
it is obvious, that, if employed by the States as coparties to
and creators of the Constn it might either so explain the
Constn or so amend it as to provide a more satisfactory mode
within the Constn itself for guarding it agst constructive or
other violations.

It remains however for the nullifying expositors to specify
the right & mode of interposition which the resolution meant
to assign to the States individually. They cannot say it was
a natural right to resist intolerable oppression; for that was a
right not less admitted by all than the collective right of
the States as parties to the Const. the nondenial of

which was urged as a proof that it could not be meant by the
Resoln.

They cannot say that the right meant was a Constitl right
to resist the constitutional authy. for that is a construction in
terms, as much as a legal right to resist a law.

They can find no middle ground, between a natural and a
constitutional right, on which a right of nullifying interposition
can be placed; and it is curious to observe the awkwardness
of the attempt, by the most ingenious advocates [Upshur
and Berrian].

They will not rest the claim as modified by S. C. for that has
scarce an advocate out of the State, and owes the remnant of
its popularity there to the disguise under which it is now kept
alive; some of the leaders of the party admitting its indefensibility,
in its naked shape.

The result is, that the nullifiers, instead of proving that the
Resoln meant nullification, would prove that it was altogether
without meaning.

It appears from this Comment, that the right asserted and
exercised by the Legislature, to declare an act of Congs.
unconstitutional had been denied by the Defenders of the
alien & sedition acts as an interference with the Judicial
authority; and, consequently, that the reasonings employed
by the Legislature, were called for by the doctrines and
inferences drawn from that authority, and were not an idle
display of what no one denied.

It appears still farther, that the efficacious interposition
contemplated by the Legislature; was a concurring and cooperating
interposition of the States, not that of a single
State.

It appears that the Legislature expressly disclaimed the
idea that a declaration of a State, that a law of the U. S. was
unconstitutional, had the effect of annulling the law.

It appears that the object to be attained by the invited
cooperation with Virginia was, as expressed in the 3d. & 7th.
Resol. to maintain within the several States their respective

auths. rights, & liberties, which could not be constitutionally
different in different States, nor inconsistent with a sameness
in the authy. & laws of the U. S. in all & in each.

It appears that the means contemplated by the Legislature
for attaining the object, were measures recognised & designated
by the Constitution itself.[173]

Lastly, it may be remarked that the concurring measures
of the states, without any nullifying interposition whatever
did attain the contemplated object; a triumph over the obnoxious
acts, and an apparent abandonment of them for ever.

It has been said or insinuated that the proceedings of Virga.
in 98–99, had not the influence ascribed to them in bringing
about that result. Whether the influence was or was not such
as has been claimed for them, is a question that does not affect
the meaning & intention of the proceedings. But as a question
of fact, the decision may be safely left to the recollection
of those who were co-temporary with the crisis, and to the
researches of those who were not, taking for their guides the
reception given to the proceedings by the Repubn. party
every where, and the pains taken by it, in multiplying republications
of them in newspapers and in other forms.

What the effect might have been if Virga. had remained
patient & silent, and still more if she had sided with S. Carolina,
in favoring the alien & sedition acts. can be but a matter of
conjecture.

What would have been thought of her if she had recommended
the nullifying project of S. C. may be estimated by
the reception given to it under all the factitious gloss, and in
the midst of the peculiar excitement of which advantage
has been taken by the partizans of that anomalous conceit.

It has been sufficiently shown, from the language of the
Report, as has been seen, that the right in the States to interpose
declarations & protests, agst. unconstitutional acts of
Congress, had been denied; and that the reasoning in the
Resolutions was called for by that denial. But the triumphant

tone, with which it is affirmed & reiterated that the resolutions,
must have been directed agst. what no one denied, unless
they were meant to assert the right of a single State to arrest
and annul acts of the federal Legislature, makes it proper
to adduce a proof of the fact that the declaratory right was
denied, which, if it does not silence the advocate of nullification,
must render every candid ear indignant at the repetition
of the untruth.

The proof is found in the recorded votes of a large and
respectable portion of the House of Delegates, at the time
of passing the report.

A motion [see the Journal] offered at the closing scene
affirms "that protests made by the Legislature of this or any
other State agst. particular acts of Congs. as unconstitutional
accompanied with invitations to other States, to join in such
protests, are improper & unauthorized assumptions of power
not permitted, nor intended to be permitted to the State
Legislatures. And inasmuch as correspondent sentiments with
the present, have been expressed by those of our sister States
who have acted on the Resolutions [of 1798], Resolved therefore
that the present General Assembly convinced of the
impropriety of the Resolutions of the last Assembly, deem it
inexpedient farther to act on the said Resolutions."

On this Resolution, the votes, according to the yeas & nays
were 57, of the former, 98 of the latter.

Here then within the H. of Delegates itself more than 1/3 of
the whole number denied the right of the State Legislature to
proceed by acts merely declaratory agst. the constitutionality
of acts of Congs. and affirmed moreover that the states who
had acted on the Resols. of Va. entertained the same sentiments.
It is remarkable that the minority, who denied
the right of the legislatures even to protest, admitted the
right of the states in the capacity of parties, without claiming
it for a single state.

With this testimony under the eye it may surely be expected
that it will never again be said that such a right had never

been denied, nor the pretext again resorted to that without
such a denial, the nullifying doctrine alone could satisfy
the true meaning of the Legislature. [See the instructions to
the members of Congress passed at the same session, which
do not squint at the nullifying idea; see also the protest of the
minority in the Virga. Legislare. and the Report of the
Comee. of Congs. on the proceedings of Virginia.]

It has been asked whether every right has not its remedy,
and what other remedy exists under the Govt. of the U. S. agst.
usurpations of power, but a right in the States individually to
annul and resist them.

The plain answer is, that the remedy is the same under
the government of the United States as under all other
Govts. established & organized on free principles. The first
remedy is in the checks provided among the constituted
authorities; that failing the next is in the influence of the
Ballot-boxes & Hustings; that again failing, the appeal lies to
the power that made the Constitution, and can explain, amend,
or remake it. Should this resort also fail, and the power
usurped be sustained in its oppressive exercise on a minority
by a majority, the final course to be pursued by the minority,
must be a subject of calculation, in which the degree of
oppression, the means of resistance, the consequences of its
failure, and consequences of its success must be the elements.

Does not this view of the case, equally belong to every one
of the States, Virginia for example.

Should the constituted authorities of the State unite in
usurping oppressive powers; should the constituent Body
fail to arrest the progress of the evil thro' the elective process
according to the forms of the Constitution; and should the
authority which is above that of the Constitution, the majority
of the people, inflexibly support the oppression inflicted on
the minority, nothing would remain for the minority, but
to rally to its reserved rights (for every citizen has his
reserved rights, as exemplified in Declarations prefixed to
most of the State constitutions), and to decide between

acquiescence & resistance, according to the calculation
above stated.

Those who question the analogy in this respect between
the two cases, however different they may be in some other
respects, must say, as some of them, with a boldness truly
astonishing do say, that the Constitution of the U. S. which
as such, and under that name, was presented to & accepted
by those who ratified it; which has been so deemed & so called
by those living under it for nearly half a century; and, as such
sworn to by every officer, state as well as federal, is yet no
Constitution, but a treaty, a league, or at most a confederacy
among nations, as independent and sovereign, in relation to
each other, as before the charter which calls itself a Constitution
was formed.

The same zealots must again say, as they do, with a like
boldness & incongruity that the Govt. of the U. S. wch. has
been so deemed & so called from its birth to the present time;
which is organized in the regular forms of Representative
Govts. and like them operates directly on the individuals
represented; and whose laws are declared to be the supreme
law of the land, with a physical force in the govt. for executing
them, is yet no govt. but a mere agency, a power of attorney,
revocable at the will of any of the parties granting it.

Strange as it must appear, there are some who maintain
these doctrines, and hold this language: and what is stranger
still, denounce those as heretics and apostates who adhere
to the language & tenets of their fathers, and this is done
with an exulting question whether every right has not its
remedy; and what remedy can be found against federal
usurpations, other than that of a right in every State to
nullify & resist the federal acts at its pleasure?

Yes, it may be safely admitted that every right has its
remedy; as it must be admitted that the remedy under the
Constitution lies where it has been marked out by the Constitution;
and that no appeal can be consistently made from that
remedy by those who were and still profess to be parties to it,

but the appeal to the parties themselves having an authority
above the Constitution or to the law of nature & of nature's God.

It is painful to be obliged to notice such a sophism as that
by which this inference is assailed. Because an unconstitutional
law is no law, it is alledged that it may be constitutionally
disobeyed by all who think it unconstitutional. The
fallacy is so obvious, that it can impose on none but the most
biassed or heedless observers. It makes no distinction where
the distinction is obvious, and essential, between the case of
a law confessedly unconstitutional, and a case turning on a
doubt & a divided opinion as to the meaning of the Constitution;
on a question, not whether the Constitution ought or ought not
to be obeyed; but on the question, what is the Constitution.
And can it be seriously & deliberately maintained, that every
individual or every subordinate authy. or every party to a
compact, has a right to take for granted, that its construction
is the infallible one, and to act upon it agst. the construction
of all others, having an equal right to expound the instrument,
nay against the regular exposition of the constituted authorities,
with the tacit sanction of the community. Such a
doctrine must be seen at once to be subversive of all constitutions,
all laws, and all compacts. The provision made by a
Constn. for its own exposition, thro' its own authorities &
forms, must prevail whilst the Constitution is left to itself by
those who made it; or until cases arise which justify a resort
to ultra-constitutional interpositions.

The main pillar of nullification is the assumption that
sovereignty is a unit, at once indivisible and unalienable;
that the states therefore individually retain it entire as they
originally held it, and, consequently that no portion of it can
belong to the U. S.

But is not the Constn. itself necessarily the offspring of a
sovn. authy.? What but the highest pol: authy. a sovereign
authy., could make such a Constn.? a constn. wch. makes a
Govt.; a Govt. which makes laws; laws which operate like
the laws of all other govts. by a penal & physical force, on the

individuals subject to the laws; and finally laws declared to be
the Supreme law of the land; anything in the Constn. or laws
of the individual State notwithstanding.

And where does the sovy. which makes such a Constn.
reside. It resides not in a single state but in the people of
each of the several states, uniting with those of the others
in the express & solemn compact which forms the Constn.
To the extent of that compact or Constitution therefore, the
people of the several States must be a sovereign as they are a
united people.

In like manner, the constns. of the States, made by the
people as separated into States, were made by a sovereign
authy. by a sovereignty residing in each of the States, to the
extent of the objects embraced by their respective constitutions.
And if the states be thus sovereign, though shorn of
so many of the essential attributes of sovereignty, the U. States
by virtue of the sovereign attributes with wch. they are endowed,
may, to that extent, be sovereign, tho' destitute of the
attributes of which the States are not shorn.

Such is the political system of the U. S. de jure & de facto;
and however it may be obscured by the ingenuity and technicalities
of controversial commentators, its true character
will be sustained by an appeal to the law and the testimony of
the fundamental charter.

The more the pol: system of the U. S. is fairly examined,
the more necessary it will be found, to abandon the abstract
and technical modes of expounding & designating its character;
and to view it as laid down in the charter which constitutes
it, as a system, hitherto without a model; as neither a simple
or a consolidated Govt. nor a Govt. altogether confederate;
and therefore not to be explained so as to make it either,
but to be explained and designated, according to the actual
division and distribution of political power on the face of the
instrument.

A just inference from a survey of this polit: system is that
it is a division and distribution of pol: power, nowhere else

to be found; a nondescript, to be tested and explained by
itself alone; and that it happily illustrates the diversified modifications
of which the representative principle of republicanism
is susceptible with a view to the conditions, opinions, and
habits of particular communities.

That a sovereignty should have even been denied to the
States in their united character, may well excite wonder, when
it is recollected that the Constn. which now unites them, was
announced by the convn. which formed it, as dividing sovereignty
between the Union & the States; [see letter of the
Presdt. of the Convention (W.) to the old Congs.[174] ] that it
was presented under that view, by contemporary expositions
recommendg. it to the ratifying authorities [see Federt and
other proofs]; that it is proved to have been so understood by
the language which has been applied to it constantly &
notoriously; that this has been the doctrine & language, until
a very late date, even by those who now take the lead in making
a denial of it the basis of the novel notion of nullification.
[See the Report to the Legisl. of S. Carola. in 1828.] So
familiar is sovereignty in the U. S. to the thoughts, views &
opinions even of its polemic adversaries, that Mr. Rowan, in
his elaborate speech in support of the indivisibility of sovereignty,
relapsed before the conclusion of his argument into the
idea that sovereignty was partly in the Union, partly in the
States. [See his speech in the Richmond Enquirer of the—.]
Other champions of the Rights of the States among them Mr.
J-n might be appealed to, as bearing testimony to the sovereignty
of the U. S. If Burr had been convicted of acts defined
to be treason, wch. it is allowed can be committed only agst
a sovern. authy. who wd. then have pleaded the want of
sovy. in the U. S. Quere. if there be no sovy. in the U. S.
whether the crime denominated treason might not be committed,
without falling within the jurisdiction of the States,
and consequently, with impunity?

What seems to be an obvious & indefeasible proof that the

people of the individual States, as composing the U. States
must possess a sovereignty, at least in relation to foreign
sovereigns is that in that supposition only, foreign Govts.
would be willing or expected to maintain international relations
with the U. S. Let it be understood that the Govt. at Washington
was not a national Govt. representing a sovereign
authy.; and that the sovereignty resided absolutely & exclusively
in the several States, as the only sovereigns & nations
in our political system, and the diplomatic functionaries at
the seat of the Fedl. Govt. would be obliged to close their
communications with the Secy. of State, and with new commissions
repair to Columbia, in S. C. and other seats of the
State Govts. They could no longer, as the Repts. of a sovereign
authy. hold intercourse with a functionary who was but an
agent of a self-called Govt which was itself but an agent,
representing no sovereign authority; not of the States as
separate sovereignties, nor a sovereignty in the U. S. which
had no existence. For a like reason, the Plenipotentiaries of
the U. S. at foreign courts, would be obliged to return home
unless commissioned by the individual States. With respect
to foreign nations, the confederacy of the States was held de
facto to be a nation, or other nations would not have held
national relations with it.

There is one view of the subject which ought to have its
influence on those who espouse doctrines which strike at the
authoritative origin and efficacious operation of the Govt.
of the U. States. The Govt of the U. S. like all Govts. free
in their principles, rests on compact; a compact, not between
the Govt. & the parties who formed & live under it; but among
the parties themselves, and the strongest of Govts. are those
in which the compacts were most fairly formed and most faithfully
executed.

Now all must agree that the compact in the case of the U.
S. was duly formed, and by a competent authority. It was
formed, in fact by the people of the several States in their
highest sovereign authority; an authority which cd. have

made the compact a mere league, or a consolidation of all
entirely into one community. Such was their authy. if such
had been their will. It was their will to prefer to either
the constitutional Govt now existing; and this being undeniably
establd. by a competent and even the highest human
authy., it follows that the obligation to give it all the effect
to which any Govt. could be entitled; whatever the mode of its
formation, is equally undeniable. Had it been formed
by the people of the U. S. as one society, the authority could
not have been more competent, than that which did form it;
nor wd. a consolidation of the people of the States into one
people, be different in validity or operation, if made by the
aggregate authy. of the people of the States, than if made by
the plenary sanction given concurrently as it was in their
highest sovereign capacity. The Govt whatever it be resulting
from either of these processes would rest on an authy.
equally competent; and be equally obligatory & operative on
those over whom it was established. Nor would it be in any
respect less responsible, theoretically and practically, to the
constituent body, in the one hypothesis than in the other; or
less subject in extreme cases to be resisted and overthrown.
The faith pledged in the compact, being the vital principle
of all free Govt. that is the true test by which pol: right &
wrong are to be decided, and the resort to physical force justified,
whether applied to the enforcement or the subversion
of political power.

Whatever be the mode in which the essential auty. estabd.
the Constn., the structure of this, the power of this, the rules
of exposition, the means of execution, must be the same; the
tendency to consol. or dissolution the same. The question,
whether we the people means the people in their aggregate
capacity, acting by a numerical majy. of the whole, or by a
majy. in each of all the States, the authy. being equally valid
and binding, the question is interesting, but as an historical
fact of merely speculative curiosity.

Whether the centripetal or centrifugal tendency be greatest,

is a problem which experience is to decide; but it depends not
on the mode of the grant, but the extent and effect of the
powers granted. The only distinctive circumstance is in
the effect of a dissolution of the system on the resultum
of the parties, which, in the case of a system formed by the
people, as that of the United States was, would replace the
states in the character of separate communities, whereas a
system founded by the people, as one community, would, on its
dissolution, throw the people into a state of nature.[175]

In conclusion, those who deny the possibility of a political
system, with a divided sovereignty like that of the U. S.,
must chuse between a government purely consolidated, &
an association of Govts. purely federal. All republics of the
former character, ancient or modern, have been found ineffectual
for order and justice within, and for security without.
They have been either a prey to internal convulsions or to
foreign invasions. In like manner, all confederacies, ancient
or modern, have been either dissolved by the inadequacy of

their cohesion, or, as in the modern examples, continue to be
monuments of the frailties of such forms. Instructed by
these monitory lessons, and by the failure of an experiment
of their own (an experiment wch., while it proved the frailty
of mere federalism, proved also the frailties of republicanism
without the control of a Federal organization),[176] the U. S.
have adopted a modification of political power, which aims
at such a distribution of it as might avoid as well the evils of
consolidation as the defects of federation, and obtain the
advantages of both. Thus far, throughout a period of nearly
half a century, the new and compound system has been
successful beyond any of the forms of Govt., ancient or modern,
with which it may be compared; having as yet discovered no
defects which do not admit remedies compatible with its vital
principles and characteristic features. It becomes all therefore
who are friends of a Govt. based on free principles to
reflect, that by denying the possibility of a system partly
federal and partly consolidated, and who would convert ours
into one either wholly federal or wholly consolidated, in neither
of which forms have individual rights, public order, and
external safety, been all duly maintained, they aim a deadly
blow at the last hope of true liberty on the face of the Earth.
Its enlightened votaries must perceive the necessity of such
a modification of power as will not only divide it between the
whole & the parts, but provide for occurring questions as well
between the whole & the parts as between the parts themselves.
A political system which does not contain an effective provision
for a peaceable decision of all controversies arising within itself,
would be a Govt. in name only. Such a provision is obviously
essential; and it is equally obvious that it cannot be either
peaceable or effective by making every part an authoritative
umpire. The final appeal in such cases must be to the authority
of the whole, not to that of the parts separately and
independently. This was the view taken of the subject,
whilst the Constitution was under the consideration of the
people. [See Federalist No. 39.] It was this view of it
which dictated the clause declaring that the Constitution &
laws of the U.S. should be the supreme law of the Land, anything
in the constn or laws of any of the States to the contrary
notwithstanding. [See Art. VI.] It was the same
view which specially prohibited certain powers and acts to the
States, among them any laws violating the obligation of contracts,
and which dictated the appellate provision in the
Judicial act passed by the first Congress under the Constitution.
[See Art. 1.] And it may be confidently foretold,
that notwithstanding the clouds which a patriotic jealousy
or other causes have at times thrown over the subject, it is the
view which will be permanently taken of it, with a surprise
hereafter, that any other should ever have been contended for.