Lynchburg Virginian

POLITICAL.

A LETTER,

Addressed by John C. Calhoun, Esq. to Gov. James Hamilton, of South Carolina, elucidating and defending Nullification.

Fort Hill, August 28th, 1832.

Sir: I have received your note of the 31st July, requesting me to give you a fuller development of my views, than that contained in my letter last spring, on the right of a State to defend her reserved powers against the encroachments of the Federal 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 a compliance.

No one can be more sensible than I am, of the arduousness of the task. It would require, to do it justice, a complete exposition of all the principles of the Constitution, and of the nature of our political system, in all its relations, Federal and State; a task, which would detain me too long from other duties.

I feel, that the independence and candor, 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 sentiments, regardless of consequences. To do this, 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 seems to me to demand.

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 plainly the historical 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 subject. 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 authority-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 the 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, & in judicial investigations, where the greatest accuracy, on so important a point, might be expected; particularly, as one or the other meaning is intended, conclusions the most opposite 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 the several States, forming, as above stated, separate and independent communities. These distinctions are essential in the enquiry. 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 collectively, 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 regarded the relation between the State and the General Governments, 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 this 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 existence, through which we have passed, the people of the United States have been united, as forming political communities, and not, as individuals. Even in the first stage of existence, they formed distinct colonies, independent of each other, and politically united only through the British Crown. In their first informal Union, for the purpose of resisting the encroachments 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 enumeration, free and independent States. In that character, they formed the old confederation; and, when it was proposed to supersede the articles of the confederation, by the present constitution, they met in convention as states, acted and 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, & not the whole, the parts; to which, if it be added, that it 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 the 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 a 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 favor 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 of themselves, perfectly certain and plain, and which, when well understood, must lead to a correct conception of the subject, have been involved in obscurity and mystery.

I will next proceed to state some of the results which necessarily follow, from 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 a Union of States, communities, and not a 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.-Without the ratification of their own State, they would stand in the same relation to the General Government, as do the citizens or 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 operation; these States, having in the first instance 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, depended 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 as a necessary consequence, that the act of ratification, bound the State as a community, as is expressly declared in the article of ratification, above quoted, and not the citizens of the State, as individuals; the latter being bound, through the 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 sovereign capacity, in Convention, to determine definitely, 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 be 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 Government. 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 are concerned, to declare the extent of the obligation, and that such declaration is binding on them-a right, when limited to its citizens, flowing 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 the 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 obligation, to declare its extent, as far as those are concerned on whom the obligation is placed, I shall present a single argument which, of itself, is decisive.

I have already shown 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 shown, that, whatever obligations were imposed 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 concerned, be of equal authority.

I speak of course on the supposition, that the right has not been transferred, as it will hereafter be shown that it has not. A citizen would have no more right to question the one, than he would have 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 declaration declaring the extent of that assent, whether opposed to, or in favor 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 obligation 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 declaration 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 shown, that the people of the States, acting as distinct and independent communities, are the authors of the Constitution, and that the General Government was organized and ordained by them to execute its powers. The Government, 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 are 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 Government. Indeed, according to our theory, Governments are in their nature but trusts, and 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 are exercised separately, that portion of power not delegated by the Constitution, and in the exercise of which each State has a local and peculiar interest; the former, the joint organ of all the States, confederated into one general community, and through which, they jointly and concurrently exercise the delegated powers, in which all have a common interest.

Thus viewed, the Constitution of the United States, with the Government 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 concerned, 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 may consider the Constitution, whether as a compact between the States, or of the nature of the legislative enactment by the joint and concurring authority of the States, in their high sovereignty. In whatever 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 Government would have, against the people of the State, in their sovereign capacity, 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 applicable to the case of Governments, as to that of individuals. The principle in fact, springs from the relation itself, and is applicable to it 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 agent bear a relation to the 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 them, such is not the case between him and his associates. 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 according to the terms of the instrument of association, and of the principal to submit to such adjustment.

In 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-four sovereign states. It would be its duty, according to the principles established, in such cases, instead of attempting to enforce its construction 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, by 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 delegated is contained in a written instrument, drawn up with great care, and adopted with the utmost deliberation. It provides, that the powers not granted, are reserved to the States and the people. If it be surrendered, or transferred, let then the grant be shown, and the controversy terminated; and surely, it ought to be shown, plainly and clearly shown, before the States are asked to admit what, if true, would not only divest them of a right, which, under all its forms, belongs to the principal over his agent, unless surrendered, but which cannot be surrendered, without, in effect, and for all practical purposes, 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 dependent corporations.

But instead of showing any such grant no provision can be found in the Constitution, authorizing the General Government to exercise any control whatever over a State by force, by veto, by judicial process, or in any other form--a most important omission, intended, and not accidental and as will be shown in the course of these remarks, omitted by the dictates of the profoundest wisdom.

The journal and proceedings of the Convention, which formed the Constitution, afford abundant proof, that there was in that body a powerful party distinguished for talents and influence, intent on obtaining for the General Government, a grant of the very power in question, and that they attempted 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 Union failing to fulfil its duty under the articles thereof."

The next project submitted (Charles Pinckney's) contained a similar provision. It proposed, "that the Legislature of the U. States should have the power to revise the laws of the several States, that may be supposed to infringe the powers exclusively delegated by this Constitution to Congress, and to negative and annul 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 confederated States, or so much thereof as shall be necessary to enforce, or compel obedience to such acts, or the observance of such treaties."

Gen. Hamilton's next succeeded, which provided, that "all laws of the particular States, contrary to the Constitution or law of the United States to be utterly void; and the better to prevent such laws being passed, the Governor or President 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 committee, to provide, that the jurisdiction of the Supreme Court shall extend to all controversies between the United States, and any individual State,' and, 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, two thirds of the members, of each house assent to the same," which after an ineffectual attempt to commit was withdrawn.

I do not deem it necessary to trace through the journals of the Convention the fate of the various propositions. It is sufficient, that they were offered, and failed, to prove conclusively, in a manner never to 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 Departments, 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, or transfer of the power, under consideration, and such in fact would be the case, were the opinion of a large portion of the community not biassed, as in fact it is, by interest. A majority have a direct interest in enlarging the power of the Government, & the interested adhere to power 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 perseveringly sought and so sternly resisted by the Convention.

They rest the claim on the provisions in the Constitution, which declare, "that this Constitution and the laws made in pursuance thereof, shall be the supreme law of the land," and that, "the judicial power shall extend to all cases in law and equity arising under this Constitution, the 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 shown, that they do not warrant the assumption of the power claimed 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 itself ought to overrule the assumption of the power by construction, unless sustained by the most conclusive arguments; but when it is added, that this proposition was moved (20th August) subsequent to the period of adopting the provisions above cited, vesting the court with its present powers, (15th July) and that, an effort was made, at a still later period [23d August] to invest Congress with a negative on all state laws, which, in its opinion, might interfere 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, amenable to the process of the court, and, of course, excluding questions between the States and the General Government, an argument which has never been answered, there remains another objection perfectly conclusive.

The consideration, which would confer on the Supreme 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 deny 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 necessity of the case; and so far from being possessed by the Supreme Court, exclusively, 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 higher, and the other by an inferior authority, the judicial tribunal called in to decide 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 charter and the by-laws of a corporation. The principle and source of authority are the same in both cases.

Being derived from necessity, it is restricted within its limits, and can not pass one inch beyond its narrow confines of deciding 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 reality 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, which 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 positively refused by the convention.

The opinion, that the General Government has the right to enforce its construction of its powers against a State, in any mode whatever, is, in truth, founded on a fundamental 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 national, and not as in reality it is, a confederated Government, and that it derives its powers from a higher source than the States.

There 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 governments, as distinct from constitutions) has mainly contributed to this dangerous impression. But, however dissimilar their Governments, the present Constitution is as far removed from consolidation, and is a 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 in this particular is, that one was ratified by the people of the States, the other by the State Governments, one forming more strictly a Union of the State Governments, the other of the States themselves, one, of the agents exercising the powers of sovereignty, and the other of the sovereigns themselves, but both were unions of political bodies, as distinct from a union of the people individually.

They are indeed both confederations: but the present in a higher and purer sense, than that which it succeeded, just as the act of a sovereign is higher and more perfect than that of his agent, and 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 it elevated 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 misconception, has been the principal cause of the supposition so prevalent of the inferiority of the States to the General Government and of the consequent 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 construction 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 system, is known 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 Government 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 anticipated.

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 exercise; 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, into one positively granted; but, should it not be granted, no alternative would remain 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 shown.

From the adoption of the Constitution we have had but one continued agitation of constitutional questions, embracing some of the most important powers exercised by the Government; and yet, in spite of all the ability and force of argument displayed 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 character, which has ever been agitated, during this long period, has been settled, in the public opinion, except that of the unconstitutionality of the Alien and Sedition Laws; and, what is remarkable, that was settled against the decision of the Supreme Court.

The tendency is to increase, and not to diminish this conflict for power. New questions are 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.

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, lay every obstacle in the way to defeat it; and finally, by all 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 consider 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 shown that the declaration of nullification would be obligatory on the citizens of the State, as much so, in fact, as its declaration ratifying the Constitution, resting as it does on the same basis. It would be the highest possible evidence, that the power contested was not granted, and, of course, that the act of the General Government was unconstitutional.

They would be bound, in all the relations of life, private and political, to respect and obey it; and, when called upon, as Jurymen, to render their verdict accordingly, or, as Judges, to pronounce judgment, in conformity 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 inestimable right-inestimable, not only as an essential 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 repeat, thus inestimable right, it would be impossible for the General Government, 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 be able to enforce legally and peaceably its declaration of Nullification.

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 be inevitable. Before the Judicial tribunal of the country, the State must prevail, unless indeed Jury trial could be eluded, by the refinements of the court, or by some other device, which, however, guarded as it is, by the ramparts of the Constitution, would, I 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, avail the General Government. If taken, it would but end in a new trial, and that in another verdict against the Government; but whether it may be taken, would be optional with the State.

The Court itself has 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 if obtained, what would it avail, against the execution of the penal enactments of the State, intended to enforce the declaration 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 resort, the difficulty (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 all possible doubt.

Let it, however, be determined to use force: and the difficulty 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, it is true, has the right to call forth the Militia, "to execute the laws, and suppress insurrections" but 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 be guilty of treason ("levying war against the United States, adhering to their enemies, 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 could be called in, 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 contest, a conflict moral and not physical force-a trial of constitutional, not military power, to be decided before the judicial tribunals of the country, and not on the field of battle.

In such contest there would be no object for force, but those peaceful tribunals-nothing on which it could be employed, but in putting down courts and juries, and presenting the execution of judicial process.

Leave those unarmed and all the militia that could be called forth, backed by a regular force of ten times the number of a small, but gallant and patriotic army, could not the slightest effect on the result of the controversy, but, subvert these by an armed body, you subvert the very foundation of this, our free constitutional, and legal system of government, rear, in its place, a military despotism.

Feeling the force of these difficulties, it is proposed, with the view, I suppose, of disembarrassing the operation as much as possible, of the troublesome interference of courts and juries, to change the scene of coercion from land to water; as if Government could have one particle more right to coerce a State by water, than by land; but unless I am greatly deceived, the difficulty on that element will not be much less, than on the other.

Jury trial, at least, the local jury, (the trial by the country) may indeed, be evaded there; but place other, and not much less formidable obstacles must be encountered.

There can be but two modes of coercion resorted to by water; blockade, and abolition of the port of entry of the State, accompanied by penal enactments, authorizing seizures for entering the waters of the State.

If the former be attempted, there will be other parties besides the General Government and the State. Blockade is a belligerent right, which presupposes a state of war, and unless there be war in due form as prescribed by the Constitution the order for blockade would not, be respected by nations, or their subjects. Their vessels would proceed directly for the blockaded port, with the usual prospects of gain; if seized under the blockade, it is to the claim of indemnity, to the Ch mta (sovereign; and, if not, by a block market without the exaction of duties.

The other mode, the abolition of the port of entry of the State, would also have its difficulties.

The Constitution provides that "no preference shall be given by any regulation of commerce or revenue, to the ports of 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."

And that "no tax or duty shall be laid on articles exported from any State."

Such provisions effectually protect the State, against the abolition of its ports of entry; and in case it should be attempted, her citizens would be authorized to disregard the law, on the high seas, as null and void; a right recognized by all, in similar cases.
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 introducing 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 doubt 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 important 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 honour to himself and the Union, presided over its deliberations, with all the weight that belongs to an intellect of the first order, united with the most spotless integrity, to believe for a moment, that an attempt so plainly and manifestly unconstitutional, as a resort to force would be, in such a contest, could be sustained by the sanction of its authority. In whatever form force may be used, it must present itself for legal adjudication. If in the shape of blockade, the vessels seized under it, must be condemned, and thus would be presented the question 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 entry in the State, the legality of the 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 war to land, we will find every attempt there, to substitute force for law, must in like manner, come under the review of the Courts of the Union, and the unconstitutionality would be so glaring, that the Executive and Legislative Departments, in their attempt to coerce, should either abandon attempt, so lawless and desperate, would be without the support of the Judicial department. I will not pursue the question further, as I think it perfectly clear, that so long as a State retains its Federal relations, so long, in 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, whatever 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.

To be concluded in our next.