WASHINGTON, NOVEMBER 26, 1832. VOL. VI.............. BY DUFF GREEN.. $2.50 PER ANNUM...............No. *29 CORRESPONDENCE. ciples and consequences of nullification, you would add one more to the many obligations of TO THE EDITOR OF THE "PENDLETON MES- friendship I owe you. As I shall be, during SENGER." the residue of the summer, in Charleston, be I remain, my dear Sir, with great esteem, J. HAMILTON, Junior. FORT HILL, August 28th, 1832. PENDLETON, Sept. 12th, 1832. Dear Sir: I am sure you will require no apology at my hands, for sending you the en. closed correspondence which has taken place between Mr. Calhoun and myself. After having obtained his consent to the publication of his letter of the 28th ult. the only question that could arise was, as to the mode by which the My Dear Sir: I have received your note of publication could be made the most promptly the 31st July, requesting me to give you a and extensively useful. I have therefore select- fuller development of my views than that coned your press, as the medium of communicating tained in my address last summer, on the right to the good people of South Carolina the opi- of a State to defend her reserved powers pions of one of the most distinguished of her against the encroachments of the General Lons, on a question of deep and vital interest; Government. on which he has reflected with profound de liberation,-opiniors, which are as much their property as his own, and which I cannot but think Mr. Calhoun has presented in a light approaching as nearly to demonstration as any subject which belongs to moral and not mathematical reasoning will permit. 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 compli ance. No one can be more sensible than I am, that the address of last summer fell far short of ex Consider, therefore, the whole correspond-hausting the subject. It was in fact intended ence, as in your hands, to be published, if you please, as early as the engagements of your press will permit. I remain, dear sir, with great esteem, Dr. F. W. SYMMES. Το as a simple statement of my views. I felt that PENDLETON, July 31st, 1832. My Dear Sir: In reading again, a few days since, your communication addressed, last summer, to the editor of the “Pendleton Messenger," containing an exposition of the doctrine of the right of interposition, which belongs to a sovereign State in this confederacy, to Strange as the assertion may appear, it is nearrest an usurpation on the part of the General vertheless true, that the great difficulty in deGovernment, of powers not delegated to it, I termining, whether a State has the right to defelt satisfied, not only from a remark which fend the reserved powers against the General you yourself make in that article, but from an Government, or in fact any right at all beyond obvious condensation of your argument, that those of a mere corporation, is to bring the pub. there were still a variety of lights in which the lic mind to realise plain historical facts, contruth and vital importance of this highly connected with the origin and formation of the servative principle to the liberties of the States, were quite familiar to the reflections of your own mind, which have not suggested themselves even to those who are the most zealously devoted to the doctrines in question. 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 Your patience has been so heavily taxed by Constitution of the United States, whose powthe late oppressive session of Congress, (op-ers created it, whose voice clothed it with autho pressive in every sense of the term,) that I feelrity, and whose agent, the government it formed some scruple in placing you under the requisi- in reality is. At this point I commence the execu tion which my request is about to impose on tion of the task which your request has imposed. you; but if you could find leisure this summer, The formation and adoption of the Constitufor my private satisfaction and information, totion are events so recent, and all the connected fill out your argument of the last year, by going facts so fully attested, that it would seem imsomewhat more into detail both as to the prin- possible that there, should be the least uncer tainly in relation to them, and yet judging by forming political communities, and not as indiwhat is constantly heard and seen, there are few viduals. Even in the first stage of existence subjects on which the public opinion is more they formed distinct colonies, independent of confused. The most indefinite expressions are each other, and politically united only through habitually used in speaking of them. Some-the British Crown. In their first informal unitimes it is said that the Constitution was made en, for the purpose of resisting the encroach. by the States, and at others, as if in contradic-ments of the mother country, they united as tion, by the poeple, without distinguishing be- distinct political communities; and, passing tween the two very different meanings which from their colonial condition, in the act may be attached to those general expressions; nouncing their independence to the world,they and this, not in ordinary conversation, but in declared themselves, by name and enumeration, grave discussions before deliberate bodies, and free and independent States. In that charac in judicial investigations, where the greatest ac- ter they formed the old confederation; and, curacy, on so important a point, might be ex- when it was proposed to supercede the articles pected: particularly, as one or the other mean- of the confederation by the present Constitu ing is intended, conclusions the most opposite tion, they met in convention as States, acted must follow, not only in reference to the sub-and voted as States; and the Constitution, when ject of this communication, but as to the nature formed, was submitted for ratification to the and character of our political system. By a people of the several States; it was ratified by State, may be meant either the Government of them as States, each State for itself; each by a State or the people, as forming a separate its ratification binding its own citizens; the and independent community; and by the peo- parts thus separately binding themselves, and ple, either the American people taken collect not the whole the parts; to which, if it be addively, as forming one great community, or as ed, that it is declared in the preamble of the the people of the several States, forming, as Constitution to be ordained by the people of the above stated, separate and independent commu- United States, and in the article of ratification, nities. These distinctions are essential in the when ratified, it is declared to be binding beinquiry. If, by the people, be meant, the peo- tween the States so ratifying," the conclusion ple collectively, and not the people of the sev-is inevitable, that the Constitution is the work eral States taken separately; and, if it be true, of the people of the States, considered as sepaindeed, that the Constitution is the work of the rate and independent political communities; that American people collectively; if it originated they are its authors-their power created itwith them, and derives its authority from their their voice clothed it with authority-that the will, then there is an end of the argument. Government it formed is in reality their agent, The right claimed for a State, of defending her and that the Union, of which it is the bond, is reserved powers against the General Govern- an union of States, and not of individuals. Na ment, would be an absurdity. Viewing the one, who regards his character for intelligence American people collectively, as the source of and truth, has ever ventured directly to deny political power, the rights of the States would be facts so certain; but while they are too certain mere concessions-concessions from the com- for denial, they are, also, too conclusive, in famon majority, and to be revoked by them with vor of the rights of the States for admission. the same facility, that they were granted. The The usual course has been adopted; to elude States would, on this supposition, bear to the what can neither be denied nor admitted; and Union the same relation that counties do to the never has the device been more successfully States; and it would, in that case, be just as practised. By confounding States with State preposterous to discuss the right of interposi- Governments, and the people of the States tion, on the part of a State against the General with the American people collectively, things, Government, as that of the counties against the as it regards the subject of this communication, States themselves. That a large portion of the totally dissimilar, as much so as a triangle and people of the United States thus regard the re- a square, facts, of themselves perfectly certain lation between the State and the General Go- and plain, and which, when well understood, vernment, including many who call themselves must lead to a correct conception of the subject, the friends of State rights, and opponents of have been involved in obscurity and mystery. consolidation, can scarcely be doubted, as it is I will next proceed to state some of the reonly on that supposition it can be explained, sults which necessarily follow, from the facts that so many of that description should denounce which have been established. the doctrine for which the State contends, as so The first, and in reference to the subject of absurd. But fortunately, the supposition is this communication, the most important is, that entirely destitute of truth. So far from the there is no direct and immediate connexion be Constitution being the work of the American tween the individual citizens of a State and the people collectively, no such political body either General Government. The relation between now, or ever did exist. In that character the them is through the State. The Union is an people of this country never performed a single union of States, as communities, and not an political act, nor indeed can, without an entire union of individuals. As members of a State, revolution in all our political relations. her citizens were originally subject to no con I challenge an instance. From the begin-trol, but that of the State, and could be subject ning, and in all the changes of political exist- to no other, except by the act of the State ence through which we have passed, the peo- itself. The Constitution was accordingly_subple of the United States have been united, as mitted to the States for their separate ratifica tion; and it was only by the ratification of the whatever obligations were imposed on the citiState, that its citizens became subject to the zens, were imposed by the declaration of the control of the General Government. The rati-State ratifying the Constitution. A similar defication of any other, or all the other States, claration, by the same authority, made with without its own, could create no connection equal solemnity, declaring the extent of the between them and the General Government, obligation, must, as far as they are concerned, nor impose on them the slightest obligation.be of equal authority. I speak, of course, on Without the ratification of their own State, they the supposition that the right has not been would stand in the same relation to the General transferred, as it will hereafter be shown that Government as do the citizens or subjects of it has not. A citizen would have no more right any foreign State; and we find the citizens of to question the one than he would have the North Carolina and Rhode Island actually bear-other declaration. They rest on the same auing that relation to the Government, for some-thority; and as he was bound by the declaratime after it went into operation; these States tion of the State assenting to the Constitution, having in the first instance declined to ratify. whether he assented or dissented, so would he Nor had the act of any individual the least be equally bound by a declaration, declaring influence in subjecting him to the control of the extent of that assent, whether opposed to the General Government, except as it might in- or in favor of such declaration. In this conclufluence the ratification of the Constitution by sion I am supported by analogy. The case of a his own Ssate. Whether subject to his control treaty between sovereigns is strictly analogous. or not, depended wholly on the act of the State. There, as in this case, the State contracts for His dissent had not the least weight against the the citizen or subject; there, as in this, the assent of his State, nor his assent against its obligation is imposed by the State, and is indedissent. It follows as a necessary consequence, pendent of his will; and there, as in this, the that the act of ratification, bound the State declaration of the State determining the extent as a community, as expressly declared in the of the obligation contrac.ed, is obligatory on article of ratification above quoted, and him, as much as the treaty itself. 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 Go vernment, 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. not the citizens of the State, as individuals; Having now, I trust, established the very imthe latter being bound, through their State, portant point, that the declaration of a State, as and in consequence of the ratification of the to the extent of the power granted, is obligaformer. Another, and a higòly important con-tory on its citizens, I shall next proceed to sequence, as it regards the subject under in- consider the effects of such declaration in revestigation, follows with equal certainty; that ference to the General Government; a question 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 ca pacity, 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, In using the term agent, I do not intend to that I do not claim for a State the right to abro- derogate, in any degree, from its character as gate an act of the General Government. It is a Government. It is as truly and properly a the Constitution that annuls an unconstitutional government as the State governments themSuch an act is of itself void, and of no selves. I have applied it, simply because it effect. What I claim is, the right of the State, strictly belongs to the relation between the as far as its citizens are concerned, to declare the General Government and the States, as, in fact, extent of the obligation, and that such declaration it does, also, to that between a State and its is binding on them-a right, when limited to its own Government. Indeed, according to our citizens, flowing directly from the relation of theory, Governments are in their nature but the State to the General Government, on the trusts, and those appointed to administer them, one side, and its citizens on the other, as already explained, and resting on the most plain and solid reasons. act. trustees or agents to execute the trust powers. The sovereignty resides elsewhere-in the people, not in the Government; and with Passing over what of itself might be consid- us, the people mean the people of the several ered conclusive, the obvious principle, that it States, originally formed into thirteen distinct belongs to the authority which imposed the ob- and independent communities, and now into ligation to declare its extent, as far as those are twenty-four Politically speaking, in reference concerned on whom the obligation is placed, to our own system, there are no other people. shall present a single argument which, of it The General Government, as well as those of self, is decisive. I have already shown that the States, is but the organ of their power; the there is no immediate connexion between the latter that of their respective States, through citizens of a State and the General Govern-which are exercised separately that portion of men, and that the relation between them is power not delegated by the Constitution, and through the State. I have also shown, that in the exercise of which each State has a local and peculiar interest; the former, the joint or- would be its duty, according to the principles gan of all the States, confederated into one established in such cases, instead of attempting general community, and through which they to enforce its construction of its powers, against jointly and concurringly exercise the delegated that of the States, to bring the subject before powers, in which all have a common interest. the States themselves, in the only form winch, Thus viewed, the Constitution of the United according to the provision of the Constitution it States, with the Government it created, is truly can be, by a proposition to amend in the manner and strictly the Constitution of each State, as prescribed in the instrument, to be acted on by much so as its own particular Constitution and them in the only mode they can, by expressly Government, ratified by the same authority, in granting or withholding the contested power. the same mode, and having, as far as its citizens Against this conclusion there can be raised but are concerned, its powers and obligations from one objection, that the States have surrendered, the same source, differing only in the aspect or transferred the right in question. If such under which I am considering the subject, in be the fact, there ought to be no difficulty a the plighted faith of the State to its co-States, establishing it. The grant of the powers deleand of which, as far as its citizens are concern-gated is contained in a written instrument, ed, the State, in the last resort, is the exclusive judge. drawn up with great care, and adopted with the utmost deliberation. It provides that the pow Such, then, is the relation between the State ers not granted, are reserved to the States and and General Government, in whatever light we the people, If it be surrendered or transfermay consider the Constitution, whether as a red, let then the grant be shown, and the concompact between the States, or of the nature troversy terminated; and surely, it ought to be of the legislative enactment by the joint and shown, plainly and clearly shown, before the concurring authority of the States, in their hugh States are asked to admit what if true, would sovereignty. In whatever light it may be not only divest them of a right which, under viewed, I hold it as necessarily resulting, that all its forms, belongs to the principal over his in the case of a power disputed between them, agent, unless surrendered, but which cannot be the Government, as the agent, has no right to surrendered without, in effect, and for all prac. enforce its construction against the construction tical purposes, reversing the relation between of the State, as one of the sovereign parties to them; putting the agent in the place of the printhe Constitution, any more than the State Go- cipal, and the principal in that of the agent; and vernment would have against the people of the which would degrade the States from the high State, in their sovereign capacity, the relation and sovereign condition which they have ever being the same between them. That -such held, under every form of their existence, to be would be the case between agent and principal, inere subordinate and independent corporations. in the ordinary transactions of life, no one will But, instead of showing any such grant, not a doubt, nor will it be possible to assign a reason provision can be found in the Constitution, euwhy it is not as applicable to the case of Gothorising the General Government to exercise any vernment as to that of individuals. The prin control whatever over a State by force, by veto, ciple, in fact, springs from the relation itself, by judicial process, or in any other form—a and is applicable to it in all its forms and charac- most important omission, intended, not accidental; ters. It may, however, be proper to notice a and as will be shown in the course of these redistinction between the case of a single prin- marks, omitted by the dictates of the profoundcipal and his agent, and that of several princi-est wisdom. pals and their joint agent, which might other- The journal and proceedings of the Conven wise cause some confusion. In both cases, as tion which formed the Constitution, afford between the agent and a principal, the con-abundant proof that there was in the body a struction of the principal, whether he be a powerful party, distinguished for talents and single principal, or one of several, is equally influence, intent on obtaining for the General conclusive; but, in the latter case, both the Government a grant of the very power in ques principal and the agent bear relation to the tion, and that they attempted to effect this obother principals, which must be taken into the ject in all possible ways, out fortunately with estimate, in order to understand fully all the out success. The first project of a Consttil❤ results which may grow out of the contest for tion submitted to the Convention (Gov. Banpower between them. Though the construc- dolph's) embraced a proposition to grant power tion of the principal is conclusive against the "to negative ail laws contrary, in the opinion joint agent, as between them, such is not the of the National Legislature, to the articles of case between him and his associates. They the Union, or any treaty subsisting under the both have an equal right of construction, and it authority of the Union; and to call furry the would be the duty of the agent to bring the subject before the principal, to be adjusted according to the terms of the instrument of association, and of the principal to submit to such adjustment. force of the Union against any member of the Union lailing 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 United In such cases, the contract itself is the law, States should have the power to revise the lawS which must determine the relative rights and of the several States that may be supposed to powers of the parties to it. The General Go-infringe the powers exclusively delegated by vernment is a case of joint agency-the joint this Constitution to Congress, and to negative agent of the twenty-four sovereign States. It and annul such as do." The next was subaut 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. ted by Mr. Paterson, of New Jersey, which I do not propose to go into a minute examinaprovided, "if any State, or body of men in any tion of these provisions. They have been so State, shall oppose or prevent the carrying into execution such acis 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 the obedience to such acts, or observance of such treaties." Gen. Hamilton's I have already stated that a distinct proposinext succeeded, which provided that "all laws tion was made to confer the very power in conof the particular States contrary to the Consti- troversy on the Supreme Court, which failed; tution or the laws of the United States to be which, of itself ought to overrule the assumption utterly void; and the better to prevent such of the power by construction, unless sustained laws being passed, the Governor or President by the most conclusive arguments; but when of each State shall be appointed by the General it is added, that this proposition was moved Government, and shall have a negative on the (20th August) subsequent to the period of adlaws about to be passed, in the State of which opting the provisions above cited, vesting the he is Governor or President." court with its present powers, (18th July) and At a subsequent period, a proposition was that an effort was made at a still later period, moved and referred to a committee, to provide (23d August) to invest Congress with a negative that "the jurisdiction of the Supreme Court on all State laws, which, in its opinion, might shall extend to all controversies between the interfere with the general interest and harmony United States and any individual State;" and, of the Union, the argument would seem too at a still later period, it was moved to "grant conclusive against the powers of the court, to power to negative all laws passed by the seve- be overruled by construction, however strong. ral States, interfering, in the opinion of the Le- Passing by, however, this, and also the obgislature, with the general harmony and interest jection, that the terms cases in law and equity, of the Union, provided that two-thirds of the are technical, embracing only questions bemembers of each house assent to the same;" tween parties, amenable to the process of the which, after an ineffectual attempt to commit, court, and of course, excluding questions bewas withdrawn. tween the State and the General Government; I do not deem it necessary to trace through an argument which has never been answered; the journals of the Convention the fate of these there remains another objection perfectly convarious propositions. It is sufficient, that they clusive. were moved, and failed, to prove conclusively, The construction, which would confer on the in a manner never to be obliterated, that the Supreme Court the power in question, rests on Convention which framed the Constitution was the ground that the Constitution has conferred opposed to granting the power to the General on that tribunal the high and important right Government in any form through any of its De- of deciding on the constitationality of laws. partments, legislative, executive or judicial, to That it possesses this power I do not deny, but coerce or control a State, though proposed in I do utterly, that its conferred by the Constituall conceivable modes, and sustained by the tion, either by the provision above cited, or any most talented and influential members of the other. It is a power derived not from the Conbody. This, one would suppose, ought to stitution, but from the necessity of the case; settle forever the question of the surrender, or and so far from being possessed by the Supreme transfer of the power, under consideration; and Court exclusively, or peculiarly, it not only besuch in fact would be the case, were the opin-longs to every court of the country, high or ion of a large portion of the community not low, civil or criminal, but to all foreign courts biassed, as in fact it is, by interest. A majori- before which a case may be brought, involving ty have a direct interestin enlarging the power of the construction of a law, which may conflict the Government, and the interested adhere to with the provisions of the Constitution. The power with a pertinacity which bids defiance to reason is plain. Where there are two sets of truth, though sustained by evidence as conclu-rules prescribed in reference to the same subsive as mathematical demonstration; and accor-ject, one by a higher, the other by an inferior dingly, the advocates of the powers of the authority, the judicial tribune callea in to deGeneral Government, notwithstanding the im- cide on the case, must unavoidably determine, pregnable strength of the proof to the contra- should they conflict, which is the law; and that ry, have boldly claimed on construction, a necessity compels it to decide, that the rule power, the grant of which was so perseveringly prescribed by the inferior power, if, in its opisought and so sternly resisted by the Conven- nion, consistent with that of the higher, is ton. They rest the claim on the provisions in void, be the conflict between the Constitution the Constitution, which declare, "that this Con- and a law, or between a charter and the bystitution and the laws made in pursuance there-laws of a corporation. The principle and of, shall be the supreme law of the land," and source of authority are the same in both cases. that the judicial power shall extend to all Being derived from necessity, it is restricted withcases in law and equity arising under this Con-in its limits, and cannot pass an inch beyond its stitution, the laws of the United States, and narrow confines of deciding in a case before the treaties made, or which shall be made under court, and of course, between parties amenable heir authority." to its process, excluding thereby political ques |