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tions, which of the two is in reality the law, the I have now, I trust, conclusively shown that act of Congress or the Constitution, when, on a State has a right in her sovereign capacity in their face, they are inconsistent; and yet, from Convention, to declare an unconstitutional act Abis resulting, limited power derived from ne- of Congress to be null and void, and that such cessity, and held in common with every court in declarations would be obligatery on her ctithe world, which by po-sibility may take cog-zens, as highly so as the Constitution itself, and nizance of a case involving the interpretation of conclusive against the General Government our Constitu ion and laws, it is attempted to which would have no right to enforce its cosconfer on the Supreme Court a power which struction of its powers against that of the State would work a thorough and radical change in our system, and which power was positively refused by the convention.

I next propose to consider the practical of fect of the exercise of this high and important right, which as the great conservative principle The opinion that the General Government of our system, is known under the various names has the right to enforce its construction of its of nullification, interposition, and State veto, in powers against a State, in any mode whatever, reference to its operation viewed under diffe is, in truth, founded on a fundamental miscon-ent aspects, nullification as annulling an uncon ception of our system. At the bottom of this, stitutional act of the General Government as fir and in fact almost every other misconception, as the State is concerned; interposition as as to the relation between the States and the throwing the shie'd of protection between the General Government, lurks the radical error, citizens of a State and the encroachments of that the latter is a national, and not, as in reali- the Government; and veto, as arresting or exty it is, a confederated Government; and that it hibiting its unauthorized acts within the hits derives its powers from a higher source than of the State. the States. There are thousands influenced by The practical effect, could the right be con these impressions without being conscious of it, sidered as one fully recognized, would be plain and who, while they believe themselves to be and simple, and has already, in a great measure, opposed to consolidation, have infused into their been anticipated. If the State has a right, conception of our constitution, almost all the there must, of necessity, be a corresponding ingredients which enter into that form of Gov- obligation on the part of the General Governernment. The striking difference between the ment to acquiesce in its exercise; and of course, present Government, and that under the old it would be its duty to abandon its power, at confederation, (I speak of governments as dis- least as far as the State is concerned, and to tinct from constitutions,) has mainly contributed apply to the States themselves, according to to this dangerous impression. But, however the form prescribed in the Constitution, to ob dissimilar their Governments, the present con- tain it by a grant. It granted, acquiescence, stitution is as far removed from consolidation, and then, would be a duty on the part of the State; is as strictly and as purely a confederation, as and, in that event, the contest would termithe one which it superceded. nate in converting a doubtful constructive pow Like the old Confederation, it was formed er into one positively granted; but, should it and ratified by State authority. The only dif- not be granted, no alternative would remain ference in this particular is, that one was ratified for the General Government, hut its permanent by the people of the States, the other by the abandonment. In either event, the controver State Governments; one forming more strictly sy would be closed, and the Constitution fixed; an Union of the State Governments, the other a result of the utmost importance to the steady of the States themselves; one, of the agents ex- operation of the Government, and the stability ercising the powers of sovereignty, and the of the system, and which can never be attaitother of the sovereigns themselves, but both ed, under its present operation, without the were unions of political bodies, as distinct from recongnition of the right as experience has an union of the people individually. They are shown. indeed both confederations; but the present in a From the adoption of the Constitution we higher and purer sense than that which it suc- have had but one continued agita ion of const ceeded, just as the act of a sovereign is higher tutional questions, embracing some of the most and more perfect than that of his agent; and it important powers exercised by the Govern was doubtless in reference to this difference ment; and yet, in spite of all the ability and that the preamble of the constitution, and the force of argument displayed in the various dis address of the Convention, laying the constitu- cussions, backed by the high authority claimed tion before Congress, speak of consolidating and for the Supreme Court, to adjust such contro perfecting the Union; yet this difference, which versies, not a single constitutional question of a while it elevated the General Government, in political character, which has ever been agit relation to the State Governments, placed it ed during this long period, has been settled more immediately in relation of the creature and in the public opinion, except that of the th agent of the States themselves, by a nutural mis- constitutionality of the Alien and Sedition Law; conception, has been the principal cause of the and what is remarkable, that was settled aggi impression so prevalent of the inferiority of the the decisions of the Supreme Court. The t States to the General Government, and of the dency is to increase, and not to diminish this consequent right of the latter to coerce the for- conflict for power. New questions are yestly mer. Raised from below the State Governments added, without diminishing the old, while the it was conceived to be placed above the States contest becomes more obstinate as the liste themselves. creases; and, what is highly ominous, more sec

tional. It is impossible that the Government bunal of the country, the State must prevail, can last under this increasing diversity of opi- unless, indeed, jury trial could be eluded, by nion, and growing uncertainty as to its power, the refinement of the court, or by some other in relation to the most important subjects of levice, which, however, guarded as it is by legislation; and equally so, that this dangerous the ramparts of the Constitution, would, I hold, state can terminate, without a power some- be impossible. The attempt to elude, should where to compel, in effect, the Government to it be made, would itself be unconstitutional; abandon doubtful constructive powers, or to and, in turn, would be annulled by the sove convert them into positive grants, by an amend-reign voice of the State. Nor would the right ment of the Constitution; in a word, to substi- of appeal to the Supreme Court, under the Jutute the positive grants of the parties them. diciary act, avail the General Government. If selves, for the constructive powers interpolated taken, it would but end in a new tral, and that by the agents. Nothing short of this, in a sys-in another verdict, against the Government; tem constructed as ours is, with a double set of but whether it may be taken, would be optional agents, one for local and the other for general with the State. The Court itself has decided, purposes, can ever terminate the conflict for that a copy of the record is requisite to review power, or give uniformity and stability to its a judgment of a State court, and, if necessary, action. the State would take the precaution to prevent,

Such would be the practical and happy ope- by proper enactments, any means of obtaining ration were the right recognised; but the case a copy. But if obtained, what would it avail, may be far otherwise, and as the right is not against the execution of the penal enactments only denied, but violently opposed, the Gene- of the State, intended to enforce the declararal Government, so far from acquiescing in its tion of nullification? The judgment of the exercise, and abandoning the power, as it ought, State Court would be pronounced and execu may endeavor, by all the means within its com- ted, before the possibility of a reversal; and mand, to enforce its construction against that of executed, too, without responsibility incurred the State. It is under this aspect of the ques- by any one.

tion that I now propose to consider the practi- Beaten before the courts, the General Gocal effect of the exercise of the right, with the vernment would be compelled to abandon its view to determine which of the two, the State unconstitutional pretensions, or resort to force or the General Government, must prevail in the-a resort, the difficulty (I was about to say, conflict, which compels me to revert to some the impossibility) of which, would very soon of the grounds already established. fully manifest itself, should folly or madness

I have already shown that the declaration of ever make the attempt. nullification would be obligatory on the citizens In considering this aspect of the controversy, of the State, as much so in fact, as its declara. I pass over the fact, that the General Governration ratifying the Constitution, resting, as it ment has no right to resort to force against a does, on the same basis. It would to them be State-to coerce a sovereign member of the the highest posssible evidence that the power Union-which, I trust, I have established becontested was not granted, and, of course, that yond all possible doubt. Let it, however, be the act of the General Government was uncon-determined to use force, and the difficulty stitutional. They would be bound, in all the would be insurmountable, unless, indeed, it be relations of life, private and political, to respect also determined to set aside the constitution, and and obey it; and, when called upon as jury-to subvert the system to its foundations. men, to render their verdict accordingly, or, Against whom would it be applied? Conas Judges, to pronounce judgment in confor- gress has, it is true, the right to call forth the mity to it. The right of jury trial is secured militia "to execute the laws, and suppress inby the Constitution (thanks to the jealous spi-surrections;" but there would be no law resistrit of liberty doubly secured and fortified) and, ed, unless, indeed, it be called resistance for with this inestimable right-inestimable, not the juries to refuse to find, and the courts to only as an essential portion of the Judicial tri- render judgment, in conformity to the wishes bunals of the country, but infinitely more so, of the General Government; no insurrection to considered as a popular, and still more, a local surpress; no armed force to reduce; not a representation, in that department of the Go-sword unsheathed; not a bayonet raised; nune, vernment which, without it, would be the far- absolutely none, on whom force could be used; thest removed from the control of the people; except it be on the unarmed citizens, engaged and, a fit instrument to sap the foundation of peacefully and quietly in their daily occupathe system; with, I repeat, this inestimable tions.

right, it would be impossible for the General No one would be guilty of treason ("levying Government, within the limits of the State, to war against the United States, adhereing to execute legally the act nullified, or any other their enemies, giving them aid and comfort,") passed with a view to enforce it; while, on the or any other crime, made penal by the Constituother hand, the State would be able to enforce tion or the laws of the United States. legally and peaceably its declaration of nullifica- To suppose that force could be called in, tion. Sustained by its court and juries, it implies, indeed, a great mistake, both as to the would calmly and quietly, but successfully, nature of our Government and that of the conmeet every effort of the General Government troversy. It would be a legal and constitutional to enforce its claim of power. The result contest, a conflict of moral, and not physical would be inevitable. Before the judicial tri- force-a trial of constitutional, not military

power, to be decided before the judicial tri- But, there yet remains another, and, I doubt bunals of the country, and not on the field of not, insuperable harrier, to be found in the battle. In such contest there would be no ob- judicial trbunals of the Union, against all the ject for force, but those peaceful tribunals-schemes of introducing force, whether by land nothing on which it could be employed, but in or water, Though I cannot concur in the putting down courts and juries, and preventing opinion of those who regard the Supreme Court the execution of judicial process. Leave these as the mediator, appointed by the Constitution, untouched, and all the militia that could be call between the States and the General Coverned forth, backed by a regular force of ten times ment; and though I cannot doubt there is a the number of our small but gallant and patri-natural bias on its part towords the powers of otic army, could have not the slightest effect the latter, yet I must greatly lower my opinion on the result of the controversy; but, subvert of that high and important tribunal, for intellithese by an armed body, and you subvert the gence, justice, and attachment to the Constite very foundation of this, our free, constitution- tion, and particularly of that pure and upright al, and legal system of government, and rear, magistrate, who has so long, and with such dis in its place, a military despotism. tinguished honor to himself and the Union, pres Feeling the force of these difficulties, it is pro-sided over its deliberations with all the weight posed, with the view, I suppose, of disembar that belongs to an intellect of the first order, rassing the operation as much as possible of united with the most spotless integrity, to bethe troublesome, interference of courts and lieve, for a moment, that an attempt, so plainly juries, to change the scene of coercion from and manifestly unconstitutional as a resert to land to water; as if the Government could have force would be in such a contest, could be one particle more right to coerce a State by sustained by the sanctien of its authority. la water, than by land; but unless I am greatly whatever form force may be used, it must predeceived, the difficulty on that element will sent questions for legal adjudication. If, in the not be much less than the other. The jury shape of blockade, the vessels seized under it trial, at least, the local jury, (the trial by the must be condemned, and thus would be present vicinage,) may indeed, be evaded there; but in ed the question of prize or no prize; and with its place other and not much less formidable its the legality of the blockade. If, in that of a obstacles must be encountered. repeal of the acts, establishing ports of entries There can be but two modes of coercion rea in the State, the legality of the seizure must be sorted to by water; blockade, and abolition of determined, and that would bring up the questhe ports of entry of the State, accompanied by tion of the constitutionality of giving a prefer penal enactments, authorising seizures for enter-ence to the ports of one State over those of ing the waters of the State. If the former be another; and, so if we pass from water to land, attempted, there will be other parties besides we will find every attempt there to substitute the General Government and the State. Block force for law, must, in like manner, come ade is a belligerent right. It presupposes a under the review of the courts of the Union, state of war, and, unless there be war, (war in and the unconstitutionality would be so glaring due form as prescribed by the Constitution.) that the executive and legislative departments, the order for blockade would not be respected in their attempt to coerce, should either make by other nations, or their subjects. Their ves an attempt, so lawless and desperate, would be sels would proceed directly for the blockaded without the support of the judicial department. port, with certain prospects of gain; if seized I will not pursue the question farther, as I hold under the order of blockade, through the claim it perfectly clear, that so long as a State retains of indemnity against the General Government; its federal relations--so long, in a word, as it and, if not, by a profitable market without the continues a member of the Union, the contest exaction of duties. between it and the General Government must The other mode, the abolition of the ports be before the courts and juries; and every of entry of the State, would also have its diffi- attempt, in whatever form, whether by hand culties.-The Constitution provides that "no or water, to substitute force, as the arbiter in preference shall be given by any regulation of their place, must fail. The unconstitutionality commerce, or revenue, to the ports of one of the attempt would be so open and palpable, State, over those of another; nor shall vessels that it would be impossible to sustain it. bound to or from one State be obliged to enter, There is indeed one view, and one only, of clear, or pay duties in another;" provisions too the contest, in which force could be employed: clear to be eluded even by the force of con- but that view, as between the parties, would struction. There will be another difficulty.- supercede the Constitution itself; that nullifIf seizures be made in port or within the dis- cation is secession, and would, consequently, tance assigned by the laws of the nations, as place the State, as to the others, in the rel the limits of a State, the trial must be in the tion of a foreign State. Such clearly would State, with all the embarrassments of its courts be the effect of secession; but it is equally and juries; while beyond the ports and the clear, that it would place the State beyond the distance to which I have referred, it would be pale of her federal relations, and thereby, all difficult to point out any principle by which a control on the part of the other States over her. foreign vessel at least, could be seized, except She would stand to them simply in the relation as an incident to the right of blockade, and, of of a foreign State, divested of all federal concourse, with all the difficulties belonging to 'nection, and having none other between them but those belonging to the laws of nations.

that mode of coercion.

Standing thus towards one another, force might cending them; not with the view of destroying indeed be employed against a State, but it must the delegated or trust power, but to preserve it be a belligerent force, preceded by a declara- by compelling the agent to fulful the object for tion of war, and carried on with all its forma- which the agency or trust was createl; and is lities. Such would be the certain effect of applicable only to cases where the trust or delesecession; and if nullification be secession-if gated powers are transcended on the part of the it be but a different name for the same thing-agent. Without the power of secession, an assuch, too, must be its effect; which presents sociation or union, formed for the common the highly important question, are they in fact good of all the members, might prove ruinous the same, on the decision of which depends to some, by the abuse of power on the part the question whether it be a peaceable and con- of the others; and without nullification, the stitutional remedy, that may be exercised agent, might under the colour of construction, without terminating the federal relations of the assume a power never intened to be delegated, State, or not? or to pervert those delegated, to objects never

I am aware that there is a considerable and intended to be comprehended in the trust, to respectable portion of our State, with a very the ruin of the principal, or, in case of a joint large portion of the Union, constituting, in fact, agency, to the ruin of some of the principals. a great majority, who are of the opinion, that Each has, thus, its appropriate object; but obthey are the same thing, differing only in name; jects in their nature are very dissimilar; so much and who, under that impression, denounce it so, that in case of an association or union, where as the most dangerous of all doctrines, and the powers are delegated to be executed by yet, so far from being the same, they are, un- an agent, the abuse of power, on the part of less indeed I am greatly deceived, not only the agent, to the injury of one or more of perfectly distinguishable, but totally dissimi- members, would not justify secession on their lar in their nature, their object, and effect; and part. The rightful remedy in that case that, so far from deserving the denunciation, so would be nullification. There would be neither properly belonging to the act with which it is right no pretext, to secede; no right, because confounded, it is, in truth, the highest and most secession is applicable only to the acts of the precious of all the rights of the States, and es- members of the association or union, and not sential to preserve that very Union, for the sup- to the act of the agent; nor pretext, because posed effect of destroying which, it is so bitter- there is another and equally efficient remedy, ly anathematised. short of the dissolution of the association or

I shall now proceed to make good my asser-union, which can only be justified by necessity. tion of their total dissimilarity. Nullification may, indeed, be succeeded by se First, they are wholly dissimilar in their na- cession. In the case stated should the other ture. One has reference to the parties themselves, members undertake to grant the power nulliand the other to their agents. Secession is a fied, and should the nature of the power be withdrawal from the Union; a separation from such as to defeat the object of the association or partners, and, as far as depends on the number union, at least, as far as the member nullifying withdrawing, a dissolution of the partnership. is concerned, it would then become an abuse It presupposes an association, an union of seve. of power on the part of the principals; and ral States or individuals, for a common object. thus present a case where secession would Wherever these exist, secession may, and apply; but in no other, could it be justified, where they do not, it cannot. Nullification, except it be for a failure of the association or on the contrary, presupposes the relation of prin- union to effect the object for which it was cipal and agent; the one granting a power to created. independent of any abuse of power. be executed, the other appointed by him, with It now remains to show, that their effect is authority to execute it; and is simply a decla- as dissimilar as their nature or object. ration on the part of the principal, made in due Nullification leaves the members of the asform, that an act of the agent, transcending his sociation or union, in the condition it found power, is null and void. It is a right belonging them, subject to all its burdens, and entitled to exclusively to the relation between principal all its advantages, comprehending the member and agent, to be found wherever it exists, and nullifying, as well as the others; its object in all its forms, between several, or an associ- being, not to destroy, but to preserve, as has ation of principals and their joint agents, as been stated. It simply arrests the act of the well as between a single principal and his agent. agent, as far as the principal is concerned, The difference in their object is no less leaving, in every other respect, the operation of striking than in their nature. the joint concern as before; secession, on the The object of secession is to free the with- contrary, destroys, as far as the withdrawing drawing member from the obligation to the member is concerned, the association or union, association or union; and is applicable to cases, and restores him to the relation he occupied where the intention of, the association, or towards the other members before the existence union has failed, either by an abuse of powre of the association or union. He loses the beneon the part of its, membersor other causes. Its fit, but is released from the burden and control; direct and immediate object,as it concerns the with- and can no longer be dealt with by his former drawing member, is the dissolution of the associa associates, as one of its members. tion or union. On the contrary, the object of Such are clearly the differences between nullification is to confine the agent within the li-them-differences so marked, that instead of mits of its powers by arresting his acts trans- being identified as supposed, they form a con

trast, in all the aspects in which they can be nor diminished, and, thereby, the Union itself regarded. The application of these remarks nor the Union may be as effectually destroyed to the political association or Union of these by increasing, as by diminishing its powerstwenty-four States, and the General Govern- by consolidation, as by disunion itself,) would ment, their joint agent, is too obvious, after be, I would say, had I not great respect for what has been already said, to require any ad many who do thus apply it, egregious trifing ditional illustration; and I will dismiss this part with a grave and deeply important constitutional of the subject with a single additional remark. subject.

There are many who acknowledge the right I might here finish the task which your reof a State to secede, but deny its right to nul- quest imposed; having, I trust, demonstrated, lify; and yet, it seems impossible to admit the beyond the power of refutation, that a State one without admitting the other. They both has the right to defend her reserved powers presuppose the same structure of the Govern- against the encroachment of the General Goment, that is a Union of the States, as forming vernment; and, I may add, that the right is in political communities, the same right on the its nature peaceable, consistent with the feder part of the States, as members of the Union, al relations of the State, and perfectly effici to determine, for her citizens, the extent of the ent, whether contested before courts, or atpowers delegated, and those reserved, and, of tempted to be resisted by force. But there is course, to decide whether the Constitution has another aspect to the subject, not yet touched, or has not been violated. The simple differ- without adverting to which it is impossible to ence, then, between those who admit secession, understand the full effects of Nullification, or and deny nullification, and those who admit the real character of our political institutions; both, is, that one acknowledges that the de- I allude to the power which the States, as a claration of a State pronouncing that the Con- confederated body, have acquired directly stitution has been violated, and is, therefore, over each other; and on which I will now pronull and void, would be obligatory on her citi- ceed to make some remark, though I fear at zens, and would arrest all the acts of the Go- the hazard of fatiguing you. vernment, within the limits of the State; while Previous to the adoption of the present Conthey deny,that a similar declaration, made by the stitution, no power could be exercised over any same authority, and in the same manner, that an State, by any other, or all of the States, withact of the Government has transcended its pow-out its own consent; and we, accordingly, find ers, and that it is, therefore, null and void, that the old confederation and the present Conwould have any obligation; while the other ac-stitution, were both submitted for ratification to knowledges the obligation in both cases. The each of the States, and that each ratified for one admits that the declaration of a State as itself, and was bound only in consequence of senting to the Constiuttion bound her citizens, its own particular ratification, as has been al and that her declaration can unbind them; but ready stated. The present Constitution has denies that a similar declaration, as to the ex-made, in this particular, a most important motent she has in fact bound them, has any obli- dification in their condition. I allude to the gatory force on them; while the other gives equal provision which gives validity to amendments force to the declaration in the several cases. of the Constitution, when ratified by threeThe one denies the obligation where the ob fourths of the States--a provision which has ject is to preserve the Union, in the only way it not attracted as much attention as its importcan be, by confining the Government formed to ance deserves. Without it, no change could execute the trust powers, strictly within their have been made in the Constitution, unless limits, and to the objects for which they were with the unanimous consent of all the States, delegated, though they give full force where in like manner as it was adopted. This provi the object is to destroy the Union itself; while sion, then, contains a highly important conthe other, in giving equal weight to both, pre- cession, by each to all of the States, of a porfers the one because it preserves, and rejects the tion of the original and inherent right of selfother because it destroys; and yet the former is government, possessed, previously, by each the Union; and the latter the disunion party! separately, in favor of their general confederat And all this strange distinction originates, as far ed powers, giving thereby increased energy as I can judge, in attributing to nullification to the States in their united capacity, and what belongs exclusively to secession. The weakening them in the same degree in their difficulty, as to the former, it seems, is that a separate. Its object was to facilitate and State cannot be in and out of the Union at the strengthen the action of the amending, or (to same time. This is, indeed, true, if applied to speak a little more appropriately as it regards secession-the throwing off the authority of the point under consideration) the repairing the Union itself. To nullify the Constitution, power. It was foreseen, that experience if I may be pardoned the solecism, would in- would probably disclose errors in the Constite deed be tantamount to disunion; and as applied tion itself, that time would make great changes to such an act, it would be true, that a State in the condition of the country, which would could not be in and out of the Union at the require corresponding changes in the Constisame time; but the act would be secession. tution, that the irregular and conflicting moveBut to apply it to nullification, properly un-ments of the bodies, composing so complex a derstood, the object of which, instead of resist- system, might cause derangements, requiring ing or diminishing the powers of the Union, is correction, and that to require the unanimous to preserve them as they are, neither increased consent of all the States to meet these various

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