« ForrigeFortsett »
power, to be decided before the judicial tri. But, there yet remains another, and I doubt bunals of the couniry, and not onihe field of not, insuperable harrier, to be found in the battle. In such contest there would be no ob- judicial irbunals 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 ine execution of juriicial process. Leave these as the mediator, appointed by the Constitalitu untouched, and all the militia that could be call between the Stales and the General Coveraed forth, backed by a regular force of ren times ment; and though I cannot doubt there is a the pumber of our siall but gallant and patri- natural bias on its part lowords the powers of otic army, could have not the slightest effect the latter, yet I must greatly lower my opinto 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 Constiti. very foundation of this, our free, constitution- tion, and particularly of that pure and uprigt al, and legal system of govzrnment, and rear, magistrate, who has so long, and with such die in its place, a military despotism.
tinguished honor to himself and the Union, prom 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 be the troublesome interfe rence 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 resort to land to water; as if the Government could have forse would be in such a contest, could be one particle more right to coerce a State by sustained by the sanctien of its authority
. In 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. 16 in the not be much less than the other. The jury shape of blockade, ihe vessels seized under it trial, at least, the local jury, (the trial by the must be condeinned, 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 ques. the 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 walers of the State. If the former be another; and, so if we pass from water to land, atiempted!, 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 beligerent right. It presupposes a under the review of the courts of the Unsorny state of war, and, unless there be war, (war in and the unconstitutionality would be soglaning due form as prescribed by the Constitution.) that the cxecutive and legislative departments, the order for blockade would not be respected in their attempt to coerce, shouhl eithez make by other nations, or their subjects. Their vese an attempt, su 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 ( tuled under the order of blockade, through the claim it perfectly clear, that so long as a State return of indemniły, against the General Government; its federal relations -so long, in a word, as it an?, it 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 T'he other mode, the abolition of the poris be before the courts and juries; and every rif entry of the State, would also have its diffi- attempt, in whatever form, whether by band cilties - 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 palpabes 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 thut view, as between the parties, would struction. There will be another difficulty. --- supercede the Constitution itself that nulisIf seizures be made in port or within the dis cation is secession, and would, consequens, tance assigned by the laws of the nations, as place the State, as to the others, in the relle the limits of a State, the trial must be in the tion of a foreign State. Such clearly would Slate, with all tlie embarrassments of its courts be the effect of secession; but it is equal and juries; while beyond the ports and the clear, that it would place the State beyond the Jistance 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 sites over het foreign vessel it 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 u foreign State, dirested of all federal comcourse, with all the difficulties belonging to nection, and having none other between them that mode of coercion.
but those belonging to the laws of natinus.
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 crealet; 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 rnembers, 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 stitulional 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 iinpression, 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 tutally 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 ihe 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 Siates, 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 fof 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 associatim 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 wher: 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 principul, made in due Nullification leaves the members of the asform, that un act of the ogent, trunscending his sociation or union, in the condition it found power, is null and void. It is a rigiit 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 furms, 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, aud 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 bene. on the part of its, membersor other causes. Its fit, but is released from the burden and control; direct and immediale object as it comcerns the with and can no longer be dealt with by his former drawing member, is the dissolution of the associu- associates, as one of its members. tion or union. On the contrary, the object of Such are clearly the differences between nullification is to contine 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 fnor diminished, and, thereby, the Union itsell 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 porc twenty-four States, and the General Govern- by consolidation, as by disunion itself,) world ment, their joint agent, is too obvious, after be, I would say, had' I not great respect fe 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 thany who acknowledge the right I'might here finish the task which you . of a State to secede, but deny its right to mul. 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 pores presuppose the same structure of the Govern- against the encroachment of the General Cou ment, that is a Union of the States, as forining vernment; and, I may add, that the right sie 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 ethio to determine, for her citizens, the extent of the ent, whether contested before courts, or at powers 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 differe without adverting to which it is impossible to ence, then, between those who admit secession, understand the full effects of Nullification
, en and deny nullification, and those who admit the real character of our political institutoes; both, is, that one acknowledges that the de- I allude to the power which the States, * 1 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 not prvnull and void, would be obligatory on her citi- ceed to make some remark, though I fear at Žens, 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 Com they 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
, with act 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 Corwould have any obligation; while the other ac- stitution, were both submitted for ratification w 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 me tent 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 three The 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 import can 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
, unkes 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 prii the object is to destroy the Union itself; while sion, then, contains a highly important comthe other, in giving equal weight to both, pre- cession, by each to all of the States
, of a per fers 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 confederst And all this strange distinction originates, as fared 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 the 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 repeiring the Union itself. To nullify the Constitution, power. It was foreseen, that expericnet if I may be pardoned the solecism, would in- would probably disclose errors in the Cen:titsdeed 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 wodid could not be in and out of the Union at the require corresponding changes in the Costi same time; but the act would be secession.
tution, that the irregular and conflicting more · But to apply it to nullification, properly un- inents of the bodies, composing so'complex i 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 unanimno to preserve them as they are, neither increased consent of all the states to meet these various
contingencies, would be placing the whole too explained, the consent of each State would much under the control of the parts, to remedy have been requisite to any additional grant of which, this great additional power was given power, or o her amendment of the Constitution. to the amending, or repairing power--this vis While, then, nullification would enable a State medicatrix of the system.
to arrest the exercise of a power not delegated, To understand correctly the nature of this the right of self government, if unmodified, concession, we must not confound it with the would enable her to prevent the grant of a powdelegated powers conferred on the General er not delegated; and, thus, her conception of Government, and to be exercised by it, as the what power ought to be granted, would be as joint agent of the States. They are essentially conclusive against the co-states, as her condifferent. The former is, in fact, but a modifi-struction of the powers granted, is against the cation of the original sovereign power, residing General Government. In that case, the danger in the people of the several States of the creating would be on the side of the States or reserved or Constitution making power itself, intended, as powers. The amending power, in effect, corstated, to facilitate and strengthen its action, und rects this danger. In virtue of these provi. not change its character. Though modified, it is sions which it contains, the resistance of a State not delegated. It still resides in the States and is still to a power, cannot finally prevail, unless she to be exercised by them, and not by the Government be sustained by one fourth of the co-States;
I propose next to consider this iinportant mo. and in the same degree that her resistance is dification of tbe sovereign powers of the States, weakened, the power of the General Govern. in connection with the right of rullification. ment, on the side of the delegated powers, is
It is acknowledged on all sides, that the du- sirengthened. It is true that the right of a State ration and stability of our system depends on to arrest an unconstitutional act, is, of itself, maintaing the equilibrium between the States complete against the Government; but it is and the General Government, the reserved and equally so, that the controversy may, in effect, delegated powers. We know that the conven- be determined against her, by a grant of the tion which formed the Constitution, and the va. contested powers, by three fourths of the rious State conventions which adopted it, as far states. It is thus by this simple, and apparentas we are informed of their proceedings, felt ly incidentul contrivance, the right of a State to the deepest solicitude on this point. They nullify an unconstitutional act, su essential to saw and felt that there would be an incessant the protection of the reserved rights, but cnoflict between them, which would menace the which, unchecked, might too much debilitate existence of the system itselt, unless properly the Government, is counterpoised, not by weakguarded. The contest between the States and ening the energy of a State in her direct resistGeneral Government, the reserved and delega- ance to the encroachment of the Government, ted rights, will, in truth, be a conflict between or by giving to the latter a direct control over the great predominant interests of the Union on the States as proposed in the convention, but une side, controlling and directing the move in a manner infinitely more safe, and, if I may ments of the Government, and seeking to en. be permitted su to express myself, scientific, by large the delegated powers, and thereby ad. strengthening the amending or repairing power, vance their power and prosperity; and, on the the power of correcting all abuses or derangeother, the minor interests rallying on the rements by whatever cause, or from whatever served powers as the only means of protecting quarter. themselves against the encroac!:ment and op. To sum all in a few words. The General Govpression of the other. In such a contest, with ernment has the right, in the first instance, of out the most effectual check, the stronger will construing iis own powers, which if final and absorb the weaker interests; while, on the other conclusive, as is supposed by many, would have hand, without an adequate provision of some placed the reserved powers at the mercy of the description or other, the efforts of the weaker delegated, and thus destroy the equilibrium of to guard against the encroachments and oppres- the system. Against that, a State has the right sion of the stronger, might permanently de. of nullification. This right on the part of the range the system.
State, if not counterpoised, might tend too On the side of the reserved powers, no check strongly to'weaken the General Government more effectual can be found or desired than and derange the system. To correct this, the nullification, or the right of arresting, within amending or repairing power is strengthened. the limits of a State, the exercise by the Gene. The former cannot be made too strong, if the ral Government of any powers but the delega- latter be proportionably so. The increase of the ted; a right which, if the States bc true to latter is, in effect, the decrease of the former. theinselves, and faithful to the Constitution, will Give to a majority of the States a right of aever prove, on the side of the reserved powers, mendment, and the asserting power on the an effectual protection to both.
part of the State, would, in fact, be annulled. Nor is the check on the side of the delega- - The amending power and the powers of ted, less perfect. Though less strong, it is am- the Government would, in that case, be, in ple to guard against encroachments; and is as reality, in the same hands. The same majority strong as the nature of the system would bear, that controlled the one, would the other; anii as will appear in the sequel. It is to be found the power arrested, as not granted, would be in the amending power. Without the inodifi- immediately restored in the shape of a grant. cation which it contains of the rights of selt this modification of the right of self-governgovernment on the part of the States, as already 'ment, on the part of the States is, in fact, the