Econlib

The Library

Other Sites

 Front Page arrow Titles (by Subject) arrow TO JOSEPH C. CABELL. mad. mss. - The Writings, vol. 9 (1819-1836)

Return to Title Page for The Writings, vol. 9 (1819-1836)

Search this Title:

Also in the Library:

Subject Area: Political Theory
Topic: The American Revolution and Constitution

TO JOSEPH C. CABELL. mad. mss. - James Madison, The Writings, vol. 9 (1819-1836) [1910]

Edition used:

The Writings of James Madison, comprising his Public Papers and his Private Correspondence, including his numerous letters and documents now for the first time printed, ed. Gaillard Hunt (New York: G.P. Putnam’s Sons, 1900). Vol. 9.

Part of: The Writings of James Madison, 9 vols.

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


TO JOSEPH C. CABELL.mad. mss.

Montpr. Dec. 27 1832. 4 o’c p. m.

Dear Sir

I have this moment only recd. yours of the 22d.1 I regret the delay as you wished an earlier answer than you can now have, tho’ I shall send this immediately to the P. O. My correspondence with Judge Roane originated in his request that I wd. take up the pen on the subject he was discussing or about to discuss. Altho’ I concurred much in his views of it, I differed as you will see with regard to the power of the Supreme Court of the U. S. in relation to the State Court. This was in my last letter which being an answer did not require one, and none was recd. My view of the supremacy of the Fedl. Court when the Constn was under discussion will be found in the Federalist. Perhaps I may, as cd not be improper, have alluded to Cases (of which all Courts must judge) within the scope of its functions. Mr. Pendleton’s opinion that there ought to be an appeal from the Supreme Court of a State to the Supreme Court of the U. S. contained in his letter to me, was I find avowed in the Convention of Va., and so stated by his Nephew latterly in Congs. I send you a copy of Col. J. Taylor’s argt. on the Carriage tax: if I understand the beginning Pages he is not only high-toned as to Judl. power, but regards the Fedl. Courts as the paramount Authy. Is it possible to resist the nullifying inference from the doctrine that makes the State Courts uncontrollable by the Supr. Ct. of the U. S.?

I cannot lay my hand on my letter to Judge Roane. The word omitted, I presume, is argt. It is a common Compt among the French as you know to say you have given all its lustre &c. Will it not suffice for you to say, You had formerly a sight of the letter or of a Copy of it. Shd the fact be denied, meet it as you please.

My letter was not written to A. Everett, but to his brother in Congs in answer to one from him. It was his Act in handing it to the Review. As his motives were good, I wd not wish his feelings to be touched by anything sd on the occasion. What is sd in that letter, as to the origin of the Constn I considered as squaring with the account given in the Fedlist. of the mixture of Natl. & Federal features in the Constitution. That view of it was well recd at the time by its friends, and I believe has not been controverted by the Repn party. A marked & distinctive feature in the Resoln of 98 is that the plural no is invariably used in them & not the singular, and the course of the reasoning, required it.

As to my change of opinion abt. the Bank, it was in conformity to an unchanged opinion that a certain course of practice required it.

The tariff is unconnected with the resos of 98. In the first Congs. of 89 I sustained & have in every situation since adhered to it. I had flattered myself, in vain it seems, that whatever my political errors may have been, I was as little chargeable with inconsistencies, as any of my fellow laborers thro’ so long a period of political life. Please return me Taylor’s pamphlet, and the letter also wch. I observe is not fit to be preserved; and I will if you think it worth while, send a copy. I have written it with sore eyes & at night as well as In much haste. Yours with cordial regards

TO ALEXANDER RIVES.1

Montpelier, [January, 1833.]

(Confidential.)

I have received the letter signed “A Friend of Union and State Rights,” enclosing two Essays under the same signature.

It is not usual to answer communications without the proper names to them. But the ability and the motives disclosed in the essay induce me to say, in compliance with the wish expressed, that I do not consider the proceedings of Virginia in ’98-99 as countenancing the doctrine that a State may at will secede from its constitutional compact with the other states. A rightful secession requires the consent of the others, or an abuse of the compact absolving the seceding party from the obligation imposed by it.

In order to understand the reasoning on one side of the question, it is necessary to keep in view the precise state of the question and the positions and arguments on the other side. This is particularly necessary in questions arising under our novel and compound system of government. Much error and confusion have grown out of a neglect of this precaution.

The case of the alien and sedition acts was a question between the Government and the constituent body, Virginia making an appeal to the latter against the assumption of power by the former.

The case of a claim in a State to secede from its union with the others is a question among the states themselves as parties to a compact.

In the former case it was asserted against Virginia, that the states had no right to interpose legislative declarations of opinion on a constitutional point; nor a right to interpose at all against a decision of the Supreme Court of the United States, which was to be regarded as a tribunal from which there could be no appeal.

The object of Virginia was to vindicate legislative declarations of opinion; to designate the several constitutional modes of interposition by the states against abuses of power, and to establish the ultimate authority of the states as parties to and creatures of the Constitution to interpose against the decisions of the judicial as well as the other branches of the Government—the authority of the judicial being in no sense ultimate, out of the purview and form of the Constitution.

Much use has been made of the term “respective” in the third resolution of Virginia, which asserts the right of the States, in cases of sufficient magnitude to interpose “for maintaining within their respective limits the authorities, and so forth, appertaining to them;” the term “respective” being construed to mean a constitutional right in each State, separately, to decide on and resist by force encroachments within its limits. A foresight or apprehension of the misconstruction might easily have guarded against it. But, to say nothing of the distinction between ordinary and extreme cases, it is observable that in this, as in other instances throughout the resolution, the plural number (States) is used in referring to them that a concurrence and co-operation of all might well be contemplated in interpositions for effecting the objects within reach; and that the language of the closing resolution corresponds with this view of the third. The course of reasoning in the report on the resolutions requires the distinction between a State and the States.

It surely does not follow from the fact of the states, or rather the people embodied in them, having, as parties to the constitutional compact, no tribunal above them, that, in controverted meanings of the compact, a minority of the parties can rightfully decide against the majority, still less that a single party can decide against the rest, and as little that it can at will withdraw itself altogether from its compact with the rest.

The characteristic distinction between free Governments, and Governments not free is that the former are founded on compact, not between the Government and those for whom it acts, but among the parties creating the Government. Each of these being equal, neither can have more right to say that the compact has been violated and dissolved than every other has to deny the fact and to insist on the execution of the bargain. An inference from the doctrine that a single state has a right to secede at will from the rest is that the rest would have an equal right to secede from it; in other words, to turn it, against its will, out of its union with them. Such a doctrine would not, till of late, have been palatable anywhere, and nowhere less so than where it is now most contended for.

A careless view of the subject might find an analogy between state secession and individual expatriation. But the distinction is obvious and essential, even in the latter case, whether regarded as a right impliedly reserved in the original social compact, or as a reasonable indulgence, it is not exempt from certain conditions. It must be used without injustice or injury to the community from which the expatriating party separates himself. Assuredly he could not withdraw his portion of territory from the common domain. In the case of a State seceding from the union, its domain would be dismembered, and other consequences brought on not less obvious than pernicious.

I ought not to omit my regret that in the remarks on Mr. Jefferson and myself the names had not been transposed.

Having many reasons for marking this letter confidential, I must request that its publicity may not be permitted in any mode or through any channel. Among the reasons is the risk of misapprehensions or misconstructions, so common, without more attention and development that I could conveniently bestow on what is said.

With respect

Wishing to be assured that the letter has not miscarried, a single line acknowledging its receipt will be acceptable.

[1 ]Cabell wrote from Richmond that the House of Delegates had proposed to print Madison’s letter to Everett of August 28, 1831 (see ante, p. 383) with the report of 1799 on the Resolutions of the previous year; that in the course of the debate Madison had been accused of inconsistency. Cabell would like to read Madison’s letter of June 29, 1821, to Judge Roane and to be permitted to say that Roane had in the month of April preceding written to Madison “for advice & aid upon the subject of the letters of Algernon Sydney.” Cabell had seen the letters to Roane and had kept copies of them. He wanted a word in the letter of June 29th, 1821, supplied.—Mad. MSS. For the letters to Roane see ante, p. 65.

[1 ]From the National Intelligencer, November 24, 1860. December 28, 1832, Charlottesville, Va., “A Friend of Union and State Rights” (Alexander Rives) sent Madison two essays of his defending Madison’s views on secession. Madison’s reply was addressed to the anonymous correspondent, but on January 7, 1833, Rives acknowledged the letter (Mad. MSS.) In printing Madison’s letter the National Intelligencer said.

“In 1832 Mr. Alexander Rives, under the signature of ‘A Friend of Union and State Rights,’ published two communications in the Virginia (Charlottesville) Advocate. The letter of Mr. Madison was called forth by these articles, and was addressed to the writer of them under his nom-de-plume. It bears no date, but a letter from Mr. Rives in reply to it, in our possession, is dated January 7th, 1833.”