Front Page Titles (by Subject) 1835 - TO DANIEL DRAKE. mad. mss. - The Writings, vol. 9 (1819-1836)
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1835 - TO DANIEL DRAKE. mad. mss. - James Madison, The Writings, vol. 9 (1819-1836) 
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.
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TO DANIEL DRAKE.mad. mss.
Montpr, Jany 12, 1835.
The copy of your “Discourse on the History character, and prospects of the West,” was duly received,1 and I have read with pleasure, the instructive views taken of its interesting and comprehensive theme. Should the youth addressed and their successors, follow your advice, and their example be elsewhere imitated in noting from period to period the progress and changes of our country under the aspects adverted to, the materials, added to the supplies of the decennial Census, improved as that may be, will form a treasure of incalculable value to the Philosopher, the Lawgiver and the Political Economist. Our history, short as it is, has already disclosed great errors sanctioned by great names, in political science, and it may be expected to throw new lights on problems still to be decided.
The “Note” at the end of the discourse, in which the geographical relations of the States are delineated, merits particular attention. Hitherto hasty observers, and unfriendly prophets, have regarded the Union as too frail to last, and to be split at no distant day, into the two great divisions of East and West. It is gratifying to find that the ties of interest are now felt by the latter not less than the former: ties that are daily strengthened by the improvements made by art in the facilities of beneficial intercourse. The positive advantages of the Union would alone endear it to those embraced by it; but it ought to be still more endeared by the consequences of disunion, in the jealousies & collisions of Commerce, in the border wars, pregnant with others, and soon to be engendered by animosities between the slaveholding, and other States, in the higher toned Govts. especially in the Executive branch, in the military establishments provided agst external danger, but convertible also into instruments of domestic usurpation, in the augmentations of expence, and the abridgment, almost to the exclusion of taxes on consumption (the least unacceptable to the people) by the facility of smuggling among communities locally related as would be the case. Add to all these the prospect of entangling alliances with foreign powers multiplying the evils of internal origin. But I am rambling into observations, with proof in the “Discourse” before me that however just they cannot be needed.
With the thanks Sir which I owe to your politeness in favoring me with it I tender my respectful & cordial salutations.
April 19, 1835.
I, James Madison, of Orange County, do make this my last will and testament, hereby revoking all wills by me heretofore made.
I devise to my dear wife during her life the tract of land whereon I live, as now held by me, except as herein otherwise devised, and if she shall pay the sum of nine thousand dollars . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . within three years . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . after my death, to be distributed as herein after directed, then I devise the same land to her in fee simple. If my wife shall not pay the said sum of money within the period before mentioned, then and in that case it is my will and I hereby direct that at her death the said land shall be sold for cash or on a credit, as may be deemed most for the interest of those entitled to the proceeds thereof. If my wife shall pay the said sum of money within the time before specified as aforesaid, so as to become entitled to the fee simple in the said land, then I bequeath the said sum of money to be equally divided among all my nephews and nieces, which shall at that time be living, and in case of any of them being dead, leaving issue at that time living, then such issue shall take the place of it’s or their deceased parent. It is my further will that in case my wife shall not pay the said sum of money within the time before named and it shall therefore be necessary to sell the said land at her death as before directed, then after deducting the twentieth part of the purchase money of the said land, which deducted part I hereby empower my wife to dispose of by her Will, I bequeath the residue of the purchase money and in case of her dying without having disposed of such deducted part by her Will, I bequeath the whole of the purchase money of the said land to my nephews and nieces or the issues of such of them as may be dead in the manner before directed in regard to the money to be paid by her in case she shall pay the same. I devise my grist mill, with the land attached thereto, to my wife during her life, and I hereby direct the same to be sold at her death and the purchase money to be divided as before directed in regard to the proceeds of the tract whereon I live. I devise to my niece, Nelly C. Willis and her heirs the lot of land lying in Orange County purchased of Boswell Thornton on which is a limestone quarry and also my interest in a tract of land lying in Louisa County, reputed to contain two hundred acres and not far from the said Limestone quarry. I devise my house and lot or lots in the city of Washington to my beloved wife and her heirs.
I give and bequeath my ownership in the negroes and people of colour held by me to my dear wife, but it is my desire that none of them should be sold without his or her consent or in case of their misbehaviour; except that infant children may be sold with their parent who consents for them to be sold with him or her, and who consents to be sold.
I give all my personal estate of every description, ornamental as well as useful, except as herein after otherwise given, to my dear wife; and I also give to her all my manuscript papers, having entire confidence in her discreet and proper use of them, but subject to the qualification in the succeeding clause.
Considering the peculiarity and magnitude of the occasion which produced the convention at Philadelphia in 1787, the Characters who composed it, the Constitution which resulted from their deliberation, it’s effects during a trial of so many years on the prosperity of the people living under it, and the interest it has inspired among the friends of free Government, it is not an unreasonable inference that a careful and extended report of the proceedings and discussions of that body, which were with closed doors, by a member who was constant in his attendance, will be particularly gratifying to the people of the United States, and to all who take an interest in the progress of political science and the cause of true liberty. It is my desire that the report as made by me should be published under her authority and direction, as the publication may yield a considerable amount beyond the necessary expenses thereof; I give the net proceeds thereof to my wife charged with the following legacies to be paid out of that fund only—first I give to Ralph Randolph Gurley, Secretary of the American Colonization society and to his executors and administrators, the sum of two thousand dollars, in trust nevertheless, that he shall appropriate the same to the use and purposes of the said society, whether the same be incorporated by law or not. I give fifteen hundred dollars to the University of Virginia, one thousand dollars to the College at Nassau Hall at Princeton, New Jersey, and one thousand dollars to the College at Uniontown, Pennsylvania and it is my will that if the said fund should not be sufficient to pay the whole of the three last legacies, that they abate in proportion.
I further direct that there be paid out of the same fund to the guardian of the three sons of my deceased nephew, Robert L. Madison, the sum of three thousand dollars, to be applied to their education in such proportions as their guardian may think right—I also give, out of the same fund to my nephew Ambrose Madison two thousand dollars to be applied by him to the education of his sons in such proportions as he may think right, and I also give out of the same fund the sum of five hundred dollars to each of the daughters of my deceased niece, Nelly Baldwin and if the said fund shall not be sufficient to pay the whole of the legacies for the education of my great nephews as aforesaid and the said legacies to my great nieces, then they are to abate in proportion.
I give to the University of Virginia all that portion of my Library of which it has not copies of the same editions, and which may be thought by the Board of Visitors not unworthy of a place in it’s Library, reserving to my wife the right first to select such particular books & pamphlets as she shall choose, not exceeding three hundred volumes.
In consideration of the particular and valuable aids received from my brother in law, John C. Payne and the affection which I bear him, I devise to him and his heirs two hundred and forty acres of land on which he lives, including the improvements, on some of which he has bestowed considerable expense to be laid off adjoining the lands of Reuben and James Newman in a convenient form for a farm so as to include woodland and by the said Mr Newmans. I bequeath to my step son, John Payne Todd the case of Medals presented me by my friend George W. Erving and the walking staff made from a timber of the frigate Constitution and presented me by Commodore Elliot, her present Commander.
I desire the gold mounted walking staff bequeathed to me by my late friend Thomas Jefferson be delivered to Thomas J. Randolph as well in testimony of the esteem I have for him as of the knowledge I have of the place he held in the affection of his grand-father. To remove every doubt of what is meant by the terms tract of land whereon I live, I here declare it to comprehend all land owned by me and not herein otherwise devised away. I hereby appoint my dear wife to be sole executrix of this my Will and desire that she may not be required to give security for the execution thereof and that my estate be not appraised. IN testimony hereof—I have this fifteenth day of April, one thousand eight hundred and thirty five—signed, sealed, published and declared this to be my last Will & Testament.
We have signed in presence of the testator and of each other,
James Madison. (Seal)
Reuben Newman Sr.
Reuben Newman Jr.
I, James Madison do annex this Codicil to my last will—as above & to be taken as part thereof. It is my will that the nine thousand dollars to be paid by my wife and distributed among my nephews & Nieces, may be paid into the Bank of Virginia, or into the Circuit Superior Court of Chancery for Orange, within three years after my death.
I direct that the proceeds from the sale of my Grist Mill & the land annexed sold at the death of my wife shall be paid to Ralph Randolph Gurly, secretary of the American Colonization society and to his executors & administrators, in trust and for the purposes of the said society, whether the same be incorporated by law or not.
This Codicil is written wholly by and signed by my own hand this nineteenth day of April 1835. James Madison.
At a monthly Court held for the county of Orange at the Courthouse on Monday the 25th of July, 1836, This last Will and testament of James Madison deceased, with the codicil thereto being offered for probate by Dolly P. Madison, the will was duly proved by the oaths of Robert Taylor, Reuben Newman Sr., and Sims Brockman, attesting witnesses thereto and there being no subscribing witnesses to the codicil, Robert Taylor William Madison and Reynolds Chapman were sworn severally and deposed that they were well acquainted with the hand writing of the said James Madison, deceased, and verily believed that the said codicil and the name of the said James Madison thereto affixed were wholly written by the testator, whereupon the said Will with the Codicil thereto was established as the last Will and Testament of the said James Madison, deceased, and ordered to be recorded. And on the motion of Dolly P. Madison the executrix named in the will, who made oath according to law and entered into bond without security, (the will directing that none should be required) in the penalty of one hundred thousand dollars conditioned as the law directs—Certificate was granted her for obtaining a probate thereof in due form.
C. W. Woolfolk, Clerk
Orange Circuit Court, Va.
TO W. A. DUER.1
Montpellier, June 5th, 1835.
I have received your letter of April 25th, and with the aid of a friend and amanuensis, have made out the following answer:
On the subject of Mr. Pinckney’s proposed plan of a Constitution, it is to be observed that the plan printed in the Journal was not the document actually presented by him to the Convention. That document was no otherwise noticed in the proceedings of the Convention than by a reference of it, with Mr. Randolph’s plan, to a committee of the whole, and afterwards to a committee of detail, with others; and not being found among the papers left with President Washington, and finally deposited in the Department of State, Mr. Adams, charged with the publication of them, obtained from Mr. Pinckney the document in the printed Journals as a copy supplying the place of the missing one. In this there must be error, there being sufficient evidence, even on the face of the Journals, that the copy sent to Mr. Adams could not be the same with the document laid before the Convention. Take, for example, the article constituting the House of Representatives the corner-stone of the fabric, the identity, even verbal, of which, with the adopted Constitution, has attracted so much notice. In the first place, the details and phraseology of the Constitution appear to have been anticipated. In the next place, it appears that within a few days after Mr. Pinckney presented his plan to the Convention, he moved to strike out from the resolution of Mr. Randolph the provision for the election of the House of Representatives by the people, and to refer the choice of that House to the Legislatures of the States, and to this preference it appears he adhered in the subsequent proceedings of the Convention. Other discrepancies will be found in a source also within your reach, in a pamphlet published by Mr. Pinckney soon after the close of the Convention, in which he refers to parts of his plan which are at variance with the document in the printed Journal. A friend who had examined and compared the two documents has pointed out the discrepancies noted below.1 Further evidence1 on this subject, not within your own reach, must await a future, perhaps a posthumous disclosure.
One conjecture explaining the phenomenon has been, that Mr. Pinckney interwove with the draught sent to Mr. Adams passages as agreed to in the Convention in the progress of the work, and which, after a lapse of more than thirty years, were not separated by his recollection.
The resolutions of Mr. Randolph, the basis on which the deliberations of the Convention proceeded, were the result of a consultation among the Virginia Deputies, who thought it possible that, as Virginia had taken so leading a part1 in reference to the Federal Convention, some initiative propositions might be expected from them. They were understood not to commit any of the members absolutely or definitively on the tenor of them. The resolutions will be seen to present the characteristic provisions and features of a Government as complete (in some respects, perhaps, more so) as the plan of Mr. Pinckney, though without being thrown into a formal shape. The moment, indeed, a real Constitution was looked for as a substitute for the Confederacy, the distribution of the Government into the usual departments became a matter of course with all who speculated on the prospective change, and the form of general resolutions was adopted as the most convenient for discussion. It may be observed, that in reference to the powers to be given to the General Government the resolutions comprehended as well the powers contained in the articles of Confederation, without enumerating them, as others not overlooked in the resolutions, but left to be developed and defined by the Convention.
With regard to the plan proposed by Mr. Hamilton, I may say to you, that a Constitution such as you describe was never proposed in the Convention, but was communicated to me by him at the close of it. It corresponds with the outline published in the Journal. The original draught being in possession of his family and their property, I have considered any publicity of it as lying with them.
Mr. Yates’s notes, as you observe, are very inaccurate; they are, also, in some respects, grossly erroneous. The desultory manner in which he took them, catching sometimes but half the language, may, in part, account for it. Though said to be a respectable and honorable man, he brought with him to the Convention the strongest prejudices against the existence and object of the body, in which he was strengthened by the course taken in its deliberations. He left the Convention, also, long before the opinions and views of many members were finally developed into their practical application. The passion and prejudice of Mr. L. Martin betrayed in his published letter could not fail to discolour his representations. He also left the convention before the completion of their work. I have heard, but will not vouch for the fact, that he became sensible of, and admitted his error. Certain it is, that he joined the party who favored the Constitution in its most liberal construction.
I can add little to what I have already said in relation to the agency of your father in the adoption of the Federal Constitution. My only correspondence with him was a short one, introduced by a letter from him written during the Convention of New York, at the request of Mr. Hamilton, who was too busy to write himself, giving and requesting information as to the progress of the Constitution in New York and Virginia. Of my letter or letters to him I retain no copy. The two letters from him being short, copies of them will be sent if not on his files, and if desired. They furnish an additional proof that he was an ardent friend of the depending Constitution.
I have marked this letter “confidential,” and wish it to be considered for yourself only. In my present condition, enfeebled by age and crippled by disease, I may well be excused for wishing not to be in any way brought to public view on subjects involving considerations of a delicate nature. I thank you, sir, for your kind sentiments and good wishes, and pray you to accept a sincere return of them.1
TO CHARLES FRANCIS ADAMS.1
Montpellier, Oct. 12, 1835.
I have received your letter of Sept. 30th, with a copy of “An Appeal from the New to the Old Whigs.” The pamphlet contains very able and interesting “views” of its subject.
The claims for the Senate of a share in the removal from office, and for the legislature an authority to regulate its tenure, have had powerful advocates. I must still think, however, that the text of the Constitution is best interpreted by reference to the tripartite theory of Government; to which practice has conformed, and which so long and uniform a practice would seem to have established.
The face of the Constitution and the journalized proceedings of the Convention strongly indicate a partiality to that theory, then at its zenith of favor among the most distinguished commentators on the organizations of political power.
The right of suffrage, the rule of apportioning representation, and the mode of appointing to, and removing from office, are fundamentals in a free Government; and ought to be fixed by the Constitution; if alterable by the Legislature, the Government might become the creator of the Constitution, of which it is itself but the creature: and if the large states could be reconciled to an augmentation of power in the Senate, constructed and endowed as that branch of the Government is, a veto on removals from office would at all times be worse than inconvenient in its operation, and in party times might, by throwing the Executive machinery out of gear, produce a calamitous interregnum.
In making these remarks I am not unaware that in a country wide and expanding as ours is, and in the anxiety to convey information to the door of every citizen, an unforeseen multiplication of offices may add a weight to the executive scale disturbing the equilibrium of the Government. I should therefore see with pleasure a guard against the evil by whatever regulations having that effect, may be within the scope of legislative power; or if necessary even by an amendment to the Constitution when a lucid interval of party excitement shall invite the experiment.
With thanks for your friendly communication and for the interest which you express in my health which is much broken by chronic complaints, added to my great age, I pray you to accept the assurance of my respect and good wishes.
TO CHARLES J. INGERSOLL.mad. mss.
Montpr., Decr 30th, 35.
I thank you, tho’ at a late day, for the pamphlet comprizing your address at New York.
The address is distinguished by some very important views of an important subject.
The absolutists on the “Let alone theory” overlook the two essential pre-requisites to a perfect freedom of external commerce. 1. That it be universal among nations. 2. That peace be perpetual among them.
A perfect freedom of international commerce, manifestly requires that it be universal. If not so, a Nation departing from the theory, might regulate the commerce of a Nation adhering to it, in subserviency to its own interest, and disadvantageously to the latter. In the case of navigation, so necessary under different aspects nothing is more clear than that a discrimination by one Nation in favor of its own vessels, without an equivalent discrimination on the side of another, must at once banish from the intercourse, the navigation of the latter. This was verified by our own ante-Constitution experience; as the remedy for it has been by the post-constitution experience.
But to a perfect freedom of commerce, universality is not the only condition; perpetual peace is another. War, so often occurring & so liable to occur, is a disturbing incident entering into the calculations by which a Nation ought to regulate its foreign commerce. It may well happen to a nation adhering strictly to the rule of buying cheap, that the rise of prices in Nations at war, may exceed the cost of a protective policy in time of peace; so that taking the two periods together, protection would be cheapness. On this point also an appeal may be made to our own experience. The Champions for the “Let alone policy” forget that theories are the offspring of the closet; exceptions & qualifications the lessons of experience.
It has hitherto been understood, that the supreme power, that is, the sovereignty of the people of the States, was in its nature divisible, and was in fact divided, according to the Constitution of the U. States, between the States in their united and the States in their individual capacities that as the States, in their highest sov. char., were competent to surrender the whole sovereignty and form themselves into a consolidated State, so they might surrender a part & retain, as they have done, the other part, forming a mixed Govt with a division of its attributes as marked out in the Constitution.
Of late, another doctrine has occurred, which supposes that sovereignty is in its nature indivisible; that the societies denominated States, in forming the constitutional compact of the U. States, acted as indivisible sovereignties, and consequently, that the sovereignty of each remains as absolute and entire as it was then, or could be at any time.
This discord of opinions arises from a propensity in many to prefer the use of theoretical guides and technical language to the division and depositories of pol. power, as laid down in the constl charter, which expressly assigns certain powers of Govt which are the attributes of sovereigty. of the U. S., and even declares a practical supremacy of them over the powers reserved to the States; a supremacy essentially involving that of exposition as well as of execution; for a law could not be supreme in one depository of power if the final exposition of it belonged to another.
In settling the question between these rival claims of power, it is proper to keep in mind that all power in just & free Govts is derived from compact, that when the parties to the compact are competent to make it, and when the compact creates a Govt, and arms it not only with a moral power, but the physical means of executing it, it is immaterial by what name it is called. Its real character is to be decided by the compact itself; by the nature and extent of the powers it specifies, and the obligations imposed on the parties to it.
As a ground of compromise let then, the advocates of State rights acknowledge this rule of measuring the Federal share of sovereign power under the const. compact; and let it be conceded, on the other hand, that the States are not deprived by it of that corporate existence and political unity which wd. in the event of a dissolution, voluntary or violent, of the Constn. replace them in the condition of separate communities, that being the condition in which they entered into the compact.
At the period of our Revoln it was supposed by some that it dissolved the social compact within the Colonies, and produced a state of nature which required a naturalization of those who had not participated in the revoln. The question was brought before Cong. at its first session by Dr Ramsay, who contested the election of Wm Smith; who, though born in S. C., had been absent at the date of Independence. The decision was, that his birth in the Colony made him a member of the society in its new as well as its original state.
To go to the bottom of the subject, let us consult the Theory which contemplates a certain number of individuals as meeting and agreeing to form one political society, in order that the rights the safety & the interest of each may be under the safeguard of the whole.
The first supposition is, that each individual being previously independent of the others, the compact which is to make them one society must result from the free consent of every individual.
But as the objects in view could not be attained, if every measure conducive to them required the consent of every member of the society, the theory further supposes, either that it was a part of the original compact, that the will of the majority was to be deemed the will of the whole, or that this was a law of nature, resulting from the nature of political society itself, the offspring of the natural wants of man.
Whatever be the hypothesis of the origin of the lex majoris partis, it is evident that it operates as a plenary substitute of the will of the majority of the society for the will of the whole society; and that the sovereignty of the society as vested in & exercisable by the majority, may do anything that could be rightfully done by the unanimous concurrence of the members; the reserved rights of individuals (of conscience for example) in becoming parties to the original compact being beyond the legitimate reach of sovereignty, wherever vested or however viewed.
The question then presents itself, how far the will of a majority of the society, by virtue of its identity with the will of the society, can divide, modify, or dispose of the sovereignty of the society; and quitting the theoretic guide, a more satisfactory one will perhaps be found—1, In what a majority of a society has done, and been universally regarded as having had a right to do; 2, What it is universally admitted that a majority by virtue of its sovereignty might do, if it chose to do.
1. The majority has not only naturalized, admitted into social compact again, but has divided the sovereignty of the society by actually dividing the society itself into distinct societies equally sovereign. Of this operation we have before us examples in the separation of Kentucky from Virginia and of Maine from Massachusetts; events wch. were never supposed to require a unanimous consent of the individuals concerned.
In the case of naturalization a new member is added to the social compact, not only without a unanimous consent of the members, but by a majority of the governing body, deriving its powers from a majority of the individual parties to the social compact.
2. As, in those cases just mentioned, one sovereignty was divided into two by dividing one State into two States; so it will not be denied that two States equally sovereign might be incorporated into one by the voluntary & joint act of majorities only in each. The Constitution of the U. S. has itself provided for such a contingency. And if two States, could thus incorporate themselves into one by a mutual surrender of the entire sovereignty of each; why might not a partial incorporation, by a partial surrender of sovereignty, be equally practicable if equally eligible. And if this could be done by two States, why not by twenty or more.
A division of sovereignty is in fact illustrated by the exchange of sovereign rights often involved in Treaties between Independent Nations, and still more in the several confederacies which have existed, and particularly in that which preceded the present Constitution of the United States.
Certain it is that the constitutional compact of the U. S. has allotted the supreme power of Govt partly to the United States by special grants, partly to the individual States by general reservations; and if sovereignty be in its nature divisible, the true question to be decided is, whether the allotment has been made by the competent authority, and this question is answered by the fact that it was an act of the majority of the people in each State in their highest sovereign capacity, equipollent to a unanimous act of the people composing the State in that capacity.
It is so difficult to argue intelligibly concerning the compound system of Govt in the U. S. without admitting the divisibility of sovereignty, that the idea of sovereignty, as divided between the Union and the members composing the Union, forces itself into the view, and even into the language of those most strenuously contending for the unity & indivisibility of the moral being created by the social compact. “For security agst oppression from abroad we look to the sovereign power of the U. S. to be exerted according to the compact of union; for security agst oppression from within, or domestic oppression, we look to the sovereign power of the State. Now all sovereigns are equal; the sovereignty of the State is equal to that of the Union, for the sovereignty of each is but a moral person. That of the State and that of the Union are each a moral person, and in that respect precisely equal.” These are the words in a speech which, more than any other, has analyzed & elaborated this particular subject, and they express the view of it finally taken by the speaker, notwithstanding the previous one in which he says, “the States, whilst the Constitution of the U. S. was forming, were not even shorn of any of their sovereign power by that process.”
That a sovereignty would be lost & converted into a vassalage, if subjected to a foreign sovereignty over which it had no controul, and in which it had no participation, is clear & certain, but far otherwise is a surrender of portions of sovereignty by compacts among sovereign communities making the surrenders equal & reciprocal & of course giving to each as much as is taken from it.
Of all free Govts compact is the basis & the essence, and it is fortunate that the powers of Govt supreme as well as subordinate can be so moulded & distributed, so compounded and divided by those on whom they are to operate as will be most suitable to their conditions, will best guard their freedom, and best provide for their safety.
Altho’ the Legislature of Virginia declared at a late session almost unanimously, that S. Carolina was not supported in her doctrine of nullification by the Resolutions of 1798, it appears that those resolutions are still appealed to as expressly or constructively favoring the doctrine.
That the doctrine of nullification may be clearly understood it must be taken as laid down in the Report of a special committee of the House of Representatives of S. C. in 1828. In that document it is asserted, that a single State has a constitutional right to arrest the execution of a law of the U. S. within its limits; that the arrest is to be presumed right and valid, and is to remain in force unless ¾ of the States, in a Convention, shall otherwise decide.
The forbidding aspect of a naked creed, according to which a process instituted by a single State is to terminate in the ascendancy of a minority of 7, over a majority of 17, has led its partizans to disguise its deformity under the position that a single State may rightfully resist an unconstitutional and tyrannical law of the U. S., keeping out of view the essential distinction between a constitutional right and the natural and universal right of resisting intolerable oppression. But the true question is whether a single state has a constitutional right to annul or suspend the operation of a law of the U. S. within its limits, the State remaining a member of the Union, and admitting the Constitution to be in force.
With a like policy, the nullifiers pass over the state of things at the date of the proceedings of Vira and the particular doctrines and arguments to which they were opposed; without an attention to which the proceedings in this as in other cases may be insecure agst a perverted construction.
It must be remarked also that the champions of nullification, attach themselves exclusively to the 3. Resolution, averting their attention from the 7. Resolution which ought to be coupled with it, and from the Report also, which comments on both, & gives a full view of the object of the Legislature on the occasion.
Recurring to the epoch of the proceedings, the facts of the case are that Congs had passed certain acts, bearing the name of the alien and sedition laws, which Virg. & some of the other States, regarded as not only dangerous in their tendency, but unconstitutional in their text; and as calling for a remedial interposition of the States. It was found also that not only was the constitutionality of the acts vindicated by a predominant party, but that the principle was asserted at the same time, that a sanction to the acts given by the supreme Judicial authority of the U. S. was a bar to any interposition whatever on the part of the States, even in the form of a legislative declaration that the acts in question were unconstitutional.
Under these circumstances, the subject was taken up by Virga. in her resolutions, and pursued at the ensuing session of the Legislature in a comment explaining and justifying them; her main and immediate object, evidently being, to produce a conviction everywhere, that the Constitution had been violated by the obnoxious acts and to procure a concurrence and co-operation of the other States in effectuating a repeal of the acts. She accordingly asserted and offered her proofs at great length, that the acts were unconstitutional. She asserted moreover & offered her proofs that the States had a right in such cases, to interpose, first in their constituent character to which the govt of the U. S. was responsible, and otherwise as specially provided by the Constitution; and further, that the States, in their capacity of parties to and creators of the Constitution, had an ulterior right to interpose, notwithstanding any decision of a constituted authority; which, however it might be the last resort under the forms of the Constitution in cases falling within the scope of its functions, could not preclude an interposition of the States as the parties which made the Constitution and, as such, possessed an authority paramount to it.
In this view of the subject there is nothing which excludes a natural right in the States individually, more than in any portion of an individual State, suffering under palpable and insupportable wrongs, from seeking relief by resistance and revolution.
But it follows, from no view of the subject, that a nullification of a law of the U. S. can as is now contended, belong rightfully to a single State, as one of the parties to the Constitution; the State not ceasing to avow its adherence to the Constitution. A plainer contradiction in terms, or a more fatal inlet to anarchy, cannot be imagined.
And what is the text in the proceedings of Virginia which this spurious doctrine of nullification claims for its parentage? It is found in the 3d of the Resolutions of -98, which is in the following words.
“That in case of a deliberate, a palpable & dangerous exercise of powers not granted by the [constitutional] compact, the States who are parties thereto have a right and are in duty bound to interpose for arresting the progress of the evil, & for maintaining within their respective limits, the authorities rights & liberties appertaining to them.”
Now is there anything here from which a single State can infer a right to arrest or annul an act of the General Govt which it may deem unconstitutional? So far from it, that the obvious & proper inference precludes such a right on the part of a single State; plural number being used in every application of the term.
In the next place, the course & scope of the reasoning requires that by the rightful authority to interpose in the cases & for the purposes referred to, was meant, not the authority of the States singly & separately, but their authority as the parties to the Constn, the authority which, in fact, made the Constitution; the authority which being paramount to the Constitution was paramount to the authorities constituted by it, to the Judiciary as well as the other authorities. The resolution derives the asserted right of interposition for arresting the progress of usurpations by the Federal Govt from the fact, that its powers were limited to the grant made by the States; a grant certainly not made by a single party to the grant, but by the parties to the compact containing the grant. The mode of their interposition, in extraordinary cases, is left by the Resolution to the parties themselves; as the mode of interposition lies with the parties to other Constitutions, in the event of usurpations of power not remediable, under the forms and by the means provided by the Constitution. If it be asked why a claim by a single party to the constitutional compact, to arrest a law, deemed by it a breach of the compact, was not expressly guarded agst the simple answer is sufficient that a pretension so novel, so anomalous & so anarchical, was not & could not be anticipated.
In the third place, the nullifying claim for a single State is probably irreconcilable with the effect contemplated by the interposition claimed by the Resolution for the parties to the Constitution namely that of “maintaining within the respective limits of the States the authorities rights & liberties appertaining to them.” Nothing can be more clear than that these auths &c., &c., of the States, in other words, the authority & laws of the U. S. must be the same in all; or that this cannot continue to be the case, if there be a right in each to annual or suspend within itself the operation of the laws & authority of the whole. There cannot be different laws in different states on subjects within the compact without subverting its fundamental principles, and rendering it as abortive in practice as it would be incongruous in theory. A concurrence & co-operation of the States in favor of each, would have the effect of preserving the necessary uniformity in all, which the Constitution so carefully & so specifically provided for in cases where the rule might be in most danger of being violated. Thus the citizens of every State are to enjoy reciprocally the privileges of citizens in every other State. Direct taxes are to be apportioned on all, according to a fixed rule. Indirect taxes are to be the same in all the States. The duties on imports are to be uniform: No preference is to be given to the ports of one State over those of another. Can it be believed, that with these provisions of the Constn illustrating its vital principles fully in view of the Legislature of Virginia, that its members could in the Resolution quoted, intend to countenance a right in a single State to distinguish itself from its co-States, by avoiding the burdens, or restrictions borne by them; or indirectly giving the law to them.
These startling consequences from the nullifying doctrine have driven its partizans to the extravagant presumption that no State would ever be so unreasonable, unjust & impolitic as to avail itself of its right in any case not so palpably just and fair as to ensure a concurrence of the others, or at least the requisite proportion of them.
Omitting the obvious remark that in such a case the law would never have been passed or immediately repealed; and the surprize that such a defence of the nullifying right should come from S. C. in the teeth & at the time of her own example, the presumption of such a forbearance in each of the States, or such a pliability in all, among 20 or 30 independent sovereignties, must be regarded as a mockery by those who reflect for a moment on the human character, or consult the lessons of experience, not the experience of other countries & times, but that among ourselves; and not only under the former defective Confederation, but since the improved system took place of it. Examples of differences, persevering differences among the States on the constitutionality of Federal acts, will readily occur to every one; and which would, e’er this, have defaced and demolished the Union, had the nullifying claim of S. Carolina been indiscriminately exercisable. In some of the States, the carriage-tax would have been collected, in others unpaid. In some, the tariff on imports would be collected; in others, openly resisted. In some, lighthouses wd be established; in others denounced. In some States there might be war with a foreign power; in others, peace and commerce. Finally, the appellate authority of the Supreme Court of the U. S. would give effect to the Federal laws in some States, whilst in others they would be rendered nullities by the State Judiciaries. In a word, the nullifying claims if reduced to practice, instead of being the conservative principle of the Constitution, would necessarily, and it may be said obviously, be a deadly poison.
Thus, from the 3d. resoln itself, whether regard be had to the employment of the term States in the plural number, the argumentative use of it, or to the object namely the “maintaining the authority & rights of each, which must be the same in all as in each, it is manifest that the adequate interposition to which it relates, must be not a single, but a concurrent interposition.
If a further elucidation of the view of the Legislature could be needed, it happens to be found in its recorded proceedings. In the 7th Resolution as originally proposed, the term “unconstitutional,” was followed by null void, &c. These added words being considered by some as giving pretext for some disorganizing misconstruction, were unanimously stricken out, or rather withdrawn by the mover of the Resolutions.
An attempt has been made, by ascribing to the words stricken out, a nullifying signification, to fix on the reputed draftsman of the Resolution the character of a nullifier. Could this have been effected, it would only have vindicated the Legislature the more effectually from the imputation of favoring the doctrine of S. Carolina. The unanimous erasure of nullifying expressions was a protest by the H. of Delegates, in the most emphatic form against it.
It must be recollected that this Document proceeded from Representatives chosen by the people some months after the Resolutions had been before them, with a longer period for manifesting their sentiments before the Report was adopted; and without any evidence of disapprobation in the Constituent Body. On the contrary, it is known to have been recd by the Republican party, a decided majority of the people, with the most entire approbation. The Report therefore must be regarded as the most authoritative evidence of the meaning attached by the State to the Resolutions. This consideration makes it the more extraordinary, and let it be added the more inexcusable, in those, who in their zeal to extract a particular meaning from a particular resolution, not only shut their eyes to another Resolution, but to an authentic exposition of both.
And what is the comment of the Report on that particular resolution?, namely, the 3d
In the first place, it conforms to the resolution in using the term which expresses the interposing authy of the States, in the plural number States, not in the singular number State. It is indeed impossible not to perceive that the entire current & complexion of the observations explaining & vindicating the resolns. imply necessarily, that by the interposition of the States for arresting the evil of usurpation, was meant a concurring authy. not that of a single state; whilst the collective meaning of the term, gives consistency & effect to the reasoning & the object.
But besides this general evidence that the Report in the invariable use of the plural term States, withheld from a single State the right expressed in the Resoln. a still more precise and decisive inference, to the same effect, is afforded by several passages in the document.
Thus the report observes “The States then being the parties to the constl compact, and in their highest sovereign capacity, it follows of necessity, that there can be no tribunal above their authy to decide in the last resort, whether the compact made by them be violated; and, consequently that as the parties to it, they must themselves decide in the last resort such questions as may be of sufficient magnitude to require their interposition.”
Now apart from the palpable insufficiency of an interposition by a single State to effect the declared object of the interposition namely, to maintain authorities & rights which must be the same in all the States, it is not true that there would be no tribunal above the authority of a state as a single party; the aggregate authority of the parties being a tribunal above it to decide in the last resort.
Again the language of the Report is, “If the deliberate exercise of dangerous powers palpably withheld by the Constitution could not justify the parties to it in interposing even so far as to arrest the progress of the evil, & thereby preserve the Constitun. itself, as well as to provide for the safety of the parties to it, there wd be an end to all relief from usurped power”—Apply here the interposing power of a single State, and it would not be true that there wd be no relief from usurped power. A sure & adequate relief would exist in the interposition of the States, as the co-parties to the Constitution, with a power paramount to the Constn itself.
In answering this objection the Report observes, “that however true it may be that the judicial Dept, in all questions submitted to it by the forms of the Constn. to decide in the last resort, this resort must necessarily not be the last—in relation to the rights of the parties to the constl compact from which the Judicial as well as the other Departments hold their delegated trusts. On any other hypothesis, the Delegation of judicial power wd annual the authy delegating it, and the concurrence of this Dept with the others in usurped power, might subvert for ever, and beyond the possible reach of any rightful remedy, the very Constiti which all were instituted to preserve.” Again observes the report, “The truth declared in the resolution being established, the expediency of making the declaration at the present day may safely be left to the temperate consideration and candid judgment of the American public. It will be remembered that a frequent recurrence to fundamental principles is solemnly enjoined by most of the State constitutions, and particularly by our own, as a necessary safeguard against the danger of degeneracy, to which republics are liable as well as other governments, though in a less degree than others. And a fair comparison of the political doctrines, not unfrequent at the present day, with those which characterized the epoch of our revolution, and which form the basis of our republican constitutions, will best determine whether the declaratory recurrence here made to those principles ought to be viewed as unreasonable and improper, or as a vigilant discharge of an important duty. The authority of constitutions over governments, and of the sovereignty of the people over constitutions, are truths which are at all times necessary to be kept in mind; and at no time, perhaps, more necessary than at present.”
Who can avoid seeing the necessity of understanding by the “parties” to the constl. compact, the authority, which made the compact and from which all the Depts held their delegated trusts. These trusts were certainly not delegated by a single party. By regarding the term parties in its plural, not individual meaning, the answer to the objection is clear and satisfactory. Take the term as meaning a party, and not the parties, and there is neither truth nor argument in the answer. But further, on the hypothesis, that the rights of the parties meant the rights of a party, it wd not be true as affirmed by the Report, that “the Delegation of Judl. power wd annul the authy delegating it, and that the concurrence of this Dept with others in usurped power might subvert for ever, & beyond the reach of any rightful remedy, the very Constitution wch all were instituted to preserve.” However deficient a remedial right in a single State might be to preserve the Constn against usurped power an ultimate and adequate remedy wd. always exist in the rights of the parties to the Constn in whose hands the Constn is at all times but clay in the hands of the potter, and who could apply a remedy by explaing amendg, or remakg it, as the one or the other mode might be the most proper remedy.
Such being the comment of the Report on the 3d Resolution, it fully demonstrates the meaning attached to it by Virginia when passing it, and rescues it from the nullifying misconstruction into which the Resolution has been distorted.
Let it next be seen, how far the comment of the Rept. on the 7th Resoln. above inserted accords with that on the 3d.; and that this may the more conveniently be scanned by every eye, the comment is subjoined at full length.
[“The fairness and regularity of the course of proceedings here pursued have not protected it against objections even from sources too respectable to be disregarded.
“It has been said that it belongs to the judiciary of the United States, and not to the state legislatures, to declare the meaning of the federal Constitution.
“But a declaration that proceedings of the federal government are not warranted by the Constitution, is a novelty neither among the citizens nor among the legislatures of the states; are not the citizens or the Legislature of Virginia singular in the example of it.
“Nor can the declarations of either, whether affirming or denying the constitutionality of measures of the federal government, or whether made before or after judicial decisions thereon, be deemed, in any point of view, an assumption of the office of the judge. The declarations in such cases are expressions of opinions, unaccompanied with any other effect than what they may produce on opinion by exciting reflection. The expositions of the judiciary, on the other hand, are carried into immediate effect by force. The former may lead to a change in the legislative expressions of the general will; possibly to a change in the opinion of the judiciary; the latter enforces the general will, while that will and that opinion continue unchanged.
“And if there be no impropriety in declaring the unconstitutionality of proceedings in the federal government, where can be the impropriety of communicating the declaration to other states, and inviting their concurrence in a like declaration? What is allowable for one must be allowable for all; and a free communication among the states, where the Constitution imposes no restraint, is as allowable among the state governments as among other public bodies or private citizens. This consideration derives a weight that cannot be denied to it, from the relation of the state legislatures to the federal Legislature, as the immediate constituents of one of its branches.
“The legislatures of the states have a right also to originate amendments to the Constitution, by a concurrence of two thirds of the whole number, in applications to Congress for the purpose. When new states are to be formed by a junction of two or more states or parts of states, the legislatures of the states concerned are, as well as Congress, to concur in the measure. The states have a right also to enter into agreements or compacts, with the consent of Congress. In all such cases, a communication among them results from the object which is common to them.
“It is lastly to be seen whether the confidence expressed by the resolution, that the necessary and proper measures would be taken by the other states for co-operating with Virginia in maintaining the rights reserved to the states or to the people, be in any degree liable to the objections which have been raised against it.
“If it be liable to objection, it must be because either the object or the means are objectionable.
“The object being to maintain what the Constitution has ordered, is in itself a laudable object.
“The means are expressed in the terms ‘the necessary and proper measures.’ A proper object was to be pursued by means both necessary and proper.
“To find an objection, then, it must be shown that some meaning was annexed to these general terms which was not proper; and, for this purpose, either that the means used by the General Assembly were an example of improper means, or that there were no proper means to which the term could refer.
“In the example given by the state, of declaring the alien and sedition acts to be unconstitutional, and of communicating the declaration to the other states, no trace of improper means has appeared. And if the other states had concurred in making a like declaration, supported, too, by the numerous applications flowing immediately from the people, it can scarcely be doubted that these simple means would have been as sufficient as they are unexceptionable.
“It is no less certain that other means might have been employed which are strictly within the limits of the Constitution. The legislatures of the states might have made a direct representation to Congress, with a view to obtain a rescinding of the two offensive acts; or they might have represented to their respective senators in Congress their wish that two thirds thereof would propose an explanatory amendment to the Constitution; or two thirds of themselves, if such had been their option, might, by an application to Congress, have obtained a convention for the same object.
“These several means, though not equally eligible in themselves, nor probably to the states, were all constitutionally open for consideration. And if the General Assembly, after declaring the two acts to be unconstitutional, the first and most obvious proceeding on the subject, did not undertake to point out to the other states a choice among the farther means that might become necessary and proper, the reserve will not be misconstrued by liberal minds into any culpable imputation.
“These observations appear to form a satisfactory reply to every objection which is not founded on a misconception of the terms employed in the resolutions. There is one other, however, which may be of too much importance not to be added. It cannot be forgotten, that among the arguments addressed to those who apprehended danger to liberty from the establishment of the general government over so great a country, the appeal was emphatically made to the intermediate existence of the state governments between the people and that government, to the vigilance with which they would descry the first symptoms of usurpation, and to the promptitude with which they would sound the alarm to the public. This argument was probably not without its effect; and if it was a proper one then to recommend the establishment of the Constitution, it must be a proper one now to assist in its interpretation.
“The only part of the two concluding resolutions that remains to be noticed, is the repetition in the first of that warm affection to the Union and its members, and of that scrupulous fidelity to the Constitution, which have been invariably felt by the people of this state. As the proceedings were introduced with these sentiments, they could not be more properly closed than in the same manner. Should there be any so far misled as to call in question the sincerity of these professions, whatever regret may be excited by the error, the General Assembly cannot descend into a discussion of it. Those who have listened to the suggestion can only be left to their own recollection of the part which this state has borne in the establishment of our national independence, in the establishment of our national Constitution, and in maintaining under it the authority and laws of the Union, without a single exception of internal resistance or commotion. By recurring to these facts, they will be able to convince themselves that the representations of the people of Virginia must be above the necessity of opposing any other shield to attacks on their national patriotism than their own consciousness and the justice of an enlightened public, who will perceive, in the resolutions themselves, the strongest evidence of attachment both to the Constitution and to the Union, since it is only by maintaining the different governments and departments within their respective limits that the blessings of either can be perpetuated.”]
Here is certainly not a shadow of countenance to the doctrine of nullification. Under every aspect, it enforces the arguments and authority agst such an apocryphal version of the text.
From this view of the subject, those who will duly attend to the tenour of the proceedings of Virga and to the circumstances of the period when they took place will concur in the fairness of disclaiming the inference from the undeniableness of a truth, that it could not be the truth meant to be asserted in the Resoln. The employment of the truth asserted, and the reasons for it, are too striking to be denied or misunderstood.
More than this, the remark is obvious, that those who resolve the nullifying claim into the natural right to resist intolerable oppression, are precluded from inferring that to be the right meant by the Resoln, since that is as little denied, as the paramountship of the authy, creating a Constn over an authy derived from it.
The true question therefore is whether there be a constitutional right in a single state to nullify a law of the U. S. We have seen the absurdity of such a claim in its naked and suicidal form. Let us turn to it as modified by S. C., into a right in every State to resist within itself, the execution of a Federal law deemed by it to be unconstitutional; and to demand a Convention of the States to decide the question of constitutionality, the annulment of the law to continue in the mean time, and to be permanent, unless ¾ of the states concur in over-ruling the annulment.
Thus, during the temporary nullification of the law, the results would be the same from those proceeding from an unqualified nullification, and the result of a convention might be, that 7 out of the 24 states, might make the temporary results permanent. It follows, that any State which could obtain the concurrence of six others, might abrogate any law of the U. S. constructively whatever, and give to the Constitution any shape they please, in opposition to the construction and will of the other seventeen, each of the 17 having an equal right & authority with each of the 7. Every feature in the Constitution, might thus be successively changed; and after a scene of unexampled confusion & distraction, what had been unanimously agreed to as a whole, would not as a whole be agreed to by a single party. The amount of this modified right of nullification is, that a single State may arrest the operation of a law of the United States, and institute a process which is to terminate in the ascendency of a minority over a large majority, in a Republican System, the characteristic rule of which is that the major will is the ruling will. And this newfangled theory is attempted to be fathered on Mr. Jefferson the apostle of republicanism, and whose own words declare that “acquiescence in the decision of the majority is the vital principle of it.” [See his Inaugural Address.]
It is said that in several instances the authority & laws of the U. S. have been successfully nullified by the particular States. This may have occurred possibly in urgent cases, and in confidence that it would not be at variance with the construction of the Fedl Govt or in cases where, operating within the Nullifying State alone it might be connived at as a lesser evil than a resort to force; or in cases not falling within the Fedl jurisdiction; or finally in cases, deemed by the States, subversive of their essential rights, and justified therefore, by the natural right of self-preservation. Be all this as it may, examples of nullification, tho’ passing off witht any immediate disturbance of the public order, are to be deplored, as weakeng the com̃on Govt. and as undermining the Union. One thing seems to be certain, that the States which have exposed themselves to the charge of nullification, have, with the exception of S. C., disclaimed it as a constitutional right, and have moreover protested agst. it as modified by the process of South Carolina.
It is sometimes asked in what mode the States could interpose in their collective character as parties to the Constitution agst usurped power. It was not necessary for the object & reasoning of the resolns & report, that the mode should be pointed out. It was sufficient to shew that the authy to interpose existed, and was a resort beyond that of the Supreme Court of the U. S. or any authy derived from the Constitn. The authy. being plenary, the mode was of its own choice, and it is obvious, that, if employed by the States as coparties to and creators of the Constn it might either so explain the Constn or so amend it as to provide a more satisfactory mode within the Constn itself for guarding it agst constructive or other violations.
It remains however for the nullifying expositors to specify the right & mode of interposition which the resolution meant to assign to the States individually. They cannot say it was a natural right to resist intolerable oppression; for that was a right not less admitted by all than the collective right of the States as parties to the Const. the nondenial of which was urged as a proof that it could not be meant by the Resoln.
They cannot say that the right meant was a Constitl right to resist the constitutional authy for that is a construction in terms, as much as a legal right to resist a law.
They can find no middle ground, between a natural and a constitutional right, on which a right of nullifying interposition can be placed; and it is curious to observe the awkwardness of the attempt, by the most ingenious advocates [Upshur and Berrian].
They will not rest the claim as modified by S. C. for that has scarce an advocate out of the State, and owes the remnant of its popularity there to the disguise under which it is now kept alive; some of the leaders of the party admitting its indefensibility, in its naked shape.
The result is, that the nullifiers, instead of proving that the Resoln meant nullification, would prove that it was altogether without meaning.
It appears from this Comment, that the right asserted and exercised by the Legislature, to declare an act of Congs. unconstitutional had been denied by the Defenders of the alien & sedition acts as an interference with the Judicial authority; and, consequently, that the reasonings employed by the Legislature, were called for by the doctrines and inferences drawn from that authority, and were not an idle display of what no one denied.
It appears still farther, that the efficacious interposition contemplated by the Legislature; was a concurring and co-operating interposition of the States, not that of a single State.
It appears that the Legislature expressly disclaimed the idea that a declaration of a State, that a law of the U. S. was unconstitutional, had the effect of annulling the law.
It appears that the object to be attained by the invited cooperation with Virginia was, as expressed in the 3d. & 7th. Resol. to maintain within the several States their respective auths. rights, & liberties, which could not be constitutionally different in different States, nor inconsistent with a sameness in the authy. & laws of the U. S. in all & in each.
Lastly, it may be remarked that the concurring measures of the states, without any nullifying interposition whatever did attain the contemplated object; a triumph over the obnoxious acts, and an apparent abandonment of them for ever.
It has been said or insinuated that the proceedings of Virgs. in 98-99, had not the influence ascribed to them in bringing about that result. Whether the influence was or was not such as has been claimed for them, is a question that does not affect the meaning & intention of the proceedings. But as a question of fact, the decision may be safely left to the recollection of those who were co-temporary with the crisis, and to the researches of those who were not, taking for their guides the reception given to the proceedings by the Repubn. party every where, and the pains taken by it, in multiplying republications of them in newspapers and in other forms.
What the effect might have been if Virga. had remained patient & silent, and still more if she had sided with S. Carolina, in favoring the alien & sedition acts. can be but a matter of conjecture.
What would have been thought of her if she had recommended the nullifying project of S. C. may be estimated by the reception given to it under all the factitious gloss, and in the midst of the peculiar excitement of which advantage has been taken by the partizans of that anomalous conceit.
It has been sufficiently shown, from the language of the Report, as has been seen, that the right in the States to interpose declarations & protests, agst unconstitutional acts of Congress, had been denied; and that the reasoning in the Resolutions was called for by that denial. But the triumphant tone, with which it is affirmed & reiterated that the resolutions, must have been directed agst what no one denied, unless they were meant to assert the right of a single State to arrest and annul acts of the federal Legislature, makes it proper to adduce a proof of the fact that the declaratory right was denied, which, if it does not silence the advocate of nullification, must render every candid ear indignant at the repetition of the untruth.
The proof is found in the recorded votes of a large and respectable portion of the House of Delegates, at the time of passing the report.
A motion [see the Journal] offered at the closing scene affirms “that protests made by the Legislature of this or any other State agst. particular acts of Congs. as unconstitutional accompanied with invitations to other States, to join in such protests, are improper & unauthorized assumptions of power not permitted, nor intended to be permitted to the State Legislatures. And inasmuch as correspondent sentiments with the present, have been expressed by those of our sister States who have acted on the Resolutions [of 1798], Resolved therefore that the present General Assembly convinced of the impropriety of the Resolutions of the last Assembly, deem it inexpedient farther to act on the said Resolutions.”
On this Resolution, the votes, according to the yeas & nays were 57, of the former, 98 of the latter.
Here then within the H. of Delegates itself more than ⅓ of the whole number denied the right of the State Legislature to proceed by acts merely declaratory agst. the constitutionality of acts of Congs and affirmed moreover that the states who had acted on the Resols of Va. entertained the same sentiments. It is remarkable that the minority, who denied the right of the legislatures even to protest, admitted the right of the states in the capacity of parties, without claiming it for a single state.
With this testimony under the eye it may surely be expected that it will never again be said that such a right had never been denied, nor the pretext again resorted to that without such a denial, the nullifying doctrine alone could satisfy the true meaning of the Legislature. [See the instructions to the members of Congress passed at the same session, which do not squint at the nullifying idea; see also the protest of the minority in the Virga. Legislare. and the Report of the Comee of Congs. on the proceedings of Virginia.]
It has been asked whether every right has not its remedy, and what other remedy exists under the Govt. of the U. S. agst. usurpations of power, but a right in the States individually to annul and resist them.
The plain answer is, that the remedy is the same under the government of the United States as under all other Govts. established & organized on free principles. The first remedy is in the checks provided among the constituted authorities; that failing the next is in the influence of the Ballot-boxes & Hustings; that again failing, the appeal lies to the power that made the Constitution, and can explain, amend, or remake it. Should this resort also fail, and the power usurped be sustained in its oppressive exercise on a minority by a majority, the final course to be pursued by the minority, must be a subject of calculation, in which the degree of oppression, the means of resistance, the consequences of its failure, and consequences of its success must be the elements.
Does not this view of the case, equally belong to every one of the States, Virginia for example.
Should the constituted authorities of the State unite in usurping oppressive powers; should the constituent Body fail to arrest the progress of the evil thro’ the elective process according to the forms of the Constitution; and should the authority which is above that of the Constitution, the majority of the people, inflexibly support the oppression inflicted on the minority, nothing would remain for the minority, but to rally to its reserved rights (for every citizen has his reserved rights, as exemplified in Declarations prefixed to most of the State constitutions), and to decide between acquiescence & resistance, according to the calculation above stated.
Those who question the analogy in this respect between the two cases, however different they may be in some other respects, must say, as some of them, with a boldness truly astonishing do say, that the Constitution of the U. S. which as such, and under that name, was presented to & accepted by those who ratified it; which has been so deemed & so called by those living under it for nearly half a century; and, as such sworn to by every officer, state as well as federal, is yet no Constitution, but a treaty, a league, or at most a confederacy among nations, as independent and sovereign, in relation to each other, as before the charter which calls itself a Constitution was formed.
The same zealots must again say, as they do, with a like boldness & incongruity that the Govt of the U. S. wch has been so deemed & so called from its birth to the present time; which is organized in the regular forms of Representative Govts. and like them operates directly on the individuals represented; and whose laws are declared to be the supreme law of the land, with a physical force in the govt for executing them, is yet no govt. but a mere agency, a power of attorney, revocable at the will of any of the parties granting it.
Strange as it must appear, there are some who maintain these doctrines, and hold this language: and what is stranger still, denounce those as heretics and apostates who adhere to the language & tenets of their fathers, and this is done with an exulting question whether every right has not its remedy; and what remedy can be found against federal usurpations, other than that of a right in every State to nullify & resist the federal acts at its pleasure?
Yes, it may be safely admitted that every right has its remedy; as it must be admitted that the remedy under the Constitution lies where it has been marked out by the Constitution; and that no appeal can be consistently made from that remedy by those who were and still profess to be parties to it, but the appeal to the parties themselves having an authority above the Constitution or to the law of nature & of nature’s God.
It is painful to be obliged to notice such a sophism as that by which this inference is assailed. Because an unconstitutional law is no law, it is alledged that it may be constitutionally disobeyed by all who think it unconstitutional. The fallacy is so obvious, that it can impose on none but the most biassed or heedless observers. It makes no distinction where the distinction is obvious, and essential, between the case of a law confessedly unconstitutional, and a case turning on a doubt & a divided opinion as to the meaning of the Constitution; on a question, not whether the Constitution ought or ought not to be obeyed; but on the question, what is the Constitution. And can it be seriously & deliberately maintained, that every individual or every subordinate authy or every party to a compact, has a right to take for granted, that its construction is the infallible one, and to act upon it agst. the construction of all others, having an equal right to expound the instrument, nay against the regular exposition of the constituted authorities, with the tacit sanction of the community. Such a doctrine must be seen at once to be subversive of all constitutions, all laws, and all compacts. The provision made by a Constn. for its own exposition, thro’ its own authorities & forms, must prevail whilst the Constitution is left to itself by those who made it; or until cases arise which justify a resort to ultra-constitutional interpositions.
The main pillar of nullification is the assumption that sovereignty is a unit, at once indivisible and unalienable; that the states therefore individually retain it entire as they originally held it, and, consequently that no portion of it can belong to the U. S.
But is not the Constn. itself necessarily the offspring of a sovn authy? What but the highest pol: authy. a sovereign authy, could make such a Constn.? a constn. wch. makes a Govt.; a Govt. which makes laws; laws which operate like the laws of all other govts. by a penal & physical force, on the individuals subject to the laws; and finally laws declared to be the Supreme law of the land; anything in the Constn or laws of the individual State notwithstanding.
And where does the sovy. which makes such a Constn reside. It resides not in a single state but in the people of each of the several states, uniting with those of the others in the express & solemn compact which forms the Constn To the extent of that compact or Constitution therefore, the people of the several States must be a sovereign as they are a united people.
In like manner, the constns. of the States, made by the people as separated into States, were made by a sovereign authy by a sovereignty residing in each of the States, to the extent of the objects embraced by their respective constitutions. And if the states be thus sovereign, though shorn of so many of the essential attributes of sovereignty, the U. States by virtue of the sovereign attributes with wch they are endowed, may, to that extent, be sovereign, tho’ destitute of the attributes of which the States are not shorn.
Such is the political system of the U. S. de jure & de facto; and however it may be obscured by the ingenuity and technicalities of controversial commentators, its true character will be sustained by an appeal to the law and the testimony of the fundamental charter.
The more the pol: system of the U. S. is fairly examined, the more necessary it will be found, to abandon the abstract and technical modes of expounding & designating its character; and to view it as laid down in the charter which constitutes it, as a system, hitherto without a model; as neither a simple or a consolidated Govt. nor a Govt. altogether confederate; and therefore not to be explained so as to make it either, but to be explained and designated, according to the actual division and distribution of political power on the face of the instrument.
A just inference from a survey of this polit: system is that it is a division and distribution of pol: power, nowhere else to be found; a nondescript, to be tested and explained by itself alone; and that it happily illustrates the diversified modifications of which the representative principle of republicanism is susceptible with a view to the conditions, opinions, and habits of particular communities.
What seems to be an obvious & indefeasible proof that the people of the individual States, as composing the U. States must possess a sovereignty, at least in relation to foreign sovereigns is that in that supposition only, foreign Govts. would be willing or expected to maintain international relations with the U. S. Let it be understood that the Govt at Washington was not a national Govt representing a sovereign authy; and that the sovereignty resided absolutely & exclusively in the several States, as the only sovereigns & nations in our political system, and the diplomatic functionaries at the seat of the Fedl Govt would be obliged to close their communications with the Secy of State, and with new commissions repair to Columbia, in S. C. and other seats of the State Govts. They could no longer, as the Repts of a sovereign authy hold intercourse with a functionary who was but an agent of a self-called Govt which was itself but an agent, representing no sovereign authority; not of the States as separate sovereignties, nor a sovereignty in the U. S. which had no existence. For a like reason, the Plenipotentiaries of the U. S. at foreign courts, would be obliged to return home unless commissioned by the individual States. With respect to foreign nations, the confederacy of the States was held de facto to be a nation, or other nations would not have held national relations with it.
There is one view of the subject which ought to have its influence on those who espouse doctrines which strike at the authoritative origin and efficacious operation of the Govt of the U. States. The Govt of the U. S. like all Govts free in their principles, rests on compact; a compact, not between the Govt & the parties who formed & live under it; but among the parties themselves, and the strongest of Govts. are those in which the compacts were most fairly formed and most faithfully executed.
Now all must agree that the compact in the case of the U. S. was duly formed, and by a competent authority. It was formed, in fact by the people of the several States in their highest sovereign authority; an authority which cd have made the compact a mere league, or a consolidation of all entirely into one community. Such was their authy if such had been their will. It was their will to prefer to either the constitutional Govt now existing; and this being undeniably establd. by a competent and even the highest human authy, it follows that the obligation to give it all the effect to which any Govt could be entitled; whatever the mode of its formation, is equally undeniable. Had it been formed by the people of the U. S. as one society, the authority could not have been more competent, than that which did form it; nor wd a consolidation of the people of the States into one people, be different in validity or operation, if made by the aggregate authy of the people of the States, than if made by the plenary sanction given concurrently as it was in their highest sovereign capacity. The Govt whatever it be resulting from either of these processes would rest on an authy. equally competent; and be equally obligatory & operative on those over whom it was established. Nor would it be in any respect less responsible, theoretically and practically, to the constituent body, in the one hypothesis than in the other; or less subject in extreme cases to be resisted and overthrown. The faith pledged in the compact, being the vital principle of all free Govt that is the true test by which pol: right & wrong are to be decided, and the resort to physical force justified, whether applied to the enforcement or the subversion of political power.
Whatever be the mode in which the essential auty estabd. the Constn, the structure of this, the power of this, the rules of exposition, the means of execution, must be the same; the tendency to consol. or dissolution the same. The question, whether we the people means the people in their aggregate capacity, acting by a numerical majy of the whole, or by a majy in each of all the States, the authy being equally valid and binding, the question is interesting, but as an historical fact of merely speculative curiosity.
[1 ]He organized the medical department of Cincinnati College this year, and the address was doubtless before that or some other college.
[1 ]Orange C. H. Records.
[1 ]From the Works of Madison (Cong Ed).
[1 ]Discrepancies noted between the plan of Mr. C. Pinckney as furnished by him to Mr. Adams, and the plan presented to the Convention as described in his pamphlet.
[1 ]Alluding particularly to the debates in the Convention and the letter of Mr. Pinckney of March 28th, 1789, to Mr. Madison. [This note not included in the letter sent to Mr. Duer.]—Madison’s Note.
[1 ]Virginia proposed, in 1786, the Convention at Annapolis, which recommended the Convention at Philadelphia, of 1787, and was the first of the States that acted on, and complied with, the recommendation from Annapolis. [This note not included in the letter sent to Mr. Duer.]—Madison’s Note.
[1 ]The following analysis of the Pinckney plan was made by Madison 
Article 1 Style—
2. Division of Legislative power in two Houses.
3. Members of H. of D. to be chosen by the people &ce.
4. Senate to be elected by the H. of Del. &c.
5. relates to the mode of electing the H. of Del by the people & rules &ce. Every bill to be presented to the President for his revision
6. powers of the Legislature enumerated & all constitutional acts thereof and treaties declared to be the supreme law & the judges bound thereby.
Article 6th “all laws regulating commerce shall require the assent of two thirds of the members present in each House.”
The 14th article gives the Legislature power to admit new States into the Union on the same terms with the original States by ⅔ of both Houses, nothing further
no such provision.
“All criminal offences (except in cases of impeachment) shall be tried in the State where they shall be committed. The trials shall be open & public, & be by Jury.”
Article 9. gives the legislative power to establish Courts of law, equity & admiralty & relates to the appointment & compensation of judges—one to be the Supreme Court—its jurisdiction over all cases under the laws of U. S. or affecting ambassadors &c. to the trial of impeachment of officers of U. S.; cases of admiralty & maritime jurisdiction—cases where original and where appellate.
Article 10. after first Census the H. of D. shall apportion the Senate by electing one Senator for every — members each State shall have in H. of D.—each State to have at least one member.
See article 6th.
To establish uniform rules of naturalization in Article 6.
Article 16 provides the same by ⅔.
Nothing of it —
It is provided in article 9 that all criminal offenses (except in cases of impeachment) shall be tried in the State where committed. The trials shall be open & public, and be by Jury. Nothing as to the rest—
article 6 provides for a seat of Govt. & a National University thereat—but no protection for authors is provided.
Not in the plan.
In the plan of Mr.. Pinkney as presented to Mr Adams & published in the Journal of the Convention.
The House of Representatives to be chosen
No Council of Revision
The President to be elected for years—
not in the plan.
“and, except as to Ambassadors, other Ministers, and Judges of the Supreme Court, he shall nominate, and with the consent of the Senate, appoint all other Officers of the U. S.”
The 7th article gives the Senate the exclusive power to regulate the manner of deciding all disputes and controversies now subsisting, or which may arise, between the States, respecting jurisdiction or territory.
Article 7. Senate alone to declare War, make treaties & appoint ministers & Judges of Sup. Court. To regulate the manner of deciding disputes, now subsisting, or which may arise between States respecting jurisdiction or territory.
Article 8. The Executive power—H[is] E[xcellency] President U. S. for years & re-eligible. To give information to the Legislatures of the State of the Union & recommend measures to their consideration. To take care that the laws be executed. To commission all officers of the U. S. and except ministers & Judges of Sup. Court, nominate & with consent of Senate appoint all other officers—to receive ministers & may correspond with Ex. of different States. To grant pardon except in impeachments. To be commander in chief—to receive a fixed compensation—to take an oath—removable on impeachment by H. of D. and conviction in Supreme Court of bribery & corruption. The President of Senate to act as Pres. in case of death &ce and the Speaker of the H. of D. in case of death of Pres. of Senate.
Powers of the Senate enumerated Article 7. viz. “to declare war, make treaties & appoint ambassadors and Judges of the Supreme Court.”
“Every bill, which shall have passed the Legislature, shall be presented to the President for his revision; if he approves it he shall sign it; but if he does not approve it, he shall return it with his objections &ce &ce.
The Legislature shall have power
To subdue a rebellion in any State, on application of its Legislature;
To provide such dockyards & arsenals, and erect such fortifications as may be necessary for the U. S. and to exercise exclusive jurisdiction therein;
To establish post & military roads;
To declare the law & punishment of counterfeiting coin;
To declare the punishment of treason, which shall consist only in levying war against the U. S., or any of them, or in adhering to their enemies. No person shall be convicted of treason but by the testimony of two witnesses.
The prohibition of any tax on exports—
Plan as commented on in Pamphlet
Not adverted to
recommended as essential page 8.
recommended page 9, but the 4th. article relates to extending rights of Citizens of each State throughout U. S., the delivery of fugitives from justice on demand, & the giving faith & credit to records & proceedings of each—vide Art. 12 & 13.
This article declares that individual States shall not exercise certain powers, founded on the principles of the 6th of the Confederation. A Council of revision is stated to be incorporated in his plan page 9. Vide Art. 11, for prohibition—empowers Congress to raise troops, & to levy taxes according to numbers of whites and ⅗ of other descriptions
This article is stated to be an important alteration in the fed. system giving to Congress, not only a revision but a negative on the State laws. The States to retain only local legislation limited to concerns affecting each only, vide Art. 11th
“In all those important questions where the present Confederation has made the assent of nine States necessary, I have made the assent of ⅔ds of both Houses, when assembled in Congress, and added to the number the regulation of trade and acts for laying an Impost and raising a revenue.”
“I have also added an article authorizing the United States, upon petition from the majority of the citizens of any State, or Convention authorized for that purpose, and of the Legislature of the State to which they wish to be annexed, or of the States among which they are willing to be divided, to consent to such junction or division, on the terms mentioned in the article.”
page 25. “a provision respecting the attendance of the members of both Houses; the penalties under which their attendance is required, are such as to insure it, as we are to suppose no man would willingly expose himself to the ignominy of a disqualification.”
Trial by Jury is provided for “in all cases, criminal as well as Civil.”
The 9th article respecting the appointment of Federal Courts, for deciding controversies between different States, is the same with the Confederation; but this may with propriety be left to the Supreme Judicial & article 7th of the plan gives this power to the Senate of regulating the manner of decision).
The 10th article gives Congress a right to institute such offices as are necessary; of erecting a Federal Judicial Court; and of appointing Courts of Admiralty.
page 19. The exclusive right of coining money &c. is essential to assuring the federal funds—&c.
page 20. In all important questions where the Confederation made the assent of 9 States necessary I have made ⅔ of both houses—and have added to them the regulation of trade and acts for levying Impost & raising revenue.
page 20. The exclusive right of making regulations for the government of the Militia ought to be vested in the Federal Councils &c.
page 22. The article empowering the U. S. to admit new States indispensable. Vide Article 14.
page 23. The Fed. Govt. should possess the exclusive right of declaring on what terms the privileges of citizenship & naturalization should be extended to foreigners.
page 23. Article 16 provides that alterations may be made by a given number of the legislature.
page 25. There is also in the articles, a provision respecting the attendance of members of both Houses—the penalties under which their attendance is required are such as to insure it &c.
page 26. The next article provides for the privilege of the writ of Habeas Corpus—the trial by jury in all cases—criminal as well as civil—the freedom of the press, and the prevention of religious tests as qualifications for offices of trust &c.
page 26. There is also an authority to the National Legislature, permanently to fix the seat of the Genl. Govt., to secure to authors the exclusive right to their performances & discoveries, & to establish a federal university.
There are other articles of subordinate consideration.
The plan according to his comments in the pamphlet printed by Francis Childs in New York.
No provision for electing the House of Representatives.
A Council of Revision consisting of the Executive and principal officers of government. “This, I consider as an improvement in legislation, and have therefore incorporated it as a part of the system.”
The Executive to be appointed septennially
“—have a right to convene and prorogue the legislature upon special occasions, when they cannot agree as to the time of their adjournment, and appoint all officers except Judges and Foreign Ministers.”
“The 9th article respecting the appointment of Federal Courts for deciding territorial controversies between different States, is the same with that in the Confederation; but this may with propriety be left to the Supreme Judicial.”
The 7th. article invests the U. S. with the compleat power of regulating trade & levying imposts & duties. (The regulation of commerce is given in the powers enumerated article 6th of plan.)
Article 8 like same in Confed & gives power to exact postage for expense of office & for revenue.
Page 9. The executive should be appointed septennially, but his eligibility should not be limited. Not a branch of the Legislature further than as part of the Council of revision. His duties to attend to the execution of the Acts of Congress, by the several States; to correspond with them on the subject; to prepare and digest, in concert with the great Departments business that will come before the Legislature. To acquire a perfect knowledge of the situation of the Union, and to be charged with the business of the Home Deptm. To inspect the Departments. To consider their Heads as a Cabinet Council & to require their advice. To be Commander in Chief—to convene the legislature on special occasions & to appoint all officers but Judges & Foreign ministers—removable by impeachment—Salary to be fixed permanently by the Legislature.
“to secure to authors the exclusive right to their performances and discoveries.”
The executive “is not a branch of the Legislature, farther than as a part of the Council of revision.”
These and other important powers are unnoticed in his remarks.
There is no numerical correspondence between the articles contained in the plan & those treated of in the pamphlet & the latter alludes to several more than are included in the former.
[1 ]Copy of the original kindly furnished by Charles Francis Adams, Esq., of Boston.