The right claimed for the States of annulling the Constitution and laws of the United States, must, says the Vice-President, belong to them, unless they have expressly surrendered or transferred it. We have already seen, that no member of a body politic, whether composed of States or individuals, does or can possess a right to annul or repeal the law; and that the contrary proposition involves a contradiction in terms. Were the Constitution wholly silent on the subject, the mere fact that they had formed themselves, by a solemn social compact, into one great people, subject to a common Government, though retaining, as distinct communities, no inconsiderable share of the legislative power,—this fact alone, we say, would have carried with it a peremptory obligation upon the States to obey the law as construed by the courts of justice, excepting in the extreme cases that justify resistance. It would, however, be natural enough for independent States, in forming a compact of this description, to introduce an expression of this obligation; and it may be a matter of curiosity to consider for a moment what language could have been used, in order to express the idea in the most direct and unequivocal manner. To one who was seeking for such an expression, some such phrase as the following would probably occur.No State shall have a right, either in the exercise of the sovereign (constitution-making) or the ordinary legislative (law-making) power, to annul or arrest the execution of this Constitution, or any law made in pursuance of it by the General Government.This, we say, or something like it would probably be the language, which would occur to any one who was seeking for the most direct and unequivocal expression of the idea, that the States have no right to set up their authority against that of the General Government. Now the language of the Constitution on this subject is still more decisive, because it expresses the same ideas conveyed by that here supposed in two forms, the one positive and the other negative.This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made or which shall be made under the authority of the United States, shall be the supreme law of the land.This positive declaration carries with it, as we have said, by implication, the full import of the negative one which we have supposed above: but in order to make assurancedoublysure, the framers of the Constitution added a negative declaration, which, though more concise than the one we have supposed, is of precisely the same meaning;and the judges in every State shall be bound thereby, any thing in the Constitution or laws of any State to the contrary notwithstanding. This declaration, we repeat, though more concise, is equivalent in meaning to the more extended expression of the same idea, which we have imagined as the most direct and unequivocal that could possibly be used.—Any thing in the laws of any State to the contrary notwithstanding.—No State, in the exercise of its ordinary law-making power, shall have a right to annul or arrest the execution of this Constitution, or the laws made in pursuance thereof by the United States.Any thing in the Constitution of any State to the contrary notwithstanding.—No State, in the exercise of her sovereign or constitution-making power; no State, acting in her sovereign capacity, shall have a right to annul or arrest the execution of this Constitution, or the laws made in pursuance thereof by the United States. Any act that may be done for this purpose is to be,ipso facto, null and void.The judges shall not be bound by it.Will the Vice-President or any person of plain common sense undertake to say, that this is not a correct paraphrase of the negative clause in the Constitution? If it be admitted that it is, will the Vice-President or any man of plain common sense undertake to say, that if the framers of the Constitution had employed the language of this paraphrase instead of the concise equivalent phrase which they used, there could be any doubt respecting the character of the present proceedings in Carolina? There is, in fact, no doubt about it.
It is painful to see a person so distinguished for talent, and, as we have hitherto been willing to believe, for uprightness of purpose, as Mr. Calhoun is, attempting to escape by a side path from the plain and obvious meaning of this clause, which he shrinks from meeting in the face. He alludes to several propositions that had previously been submitted to the Convention which framed the Constitution, for the purpose of making the acts of the General Government paramount to those of the States; and because these were rejected, he concludes, that the one which was adopted is not to be carried into effect according to its plain and natural sense. Is this fair argument? Is it even plausible? It is impossible, within the narrow compassof an article, to go fully into every part of this vast subject; but any one, who will take the trouble to examine the proceedings of the Convention, will readily see why they rejected the first propositions, and why they adopted the last. As the States retain a very considerable portion of the legislative power, and remain, for many purposes, distinct communities, it was thought important that, in regard to the exercise of the powers so retained, they should not be under the formal control of the General Government:—in other words, that so far as they were sovereign, they should not be subject. Hence the rejection of the proposal of General Hamilton to give the President a negative on all State laws; and hence subsequently the amendment of the Constitution, by which it was ordained that no State should be sued at law. This was all perfectly proper: but it was also essential that the paramount authority of the acts of the General Government should be secured, and the object was attained by the proposition finally adopted, which declares distinctly, both in a positive and negative form, that such is the understanding of the Convention, and leaves it tothe Courts of Justiceto enforce the provision. This plan is just as effectual as the other would have been, because the decisions of the courts may and must be sustained, if the occasion require it, by the whole military force of the country; while at the same time it removes the possibility of any actual collision between the two law-giving powers, in the regular performance of their functions. Each exercises a complete and uncontrolled discretion as to the objects and extent of its own legislation;—puts its own construction upon its own powers;—passes, in short, any laws which it deems constitutional and expedient. Neither, in this form of action, has any control over the proceedings of the other.—The General Government has no more right to annul an act of the State of South Carolina, than the State of South Carolina has to annul an act of the General Government. But when the proceedings of the two powers come into collision,—as it may well be supposed that, under such circumstances, they occasionally will,—the silent operation of the Courts of Justice gives the ascendancy, where the Constitution declares that it belongs, to those of the General Government. The provision, like most others in the Constitution, is obviously the simplest and best that could have been adopted. The rejection of other propositions of similar tendency only proves that the Convention considered the subjectvery maturely, and successively laid aside the several imperfect and inexpedient methods of effecting the great object in question, which were proposed to them, until they finally hit upon one that was satisfactory.
In alluding to this decisive clause in the Constitution, the Vice-President omits entirely the negative part of it, and quotes it in the following form:—This Constitution and the laws made in pursuance thereof shall be the supreme law of the land.He then adds that he shall not go into a minute examination of its effect, the subject having been already so frequently and so ably investigated, that he deems it unnecessary. This might have been a good reason for not discussing it at all; but if it was expedient to discuss it at all, it seems hardly proper that the most material point in the argument should be passed over in silence. The omission looks very much like conscious weakness. For ourselves, we have met with no suggestion, whether made on this or any former occasion, which, according to our views, has thrown even the shadow of a doubt upon the meaning of the passage. The pretext for a question would probably be sought in the qualification,made in pursuance of the Constitution. It may be said that, under this qualification, laws not made in pursuance of the Constitution are not paramount to those of the States. But this phrase has obviously no bearing on the point in question. The meaning is, that the Constitution and the laws of the United States, madein the manner prescribed by it, orfor the purpose of carrying it into effect, shall be the paramount law of the land, just as in the other part of the phrase it is said, that treaties madeunder the authority of the United Statesshall also form a part of this paramount law. In both cases, there is no reference to the question, whether the law or the treaty has been made in a rightful or wrongful exercise of the legislative or treaty-making power. It is merely affirmed that the acts of the General Government, performed in the exercise of their powers under the Constitution, are paramount to those of the States. The same language is used in the Ordinance of Nullification, which declares that 'this Ordinance and the lawsmade in pursuance thereofby the legislative power of the State, shall be binding on the citizens.' It is obviously not intended, that the citizen shall judge for himself whether the laws so made are or are not agreeable to the tenor of the Ordinance, but merely that the laws which the assembly,—acting underthis Ordinance or in consequence of the recommendation contained in this Ordinance,—may pass, shall be obligatory.
This qualification, which has sometimes, we believe, been regarded as very significant, has therefore no bearing on the point in question, nor is it, as Mr. Calhoun imagines, by the clause conferring on the Supreme Court the power of deciding in all cases arising under the Constitution, that the States are supposed to be deprived of their right of putting their own construction upon the powers of the General Government. The right of deciding on the constitutionality of the laws of the United States, belongs, from the nature of the case, to the courts, and is expressly given to the Supreme Court by the Constitution; but the possession of this right by the courts does not carry with it that of deciding, that an act of the General Government is of paramount authority to one of a State. On this subject, we are quite surprised at the looseness of the Vice-President's reasoning, and its apparent inconsistency with the general scope of his doctrine. 'Where there are two sets of rules,' he remarks, 'prescribed in reference to the same subject,one by a higher and the other by an inferior authority, the judicial tribunal called on to decide the case, must unavoidably determine, should they conflict, which is the law; and that necessarily compels it to decide that the rule prescribed by theinferior power, if, in its opinion, inconsistent with that of the higher, is void.'—This doctrine is strange indeed in the mouth of the Prince of nullifiers and great champion of State Sovereignty. Where, we would ask, has the Vice-President learned that the State Governments are inferior and the General Government a superior power?—We must inform him, that without being nullifiers, and without believing in the doctrine of State Sovereignty, we make no such admission for Massachusetts. The State and General Governments, each of which exercises, independently of the other, a portion of the sovereign or legislative power of the people, are neither superior nor inferior to each other: they are precisely on a level. The right of deciding on the constitutionality of the acts of the General Government would no more of itself authorize the judges to decide that they are paramount to those of the States, than it would authorize them to decide that the acts of the States are paramount to those of the General Government. The two Governments, considered as distinct legislative powers, are on a footing of perfect equality. The question, which shallprevail when their acts come into collision, must be decided by the nature of the case, and by the specific provisions of the Constitution. It follows, from the nature of the case, that the acts of the General Government, which represents the body politic of which all the States are members, must have an authority paramount to any other existing in the community; and this conclusion is confirmed by the letter of the Constitution, which expressly declares, in so many words, that the acts of the General Government are paramount to those of the States. It was by forming themselves into one body politic, and by expressly stipulating with each other in the compact by which this body politic was formed, that the acts of the General Government representing it should be paramount to their own, that the States surrendered the right of putting their own construction on the powers of the General Government; and this is the foundation of the authority possessed by the judges, when, by virtue of a different clause, they take cognisance of cases arising under the Constitution, to decide, as they undoubtedly must and would do, that any act of a State, whether in its sovereign or legislative capacity, pretending to annul an act of the General Government, is of itself,ipso facto, null and void.
Finally, says the Vice-President, 'it belongs to the authority which imposes an obligation, to declare its extent, as far as those are concerned on whom the obligation is placed. The obligation upon the individual citizens of the United States to obey the laws, results from the acts of their respective States, by which they became parties to the Union; and a similar act of the same authority declaring the extent of the obligation must be of equal authority, and of course releases the citizen from the obligation which he came under, by the effect of the former one.'
This is a point of great importance. It is here admitted, that the individual citizens are under an obligation to obey the law which the State is attempting to annul; but it is affirmed, that they may be discharged from this obligation by an act of the State annulling the law,becausethe same authority which imposed the obligation upon them has a right to release them from it. It is a matter of high concern for all who wish to know, and knowing, mean to perform theirduties, to inquire how far this principle is true, or, if true, applicable to the present case.
The same authority which imposes an obligation must ofnecessity possess the right of dispensing with it, or declaring its extent.This principle, properly explained, may be received as true. But what is the authority which imposes the obligation,—for example, to execute a contract? Does the Vice-President suppose that it is thewillof the parties who make the contract, and that the same will which brought each of them under the obligation, can, at any time, release him from it? Does he suppose, for example, that it is the will of the two parties to a contract of marriage which imposes upon them the obligations incident to that contract, and that either party can, by a mere act of the will, exempt him or herself from these obligations? We are quite sure, that Mr. Calhoun would not himself think of maintaining a doctrine so monstrous. What then is the authority which imposes the obligation? The answer is plain. The authority imposing the obligation is the one which makes the law, from which the obligation results. In ordinary cases, when the obligation results from the laws of the land, the authority imposing it is the Government of the country. In the case of contracts between parties not subject to the same Government, the obligation results from the moral law, and is imposed by the will of the great Lawgiver of the Universe. The present is the case of an obligation resulting from the law of the land. The citizens of South Carolina are bound to pay the duties required by the existing Tariff, because it is a part of the law of the land. They were brought under the obligation to obey the laws of the United States, by the act of the State of South Carolina, by which she and twelve other States formed themselves into one body politic, under a common Government, just as an individual is brought under the obligations resulting from a contract of marriage, by his own will to enter into it. But the authority imposing the obligation is in both cases not the will of the party, but the Government of the country. The Government has the same right to repeal or alter the law which it had to enact it, and in this sense the principle is true, that the same authority which imposes the obligation, has a right to dispense with it or to declare its extent. But the citizens of South Carolina, whether in their individual or joint capacity, have no more right to exempt themselves, by any act of their own, from the obligation to obey the laws which they have come under by adopting the Constitution, or to declare its extent, than they have to exempt themselves by their own act from the obligation to support their wives and children, which they have come under by enteringinto contracts of marriage. Nor does it make any difference that the act, by which the citizens of Carolina became parties to the social compact, was performed by them in their joint and not in their individual capacity. There are many cases, in which individuals are brought under obligations of various kinds by acts partly or entirely independent of their own will. A child is brought under the obligations which he owes to his parents by an act of theirs, over which he had no control. Will it be pretended that they have a right to relieve him from these obligations, or to determine their extent? A husband is liable for his wife's debts,—a principal is bound by the acts of his agents,—a ward by those of his guardian:—will it be pretended that the wife, the agent, the guardian has, either in law or morals, a dispensing or interpreting power over the obligations which they have brought upon other individuals by their acts? No person of sound mind could hazard so extravagant an assertion. Just as preposterous would it be to imagine, that because the citizens of Carolina were brought under their obligation to obey the laws by an act of the State, that is, of themselves in their joint capacity, they have therefore a right, acting in their joint capacity, to exempt themselves individually from this obligation. Common sense revolts at the suggestion. It is really wonderful, that principles so palpably erroneous should be depended on by a man like Mr. Calhoun, as a justification for measures of such transcendent importance and fearful tendency.
The principle that the same authority which imposes an obligation may dispense with or determine its extent is therefore, rightly understood, a true and salutary one: but instead of sustaining the Vice-President's doctrine, it completely refutes the very point which it was employed to establish. The authority which imposes upon the citizen the obligation to pay the duties is the Government of the country; and the same authority only can, by repealing or modifying the law, release him from this obligation, or in any way affect its character.
We have thus adverted, somewhat in detail, to the principal points in the Vice-President's exposition, and have endeavored to show that the doctrine of nullification is, upon the face of it, unconstitutional, impracticable and of ruinous tendency, and that there is no solid foundation for the few considerations of an argumentative character, by which Mr. Calhoun has endeavored to support it. Before taking leave of the subject, it may be proper to notice some views of a rather more generaldescription which occupy a considerable portion of his letter, and are evidently regarded by its author as highly interesting and important.
It has often been objected, and as we conceive with great justice, to the pretensions of the Carolina politicians, that they contradict the acknowledged principle of republican Government, that the will of the majority should govern. That one State should undertake to annul the proceedings of the whole twenty-four, is a thing plainly at variance with this received and salutary axiom. In attempting to reply to this objection, the Vice-President takes a distinction between what he callsabsoluteandconcurring majorities. By the former, he understands the numerical majority of the citizens taken in the aggregate; by the latter, a majority of the different sections, classes or interests into which they are divided. The absolute majority has, as he conceives, a constant disposition to encroach upon the rights of the minority; and in order to protect the sections or interests of which the minority is composed, it is important that each of these sections or interests should have a voice, as such, in the administration of the Government. In this country the distinct sections or interests are chiefly the States; and the doctrine of nullification, in authorizing a single State to arrest the action of all the rest, although it contravenes the principle of the absolute, is in perfect accordance with that of the concurring majority. This latter principle is recognised, according to the Vice-President, in the political institutions of most of the free States of all periods. He cites particularly the case of Rome, where the tribunes, representing the Plebeian class, had a negative upon the acts of the Senate. In this country, he conceives it to have been the intention of the framers of the Constitution, that the principle of the absolute majority should prevail in the ordinary business of administration, and that of the concurring majority in all questions belonging to the formation, amendment or construction of the Constitution. This is the great secret of the 'solidity and beauty of our admirable system;' and the doctrine of nullification, which proceeds upon this principle, instead of having a tendency to weaken this system, on the contrary confirms and carries it into effect in one of its most essential and salutary provisions.
To reasoning of this kind,—were it even more specious and plausible than this in our opinion is,—it would be a sufficientanswer, that it is entirely of an abstract and speculative character, and affords of course no proper basis for important political action. It is, in fact, one of the most curious circumstances in this affair, that the leading Southern politicians have throughout founded their pretensions, and predicated the measures they recommend on principles, economical and political, not only wholly theoretical and vague, but before unheard of, broached by themselves for the first time, and repugnant to the received opinions of the whole practical and scientific world. Such is their doctrine, that the producer and not the consumer pays the taxes:—such is this of absolute and concurring majorities. The very language employed is entirely new. The phraseconcurring majority, which, taken separately, is wholly unintelligible, and when explained as it is, involves a contradiction in terms, was, as far as we are informed, invented by Mr. Calhoun. Now we put it in perfect sincerity to the conscience of that gentleman and his political friends to say, whether it is fair and reasonable to expect, that the people of the United States will adopt instantaneously as a rule of action in the most important concerns, the new theories that may occur to a few citizens, however distinguished, in their abstract speculations on the sciences of politics and political economy. We cheerfully give full credit to the discoverers of these hitherto unheard of principles, for their talents, ingenuity and research, and should always listen with great attention to the suggestions they might make; but we cannot consent to receive them at once, and without reflection or examination, as infallible guides for conduct or even opinion. Before an abstract principle, however plausible it may appear, can be safely adopted as a basis of action in important matters, whether public or private, it must for a long time be canvassed, examined, opposed and defended, until it is finally admitted into the number of acknowledged and popular truths. We find, accordingly, that in the British Parliament, which affords the most illustrious example of deliberative legislation, no appeal is ever made to abstract principles, even such as are generally admitted. The argument turns entirely upon precedent and plain common sense. During the last fifteen or twenty years, propositions have been repeatedly made in the House of Commons of measures predicated on the pretended discoveries of Malthus, in regard to the law of population. But, although the belief in hisdoctrines was at one time nearly universal, and was probably shared by most of the members of Parliament, no measures predicated upon them could ever be got through. The event has fully justified this caution, the doctrine in question being now almost as universally rejected as it was at one time admitted. In the French Chambers, there is a greater disposition to abstract speculations, but the reference is always, in form at least, to acknowledged and received principles. No individual, as far as we are informed, ever undertook even there to broach an entirely new theory upon any subject, and demand, at the same moment, that it should be made the basis of immediate proceedings of the highest moment. To do this was reserved for the statesmen of the Carolina school, and they have done it at every stage in the progress of this business. At the very outset, Mr. McDuffie one fine morning rises in the House of Representatives, and, after entertaining his colleagues with a dissertation on the abstract principles of political economy, concludes by saying to them,—'Gentlemen, all this is entirely new: nobody ever heard of it before; it is directly opposed to all the received opinions on this subject; Adam Smith, Say, Ricardo, Hamilton, Gallatin know nothing about it, but so it is;—ipse dixi;—I have said it, and you will of course act upon it, and change at once the whole basis of your economical legislation.' The majority, as might naturally have been expected, decline complying with this polite proposal. This refusal is the intolerable grievance, of which the Carolina gentlemen are now complaining. What shall be the remedy?—At this point Mr. Calhoun in his turn takes the field, with an entirely new theory on the principles of the Constitution; for the very statement of which he is obliged to invent new forms of language, and which goes to nothing less than giving to one member of the body politic a right of controlling the action of all the rest. Novel, dangerous as, on the face of it, it is, this speculation too must be made the basis of immediate action: and sorry we are to say, that its author has found, in his own State, a majority of the community prepared to act upon it. For ourselves, we cannot recognise such a mode of proceeding as judicious, customary, or at all admissible in the practical administration of a wise and great people.
This being the true answer to this part of Mr. Calhoun's argument, it is unnecessary to go at length into an examination of the doctrine of absolute and concurring majorities.We shall therefore merely remark that it is, as far as we have considered it, as incorrect and unsubstantial, as it is novel. It is important, no doubt, that the respective interests of the various territorial, professional, religious and other sections of society should be, as far as may be convenient, represented in the administration of the Government. This was the first rude form, in which the great modern discovery of the principle ofRepresentationin Government dawned upon the minds of our European ancestors. The idea was acted upon in the political assemblies of the middle ages, denominated States General and Parliaments, in which the nobles, the clergy, the cities, the commons, and in some cases the peasants had each a separate representation. But in these and all other similar cases, the object was to obtain a concurrence of the different classes of society inmakingthe law: nor do we believe that any example can be produced, either from ancient or modern history, with perhaps the single exception of theConfederationsof Poland, in which the Constitution, written or unwritten, that is, the form prescribed by express agreement or usage formakingthe law, expressly authorizes any individual citizen or class of citizens tobreakthe law. The idea is obviously self-contradictory and absurd. The case of the tribunes at Rome, to which the Vice-President alludes, is not in point. The tribunes possessed, by law, a negative upon the acts of the Senate, precisely as the President of the United States and the Governors of all the States possess a qualified negative upon the acts of Congress, and the State Legislatures. An act of the Roman Senate, which was negatived by a tribune, never became a law, and of course could not benullified.
In our Constitution, the idea of representing different interests in the machinery for making the law, has been retained in favor of the States. These, independently of their representation on the principle of the numerical amount of their population in the House of Representatives, have a distinct representation on a footing of perfect equality in the Senate. A bill, which has obtained the sanction of the two Houses of Congress, hasipso factobeen approved by a representation of theabsolute majorityof the whole people of the Union, and of what the Vice-President is pleased to call theconcurring majority, that is, a majority of the representatives of the States, considered as distinct communities. The arrangement is one, which the Vice-President, reasoning consistently upon his owntheory, ought to consider as perfect. But this does not satisfy him. Not content with obtaining for each of and all the States a full representation, on the principle both of the absolute and concurring majorities,—the very thing which he professes to wish for,—he insists that each shall havein additionfor itself a right tobreakthe law, which it has itself concurred in making:—that each State, after co-operating by its presence in imposing upon the other States the obligations resulting from a law, has a right to exempt itself by its own separate act from bearing its own share of these burdens; and,—as the rights of all the States in this respect are of course the same,—that the law, which is in form binding upon every body, is in fact and in reality binding upon nobody, since each of the parties supposed to be bound by it possesses individually a right to break it.—A right to break the law!
This is really too extravagant, and were it not for the respect which we have heretofore been disposed to entertain for the talents and character of Mr. Calhoun, we should find some difficulty in believing that he can be honest in expressing such opinions. The case furnishes a very strong example of the extent, to which party feeling and disappointed personal ambition can bewilder the conceptions of a naturally acute and powerful mind. If the Vice-President will review his principles, with only a small portion of the sagacity and correctness of judgment which he could bring to any other subject, he will see at once that the right which he claims for the States, is not that of being represented as distinct interests in the making of the law, (which they are by the Constitution) but that ofresistingthe execution of it, when made; and that the proceedings in which he is engaged, whether justifiable or not, are essentiallyrevolutionary.
The Vice-President indulges in another course of remarks of considerable extent, which, though not directly applicable to the leading points of the argument, are of too serious a cast to be passed over without notice. He undertakes to show, that the Government of the Union would not be authorized to employ force against a State which should annul one of their acts; and, anticipating the objection that nullification is equivalent to a secession from the Union, which would place the seceding State in the attitude of a foreign one, he proceeds to reply to it by pointing out what he considers the distinction betweennullificationandsecession. Secession is the actualretirement of one of the partners to a common concern; nullification is the refusal of the same partner to be bound by an act of the common agent. The object of the former is to dissolve the partnership,—of the latter, to confine it to its proper object. The right to secede, that is, to avoid the obligation of all the acts of the partnership, supposes the right to nullify, that is, to avoid the obligation of one: and there is therefore an obvious inconsistency in the theory of those, who, as the Vice-President tells us is the case with many persons, admit the former and deny the latter. For himself, he liberally concedes both: a State, according to him, has a right at discretion either to exempt itself by its own act from the obligation to obey any particular act of the General Government, or to nullify the whole, Constitution and all, at one fell swoop, and secede entirely from the Union.
Presented in this crude, unsophisticated and unqualified shape, the system of the Vice-President becomes almost ludicrous; but when we recollect the respectability of the quarter from which it proceeds, and the serious aspect which the practice upon it is assuming at the South, a painful feeling irresistibly predominates. Did Mr. Calhoun, when he was entering on these forbidden speculations, recollect the impressive language in which the Father of his country, forty years ago, pointed out their danger? 'It is of infinite moment, that you should properly estimate the value of your national Union to your collective and individual happiness; that you should cherish a cordial, habitual and immoveable attachment to it; accustoming yourselves to think and speak of it as the palladium of your political safety and prosperity;discountenancing whatever may suggest even a suspicion that it can in any event he abandoned; and indignantly frowning upon the first dawning of every attempt to alienate any portion of our country from the rest, or to enfeeble the sacred ties which now link together its various parts.' Is itdiscountenancing whatever may suggest even a suspicion that the Union can in any event be abandoned, to affirm explicitly and without qualification, that every State has a right at its own discretion to secede from the Union? Is itfrowning indignantly upon the first dawning of every attempt to enfeeble the sacred ties which link together the United States, to maintain that these links are a mere cobweb, which any one of the States has a right to break through or shake off at its own discretion? Is this a fit and proper lesson to come from the high places ofthe Federal Government, from the second in rank of the citizens who have been selected from the whole country, as the immediate executors of the great charter of the Union? We agree with Mr. Calhoun, that of the two heresies to which he alludes, the greater includes and supposes the less:—that it would be inconsistent for any one, who admits the right of nullifying at once, by secession, the Constitution and all the laws, to deny the right of nullifying one; but we utterly deny that either can be reconciled with the letter or spirit of the Constitution. The social compact,—like the contract of marriage,—is one in which the parties take each other for better or worse, for sickness or health, for life and for death. It is one from which they have no right to retire at discretion. They can have no right, as States or individuals, to avoid, either wholly or in part, the obligations of this compact, and the laws made under it, for the plain and unanswerable reason, that this compact and the laws made under it are the rule which determines for them what is right, and that opposition to the rule of right must of course be wrong. Extreme cases may undoubtedly occur, in which the obligation may, either wholly or in part, be innocently avoided; but they cannot, from the nature of the subject, be either contemplated in or reconciled with the law. The patriot shrinks from dwelling upon the circumstances under which they would happen, as he would from imagining a case, that should justify him in lifting his hand against his own father. His heart sickens at the thought that any such contingency can possibly occur. If forced to meet it, he makes no vain attempt to reconcile his conduct with the rule which he violates; no pretension to obey and break the law at one and the same time:—he boldly avows that his act is unconstitutional, and appeals for its justification to the Supreme Governor of the Universe, who has engraved upon the heart of man a law which, in some extreme cases, he is permitted to regard as paramount to every other.
We have now finished what we thought it necessary to say in the way of direct commentary upon Mr. Calhoun's exposition. On the leading points of the question, we have argued chiefly from his admission, which is made in the fullest and most explicit manner, that the United States are under a common Government, holding the same relation towards them that the Governments of the several States and all others hold to the communities over which they are respectively established.From the fact thus admitted, it follows, of necessity, as we have repeatedly remarked, that the Constitution is not a league or treaty, but a social compact, and that the Union is not a cluster of twenty-four independent States, but one body politic composed of twenty-four members,—each exercising a certain portion of the legislative or sovereign power, but having no pretension to independence. If this admission had been made unguardedly by Mr. Calhoun, and were not assented to by other champions of the same creed, it would be unfair to take advantage of it in the argument; but this is not the case. This exposition by the Vice-President is recognised by the nullifiers as the most authentic statement that has yet appeared of their sentiments, and is constantly referred to as the standard and symbol of the true nullifying faith. Other writers of high authority on the same subject hold the same language with the Vice-President, particularly the authors of the addresses issued by the late Columbia Convention. The Report, attributed to Mr. McDuffie, declares that 'the States entered into asolemn compactwith each other, by which they established aGeneral Government,' and quotes in support of his position the remark of Mr. Jefferson, that the States, by acompact, under the style and title of the Constitution of the United States, constituted aGeneral Government. In like manner Mr. Turnbull, in his address to the people of South Carolina, tells them that 'the Constitution of the United States is admitted by contemporaneous writers to be acompactbetween (formed by) sovereign States, and that the subject matter (object) of that compact was aGovernment.' Finally, General Hayne, in the address to the people of the United States, remarks that the 'Constitution is acompactformed between the several States, acting as distinct communities, and that theGovernmentcreated by it is a joint agency of the States.' They all pursue the same line of reasoning with the Vice-President, frequently quote his language, and evidently consider his writings as the creed of the party.
So far, indeed, is the admission to which we have alluded from being made by the Vice-President unguardedly or unintentionally, that in other parts of his exposition he in fact goes by necessary implication a great deal farther. He not only recognises the existence of a common Government, and consequently of one body politic, but lays it down as one of the leading points of his doctrine, that this body politic hasunlimited powerover its members, the States. Strange as it mayappear to readers who have not looked attentively at the subject, it is actually one of the leading articles of the nullification creed, as expounded by the Vice-President in the document before us, that the United States are a body politic, possessing under the Constitution unlimited power over all its members. A State nullifies an act of the General Government; the General Government is then bound to apply to the States for a grant of the disputed power, in the form prescribed for amending the Constitution.—If three-fourths of the States grant the power,—what follows?The nullifying State is bound to acquiesce.'If granted,' says the Vice-President, 'acquiescence would then become a duty on the part of the State.' No matter how large the concession,—no matter how important the alteration made in the character of our institutions,—should the General Government even claim a right to exercise all the powers of an unlimited military despotism, let but the change be proposed and carried through in the form of an amendment of the Constitution, and the individual States arebound to acquiesce!
And yet these States, who have not only formed themselves into one body politic under a common Government, to which they have delegated the most important powers that are exercised by other Governments, but who have bound themselves to each other to acquiesce in any extension of these powers that may be agreed upon by three-fourths of the number, remain nevertheless as completely sovereign and independent, since the conclusion of the compact containing these provisions, as they were before!
In what way the characters of sovereignty and independence are to be reconciled with the obligation, not only to obey a Government possessing certain specified powers, but to acquiesce in any extension of these powers that may be agreed upon by certain other parties, without the consent of the supposed sovereign and independent State, neither the Vice-President, nor Gov. Hamilton, nor Gen. Hayne, nor Mr. McDuffie, nor Mr. Turnbull, nor any other writer on the subject of nullification has condescended to inform us. They all freely admit, that the States are bound in ordinary cases to obey the laws made by the General Government:—that even in the particular cases where they have a right to nullify these laws, they are bound to submit to the decision of three-fourths of the States; and that in general they are bound to acquiesce in any extension of the powers of the General Government, thatmay be agreed upon without or against their consent by three-fourths of the States; but still maintain with one voice and an air of honest wonder that any body can differ from them, that each State is still, to all intents and purposes, as completely sovereign and independent, as before the adoption of the Constitution. 'The several States,' says the Report of the Columbia Convention, 'retain their sovereignty unimpaired.' 'The States are as sovereign now,' says the address to the people of Carolina, 'as they were prior to entering into the compact.' It is admitted that 'aforeignor inattentive reader, (Qu: Is Mr. Turnbull a native citizen?) unacquainted with the origin, progress and history of the Constitution, would be very apt, from the phraseology of the instrument, (a pretty good ground, one would think, for argument upon its meaning) to regard the States as having divested themselves of their sovereignty, and to have become (regard to have become, is not good English, Mr. Turnbull) great corporations, subordinate to one Supreme Government.' 'But this,' it seems, 'is (would be) an error.' 'The Federal Constitution is a treaty, a confederation, an alliance,' the parties to which are 'so many sovereign States.' General Hayne, in like manner, describes the States, in the address to the people, as 'the sovereign States of the confederacy.' 'The Constitution,' says the Vice-President in the exposition before us, 'is as strictly and as purely a confederation, as the one which it superseded.' 'The case of a treaty between sovereigns is strictly analogous to it.' 'At the bottomof almost every misconception as to the relation between the States and the General Government,lurks the radical errorthat the latter is a national, and not, as in reality it is, a confederated Government.'
In other times, when other doctrines were fashionable in South Carolina, we were told by one of her distinguished statesmen of a very differentradicalerror, which waslurking at the bottomof a doctrine which he then thought it his duty to oppose. 'The States, as political bodies,'—said Mr. McDuffie in his well-known pamphlet,The Trio, published about ten years ago,—'the States, as political bodies, have no original inherent rights. That they have such rights, is a false, dangerous and anti-republican assumption, whichlurks at the bottomof all the reasoning in favor of State rights.'—Is there not room to apprehend that the error, which really lurks at the bottom in both these cases, is not precisely the one alluded to by eitherof these distinguished statesmen, but another which was also signalised by Mr. McDuffie on the same occasion and in the same pamphlet? 'Ambitious men of inferior talents, finding that they have no hope to be distinguished in the councils of the national Government, naturally wish to increase the power and consequence of the State Governments, the theatres in which they expect to acquire distinction. It is not, therefore, a regard for the rights of the people, and a real apprehension that those rights are in danger, that have caused so much to be said on the subject of prostrate State sovereignties and consolidated empire. It is the ambition of that class of politicians who expect to figure only in the State Councils, and of those States who are too proud to acknowledge any superior.'
This quotation was too provokingly apposite to be omitted; but we frankly own that the question preceding it must, in reference to the present case, be answered in the negative. The leading nullifiers, though sufficiently ambitious, are not men 'of inferior talents, who can have no hope of distinguishing themselves in the councils of the national Government.' They possess talents of a high order, and had already reached the most elevated stations in the National Government, before their judgments, previously sound and acute, had given way to the strange delusion which has now got possession of them. It is therefore necessary to look for the motives of their present proceedings in other quarters. Perhaps we may find them pretty satisfactorily accounted for, in the following passage of the same publication by Mr. McDuffie. 'He must have read the lessons of history to little purpose, who does not perceive that the people of particular States are liable to fall occasionally into a dangerous and morbid excitement upon particular subjects; and that, under this excitement, they will impel their rulers into the adoption of measures in their tendency destructive to the Union.'
But without undertaking to scrutinize the motives of the leading statesmen of South Carolina, we repeat that none of them have yet condescended to inform us, how they reconcile their admissions as to the authority of the General Government in ordinary cases, and that of the United States under the amending clause, with their doctrine of 'unimpaired sovereignty.' Mr. Calhoun, in the document before us, appears to be aware of the difficulty, but does not meet it in the full and frank manner which we had a right to expect from a man of his character. He takes refuge in vague and indefinite forms of language.'Previous to the adoption of the present Constitution,' says he, 'no power could be exercised over any State, by any other or all of the States, without its own consent.' In other words, the States were then independent of each other, and, in the common phrase, sovereign. How are they now?—'The present Constitution,' continues Mr. Calhoun, 'has made in this particulara most important modification in their condition. I allude to the provision which gives validity to amendments of the Constitution, when ratified by three-fourths of the States, a provision which has not attracted as much attention as its importance deserves.'[A]It appears, then, that although the sovereignty of the States isunimpaired, their condition in this particular has undergonea most important modification. Now the long wordmodification, though it be, like Bardolph'saccommodated, 'a soldier-like word, and a word of exceeding good command,' means, with all its six syllables, neither more nor less than the old-fashioned English monosyllablechange.—Modification, says Johnson, is the act ofmodifying; and tomodifyis tochange. It seems, then, that the condition of the States has undergone in this particular a most importantchange. It is no longer what it was. But they were before independent: of course they are now not independent. Such appears to be the plain English of the vague termmodification.
But to what extent has this modification been carried? Before the adoption of the Constitution no power could be exercised over a State without its own consent. Now, by the admission of Mr. Calhoun, the United States can exercise unlimited power over a State without its own consent. This is indeed a most importantmodificationof the sovereignty of the State. Such, however, is the virtue of this valuable word, that it prevents all the effect that would otherwise ensue to the sovereignty of the State from the change signified by it. 'To understand correctly the nature of thisconcession, (themodificationisafter all aconcession,) we must not confound it with the power conferred upon the General Government, and to be exercised by it as the joint agent of the States. They are essentially different. The former is in fact but a modification of the original sovereign power, residing in the people of the several States.' It seems, then, that thismost important modificationis in facta modification. 'Accommodatedis when a man is, as they say,accommodated, or when a man is being—whereby he may be thought to beaccommodated.' 'But,' continues the Vice-President, 'the original sovereign power residing in the people of the several States, though modified, is not delegated. It still resides in the States, and is still to be exercised by them, and not by the Government.' He had just told us, that the condition of the several States had undergone in this particular a most important modification, by the concession of power made in the provision for amending the Constitution:—now there is no delegation,—no concession,—the sovereignty is modified, but the condition of the State remains as it was before. Did the Vice-President himself understand exactly what he meant to say?
'It still resides in the States, and is to be exercised by them, and not by the Government.' How is this?—Before the adoption of the Constitution, the whole political power of each State resided in the State: now, a large portion of it has been transferred, by the provision for amending the Constitution, to the United States. How then can it be said, that the whole still resides in the State? Of what consequence is it whether the power has been conceded to the General Government, or to the United States? Provided it be gone from the State, it is obvious that the sovereignty of the State is equally impaired, whether it now belongs to one or the other. The point which Mr. Calhoun wishes to make out is, that each State now possesses all the political power which it possessed before the adoption of the Constitution. It is admitted that a large concession has been made. But, says Mr. Calhoun, the power thus granted has been granted to the United States, and not to the General Government,—therefore, it still remains in the possession of the granting State! The owner of a tract of land conveys away a part of it for a valuable consideration; but the sale being made to B. and not to C., it follows, says Mr. Calhoun, that the whole remains in possession of A.
If arguments like these were found in a document purporting to be a mere specimen of forensic ingenuity, or in the speech of alegal advocate who might be supposed to defend his client, whether he thought his case a good one or not, we should conclude, at once, that the person employing them had, from a consciousness of the weakness of his cause, resorted expressly to ambiguous language, and loose sophistical reasoning. But the document before us is of a very different character and consequence. The subject which it treats is a great practical question. The author,—no less a person than the Vice-President of the United States,—has placed himself at the head of an enterprise, which, according to the degree of purity and singleness of heart with which he engages in it, must be regarded as in him the noblest exercise of patriotism, or the highest offence known to the law. Such is the individual, whom we find under such circumstances resorting for his justification to a sort of language, which, in ordinary cases, would be received as the obvious resource and undoubted evidence ofinsincerity. We shrink from characterizing such a course in the way which appears most natural, and gladly avail ourselves of the pointed and fearless denunciation of Mr. McDuffie.
'A man, who will contend that our Government is a confederacy of independent States, whose independent sovereignty was never in any degree renounced, and that it may be controlled or annulled at the will of the several independent States or sovereignties, can scarcely be regarded as belonging to the present generation. The several independent States control the General Government! this is anarchy itself.'
It is unnecessary, we trust, to pursue this discussion any farther. The nullifiers, we repeat, scarcely attempt to reconcile their full and express admissions, that the Constitution is a social compact, by which the States have formed themselves into a body politic under a common Government, which body politic possesses, under the amending clause, an unlimited power over the political condition of its members, with the assertion, openly and obviously inconsistent with these admissions, that each State still retains its independence and sovereignty entire and unimpaired. Their whole argument, such as it is, consists in the eternal repetition of two ideas. The States were independent at the time when they made the Constitution,—therefore they are independent now. A. and B. were single persons at the time when they entered into a contract of marriage, therefore they are single still. The precise and avowed object of the contract, in both cases, is to put an end to the relation which the parties previouslyheld towards each other, and to substitute for it another and a different one. Yet it is sagely concluded, that because they held towards each other this relation, which it was intended to terminate, before, they must of necessity hold it afterwards; and this is the conclusion which the Vice-President and his followers declare themselves determined to enforce upon the people of the United States, if necessary, at the cannon's mouth!
What then, it may be asked, is in fact the situation of the States under the Constitution? Are they mere corporations, like our cities and towns, deriving all their powers from the acts of the Government under which they are placed? Assuredly not. The States are the original parties to the social compact, and are recognised in it as entitled to exercise a certain portion of the legislative power. In the exercise of this power, they are, as we have already remarked, just as independent of the General Government, as the General Government is of them in the exercise of the powers with which it is invested by the same Constitution. But although the General Government has no authority over the State Governments, the United States, besides the control which they exercise through the General Government over the citizens of the States, also possess, under the amending clause of the Constitution, an almost unlimited control over the political situation of the States themselves. Under these circumstances, it is obvious, that the States, though holding, not by law, but by an original right recognised in the Constitution, the legislative power which they are entitled to exercise, have yet no pretensions to sovereignty or absolute political independence, and that, the only sovereign power, recognised in our institutions is that of the people or body politic of the United States.
In the quotations which we have made from the pamphlet of Mr. McDuffie, we have employed to a very moderate extent theargumentum ad hominem, which, as our readers are aware, might be carried without difficulty a great deal farther. There have probably been very few cases, in the history of this or any other country,—especially relating to matters of so much importance,—in which individuals have placed themselves before the public, in a position so diametrically opposite to that which they occupied but a short time before. Their inconsistency is equally glaring in reference to the nature of the evil of which they complain, and the means by which they propose to remedy it. But a few years ago, these very persons not only supported and professed to believe in the policy of protectingdomestic industry, but actually originated the plan, and employed the whole weight of their talents and influence in carrying it through Congress. At the same time, they denounced the claim of a right in the States to annul the acts of the General Government, as anarchy itself. Now, the protecting policy is not only not advantageous but utterly ruinous to the country; and not only ruinous but unconstitutional, and not only unconstitutional but so plainly and palpably unconstitutional, as to justify a resort to the most desperate extremities to get rid of it. Now, the right of the States to annul at discretion the acts of the General Government is not only not anarchy itself, but is the simplest and most beautiful part of the whole machinery of our political institutions. It would be easy to collect from the writings and speeches of these gentlemen at the two periods alluded to, whole pages of passages, presenting, on the same authority, exactly theproandconof every prominent point in the argument. This has in fact been done to a considerable extent by Mr. Carey, and if the subject were not a serious one, the contrast would be irresistibly amusing. Our limits will not permit us to enlarge upon this point, and the strength of the direct argument renders it unnecessary. In general, we are not disposed to insist too rigorously upon formal party consistency, and are willing to allow to political men a reasonable latitude in reconsidering their opinions, and adapting their abstract principles to the circumstances under which they are called to act. But in a case so very peculiar as this, where the party is so clearly bound to put himself in the right in the great court of public opinion, he certainly gives his opponents a fearful advantage when he enables them, on every leading point, tocondemnhim unequivocally and peremptorilyout of his own mouth.
Is it in fact to be endured, that men of talents, reputation, commanding stations in society, shall denounce as inexpedient, unconstitutional, intolerably oppressive, as furnishing legitimate motives for resistance, measures, which not ten years ago they openly supported, nay, themselves originated and pressed upon the country? That they shall claim and insist upon, as their dearest and most essential rights, pretensions, which not ten years ago they denounced as chimerical, unconstitutional, anarchical, involving in practice the destruction of all government? Can the people of the United States believe, that the persons by whom these diametrically opposite opinions havebeen successively maintained with equal warmth and zeal, have been perfectly sincere in both? Or if, in the exercise of a perhaps excessive charity, they believe them to have been sincere, will they consider them as persons of a sufficiently sound and cool judgment to be followed with safety, through the dangerous paths into which they would lead us,—over the unfathomable precipices, to the brink of which they have already brought their deluded retainers?—We think not.
We have left ourselves but little room for direct remark upon the Ordinance of the Carolina Convention; and if the views which we take of its operation and character be correct, it does not necessarily call for any extended commentary. We copy the entire document, as a sort of political curiosity, and shall annex a few observations.
'An Ordinance to nullify certain Acts of the Congress of the United States, purporting to be laws laying duties and imposts on the Importation of Foreign Commodities.
Whereas the Congress of the United States, by various Acts, purporting to be Acts laying duties and imposts on foreign imports, but in reality intended for the protection of Domestic Manufactures, and the giving of bounties to classes and individuals engaged in particular employments, at the expense and to the injury and oppression of other classes and individuals, by wholly exempting from taxation certain foreign commodities, such as are not produced or manufactured in the United States, to afford a pretext for imposing higher and excessive duties on articles similar to those intended to be protected, hath exceeded its just powers under the Constitution, which confers on it no authority to afford such protection, and hath violated the true meaning and intent of the Constitution, which provides for equality in imposing the burdens of taxation upon the several States and portions of the Confederacy;—And, whereas the said Congress, exceeding its just power to impose taxes and collect revenue for the purpose of effecting and accomplishing the specific objects and purposes which the Constitution of the United States authorized it to effect and accomplish, hath raised and collected unnecessary revenues, for objects unauthorized by the Constitution:—
We, therefore, the People of the State of South Carolina in Convention assembled, do declare and ordain, and it is hereby declared and ordained, that the several Acts and parts of Acts of the Congress of the United States, purporting to be laws for the imposing of duties and imposts on the importations of the States, and more especially an Act entitled "an Act in alteration of theseveral Acts imposing duties on imports," approved on the 19th day of May, one thousand eight hundred and twenty-eight, and also an Act entitled "an Act to alter and amend the several Acts imposing duties on imports," approved on the 14th day of July, one thousand eight hundred and thirty-two, are unauthorized by the Constitution of the United States, and violate the true meaning thereof, and are null, void, and no law, nor binding upon this State, its officers or citizens; and all promises, contracts and obligations made or entered into, or to be made or entered into, with the purpose to secure the duties imposed by the said Acts, and all judicial proceedings which shall be hereafter had in affirmance thereof are and shall be held utterly null and void.
And it is further ordained, That it shall not be lawful for any of the constituted authorities, whether of this State or of the United States, to enforce the payment of duties imposed by the said Acts within the limits of this State; but that it shall be the duty of the Legislature to adopt such Acts as may be necessary to give full effect to this Ordinance, and to prevent the enforcement and arrest the operation of the said Acts and parts of Acts of the Congress of the United States within the limits of this State, from and after the 1st day of February next, and the duty of all other constituted authorities, and of all persons residing or being within the limits of this State, and they are hereby required and enjoined to obey and give effect to this Ordinance, and such Acts and measures of the Legislature as may be passed or adopted in obedience thereto.
And it is further ordained, That in no case of law or equity, decided in the Courts of this State, wherein shall be drawn in question the authority of this Ordinance, or the validity of such Act or Acts of the Legislature as may be passed for the purpose of giving effect thereto, or the validity of the aforesaid Acts of Congress, imposing duties, shall any appeal be taken, or allowed, to the Supreme Court of the United States, nor shall any copy of the record be permitted or allowed for that purpose; and if any such appeal shall be attempted to be taken, the Courts of this State shall proceed to execute and enforce their judgments, according to the laws and usages of the State, without reference to such attempted appeal; and the person or persons attempting to take such appeal, may be dealt with for a contempt of the Court.
And it is further ordained, That all persons now holding any office of honor, profit or trust, civil or military, under this State, shall, within such time as the Legislature shall prescribe, take, in such manner as the Legislature may direct, an oath well and truly to obey, execute and enforce this Ordinance, and such Act or Acts of the Legislature as may be passed in pursuance thereof,according to the true intent and meaning of the same; and on the neglect or omission of any such person or persons so to do, his or their office or offices shall be forthwith vacated, and shall be filled up, as if such person or persons were dead or had resigned; and no person, hereafter elected to any office of honor, profit or trust, civil or military, shall, until the Legislature shall otherwise provide and direct, enter on the execution of his office, or be in any respect competent to discharge the duties thereof, until he shall, in like manner, have taken a similar oath; and no juror shall be impannelled in any of the Courts of this State, in any cause in which shall be in question this Ordinance, or any Act of the Legislature passed in pursuance thereof, unless he shall first, in addition to the usual oath, have taken an oath, that he will well and truly obey, execute and enforce this Ordinance, and such Act or Acts of the Legislature as may be passed to carry the same into operation and effect, according to the true intent and meaning thereof.
And we, the People of South Carolina, to the end that it may be fully understood by the Government of the United States, and the People of the co-States, that we are determined to maintain this, our Ordinance and Declaration, at every hazard,—do further declare, that we will not submit to the application of force, on the part of the Federal Government, to reduce this State to obedience; but that we will consider the passage, by Congress, of any Act authorizing the employment of any military or naval force against the State of South Carolina, her constituted authorities or citizens, or any Act abolishing or closing the ports of this State, or any of them, or otherwise obstructing the free ingress and egress of vessels, to and from the said ports, or any other Act on the part of the Federal Government to coerce the State, shut up her ports, destroy her commerce, or to enforce the acts hereby declared to be null and void, otherwise than through the civil tribunals of the country, as inconsistent with the longer continuance of South Carolina in the Union: and that the people of this State will thenceforth hold themselves absolved from all further obligation to maintain or preserve their political connexion with the people of other States, and will forthwith proceed to organize a separate Government, and do all other acts and things, which sovereign and independent States may of right do.'
If, in a matter so serious as this, it were worth while to pay much attention to forms of expression, the language of this document would afford ample room for criticism. To begin with the very title:an Ordinance. It has been well observed, that the Convention could hardly have given to the paperexpressing their intentions a less auspicious name, than this obsolete vestige of the Frenchancien regime, the last example of which, known to us in this country, was the celebrated Ordinance to nullify the liberty of the press and the right of suffrage. The result of this attempt at nullification by Charles X. was hardly such as to encourage imitation, or to bring the phraseology employed by him into very good odor.—An Ordinance to nullify,—why substitute the affected termnullify, of which no one knows the real meaning, for the standard English wordannul, which every body understands? Obviously for no other purpose, than tomystifythe good people of Carolina into a course, which, if the true character of it were honestly presented to them, they would shrink from with horror. The use of this term is an improvement, at the suggestion of Mr. Turnbull, upon the title as originally reported by Mr. Harper, which ran thus:—an Ordinance to provide for arresting the operation of certain acts, &c.This was at least intelligible. Again:an Ordinance to nullify certain acts of Congress purporting to be laws. Whypurportingto be laws?—They are laws. The Acts of the General Government are, as such, laws. They may be inexpedient, oppressive, unconstitutional,—but they are stilllaws. This is their appropriate name as Acts of the Government, and has no connexion with the question of their validity. The phraseology of the first sentence of the Ordinance is still more singular:—Whereas the Congress of the United States, by various Acts purporting to be Acts laying duties and imposts on foreign imports, but in reality intended for the protection of domestic manufactures.Purporting to be acts laying duties and imposts on foreign imports! Can any one doubt that they are Acts laying duties on foreign imports? The objection to them is, that they lay duties for a purpose not recognised by the Constitution; but no man in his senses can pretend to doubt, that they do in fact lay duties on foreign imports.
The rest of the Ordinance is about as correctly drawn, as the title and the first sentence: but, without enlarging on mere phraseology, let us proceed to considerations of a more substantial character. The questions that naturally suggest themselves on a perusal of this extraordinary document are, What is its immediate operation? What measures will it call for, on the part of the General Government? What will be its ultimate effect upon the political situation of the country?
1.What is its immediate operation?In the view which we take of it, the Ordinance, standing by itself, is entirely inoperative. It pretends to release the citizens of South Carolina from the obligation to obey the Revenue laws, but it leaves the Government of the United States in possession of all the means which they had before to enforce them. If the importer refuse to pay the duties and give the usual bonds, the goods will of course be seized and sold without farther process. If he give bonds and refuse to pay them when due, the usual legal process will be had in the District Court; and, as the jurors serving in that Court are not called on to take the oath to obey the Ordinance, there will be no appearance even of a conflict of obligations. The Judge, whose duty it is to instruct the jury in the law, will of course tell them that the Ordinance, as far as it contradicts the laws of the United States, has no legal effect, and they will give their verdict accordingly. If, in some cases, juries, under the influence of the popular excitement, should undertake to judge of the law for themselves, and give verdicts in clear cases against the Government, there would be, no doubt, some practical inconvenience, but in theory the law would still have its course. There would be no collision between the authority of the General and State Governments, and no occasion for any interposition of force by the former. The situation of things would be substantially the same as it was in this city during the last war with Great Britain, where the juries habitually gave verdicts against the Government, in cases where the right was clearly on its side. Still the law ostensibly had its course, and the public peace was not broken. The Ordinance, therefore, standing by itself, is a mere dead letter.
2.What measures does it call for, on the part of the General Government?The Ordinance, being entirely inoperative, and having no legal or practical effect which the Government can or ought to notice, of course calls for no measures in the way of counteraction. Considered as an indication of the state of the public feeling in South Carolina, it calls undoubtedly for measures of precaution against the occurrence of a future state of things, which the adoption of this Ordinance by the Convention renders probable, and which would require the interposition of the military power of the Government. The Ordinance makes it 'the duty of the Legislature to adopt such measures and pass such acts, as may be necessary to give fulleffect to the Ordinance, and to prevent the enforcement and arrest the operation of the Revenue laws.' The Legislature will probably do something in pursuance of this direction; and upon the character of the measures which they may adopt will depend, of course, the character of those with which the Government of the United States will be called on to meet them. Should they pass an act, making it penal for the officers of the General Government to perform their duties, and attempt to enforce it upon the person of the Marshal, there would then be a case of open insurrection against the Government of the country. In ordinary cases, the Marshal, when obstructed in the execution of his duty, calls for aid on the bystanders; but if this resource prove ineffectual, or if circumstances render it inexpedient to depend upon it, the particulars of the case are communicated in the form of a certificate from the District Judge to the President, who immediately employs the military force of the country, either the regular army or the militia, at his discretion, to suppress the insurrection, as he is authorized to do by the letter of the Constitution and various statutes. The militia would of course not be resorted to, unless the regular military and naval force should be found insufficient. This course was pursued by General Washington, in the case of the whisky insurrection in Pennsylvania, and was attended with complete success. The misguided persons, who might be taken and brought to trial for obstructing the execution of the laws, would probably plead in justification the law of the State; but the District Judge would of course instruct the jury, that 'the laws of the United States are the supreme law of the land, any thing in the Constitution or laws of any State to the contrary notwithstanding.' If the popular excitement should be so great, that juries should in clear cases acquit prisoners, the latter would of course escape the punishment they deserved, but no material inconvenience would be suffered by the country. The President, by a proper development of military force, would be able to execute the laws and preserve the public peace. Should Carolina, in pursuance of the threat held out in the Ordinance, undertake, in consequence of the employment of military force by the President, to place herself still more openly in opposition to the Government, by attempting to withdraw from the Union, and arraying an army againstthat of the United States, the result would be civil war,—an occurrence every way deplorable, and one of which we shudder to contemplate the possibility, but of which we cannot permit ourselves to doubt the issue.