The Examiner, and Journal of Political Economy

Volume 2 (1835–36)

Number 4

Number 5

Number 6

Number 7

Number 8

Number 9

Number 12

The Genuine Book of Nullification

Number 13

The Genuine Book of Nullification

An Exposition of the Virginia Resolutions of 1798 (No. I)

AN EXPOSITION Of the Virginia Resolutions of 1798, in a series of Essays, addressed to Thomas Ritchie, by a distinguished citizen of Virginia, under the signature of "Locke," in February, 1833.

TO THOMAS RITCHIE, Esq.

No. I.

The confidence which was hertofore felt in the soundness of your political principles has caused your paper to be read in almost every family in Virginia. Hundreds, nay thousands of our citizens read no other. The necessary consequence is, that you exert a powerful influence over the public mind. Indeed, sir, it cannot be denied, that even in the laborious retirement of your closet, you are felt in the daily exertion of no unimportant power over the affairs of this Government. I will not be so presumptuous as to offer you advice; for I am sure that you feel, with due sensibility, the duty which your position imposes on you, of doing nothing which may mislead the public judgment, in the present awful crisis. I may be permitted to say to you, however, with perfect respect, and certainly in no unfriendly spirit, that many of your readers do not consider your present course strictly consistent with your former principles. It is true, that you have, on more occasions than one, professed to give us your political faith, and so far as your abstract principles are concerned, we have, perhaps, but little reason to complain of you. But you have dealt with us too much in generalities. It is not enough that you should profess yourself a friend to State Rights. We are all of us friendly, not only to State Rights, but to every other right which we are willing to acknowledge as such. But you have not yet told us, with sufficient clearness, what these State Rights are. We can no longer satisfy ourselves with abstractions in principle or speculations in reasoning. The time for action has arrived. The arm of the Federal Government is even now uplifted to shed the blood of our citizens. It is time for us to know, not only that we have rights, but also, in what those rights consist, and in what manner they may be asserted. You have taken a strong and decided stand against the doctrine of Nullification; nay, you can scarcely speak of it in any other language than that of contempt and derision. But you have not, so far as I recollect, favoured your readers with any detailed argument upon the subject. Neither have you distinctly told us what alternative you propose. You do indeed, contend for the right of Secession, but I have not been able to discover whether you consider this right merely as one inherent in every political community, and therefore independent of the Constitution, or whether you propose it as a remedy for a breach of that instrument. In this state of uncertainty, as to the course which the leading journal of our State would wish us to pursue, it is a matter of no small interest to us, that you should come out more explicitly than heretofore. Permit me, then, as a citizen neither very young, nor wholly unconnected; as one who considers every thing which he cherishes in our institutions in the most imminent peril; as one who sincerely believes that you can form the public mind of Virginia, and that Virginia can control the destinies of this once happy Union, to entreat you to answer explicitly the following interrogatories. They are propounded, not in the spirit of a controversialist, but with a deep conviction that they involve the only principles upon which the rights of the States can be maintained, and of course the only security against a consolidated and essentially monarchical government:

1. Is there, or is there not, any principle in the Constitution of the United States, by which the States may resist the usurpations of the Federal Government; or are such usurpations to be resisted only by revolution?

2. If there be no principle, is not the Federal Government as unlimited in its powers as any other Government as unlimited in its powers as any other Government whatever be its form, whose encroachments upon the rights of the citizen can be repelled only by rebellion, or other application of physical force?

If you believe, as I am sure you do believe, that there is such conservative principle in the Constitution, then I beg the favour of you to point it out, and tell us in what manner we may render it available. In doing this, be pleased to answer—

3. Is not the passing a law by Congress which the Constitution does not authorise, a usurpation on the part of that body? And is not every such unconstitutional law absolutely void, as passed by a delegated authority, beyond the limits of that authority?

4. Are the States bound to submit to laws which are unconstitutional, and therefore void?

5. If the States are not so bound to submit, is not the particular State which refuses to submit, right in so doing?

6. If the recusant State be right in her refusal to submit, are not the other States wrong in compelling her to submit? Is it not oppression of the worst sort, to coerce obedience to usurped power?

The above questions are propounded upon the hypothesis that Congress may have actually passed a law palpably and dangerously violating the Constitution. And now be pleased to tell us in what manner the fact of such palpable and dangerous violation is to be ascertained? In doing this, be also pleased to answer—

7. Is there any common umpire established by the Constitution; to whom may be referred questions touching a breach thereof?

If there be such common umpire, be pleased to point it out.

8. If there be no such common umpire, does it not result from the necessity of the case, that each State must judge thereof for itself?

9. If a State, in the actual exercise of this right, should decide that any given act of Congress is a palpable and dangerous violation of the Constitution, is there any right of appeal from the decision?

10. If there be, does the appeal lie to any other authority than the other parties to the Constitution?

11. Who are these "other parties?" The States, or the people?

Upon this last question, you are already so fully committed, that it is impossible to doubt your answer. I have, therefore, to ask you—

12. Is not the decision of every inferior tribunal of competent jurisdiction, obligatory and conclusive, until it is reversed? And if so, is not the decision of a State upon a constitutional question on which it has a right to decide, conclusive as to such State, until it is reversed by the other States, acting as such?

13. If it be thus conclusive, has the State a right to act upon its decision or not?

14. If it has no such right of action, is its right of judgment any thing more than a mere liberty of speech and of opinion, and, therefore, no available right at all?

15. If it has such right of action, is it to act by submitting to the usurped power, or by opposing it?

A man of your spirit, can give but one answer to this question. Then be good enough to tell us in what manner this opposition is to be made? In doing this, be please to answer—

16. Are petition, remonstrance and protest, any thing more than appeals to the oppressor, and therefore in no sense, to be called opposition to him? Or if it be opposition, and these petitions, remonstrances and appeals, should all be disregarded, is the matter to rest there?

17. If not, and farther resistance is to be made, ought not that resistance to be made in such form as to redress the wrong?

18. If so, can the wrong be redressed by the injured State going out of the Union? Does not this, on the contrary, increase the wrong as to her, by compelling her to relinquish all the advantages of the Union, to which she is fairly entitled, and at the same time, encourage the aggressors to persevere in the wrong, by withdrawing all opposition to them? Is not the "redress," in this mode of seeking it, merely an additional wrong done to the injured party?

19. If so, what do you propose to substitute for it?

You perceive, sir, that I have, in all these questions, followed very closely, the Virginia Resolutions and Madison's Report. They are the text upon which my future commentaries will be offered. I have done so on purpose, for you have always been an advocate of those documents, as being clearly orthodox; and as I entertain the same opinion of them myself, I am unfeignedly desirous to see by what process of reasoning, any two men of tolerable intellect, can be led to different conclusions from such premises. I confess that it seems to me exceedingly dear, that our Constitution is most worthless and tyrannical, if the usurpations of those who administer it, cannot be resisted by any means short of revolution. I have always considered the reserved powers of the States, as the only real check upon the powers of the Federal Government; and I have always considered it, not only the right, but the imperious duty of the States, so to apply that check, as not to dissolve the Union. And I have never been able to discover any mode of doing this, except by the positive refusal of the States to submit to usurpations, whilst, at the same time, remaining in the Union, they force the Federal Government back within the charter of its power.— This seems to me an irrisistible inference, from the principles indicated in the preceding interrogatories. Perhaps you can show me that these principles do not lead to Nullification? I shall be happy to be undeceived; but at present, I entertain no doubt, that that doctrine is the only one upon which the States can safely repose. It is easy to show that this is the legitimate result of the Resolutions of 1798. I shall endeavour to show this in a second letter, with which you will be shortly troubled. In the mean time, you will not only gratify me, but hundreds of others, by answering the foregoing interrogatories, distinctly, plainly, and directly. The views which I now indicate, have already been substantially presented to the public; but, as I consider them of vital importance, I shall continue to press them under all the forms of which they are susceptible, until some one will condescend to prove them wrong.

You perceive, sir, that this is only the commencement of a series of letters—a short series it will be,— which it is my purpose to address to you. Every Virginian, who has ever turned his attention to constitutional law at all, knows that the interrogatories which I have propounded, involve the whole subject of controversy which now agitates the country. It is, therefore, peculiarly the duty of the public press, to enlighten the public mind upon that subject. If our newspapers are, indeed, as they claim to be, "the centinels of liberty," it is their duty not merely to watch, but to point out the quarter from which danger may be apprehended, and to give the alarm when it approaches. It will not derogate from your dignity, Mr. Ritchie, to reply to an anonymous correspondent, when he addresses you in a respectful manner upon a subject of grave public concern. It is on all hands admitted, that the old party lines, have lately become so confused and intermingled, that it is almost impossible to distinguish them any longer. Be pleased, then, to tell us what are the principles of that Republican party, of which you have professed to be the true and faithful organ for thirty years; and tell us, at the same time, in what manner we may assert those principles in defence of our rights and liberties. If there ever was a time, when you could be of service to your country, that time is now. May you become convinced of it, before it will be too late to redeem every Southern principle, and every Southern right, from the overwhelming destruction, which the measures of this administration are preparing for them.

An Exposition of the Virginia Resolutions of 1798 (No. II)

AN EXPOSITION Of the Virginia Resolutions of 1798, in a series of Essays, addressed to Thomas Ritchie, by a distinguished citizen of Virginia, under the signature of "Locke," in February, 1833.

No. II.

In the letter which I addressed to you on the 2nd inst., I propounded to you certain interrogatories, touching the great principles involved in the present measures of the Federal Government. I could not wait for your reply, even if there were better reasons than any which I can now discern, for expecting a reply at all. I do not expect it, and yet I venture to hope for it. You owe it to your own character, to your numerous patrons, and to the great cause in which you have professed to be a zealous labourer, to be no longer silent or mysterious, upon these im topics. Come out, I pray you, in a manner at once so distinct and unequivocal, as to leave no pretence, either to friend or foe, for accusing you of duplicity or timidity.

I live in a very retired corner of the country, sir, and seldom get the news until it is news no longer, in other places. Hence, at the date of my last letter, I had only heard of the President's late message to Congress. That most weak and sophistical, yet most dangerous document, was never read by me, until this morning. It has sunk into a still deeper depth of depression, the few lingering hopes which I was permitted to cherish, that the constitution and public liberty, would survive the administration of Andrew Jackson. I shall have something to say to you upon that subject hereafter. I proceed now to redeem my promise, in proving, or at least endeavouring to prove, that the Virginia resolutions of 1798, cannot be carried out in any other manner than by nullification. In doing this, I shall go back no farther than to the resolutions themselves. I shall give to the language employed, no other construction than that which ever man of plain common sense will be compelled to give it. This is the only fair course of proceeding, for the resolutions were intended for the great body of the people, and must have been designed to be comprehensible by the meanest capacity. I will not do the Legislature the injustice of supposing, that they intended to wrap up in mystery which none but the statesman or the man of learning could penetrate, principles which they deemed essential to the preservation of constitutional liberty. So much of these resolutions as relates to the present subject, is in the following words:—

"That this Assembly doth explicitly and peremptorily declare, that it views the powers of the Federal Government as resulting from the compact to which the states are parties, as limited by the plain sense and intention of the instrument constituting that compact, as no farther valid than they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the States who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them." "That the good people of this Commonwealth, having ever felt, and continuing to feel, the most sincere affection for their brethren of the other States; the truest anxiety for establishing and perpetuating the union of all; and the most scrupulous fidelity to that constitution which is the pledge of natural friendship, and the instrument of mutual happiness; the General Assembly doth solemnly appeal to the like dispositions in the other States, in confidence that they will concur with this Commonwealth in declaring, as it does hereby declare, that the acts aforesaid, [the alien and sedition laws,] are unconstitutional; and that the necessary and proper measures will be taken by each, for co-operating with this State, in maintaining unimpaired, the authorities, rights and liberties, reserved to the States respectively, or to the people."

In these resolutions, the following principles are distinctly affirmed:

1. That the Constitution of the United States is a Compact between the States, as such.

2. That the Government established by that Compact, possesses no power whatever, except what "the plain sense and intention" of that Compact gives to it.

3. That every act done by that Government, not plainly within the limits of its powers, is void.

4. That each State has a right to say whether an act done by that Government, is plainly within the limits of its powers or not.

5. That the States are not bound to submit to, but may resist, any act of that Government, which it shall so decide to be beyond the limits of its powers.

All this is plain enough, and is, as I understand, fully admitted by yourself. The only difficulty is, to discover in what mode the Resolutions contemplated that resistance should be applied. On this subject, I have to remark, in limine, that the Resolutions contemplate that "the necessary and proper measures will be taken by each State" for itself. No uniform mode of resisting the encroachments of the Federal Government is pointed out or suggested. Having affirmed the right, each State is left to its own mode of asserting it in practice. Taking the terms of the Resolutions in their utmost latitude, they authorize any means of resistance whatever. Such, however, is clearly not their meaning. A very slight analysis will force upon us the conviction that no mode of resistance is contemplated, except such as will preserve the Union unimpaired, while it will effectually put down the usurped power. This is shown:—

1. By the profession of "sincere affection" for the people of the other States; of "anxiety for establishing and perpetuating the union of all;" and of "the most scrupulous fidelity to the Constitution." It is upon the strength of these feelings, and with a view to these objects, that the co-operation of the other States is invited.

2. The interposition of the States must be in such mode as to "arrest the progress of the evil."

3. It must at the same time be such as to "maintain within their respective limits, the authorities, rights and liberties appertaining to them."

4. It is to be remarked, that we have here a distinct declaration that there is within the Constitution of the United States, some principle, by which the encroachments and usurpations of the Federal Government may be resisted. I say, within the Constitution, and not extra-constitutional and revolutionary.

And now, Sir, will you be good enough to tell me in what manner that principle is to be applied? Permit me to examine all the modes of resistance which occur to my own mind, and to see which of them is within the principles thus asserted.

1. Petition, remonstrance, protest.—It cannot, I think, be seriously asserted, that these are any means of resistance at all. It is such a resistance as your slave may make, when you chastise him for an imputed fault. If all right of farther resistance be disclaimed, this is an implied admission that the party to whom the appeal is addressed, may, if he chooses, persevere in the wrong. In point of fact, however, remonstrance and protest are founded in the idea that there is such right of farther resistance. Petition is a simple appeal for mercy or forbearance; protest and remonstrance, affirm a right, and threaten the enforcement of it. But they do not in themselves enforce it, and therefore are not resistance.

2. An appeal to arms.—This is utterly against all notions of constitutional remedy. Our Government is founded in free choice, and is supported by public opinion alone. A resort to arms, therefore, would at once change the whole genius of the Constitution. A case might certainly arise, in which a State might rightfully resort to arms for the purpose of putting down or resisting the usurpations of the Federal Government. Suppose, for instance, that the President should send a regiment of his standing army, to turn our Legislature out of doors, and pull down the capitol, I presume that Governor Floyd would be clearly right in calling upon the militia to put every soldier of them to the sword, if the civil authority should prove unable to "arrest the progress of the evil." At all events, the Legislature might authorize him to do so. This, however, is an extreme case, and such as could not have been anticipated; for the Government could not exist a day, with an administration capable of such an outrage. An actual appeal to arms, therefore, is not to be thought of, as among the proposed modes of resistance.

3. A repeal of the unconstitutional law by Congress. This, I perceive, is one of the President's modes, but unfortunately, he is not very apt to discern the principles which his measures involve. This would, indeed, be a complete remedy for the evil, and an ample redress of the wrong.—You know, however, sir, that although you may "call spirits from the vasty deep," it is not certain that they will "come when you do call them." It is not likely that the usurper will either acknowledge his usurpation, or lay down his usurped power. You must remember, too, that the usurper in the present case, is a majority of the people, usurping upon the rights of the minority, and the history of the tariff laws, ought to convince you how unapt such usurpers are to give way. This remedy, therefore, would be of little value in practice. Besides, it is in principle, a simple appeal to the wrong doer, and is therefore, no more a mode of resistance, than the right of petition. Every thing is left at last, to the will and discretion of the usurping power.

4. An amendment of the Constitution. I certainly should not have mentioned this as a means of resistance, if it had not been mentioned by the President, as one of the modes in which the aggrieved States, or people, might seek redress. No man, but one of his peculiar intellect, would ever think of an amendment of the Constitution, as a means of resisting a breach of that instrument. It is not the object to amend the Constitution, but to preserve it, unimpaired as it is. I hope that the President's future labours, in the study of the Constitution, may show him this distinction.

5. Secession, or a withdrawal from the Union by the aggrieved State. This, sir, is your favourite mode, and, as far as I can perceive, your only mode, of resisting the usurpations of the Federal Government. The President, however, in the plenitude of his merciful consideration of State Rights, does not even allow them this humble refuge from oppression. Let us now see how you will carry out this mode of resistance, consistently with the resolutions of 1798.

In the first place, a State which withdraws from the Union, breaks the Union. This is true ex vi termini, and therefore, need not be proved. But I have already shown that the resolutions of 1798, proceed upon the idea, that the Union is to be preserved, and indeed, that is the main object of resistance, as therein contemplated. In this respect, therefore, secession is not a means of resistance: within those resolutions.

In the second place, the resistance therein contemplated, must be such as will "arrest the progress of the evil." Will you be so obliging as to tell me, sir, how a usurped power can be resisted, by giving way to it. In one way, indeed, the evil may be arrested by secession; the usurped power may be rendered nugatory, by withdrawing from its reach, all the subjects upon which it can exercise itself. I can scarcely imagine, however, that this tame and submissive idea, was entertained by the statesmen of 1798. It appears to my humble understanding, that secession, so far from being a form of resistance to usurped power, is the precise reverse; it is neither more nor less than a running away from the oppressor. And so far from "arresting the progress of the evil," it encourages and invites the evil, by removing all restraint from the wrong-doer. In this view, therefore, it is not within the resolutions of 1798.

In the third place, the interposition of the States, must be such as to maintain within their respective limits, the authorities, rights and liberties, appertaining to them." Now, what are these "authorities, rights and liberties?" To you, sir, I need not say, that as sovereign and independent States, they are entitled to all the authorities, rights and liberties, which at any time, belonged to them as such, except such part thereof, as they plainly surrendered when they ratified the Constitution. These they may, it is true, enjoy in a state of separation. But they are also entitled to all the authorities, rights and liberties, which the other States guarantied to them by the terms of the Union. Among these are to be numbered their just weight in the measures of the common government; a share in the common property of the whole; protection by the common power; a Republican Government assured by that power, and all and every benefit and advantage which they could enjoy as members of the Union. It was in this character alone, that their co-operation was invoked in the resolution of 1798. And now, sir, be good enough to say, how the authorities, rights and liberties, which belong to the States, as members of the Union, can be "maintained," by their going out of the Union. If you cannot, you must feel yourself also, secession is not within the resolutions of 1798. I know you will tell me that these resolutions have been much misunderstood. You have already said so, and much subtlety in reasoning, and refinement in language, have been resorted to by your correspondents to prove it. It is for this very reason, that I have taken such parts of the resolution only, as no man can misunderstand, and such as do not admit of but one construction. You may refine until doomsday, and you will not change the plain meaning and object of the plain language employed.

I have thus examined every mode of "arresting the progress of the evil, and maintaining within the respective limits of the States, the authorities, rights and liberties which appertain to them," which occur to my mind, except nullification. It appears, I think, clearly enough, that none of these will answer the purpose. If there by any other mode, you will confer a great benefit upon the country, by pointing it out. I promise to prove to you that Nullification is this other mode, but I must make that the business of another letter. I have already occupied quite as much space in the Whig as I am fairly entitled to, and would not willingly trespass too far upon the indulgence of its Editors. Besides, sir, although you may not consider these letters worthy of being answered, I am very desirous that they should be read, and, therefore, I will make them so short as not to deter any one from perusing them, and not to fatigue any one over much, who shall venture upon that undertaking.

An Exposition of the Virginia Resolutions of 1798 (No. III)

AN EXPOSITION Of the Virginia Resolutions of 1798, in a series of Essays, addressed to Thomas Ritchie, by a distinguished citizen of Virginia, under the signature of "Locke," in February, 1833.

No. III.

I am now to prove to you, sir, that Nullification is the only mode in which the usurpations of the Federal Government may be resisted by the States, in accordance with the principles of our resolutions of 1798. Daring as you may consider this enterprise, I do not enter upon it with any fear, although I approach without flourish of trumpets or any other parade. I am a plain, practical man, and desire to state my opinions in a matter which other plain, practical men will understand. If such men are not the ornaments of the country, they are at least its strength and support, and the very people to whose capacity all reasoning upon political subjects ought to be addressed.

I beg you to bear in mind the principles which have already been stated as deducible from the resolutions of 1798. Perhaps our best course of proceeding will be to state them in detail, and see whether nullification does or does not conform to every one of them.

1. The resolutions assert that there is some mode within the Constitution by which the usurpations of the Federal Government may be resisted by the States. Now, it is true that nullification is denied to be a constitutional remedy, but the nullifiers assert that it is constitutional; and I mention the point only to show that they do not intend to assert any extra-constitutional or revolutionary remedy—and that so far, at least, they are within the resolutions of 1798. Whether their remedy is constitutional or not, supposing the principles of the resolutions to be so, must depend on its conformity with those principles in the subsequent propositions. We remark, therefore, that

2. The remedy must be such as to "arrest the progress of the evil."—Now, be pleased to bear in mind, that nullification does not proceed upon any supposed right of the State to repeal a constitutional law, but upon the right of a State to declare that an unconstitutional law really is so, and to refuse obedience to it for that reason. I beg you to bear this distinction in mind. If nullification proposes any thing more or less than this, I am no nullifier, and do not understand the doctrine. Now, sir, is not this right of a State (to decide on the constitutionality of an act of Congress) distinctly asserted in the resolutions of 1798? Nay, has not Virginia asserted it in practice, both in regard to the Alien and Sedition Laws, and in regard to these very Tariff Laws themselves? We all know that such is the fact. And was not resistance to such unconstitutional laws distinctly contemplated in the resolutions of 1798? I have already shown that it was; and if any farther proof is necessary, it will be found, in all abundance, in the address to the people which accompanied those resolutions. It appears, then, that the principles upon which nullification proceeds, are (in the abstract) in strict conformity with those of the resolutions of 1798. But those principles, it is admitted, must be limited and qualified by the object in view. We are, then, to inquire whether nullification does, or does not, "arrest the progress of the evil." The evil is the exercise of an usurped power: nullification declares that the usurped power shall no longer be obeyed. Is not this the best of all possible modes, if not the only mode in which it can be "arrested?" Perhaps it is not too great a refinement to say, that the "arrest" here contemplated, is of the usurpation only, and not of the usurping power. In other words, it is not designed to put down the Federal Government—nor embarrass nor impede its legitimate operation; but simply to prevent it from exercising a power which does not belong to it.—Hence, no resort is contemplated in the resolutions of 1798 to any measures which may submit the existence of that Government to the decision of arms. Its operations within the Constitution must all go on as before, whilst its operations beyond the Constitution must be "arrested." Now, this is precisely and peculiarly the effect of nullification. And, strange to tell, it is on this very ground that you and others have most strongly assailed that doctrine. You all say, that it is absurd to pretend that a State can be in the Union and out of the Union at the same time; and that it is monstrous in a State to contend for all the advantages of the Union, as to certain laws, while she refuses to submit to the burthens imposed by other laws. Nothing in nature can be more perfectly self-evident than all this. It is not surprising that a man of General Jackson's measure of intellect and information should be deceived by such a superficial view of the subject: but we had a right to expect better things from a veteran in politics, like yourself. Remember, sir, that a law beyond the Constitution is no law at all, and there is no right any where to enforce it. A State which refuses to submit to such a pretended law, is strictly within the Union—because she is in strict obedience to the Constitution; and it is strange to say that she "refuses to submit to the burthens" imposed by any law which is not law at all. Here, then, you have a picture of Nullification. It secures to the State the right to remain in the Union, and to enjoy all the advantages which the Constitution and laws can afford—submitting, at the same time, to all which that Constitution and laws rightfully enjoin; while it "arrests the progress" of usurped power, by destroying the obligation of every pretended law which the Constitution does not authorise, and which, therefore, is not law. If this is not the meaning of the resolutions of 1798, I have much misunderstood them. It is precisely upon this point that the public mind of Virginia has been most strangely misled by the authority of the President's name, and the speciousness of your paragraphs.—You owe the people a heavy debt of reparation, which I hope you will live to pay.