Whole No. 42.5.
Tarboouglh (EdSecomfo N. C.J Tuesday, October
23, 1832.
Vol IX No 9.
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BY GEORGE HOWAllD,
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STATE RIGHTS.
We extract the following from the Correspon
dence between Gov. Hamilton and Vice Presi
dent Calhoun, on the subject of State Rights. Mr.
Calhoun contends that the Constitution of the li
nked States was made by the people of the seve
ral States, forming separate and independent
communities, and not the work of the American
people collectivelythat there is no direct and
immediate connexion between the individual ci
tizens of a State and the General Government;
the relation between them is through the State;
and the State has the right, as far as its citizens
are concerned, to declare the extent of the obli
gation, and that such declaration is binding on
them that the General Government is the agent
of the States, constituted to execute their joint
will, as expressed in the Constitution that not
a provision can be found in the Constitution, au
thorising the General. Government to exercise
any control whatever over a State by force, by
veto, by judicial process, or in any other form
that in the Convention which formed the Consti
tution, there was a powerful party intent on ob
taining for the General Government a grant of
the very power in question, and that they at
tempted to effect this object in all possible ways,
hut fortunately without success. Mr. Calhoun
then proceeds as follows:
I have now, I trust, conclusively shown
that a St.-ito lias a right in her sovereign
capacity in Convention, to declare an un
constitutional act of Congress to be null
anil void, and that such declarations
would be obligatory on her citizens, as
highly so as the Constitution itself, and
conclusive against the General Govern
ment, which would have no right to en
force its construction of its . powers a
gainst that of the State.
I next propose to consider the practi
cal effect of the exercise of this high and
important right, which as the great con
servative principle of our system, is known
under the various names of nullification,
interposition, and State veto, in reference
to its operation viewed under different
aspects, nullification as annulling an un
constitutional act of the General Go
vernment as far as the State is con
cerned; interposition as throwing the
shield of protection between the citizens
of a Stale and the encroachments of the
Government; and veto, as arresting or ex
hibiting its unauthorized acts within the
limits of the State.
The practical effect, could the right be
considered as one fully recognized, would
be plain and simple, and has already in a
great measure, been anticipated. If the
State has a right, there must, of necessi
ty, be a corresponding obligation on the
part of the General Government to ac
quiesce in its exercise; and of course, it
would be its duty to abandon its power,
at least as far as the State is concerned,
and to apply to the States themselves,
according to the form prescribed in the
Constitution, o obtain it by a grant. If
granted, acquiescence, then, would be a
duty on the part of the State; and, in that
event, the contest would terminate in
converting a doubtful constructive power
into one positively granted; but, should it
not be granted, no alternative would re
main for the General Government, but
its permanent abandonment. In either
event, the controversy would be closed,
and the Constitution fixed; a result of the
utmost importance to the steady opera
tion of the Government, and the stability
of the system, and which can never be at
tained, under its present operation, with
out the recognition of tho right as expe
rience has shown
From the adoption of tl
we have had but one continued agitation
of constitutional- questions, embracing
some of the most important powers oxer
o.sed by the Government; and yet, in spile
nr ill Mm ..UK!...- i r- r. r
y uumiy ana iorcc ot argument
displayed in the various discussions,
backed by the high authority claimed for
Hie .Supreme Court, to adjust such con
troversies, not a single constitutional
question of a political character, which
has ever been agitated during this .long
period, has been settled in the public op
nion, except that of the unconstitutionali
ty of the Alien and Sedition law; and
what is remarkable, that was -settled
against the decisions of the Supreme
Court. The tendency is to increase, and
not to diminish this conflict for power.
New questions are yearly added, without
diminishing the old, while the contest be
comes more obstinate as the list increa
ses; and, what is highly ominous, more
sectional. It is impossible that the Go
vernment can last under this increasing
diversity of opinion, and growing uncer
tainly as to its power, in relation to the
most important subjects of legislation;
and equally so, that this dangerous state
can terminate, without a power some-
wnere to compel, in effect, the Govern
ment to abandon doubtful constructive
powers, or to convert them into positive
grants, by an amendment of the Consti
tution; in a word, to substitute the posi
tive grants of the parties themselves, for
the constructive powers interpolated by
the agents. Nothing short of this, in a
system constructed as ours is, with a
double set of agents, one for local and
the other for general purposes, can ever
terminate the conflict for power, or give
uniformity and stability to its action.
Such would be the practical and hap
py operation were the right recognized;
but the case may be far otherwise, and
as the right is not only denied, but vio
lently opposed, the General Government,
so far from acquiescing in its exercise,
and abandoning the power, as it ought,
may endeavor, by all the means.within
its command, to enforce its construction
against that of the State. It is under
this aspect of the question that I now
propose to consider the practical effect of
the exercise ot the right, with the view to
determine which of the two, the State or
the General Government, must prevail in
the conflict, which compels me to revert
to some of the grounds already estab
lished. I have already shown that the declara
tion of nullification would be obligatory
on the citizens of the State, as much so
in fact, as its declaration ratifying the
Constitution, resting, as it does, on the
same basis. It would to them be the
highest possible evidence that the power
contested was not granted, and, of course,
that the act of the General Government
was unconstitutional. They would be
bound, in all the relations of life, private
and political, to respect and obey it; and
when called upon as jurymen, to render
their verdict accordingly, or, as Judges,
to pronounce judgment in conformity to
it. The right of jury trial is secured by
the Constitution (thanks to the jealous
spirit of liberty doubly secured and for
tified) and, with this inestimable right
inestimable, not only as an essential por
tion of the Judicial tribunals of the coun
try, but infinitely more so, considered as
a popular, and still more, a local repre
sentation, in that department of the Go
vernment which, without it, would be the
farthest removed from the control of the
people; and, a fit instrument to sap the
foundation of the system; with, 1 repeat,
this inestimable right, it would be impos
sible for the General Government, within
the limits of the State, to execute legally
the acfc nullified, or any other passed with
a view to enforce it; while, on the other
hand, the State would be able to enforce
legally and peaceably its declaration
of nullification. Sustained by its court
and juries, it would calmly and quietly,
but successfully, meet every effort of the
General Government to enforce its claim
of power. The result would be inevita
ble. Before the judicial tribunal of the
country, the State must prevail, unless,
indeed, jury trial could be eluded, by the
refinement of the court, or by some other
device, which, however, guarded as it is
by the ramparts of the Constitution,
would, I hold, be impossible. The at
tempt to elude, should it be made, would
itself be unconstitutional; and, in turn,
would be annulled by the sovereign voice
of the State. Nor-would the right of ap
peal to the Supreme Court, undnr ihp
Judiciary act, avail the General Govern
ment. Jt taken, it would but end in a
new trial, and -that in another verdict.
against the Government; but whether it
may be taken, would be optional with
the State. The Court itself has decided.
that a copy of the record is requisite to
leview a juugment ot a Slate court, and,
if necessary, the State would take the
precaution to prevent, by proper enact
ments, any means ot obtaining a copy.
But if obtained, what would it avail.
against the execution of the penal enact
ments ot the fctale, intended to enforce
the declaration 'of nullification? The
judgment of the State court would be
pronounced and executed, before the
possibility of a reversal; and executed,
too, without responsibility incurred by
any one.
Beaten before the courts, the General
Government would be compelled to aban
don its unconstitutional pretensions, or
resort to force -a resort, the difficulty CI
was about to say, the impossibility) of
which, would very soon fully manifest it
self, should fully or madness ever make
the attempt.
In considering this aspect of the con
troversy, I pass over the fact, that the
General Government has no right to re
sort to force against a State to coerce
a sovereign member of the Union
which, I trust, I have established beyond
all possible doubt. Let it, however, be
determined to use force, and the difficul
ty would be insurmountable, unless, in
deed, it be also determined to set aside
the Constitution, and to subvert the sys
tem to its foundations.
Against whom would it be applied?
Congress has, it is true, the right to call
forth the militia "to execute the laws,
and suppress insurrections;" but there
would be no law resisted, unless, indeed,
it be called resistance for the juries to
refuse to find, and the courts to render
judgment, in conformity to the wishes of
the ueneral Uovernmeni; no insurrection
to suppress; no armed force to reduce;
not a sword unsheathed; not a bayonet
raised; none, absolutely none, on whom
force could be used; except it be on the
unarmed citizens, engaged peacefully and
quietly in their daily occupations.
No one would be guilty of treason
("levying war against the United States,
adhering to their enemies, giving them
aij and comfort,") or any other crime,
made penal by the Constitution or the
laws of the United States.
To suppose that force could be called
in, implies, indeed, a great mistake, both
as to the nature of our Government and
that of the controversy. It would be a
legal and constitutional contest, a conflict
of moral, and not physical force a trial
of constitutional, not military power, to
be decided before the judicial tribunals of
the country, and not on the field of battle.
In such contest there would be no object
for force, imt those peaceful tribunals
nothing on which it could be employed,
but in putting down courts and juries,
and preventing the execution of judicial
process. Leave these untouchedand all
the militia that could be called forth,
backed by a regular force of ten times the
number of our small but gallant and pat
riotic army, could not have the slightest
effect on the result of the controversy;
but, subvert these by an armed body, and
you subvert the very foundation of this,
our free, constitutional, and legul system
of government, and rear, in its place, a
military despotism.
Feeling the force of these difficulties, it
is proposed, with the view, I suppose, of
disembarrassing the operation as much
as possible of the troublesome interfe
rence of courts and juries, to change the
scene of coercion from land to waipr- no
if the Government could have one parti
cle, more right to coerce a State by wa
ter, than by land; but unless I am ornntlir
deceived, the difficulty on that element
will not be much less than the other.
The jury trial, at least, the local jury, (tho
trial by the vicinage,) may indeed, bo
evaded there; but in its place othr
not much less formidable obstacles must
be encountered.
There can be but two modes of r.npr-
cion resorted to by water; blockade, and
aoontion ot the ports of entry of the State,
accompanied by penal enactments, aii-
thorising seizures for-entering the waters
of the State. If the former be attempt
ed, there will be other parties beside the
General Government and the State.
Blockade is a belligerent right. It pre
supposes a stale of war, and, unless there
be war, (war in due form as prescribed
by the Constitution,) the order for block
ade would not be respected by other na
tions or their subjects. Their vessels
would proceed direcily for the blockaded
port, with certain prospects of gain; if
seized under the order of blockade, thro'
the claim of indemnity against the Gene
ral Government; and, if not, by a profita
ble market without the exaction of duties.
The other mode, the abolition of tho
ports of entry of the State, would also,
have its difficulties. The Constitution
provides that "no preference shall be gi
ven by any regulation of commerce, or re
venue, to the ports of one State, over
those of another; nor shall vessels bound
to or from one State be obliged'to enter,
clear, or pay duties in another;" provi
sions too clear to be eluded even by the
force of construction. There will be an
other difficulty. If seizures be made in
port or within the distance assigned hv
the laws of the nations, as the limits of a
State, the trial must be in the State, with
all the embarrassments of its courts and
juries, while beyond the ports and the
distance to wnicn 1. have referred, it
would be difficult to point out any princi
ple by which a foreign vessel at least,
could be seized, except as an incident to
the right of blockade, and, of course, with
all the difficulties belonging to that mode
oi coercion.
But there yet remains another, and, I
doubt not, insuperable barrier, to be
found in the judicial tribunals of the U
nion, against all the schemes of introdu
cing force, whether by land or water.
Though I cannot concur in the opinion of
those who regard the Supreme Court as
the mediator, appointed by the Constitu
tion, between the States and the General
Government; and though I cannot doubt
mat mere is a natural bias on its part to
wards the powers of the latter, yet I must
greatly lower my opinion of that high and
important tribunal, for intelligence, jus
tice, and attachment to the Constitution,
and particularly of that pure and upright
magistrate, who has so long, and with
such distinguished honor to himself and
the Union, presided over its deliberations
with all the weight that belongs to an in
tellect of the first order, united with the
most spotless integrity, to believe, for a
moment, that an attempt, so plainly and
manifestly unconstitutional as a resort to
force would be in such a contest, could
be sustained by the sanction of iis nuiho
rity. In whatever form force may be
used, it must present questions for legal
adjudication. If, in the shape of block
ade, the vessels seized under it must be
condemned, and thus would be presented