a state pronouncing that the Constitution has been violated, and is, therefore, null and void, would be obligatory on her citizens, and would arrest all the acts of the government within the limits of the State; while they deny that a similar declaration, made by the same authority, and in the same manner, that an act of the government has transcended its powers, and that it is, therefore, null and void, would have any obligation; while the other acknowledges the obligation in both cases. The one admits that the declaration of a state assenting to the Constitution bound her citizens, and that her declaration can unbind them; but denies that a similar declaration, as to the extent she has, in fact, bound them, has any obligatory force on them; while the other gives equal force to the declaration in the several cases. The one denies the obligation, where the object is to preserve the Union in the only way it can be, by confining the government, formed to execute the trust powers, strictly within their limits, and to the objects for which they were delegated, though they give full force where the object is to destroy the Union itself; while the other, in giving equal weight to both, prefers the one because it preserves, and rejects the other because it destroys; and yet the former is the Union, and the latter the disunion party. And all this strange distinction originates, as far as I can judge, in attributing to nullification what belongs exclusively to secession. The difficulty as to the former, it seems, is, that a state cannot be in and out of the Union at the same time. This is, indeed, true, if applied to secession the throwing off the authority of the Union itself. To nullify the Constitution, if I may be pardoned the solecism, would, indeed, be tantamount to disunion; and, as applied to such an act, it would be true that a state could not be in and out of the Union at the same time; but the act would be secession. But to apply it to nullification, properly understood, the object of which, instead of resisting or diminishing the powers of the Union, is to preserve them as they are, neither increased nor diminished, and thereby the Union itself (for the Union may be as effectually destroyed by increasing as by diminishing its powers-by consolidation, as by disunion itself), would be, I would say, had I not great respect for many who do thus apply it, egregious trifling with a grave and deeplyimportant constitutional subject."" All who have been convinced by the arguments against the right of secession will have little difficulty in perceiving the weakness 1832. Calhoun's Speeches, 1st ed., 1843, pp. 51-56. 9 Mr. Calhoun's letter to General Hamilton on the subject of State Interposition, dated Fort Hill, Aug. 28, of the position of Calhoun. is legal find it hard to admit his doctrine of nullification.10 For if the acts of the Union could at any time, in peace or war, be paralyzed by the objections of a single State, the Constitution would be no stronger than a rope of sand, and the work of the Federal Convention would have been indeed in vain. Even those who claim that secession If that instrument were merely a treaty which formed a league, not only is there nothing in its context, but every principle of law, municipal and international, forbids that a member of the Confederacy should retain its membership and enjoy its benefits while at liberty to violate its conditions, which require that the citizens and courts of every State shall obey the Federal laws and give to the Supreme Court of the United States the right of ultimate determination as to the constitutionality of acts of Congress.11 Refusals by the different States to comply with the resolutions of Congress had been common under the Confederation, and for that purpose the Constitution was so shaped that the laws of the United States should operate directly upon the citizens of the States, with penalties upon them for infractions. This idea was expressed constantly in the State as well as the Federal Convention.12 The 10 The doctrine is expressly repudiated by B. J. Sage in The Republic of Republics, 4th ed., p. 260: “But a State or its convention has no right to withdraw some, and leave the rest of the powers; or obstruct the execution of a part; or annul a law, while adhering to the Union; for the Constitution, being a compact, is not to be partly suspended and partly executed, by one of the parties." Jefferson Davis also said, in his farewell speech in the Senate (The Rise and Fall of the Confederate Government, vol. i, pp. 221, 222): "I hope none who hear me will confound this expression of mine with the advocacy of the right of a State to remain in the Union, and to disregard its constitutional obligations by the nullification of the law. Such is not my theory. Nullification and secession, so often confounded, are indeed antagonistic principles." And again, speaking of Judge Sharkey: "He had been an advocate of nullification — a doctrine to which I had never assented, and which had been at one time the main issue in Mississippi politics." Ibid., vol. i, p. 231. 11 The arguments against the constitutionality of nullification may be found in Webster's Reply to Hayne, Jackson's Proclamation, and Dane's Abridgement, vol. ix, Appendix. 12 In the Connecticut convention, Oliver Ellsworth, afterwards Chief Justice of the United States, said: "How contrary, then, to republican principles, how humiliating is our present situation! A single State can rise up and put a veto upon the most important public measures. We have seen this actually take place. A single State has controlled the general voice of the Union; a minority, a very small minority, has governed us. So far is power of the Supreme Court of the United States to determine finally as to the constitutionality of a State statute or act of Congress had been intentionally granted by the Convention; and its exercise had been repeated.13 In one case such a decision had been enforced with the approval of President Madison against the militia of a State, called out to support an act of the State legislature directing resistance to the judgment; the State militia-men had been tried and convicted for their obedience to the State Statute; 14 and when the State legislature recommended a constitutional amendment to provide an umpire for future conflicts between State and Federal authorities, no other State concurred, and the legislature of Virginia unanimously voted: “That a tribunal is already provided by the Constitution of the United States, to wit the Supreme Court, more eminently qualified, from their habits and duties, from the mode of their selection, and from the tenure of office, to decide the disputes aforesaid in an enlightened and impartial manner than any other tribunal that could be created." 15 this from being consistent with republican principles, that it is, in effect, the worst species of monarchy. Hence we see how necessary for the Union is the coercive principle. No man pretends the contrary; we all see and feel this necessity. The only question is, Shall it be a coercion of law, or a coercion of arms?" "I am for coercion by law that coercion which acts only upon delinquent individuals." "This legal coercion singles out the guilty individual, and punishes him for breaking the laws of the Union." Elliot's Debates, 2d ed., vol. v, p. 197. In the same speech Ellsworth speaks of the power of "the national judges to declare void an act of Congress not authorized by the Constitution." Ibid., p. 196. See also the authorities cited supra, § 17. 13 U. S. v. Peters, 5 Cranch, p. 115, A. D. 1808; Martin v. Hunter's Lessee, 1 Wheaton, p. 304, A. D. 1816; Cohens v. Virginia, 6 Wheaton, p. 304, A. D. 1821. The history of this subject will be discussed subsequently in the chapter on the Judicial Power. 14 This was the famous case of the sloop Active. Journals of Congress, vol. v, p. 372; Ross et al. v. Rittenhouse, 2 Dallas, p. 160, A.D. 1792; U. S. v. Peters, 5 Cranch, p. 115, A.D. 1808; Trial of General Bright by Richard Peters; The whole Proceedings in the case of Olmstead v. Rittenhouse, Philadelphia, 1809; Olmsted's Case, Brightby (Pa.), 1; The case of the Sloop Active by Hampton L. Carson, The Green Bag, vol. vii, p. 17; Carson, History of the Supreme Court of the United States, vol. i, p. 213. 15 Extract from the journal of the Senate of the Commonwealth of Virginia, begun and held at the Capitol in the City of Richmond, the fourth day of December, 1809: "Friday January 26, 1810; "Mr. Nelson reported from the committee to whom were committed the preamble and resolutions on the amendment proposed by the legisla The doctrine of nullification can find no support in the language of the Constitution. It is in direct conflict with the spirit and ture of Pennsylvania, to the constitution of the United States, by the appointment of an impartial tribunal to decide disputes between the state and federal judiciary, that the committee had, according to order, taken the said preambles and resolutions under their consideration, and directed him to report them without any amendment. And on this question being put thereupon, the same were agreed to unanimously, by the House, as follows: The committee to whom was referred the communication of the Governor of Pennsylvania, covering certain resolutions of the legislature of that State, proposing an amendment to the constitution of the United States, by the appointment of an impartial tribunal to decide disputes between the State and federal judiciary, have had the same under their consideration, and are of opinion that a tribunal is already provided by the constitution of the United States, to wit: The Supreme Court, more eminently qualified, from their habits and duties, from the mode of their selection, and from the tenure of their offices, to decide the disputes aforesaid in an enlightened and impartial manner, than any other tribunal which could be created. The members of the Supreme Court are selected from those in the United States, who are most celebrated for virtue and legal learning, not at the will of a single individual, but by the concurrent wishes of the President and Senate of the United States; they will therefore have no local prejudices and partialities. The duties they have to perform lead them necessarily to' the most enlarged and accurate acquaintance with the jurisdiction of the federal, and several State courts, to gether with the admirable symmetry of our government. The tenure of their offices enables them to pronounce the sound and correct opinions they may have formed, without fear, favor, or partiality. The amendment to the constitution proposed by Pennsylvania, seems to be founded upon the idea that the federal judiciary will, from a lust of power, enlarge their jurisdiction, to the total annihilation of the jurisdiction of the state courts; that they will exercise their will instead of the law and the constitution. This argument, if it proves anything, would operate more strongly against the tribunal proposed to be created, which promises so little, than against the Supreme Court, which for the reasons given before, have everything connected with their appointment calculated to insure confidence. What security have we, were the proposed amendment adopted, that this tribunal would not substitute their will and their pleasure in place of the law? The judiciary are the weakest of the three departments of government, and least dangerous to the political rights of the constitution. They hold neither the purse nor the sword; and even to enforce their own judgments and decrees, must ultimately depend upon the executive arm. Should the federal judiciary, however, unmindful of their weakness, unmindful of their duty which they owe to themselves and their country, become corrupt and transcend the limits of their jurisdiction, would the proposed amendment oppose even a probable barrier to such an improbable state of things? The creation of a tribunal such as is proposed by Pennsylvania, so far as we are enabled to form an idea of it, from the description given in the res letter as well as the expressed intentions of the framers of that instrument and the precedents of half a century before its promulgation. Had it been recognized as a part of our system of government, it would have been as fatal as was the liberum veto in the Polish Diet; the United States would have long since suffered a partition; and the cause of civil liberty throughout the world would have met with a reverse from which it could not have recovered within the century. But although it is hard to believe that a mind so acute as that of Calhoun could have been the dupe of its own sophistry, no lawyer can fail to admire the ingenuity with which was framed his scheme for resistance to the tariff, and he well earned his reputation as a statesman by the practical result which he obtained. § 34. History of Nullification. The Tariff of Abominations of 18281 bore with especial severity upon the South, where there were no manufacturers who desired olutions of the legislature of that state, would, in the opinion of your committee, tend rather to invite than prevent a collision between the federal and state courts. It might also become in process of time a serious and dangerous embarrassment to the operations of the general govern ment. "Resolved, therefore, that the legislature of this state do disapprove of the amendment to the constitution of the United States proposed by the legislature of Pennsylvania. "Resolved also, that his Excellency the Governor be, and is hereby requested to transmit forthwith, a copy of the foregoing preamble and resolutions to each of the senators and representatives of this state in Congress and to the executive of the several states in the Union and request that the same be laid before the legislatures thereof." Extract from the journal of the House of Delegates of the Commonwealth of Virginia: — "Tuesday Jan 23, 1810; "The House according to the order of the day, resolved itself into a committee of the whole house on the state of the commonwealth and after some time spent therein Mr. Speaker resumed the chair and Mr. Robert Stanard reported that the committee had according to order, had under consideration the preamble and resolutions of the select committee to whom were referred that part of the Governor's communication which relates to the amendment proposed to the constitution of the United States, by the legislature of Pennsylvania, had gone through the same, and directed him to report them to the House without amendment; which he handed in at the clerk's table, and the question being put on agreeing to the said preamble and resolutions, they were agreed to by the House unanimously." Pinckney's argument in Cohens v. Virginia, 6 Wheaton, 264, 358, note. § 34. 1 Act of May 19, 1828, 4 St. at L., p. 240. |