APRIL, 1830.] Mr. Foot's Resolution-Nullification. pressed will of the majority. And what then becomes of the great political maxim, "that absolute acquiescence in the decisions of the majority-the vital principle in republics-from which there is no appeal but to force, the vital principle and the immediate parent of despotism!" If this veto is the legitimate right of a State, she ought not to be controlled, resisted, or coerced. She may therefore peaceably withdraw from the Union, and must virtually dissolve the Union, because the laws must cease to operate, (the tariff for example,) unless they operate throughout; and besides, could the Union continue, separated by an intervening State? This Union can then only exist as long as twentyfour States concur in opinion. If this principle is true, it ought to have been inserted in the constitution. But it was not. And if the principle is acknowledged, then this constitution was not only imperfect in its organization, but is a political monster, born incapable of living, and containing a principle of self-destruction. The Union must dissolve peaceably, whenever the caprice, the passion, or the ambition, of a few aspiring men of a State may will it, or it must be maintained by force. It is either disunion or civil war; or, in the language of the times, disunion and blood. It is time to calculate, not the value, but the duration of the Government. [SENATE. the tariff has been declared a palpable violation of the constitution; it must, therefore, cease to operate; then the Supreme Court must not take any cognizance of any case arising under it, and Congress must not employ force; it is therefore unnecessary to resist the laws, and there will be no rebellion or treason. But then there will be no revenue. Congress has a right to lay duties for revenue. How much of this tariff is for revenue? for so much it is constitutional, as well as duties on articles not made in the country, and therefore not for the protection of domestic industry. What must be done in such a dilemma? Every power which has been at any time denied to Congress would have ceased. The Bank, after it had gone into operation, would have been compelled to shut its doors, and close the concern. All crimes not enumerated in the constitution would be stricken from the statute book; the embargo would have been declared inoperative; the 25th section of the Judiciary act would have been rendered void; the Cumberland road, and subscriptions to canals, grants of land, and all internal improvement, would have been suspended on the veto of a single State. The Judiciary law could not have been repealed, and Louisiana and Florida could not have been acquired. The Such is the vis inertia, that it is extremely difficult to get more than a bare majority for any measure. Some do not like its principle or its policy: some are indisposed to change: some do not like the time or the mode of proposing it. There are always reasons enough for opposing any proposition. Most great questions in deliberate bodies are carried by small majorities. The embargo-the war-the bank-the tariff, are striking instances. Constitution of the United States was adopted in Virginia, 89 to 79. Her late constitution was passed by a majority of only 15. It cannot, therefore, be reasonably expected that three-fourths of the States will ever concur in granting any power to Congress that may be previously declared unconstitutional. The powers of the Government will be constantly frittered away, until it has no power to do goodno means to protect-no energy to act-no principle of union. But we are told no such consequences will ensue. That it is a safe remedy-a necessary check-a salutary restraint upon this uncontrolled majority-a new balance in the constitution, that will regulate all its notions. As soon as this new State power is acknowledged, there will be no more unconstitutional laws, no further encroachments on the rights of the States. "The injured and oppressed States will assume her highest political attitude." She exercises her negative preventive power, she declares the law void-"the necessary consequence," says the gentleman from Tennessee, (Mr. GRUNDY,)" is, it must cease to operate in the State, and Congress must acquiesce, by abandoning the power, or obtain an express grant from the great source from which all power is drawn. The General Government would have no right to use force." "This will at all times prove adequate to save this glorious system of ours from disorder and anarchy." The parties claiming to exercise the power must call a convention of the States, and unless three-fourths of the States will consent to amend the constitution, and confer the power, it must cease to exercise it. Thus a law passed in the usual form, with majorities in both Houses, approved by the President, may be annulled, by the veto of any State, and every power taken from Congress, unless threefourths of the States are now willing to grant | it. Let us see how this will operate. Suppose This negative is supposed to be necessary to the twenty-fifth section of the Judiciary act the security of the States, and the protection of annulled, the jurisdiction of the court over all cases provided for by it must cease. Again, I But is the theory true, that, when the majority has pronounced, and the presumptuous are all in favor of the law, and it is suspended at the instance of a single State, that Congress are to be presumed in error, and must obtain the sanction of three-fourths of the States? Is it not rather more compatible with the theory and principles of the Government, that the complaining party, the resisting State, should call the convention, and make the appeal, and assure herself that she is right? A majority can repeal the law, and save further trouble. the minority; but its real operation will be to destroy the force and energy of the administra SENATE.] Mr. Foot's Resolution-Nullification. [APRIL, 1830. tion. "What may, at first sight, appear a rem- The constitution, therefore, provided that the 1. To all cases in law and equity arising under the constitution. 2. To all cases under the laws of the United States. 3. To all cases under treaties made by them. 4. To all cases affecting ambassadors, ministers, and consuls. 5. To all cases of admiralty and maritime jurisdiction. 6. Controversies wherein the United States are a party. 7. Controversies between two or more States. 8. Controversies between a State and citizens of another State. 9. Controversies between citizens of different States. 10. Controversies between citizens of the State claiming lands under grants of different States. 11. Controversies between a State or citizen, and foreign States, citizens, or subjects. The wise men who framed the constitution knew, from the defects and infirmities of the confederation, what was necessary to remedy the errors and correct the evils of that system. They knew that it had been, in its operation upon States only, totally inadequate to the object of its institution; that this Government must look beyond the States, and operate di- Here is power granted to try all imaginable rectly through the agency of the people, and cases that can be described; all cases in law and upon the people. They knew the necessity of equity, admiralty, or maritime jurisdiction; all a high court, to decide all questions arising that arise under the laws and constitution, and under it; the want of a judiciary power crown-treaties, and then it extends to all controversies ed the defects of the confederation. "Laws in which the United States may be a party, are a dead letter, without courts to expound and especially those that arise under the conand define their true meaning and operation." | stitution and in execution of the laws. Cases, "This is more necessary, when the frame of the Government is so compounded that the laws of the whole are in danger of being contravened by the laws of the parts."-(Federalist.) in general, must operate upon individuals and corporations, and not upon sovereign States. Thus, for example, under the tariff, if goods are introduced and not entered, they will be seized under the revenue laws then it is a They knew it was necessary to have a power question in law arising under the laws of the to decide on all cases that contravened the au- United States: if they resist the seizure, it is thority of the Union, and to prevent the exer- opposition to the laws; the courts will proceed cise of the inhibited powers by the States, and to judgment, and the President is authorized to all other questions which it was foreseen might call on the Executives of the States for the miarise under the new Government. This pre-litia to execute the laws. If they refuse the sented a question of exceeding great difficulty; two plans were proposed, one to give power to the General Government to revise the laws of the States, and the other, the right to use force. Mr. Pinckney proposed, "to render these prohibitions effectual, the Legislature of the United States shall have power to revise the laws of the several States that may be supposed to infringe the powers exclusively delegated by this constitution to Congress, and to negative and annul such as do." Mr. Randolph proposed "The Legislature to negative all laws passed by the several States, contravening, in the opinion of the National Legislature, the articles of union, or any treaty, and to call forth the force of the Union against any member of the Union failing to fulfil its duty under the articles thereof." Upon more mature consideration, however, it was determined to extend the jurisdiction of the Supreme Court to all cases that could arise under the constitution, or the laws or treaties. It was essential to make the judiciary power co extensive with the legislative power. militia, on the call of the President, then it is the Massachusetts case; if they oppose the laws by force, how will they escape the crime of treason, and how will that differ from the Western insurrection? And all these are controversies to which the United States are a party; if they enter the goods, and suit is instituted on the bond, the court will hear any defence, but they must decide, although the constitution, the power of the United States, or the sovereign power of the State, may be incidentally drawn in: when judgment is obtained, and execution issued, notwithstanding a sovereign State may be interested, by her agents, it must be executed as in the Pennsylvania case, to which I shall presently advert. It was undoubtedly the intention of the convention to constitute a Supreme Court to decide all questions of law or sovereignty, and the words are as general and as ample as the language admits. But, in addition to this, it is the duty of the President to take care that the laws be faithfully executed, and Congress have power to provide, and they have provided, APRIL, 1830] Mr. Foot's Resolution-Nullification. [SENATE. This was the defect of the confederation; it had not the sanction of the people; it was ratified only by the State Legislatures; and, therefore, reasoning from these theories of Government, it was said each Legislature had a right to repeal the law, and thereby annul the confederation. It is said, in reply to this, in the Federalist: that the President may call forth the militia to | are bound to show that, in such a union of States, execute the laws of the Union, suppress insur- for certain great objects, each State has a right rections, and repel invasions. Besides, the to decide, definitely, for herself when the power Congress have power to suspend the habeas is exceeded. The convention intended to procorpus in cases of rebellion and invasion. This vide for all cases that could occur; if they have superintending power of the Government was failed to remedy the evil that was foreseen, they understood perfectly by the framers of it. To have made a Government which, instead of secure the citizens of the respective States from being a splendid fabric of human invention, is being punishable as traitors to the United utterly impracticable, and which must exist States, when acting expressly in obedience to only by the forbearance of the States. the authority of their own State, it was proposed, in the convention, to add: “Provided that no act or acts done by one or more of the States against the United States, or by any citizen of any one of the United States, under the anthority of one or more, shall be deemed treason, or punished as such; but, in case of war being levied by one or more of the States, against the United States, the conduct of each party towards the other and their adherents, respectively, shall be regulated by the laws of war and of nations "--which was not adopted; which sufficiently explains the views of the convention. But, after the adoption of the constitution, the State of North Carolina proposed as an amendment, that no State should be declared in rebellion but by the consent of two-thirds of the States present-which was also not adopted. that a party to a compact has a right to revoke "However gross a heresy it may be to maintain that compact, the doctrine itself has had respectable advocates. The possibility of a question of this nature proves the necessity of laying the foundations of the National Government deeper than in the mere sanction of delegated authority. But the fabric of American Empire ought to rest on the solid basis of the consent of the people. The streams of national power ought to flow immediately from the pure original fountain of all legitimate authority." If this is the true interpretation of the meaning of the constitution, they will take upon The right of a State to annul a law of Conthemselves a heavy responsibility who under-gress must moreover depend on their showing take, upon a mere abstract theory of right, to resist or to interfere with the regular and legal operations and functions of the different branches of the Government, at the will and pleasure of the States. Having entered into civil society, and distributed the power into different hands, they contract the obligation of obedience; they are bound by the constitution which they have sworn to support. This question is reduced to a narrow compass. The right to resist a usurpation, or a tyranny, is not denied; the right to use all the peaceful modes of redress, not doubted. It has been admitted that the Supreme Court may decide all cases between individuals. But it is said the States now claim the right to decide when the General Government exceed their authority, because that is a sovereign power. I have endeavored to show that the power to decide all questions under the constitution has been conferred on the Supreme Court; and, if so, the question is concluded, whatever may be the form of the Government. If this is a pure and simple confederation of States, they are bound by the constitution, by all they have stipulated, and they are obliged by their duty and by their oath to submit to the court all matters of which they have jurisdiction; that is, every case arising under the constitution and laws, and every controversy to which the United States are a party; and they are, moreover, bound to show that, to decide on the unconstitutionality of a law is an exception, and not included in this grant; they that this is a mere confederation of States; which has not been done, and cannot be said to be true, although it should not appear to be absolutely a Government of the people. It is by no means necessary to push the argument, as to the character of the Government, to its utmost limit; the ground has been taken, and maintained with great force of reasoning, that this Government is the agent of the supreme power, the people. It is sufficient for the argument that this is not a compact of States; it may be assumed that it is neither strictly a confederation nor a National Government: it is compounded of both-it is an anomaly in the political world-an experiment growing out of our peculiar circumstances-a compromise of principles and opinions-it is partly federal, partly national. "The proposed constitution is, in strictness, neither national nor federal; it is a composition of both; in its foundation, it is federal, not national; in the sources from which the ordinary powers of the Government are drawn, it is partly federal, partly national; in the operation of these powers, it is national, not federal; in the mode of amendment, it is neither wholly federal nor wholly national." -(Federalist.) This was the great question solved by the convention: whether this Government should be a confederation, founded on an equality of States, or a Union, upon the principle of population. The large States contended for a representation of the people, the small States for equality of States. The parties were nearly bal SENATE.] Mr. Foot's Resolution-Nullification. [APRIL, 1830. diciary. Mr. Monroe, in his Message, in December, 1824, says, the Supreme Court "decides, in the last resort, on all great questions which arise under our constitution, involving those between the United States, individually, between the States and the United States." Chief Justice Spence, 19 Johnson 164, says, "I consider that court as paramount, when deciding on an article of the constitution, and an act of Congress passed under its express injunction." In the case of Cohens vs. Virginia, "It (the counsel) maintains that, admitting the constitu tion and laws to have been violated by the judgment, it is not in the power of the Government to apply a corrective. They maintain that the nation does not possess a department capable of restraining, peaceably, and by authority of law, any attempts which may be made, by a part, against the legitimate powers of the whole; and that the Government is reduced to the alternative of submitting to such attempts, or of resisting them by force; they maintain that the Constitution of the United States has provided no tribunal for the final construction of itself, or of the laws or treaties of the nation, but that this power may be exercised, in the last resort, by the courts of every State in the Union. The court, however, decided in favor of the power of the court. anced, and upon this ground the great struggle | It was believed, by those who framed the was conducted. A majority of the people constitution, that the laws would be supreme, could not consent to be governed by a minority and would be enforced by the National Juin the great concerns of this Government; while the small States thought their safety consisted in maintaining their equal share of the power. A majority of the convention was in favor of the popular principle; the House of Representatives was formed upon a representation of the people; the States were equally divided in the formation of the Senate, which led to a compromise, by which that branch was formed on the principle of equality of States, and the election of President was rendered, in the first instance, popular, but upon a compound principle, growing out of the compromise. The confederation was abandoned, as too defective to remedy; the federative principle was retained, so far as to protect the rights of the small States, while it preserved those of the people of the large States, by the division and organization of the Legislative department, by which no law or treaty can be made without the concurrence of a majority of the people and of the States. The rights of both were farther protected by the veto of the Executive. The States are a part of the machinery of the Government, and constitute one great whole, and "a more perfect Union," under the style of "We the people of the United States." This Government, thus constituted for certain purposes, acts for the people collectively, and directly upon the people of the Union, without any reference to the States. It does not act by States, or upon the States. It levies taxes, imposts, and duties, upon the people; it administers justice in the States, upon individuals; it commands the militia, &c. Now, having entered into this Government, by whatever name it may be known, so checked and balanced, with so many guards and precautions, what is the principle upon which it is founded? Certainly, that a majority of the people and of the States should pass all laws, and that these should be the supreme laws of the land, and that every question of power under the constitution and laws should be decided by the Supreme Court. This, I think, has been shown by the substitution of the Supreme Court in the place of the other modes recommended, to give Congress the control of the State laws: by giving, in express terms, jurisdiction of all controversies in which the United States are a party; by the cotemporaneous construction of the constitution in the Judiciary Act; by declaring the laws supreme; by giving the President power to call out the militia, and making it his duty to execute the laws. The court has uniformly exercised jurisdiction, which has been approved, on an open appeal to the States. The President has carried the judgments, by force, into effect. The State tribunals have acknowledged the authority, and such is now the opinion of three-fourths of the people and of the States of this Union. It has been objected by the gentleman from South Carolina, (Mr. SMITH,) that a bare majority of the Supreme Court may decide the most important questions of State rights. The answer is, that no provision was made in the constitution; none was thought necessary. It is in the power of Congress at all times to change it, and to require a large majority. This has been tried, and always resisted. It is objected, that, when the court is composed of seven, there may be three on each side, and one may decide; but this is favorable to the States: for if they affirm the constitutionality of a law, they only sanction what has been previously declared by all the other branches of the Government. If a majority of one member decides against the law, his opinion countervails the weight of all the majority by which the law was passed; so that, when the constitutionality of a law is doubted, a single member, when there is a disagreement, may decide against the power of the Government. If more than a majority are required to declare a State law unconstitutional, by parity of reason, more than a majority must be required to declare an act of Congress unconstitutional. Having examined the question upon princi ple, let us see if there is any precedent or authority for it. I believe there are but two gentlemen who have avowed the opinion. The gentleman from New Hampshire marched boldly up to the very boundary of the question and stopped short; he refused to vouch for the APRIL, 1830.] Mr. Foot's Resolution-Nullification. [SENATE. nullifying power, by which I infer it is not, in | his reply to the apprehensions of civil commohis opinion, the true democratic doctrine. There is no precedent except the Virginia and Kentucky resolutions; they are merely declaratory that the States are parties to the compact, and that, in case of a palpable, dangerous, and deliberate violation of the constitution, the State has a right to interpose. But bow? By annulling the law? No; but by declaring the act of Congress unconstitutional, and referring the question to the other States. It is a protest on the part of the State, and an He maintained that the fifth article of the appeal from Congress to the State authorities, constitution had provided a remedy against enwho are also parties. The last Virginia reso- croachments, by Congress on the States, and lution is in these words, after expressing the upon the rights of each other. By the article, most sincere affection for their brethren of the "two-thirds of Congress may call upon the other States: "The General Assembly doth States for an explanation of any such controsolemnly appeal to the like dispositions of the versy as the present, by way of amendment to other States, in confidence that they will con- the constitution, and thus correct an erroneous fer with this Commonwealth in declaring, as it construction of its own acts, by a minority of does hereby declare, that the acts aforesaid are the States, while two-thirds of the States are unconstitutional, and that the necessary and also allowed to compel Congress to call a conproper measures will be taken by each, for co-vention, in case so many should think an operating with this State, in maintaining, un- amendment necessary for the purpose of checkimpaired, the authorities, rights, and liberties, ing the unconstitutional acts of that body." reserved to the States, respectively, or to the He said, "the will of the people and the will of people;" and for this purpose they were trans- the States were made the constitutional referee mitted to the several States. in the case under consideration. The State In the debate, Mr. Mercer said: "The State was pursuing the only possible and ordinary believed that some of its rights had been in- mode of ascertaining the opinon of two-thirds vaded by the late acts of the General Govern- of the States, by declaring its own, and asking ment, and proposed a remedy, whereby to ob- theirs. He hoped these reprobated laws would tain a repeal of them. The plan contained in be sacrificed to quiet the apprehensions even of the resolutions appeared the most advisable; a single State, without the necessity of a conforce was not thought of by any one." "Noth-vention, or a mandate from three-fourths of ing seemed more likely to produce a temper in Congress for a repeal, than a declaration similar to the one before the committee, made by a majority of States, or by several of them." "We do not wish," (said Mr. M.,) "to be the arm of the people's discontent, but to use their voice." "They (the States) can readily communicate with each other in the different States, Thus it appears that there is nothing in these and unite their common forces for the protec-resolutions that looks to the right of the State tion of their common liberty." Mr. Barbour said: "The gentleman from Prince George had remarked, that these resolutions invited the people to insurrection and to arms; but, if he could conceive that the consequences foretold, would grow out of the measure, he would become its bitterest enemy;" "but it would appear by reference to the leading feature in the resolutions, which was their being addressed, Two very important amendments were intronot to the people, but to the sister States, pray- duced, which evinced still farther that it was ing, in a pacific way, their co-operation in ar- not their intention to annul the laws, or to resting the tendency and effect of unconstitu- claim the right to interpose in that way. The tional laws." first was: they declared, in the first of the resGeneral Lee said: "If the law was uncon-olutions, that the alien and sedition laws were stitutional, he admitted the right of interposition; nay, it was their duty; every good citizen was bound to uphold them in fair and friendly exertions to correct an injury so serious and pernicious." tion, to which the resolutions were said to have a tendency, he said: "Are the republicans possessed of fleets and armies? if not, to what could they appeal for defence and support? To nothing but public opinion; if that should be against them, they must yield. They had uttered what they conceived to be truth, in firm, yet decent, language; and they had pursued a system which was only an appeal to public opinion." But the object of these resolutions is more clearly and explicitly set forth by Mr. John Taylor, who introduced the resolutions. In the States. He said, "firmness and moderation could only produce a desirable coincidence between the States." "Timidity would be as dishonorable as the violent measures, which gentlemen on the other side recommended in cases of constitutional infractions, would be immoral and unconstitutional." of Virginia herself to annul an act of Congress; on the contrary, it is the very reverse. It is a declaration, that the law, in their opinion, violates the constitution; that the State has a right, as a party to the compact, to interpose, by referring it to the consideration of the other parties to the compact: the language is too plain, and too explicit, to require comment. unconstitutional, and not law, but utterly null and void, and of no force or effect. These nullifying expressions were stricken out, upon the motion of Mr. Taylor himself. They were, no doubt, originally inserted merely to express the opinion that the necessary effect of their being unconstitutional was that they were not law, and null and void; but it is evident it was not |