Thirty Years' View (Vol. I of 2)

I omit all consideration of the minor vices of the act – great and flagrant in themselves, but subordinate in comparison to the mischiefs done to the frame of our government. At any other time these vices of matter, and manner, would have been crushing to a bill. No bill containing a tithe of the vices, crowded into this one, could ever have got through Congress before. The overthrow of the old revenue principle, that duties were to be levied on luxuries, and not on necessaries – substitution of universal ad valorems to the exclusion of all specific duties – the substitution of the home for the foreign valuation – the abolition of all discrimination upon articles in the imposition of duties – the preposterous stipulation against protection, while giving protection, and even in new and unheard of forms; all these were flagrant vices of the bill, no one of which could ever have been carried through in a bill before; and which perished in this one before they arrived at their period of operation. The year 1842 was to have been the jubilee of all these inventions, and set them all off in their career of usefulness; but that year saw all these fine anticipations fail! saw the high protective policy re-established, more burthensome than ever: but of this hereafter. Then the vices in the passage of the bill, being a political, not a legislative action – dominated by an outside interest of manufacturers – and openly carried in the Senate by a douceur to some men, not in "Kendal Green," but Kendal cotton. Yet it was received by the country as a deliverance, and the ostensible authors of it greeted as public benefactors; and their work declared by legislatures to be sacred and inviolable, and every citizen doomed to political outlawry that did not give in his adhesion, and bind himself to the perpetuity of the act. I was one of those who refused this adhesion – who continued to speak of the act as I thought – and who, in a few years, saw it sink into neglect and oblivion – die without the solace of pity or sorrow – and go into the grave without mourners or witnesses, or a stone to mark the place of its interment.

CHAPTER LXXXVII.

VIRGINIA RESOLUTIONS OF '98-'99 – DISABUSED OF THEIR SOUTH CAROLINA INTERPRETATION – 1. UPON THEIR OWN WORDS – 2. UPON CONTEMPORANEOUS INTERPRETATION

The debate in the Senate, in 1830, on Mr. Foot's resolutions, has been regarded as the dawn of those ideas which, three years later, under the name of "nullification," but with the character and bearing the seeds of disorganization and civil war, agitated and endangered the Union. In that debate, Mr. Hayne, as heretofore stated, quoted the third clause of the Virginia resolutions of 1798, as the extent of the doctrines he intended to avow. Though Mr. Webster, at the time, gave a different and more portentous interpretation to Mr. Hayne's course of argument, I did not believe that Mr. Hayne purposed to use those resolutions to any other effect than that intended by their authors and adopters; and they, I well knew, never supposed any right in a State of the Union, of its own motion, to annul an act of Congress, or resist its operation. Soon after the discussion of 1830, however, nullification assumed its name, with a clear annunciation of its purpose, namely, to maintain an inherent right in a State to annul the acts of the federal government, and resist their operation, in any case in which the State might judge an act of Congress to exceed the limits of the constitution. And to support this disorganizing doctrine, the resolutions of 1798, were boldly and perseveringly appealed to, and attempted to be wrested from their real intent. Nor is this effort yet abandoned; nor can we expect it to be whilst nullification still exists, either avowed or covert. The illustrious authorship of the Resolutions of 1798; the character and reputation of the legislators who adopted them; their general acceptance by the republican party, the influence they exercised, not only on questions of the day, but on the fate of parties, and in shaping the government itself, all combine to give them importance, and a high place in public esteem; and would go far to persuade the country that nullification was right, if they were nullification. In connection, therefore, with the period and events in which nullification had its rise, the necessity is imposed of an examination into the scope and objects of those resolutions; and the same reasons that have made, and make, the partisans of nullification so urgent to identify their fallacies with the resolutions, must make every patriot solicitous for the vindication of them and their author and adopters from any such affinity.

Fortunately, the material is at hand, and abundant. The resolutions are vindicated on their text alone; and contemporaneous authentic interpretation, and the reiterated, earnest – even indignant – disclaimers of the illustrious author himself, utterly repudiate the intent that nullification attempts to impute to them. I propose, therefore, to treat them in these three aspects:

I. Vindicated on their text

The clause of the resolutions, chiefly relied on as countenancing nullification, is the third resolution of the series, and is as follows:

"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; and that, in case of a deliberate, palpable, and dangerous exercise of other powers not granted by the said compact, the States, who are the 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."

The right and duty of interposition is certainly here claimed for the States, in case of a "deliberate, palpable, and dangerous assumption of powers, by the federal government;" but, looking alone to the words of the text, it is an unreasonable inference, that forcible or nullifying interposition is meant. The word does not import resistance, but rather the contrary; and can only be understood in a hostile sense, when the connection in which it is used necessarily implies force. Such is not the case in this resolution; and no one has a right to suppose that, if its authors had intended to assert a principle of such transcendent importance, as that the States were severally possessed of the right to annul an act of Congress, and resist its execution, they would not have used words to declare that meaning explicitly, or, that they would intimate covertly a doctrine they dared not avow.

The constitution itself suggests several modes of interposition, competent for either the States or the people. It provides for the election (by a mixed system, popular and State), at brief intervals, of all the functionaries of the federal government; and hence, the interposition of the will of the States and people to effect a change of rulers; hence, of policy. It provides that freedom of speech and the press, shall not be abridged, which is equivalent to a provision that those powerful means be perpetually interposed to affect the public conscience and sentiment – to counsel and alarm the public servants; to influence public policy – to restrain and remedy government abuses. It recognizes the right, and provides that it shall not be abridged, of the people "to assemble and petition the government for the redress of grievances;" hence, contemplating that there may be grievances on the part of the government, and suggesting a means of meeting and overcoming them. Finally, it provides that, on the application of a designated proportion of the States, Congress shall cause a convention to be called, to provide, in the constitution itself, should it be judged necessary, additional securities to the States and the people, and additional restraints on the government.

To act on the sentiments of the country then; to bring to their aid the potent engines of the press and public harangues; to move the people to petition and remonstrance against the obnoxious measures; to draw the attention of other States to the abuses complained of, and to the latitudinous construction the federal authorities were giving to their powers; and thus bring those States, in like manner, to act on their senators and representatives, and on the public voice, so as to produce an immediate remedy, or to co-operate in calling a convention to provide further securities – one or both; these alone are the modes of "interposition" the Virginia resolutions of 1798 contemplated; all they professed; all they attempted; all that the resolutions, or their history, warrant to be imputed to them. These modes of interposition are all consistent with peace and order; with obedience to the laws, and respect to the lawful authorities; the very means, as was well argued by the supporters of the resolutions, to prevent civil strife, insubordination, or revolution; in all respects, the antipodes of nullification.

To enlarge somewhat on the force of the words of the resolutions: The right and duty of "the States" to interpose, certainly does not mean the right of "a State" to nullify and set at nought. The States – less than the whole number – have a right to interpose, secured, as already shown, in the constitution; and this, not only persuasively, but peremptorily; to compel the action they may desire; and it is demonstrable, that it was this constitutional provision that the Virginia legislature had in mind, as a last resort. The resolutions do not speak any where of the right of a State; but use the plural number, States. Virginia exercises the right that pertains to a State – all the right that, in the premises, she pretends to – in passing the resolutions, declaring her views, and inviting the like action of her co-States. Instead, therefore, of the resolutions being identical with nullification, the two doctrines are not merely hostile, but exactly opposites; the sum of the Virginia doctrine being, that it belongs to a State to take, as Virginia does in this instance, the initiative in impeaching any objectionable action of the federal government, and to ask her co-States to co-operate in procuring the repeal of a law, a change of policy, or an amendment of the constitution – according as one or the other, or all, may be required to remedy the evil complained of; whereas, nullification claims, that a single State may, of its own motion, nullify any act of the federal government it objects to, and stay its operation, until three fourths of all the States come to the aid of the national authority, and re-enact the nullified measure. One submits to the law, till a majority repeal it, or a convention provides a constitutional remedy for it; the other undertakes to annul the law, and suspend its operation, so long as three fourths of the States are not brought into active co-operation to declare it valid. The resolutions maintain the government in all its functions, only seeking to call into use the particular function of repeal or amendment: nullification would stop the functions of government, and arrest laws indefinitely; and is incapable of being brought to actual experiment, in a single instance, without a subversion of authority, or civil war. To this essential, radical, antagonistic degree do the Virginia resolutions and the doctrine of nullification differ, one from the other; and thus unjustly are the Virginia republicans, of 1798, accused of planting the seeds of dissolution – a "deadly poison," as Mr. Madison, himself, emphatically calls the doctrine of nullification – in the institutions they had so labored to construct.

II. Upon their contemporaneous interpretation

The contemporaneous construction of the resolutions is found in the debates on their adoption; in the responses to them of other State legislatures; and in the confirmatory report prepared by the same author, and adopted by the Virginia general assembly, in January, 1800; and by the conduct of the State, in the case of Callender. And it is remarkable (when we consider the uses to which the resolutions have subsequently been turned), that, while the friends of the resolutions nowhere claim more than a declaratory right for the legislature, and deny all idea of force or resistance, their adversaries, in the heat of debate, nor the States which manifested the utmost bitterness in their responses, have not attributed to the resolutions any doctrine like that of nullification. Both in the debates and in the State responses, the opponents of the resolutions denounce them as inflamatory, and "tending" to produce insubordination, and whatever other evil could then be thought of, concerning them; but no one attributes to them the absurdity of claiming for the State a right to arrest, of its own motion, the operation of the acts of Congress.

The principal speakers, in the Virginia legislature, in opposition to the resolutions, were: Mr. George Keith Taylor, Mr. Magill, Mr. Brooke, Mr. Cowan, Gen. Henry Lee, and Mr. Cureton. Nearly the whole debate turned, not on the abstract propriety or expediency of such resolutions, on the question whether the acts of Congress, which were specially complained of, were, in fact, unconstitutional. It was admitted, indeed, by Gen. Lee, who spoke elaborately and argumentatively against the resolutions, that, if the acts were unconstitutional, it was "proper to interfere;" but the extreme notions of the powers of the federal government that then prevailed in the federal party, led them to contend that those powers extended to the acts in question, though, at this day, they are universally acknowledged to be out of the pale of federal legislation. Beyond the discussion of this point, and one or two others not pertinent to the present matter, the speakers dwelt only on the supposed "tendency" of such declarations to excite the people to insubordination and non-submission to the law.

Mr. George K. Taylor complained at the commencement of his speech, that the resolutions "contained a declaration, not of opinion, but of fact;" and he apprehended that "the consequences of pursuing the advice of the resolutions would be insurrection, confusion, and anarchy;" but the legal effect and character that he attributed to the resolutions, is shown in his concluding sentence, as follows:

"The members of that Congress which had passed those laws, had been, so far as he could understand, since generally re-elected; therefore he thought the people of the United States had decided in favor of their constitutionality, and that such an attempt as they were then making to induce Congress to repeal the laws would be nugatory."

Mr. Brooke thought resolutions "declaring laws which had been made by the government of the United States to be unconstitutional, null and void," were "dangerous and improper;" that they had a "tendency to inflame the public mind;" to lessen the confidence that ought to subsist between the representatives of the people in the general government and their constituents; and to "sap the very foundations of the government, by producing resistance to its laws." But that he did not apprehend the resolutions to be, or to intend, any thing beyond an expression of sentiment, is evident from his further declaration, that he was opposed to the resolutions, and equally opposed to any modification of them, that should be "intended as an expression of the general sentiment on the subject, because he conceived it to be an improper mode by which to express the wishes of the people of the State on the subject."

General Lee thought the alien and sedition laws "not unconstitutional;" but if they were unconstitutional he "admitted the right of interposition on the part of the general assembly." But he thought these resolutions showed "indecorum and hostility," and were "not the likeliest way to obtain a repeal of the laws." He "suspected," in fact, that "the repeal of the laws was not the leading point in view," but that they "covered" the objects of "promotion of disunion and separation of the States." The resolutions "struck him as recommending resistance. They declared the laws null and void. Our citizens thus thinking would disobey the laws." His plan would be, if he thought the laws unconstitutional, to let the people petition, or that the legislature come forward at once, "with a proposition for amending the doubtful parts of the constitution;" or with a "respectful or friendly memorial, urging Congress to repeal the laws." But he "admitted" the only right which the resolutions assert for the State, namely, the right "to interpose." The remarks of the other opponents to the resolutions were to the same effect.

On behalf of the resolutions, the principal speakers were, Mr. John Taylor, of Caroline, who had introduced them, Mr. Ruffin, Mr. Mercer, Mr. Pope, Mr. Foushee, Mr. Daniel, Mr. Peter Johnston, Mr. Giles, Mr. James Barbour.

They obviated the objection of the speakers on the other side, that the resolutions "contained a declaration, not of opinion, but of fact," by striking out the words which, in the original draft, declared the acts in question to be "null, void, and of no force or effect;" so as to make it manifest, as the advocates of the resolutions maintained, that they intended nothing beyond an expression of sentiment. They obviated another objection which appeared in the original draft, which asserted the States alone to be the parties to the constitution, by striking out the word "alone." They thoroughly and successfully combated both the "suspicion" that they hid any ulterior object of dissension or disunion, and the "apprehension" that the resolutions would encourage insubordination among the people. They acceded to and affirmed, that their object was to obtain a repeal of the offensive measures, that the resolutions might ultimately lead to a convention for amending the constitution, and that they were intended both to express and to affect public opinion; but nothing more.

Says Mr. Taylor, of Caroline:

"If Congress should, as was certainly possible, legislate unconstitutionally, it was evident that in theory they have done wrong, and it only remained to consider whether the constitution is so defective as to have established limitations and reservations, without the means of enforcing them, in a mode by which they could be made practically useful. Suppose a clashing of opinion should exist between Congress and the States, respecting the true limits of their constitutional territories, it was easy to see, that if the right of decision had been vested in either party, that party, deciding in the spirit of party, would inevitably have swallowed up the other. The constitution must not only have foreseen the possibility of such a clashing, but also the consequence of a preference on either side as to its construction. And out of this foresight most have arisen the fifth article, by which two thirds of Congress may call upon the States for an explanation of any such controversy as the present; and thus correct an erroneous construction of its own acts by a minority of the States, whilst two thirds of the States are also allowed to compel Congress to call a convention, in case so many should think an amendment necessary for the purpose of checking the unconstitutional acts of that body… Congress is the creature of the States and the people; but neither the States nor the people are the creatures of Congress. It would be eminently absurd, that the creature should exclusively construe the instrument of its own existence; and therefore this construction was reserved indiscriminately to one or the other of those powers, of which Congress was the joint work; namely, to the people whenever a convention was resorted to, or to the States whenever the operation should be carried on by three fourths."

"Mr. Taylor then proceeded to apply these observations to the threats of war, and the apprehension of civil commotion, 'towards which the resolutions were said to have a tendency.' Are the republicans, said he, possessed of fleets and armies? If not, to what could they appeal for defence and support? To nothing, except public opinion. If that should be against them, they must yield; if for them, did gentlemen mean to say, that public will should be assailed by force?.. And against a State which was pursuing the only possible and ordinary mode of ascertaining the opinion of two thirds of the States, by declaring its own and asking theirs?"

"He observed that the resolutions had been objected to, as couched in language too strong and offensive; whilst it had also been said on the same side, that if the laws were unconstitutional, the people ought to fly to arms and resist them. To this he replied that he was not surprised to hear the enemies of the resolutions recommending measures which were either feeble or rash. Timidity only served to invite a repetition of injury, whilst an unconstitutional resort to arms would not only justly exasperate all good men, but invite those who differed from the friends of the resolutions to the same appeal, and produce a civil war. Hence, those who wished to preserve the peace, as well as the constitution, had rejected both alternatives, and chosen the middle way. They had uttered what they conceived to be truth, and they had pursued a system which was only an appeal to public opinion; because that appeal was warranted by the constitution and by principle."

Mr. Mercer, in reply to Mr. G. K. Taylor, said:

"The gentleman from Prince George had told the committee that the resolutions were calculated to rouse the people to resistance, to excite the people of Virginia against the federal government. Mr. Mercer did not see how such consequences could result from their adoption. They contained nothing more than the sentiment which the people in many parts of the State had expressed, and which had been conveyed to the legislature in their memorials and resolutions then lying on the table. He would venture to say that an attention to the resolutions from the committee would prove that the qualities attempted to be attached to them by the gentleman could not be found."

"The right of the State government to interfere in the manner proposed by the resolutions, Mr. Mercer contended was clear to his mind… The State believed some of its rights had been invaded by the late acts of the general government, and proposed a remedy whereby to obtain a repeal of them. The plan contained in the resolutions appeared to Mr. Mercer the most advisable. Force was not thought of by any one… The States were equally concerned, as their rights had been equally invaded; and nothing seemed more likely to produce a temper in Congress for a repeal."

"The object (of the friends of the resolutions), in addressing the States, is to obtain a similar declaration of opinion, with respect to several late acts of the general government, … and thereby to obtain a repeal."

Mr. Barbour, likewise, in reply to Mr. G. K. Taylor, said:

"The gentleman from Prince George had remarked that those 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."… The resolutions were "addressed, not to the people but to the sister States; praying, in a pacific way, their co-operation, in arresting the tendency and effect of unconstitutional laws.

"For his part, he was for using no violence. It was the peculiar blessing of the American people to have redress within their reach, by constitutional and peaceful means."

On the same point, Mr. Daniel spoke as follows:

"If the other States think, with this, that the laws are unconstitutional, the laws will be repealed, and the constitutional question will be settled by this declaration of a majority of the States."… "If, on the contrary, a sufficient majority of the States should declare their opinion, that the constitution gave Congress authority to pass these laws, the constitutional question would still be settled; but an attempt might be made so to amend the constitution as to take from Congress this authority."

And, finally, Mr. Taylor of Caroline, in closing the debate, and in explanation of his former remarks in respect to calling a convention, said:

"He would explain, in a few words, what he had before said. That the plan proposed by the resolutions would not eventuate in war, but might in a convention. He did not admit, or contemplate, that a convention would be called. He only said, that if Congress, upon being addressed to have these laws repealed, should persist, they might, by a concurrence of three fourths of the States, be compelled to call a convention."