Not long ago I had breakfast with a man I know from church. I have a lot of respect for him and his opinions, he’s what used to be called “level headed.” It was a surprise to me when he said it was unfortunate the South seceded over slavery because it messed it up for the rest of us. I told him that the Founders intended for the United States to be a permanent union, I’m not sure he believed me.
All of this ground was covered during the Nullification Crisis in 1832-1833, 28 years before the South seceded en masse in 1860-1861. The same logic and reasoning was used in the two disputes. To prove my point I share below the Report from the Delaware Legislature to their Governor on the topic. South Carolina sent notice of their nullification of the “Tariff of Abominations” to the President of the United States and all of the State governors. This is just one example of the State reports written in response to South Carolina, to see all of the reports from the States you should pick up a copy of State Papers on Nullification.
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REPORT.
The committee to whom was referred so much of the Governor’s Message as relates to the communication from the Governor of South Carolina, respectively submit the following Report:
The communication from the Governor of South Carolina is composed of documents ordered by a convention of the people of that State, held in November last, to be transmitted to the Governors of the several States for the information of their respective legislatures. These documents consist of a report of a committee of twenty-one, to the Convention, on the subject of the several acts of Congress imposing duties for the protection of domestic manufactures, with the Ordinance to Nullify the same, an address to the people of that State, and an address to the people of the United States. Your Committee have examined the papers with great care, and with that respectful attention which is due to the source from which they emanate, but they cannot disguise their astonishment at the position assumed by the convention and the arguments by which it is attempted to be sustained. The position taken by the Convention is, that they have a right to suspend the operation of certain acts of Congress within the limits of the State by declaring those acts null and void, on the ground of their supposed unconstitutionality. This extraordinary right is assumed not as a revolutionary measure, but as one that results from the nature of the compact, created by the constitution, and as in perfect harmony with its principles. It becomes necessary, therefore, to settle distinctly, the nature of that instrument, in order to decide the question of this right.
The ground taken by the Convention on this subject is, “that the Federal Constitution is a treaty, a confederation, an alliance, by which so many sovereign States agree to exercise their sovereign powers conjointly, upon certain objects of external concern, in which they are equally interested.: That the Federal Government is the common agency of the sovereign States, and possesses no more inherent sovereignty than an incorporated town, that is a mere political corporation, “and that it is the moral obligation alone which each State has chosen to impose on herself, and not the want of sovereignty” which restrains her from exercising all those powers which have been granted to the Federal Government. And this is declared by the Convention to be the true nature of the compact. The principle with which they set out, and upon which the whole doctrine is built, is thus laid down in the address to the people of the State—page 4. “The Constitution of the United States is admitted by contemporaneous writers, is a compact between sovereign States.” This is the corner stone of the whole system of Nullification. For it to be true that the Constitution is a mere treaty or compact between sovereign States, which now possess all the sovereignty they ever had, and among whom there can be no common arbiter, the rest of the doctrine follows as a matter of course. The question then arises, is this proposition true? Your committee conceive that it is false in both its branches. It is neither a compact between sovereign States, nor is so admitted to be by contemporaneous writers, at least of any credit.
To the first and most natural source to look to, for the settlement of the question, is the instrument itself. Since it is apparent that it would be utterly useless to reduce an agreement or compact to writing, that it would be useless to establish a written constitution for any government of any people, if the cruse notions and wild conceits of any individual may be substituted for the terms of the instrument. This is more particularly true with regard to such an instrument as the Constitution of the United States, which was the work, in the first instance, of a general convention from the different States, and was afterwards submitted to the conventions of the people in each of the States. So that not a word or letter, and certainly not a single principle contained in it can be supposed to have escaped the severest scrutiny, and the whole must therefore have the highest sanction.
Upon opening that instrument, the first principle which presents itself is, that it purports to be the act of the American people. It is not stated to be a compact between New Hampshire, Massachusetts, Rhode Island, and the other ten sovereign States, and which would have been appropriate, and indeed the only preamble, if the idea intended to be conveyed was, that of a compact or treaty between those sovereign States; but on the contrary, it is declared to be the act of the American people. The language is, “We the people of the United States do ordain and establish this Constitution for the United States of America.” The principle here established is, that the government created by that Constitution is the act of the people of the United States, and not the act of the states, as sovereignties. As this principle lies at the foundation of the whole system, it is impossible that it should have escaped the attention of the General Convention, and of the thirteen State conventions which passed upon it. They could not have been ignorant of, or inattentive to, the difference of the two principles involved in the question, whether the instrument to which they assented, was a Constitution of Government to be established by the people, or a treaty or compact between thirteen sovereign States. To suppose them ignorant, is to suppose them inattentive, is to suppose them culpably negligent of their duty. But we will show that they were neither the one or the other.
The very first question, as might naturally be supposed, that presented itself to the General Convention was, whether the Constitution was, whether the Constitution they were about to form should be a compact among the States, or the act of the people. The particular business of the Convention was opened by Governor Randolph, who submitted to their consideration, on the 29ty May, 1787, various resolutions, with a view to settle the principles on which they were to proceed. The first of those resolutions was in these words—“Resolved, that the articles of confederation ought to be so corrected and enlarged as to accomplish the objects proposed by their institution, namely, common defence, security of liberty and general welfare.”—Elliot’s Debates, vol. 4, p. 41. Now it must be recollected that the articles of confederation were, in point of fact, and in terms, a compact between the different States as sovereignties. The instrument itself purports to be such, and is described in the preamble as “Articles of confederation and perpetual union between the States of New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantation,” &c. As Governor Randolph’s proposition was merely to correct and enlarge those articles, if it had been adopted, the nature of the compact would have been the same, and it would have continued to stand on the footing of an agreement among the States as sovereignties. The very point now at issue was therefore brought at once, and directly before the Convention. On the same day the Convention resolved to go into Committee of the whole, on the State of the Union, and the propositions of Governor Randolph were referred to that Committee. On the following day, May 30th, these resolutions were taken up for consideration, and the particular one in question being in the first order, was, on his own motion, postponed; and another, offered likewise by him, was, after debate, adopted as a substitute, in the following words: “Resolved that a National Government ought to be established, consisting of a Supreme Legislative, Judiciary, and Executive.” On this question, six States, namely Massachusetts, Pennsylvania, Delaware, Virginia, North Carolina and South Carolina voted in the affirmative; Connecticut voted in the negative, and New York was divided. Elliot’s Debates, vol. 4, p. 49. Mr. Yates, a member of the Convention from New York, who was opposed to the present Constitution, and afterwards withdrew from the Convention because he thought they were exceeding their powers, kept minutes of the debates while he was there, which are published in the fourth volume of Elliot’s Debates, and has thus thrown much light on the questions that were agitated; and may be considered for that purpose, as of the highest authority. In his minutes of the debate on that day, he observes, “this last resolve had its difficulties, the term supreme required explanation. It was asked whether it was intended to annihilate the State Governments? It was answered only so far as the powers intended to be granted to the new government should clash with the States, when the latter should yield.”—Yates’ Minutes, p. 60. It was thus decided that the articles of confederation should be laid aside, and the principle of a compact among the States as sovereignties abandoned. Accordingly, we find that on the 6th June following, when the fourth resolution offered by Governor Randolph, was under consideration, which provided that the members of the first branch of the National Legislature should be elected by the people, a motion having been made to strike out the word “people,” and substitute the word “Legislatures,” of the several States, the motion was lost by a vote of eight States to three. In the debate on that point, Mr. Madison is reported by Mr. Yates, to have observed “that when we agreed to the first resolve of having a National Government, consisting of a Supreme Executive, Judicial, and Legislative power, it was then intended to operate to the exclusion of a Federal Government, and the more extensive we made the basis, the greater probability of duration, happiness, and order.”—Yates’ Minutes, p. 63.
The first resolution was afterwards modified so as to read thus: “Resolved that the Government of the United States ought to consist of Supreme Legislative, Judiciary and Executive.” The reason for which is stated by Mr. Luther Martin, one of the delegates from Maryland, and a most determined opponent of the proposed system at the time, to have been that they were afraid that the word national might tend to alarm.—Yates’ Minutes, p. 22.
The principle was thus clearly established and remained unchanged, that the new government was not to be placed on the footing of a compact among the states as sovereigns; but was to emanate from the people and be established by their authority. On the twenty-third of July the resolution thus modified, was, together with the others which had been elaborated in the debate that had been carried on in the Committee of the whole, referred to a Committee of five for the purpose of reporting a Constitution. It is evident that the Committee appointed for the purpose, were bound, in drafting the instrument to preserve that fundamental principle. Accordingly, on the 6th of August, the Committee reported the draught of a Constitution, the preamble to which began in these words: “We the people of the States of New Hampshire, Massachusetts, &c. do ordain and establish the following Constitution for the government of ourselves and our posterity.”—Elliot’s Debates, vol. 4, p. 116. The principle was here clearly set forth, but as it might have afforded some room for cavil, and it was determined that there should not be a loop to hang a doubt upon, the phraseology was changed and that of the present Constitution adopted, “We the people of the United States,” &c. If it is possible for human language or for human conduct to express the intentions of the mind, nothing can be clearer than the intention of the General Convention on this point. If regard then be had to the instrument itself, it is, and it purports to be, a Constitution of Government established by the people of the United States. For this purpose it was not at all necessary that they should be assembled in one body, in one place, or by one authority. It was sufficient for them to assemble in their respective states, at their usual places of election, and under the usual authority. When once assembled and they proceeded to ratify the instrument, it became to all intents and purposes their act. Nor does it at all affect the question that it was provided, that the ratification of a certain number of the States should be necessary for establishment. That was a mere condition which amounted to no more than a declaration, that the experiment was not worth the trial, unless such a portion of the people should concur. So far as this subject is concerned, the term States is a mere description of the people by classes, and is of no more moment in the argument than if the provision had been, that it should not take effect unless ratified by two millions of people, or by two hundred and forty counties, or one hundred districts. The provision e=was a condition precedent which ceased to be of importance the moment it was fulfilled.The tenth amendment of that Constitution which provides that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people,” illustrates and confirms the view here taken of the character of the instrument and the source of authority. But if in addition to this, the frame of government be considered which deprives the States of almost all of the essential rights of sovereignty, and makes them amenable to the tribunals of the United States’ Government, whose decisions are conclusive in relation to all controversies arising under the Constitution or laws of the United States, it becomes a matter of surprise that any doubt should have been expressed on the subject.
It thus appears that the Constitution is not a treaty or compact between sovereign States, and it remains to show that such was the opinion of contemporaneous writers. Reference has already been made to the work of Mr. Yates who was a member of the Convention from New York, and whose minutes of the debates are of the highest degree of authenticity, and which in the passage already cited, as well as in others, confirms the position taken by your committee. In the debate on the 29th of June, the first clause of the seventh proposition being under consideration, which respected the suffrage of each State in the first branch of the Legislature, Mr. Madison who was so much relied on by the Carolina Convention as an authority, in the celebrated resolutions of 1798, expressed himself as follows, as reported by Mr. Yates: “Some gentlemen are afraid that the plan is not sufficiently national, while others apprehend that it is too much so. If this point of representation was once well fixed, we would come nearer to one another in sentiment. The necessity would then be discovered of circumscribing more effectually the State governments, and enlarging the bounds of the general government. Some contend that States are sovereigns, when in fact, they are only political societies. There is a gradation of power in all societies, from the lowest corporation to the highest sovereign. The States never possessed the essential rights of sovereignty. These were always vested in Congress. Their voting as States in Congress, is no evidence of sovereignty. The State of Maryland voted by counties—did this make the counties sovereign? The States at present are only great corporations having the power of making by-laws, and these are effectual only if they are not contradictory to the general confederation. The States ought to be placed under the control of the general government. If the power is not immediately derived from the people, in proportion to their numbers, we may make a paper confederacy, but that will be all. We know the effects of the Old Confederation, and without a general government this will be like the former.”—Yates’ Minutes, p. 114.
In the debate on the 5th June, the last or 15th proposition of Governor Randolph, being under consideration, which provided that the work of the convention should be submitted to assemblies of representatives to be chosen by the people expressly for that purpose. Mr. Yates reports that “Mr. Madison endeavored to enforce the necessity of the resolve, because the new National Constitution ought to have the highest source of authority—at least, paramount to the powers of the respective constitutions of the States; point out the mischiefs that had arisen on the Old Confederation, which depends on no higher authority than the confirmation of an ordinary act of the Legislature.”—Yates’ Minutes, p. 62.
Mr. Luther Martin, who was a delegate from the State of Maryland, in the General Convention, and violently opposed to the new system at the time, in his report to the Legislature of Maryland, on the subject of the proceedings of the Convention, thus details the arguments used by himself and his friends: “It was urged, that the Government we were forming, was not in reality a Federal, but a National Government, was not founded on the principles of preservation, but the abolition or consolidation of all State governments. That we appeared totally to have forgot the business for which we were sent, and the situation of the country for which we were preparing our system. That we had not been sent to form a Government over the inhabitants of America, considered as individuals, that as individuals they were all subject to their respective State Governments, which governments would still remain, though the Federal Government should be dissolved. That the system of government we were entrusted to prepare, was a government over these thirteen States; but that in our proceedings, we adopted principles which would be right and proper only on the supposition that there were no State governments at all, but that all the inhabitants of this extensive continent were in their individual capacity without government, and in a state of nature. That, accordingly, the system proposes the Legislature to consist of two branches, the one to be drawn from the people at large, immediately in their individual capacity, the other to be chosen in a more select manner, as a check upon the first. It is in its very introduction, declared to be a compact between the people of the United States, as individuals; and it is to be ratified by the people at large in their capacity as individuals; all which it is said would be quite right and proper, if there were no State governments, if all the people of this continent were in a state of nature, and were forming one National Government for them as individuals, and is nearly the same as was done in most of the States, when they formed their governments over the people who compose them”—Yates’ Minutes, pages 19,20. Notwithstanding those arguments, the Constitution was prepared and adopted on the principles which were thus opposed; and we have here the commentary of one of the ablest lawyers that this country has ever produced, who was himself a member of the Convention, and opposed to the system, upon that very instrument; and putting it all beyond all doubt and controversy, that it was the design of the Convention to abandon the principle of a compact among the States as sovereigns, and substitute for it, that of a government established by the people. The same view of the subject in presented in the Federalist, a work which was written at the time for the express purpose of explaining and recommending the new Constitution, and which was the joint production of three of the ablest men of the day, and has been regarded and relied upon, both in and out of Congress, and even in the courts of justice, as presenting a most able, authentic, and correct exposition of its principles. The conclusion of the twenty-second number, in which some of the evils of the Old Confederation, are pointed out, is as follows: “It has not a little contributed to the infirmities of the existing Federal system, that it never had a ratification by the people. Resting on no better foundation than the consent of the several Legislatures, it has been exposed to frequent and intense questions concerning the validity of its powers, and has, in some instances, given birth to the enormous doctrine of a right of legislative to the law of a State, it has been contended that the same authority might repeal the law by which it was ratified. However gross a heresy it may be, to maintain that a party to a compact has a right to revoke 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 our National Government deeper than in the mere sanction of delegated authority. The fabric of the 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 that pure original fountain of all legitimate authority.”
It is unnecessary to multiple quotations. The question is not under what name the Government established by the Constitution would be classed by political writers; whether it would be called a Federal Government, or a National Government, or a compound of the two—but simply from whom does it derive its powers? whether from the States as sovereigns? or from the people? It thus appears from the Constitution itself, from the journal of the Convention, from the debates on its proceedings, from the reports of its enemies, and from the arguments of its friends, that the principle on which it was founded, was, that it was to be a government emanating from, and established by the people. If anything more were wanting to make assurance doubly sure, the ratification by the State of Virginia, where more opposition was experienced than in any other State, and more debate was had on the subject, the solemn act of ratification by that State recognizes the fact in so many words. It is as follows:
“We, the delegates of the people of Virginia, &c. do, in the name and behalf of the people of Virginia, declare and make known, that the powers granted under the Constitution, being derived from the people of the United States, may be resumed by them, whensoever the same shall be perverted to their injury or oppression; and that every power not granted thereby, remains with them, and at their will,” &c.—Elliot’s Debates, vol. 4, p. 215.
It is thus established beyond a doubt, whether we regard the instrument itself, or its contemporaneous history, that the Constitution is a form of government established by the people, and not a compact or treaty among States. If this be true, then the whole system of nullification topples to ruin.
The principle on which the system is built, is, that the Constitution is a treaty between sovereign States and the General Government—an agency for them. The moment the foundation is destroyed, the whole system of reasoning fails with it. If the General Government be one, established by the people of the United States, then they owe it allegiance, and may be guilty of treason toward it. Its laws are supreme, and no portion of the people can abrogate them. The State Governments are component but subordinate parts of the system. They are as necessary and useful in their sphere as the General Government, but that portion of the people of the United States, who constitute a particular State, can have no more right to nullify or suspend a law of the United States, than a smaller portion of them, as a county of a particular State, or than any individual in other words, the union of any number, whether great or small, can give no greater or other right than that which belongs to each individual, as a constitutional measure. It is to be recollected, that the ground taken by the Nullification party, is that Nullification is a right consistent with the Constitution, and peaceable in its nature. In order to sustain that position, it was essential to show that the Constitution is a treaty between sovereign States, and that in such case there could be no common arbiter, but that each was entitled to construe the instrument for itself, and was bound only by moral obligation to observe its stipulations, and was therefore the judge of their infraction, and of the measure and mode of redress. But so far from this being true, it has been shown that the Constitution is a form of government established by the people of the United States; and having provided a tribunal for the settlement of all controversies arising under its provisions, or the laws of the United States, it necessarily follows, that no other mode of decision can be resorted to as consonant with its principles.
If the ground had been taken, that it was a revolutionary measure, and justified on the great principle of self-preservation, it would have had the merit of being intelligible; and, if true, would have been enlisted the sympathies of the other States, and , indeed, of other nations. In such a case it would be an appeal to arms, and the legal consequences of such a step would have to be met. The case would then be one of an insurrection of a portion of the people against the Government, in consequence of alleged oppression. But it was clearly seen, that the real state of the case would not justify such a measure. It was clearly seen, that nearly the rest of the people of the United States, nor any portion of the world, could be made to believe that in the midst of so much general happiness and prosperity, in a time of profound peace, with an overflowing treasury, and under such a Government as that of the United States, such a case of oppression could be made out, as would justify rebellion. It was therefore necessary to resort to this doctrine of nullification, for the purpose of disguising the real nature of the measure, and to give to a contemplated resistance the air of constitutional right. The act of nullification is, itself a nullity, and the consequences are treason.
The State governments, it is true, are sovereign for some purposes; but have, by the Constitution of the United States, been stripped of mot of the essential attributes of sovereignty—such as the right to declare war, make peace, enter into treaties and alliances, coin money, &c. It is a matter of no sort of importance, which instrument happened to precede the other in point of time, whether the Constitution of the State, or the Constitution of the United States. The later instrument having been declared the supreme law, and being the work of the same people, necessarily controls and abridges any sovereign power vested in the State Governments under the State Constitutions. It is needless to pursue the subject further; it is apparent that the state of South Carolina has no such right as she claims under the Constitution. And if she can justify the measure at all, it must on the ground of intolerable oppression, and the unconstitutionality of the acts complained of; but, on this ground the rights of her whole body of citizens, or any portion of them, are no other and no greater than those of the humblest individual in the community; but they cannot trammel up the consequences. The political organization as the State, may furnish readier means of resistance and greater probabilities of success, but the consequences are the same. They cannot sanctify or legalize resistance, and the predicament in which the individual may stand, if mistaken in his judgment, is that of a traitor to his country.
The view here taken of the origin of the Government, and the nature of the Constitution, is confirmed by the solemn decisions of that great tribunal which has been created by that instrument, and which is the sole and proper one for the settlement of all controversies arising under it. The language of the Supreme Court, as delivered by Chief Justice Marshall, in the case of M’Cullough against the State of Maryland, is as follows: “In discussing this question, the counsel for the State of Maryland have deemed it of some importance in the construction of the Constitution, to consider that instrument not as emanating from the people, but as the act of sovereign and independent States. The powers of the General Government, it has been said, are delegated to the States, who alone are truly sovereign; and must be exercised in subordination to the States, who along possess supreme dominion. It would be difficult to sustain this proposition. The Convention which framed the Constitution, was indeed elected by State Legislatures. But the instrument, when it came from their hands, was a mere proposal, without obligations or pretentions to it. It was reported to the then existing Congress of the United States, with a request that it might ‘be submitted to a Convention of delegates chosen in each State, by the people thereof, under the recommendation of its Legislature, for their assent and ratification.’ The mode of proceeding was adopted; and by the Convention, by Congress, and by the State Legislatures, the instrument was submitted to the people. They acted upon it in the only manner in which they can act safely, effectually, and wisely on such a subject, by assembling in Convention. It is true, they assembled in their several States—and where else should they have assembled? No political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people into one common mass. Of consequence, when they act, they act in their States. But the measures they adopt, do not on that account cease to be the measures of the people themselves, or become the measures of the State Governments. From these conventions the Constitution derives its whole authority. The Government proceeds directly from the people, is ‘ordained and established’ in the name of the people; and is declared to be ordained in order to form a more perfect union, establish justice, ensure domestic tranquility, and secure the blessings of liberty to themselves and to their posterity.”—Wheaton’s Rep. vol. 4, p. 403.
The same principles are recognized as being true in the late admirable Proclamation of the President of the United States.
As to the doctrine of Nullification, your Committee would scarcely have considered it worth the trouble of discussion, but for the grave sanction that has thus been given it by the Convention of South Carolina. They would have treated it as one of those conceits which might have formed the subject of debate in a Moot Court of a law school, but would never have conceived it possible that it could enter into the business realities of life.
Under the view which had been taken of the subject, it is scarcely necessary to inquire into th grounds of complaint, since they are not deemed strong enough, even on the part of the Convention, to warrant a revolutionary measure—or, in other words, rebellion; and the particular subject of attention under the communication, is the attitude assumed by the State on the ground of her sovereign power.
But your Committee cannot forebear from expressing the opinion, that their views of political economy are as erroneous as their constitutional principles. They would conceive that it would be no difficult matter to show that the distress of South Carolina may be imputed to very different causes than those assigned, and might be traced with much more semblance of reason, among other causes, to the increased production of their principle staple, both here and in other parts of the world; but your Committee refrain from touching further on this subject. They cannot perceive that the people of South Carolina have any constitutional cause of complaint. If there is distress among them, it is a matter in which we deeply sympathize. But if in the due administration of the General Government, any measure has borne hardly upon them, we know of but one remedy under Constitution and Laws, and that is the exercise of the elective franchise.
Your Committee abstain from the expression of any hopes or wishes on the subject, they lament the delusion under which they believe a portion of the people of that State labor. But they are free to say, that as the people of this State were the first to adopt the present Government, they will be the last to abandon it; and that whatever and wherever the exigency may arise they will be found on the side of the Constitution and the Country.