The first of six essays written by Judge Abel P. Upshur.
A series of Essays, addressed to Thomas Ritchie, by a distinguished citizen of Virginia, under the signature of “Locke,” in February, 1833.TO THOMAS RITCHIE, Esq.
The confidence which was hertofore felt in the soundness of your political principles has caused your paper to be read in almost every family in Virginia. Hundreds, nay thousands of our citizens read no other. The necessary consequence is, that you exert a powerful influence over the public mind. Indeed, sir, it cannot be denied, that even in the laborious retirement of your closet, you are felt in the daily exertion of no unimportant power over the affairs of this Government. I will not be so presumptuous as to offer you advice; for I am sure that you feel, with due sensibility, the duty which your position imposes on you, of doing nothing which may mislead the public judgment, in the present awful crisis. I may be permitted to say to you, however, with perfect respect, and certainly in no unfriendly spirit, that many of your readers do not consider your present course strictly consistent with your former principles. It is true, that you have, on more occasions than one, professed to give us your political faith, and so far as your abstract principles are concerned, we have, perhaps, but little reason to complain of you. But you have dealt with us too much in generalities. It is not enough that you should profess yourself a friend to State Rights. We are all of us friendly, not only to State Rights, but to every other right which we are willing to acknowledge as such. But you have not yet told us, with sufficient clearness, what these State Rights are. We can no longer satisfy ourselves with abstractions in principle or speculations in reasoning. The time for action has arrived. The arm of the Federal Government is even now uplifted to shed the blood of our citizens. It is time for us to know, not only that we have rights, but also, in what those rights consist, and in what manner they may be asserted. You have taken a strong and decided stand against the doctrine of Nullification; nay, you can scarcely speak of it in any other language than that of contempt and derision. But you have not, so far as I recollect, favoured your readers with any detailed argument upon the subject. Neither have you distinctly told us what alternative you propose. You do indeed, contend for the right of Secession, but I have not been able to discover whether you consider this right merely as one inherent in every political community, and therefore independent of the Constitution, or whether you propose it as a remedy for a breach of that instrument. In this state of uncertainty, as to the course which the leading journal of our State would wish us to pursue, it is a matter of no small interest to us, that you should come out more explicitly than heretofore. Permit me, then, as a citizen neither very young, nor wholly unconnected; as one who considers every thing which he cherishes in our institutions in the most imminent peril; as one who sincerely believes that you can form the public mind of Virginia, and that Virginia can control the destinies of this once happy Union, to entreat you to answer explicitly the following interrogatories. They are propounded, not in the spirit of a controversialist, but with a deep conviction that they involve the only principles upon which the rights of the States can be maintained, and of course the only security against a consolidated and essentially monarchical government:
1. Is there, or is there not, any principle in the Constitution of the United States, by which the States may resist the usurpations of the Federal Government; or are such usurpations to be resisted only by revolution?
2. If there be no principle, is not the Federal Government as unlimited in its powers as any other Government as unlimited in its powers as any other Government whatever be its form, whose encroachments upon the rights of the citizen can be repelled only by rebellion, or other application of physical force?
If you believe, as I am sure you do believe, that there is such conservative principle in the Constitution, then I beg the favour of you to point it out, and tell us in what manner we may render it available. In doing this, be pleased to answer—
3. Is not the passing a law by Congress which the Constitution does not authorise, a usurpation on the part of that body? And is not every such unconstitutional law absolutely void, as passed by a delegated authority, beyond the limits of that authority?
4. Are the States bound to submit to laws which are unconstitutional, and therefore void?
5. If the States are not so bound to submit, is not the particular State which refuses to submit, right in so doing?
6. If the recusant State be right in her refusal to submit, are not the other States wrong in compelling her to submit? Is it not oppression of the worst sort, to coerce obedience to usurped power?
The above questions are propounded upon the hypothesis that Congress may have actually passed a law palpably and dangerously violating the Constitution. And now be pleased to tell us in what manner the fact of such palpable and dangerous violation is to be ascertained? In doing this, be also pleased to answer—
7. Is there any common umpire established by the Constitution; to whom may be referred questions touching a breach thereof?
If there be such common umpire, be pleased to point it out.
8. If there be no such common umpire, does it not result from the necessity of the case, that each State must judge thereof for itself?
9. If a State, in the actual exercise of this right, should decide that any given act of Congress is a palpable and dangerous violation of the Constitution, is there any right of appeal from the decision?
10. If there be, does the appeal lie to any other authority than the other parties to the Constitution?
11. Who are these “other parties?” The States, or the people?
Upon this last question, you are already so fully committed, that it is impossible to doubt your answer. I have, therefore, to ask you—
12. Is not the decision of every inferior tribunal of competent jurisdiction, obligatory and conclusive, until it is reversed? And if so, is not the decision of a State upon a constitutional question on which it has a right to decide, conclusive as to such State, until it is reversed by the other States, acting as such?
13. If it be thus conclusive, has the State a right to act upon its decision or not?
14. If it has no such right of action, is its right of judgment any thing more than a mere liberty of speech and of opinion, and, therefore, no available right at all?
15. If it has such right of action, is it to act by submitting to the usurped power, or by opposing it?
A man of your spirit, can give but one answer to this question. Then be good enough to tell us in what manner this opposition is to be made? In doing this, be please to answer—
16. Are petition, remonstrance and protest, any thing more than appeals to the oppressor, and therefore in no sense, to be called opposition to him? Or if it be opposition, and these petitions, remonstrances and appeals, should all be disregarded, is the matter to rest there?
17. If not, and farther resistance is to be made, ought not that resistance to be made in such form as to redress the wrong?
18. If so, can the wrong be redressed by the injured State going out of the Union? Does not this, on the contrary, increase the wrong as to her, by compelling her to relinquish all the advantages of the Union, to which she is fairly entitled, and at the same time, encourage the aggressors to persevere in the wrong, by withdrawing all opposition to them? Is not the “redress,” in this mode of seeking it, merely an additional wrong done to the injured party?
19. If so, what do you propose to substitute for it?
You perceive, sir, that I have, in all these questions, followed very closely, the Virginia Resolutions and Madison’s Report. They are the text upon which my future commentaries will be offered. I have done so on purpose, for you have always been an advocate of those documents, as being clearly orthodox; and as I entertain the same opinion of them myself, I am unfeignedly desirous to see by what process of reasoning, any two men of tolerable intellect, can be led to different conclusions from such premises. I confess that it seems to me exceedingly dear, that our Constitution is most worthless and tyrannical, if the usurpations of those who administer it, cannot be resisted by any means short of revolution. I have always considered the reserved powers of the States, as the only real check upon the powers of the Federal Government; and I have always considered it, not only the right, but the imperious duty of the States, so to apply that check, as not to dissolve the Union. And I have never been able to discover any mode of doing this, except by the positive refusal of the States to submit to usurpations, whilst, at the same time, remaining in the Union, they force the Federal Government back within the charter of its power.— This seems to me an irrisistible inference, from the principles indicated in the preceding interrogatories. Perhaps you can show me that these principles do not lead to Nullification? I shall be happy to be undeceived; but at present, I entertain no doubt, that that doctrine is the only one upon which the States can safely repose. It is easy to show that this is the legitimate result of the Resolutions of 1798. I shall endeavour to show this in a second letter, with which you will be shortly troubled. In the mean time, you will not only gratify me, but hundreds of others, by answering the foregoing interrogatories, distinctly, plainly, and directly. The views which I now indicate, have already been substantially presented to the public; but, as I consider them of vital importance, I shall continue to press them under all the forms of which they are susceptible, until some one will condescend to prove them wrong.
You perceive, sir, that this is only the commencement of a series of letters—a short series it will be,— which it is my purpose to address to you. Every Virginian, who has ever turned his attention to constitutional law at all, knows that the interrogatories which I have propounded, involve the whole subject of controversy which now agitates the country. It is, therefore, peculiarly the duty of the public press, to enlighten the public mind upon that subject. If our newspapers are, indeed, as they claim to be, “the centinels of liberty,” it is their duty not merely to watch, but to point out the quarter from which danger may be apprehended, and to give the alarm when it approaches. It will not derogate from your dignity, Mr. Ritchie, to reply to an anonymous correspondent, when he addresses you in a respectful manner upon a subject of grave public concern. It is on all hands admitted, that the old party lines, have lately become so confused and intermingled, that it is almost impossible to distinguish them any longer. Be pleased, then, to tell us what are the principles of that Republican party, of which you have professed to be the true and faithful organ for thirty years; and tell us, at the same time, in what manner we may assert those principles in defence of our rights and liberties. If there ever was a time, when you could be of service to your country, that time is now. May you become convinced of it, before it will be too late to redeem every Southern principle, and every Southern right, from the overwhelming destruction, which the measures of this administration are preparing for them.