The forth 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.
In my last letter, sir, I submitted for your solution a proposition which appears to me to place you in considerable difficulty. A lion in the toils might, in perfect consistency with his character, decline all means of escape, through fear of committing his dignity upon an unsuccessful effort. In order that I may reconcile you to this course, (believing that you are already determined on pursuing it,) I proceed to show you that you could not escape, if you would.
You will perhaps say, that although a State has a right to pronounce on the constitutionality of an act of Congress, yet it is, nevertheless, bound to submit to an act so pronounced to be unconstitutional, until the other States shall have sanctioned its decision. This, if it were true, might perhaps afford some ground of apology for the President and Congress. It is this which I have already alluded to, as presenting the only possible chance of escape from the horns of my dilemma. Indeed, sir, it may be useful for you to know, that a great many of the most vociferous denouncers of Nullification go with it, in perfect fellowship, until it reaches this point. I will endeavour now to show that there is no sort of reason for separating here; and if I should succeed in this effort, you may rely upon it, that a vast number who are now in your ranks will desert to mine. I affirm, therefore, that the Resolutions of 1798, so far from countenancing the idea that a State which has pronounced an act of Congress to be unconstitutional, is bound to obey that law, until the other States shall sanction its decision, do distinctly assert the precise reverse. This, I doubt not, I shall prove.
I presume it will readily be admitted, that Madison’s Report, which was made expressly to sustain those Resolutions, is a fair interpreter of their meaning. That Report, after stating the proposition, that “where resort can be had to no tribunal superior to the authority of the parties, the parties themselves must be the judges in the last resort, whether the bargain made has been pursued or violated,” proceeds thus: “The States, then, being the parties to the Constitutional Compact, and in their sovereign capacity, it follows, of necessity, that there can be no tribunal above their authority, to decide, in the last resort, whether the Compact made by them be violated: and, consequently, that as the parties to it, they must decide, in the last resort, such questions as may be of sufficient magnitude to require their interposition. From this view of the Resolution, it would seem inconceivable that it can incur any just disapprobation from those who, laying aside all momentary impressions, and recollecting the genuine source and object of the Federal Constitution, shall candidly and accurately interpret the meaning of the General Assembly. If the deliberate exercise of dangerous powers, palpably withheld by the Constitution, could not justify the parties to it, in interposing, even so far as to avert the progress of the evil, and thereby to preserve the Constitution itself, as well as to provide for the safety of the parties to it, there would be an end of all relief from usurped power, and a direct subversion of the rights specified or recognized under all the State Constitutions, as well as a plain denial of the fundamental principle on which our independence itself was declared.”
This language appears to me to be plain enough for any common understanding. It even goes a bow-shot beyond the Nullification of South Carolina.—That State admits that the other States, acting as such, may overrule her decision; but the Resolutions, as explained by the Report, contemplate such decision as “in the last resort,” and therefore, final and conclusive. This must be the correct interpretation, unless the Report, by the term “States” and “parties,” intended to limit itself to the plural number, and of course, not to include a single State, acting by itself. This is, at least, a mere quibble, altogether unworthy of the dignity of the subject; but as there appears to be a determination to get rid of our old principles in some way or other, their friends must not neglect their defence, even at those points which would seem to be impregnably intrenched. If, then, the Resolutions do not contemplate the interposition of each State for itself, they must contemplate such interposition either by all the States, or by a majority of the States, or by a plural number, less than a majority of the States. If the first was meant, it was a most useless and a ridiculous parade of argument to prove what is altogether self-evident. Certainly those who made the Government have a right not only to check and control it, but even to unmake it, whenever all of them concur in that wish. If, therefore, this be the meaning of the Resolutions, they only affirm what no one would ever think of denying, and what is equally true of other Governments as of ours. Do the resolutions, then, refer to a majority of the States? The same remark applies here. The right of a majority to rule, is a fundamental principle in all Representative Governments, supposing always, that they exercise that right consistently with the rights of the minority. It follows, a fortiori, that they have a right to interpose to prevent the minority from usurping upon their rights. If, then, this be the meaning of the Resolutions, they employ a very useless solemnity in affirming a mere truism. Besides, it is idle to suppose, that the interposition either of all the States, or of a majority of them, is intended to be asserted as a right, when the object is to correct the usurpations of that very majority itself. Certainly those who do the wrong, not only have a right to redress it, but are in duty bound to do so. Do the Resolutions, then, contemplate a plural number less than a majority? If so, a single State may act for itself upon the same principle; for there is no rule, either in ethics or politics, which measures the rights of a minority, by the mere number who may happen to compose it. Indeed, that the action by a single State, for itself, was contemplated, is manifest enough, from other considerations. In the first place, the language imports it, and will be so understood by every reader, who is not prone to look for refinement and subtlety in every thing. Moreover, it is the particular object of the written Constitutions to define and limit the powers of the Government; to guard against usurpations; to protect the weak against the strong; to guard the rights of the minority against the encroachments of the majority. The States, when they formed the Compact, brought to that work, their entire sovereignty, and all their rights. If they did not then surrender that sovereignty and those rights altogether, they must have designed to reserve to themselves, the task of protecting them. A case may very well arise, in which an unconstitutional law may affect the rights of a single State only; and it would be a mocking of the very name of State Rights, to say that in such case, she may not protect herself. In what other course can her “safety” be “provided” for? In twenty-three States should unite in cutting up every right which appertains to the twenty-fourth, has that State no redress except what a “majority” of her oppressors may choose to grant? If this be the meaning of the Resolutions, so far from affirming and protecting State Rights, they affirm that no single State has any rights at all. Besides the Resolutions speak only of the reserved rights of the States; among which reserved rights, is that which authorises State interposition, to arrest the usurpations of the Federal Government. Now, how are these rights “reserved?” Does one State “reserve” its own rights to another State, or any number of other States? This seems to me, to be a grant, and not a reservation of a right. Each State, then, reserves its own rights to itself, and the Resolutions affirm, that the right to refuse obedience to an unconstitutional law, is among those reserved rights. Again: If the State may not act upon its own decision, until the majority have sanctioned it, the right so to decide, is, as to all practical results, in that majority, and not in the State. The State has only the right to express its opinion; which opinion, although involving her “safety,” and her very existence, goes for nothing, until approved by others.—This is, indeed, a meagre State Rights, Mr. Ritchie. Besides, sir, is there not some contradiction in the positions that a State may declare a law to be unconstitutional, and yet that it is bound to submit to that law, for some given time? What difference is there, in principle, between an obligation to submit to an unconstitutional law for one day, and an obligation to submit to it for one year or for ever? I confess that I can see none at all. Finally, sir—for the subject was really not worthy of even these few practical and popular views of it—suppose that the other States should refuse to say whether the particular State which undertakes to pronounce a law unconstitutional, is right or wrong? There are no means of compelling them to decide, and of course, a majority of the States, upon your supposition, (if it be yours,) have only to stand mute, in order to deprive all the other States, and constitutionally too, of every right which appertains to them. Nay, even if the other States should be disposed to act upon the subject in good faith, the right which the individual States interposes to protect, may be such as to be lost for ever, unless it be promptly asserted.—Our slave population will at once suggest to you such a case. The very delay, therefore, of this previous appeal, may be fatal to the very existence of the right. I can scarcely think that it was the intention of the Resolutions of 1798, to produce any such result as this.
And now, sir, let me bring you back to my dilemma. The Resolutions of 1798, approved by you, acknowledge the right of South Carolina, to pronounce the Tariff Laws unconstitutional; and do not require that she shall forbear to act on that decision until it shall be affirmed by a majority of the other States. South Carolina has pronounced those laws unconstitutional, and you have over and over again declared, that she is right in that respect. How then can you countenance the President and Congress, in subjecting her people to the sword, for not obeying those laws? I would, if a regard to decorum did not forbid it, defy you to the answer. You ought to give it, and plainly and satisfactorily too, or else you ought to change your course. You are encouraging the President in making war upon South Carolina. It is war, sir, however you may disguise it—civil war—with all its unnumbered train of sufferings, tears and sorrows. A husband and a father who contemplates this result, must have a nature more callous than I take yours to be, if he can admit into his calculations, either the “feelings” of a political favourite, the success of party objects, or the poor pride of opinion. You can, if you choose, arrest the wide spreading desolation with which our whole country is threatened. I beseech you to reflect that it is at least possible, that you are permitting innocent blood to be shed, when it is in your power to prevent it. Shall it not, hereafter, be required at your hands?
I know, sir, that you have too much respect for public opinion and for decency, to urge on the mad measures of this administration, without, at least, an attempt to justify your course. I read your paper constantly, yet seldom, of late, without mortification and sorrow. I have seen upon what grounds it is, that you are willing to consign to the sword—a sword that was never known to spare—a people of as generous and lofty a character, as the whole world can show. The President has profited by your suggestions, and has founded his proposed measure of violence and carnage; upon reasons with which you have furnished him. The history of that man’s past life, affords full and terrible proof, that he never wants excuses, good or bad, for any outrage which he may propose to perpetrate upon the laws and constitution of his Country. Posterity will do him justice, although this age seems determined to be blind to his real character. I cannot close these letters without an attempt to show, that there is no reason whatever, which can justify or extenuate the sanguinary purpose which he now entertains. I have not yet, however, quite done with the subject of Nullification. It will be continued in my next letter.