AN EXPOSITION Of the Virginia Resolutions of 1798, No 6

Posted on Posted in DallyPost Liberty Library, DallyPost Media

The sixth 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.

You have been, sir, exceedingly unsparing in your denunciation of nullification, but I do not recollect that you have ever afforded a single argument against it. You have indeed abused Mr. Calhoun, until even his worst enemies are ready to takes sides with him, from mere sympathy with the persecuted and oppressed. That such a man should be borne down before an enlightened people, by a man of Andrew Jackson’s pretensions, is a moral anomaly, worthy the especial notice of the future historian. You appear to have thought, that it was enough to destroy John C. Calhoun, and nullification must fall of course. This is a mistake. The doctrine did not originate with him, does not depend on him for its support, and will not die with the death of his influence. You may, therefore, spare him without fear that such a tribute to decency, will affect nullification either one way or the other. It would certainly have been much more worthy of your standing among our public journals, if you had attempted to enlighten our understandings instead of appealing to our partizan feelings. The huzzas of man-worship are alike degrading to the press, and insulting to its supporters. Instead of proving that nullification is wrong, you have wisely, perhaps, but not generously, it is certain, contented yourself with efforts to prove that the Nullifiers are wrong. This was beyond all doubt much the easier task of the two, but unfortunately, the mass of your readers have not so understood you. Your paragraphs have been so contrived as to be generally received as an utter denunciation of South Carolina, and her whole doctrines and proceedings together, at the same time that their strict letter will allow you to say hereafter, that your reproaches were meant, not for the doctrine, but only for the particular mode of asserting it. It always gives me pain to see an influential public journal dealing with its readers in this uncandid way. Whenever the press yields itself wholly to party, it becomes, instead of a blessing, the worst possible curse to a free country. It is then dangerous in exact proportion to its influence. Whenever the liberties of this country shall be overturned, a corrupt and hireling press will be the chief agent in the mischief. This, however, is a digression, and it will certainly make no impression upon you. I was going to say, that while the principles upon which South Carolina has proceeded are undeniably right, I agree with you, that she has fallen into some very great errors, in her course of proceeding. On one point, I will agree with the President of the United States, an approximation to error at which I cannot but feel uneasy. I think that the Tariff laws, although clearly against the spirit of the Constitution, by the gross inequality of their burthens, are yet no so “palpably” unconstitutional as to call for Nullification, nor so “dangerous” as to demand Secession, until every hope shall be lost, that Congress will modify them. I, therefore, may well censure South Carolina in this respect, but you cannot; for you profess to consider those laws altogether and unequivocally unconstitutional. I think also, that South Carolina appointed too early a day, for the operation of her ordinance. I think also, that some of her enactments for enforcing that ordinance are too rigorous, and probably are themselves unconstitutional. And I have another objection which I have not yet seen stated in any newspaper. The principle upon which nullification proceeds, demand that the nullifying State, shall refer her decision to conventions of the other States—and that she shall give way, if such Conventions overrule her. In every case therefore, which will admit of it, she ought to take care that the other States sustain no injury from the suspension of the law by her, in case her decision should be overruled. In the present case, the injury would consist in the loss of duties, and therefore, South Carolina should merely have suspended the payment of duties, and should have guaranteed the ultimate payment of every cent of them, in case the other States—and a bare majority ought to be sufficient—should decide the Tariff Laws to be constitutional and she should thereupon determine not to secede. In all these respects, and perhaps in others, South Carolina appears to me, to have acted unadvisedly. Suppose, however, that she had avoided all these errors, would it not have been nullification still? And with what could you then have reproached her? Suppose that, instead of tariff laws, she had nullified a law declaring all her slaves to be free? Would you not have commended her extraordinary moderation, and her scrupulous respect for her co-States, in submitting to them the question of the constitutionality of such a law, involving directly the highest of her rights? You certainly would, sir; and wherein, then consists the difference? Simply, Mr. Ritchie, in the application of the doctrine, and not in the doctrine.—Hereafter, sir, when you denounce nullification, you should say, in unequivocal terms, that it is not nullification in itself, but South Carolina nullification, which you mean to condemn. You may then come back (as come back you must, and shortly too,) to the true doctrines of the Constitution, with a better grace.

And now, sir, as South Carolina, is undeniably right in her principles, and merely wrong in some of the measures by which she has endeavoured to assert them, does she for this deserve the sword or not? I have heard the lawyers say, that you do not forfeit your claim in a court of justice by suffering a non-suit for bringing your action wrong; and I imagine that this would be equally true, if the non-suit subjected your adversary to the costs. It is perfectly clear that you cannot coerce South Carolina, without placing the authority of Congress above that of the States, in deciding on the extent of the powers of Congress itself; and, of course, you thus destroy the right of the State altogether. This seems to me to be altogether too high a forfeiture to be incurred for a mere error in the forms of asserting a right. And besides, sir, do you perceive no danger to the Constitution in the extraordinary powers are only to be exerted contingently—since the bill now before Congress leaves it to the President himself to determine when the contingency may arise. Is there no danger that if it should not arise in the ordinary course of events, he will make it for himself? Nothing is easier than to do this, and thus you put the whole matter at his discretion, I know how unbounded your confidence in the President is; but you ought to recollect that this very confidence is the principle upon which dictators are made. You cannot but know that if blood is shed by the Federal arm in South Carolina, this union is dissolved, and a general civil war will be the result. Is there any degree of confidence which can justify the submission of such an issue to the discretion of any one man? Do not tell me that if the President abuses the trust reposed in him he is amenable to punishment. Will an impeachment of Andrew Jackson restore the Union—bring back to the veins the blood which he has shed, and bring the dead to life? The same argument would prove that he ought to be clothed with all power, restrained only by the paper requisition that he shall exert it for the public good. It is not in this way that a vigilant guardian of public liberty ought to act.—There is too much reason to fear that the confidence which confers such a power, may easily be brought to sanction an abuse of it. For my part, I consider it infinitely better that South Carolina should nullify every law in the code, than to trust any man’s discretion with the issue of union and peace, on the one hand, and disunion and civil war on the other. Moreover, sir, do you not consider it utterly opposed to all correct notions of constitutional law, that the Federal Government should make war upon the citizens of a State for an act done by that State in its sovereign character? I am sure that nothing can be found in the columns of the Enquirer, before it embraced the cause of Andrew Jackson, to countenance such an idea as this. What has changed you Mr. Ritchie? Perhaps you have changed because Andrew Jackson himself has changed.—Thsi would not be at all surprising in you, sir, since the whole commonwealth (proh pudor!) appears to have been revolutionized in a single hour for the same reason. Let us, however, in order that we may know hereafter how inconsistently it is possible for a man to act, without forfeiting his character, see what this same General Jackson has said on a former occasion. In his “talk” to the Indian delegation from Georgia, in 1829, he holds this language:—”The sword of the United States might be looked to as the arbiter, &c. But this can never be done. The President cannot and will not beguile you with such an expectation. The arms of this Government can never be employed to stay any State of the Union from the exercise of those legitimate powers which belong to her Sovereign character.” This is truly republican—and what a pity it is that he did not adhere to it!—Surely, the right to declare that an unconstitutional act of Congress really is so, is acknowledged by you to be a “legitimate power” belonging to every State “in her Sovereign character,” and this is the power which South Carolina has exerted. Do you think, then, that the President can consistently “employ the arms of this Government to stay her?” The case in 1829 involved the rights of Georgia—that in 1833 involves the rights of South Carolina. This is the only difference, be assured. Do you recollect, Mr. Ritchie, what a clamour of denunciation you raised against Mr. Adams for threatening—and he only hinted at it, too—to enforce the authority of the Federal Government against Georgia? Do you remember how strongly you then denounced the idea of making war on a sovereign State of this Union? Georgia has been in the regular habit of “bullying the Union”—that is the phrase at present—from that time to this, and you have neither disapproved of her course, nor has General Jackson threatened her with the rod. A fact so glaring as this cannot fail, sooner or later, to make its due impression upon the public mind, to the everlasting shame of General Jackson and his press.

These letters, sir, have already been extended much beyond what I originally proposed, as their utmost limit. They have been very hastily written, never revised, and are altogether unpretending in their character. They have been designed merely to revive in the minds of those who may read them, the almost forgotten principles of 1798, and to call public attention to the absolute and total overthrow of those principles, which is already well nigh effected, by General Jackson. Of course, like other newspaper paragraphs upon the same subject, they will be forgotten with the hour. This is exactly the fate which I wish them to experience, if they can make the desire impression as they are read. I shall now conclude them, with another view of the subject before us, which is certainly worthy of your consideration.

South Carolina is a Southern State, having the same interest with ourselves, in all respects; and for ten years, she has been our best help in this very Tariff contest. Is it not shameful in us to desert her now, in her utmost need? And, besides, is it not our obvious interest to sustain her, particularly in the present position of the Tariff and Anti-Tariff parties? You know perfectly well, that more than half the Tariff Delegation came to Washington in December, prepared to reduce the system to the revenue standard; and you also know that they changed their purpose, as soon as the Proclamation was issued. They saw that the President, although he professed a desire to modify those laws, would, nevertheless, enforce them by the sword, if they were not repealed. What better encouragement can they want, to persevere in their system? Nay, what better precedent can they have, for enforcing any other law, which a majority of the people of the United States may find it their interest to pass? The Northern interest already possesses that majority, and is in no danger of losing it. Is it not, then, our obvious interest to pursue such a course as will strengthen, instead of breaking that bond which now binds the Southern States together? What shall we gain by driving South Carolina out of the Union, or by weakening her influence while she remains in it? We should be led to sustain her, by every consideration of justice, because she is oppressed; by every consideration of generosity, because she is the weaker party; by every consideration of prudence and wisdom, because we must stand or fall along with her.

I can scarcely permit myself, sir, to ask you what we ought to think of the part which General Jackson is acting in this eventful drama? He knows that any modification of the Tariff Laws, will, of itself, whether it raise or reduce the duties, defeat all the measures of South Carolina at once. The Ordinance relates only to the existing laws. He knows this, and he also knows that his influence can cause those laws to be modified in four-and-twenty- hours.—What motive is there, then—what reason can there be, for this alarming and perilous recourse to force? He stands before the people of this country as a President of the United States, making war upon the people, without necessity; as a Southern man, strengthening the arm of Northern power, against Southern interests; as a son of South Carolina, turning his wrath against his native State, and encouraging a civil war among her people, for the gratification of a false pride, or vindictive feeling!! History does not present a worse picture, of the worst forms of human character. You, Mr. Ritchie, have long ago said, that his election would be “a curse upon the country.” I know not, sir, how you will better soften the reproaches which attach to your manifest tergiversation and inconsistency, than by throwing yourself upon your reputation as a true prophet.

LOCKE.

February, 1833.