Western Sun & General Advertiser, Volume 21, Number 40, Vincennes, Knox County, 13 November 1830 — Page 1

mm M 1 BY BZiIHU STOUT.J VINOBimES, (la.) SilTUBDAY, STOVSEflBSR 13, 1830. VOL. XZJ. HO C. 5

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mr. madison's letteu TO THE EDITOR OF THE NORTH AMEMICAN REVIF.W. JSfontJielier August , 1830. Dear Sir: I have duly received your letter, in which you refer to the "nidifying doctrine," advocated as a constitutional right, by some of our distinguished fellow citizens; and to the proceedings of the Virginia Legislature in ;98 and 99, as appealed to in behalf of that doctrine; and you express a wish for my ideas on those subjects. I am aware of the delicacy of the task in some respects, and the difficulty in every respect, of doing full justice to it. But, having, in more than one instance, complied with a like request from other friendly quarters. I do not decline a sketch of the views which I have been led to take of th-1 doc trine in question, as well as some others connected with them; and of the grounds from which it appears that the proceedings of Virginia have been misconceived by those who have appealed to them. In order to understand the character of the Constitution of the United Statt-s, the error, not uncommon, must be avoided, of viewing it through the medium, either of a consolidated Government, or cf a confederated Government, whilst it is neither the one nor the other; but a mixture of both. And having, in no model, the similitudes and analogies applicable toother systems of Government, it must, more than any other, be its own interpreter according to its text and the facts rf the ca?f. From this it will be seen that the characteristic peculiarities of the Constitution are, 1, the modect its formation; 2, the division of the supreme powers of Government between the States in their united ca pacity, and the States in their individual capacities. 1. It was formed, not by the1 Government of the component States, as the Federal Government for which it was substituted was formed. Nor was it formed by a majcritv -of the people of the United States, as a single community, in the manner of a consolidated Gc eminent. It was formed by the States, that is, by the people in each of the States, acting in their highest sovereign capacity; and formed consequently by the same authority which formed the State constitution. Being thus derived from the same source as the constitutions nf the States, it has. within each tate, the same authority as th; c.o otitutio of the State; and is as much a C' itu:': '.in die strict scii of the term. 'Vesciiueu piieit, a uic umimiie States '.e ithra th. i; rospecbut w.ih ill s o,vious iii.'.l tutuTV c. ct ' lieK ! . diif.' ice, th t !. a compact .il ..ates ri t md c-nstitv !0:r r-act sov cr people thereoplc tot certain purposes. ic can..hered or annaed vf t -v ill cf the nuhvidu i'U , as the c ;istitu'.itn cf a ate m be at Us in. il will. L And that it divid s the supreme powers "f Govermv.cnt, ) ' een the Government of theUnitedSt v.es, and the Government of the individual Mates; is stamped on th:- tuc of the instrument; the powers vM wA. .end i f taxation, cf commerce, and C 1 ill ct tn am s, and other cnumerateu power vested m tne Government ot the L sated t,-. vi--.4 -' :v h.i-h and sovereign a of the powers reserved , - character, as a; v to the State Governments. Nor i the Government of the Unhcd State?, created by the C'V-.stitution, less a Government in the strict sense of the wt m, within the sphere of its powers, than the Gover -merits created by the constitutions i cf the Mates are. withm their several spheres. It is like them g ufed into Leg!I.iti F.xecutive, and Judiciary depart-r.ir-.K lf operates like them, directlv on ci ons .nd things. And. like them, i: has lit c om a.Mid a pin -ical force for ex-cuting the pow.-rs committed tl it. The concurrent operation v, certain ces. is one r-f the fe .nines tnaiWmg the peculiarity of the system. lV:twcen thoc difT ivut constitutional r,.....iimrnK th.. r,n,- .Ml.Tatipe: in all the S'ates, the others oK rating sep irately in each, with the a-u c'ite powers of Governirient divided between them, it could not escipc attrition, that controversies would a-! r- cowerning the boundaries of junsdieti'on; and that som -provision ought to he made for such occurrences. A political nvide tor such occurrences. A Fasten th :t dijesnot prov ide f r a p ace iMr md authoritative termiu.ai.Mi of ocurris r controversies, wtvdd nut be moie than ti,.- Ji uliuv t" a ( i i . eminent: the itlncct

ail e- d ef a real Government being, the s uictiun wita-Mi uuors ; anu uiai neiner , periv , inai u couiu oe saieiy estaonsneu una.h.t't'itioa of law and order, for uncertain- j continued, varied, or repealed, a like proof j der the first alone, i a position not likely to

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.. fusion, and n iciicc.

'I hat to have left a final decision, in such

cases, to each of the States, then thirteen, and already twenty-four, cculd not fail to mAke the constitution and laws rf the United States different in different States, was obvious; and not less obvious, that this ci versity cf independent decisions must alto- , gcther distract the Government of the Uni-1 on, and speedily put an end to Union itself, j

A unitorm autiiont) oi tne laws, is m itself i state governments, 1 may be permitted to a vital principle. Some of the most impor-1 refer to the thirty-ninth number cf the "Fetant laws could not be partially executed. ! deralist," fcr the light in which the subject They must be executed in all the States, or j was regarded by its writer, at the period they could be duly executed in none. An j when the constitution was depending; and

impost, or an excise, for example, if not in torce in some states, would be defeated inothers. It is well known that this was amongthe lessons of experience, which had a primary influence in bringing about the existing constitution. A loss ci its general authority would moreover revive the exasperating questions between the States holding ports for foreign commerce, and the adjoining States without them; to which are now added, all the inland States, necessarily carrying on their foreign commerce through other States. To have made the decisions under the authority of the individual States, co-ordinate, in all caf-es, with decisions uuder the authority of the United States, w ould unavoidably produce collisions incompatible with the peace of society, and with that regular and efficient administration, which is the essence of free governments. Scenes could not be avoided, in which a ministerial officer of the United, and the correspondent officer of an individual State, would have rencounters in executing conflicting decrees; the result of which would depend ou the comparative force of the local posses attending them; and that a casualty deponing on the political opinions and party feelings in different States. To have referred every clashing decision, to the States as parties to the Constitution, would be attended with delays, with inconveniences, and with expenses, amounting to a prohibition of the expedient; not to mention its tendency to impair the salutary veneration for a system requiring such frequent interpositions, nor the delicate questions which might present themselves as to the form of stating the appeal, and as to the quorum for deciding it. To have trusted to negotiation for adjusting disputes betw een the gov ernment of the United Stntesaud the State Governments, as between independent and separate sovereignties, would have lost sight altogether of a constitution at. d government for the Union; and opened a direct road from a failure of that resort, to the ultima ratio between nations wholly independent of and alien to each other. Jf the idea had its origin in the process of adjustment, between separate branches of the same government, the analogy entirely fails. In the case of disputes between independent parts of the same Government, neither part being able to consummate its will, nor the government to proceed w ithout a concurrence of the parts, necessity brings about an accommodation. In disputes bet ween a State Government, and the Government of the United States, the case is practically as well as theoretically different; each party possessing all the departments of an organized government, Legislative, Executive, and Judiciary; and having each a physical force to support its pretentions. Although the issue of negotiation might sometimes avoid this extremity, how often would it happen, among so many States, that an unaccommodating spirit in some would render that resource unavailing? A contrary supposition would not accord with a knowledge of human nature, or the evidence of our ovn history. The constitution, not relying on. any of the preceding modifications, tor its sife and successful operation, has expressly declared, on i" o; e hand, 1, "that the cunititution, anu ihe i iws made in pursuance thereof and -v 'reaties made under the authoi it of th. Unitei: ti'.tes, shall be the supretiiv w ot" f ie land; 2, that the Judges of every "t - . shall be bound thereby, any thiiu- in the constitution and laws of anv S'.it. the contrary notwithstanding; 3, .t oc judicial power of the United'States a.-.ll extend to all cases in law and equity arising under the constitution, the law s ot the United States, and treaties made under their authority, Sec." O.a the other hand, as a security of the rights and powers of the states, in their indiudual capacities, against an undue pttponderance of the powers granted to the government over them in their united capacity, the constitution has relied 'en, l,thc responsibility cf the senators and representatives in the legislature cf the Unktd States to the Iegi-Uture and people of the states ; 2, the responsibilitv of the president to the people or tne united Mates ; ami ., tne iia biiity et the executive and judicial functionaries of the U-.utd States to impeachment bv . i r uie represe ntatives ci me peupie oi uie states, n, one branch of the legislature of the United States, and trial by the repre sentatives ot the states, in the other branch ; the state functionaries, legislative, executive, and judh ial, being, at the same time, m their appointment and i sponsi'jility, altogether independent of the agency or authority cf the United States. 'How fir this structure of the govern ment cf the United States is adequate and safe for its objects, time alone can absolute- i iv determine, lxpenen rce seems to nave shewn, that whatever may grow out ct future states of our national career, there is. as yet, a sufficient control m me popuiai j will, over the executive and kgulatu c de-1 1 .. . !.. 1 partments of the government. hen the j i alien and sedition laws were pissed in con-! travention to the opinions and feelings of the j community, the first elections that ensued put an end to them. And whatever may j h ivc been the character of other acts, in . the judgment of mir.v of us, it is but true. , that they have generally accorded with the views of a m ii nitv t the states and ot the people At the present day it seems well U'Werve.!, mat me . a s wnie: nave creac U il unst dissatisfaction, have had a like " I .1 - - I. .I.i it d j will be given ct tue sympathy unu respunsi-

; hility of the represeentativc body, to the

constituent body. Indeed, the great com plaint now is, against the results nf this sympathy and responsibility in the legislative policy of the nation. With respect to the judicial power of the United States, and the authority of the supreme court in relation to the boundary of jurisdiction between the federal and the it is believed, that the same was the pievail ing view then taken of it, that the same view has continued to prevail, and that it dees at this time notwithstanding thw eminent exceptions to it. But it is perfectly consistent with the concession of this power to the supreme court, in cases falling within the course of its functions, to maintain that the power has not always been rightly exercised. To say nothing of the period, happily a short one, when judges-in their seats did not abstain from intemperate and party harangues, equally at variance with their duty and their dignity ; there have been occasional decisions from the bench, which have incurred serious and extensive disapprobation. Still it would seem, that, with but few exceptions, the course of the judiciary has been hitherto sustained by the predominant sense of the nation. Those who have denied or doubted the supremacy of the judical power of the United States, and denounce at the same time a nullifying power in a state, seem not to have sufficiently adverted to the utter inefficiency of a supremacy in a law of the land without a sumpremacy in the exposition and execution of the law: nor to the destruction of all equipoise between the federal government and the state governments, if, whilst the functionaries of the federal government are directly or indirectly elected by and responsible to the states, and the functionaries of the states arc in their appointment and responsibility wholly independent of the United States, no constitutional contiol of any sort belonged to the United States ov er the states. Under such an organization, it is evident that it would be in the power of the states, individually, to pass unauthorized laws, and to carry them into effect, any thing in the Constitution and laws of the United States to the contrary notwithstanding. This would be a nullifying power in its plenary character ; and whether it had its final effect, through the legislative, executive, or judiciary organ of the state, would be equidly fatal to the constituted relation betw een the two governments. Should the provisisions of the Constitution as here reviewed, be found not to secure the government and rights of the states, against usurpations and abuses on the part of the United States, the final resort within the purview of the constitution, lies in an amendment of the Constitution, according to a process applicable by the states. And in the event of a failure of every constitutional resort, and an accumulation of usurpations and abuses, rendering passive obedience and non-resistance a greater evil, than resistance and revolution, there can remain but one report, the last of all ; an appeal to the cancelled obligations of the constitutional compact, to original rights and the lav,-s of self-preservation. This is the ultima rati) under all governments, whether consolidated, confederated, or a compound of both; and it cannot be doubted, that a sinele member of the Union, in the extremity supposed, but m that only, would have a right, as an extra and ultra-constitutional liht, to make the appeal. This brings us to the expedient lately advanced, which claims for a single state a right to appeal against an exercise of power by the government of the United States decided by the state to be unconstitutional, to the parties to the constitutional compact ; the decision of the state to have the effect of nullifying the act of the government of the United States, unless the decision of the state be reversed by three-fourths of the parties. The distinguished names and high authorities which appear to have asserted and given a practical scope to this doctrine, entitled it to a respect which it might be difficult otherwise to feel for it. If the doctrine wrre to be understood as requiring the three-fourths of the states to sustain, instead of that -proportion to reverse the decision cf the appealing state, the decision to be without effect during the appeal, it would be sufficient to remark, that this extra-constitutional course might well give way to that marked out bv the constitution, which authorises two-thirds of the states to institute and three-fourths to effectuate an amendment of the constitution, establishing a permanent rule cf the hichest authority. But it i? understood that the nullifying doctrine imports that the decision of the state is to be presumed valid, and that it overrules the law s of the United States, unless overruled by three-fourths of the states. Can more be necessary to demonstrate the inadmissibility of such a doctrine, than that it puts it in the power i f the smallest fraction over one-fourth of the United States, that is, of seven states out of twentvlo S " ncLCou1l. - 1 -i . w.kvv.. okw., vi n.c se No 39. It is true, that in controversies . I 1 I i . renting to uic uounuai y ueiwetn tne two jurisdictions, the tribunal which is ultimatelv to decide, is to be established under the General Government. Rat this dees not ! j change the principle of the case. The de- j j cision is to be impartially made according! j to the rules of the Constitution; and all the' , usual and most tflVctual precautions are ta-! ken to secure this impartiality. Some such ) tribunal is clearly essential to prevent an j appeal to the swerd, and a dissolution of the compact and that it ought to be established under the General, rather than under the 1 local Governments; or, to speak mure pro-j t - - 1 IJl. .. ..I.. I j &e coinuatec.

enteen having as parties to th constitution, measures known to the constitution, paran equal nghtwith each of the sevtn. to ex- ucularly the ordinary control of the pcopounu it, and to insist on the tnosion i 1 1 i e That ,l.;vcn .iBht. in P,.n lar iin- PJC "d ,CE""' of t he over ccs be right, and U. sctentc.n IrouA ,he Kovernment of ll.c Umtcd Suw,,

more than possible. But to establish a po sitive and permanent rule giving sutn a power, to such a minority, over such a majority, would overturn the first principle of free government, and in practice necessarily overturn the government itself. It is to be recollected that the constitution was proposed to the people of the states as a ti,,:c,r, and unanimously adopted by the states as a ivKlI:, it being a part cf the constitution that not less than Uiree-fouiths of the states should be competent to make any alteration in what had been unanimously agreeel to. So f;teat i the caution on this point, that in two cases wheie peculiar interests were at stake, a proportion even of three-fourths is distrusted, and unanimity required to make an alteration. When the constitution was adopted as a whole, it is certain that there were mar.v pans, which, if separately proposed, would have been nrornptiv rejected. It is far from

impossible, that every part of a constitutu.n j again.! the encroaching spirit of the gemight be rejected by a majority, and yetta- J m ral government, argues the unccntx

w.en together as a whole be unanimously ac cepted, v ree constitutions will rarely it ever be formed, without reciprocal concessions; without articles conditioned on and balancing each other. Is there a constitution of a single state out of the twenty-four that would bear the experiment cf having its component pai ts submitted to the people and separately decided on ? What the fate of the constitution cf the United States would be if a small proportion of the states could expunge parts of it particularly valued by a large majority, can have but one answer. The difricultv of the doctrine is not remo ved by limiting the doctrine to cases of construction. How many cases of that sort, involving cordial provisions of the constitution, have occuired? How many now-exist? how many may hereafter spring up? How many might be ingeniously created, if entitled the privilege of a decision in the mode proposed? Is it certain that the principal of that mode would not reach further than is contemplated. If a single state can of right require three-fourths of its co-states to overrule its exposition of the constitution, because that proportion is authorized to amend it, would the plea be less plausible that, as the constitution w as unanimously established, it ought to be unanimously expounded ? The reply to all such suggestions seem to be unavoidable and irresistible ; that the constitution is a compact, that its text is to be expounded according to the provisions for expounding it making a part of the compact : and that none cf the parlies can rightfully renounce the expounding provision more than any other part. When such a right accrues, as may accrue, it must grow out of abuses of the compact releasing the sufferers from their fealty to it In favor cf the nullifying claim for the states, individually, it appears, as you observe, that the proceedings of the legislature of Virginia, in 9ti, and against the alien and sedition acts, are much dwelt upon. It may often happen, as experience proves, that erroneous constructions not anticipated, may not be sufficiently guarded against, in the language used ; and it is due to the distinguished individuals, who have misconceived the intention cf those pro ceedings, to suppose that the meaning of the legislature, though well comprehended at the time, may not now be obvious to these unacquainted with the contemporary :id;catiuns and impressions. But it is believed that by keeping ir. view the distinction between the governments of the states, and the states in the sense in which they weie panics to the constitution; between the rights of the parties, in their concurrent and in fheir individual capacities; between the several modes and objects of interposition against the abuses of power, and especially bctweeu the interpositions within the purview of the constitution, and inlerpositions appealing from the constitution to the lights of nature paramount to all constitutions; with an attention, always of explanatory use to the views and arguments which were combatted, the tesolutions of Virginia, as vindicated by the report on them, will be found cnti tied to an exposition, show ing a consistency in their parts, and an inconsistency of the whole with the doctrines under consideration. That the legislature could not have intended to sanction such a doctiinc, is to be inferred from the debates in the house of delegates, and from the addiess of the two houses to their constituents, on the subject of the resolutions The tenor of the debates, which were ably conducted and are understood to have been revised lor the press by most, if not all, of the speakers, discloses no reference whatever to a constitutional right of an individual state, to arrcs' by force the onerationof a law of the United States Concert among the states for retires, against the alien and sedition laws, as ! acts of usurped power, was a leading' sentiment ; and the attmnrri cert, the i...md,,,e object of the course uuupicu uy uic legislature, which that of inviting the other states "to canrar, in declaring tne acts to be uuconstitutional, and to co operate by the necessary and proper measures. In maintaining unimpaired the authorities, rights and liberties reserved to the statesand to the people." That by the necevSary and proper measures to be concurrtTitly and co cf.crativ ry, taken, were meant w a 'See the cor.cl.dirg Resolution cf

cannot be doubted ; and the interposition

ol this control, as the event showed, wa equal to the occ-sion. It is worthy of remark, and explanatory of the intention of the legislature; that the words ,4not law, but utterly null, oid ard of no lorce or effect," '.yhich had followed, in one of the resolutions, the word "unconstitutional," wer struck out by common consent. The the words were in t3ct but synonymous with "unccnstituticnul ytt to uard aguinst a inisunde tar ding ol this phrase as more than declaratory of opinion, the word, iuncoris,.i'.u'iiia.' alono was i etaincd, as not liable to lha: danger. o The published address cf u.e 'egislature to the people, their cor.sti.iicr.ts, affords another conclusive eidcivcof its views The addiess warn Ihcro tuiionality of the alien and sedition acts; points to other instances in which tba constitutional limiia had been over. eaped ; dwells upon the dangerous mode of deriving power by implication; ard in general presses the necessity of washing over the consolidating tendercy cf the federal policy But nothing is said that can be understood to look to means of maintaining the rights of the slates, beyond the regular ones, within the forms of the constitution. If any further lights on the o bject could be needed, a very strong on reflected to the answers in the resold ins, Dy the states which protested against them. The main objection of these, beyond a few general complaints of the infiammatoiy tendency of the resolutions, was directed against the assumed authority of a state legislature to declare a law of the United States unconstitutional, which they prononnccd an unwarrantable intctfcrcnce with the exclusive jurisdiction of tho supreme court ol th United States. Had the resolutions been regarded as avowing and maintaining a right, in an individual state, to arrest, by force, the execution of the lavr of the United States, it must be presumed that it would have been a conspicuous object of their denunciation. With cordial salutations, JAMES MADISON. Prom the Boston Statsman. THE Till COLORED FLAG. "The tri-coloicd flag isays Mr. Cobbett,) is enough for me: if that f.a ke: p up. Heform in England is inevitable; if that flag, that outward and visible sign cf perpetual hostility to Aristocratical ir justice, keep up, Reform must come to England for some beginning or ether; and the wise way would be to make it now, when it c.n be done without a struggle. The example of Angelica is powerful, but v. e only hear of that: the other we- shall see, it is a mighty, a populous, a rich, a learned nation, admired ter its valiant achievements, ai.d now more admired than ever, this last act bung the mo3t noble exploit ever performed by a people. A people unarmed, dharmcd ln fact, a people lepaging in tie lap cf peace, beset on every sale, and divided in the midst by an organized Government ard a powerful irmy, and watched by ypies i.nd gens d'arrr.ies at every turn, rising ail at once, baring their breasts to ti e s:i'tcs and the bullets j.nd the cannon balls, v.n n the first violaticn of their right?.' T;.k;rg their old republican r.;otto, 'Ktc lure, ou ricurir."' "Live fiec, c r dk!" and acting f the very letter opto that motto! Such a spectacle must haveai.d will have a great uKeten all the r ations in the world. It -hould be remembered by every body (he centinues. addressing himself in his letter to the Kir g of England,) and particularly by y ur Majesty, that the w ar against the French Republic was a war sought by us, that is, by our government, and that the object was to prevent the contagion of Trench principles.' Now, what were those principles? That there ouht to be no overbearing aristocracy, no titles, cr established church, that rdl men should be equal in the eye cf the Jaw, that no law ought to be passed without the assent cf the people at large throueh representatives freely chosen by them These were the "French principles,' and without asking how many men there are in England w ho reject these principles now, I may venture to assert, that we sh ill not go to war cguin- to prevent the cont agion c: these or of any ether French principles. Vet it must be evident to every ci c.that v c cannot rtmaui as we iie, if the tri-colcrtd P.ag continues to wave in the air." J'rcm the Paltimcre Republican. TIIE WEST INDIA TRADE. What are the benefits to be derived from the Colonial Trade, for the recovery of which, ycu Jackonians take so much credit to your President, hi, Sec rctary and Minis'tcr What, ;fter all, is the amount cf cur i Andwkat article do do we export to them ? Such were the questlcns sreeringly put to ui the other day by cne of those Clayitcs, whese political opposion, degenerated into mere personal rancor, seems, wherever general Jackkcn is concerned, not only to have deprived them of their reason, but to hive tfiactd from their memories all the lesaons cf experience. And such, and in the iaine spirit, is the daily language of u hrc portion cf the eppcYiiicu picki.