Strictures on Nullification

by Alexander Hill Everett

It is almost needless to say that this is not the principle on which partnership concerns are generally managed, and that a partnership concern, which should be managed on this principle, would not be likely to possess unlimited credit or to carry on for any length of time a very lucrative business.

The Vice-President anticipates this objection, and for the purpose of meeting it has introduced the second and third points in his theory, as stated at the commencement of this article. As the manner in which he treats this part of the subject is quite curious, we shall quote his own words.

'It may, however, be proper to notice a distinction between the case of a single principal and his agent, and that of several principals and their joint agent, which might otherwise cause some confusion. In both cases, as between the agent and a principal, the construction of the principal, whether he be a single principal, or one of several, is equally conclusive; but, in the latter case, both the principal and the agent bear a relation to the other principals, which must be taken into the estimate, in order to understand fully all the results which may grow out of the contest for power between them. Though the construction of the principal is conclusive against the joint agent, as between them, such is not the case between him and his associates. They both have an equal right of construction, and it would be the duty of the agent to bring the subject before the principal to be adjusted according to the terms of the instrument of association; and of the principal to submit to such adjustment. In such cases, the contract itself is the law, which must determine the relative rights and powers of the parties to it. The General Government is a case of joint agency,—the joint agent of the twenty-four sovereign States. It would be its duty, according to the principles established in such cases, instead of attempting to enforce its construction of its powers against that of the State, to bring the subject before the States themselves, in the only form in which, according to the provisions of the Constitution, it can be, by a proposition to amend, in the manner prescribed in the instrument, to be acted on by them in the only mode they can rightfully pursue, by expressly granting or withholding the contested power. Against this conclusion there can be raised but one objection, that the States have surrendered or transferred the right in question. If such be the fact, there ought to be no difficulty in establishing it.'

It seems from these remarks that, according to the Vice-President's notion of the proper mode of proceeding in a joint concern, if one of the principals suspect that the common agent is exceeding his powers, it forthwith becomes the duty—not of the principal, but—of the agent to submit the doubtful question in regard to the construction of his own powers, to the consideration of the other principals. The discontented partner begins by disclaiming publicly his share of responsibility for the acts of the agent. The agent then consults the other partners: if a majority of them approve the proceedings of the agent, the discontented partner is bound to submit: if not, the agent ceases to exercise the disputed power. Thus, when the President and Directors of the Bank of the United States employed Mr. Sergeant to perform a certain service for them at London, if one of the Directors had happened to hear that that gentleman was exceeding his powers, according to the construction put upon them by this Director, it would have been the duty of the latter to publish the fact in the newspapers, and to give notice to all the world that he, as one of the Directors, would not hold himself responsible for Mr. Sergeant's proceedings. The newspaper containing this notice would in process of time have reached London, and Mr. Sergeant on reading it would have been bound to write to the President of the Bank, informing him that he had seen a notice to a certain effect in a Philadelphia paper, and inquiring whether he had or had not mistaken the meaning of his instructions. The President, on receiving Mr. Sergeant's letter, would have been bound to call together the Board of Directors, and submit the subject to their consideration. If the Board, proceeding in the usual form of transacting business, had decided that Mr. Sergeant had not exceeded his powers, it would have been the duty of the discontented Director to withdraw his objections, and to give public notice that he was ready to resume his share of responsibility. On the other supposition, Mr. Sergeant would have ceased to exercise the disputed power.

Such is the notion entertained by the Vice-President of the proper and usual mode of proceeding in a partnership concern. Our readers, who are at all familiar with business, will, we think, agree with us in the opinion that he has mistaken the matter entirely. In the case supposed, a Director of the Bank, who had heard of any facts which led him to suppose that Mr. Sergeant was exceeding his powers, instead of publishing the intelligence in the newspapers, and making it an occasion for open scandal, would have gone quietly to the Bank, and mentioned what he had heard in private to the President. The President would have submitted the facts to the Directors at their next meeting. If the Board, represented by the necessary number of members, were satisfied that Mr. Sergeant was in fact exceeding his powers, the President would have written to him to that effect, and the Board would have taken the proper measures for remedying any mischief that might have resulted from his mistake. In the other event, the discontented Director would have been relieved from his apprehensions. In either case, the affair would have passed off quietly, without scandal, and, according to our apprehension, in the ordinary and regular way of transacting business.

Reasoning therefore analogically, from the relation between an agent and his principal in a partnership concern,—the only semblance of an argument which the Vice-President offers in support of his main position,—we should draw a conclusion of a directly opposite character, viz. that instead of proceeding at once to nullify and throwing upon the General Government the responsibility of bringing the subject before the other States, it would be the duty of a discontented State to begin by addressing herself in the way of consultation to the other States, her co-partners in the great political firm of the Union. We have already shown that it would be wholly impracticable from the nature of the case for the General Government, believing itself, as it does by the supposition, to possess the disputed power, to adopt any measure implying a contrary opinion. We have shown that the General Government has no authority under the Constitution to adopt such a measure. But admitting that it were both constitutional and practicable, what propriety would there be in it? If Carolina conceive that she has a right to complain of the proceedings of the common agent of the political partnership to which she belongs, and think that her partners ought also to attend to the subject, is she not perfectly capable of saying to them herself all that is necessary or proper on the occasion? Is it not obvious that the agent, who is supposed to be in fault, is the very last person who can be depended on to bring the question before the tribunal which is to decide upon it? Is it reasonable to expect that he will intermeddle in a matter in which he has really no concern, for the mere purpose of denouncing himself as a usurper of power, not granted by his commission? Is there not a wanton and almost ludicrous absurdity in the very idea of such a proceeding? And independently of all this, how ungraceful in the General Government to apply for an augmentation of its own powers, and this too at the very moment when it is accused of exceeding them! Is it not apparent, that such an application would come with infinitely greater propriety from any other quarter? We can hardly believe that, on cool reflection, the Vice-President himself would sanction with his final judgment a theory pregnant with so many and such various incongruities.

It would therefore be the duty of the discontented State, instead of proceeding to nullify and throwing upon the General Government the responsibility of bringing the subject before the other States, to begin by addressing herself directly to the other States in the way of consultation. But in what form is this to be done? The Vice-President tells us, that the subject must be brought before the States 'in the only form in which according to the Constitution it can be, by a proposition to amend in the manner prescribed by that instrument.' But how does it appear, that this is the only or the proper form in which the business can be done? The object is to ascertain the meaning of the Constitution. Why resort for this purpose to a process intended for a totally different one, and, as we have seen, wholly unsuitable and ineffectual for this? Suppose that all the insuperable preliminary objections to which we have adverted are overcome;—that the General Government has applied for a grant of the disputed power, and that the States, as the Vice-President would of course desire, have refused the application;—how would the case then stand? Precisely as it does now. The question would still be, what is the meaning of the Constitution as it is? And after all that had taken place, it would still be just as far from a solution as before. Instead of resorting to a process intended for another purpose, and wholly ineffectual for this, why not employ the one which the Constitution provided and organized for this special object? 'The judicial power,' says the Constitution, 'shall extend to all cases in law and equity arising under this Constitution, the laws of the United States and the treaties made or which shall be made under their authority.' Why not submit the question at once to the Supreme Court? This is the method by which the States, when they established the Constitution, intended that all questions respecting the construction of it should be decided. Nor does a resort to this method involve, as some suppose, the inconvenience of making the General Government the judge of its own powers. The Judiciary department, though nominally a branch of the General Government, is, and was for this express purpose meant and made to be, wholly independent of the other branches of that Government. It is properly a separate agency, established for specific purposes by the same authority which for other purposes established the Executive and Legislative branches. It has no community of interest, direct or indirect, with these branches, and is in all respects the most competent and capable, as it is the proper constitutional judge of the extent of their powers, as defined by the great charter of the Union.

But waving this point, upon which we are aware that the Vice-President's views would not agree with ours, and admitting for the moment and for argument's sake, that the Supreme Court is not the proper tribunal to decide in this case, the question still returns, Why resort to the form provided for making amendments? This is a form, in which the States act for a certain purpose within the pale of the Constitution. But this whole process of nullification,—if not, as we believe it to be, unconstitutional,—is at least, and is admitted to be by those who approve it, extra-constitutional. The State of Carolina throws herself back, (such is the received phrase) upon her reserved rights, and undertakes to decide, in her capacity as an independent State and a party to the Union, which she considers as a confederacy of independent States, whether the compact has been faithfully observed. She satisfies herself that it has been violated, and she now wishes to ascertain whether the other States agree with her in opinion. But how are these States to be consulted and to act in this matter? Obviously in the same capacity in which Carolina proposes it. She appears in this affair as a sovereign and independent power; as such she must address herself to the other States, and it is only in their capacity as sovereign and independent powers, resting on their reserved rights, that they can receive and act upon her communication. The whole affair, reasoning of course on the principles of the Vice-President, is extra-constitutional. Why then resort to a process, intended for the direction of the States while acting within the pale of the Constitution for its ordinary purposes? The Vice-President, in proposing this course, obviously forgets his own principles. The true one, on his system, would be very different. Having taken her stand upon her reserved rights and assumed the attitude of a sovereign power, Carolina should exhibit a little more of the lion port and awe-commanding face. Instead of resorting to a paltry humiliating process, which supposes throughout the subordination of all the parties concerned in it to the common authority of the Union, our soi-disant sovereign, in order to be consistent, should send ambassadors to all the other States to communicate the business in hand. These again, being thus called on, must in like manner throw themselves back upon their reserved rights, and assume, for the time, the attitude of independent States. If a consultative meeting be deemed expedient, it must be a congress of ambassadors held by arrangement among the States, and in which they will appear by their ministers as independent powers. At such a meeting, the rule of deciding questions according to the opinion of the majority has of course no application. Although three-fourths or even all the States, except Carolina, should agree that the compact had not been violated, she would still be at liberty as a sovereign power to adhere to her own construction, and to hold herself in future exempt from the obligation imposed by the articles of union. Such, as we conceive, is the only process consistent with the theory of nullification, which the Vice-President, with submission to his better judgment, does not follow out to its proper and natural conclusion. We find accordingly that Georgia, who, although she has said but little about nullification, has, to do her justice, practised it for two or three years past with a vigor and consistency that rather put to shame the Carolina doctors of the science,—having thought proper to consult the other Southern States upon the propriety of assembling an anti-Tariff Convention,—instead of depending upon the General Government to bring the subject before them in the form provided for amending the Constitution, forthwith despatches her ambassadors to their several seats of Government to communicate her sovereign intentions, where, for aught we know to the contrary, they have been carrying on their negotiations up to this day.

So much for the first reason, why the doctrine, that a principal has, in ordinary cases, an unlimited right to construe the powers, and disavow the acts of his agent,—were it even true, as we have shown that it is not,—would in no way help the Vice-President's argument. Carolina is one of a number of principals, composing a partnership concern; and if she have any doubts about the propriety of the proceedings of the common agent, her only course is to consult with her co-partners, and to acquiesce in the opinion of the majority. But there is another reason still more substantial, why the doctrine in question, even if true, would be of no service to the Vice-President:—a reason leading at once to the heart of the whole argument, of which the matters thus far touched upon are merely the 'limbs and outward flourishes;' and that is, that a Government, although it may in a certain sense be called an agency, is an agency of a peculiar kind, carrying with it rights and obligations, of which the nature and extent cannot be deduced by analogy from those which are incident to the relation of agent and principal in private life, and can only be determined by a correct analysis of the structure of society and the original principles of the human constitution.

That the Government of the United States, though described as an agency, is to all intents and purposes a real Government, is frankly admitted by the Vice-President himself. 'In applying the term agent to the General Government, I do not intend to derogate in any degree from its character as a Government. It is as truly and properly a Government as are the State Governments themselves. I have applied it simply because it strictly belongs to the relation between the General Government and the States, as in fact it does also to that between a State and its own Government. Indeed, according to our theory, Governments are in their nature but trusts, and those appointed to administer them trustees or agents to execute the trust powers. The sovereignty resides elsewhere,—in the people, and not in the Government.' 'The Constitution of the United States, with the Government it created, is truly and strictly the Constitution of each State, as much so as its own particular Constitution and Government, ratified by the same authority in the same mode, and having, as far as its citizens are concerned, its powers and obligations from the same source.'