James Madison Papers

James Madison: Notes on nullification and the nature of the Union, December 1831

thinks it more desirable than probable that on discussing the urgent case of S. C, abstract questions may be avoided; that if not avoided, it is important that the several speakers shd. distinctly understand the meaning of each other, without wch. the debates may become verbal unintelligible & interminable; that it is particularly important to be kept in view that the characteristic distinction between free Govts. and those not free, is that a compact is the basis and cement of the former, a compact not between the Govt. and those who formed & were the parties, but among the parties to it, themselves; that the parties to the existing Constitutional compact, which recognizes & ratifies the Union of the States, and establishes and organizes the Govt. of the United States, are the people as embodied into the several States, not as formed into a single body acting by a numerical majority, but that within their respective States the people entered into the Constitutional Compact in this mode giving it the highest sanction in their power; by the vote of a numerical majority within each State, and a unanimous vote of the States themselves, without a strict attention to these distinctions, it may happen or rather has happened, to be alternately affirmed & denied that the people are parties to the Constitutional Compact of the U.S. and discussions ensue, by arguments, which missing each other, can result in nothing unless it be in confirming both in their respective opinions, instead of changing that of either. Again it ought to be kept in view, that Compact is to be indefinite, unless otherwise expressed or clearly understood; and to be manifestly implied if not otherwise expressed, in the case of a compact such as that of the U.S. which was meant to improve a perpetual one; and the more necessarily implied as there had been no example of a national union of people, or a confederated Union of States which did not involve the idea of unlimited duration.

Once more it must be kept in view, that, as the very term compact imports, it is equally and reciprocally binding on each of the parties, that neither has more right to say it has been violated & become void than that the other or others have a right to say that it has not been made void, and to insist on its execution.

Applying these obvious & undeniable principles to the two agitated questions of Nullification and secession, just decision on them cd. not it would seem be doubtful or difficulty.

With respect to the first, when disembroiled from the sophistry of party passions, the nullification expressed by S.C. in which a single state initiates a process which is to give in its result an authority of 7 over 17 States, will be in all sober minds, be unanimously pronounced to be equally unconstitutional, preposterous, and anti-republican.

If by nullification be meant a mere resistance to laws believed to be such a usurpation or abuse of the Compact as absolves the party from his longer compliance with it, it is a simple question of fact, not whether there be or be not such an absolving occurrence, and if the parties can not agree, and neither will yield, it necessarily becomes a question of comparative force.

The right of Secession must be decided as resting on the same grounds. It is a question between the parties to the Constl. compact. It is to be observed however that a distinction is to be made among those who espouse the doctrine. Some of them contend for a right to secede, when they please, and consider it as inexpedient to exert the right till an extreme or revoly. case arises. These seem at once to claim a right, uncontrouled by the compact. Others claim the right but admit that it can only be exercised, when justified by an oppression absolving them from the obligations of the Compact, in other words that they have no right till be created by such an extreme State of things. There are others who seem to confound the two cases, by contending for a right of peaceable secession, which if it means with the express or tacit consent of the parties, cannot be denied; if it means their retiring agst. the consent of the other parties, but and only without a parthian discharge of their warlike missiles, the word peaceable is a comment, depend on the will of the other parties.

I have said that the Constitutional compact is not between the Govt. and the governed as it is said to be in Countries where the Monarch and the nation are held to be independent and co-ordinate with the nation but among those who created the Govt. The distinction is so obvious that can scarcely be denied when alluded to, yet so familiar is the error, which loses sight of it, that Mr Hayne, intelligent & well informed as he is, fell into it in the celebrated debate in 1830, which led to the signal triumph of his adversary. And what is more remarkable, Even Judge Roane in his critical examination of the Constitutional text in  , was so unguarded in his argt. as to speak of the Compact &c as one to which the fedl. & State Govts. were the parties to it.

It is not improper as the Proceedg of Virga. in 98-99, are brought into the questions of Nullification & Secession; to observe that the question of the Alien & sedition Law, was immediately & mainly one between the fedl. Govt. & the Constituent Body, whilst in those two cases, the question is one among the parties, among themselves who established the relation between the Govt. & the Constl: Body. It may be further observed that in order the better to understand those proceedings, attention must be given to the doctrines & argts they combated, which claimed for the decision of the Supreme Court a bar to any interposition on the part of the States even by a Legislative declaration of Opinion


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